Social Security Administration and Tribunal Membership (Scotland) Bill

The Convener

We now move to agenda item 2, which is consideration of evidence on the Social Security Administration and Tribunal Membership (Scotland) Bill at stage 1.

I thank Craig Smith, public affairs officer with the Scottish Association for Mental Health, and Jon Shaw, welfare rights adviser for the Child Poverty Action Group, for joining us this morning. Good morning, gentlemen. Our consideration of the bill is a bit of a truncated process, but you are very welcome, so thank you for joining us. Alison Johnstone has the first question.

Alison Johnstone (Lothian) (Green)

I, too, thank our witnesses for joining us.

I know that you have concerns about the procedure for appointees. The Law Society of Scotland, however, has looked at what is proposed and thinks that the bill does not have sufficient safeguards of the kind that exist for similar purposes in other laws, such as the Adults with Incapacity (Scotland) Act 2000. The Law Society is also concerned about whether the proposals are compliant with the European convention on human rights and the United Nations Convention on the Rights of Persons with Disabilities. Do your organisations have any similar concerns? Have you considered that?

Craig Smith (Scottish Association for Mental Health)

[Temporary loss of sound]—and seeing those concerns. That is not something on which I feel I could give a detailed response. We are keeping it in mind that the law on adults with incapacity is due to be reviewed at some point; we obviously keep an eye on the area. I could not give you an example, as we have not looked at appointeeship in that regard.

We have concerns around the specific proposals in the bill, which we will come on to. There is always a concern about keeping safeguards to ensure that people lacking capacity are not exploited and that appointees are working in their best interests, but I could not provide any clear examples of our concerns around incapacity law as it stands. I would not want to say anything off the top of my head on that.

The Convener

Thank you. Jon Shaw, we will give you the opportunity to comment on that. When you come in, please allow a second or two to let broadcasting turn on your microphone.

Jon Shaw (Child Poverty Action Group)

Having looked at the Law Society’s evidence, I would point to article 6 of the ECHR—the right to a fair trial. We raised in our evidence the lack of dispute resolution for somebody who does not agree that there should be an appointee or for somebody who is incapable, as defined in the Adults with Incapacity (Scotland) Act 2000, in relation to whether they are able to have any recourse to an independent challenge.

The Law Society raises a valid concern. It is important to note that that is also a concern with the current appointee system that the Department for Work and Pensions has. As the Law Society signposts, the 2000 act gives recourse to the sheriff if somebody has a concern about whether an appointeeship is appropriate.

It is important to acknowledge that there is a balance between the difficulty of the process—[Interruption.] Sorry, that was the cat. We need to consider the difficulty of the process for administrative purposes because the power of attorney guardianship procedures are much more labour intensive for the people making decisions. At the same time, although there are few disputes in the current system, we have evidence that there are disputes and that, when those disputes happen, they are very difficult for people, so there should be a way to get some kind of independent resolution.

Alison Johnstone

Mr Shaw, what are your views on how that resolution might best be achieved?

Jon Shaw

We are perhaps not best placed to answer that question, given that our expertise is in social security law. However, the 2000 act gives access to the sheriff court and there is a separate children’s hearings system, so forums exist in Scotland for resolving disputes about the rights of people with disabilities and the rights of children. I think that those forums could be considered.

Craig Smith’s point that the 2000 act is being reviewed is important—perhaps that could be tied in. The other option would be to come up with a novel method of resolving those disputes in the same way that these proposals are novel and unfamiliar in current social security law.

Alison Johnstone

That is helpful, thank you.

Graham Simpson (Central Scotland) (Con)

I have questions for both witnesses so I will need to get your names right, gents. I have a question for Craig Smith first, from SAMH, based on your submission to the committee. On appointees, your submission states that the policy memorandum

“to the Bill provides suggested circumstances where a claimant with capacity may wish to appoint another adult to act on their behalf. The examples given relate to a claimant with a terminal illness or ‘for other personal reasons unable to act on their own behalf’”.

You go on to say that there should be

“clear detailed guidance and advice”

around this. Can you expand on that and say what kind of guidance and advice you would be looking for? Should it be in the bill or in regulations?

Craig Smith

Our concern about appointees, particularly for people with capacity, is that it is a novel thing—it does not exist in the DWP system, as far as I am aware—and it is not clear from the bill, the policy memorandum or the explanatory notes in what circumstances it would be used.

As a principle, we are in favour of somebody who feels that they could not manage their own social security claim being able to ask someone to do that on their behalf. That is a good proposal, but an appointee would have significant information about that person and significant powers that relate to—[Temporary loss of sound]—processing and possible payment of a person’s claim. That is a big responsibility and it is difficult for us to determine circumstances when that would be appropriate. The policy memorandum gives the example of a person being appointed for an individual with a terminal illness, which seems to make sense, particularly if that is tied in with the non-disclosure of harmful health information, which we have some concerns about.

There is a definite need for detailed guidance about situations in which appointees would be appropriate, particularly for people with capacity, which we imagine would be appropriate in very limited situations. The Social Security (Scotland) Act 2018 already provides a much clearer rationale for appointees for people who lack capacity. Providing safeguards for people would be the most important aspect. Safeguards should ensure that people are not exploited and that appointees are appropriate. When people lack capacity, the DWP interviews both the individual and the proposed appointee. It is essential that safeguards like that are in place to ensure that the appointee, who has such significant powers, is appropriate and works in the best interests of the individual. Obviously, the individual should retain their right to advocacy and, as they have capacity, they can review their consent for the appointeeship at any point. Clear guidance needs to be given to the individual at all points in the process about their powers to withhold or remove consent and how they can access advocacy.

We generally like things to be included in primary or secondary legislation so that they have legal status. It is not appropriate for detailed guidance to be in the bill, but it could be appropriate to mandate the Scottish Government to develop guidance around safeguards, appointeeship and when that is appropriate. Those things could be included in the bill, or at least in secondary legislation. As I said, we do not need those details in the bill, but it would be helpful for the Scottish Government to develop that guidance.

Graham Simpson

Thank you, that is useful. I have a question for Jon Shaw. Time is very short, so I will ask two questions at once.

The Child Poverty Action Group has sent in a detailed and useful submission, which has a lot to say about appointees. The submission says:

“Whilst an individual with capacity can withdraw consent to an appointee, there is no provision in the Act for individuals judged to be incapable to challenge a decision to appoint someone to act for them”—

which is quite a serious point—

“or resolve disputes between two people who wish to be the appointee. The latter point also applies to the proposal for appointees for children.”

Would you want to change that in the bill? Part of the committee’s process is to look for ideas that guide us when we are starting to think about amendments to the bill. Perhaps you could flesh that out and say what you think might have to change in that section of the bill.

Jon Shaw

Certainly. We made the point in our submission that, unless there is some change to the bill, it is difficult to see how an independent dispute process could be introduced through guidance. It is important to come back to the fact that that is, in effect, a criticism of the DWP’s system, where there is no independent dispute mechanism.

The question whether it is appropriate to have something similar to the processes and procedures under the Adults with Incapacity (Scotland) Act 2000 or to develop something novel to the Scottish system, such as giving a tribunal jurisdiction to consider whether an appointeeship is appropriate, will have cost and process applications for Social Security Scotland. We think that an attempt should be made to introduce something like that and to allow somebody who has concerns to be able to raise them in a formal way.

