Kirsty McKechnie and Jenny Duncan describe an important step towards primary legislation regarding benefits in Scotland.
The Social Security (Scotland) Bill was introduced on 20 June 2017. It provides the legislative framework for the Scottish Government to deliver 11 benefits that were devolved in the Scotland Act 2016. These benefits are: disability living allowance (DLA), personal independence payment (PIP), attendance allowance, severe disablement allowance, industrial injuries benefits, Sure Start maternity grants, funeral payments, cold weather payments, winter fuel payments and discretionary housing payments. The Scotland Act also allows for topping up UK benefits and creating new benefits.
What is in the Bill?
The Bill provides an overarching framework rather than detailed benefit rules. It sets out seven key principles to govern delivery of the new social security system, which include defining social security as a human right, putting respect for the dignity of individuals at the heart of the system and a duty to seek opportunities to continuously improve the system.
A Charter will translate the aspirations of the principles into focused aims. The first Charter will be developed with input from Experience Panels, which have been established to hear the views of people who are, or have been, in receipt of one of the devolved benefits. The Charter will be reviewed every five years. Scottish ministers must produce a retrospective report to the Scottish Parliament annually on the performance of the Scottish social security system and what has been done to meet the aims set out in the Charter.
The Bill contains the legislative framework for the administration of benefits, including applications, decisions, fraud, error, redetermination and appeals. The redetermination provision has characteristics in common with the current mandatory reconsideration process, in particular that a redetermination must be carried out before a decision can be appealed to tribunal. However timescales for redeterminations to be carried out will be set in regulations. All overpayments will be recoverable, including those that occur through the Scottish social security agency’s own error. It is proposed that overpayments caused by agency error will not generally be pursued, however such decisions will be discretionary with no right of appeal to tribunal. Any overpayments will be reduced by the difference in value between the amount paid in error and the amount the recipient should have been paid had the error not occurred.
Types of assistance
The Bill lists the ‘types of assistance’ (the term for benefit, deliberately harking back to Beveridge and the National Assistance Act 1948) and instructs Scottish ministers to make regulations about eligibility and what assistance will be provided.
The statements establishing the purpose of each benefit include the words, ‘which may or may not take the form of money’. At present, all UK benefits are awarded as cash. The Scottish Government wishes to keep open the option of offering the choice of inkind assistance, for example, instead of a grant in early years assistance. In doing so, it also keeps open the possibility that a future administration could, through regulations alone, decide toreplace any or all cash benefits with inkind assistance. It is worth noting that under the current Motability scheme, DLA and PIP recipients are awarded the cash benefit, which they then opt not to be paid in order to access the Motability scheme.
The Bill introduces short-term assistance – a new benefit that can be paid to people requesting a redetermination or appealing a decision that they are no longer entitled to, or are entitled to less of, one of the devolved benefits. The idea is that people should not be put off from challenging a decision by worries about managing on a reduced income.
Discretionary housing payments
The Bill sets out who is eligible for discretionary housing payments (DHP) and stipulates that payments may not be given as a loan. The operation of DHPs will be largely unchanged, governed more by guidance than regulations. There are details in the Bill about what is expected to be contained in guidance. However, the Bill also allows local authorities the choice of whether or not to operate a DHP scheme. The policy intention is that allowing local authorities a choice builds in some flexibility about how discretionary schemes or support for housing costs may delivered in the future.
What is not in the Bill?
Strikingly, there is very little detail in the Bill either about the benefits themselves or about their administration, with all the detailed rules left for regulations. Regulations can be changed much more quickly than primary legislation (a key reason for this choice) and with less parliamentary scrutiny.
There is nothing in the Bill about establishing an independent body to scrutinise the development and operation of the Scottish social security system nor anything about how benefits will be uprated. The social security minister previously announced that the private sector would not have a place in assessing disability benefits, but there is nothing to this effect in the Bill.
When will new benefits begin to be delivered?
While the Bill is expected to complete its journey through the Scottish Parliament by March 2018, there is a phased introduction of benefit delivery, with all 11 benefits planned to come on stream by 2021. Expected first, from summer 2018, is the ‘carer’s allowance supplement’ – the top-up of carer’s allowance to the level of jobseeker’s allowance, until it is replaced by the new carer’s assistance. By summer 2019, ‘early years assistance’, also known as Best Start Grant (replacing Sure Start maternity grant) and ‘funeral expense assistance’ will be introduced.
As the Bill moves through each parliamentary stage, there is an opportunity to make representations to government and MSPs. CPAG in Scotland’s evidence will aim to influence the Committee report on the Bill, as well as any amendments which may be submitted by members of the Scottish Parliament, with a view to improving the final shape of the Bill before it passes the final stage in March 2018.
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