Social Security (Scotland) Bill, June 2017

Health and Social Care Alliance Scotland (the ALLIANCE)

Member briefing and initial reflections

Introduction

The Social Security (Scotland) Bill[1] was presented to the Scottish Parliament on 21 June 2017. This follows an initial consultation on the creation of a new social security system in Scotland which ran from July to October 2016. The ALLIANCE’s consultation response[2] set out our initial views.

This briefing has been prepared to share some of the ALLIANCE’s initial thoughts in relation to the Bill, based on discussions we have had with members and partners to date through a research project gathering the views of seldom heard people from across Scotland[3] and our work through the Welfare Advocacy Support Project[4]. However, the ALLIANCE will be working in partnership with members over the coming weeks and months to further develop our position on the Bill.

The Bill as introduced and its progress can be followed on the Scottish Parliament’s website at:

Principles

The Bill outlines the Scottish Government’s view that social security is an investment in people and, whilst it is in itself a human right, it also contributes to achieving other human rights. The Bill notes that the new social security system will be designed by the people of Scotland with continuous improvement as one of its central elements.

The ALLIANCE welcomes the principles of the new social security system as set out in the draft legislation but believes that further detail should be included that outlines specific remedies and redress mechanisms if the principles set out on the face of the Bill have not been directly met.

Social Security Charter

A Scottish social security charter is to be prepared and published. The first charter will be produced within 6 months of the new legislation being enacted. The charter must be reviewed at least every five years.

The ALLIANCE agrees that a charter is a useful way to ensure that the stated principles of the social security system are well understood, both by people accessing and delivering the system. Accountability must be the main principle guiding the development and application of the charter. We believe that any charter should set out what happens if the state does not comply with the charter and, beyond that, how the general public can hold the Scottish Government to account.

Producing the social security charter will involve people who receive a range of social security payments at the moment plus others who the Scottish Government considers appropriate. Throughout this section of the Bill it refers to consultation’ with people who use social security payments.

We believe that its development should reflect wider Scottish Government attempts go further than consulting and to co-produce the charter and its contents. Co-production offers an approach to design and delivery that makes the best use of the skills, experience and capacities of all stakeholders to jointly create effective solutions to what are often seemingly complex and intractable problems. Co-production approaches help to create a discourse that encourages respect and dignity within a human rights-based framework and, in itself, is an example of taking a rights-based approach.

The Scottish Government must also make sure that the charter is built upon meaningful, active and constructive dialogue and engagement with beyond people who currently access the social security system. Beyond those groups already proposed on the face of the draft legislation, the Scottish Government should also consider how it will involve people who may, in the future, be eligible for assistance (e.g. young disabled people and young carers) and third sector organisations providing support to people who use social security.

Annual Report

An annual report will be published at the end of each financial year. This will include information on the performance of the social security system during that year and what the Scottish Government has been done to meet the expectations as set out in the social security charter.

Further information should be set out on who will be expected to scrutinise the Scottish Government’s actions e.g. the Scottish Parliament or an independent body as suggested in the Scottish Government’s social security consultation paper. This must also set out the mechanisms for that scrutiny.

Assistance

The Bill introduces a duty on Ministers to “give assistance” as determined by entitlement processes as set out in future regulations relating to each of the social security payments which have been devolved. It notes that applications for assistance must be accompanied by such evidence as Scottish Ministers require.

People who spoke to the ALLIANCE during our consultation with seldom heard groups[5]told us that others, including them, should also be involved in deciding what supplementary information is relevant or not.The legislation should be extended to enable others to determine what supplementary information is relevant for Scottish Ministers to obtain and note that this could change over time.

The Bill sets out the following criteria for each type of assistance (and we would expect further details to be outlined in regulations):

Carers assistance is to be provided to “an individual who provides, or has provided, care to another individual who has a disability”.
Disability assistancewill be given to people who have “a disability arising from a physical or mental impairment” or “a terminal illness”.

The ALLIANCE believes that there may be cause for a change to the Bill based on the language used in relation to carers assistance. Many people who self define as living with a long term condition will not consider themselves to be an “individual who has a disability” even if they are in receipt of Personal Independence Payment or Disability Living Allowance. The Scottish Government should consider amending the face of the legislation to include reference to “long term conditions” or relate this to the definition of disability under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

UN Convention on the Rights of Persons with Disabilities[6]

Cold heating assistancewill be given to help meetan individual’s heating costs during a period of cold weather.
Winter heating assistancewill be given to help people to meet heating costs during winter months.
Early years assistancewill be given to help meeting costs of having, or expecting to have, a child in the family.
Employment-injury assistance will be given on account of someone having had an injury, or contracted a disease, during the course of their employment.
Funeral expense assistancewill be given to meet, or help towards meeting, funeral expenses.