Our evidence is that currently, when people disagree with an appointeeship or want to end it, that is the point at which there are difficulties with the DWP system. We do not have a firm view on what process should be set up for the Scottish system simply because right now the processes exist only in relation to incapacity legislation, but we think that the Government should be exploring ways to do that.

09:15  

The Convener

Do you have any further questions Mr Simpson, before I bring in other colleagues?

Graham Simpson

No thank you, convener. I see that Jeremy Balfour has joined us.

The Convener

Good morning, Jeremy.

Jeremy Balfour (Lothian) (Con)

Good morning, convener. I apologise for my lateness.

Keith Brown (Clackmannanshire and Dunblane) (SNP)

Most of my questions have been substantially answered already. However, I have been thinking of a recent high-profile, tragic case, where a vulnerable adult’s benefits were claimed on her behalf by two adults who murdered the recipient but were able to continue claiming those benefits for many years. Do the witnesses think that there are sufficient safeguards and reviews to prevent such an experience from happening again?

Craig Smith

On the DWP provisions and the proposed provisions for Scotland, I would go back to the points that Jon Shaw and I have made previously: at the moment those safeguards are not in place. We know that there have been cases in the DWP system where an appointee has been in receipt of benefits inappropriately. As I said before, there is a need for safeguards when someone is appointed to ensure that the appointee is a suitable person, that they are interviewed and that there is appropriate oversight of that individual.

We must also ensure that the individual who does not have capacity is still provided with information about their rights throughout the process. I definitely agree with what Jon Shaw was saying and the comments in other evidence about the need for a network of people to be able to raise concerns with the social security agency if they are worried that someone who is vulnerable is being exploited by an appointee or anyone else who is involved in their benefits and social security. At the moment, the bill has no details on that and we would like to see something in primary legislation, with the stipulation that those provisions should be developed either through secondary legislation or in guidance—there needs to be something in the bill stating that those provisions are to be developed.

We are concerned by the lack of safeguards around the appointee, how the appointeeship is monitored and how people can raise concerns about a vulnerable person or how the vulnerable person themselves can raise concerns. It is key that people have access to that review mechanism.

Jon Shaw

I largely agree with what Craig Smith has said. Right now, the process that Social Security Scotland has introduced is that it simply automatically accepts the DWP appointeeship, which imports that lack of a formal review mechanism into the Scottish social security system.

One advantage of what the DWP has put in place is that it has published very detailed guidance on processes around different legal powers and how those interact with appointeeships, which is available to the public. Ideally, we would want there to be something in the bill to indicate that an attempt is being made to improve on the DWP system. Whatever the outcome is, it is vital that what Social Security Scotland staff use to make those decisions is publicly available, because that will give people confidence in their ability to exercise their rights. In addition to a review process, it is really important that there is transparent, publicly accessible information about how that process works and how people can engage with it.

The Convener

Do you want to follow up on that, Mr Brown?

Keith Brown

I understand what has been said about safeguards and checks to make sure that the person who is appointed is the right person and about the ability for people to raise concerns, but my point was more about the fact that the agency should be obliged to carry out periodic reviews, because that is the safeguard against long-term continuing abuse. However, I am happy to take up that issue with the cabinet secretary.

The Convener

Pauline McNeill has an interest in appointees.

Pauline McNeill (Glasgow) (Lab)

From what I have read and what I have heard this morning, the lack of a dispute resolution process appears to be a significant omission. I am a bit concerned that the position does not seem to be clear and that there is still a question about whether the relevant provisions should be in regulations or in guidance.

In its submission, the Child Poverty Action Group highlighted the example of shared parenting. The situation appears to be extremely complicated. In Scotland, even though a child might reside with one parent, the parenting should still be shared. One parent could receive the child benefit, while the other one could receive the other benefits.

In the case of children, should there be some basic criteria on who the appointee should be? There are a number of issues that we need to concern ourselves with, such as what happens while there is a dispute over who the appointee is. Are there temporary arrangements for that? Do the witnesses agree that that is a big issue, which needs to be cleared up?

Craig Smith and Jon Shaw have told us that we could look to the DWP arrangements or those under the Adults with Incapacity (Scotland) Act 2000, but it strikes me that that will not be adequate, given that that act is under review and the DWP process is not terribly satisfactory. Do we need to ask ministers to concentrate on this part of the bill to make sure that we get it right? In the case of children, should there be some guidance and criteria in relation to which member of the family would be first in line and which would be second in line? I am concerned that there could be disputes about who the appointee is all over the place, given that there is quite a lot of money involved.

Jon Shaw

That is a very valid concern. It is important to acknowledge that there is a fundamental difference between the DWP’s approach and the policy approach that is proposed in the bill. The DWP’s approach is that any child who is under 16 automatically has an appointee, and the starting point is the person whom the child lives with. As I understand it, the policy intent of the proposal is minimal regulation. The discretion is provided to appoint someone to act, but there is not a duty to appoint someone to act.

We understand that the Scottish Government knows that anyone who has parental rights and responsibilities has the right to act as the child’s legal representative. The proposal for children leaves more uncertain when an appointee will be appointed; it also does not give such a clear steer as to what the order of priority would be.

We cited some case evidence of difficulties in relation to shared care of children, and the DWP has not resolved those through a formal dispute mechanism. The approach that the Scottish Government has chosen to take perhaps increases the uncertainty because, when there is someone with parental rights and responsibilities, it is not clear how somebody whom a child normally lives with would take over responsibility for that claim. I am not sure whether that is helpful.

Craig Smith

I agree with Jon Shaw’s point. I do not have much to add on the aspect about children and young people, except to say that there is a real need for clarity, particularly in relation to the vulnerabilities of children. There needs to be clear guidance about appointeeships and the order of preference for appointeeship.

Pauline McNeill is right: appointeeships and non-disclosure of harmful information are key issues in the bill. There needs to be some more scrutiny by the Scottish Government, but we also suggest that the issue of appointees, particularly for people with capacity, and non-disclosure of harmful information to claimants, which is a significant power, should be scrutinised by the experience panel, which is made up of people with lived experience of social security, and by the disability and carers benefits expert advisory group, or DACBEAG—there are so many acronyms. That group has been set up to give advice to ministers on disability and carers benefits, and this would be in the area—[Temporary loss of sound]—safeguarding proposals. There is not much detail in the bill at all about appointeeships, and we need DACBEAG and the experience panel to look at how we provide safeguards and at the non-disclosure of information. They need to provide their insight, so that they can help to shape the bill and particularly the guidance when it is developed.

Pauline McNeill

I want to conclude by asking the witnesses about the way forward. The DWP’s approach seems to be quite a sensible starting point. In the case of children with two parents, for example, the appointee could be whomever the child lives with. However, there must be scope for that appointeeship to be overturned. Furthermore, if a child aged 12, 13 or 14 has the capacity to challenge a decision, or they have someone who can challenge it on their behalf, why should it not be possible to challenge it? An argument for that could be made. Keith Brown’s point about including periodic reviews also seems sensible, although I do not know who would carry them out. Would including those aspects be a better starting point for the bill?

The Convener

Those are very helpful questions. I will take Craig Smith first.

Craig Smith

The point about children is not in my area of expertise, so I will defer to Jon Shaw, who will probably have more to offer on the issue. Holding periodic reviews would be a sensible approach, and we should learn from the DWP’s process—it works—build it into the system and then build on that.

Jon Shaw

I have had discussions with officials, who have indicated that they think that children are, in essence, largely prevented from applying for benefits. We think that that relates to the Age of Legal Capacity (Scotland) Act 1991, which is still in force. However, that is not made clear in the bill, which leaves uncertainty. Whether a child should be able to challenge an appointeeship comes back to the point about whether there should be a meaningful dispute process.

The other side of that is that there is a provision to take the child’s views into account in so far as is reasonably practicable. That suggests that, for example, when two parents are separating and care is shared, there might be a situation in which Social Security Scotland could take the child’s views into account. However, that is not binding and it does not give a lot of teeth to the child’s ability to make their views known. I point to the United Nations Convention on the Rights of the Child in that regard.

It is clear that the Scottish Government is trying to bring in the child’s views in a way that the DWP does not. It comes back to the point about public consultation, and the Scottish Government should be engaging with stakeholders including the Children and Young People’s Commissioner Scotland, the Scottish Youth Parliament and young people to develop proposals for how this should work.

09:30  

The Convener

Deputy convener, do you have any follow-up questions on that?

Pauline McNeill

No, thank you.

The Convener

Before we end the evidence session, and as members are not indicating that they have anything else to ask, I have another question. The bill is to go through Parliament in relatively short order. An essential aspect of the bill is that it will allow, for example, the Scottish child payment to proceed, which we are all keen to see. Suggestions have also been made this morning about how we could enhance other provisions in the bill. It would be good to get on the record whether you support the bill—with the caveats that have been given here this morning—or whether you might have any other concerns. That might just help our scrutiny of the bill, especially as we have quite a limited time for that. I ask that you be brief.

Jon Shaw

The major rationale for the bill in respect of the Scottish child payment relates to the lack of explicit authority to create fraud offences. We can see the argument for consistency between devolved benefits, but it is important to note that, as our evidence on the earlier Social Security (Scotland) Bill made clear, we have concerns about the Scottish Government’s approach to fraud in the Scottish social security system.

It is also important to note that our written submission raises a point about the suspension of payments, which the bill does not allow for. When we look at the child disability payment regulations, the drafting quite clearly suggests that entitlement cannot be separated from payability. We can see two key issues with that which relate to children in residential care. If their payment stops, their entitlement ends, which means that they cannot qualify for additional disabled child elements support from the DWP. We know that officials are working with the DWP on the issue, but a tried and tested solution would simply be to have a power to separate entitlement and payability.

That would also help with when someone is entitled to two different benefits. An example that will come up in future years is carers allowance and the state pension. If someone loses their entitlement to carer’s allowance when they start getting their state pension, that will have an impact on passported DWP entitlements. We accept the need for amendments to the Social Security (Scotland) Act 2018, but our view, having seen the draft regulations, is that in order to make them work for people, the more important amendment would be to bring in a power to suspend payments.

The second issue to note is that, if somebody is not engaging with a review of their disability benefit entitlement, the only option available is to stop their benefit and make them claim again and to challenge the decision to stop the benefit. If their address has gone awry on Social Security Scotland’s computers, suspending their benefit and prompting them to get in touch without the need for a new claim would be a real advantage and perhaps better for claimants than having to make a new claim. Therefore, we accept that the primary legislation needs to change, but we would have prioritised that aspect over the rationale for the Scottish child payment.

The Convener

I was taking lots of notes while you were speaking, and your comments are helpful. I think that what we are hearing from you is that the bill is fine as far as it goes, but you have identified certain areas where you would want greater scrutiny and some improvements—or the Scottish Government should return to the provisions more generally at a later date.

You do not have to get into this now, but you said that the Government should reconsider broad provisions in general across a number of areas.

Jon Shaw

Yes. It is important to note that we support the prioritisation of the Scottish child payment, and we think that it should be introduced as soon as possible. We and some other groups have written to the First Minister indicating that, regardless of the bill, we think that some things should be done now to support families. The cabinet secretary has already confirmed that the Scottish child payment, as it is being developed, cannot be introduced according to the previous timescales, and that potentially makes it possible to scrutinise further the proposals in the bill and to take a little bit more time over it. As far as I understand, it is not expected that anyone will be able to apply for the Scottish child payment until December at the earliest. That provides a longer window of time in which to increase scrutiny of the proposals on appointees and of other areas of the bill, which could benefit from amendment before we get to delivering benefits that we now know are not expected in 2020.

The Convener

I will come to Craig Smith in a second, but it might be helpful to highlight that I wrote on behalf of the committee to the Cabinet Secretary for Social Security and Older People, saying that, despite the unavoidable slippage in the delivery of the Scottish child payment, we are keen to make the bill as robust as possible and to pass it as quickly as possible, because we would hate it if an opportunity to introduce the measures a little bit quicker is missed because of the bill not completing its course through Parliament, in which case there could be a delay.

Thank you very much for those really helpful comments.

Craig Smith

Following on from what Jon Shaw has said and from our written evidence, we are generally in favour of the bill. We understand the rationale for the truncated timescale for the proposed legislation, particularly in aligning with the Scottish child payment. We definitely understand the rational for the quick timescale. Of course, we want the legislation to be as robust as possible.

As we have discussed today, the main issue for us is that of appointeeship. The issue of the non-disclosure of harmful information, which has been discussed, needs to be considered. The bill contains powers whereby some information about a person’s health is not to be disclosed to the individual. We think that that significant power needs proper scrutiny.

As with the wider point about appointeeship, there is not much detail in the bill about how that power would operate and in what circumstances. The policy memorandum gives the example of someone with a terminal illness who does not have a clear understanding of their prognosis. It could be incredibly distressing and harmful for them to see some of the evidence that their general practitioner or consultant gave in relation to their claim. We understand the rationale for that approach, but it needs to be balanced with someone’s right to have information about their claim, in line with the charter.

We have concerns about the scope of the power, because it has not been sketched out very well in the policy memorandum. Our understanding is that it allows for non-disclosure beyond cases of terminal illness, and we would like to see a bit more information about the circumstances in which that would apply and about how “harmful” and “serious harm” are being defined, as those terms are not defined in the bill.

We know that there is precedent in mental health legislation for non-disclosure in very limited circumstances but, in such instances, there are clear safeguards involving the Mental Welfare Commission for Scotland and the Mental Health Tribunal for Scotland being informed about the non-disclosure and being given a report. We think that there is probably a role for Social Security Scotland to play in having to be informed about non-disclosure and keeping a record of the reasons why non-disclosure of information has been applied.

To go back to the main point, we are broadly in favour of the principles of the bill. It is important, and I can see the rationale for it and why there needs to be a short timetable for its consideration. However, that must be balanced against the need for proper scrutiny. We want to move forwards, but not in a rush. There must be more detail in the bill or in secondary legislation on appointees and the non-disclosure of information.