The Bill also sets out that “short term assistance” can be made available in other circumstances which will be determined at a later date in regulations.

Determining entitlement

This chapter of the Bill outlines Scottish Ministers’ duties in relation to determining entitlement to these payments. It states that Ministers must publicise timescales for determining entitlement. Once determined, the Scottish Government must inform the applicant of:

Their decision.
The reasons for its decision.
The right to re-assess entitlement.
The right to appeal should this extend beyond particular timescales.

The ALLIANCE is concerned that this section is dominated by what the Scottish Government’s expectations of people accessing assistance are and consequences, rather than consequences for the state if they don’t. The legislation should outline the further requirements and expectations of Scottish Government departments whilst determining eligibility, for example including rules around providing timeous information to support people to make appeals.

The Bill also sets out a series of duties in relation to requesting information from people which will assist the Scottish Government to determine eligibility and the power to put in place a duty to notify the Scottish Government of a change in circumstances of people receiving assistance.

The ALLIANCE has recently completed a consultation exercise with seldom heard people around Scotland on what a new social security assessment process should look like[7]. This presents a detailed representation of the views of people across Scotland on how such processes should be carried out, what support should be available and who should be involved. The Scottish Government should consider how it will take the recommendations of this report forward through the regulations underpinning the Social Security (Scotland) Act.

Assistance given in error

The Bill makes clear that where payments are mistakenly given the individual may be liable to pay the full value back to the Scottish Government. Payments are considered “mistaken” if an error was made, incorrect information was given or an assumption was made which proves to be wrong.

Offences

The Bill outlines the creation of an offence if a person provides, or causes another to provide, information which is false or misleading with the intent of being given assistance. The Scottish Government can make provision for investigations of such offences.

On summary conviction (by magistrates) person may be liable to imprisonment for up to 12 months, a fine or both. On conviction on indictment (by a jury) the person may be liable to imprisonment for up to 5 years, a fine or both. Similar convictions may be extended to people who fail to notify the Scottish Government about a change in circumstances.

Top up benefits

The Bill allows Scottish Ministers to provide financial assistance to people who are entitled to reserved (UK Government) assistance and who, in the view of Scottish Ministers, require further financial assistance. The Scottish Government can make provisions about how people will be determined eligible for top up payments, the amount of assistance, application processes, how information will be obtained, appeals and what will happen if assistance is given in error.

Top up benefits cannot be given to meet or help with housing costs or where a reserved benefit has been suspended or reduced.

Carers Allowance Supplement

Scottish Ministers must make two payments a year in respect of people who receive carers allowance and live in Scotland equivalent to 26 times the difference between weekly amounts of Job Seekers Allowance and Carers Allowance.

Discretionary Housing Payments

Local authorities will have the power to give financial assistance to help towards meeting housing costs. This will be available to people who either currently receive housing benefit or universal credit which includes an amount for rent or who appears to the local authority to need financial assistance to meet housing costs.

Local authorities must make information available to their local communities on:

How to apply for Discretionary Housing Payments.
Which housing costs could be covered.
The rules for determining whether someone gets support.
How much support is available.
How to challenge a decision.

Scottish Ministers will produce guidance which the local authority must give regard to in application of their new powers.

What has not been included?

The Scottish Government has noted that subordinate legislation and guidance will be largely used to set out the detail of the new social security system’s operation. We would expect further detail to be outlined in the future related to:

The Scottish Government’s accountability arrangements. The current Bill notes obligations with regard to people using the system – but not much on what the State’s obligations are to people and the consequences if they do not comply with their obligations.
Independent advocacy and support during eligibility assessments.
Advice and information support ahead of eligibility assessments.
Support, advice and guidance after eligibility assessments – particular where someone has been judged not to be eligible.
Language, accessibility and cultural change.
Reference to who can, and who cannot, be involved in carrying out eligibility assessments.
The future role of the social security experience panels.
Scrutiny of the Scottish Government’s actions in regard to social security e.g. the initial consultation suggested the creation ofan independent body to scrutinise Scottish social security arrangements.
How social security will interact with other parts of the system affecting people who use support and services, including social care.
Reference to how social security payments will keep pace with the cost of living.

About the ALLIANCE

The ALLIANCE is the national third sector intermediary for a range of health and social care organisations. The ALLIANCE has over 1,900 members including a large network of national and local third sector organisations, associates in the statutory and private sectors and individuals. Many NHS Boards and Community Health and Care Partnerships are associate members.

The ALLIANCE’s vision is for a Scotland where people who are disabled or living with long term conditions and unpaid carers have a strong voice and enjoy their right to live well.

Andrew Strong, Assistant Director, Health and Social Care Alliance Scotland

0141 404 0231

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