The Convener

I thank Craig Smith and Jon Shaw for their evidence, and we appreciate their very helpful closing comments.

That brings an end to this evidence session, but not to the committee meeting. We will be continuing with agenda item 2 as we hear from the Cabinet Secretary for Social Security and Older People at 10 am. This short break will give all of us a chance to consider some of the evidence that we have heard.

09:40 Meeting suspended.  

10:00 On resuming—  

The Convener

Good morning, everyone, and welcome back. We are still on agenda item 2, which is evidence to the committee on the Social Security Administration and Tribunal Membership (Scotland) Bill. We have heard evidence this morning from SAMH and CPAG. I am pleased to say that we will now hear from the Cabinet Secretary for Social Security and Older People, Shirley-Anne Somerville. She is joined by Stephanie Virlogeux, a Scottish Government lawyer; Walter Drummond-Murray, head of the reserved tribunals and civil courts team in the Scottish Government; and Chris Boyland, the bill manager from Social Security Scotland.

I thank everyone for joining us. I know that you were able to hear the first evidence session, which was very helpful for the committee. Before we move to questions, there is an opportunity for the cabinet secretary to make an opening statement if she wishes to do so.

The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)

Thank you, convener. My opening remarks will be brief.

I thank the committee for its consideration of the bill in an expedited timeframe. Had it not been for the vital requirement for us to introduce the Scottish child payment as soon as possible, the bill might not have been required but, given our Government’s commitment to that policy, it certainly still is.

In order to ensure the effective implementation of the 2018 act, the bill addresses a small number of other issues that we think are better progressed together rather than in separate, overlapping bills. As I have said, the Scottish child payment is a vitally important benefit, and we are determined to introduce it as quickly as possible, but I will not do so until the statutory offence provisions in the bill are in place.

The 2018 act already provides for adults who need an appointee where they cannot act for themselves. We are working with stakeholders on how that will work in practice, and we will put in place appropriate and proportionate safeguards on which we will consult more fully in due course.

Through the bill, we propose to make some minor changes by allowing appointees who are aged 16 or over rather than 18 or over, and by allowing adults with capacity to access an appointee if they wish. We want to ensure that no one is disadvantaged, and it is only right that Social Security Scotland can deal with a responsible person on the client’s behalf where that is necessary. That would include a situation in which a child’s parent or guardian is unable to act on their behalf.

As for other appointee arrangements, we will ensure that appropriate safeguards are in place, and we are developing guidance to make sure that there is a robust and flexible process to ensure that the right to social security is protected.

In the very rare cases in which a medical professional has decided to withhold information about an individual’s health on the basis that to do otherwise would cause serious harm, it is important that Social Security Scotland can also withhold that information. It would do so only if the client’s doctor or nurse has advised that disclosure would cause serious harm to the client. Although we welcome openness in communications, including with those who have a terminal illness, timing can be critical to ensuring that such conversations are sensitive and thoughtful.

The 2018 act allows only a registered medical practitioner to clinically determine whether an individual is terminally ill for the purposes of disability assistance. However, it has become clear that many registered nurses have the required skills and interaction with patients to be able to make such a judgment.

The provisions in relation to tribunals will facilitate access to a wider group of experienced judges via the route of temporary authorisation in order to increase the capacity of the Scottish tribunals.

Finally, I note that organisations have, in their written submissions, recommended that we use the bill to bring forward provisions to suspend payments. I am very mindful of the reduced time period for stage 2 consideration, and we will lodge only amendments that carry very broad support, not just within stakeholder organisations but across the Parliament. Nonetheless, I am minded to use the bill for that suggested purpose.

I am happy to take questions.

The Convener

Thank you very much, cabinet secretary.

You said in your opening comments that the process is an expedited one. We understand why that is the case and, indeed, from what we heard from the first panel of witnesses, there is broad agreement for that. However, the witnesses had some thoughts about the consultation on the bill. It has not been the kind of consultation that one would normally anticipate for primary legislation. Some of the consultation has been confidential, or managed—for example, in relation to the clinical guidance on terminal illness. For the measures on tribunals, there was very much a judicial stakeholder consultation. We are aware that there has been a general conversation and dialogue with various organisations, such as Citizens Advice Scotland, about some of the issues and the content of the bill, but there has been no set formal consultation.

As Parkinson’s UK Scotland said in its submission, it has been a “managed” consultation process as opposed to an open process. That might just be because of the truncated period for the consideration of the bill.

How have you been able to engage with stakeholders on the specific measures in the bill? It is reasonable to ask you that question.

Shirley-Anne Somerville

There are a number of different aspects of the bill, and the consultation has varied accordingly. On fraud, for example, we had a great deal of consultation on fraud for the 2018 act, the regulations that followed it, and the guidance. There has been a great deal of consultation about fraud in general and about how Social Security Scotland should handle it; indeed, I have been to the committee to talk about that on a number of occasions. With regard to the provisions on fraud in the bill, we are suggesting that we should replicate what we have done in the past. The consultation that we have done on fraud follows on from that.

A lot of the work on the cross-cutting measures—not just on fraud—relates back to what we have done in previous consultations. We are not suggesting a new way of doing things for the cross-cutting measures.

You have quite rightly pointed out with regard to terminal illness and the withholding of information that the consultation was done through the chief medical officer’s guidance. That was a managed consultation because it was to support medical practitioners at that point. However, stakeholder groups were invited to contribute, and responses were sought from more than 220 consultees.

On tribunal memberships, we have spoken to the Scottish Courts and Tribunals Service, the president of the Scottish tribunals and the senior president of tribunals, and we have done a great deal of close stakeholder engagement on how they feel we need to move forward.

I hope that that gives members a sense of what has taken place as well as of what we regularly do on other aspects of informal engagement with stakeholders that officials and I have. I hope that it gives a flavour of the consultation that has taken place on those issues.

Tom Arthur (Renfrewshire South) (SNP)

My question relates to top-up assistance and the creation of offences. By means of a preface, I will summarise my understanding of things as they currently stand.

Sections 71 to 73 of the 2018 act provide for specific types of offence in relation to fraud, but those are not applicable to section 79, which makes provision for the creation of assistance to top up reserved benefits. Sections 3 to 6 of the bill seek to remedy that set of circumstances by allowing for the offences created in section 71 to 73 of the 2018 act to apply by default to section 79 of that act, and also by allowing for specific offences to be created by the regulations that are referred to in section 79.

Is that a fair understanding of the provisions? What thinking has informed the Scottish Government’s decision to take that approach? I also ask, as a specific and important question: are those changes essential, or merely desirable, prior to the introduction of the Scottish child payment?

Shirley-Anne Somerville

We certainly see them as being essential. In the Scottish child payment we have an important tool for tackling child poverty, but the Government also has a heavy responsibility to deal with fraud where it takes place. I remind the committee that the level of fraud in our benefits system is low, but it does happen and we need to take a tough stance against it. For that reason, it makes sense to have the same provisions for the Scottish child payment as we do for our current live benefits, which allow for simplification and ensure that there is no confusion about what is covered.

To touch on a point that has already been mentioned, a great deal of consultation and work was done to get us to the point that we have reached on fraud, so I see no reason for there to be a different way of doing things. Given the importance that any Government should place on tackling fraud, it would not be sensible or appropriate for us to implement the Scottish child payment without relevant statutory offences also being in place.

Mark Griffin (Central Scotland) (Lab)

Do any other parts of the bill have the same level of urgency as the measures to ensure that the Scottish child payment comes in on time?

Shirley-Anne Somerville

The position has changed slightly because of the impact of the Covid-19 crisis on the social security programme. However, it has not changed to the extent that we would not envisage coming back to the committee very quickly with another bill to enable us to put in place the other parts of the bill that deal with disability and other aspects.

Although the absolute urgency is on the Scottish child payment aspect of the bill, we are not far behind on the aspects that would be covered in its other provisions. If they were not included now, we would be coming back to the committee very quickly with another bill. Given the timeframes for doing so, we are keen to ensure that we develop our approach as quickly as possible. Having the provisions in place at this point would also help us with the design of the disability benefits. We would be able to move forward with any regulations or guidance in due course, because we would already have a legislative framework in place.

I hope that the committee will take from my remarks that, although the Scottish child payment is the most urgent aspect, quite frankly, the others follow not far behind.

Mark Griffin

I have no more questions on that area.

The Convener

Keith Brown, do you have any follow-up questions on that aspect?

Keith Brown

No, convener. If I may, I will come back on the appointeeships when that is appropriate.

The Convener

That is the next one up, Mr Brown, so let us just kick off on that.

Keith Brown

The cabinet secretary has said that fraud in the benefits system is at relatively low levels, but in today’s media we have seen reports of there having been £1.5 billion-worth of fraud, including that carried out through organised crime in the universal credit system. Although I am concerned about that, I am more concerned about fraud that is perpetrated against benefit recipients. The cabinet secretary may be aware of the example that I gave earlier of a high-profile case in which, for many years, two people were receiving benefits on behalf of a vulnerable adult whom they had murdered.

What systems can be put in place so that, instead of requiring somebody else to come to the agency, the agency is required to check periodically to make sure that the benefits are still reaching the intended person for the intended purpose?

10:15  

Shirley-Anne Somerville

I heard the question that was put to the panel earlier, and, in that regard, Keith Brown is correct to point to the tragic case of Margaret Fleming. There is an absolute requirement to ensure that we learn any lessons that we need to from that case. A significant review of that case is going on, and we will learn from and take into account the findings that come from that.

In general, there is an important point around safeguarding measures to ensure that everyone is protected within the system. In this bill, we are dealing with adults with capacity, and, therefore, consent is important. The adult with capacity would have to give consent for someone to become their appointee and could withdraw that consent at any time. We will consider carefully how we build in those safeguards. That will be addressed in the guidance and we are keen to work with stakeholders on that.

I have listened carefully to the concerns around some aspects that were raised by the first panel and in the written evidence, and I will take them on board. SAMH suggested that we consult DACBEAG, our expert advisory group, on the issue. That is a sensible and correct suggestion and, as we move forward with our guidance, I am more than happy to consider how that can be done.

It is important that we ensure that adults with capacity are able to give their consent and that we build in safeguarding measures to make sure that it is done correctly. An important part of our process, which was mentioned in the evidence session with the first panel, is to ensure that there is a review mechanism within what we are doing, in order to reassure the client, the appointee and wider society that we are taking a careful approach. The provision will be used on rare occasions but, when it is used, it needs to be done with the utmost care and attention to ensure that people are safeguarded through it.

Keith Brown

With regard to adults with capacity, there is still the potential for fraud and for the benefits to which they are entitled not to be received by them. However, I am grateful for and reassured by the cabinet secretary’s response.

Pauline McNeill

You will have heard the earlier discussion about appointees and the concern that the bill does not seem to address the ability to challenge an appointment or resolve disputes. The Law Society of Scotland has said that the power amounts to a power of attorney and argues that, as you said, safeguards such as are in the Adults with Incapacity (Scotland) Act 2000 could be appropriate. On the other hand, the DWP system has a more automatic process for appointees.

It has also been suggested that there is no provision in the bill for assessing the capacity of someone who is turning 16 to take over their benefits.

Lastly, it was suggested that there is nothing in the bill about publishing statutory guidance, so that people know which guidance will be used.

Does the cabinet secretary agree that those are substantial issues to scrutinise at stage 2? Do you have a preference on the question of ability to challenge an appointment or to resolve a dispute? An example of that might be where there is shared parenting. Which parent would be the appointee? Would it be the person whom the child lives with, or is there a case for starting somewhere else when making that decision?

Shirley-Anne Somerville

There were a number of questions in there. I think that I scribbled them all down, but I am sure that Pauline McNeill will come back in, if I miss any.

It is very important that we give stakeholders faith and assurance about the guidance. It is also important to stress that, once we have gone through the consultation process—which is important—our guidance will be publicly available when it is completed.

On the power of attorney, the granting of that power operates in a very different context from the appointment under the bill’s provisions, which deals with appointees for children and people with incapacity. A power of attorney under the Adults with Incapacity (Scotland) Act 2000 carries extensive and long-lasting powers that are granted personally by an individual, and requires much greater scrutiny and protection, which is, rightly, set out in statute. That is unlike the much narrower provisions for appointees for adults with capacity to deal solely with the determination of entitlement to social security, which are granted by Scottish ministers with the individual’s consent. Although I understand where the Law Society of Scotland is coming from, I see a difference.

Given the shortness of time this morning, I will be happy to write to the committee with more detail on why we have chosen to do things slightly differently from the DWP in that respect. Although I appreciate that we absolutely can, should and will learn lessons in some areas from the DWP, other aspects of the DWP system have been criticised—for example, the lack of transparency around appointees, with individuals not being told what is happening or that an appointee has set for them. That is an important aspect that we probably do not have enough time to go into in detail this morning. However, I will write to the committee with the reasons why we have taken a slightly different approach on that.

Having capacity to manage their own benefit claim is obviously a key transitional stage for a young person, and we want to ensure that the young person’s rights and interests are protected. We are obviously very keen to move forward in a way that protects the young person’s rights and responsibilities. We have been in discussion with other parts of government, including the Office of the Public Guardian and the Mental Welfare Commission for Scotland, in order to understand better the issues around the existing appointee systems and other forms of guardianship that are in place. We will work very closely with them, as well as with stakeholders, as we move forward.

I think that Pauline McNeill also suggested that there might be an issue around the guidance being made statutory, rather than it not being referred to in the bill. I am perfectly relaxed about that. If the committee and stakeholders feel that it would provide a little bit of reassurance—which, I say again, it is really important that we provide—I will be happy to look in detail at how that can be taken forward, if the committee wishes for that when it produces its stage 1 report.

The Convener

Does Pauline McNeill have anything else to add before we move to Graham Simpson on the same topic?

Pauline McNeill

I will leave it for now. I have one other question, but I will let others in.

The Convener

If the question is about appointees, you can ask it just now. I also have you down to open up a new line of questioning on non-disclosure in a moment.

Pauline McNeill

My brief question is this: does the cabinet secretary feel that there needs to be something in the bill that would provide the ability to challenge an appointment, or whether any additional provisions are required on resolving disputes?

Shirley-Anne Somerville

I have listened closely to what has been said on that. We need to ensure that we keep the process as simple as possible, and that we do not create one that is overburdensome. Finding appointees can be very difficult, so we need to balance that with safeguarding and ensuring that people have faith and trust in the system.

I am not sure that that needs to be in the bill. It could be addressed through close working with, for example, DACBEAG. I am sure that the committee could give us very detailed advice as we move forward with that. As I said earlier, I would be happy to look into how we can work with DACBEAG to ensure that the guidance is as strong as it needs to be.

The Convener

We will move on to Graham Simpson. We just about have time for a question from him on appointees.

Graham Simpson

My question is not specifically about appointees, but it flows from evidence that we heard earlier. It is a very quick question, convener.

The Convener

If it is not about appointees, we will move on to Pauline McNeill to begin the next question theme, which is non-disclosure of health information.

Pauline McNeill

Thank you, convener. I have seen what submissions say about the disclosure of health information. Am I correct that the decision on whether to disclose or withhold information will be guided by clinicians, and that ministers are simply to follow their decision?

Shirley-Anne Somerville

Social Security Scotland will withhold information only when a medical practitioner has decided that disclosure of that information would be likely to cause the patient serious physical or mental harm. We anticipate that that will happen very rarely, but it is possible.

As we move through the current situation, the important thing is that it is not for Social Security Scotland, ministers or anyone else to second-guess the call that a health professional makes. If the professional feels that their decision is the best way to move forward, it would not be right for the agency to second-guess that decision.

The Convener

Pauline—do you want to follow up on that?

Pauline McNeill

No, thank you.

Jeremy Balfour

I want to ask about the provision—I think it is quite right—to extend who can act under the terminal illness rules beyond doctors. From my reading of the bill and policy memorandum, it seems that we are not defining which types of nurse should be allowed to sign the form, so that would be left to regulations to define. Why is that the Government’s thinking? Would not it be more helpful to specify which medical professionals could sign the form, so that there is no lack of clarity? I presume that we would be looking to nurses who have specific training to take on the role.

Shirley-Anne Somerville

It is critical that we get that right, but it is also critical that what we do allows us enough flexibility to deal with changing circumstances in the health professions. Previously in the bill process, we discussed whether we could say, for example, that it would be “specialist nurses”, but there is no agreed definition of “specialist nurse” or the training that would be required for a person to be called a specialist nurse.

10:30  

If we are too specific in the primary legislation, we will run into difficulties in the future, as things change in the health professions. It is important that we are able to strike the right balance between flexibility in the regulations and what is in the primary legislation, which is why we have made the call that we have made. Of course, regulations can include the skills and experience that would be required for a person to be allowed to act under the terminal illness rules.

Jeremy Balfour

I presume that the regulations will provide a clear definition in that regard.

How far down the road has the Scottish Government got with the regulations? Will they be available for consultation and for the committee to see before the bill completes stage 3?

Shirley-Anne Somerville

I am not aware of the regulations’ timetable, but I do not think that that will happen while the bill is going through Parliament. However, regulations will be in place for when they are first required, which will be in the context of the child disability payment.

The Convener

Jeremy Balfour has no further questions, so we will move on. You can come back in later on other themes, of course.

On the extension to registered nurses of the responsibility that doctors have to determine whether someone has a terminal illness, is the Government considering going beyond that to include other health professionals who might be well placed to assist—perhaps if they have had additional training—in order to make the process as smooth as possible?

Shirley-Anne Somerville

The decision that we have made is based on responses to the consultation on the chief medical officer’s work on terminal illness. The consultation responses did not come out strongly in favour of adding other health professionals. Of course, if things change, the ability to make changes by regulation, if the bill is enacted, will give us much more flexibility than we have at the moment. Currently, changes must be made to primary legislation; that is, the Social Security (Scotland) Act 2018.

The Convener

I have a couple of bids from members who want to ask supplementary questions. I hope to have time to bring in both Graham Simpson and Pauline McNeill before we move on to the next theme.

Graham Simpson

On Jeremy Balfour’s question about the people who can give a diagnosis, the bill says that the regulations

“must provide that being a registered medical practitioner or registered nurse is a requirement for being an appropriate healthcare professional”.

That seems quite wide; there are all kinds of registered medical practitioners and registered nurses. Should the definition in the bill be tighter in order to make it clear what we mean, with other stuff being dealt with in regulations?

Shirley-Anne Somerville

The regulations will allow us to provide further specificity. The policy intent is to ensure that people have appropriate skills and experience, are involved in the diagnosis and care of a patient, and are working in a professional capacity. It is absolutely our intention to establish the clear criteria that a registered medical practitioner or registered nurse must meet in order to be able to make that judgment.

Graham Simpson

I presume that we are not talking about dental nurses, for example, or optical nurses. We are talking specifically about medical nurses, or advanced nurses. Surely that could be stated in the bill.

Shirley-Anne Somerville

[Temporary loss of sound.]—of the bill, because things change so much. The terms that the member has used could be construed in different ways by different people. It is important that we future proof the bill by not using terms that might change in the future and that the regulations refer to the importance of diagnosis, the care of the patient and appropriate skills and experience. If we get that correct in regulations and guidance—as we will—nobody will undertake that very serious role unless they have the professional capacity and understanding to do so. It is important that that is done in regulations; that, rather than the bill, is the right place for the detail.

Graham Simpson

[Temporary loss of sound.]—could share her thinking on that, in a bit more detail, as the bill progresses.

The Convener

I had advised members that we would deal next with a specific theme, but we will rearrange that a little because of time constraints. Shona Robison can be next, after which we will return to our previously agreed theme.

Shona Robison (Dundee City East) (SNP)

Thank you, convener, for allowing me to come in now. My question is about tribunals. What plans have the Scottish Government and the Scottish Courts and Tribunals Service made in anticipation of the increase in appeals on Scottish social security, and of the further devolution of tribunals, and will the ability to make temporary appointments itself be temporary, as the Law Society has suggested it should be?

Shirley-Anne Somerville

We have been working very closely on that with stakeholders, as the committee will no doubt think we should. That includes the Scottish Courts and Tribunals Service, the Judicial Office for Scotland and the Judicial Appointments Board for Scotland, to ensure that the social security chamber is adequately resourced to cope with the forecast number of appeals.

Timetables and plans are in place for the recruitment of fee-paid members for 2020 and 2021. That work is also being overseen by the social security chamber project board, to ensure the successful implementation of the chamber and the associated appeals process.

We believe that the bill’s provisions, alongside other on-going planned work, should alleviate any concerns about the preparedness of the tribunal system to deal with devolved social security.

The devolution of tribunals more generally is an issue that sits outwith my portfolio, but the member is right—the Scotland Act 2016 enables the devolution of relevant powers to the Scottish Parliament via an order in council. Regular dialogue continues at official level between the two Governments to work through the issues on that, and we are optimistic that a way forward can be found in the near future.

The ability to make temporary appointments will not itself be temporary. The ability to temporarily authorise existing judges to sit on the Scottish tribunals is not new. The Tribunals (Scotland) Act 2014 sets out a list of those who can be temporarily authorised to sit on the Upper Tribunal. The amendments that are provided for under the bill widen that list to allow more types of judges, with current and former judges to be temporarily authorised to sit in the First-tier Tribunal and Upper Tribunal. Given that the provisions are explicitly designed to facilitate temporary arrangements, we do not consider that the provisions require to be time bound in legislation.

Shona Robison

You talked about having more types of judges. Are salaried judges for the chamber being considered? If so, can you say when? Finally, how have the plans for the social security chamber been affected by the delay to the social security programme?

Shirley-Anne Somerville

Earlier, I touched on the devolution of the reserved tribunals, which is a bigger piece of work; it is running to a different timescale, because it is not all in our hands but is in the hands of the United Kingdom Government. Had that work been completed, we would not have needed the provisions in this bill, because the judiciary working in the reserved system would already have been transferred. Given that that is not the case, we have moved forward in this way. Even with the delays in the social security programme because of Covid-19, the devolution of social security benefits is still progressing at a faster pace than that broader work on the devolution of tribunals. Therefore, it is important that we move forward with the parts in this bill that ensure that we have everything in place to deal with the increase in tribunal decisions that might be required after the devolution of the disability benefits.

The Convener

We now move back to the previous theme that we were going to explore.

Graham Simpson

I am sorry, convener—my question relates to something that we heard earlier. We heard a call for the bill to allow for the suspension of payments. Has the cabinet secretary given any thought to that?

The Convener

Alison Johnstone also had a question about the suspension of payments. Because Alison has been sitting patiently for most of the meeting, it is only fair to bring her in now, so that the cabinet secretary can answer both questions at the same time.

Alison Johnstone

Thank you, convener.

The Child Poverty Action Group and the Scottish Commission on Social Security have called for the bill to allow ministers to suspend payments of devolved benefits, which would avoid the need to cancel the claim. The Child Poverty Action Group gave us a nice example about a chap called Dave and the impact that it would have on the processing of the payment of the cash that he needs to survive, if, instead of suspensions being possible, we have to cancel the claim entirely and start again. When the cabinet secretary made her introductory comments this morning, I got the impression that she was mindful of the impact that the inability to suspend payments would have and that she would consider amending that. Is that the case?

Shirley-Anne Somerville

Yes, I am more than happy to look at that. In the past, my officials and I have looked at that issue and discussed it with CPAG. It is a complex undertaking; it is not a simple task.

There is only one caveat that I would put on bringing anything into the bill at stage 2. The bill is running according to a truncated timetable, and there is therefore a requirement to keep amendments to non-controversial areas. Otherwise, the bill may be delayed with the need for further evidence. I really need the bill to be passed so that we can start the Scottish child payment, so I do not want to bring anything else through unless we have broad support among stakeholders about what we are doing and how we are doing it, as well as broad support in the Parliament.

10:45  

With that caveat, which I hope Alison Johnstone appreciates I am adding for the right reasons, given the timescale that applies to the bill, I am very much minded to move forward with the proposed legislation. It would be my intention to lodge amendments at stage 2 to include powers to suspend payment as long as we get broad support from stakeholders to do so.

Alison Johnstone

I am very heartened to hear that. I am sure that we all appreciate that stopping entitlement can create problems with passported entitlement to reserved benefits. I cannot speak for all my colleagues, but I am sure that they would whole-heartedly support such action. Thank you, cabinet secretary—that was helpful.

The Convener

Graham Simpson, that might have covered some of what you were going to ask about, but I will give you the opportunity to come back in.

Graham Simpson

No—that has covered it, thank you.

The Convener

The section of questions that we have so far omitted in the themes that we have been running through is on top-up benefits. Graham Simpson, Mark Griffin and Jeremy Balfour all want to contribute.

Mark Griffin

What is the Scottish Government’s thinking on the reason for legislating for the Scottish child payment as a top-up, rather than legislating for it as a new benefit entitlement on its own?

Shirley-Anne Somerville

It goes back to the importance that the Scottish Government places on the Scottish child payment. It simply would not be possible for us to deliver that payment as quickly as we will do if we were delivering it under specific primary legislation. Delivering it as a top-up is the quickest route possible to allow us to move forward with what is a very important policy.

Mark Griffin

Thanks, cabinet secretary—I thought that that might have been your answer. I wonder, then, whether the Scottish Government will consider legislating in the longer term for the Scottish child payment to be a benefit on its own.

The Convener

Thanks, Mark: you have saved the committee a bit of time, as I was going ask the exact same question. I am really interested to hear your comments on that, cabinet secretary.

Shirley-Anne Somerville

I hope that the committee can appreciate that my absolute first priority is to deliver the Scottish child payment, and that should be understandable. We will see how it beds down and how it works.

The Scottish social security programme is very busy with disability and carers, so we would have to bear in mind the fact that the programme is not sitting empty or quiet. As we see how the top-up payment works, we can certainly reflect on whether that is indeed the best way to deliver the payment, but I think that we are probably a few steps away from that yet.

Mark Griffin

The committee has a long-standing interest in income maximisation. Does the cabinet secretary feel that the duty under section 53 of the 2018 act to inform claimants of other social security assistance should also apply to top-ups, given the number of people who might apply for the Scottish child payment? It would provide a good opportunity to let them know about other entitlements that they could apply for.

Shirley-Anne Somerville

The proposal that has been put forward is an interesting one, and I will certainly be looking at it with great interest.

The Convener

Thank you. Graham Simpson, I am not sure whether your area has now been covered, but there is an opportunity for you to come back in if you wish to do so.

Graham Simpson

No, thank you.

The Convener

I do not have any other bids to speak—you have all been admirably brief with the questions to the cabinet secretary. I do not see anyone waving at me to indicate that they want to come in with a question before we move into private session.

Cabinet secretary, I thank you and your officials for taking the time this morning to give evidence. On behalf of the committee, I also put on record that we have had private briefings from you before today as part of the common endeavour to get the legislation through Parliament as promptly, but robustly, as possible.

My apologies to the witnesses that they have to sit through the next little bit, as there is something that I forgot to do earlier. When we take evidence as part of our scrutiny of legislation, we usually agree to consider that evidence in private at future meetings, and I forgot to ask members that earlier. I will assume that everyone agrees that we should consider the evidence that we have heard on the legislation in private at future meetings unless a member indicates otherwise. As no member has indicated otherwise, that is agreed.

My clerk has sent me a virtual note asking that I should also get agreement to consider any draft report on the legislation in private. I will assume that everyone agrees that we should do so unless a member indicates otherwise. As no member has indicated otherwise, the committee agrees to consider any draft report on the legislation in private.

I thank all the witnesses this morning from the Child Poverty Action Group and SAMH, as well as the cabinet secretary and her officials.

10:52 Meeting continued in private until 11:19.  

The Deputy Presiding Officer (Christine Grahame)

As no members appear to want to sit on the front benches, apart from the Government front benches, I will proceed.

The next item of business is a stage 1 debate on motion S5M-22121, in the name of Shirley-Anne Somerville, on the Social Security Administration and Tribunal Membership (Scotland) Bill. I ask members who wish to take part in the debate to press their request-to-speak buttons now. I call the cabinet secretary to speak to and move the motion.

15:22  

The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)

I will begin by thanking the stakeholders who have engaged constructively with both the Government and the Social Security Committee to inform and scrutinise the provisions in the bill. I know that times are challenging, so their time is appreciated now more than ever. I also thank members and clerks of the Social Security Committee for their continued scrutiny of the bill and their forbearance with the virtual sessions. I am, of course, delighted that the committee has confirmed its support for the bill’s general principles in its stage 1 report

The bill started before we knew what 2020 was going to bring us. We knew that the bill was needed to make statutory offences in primary legislation for the Scottish child payment and we took the opportunity to address other areas where we needed primary legislation. That is now even more important, as we know that families are under pressure and that Scotland will feel the economic impacts of Covid-19. The Scottish child payment will therefore be a lifeline for many and have a significant positive impact on our efforts to tackle child poverty.

That is why, when we knew that we had to make changes to the social security delivery programme because we were focusing on our response to the pandemic, it was clear that the Scottish child payment would remain a priority area, and we are working hard to introduce it as soon as possible. To do that, we need to have the statutory offences in place. Although we start from the premise that everyone may be entitled to support, we know that there may be attempts to defraud the Scottish social security system. That is the case for the Scottish child payment as it is for other benefits and, although the overall sum that is lost to benefit fraud is not as large as some would have us believe, we must take action to protect the public purse and benefits, where appropriate.

I will now turn to the provisions of the bill. I will start with one of the committee’s recommendations. Section 53 of the Social Security (Scotland) Act 2018 places a duty on the Scottish ministers to notify individuals of their possible eligibility for other benefits payable by Social Security Scotland under part 2 of the 2018 act if, in the course of making a determination, it appears that the individual may be eligible for other assistance.

The Social Security Committee’s stage 1 report notes that the duty should extend to forms of devolved top-up assistance. I welcome the committee’s recommendation, and I confirm that I will lodge an amendment on that at stage 2.

The bill also includes provisions on appointees to ensure that a suitable mechanism for support is in place for some of our most vulnerable clients. The provisions set out a statutory framework for appointees, supported by guidance for Social Security Scotland staff.

We have sought to strike a balance between prescriptive statutory safeguards and safeguards set out in decision-making processes and guidance. For example, the statutory safeguards for adults with capacity include the requirement for the client to consent to an appointment and the ability to withdraw consent. For children, we will take into account, so far as is practical, the views of the child and the views of others in the child’s life, including their parents, and the duty to review an appointment on request by a person of legal authority to act on behalf of the child.

I have listened to stakeholders on the issue of the guidance in that area, and I have asked the disability and carers benefits expert advisory group and the ill-health and disability benefits stakeholder reference group to provide advice on our proposals. We will also engage with our experience panels during the summer.

The Social Security Committee has asked me to make the guidance statutory, and I will consider that ahead of stage 2. Of course, our guidance will be published and accessible to clients, appointees, prospective appointees and professional advisers. That will ensure transparency and offer confidence that we have an appropriate, rights-based system for dealing with difficult situations.

The bill provides powers to withhold information about an individual’s health, where that would be likely to cause serious harm to the recipient’s physical or mental health, and it is important that Social Security Scotland can do so. I stress that we expect that power to be used rarely, and it will happen only when a medical professional has determined that the information should be withheld.

In cases where information is withheld from a client, we will offer them the opportunity to have an appointee. Offering clients an appointee simply provides another opportunity to safeguard their rights.

The ability to withhold information where that information would be likely to cause serious harm to the recipient demonstrates our commitment to delivering a service with a person-centred approach at its core and in which our overriding aim is to work in the best interests of the client.

The Social Security (Scotland) Act 2018 allows a “registered medical practitioner” to clinically determine whether an individual is terminally ill for the purposes of disability assistance. Since then, the chief medical officer’s guidance has been developed and it has undergone consultation with healthcare professionals and stakeholders. During the consultation, it became clear that people want registered nurses with the appropriate skills and interactions with a patient to provide that clinical judgment, too. I have listened, and the bill extends the responsibility to certify a person is terminally ill to registered nurses. We will establish clear criteria that a registered medical practitioner, or a registered nurse, must meet in order to make the judgment. Those will be provided for in a combination of regulations and guidance.

The bill changes the Tribunals (Scotland) Act 2014 to allow for other types of judges to be temporarily authorised to sit on the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. That is needed because, as we continue to introduce new social security benefits, the business of the social security chamber of the Scottish tribunals will also increase.

Currently, the judicial capacity of the Scottish tribunals is insufficient to deal with the projected increase in business arising from devolved social security, so the bill widens the list to allow more types of judges to be temporarily authorised to sit in both the tribunals. The president of the Scottish tribunals and the senior president of tribunals of the reserved tribunal system are fully supportive of the provisions in the bill, and I anticipate that they will seek authorisation of reserve tribunal members who have experience of dealing with social security appeals.

We have always viewed Scotland’s social security system as an investment in people. It has been designed to meet the needs of people, and we want to ensure that it works for them. Therefore, I have also listened closely to the views of the Scottish Commission on Social Security, and others, which have recommended that the bill should include the power to suspend payments of assistance. As the Social Security Committee knows, I have agreed to lodge amendments to include such a power in the amended 2018 act, subject to there being broad stakeholder support for the action. That would help to ensure that clients are protected from overpayments and resultant overpayment deductions from their assistance. It will also simplify stopping and restarting the payment of assistance where clients enter certain accommodation, such as residential care.

In conclusion, I would like to reiterate a few key points. The bill is necessary to continue the successful implementation of the 2018 act and, importantly, to ensure that we have in legislation the statutory offences for the Scottish child payment. I intend to lodge stage 2 amendments on the suspension of payments and the duty to inform individuals about possible eligibility for other forms of devolved assistance, as long as broader stakeholder support is in place.

I thank the Social Security Committee again for supporting the general principles of the bill, and I look forward to its continued scrutiny. I commend the general principles of the bill to Parliament.

I move,

That the Parliament agrees to the general principles of the Social Security Administration and Tribunal Membership (Scotland) Bill.

The Deputy Presiding Officer

Before I call Bob Doris, I apologise to members. I clean forgot that members have to stay in the seats to which they are allocated so that they do not spread infection—silly me!

I call Bob Doris to speak on behalf of the Social Security Committee.

15:30  

Bob Doris (Glasgow Maryhill and Springburn) (SNP)

As convener of the Social Security Committee, I am pleased to speak in this afternoon’s debate on the Social Security Administration and Tribunal Membership (Scotland) Bill. I thank the cabinet secretary for her written response to the committee’s stage 1 report, and I am grateful to my fellow committee members for their constructive approach during the shortened scrutiny process, particularly given that the bill was introduced at the end of March as the nation was entering lockdown during the early days of Covid-19.

Likewise, I send my gratitude to our key stakeholders who were still able to respond to the committee’s call for views during such difficult times.

As we have heard, the bill will extend the fraud provisions in the Social Security (Scotland) Act 2018 to top-up benefits. The Scottish child payment will be a new top-up benefit given to those who are in receipt of universal credit. It will be paid for by the Scottish Government and delivered by Social Security Scotland. It will mean that eligible households receive £10 per week per child, and it is estimated that it will deliver £180 million to the families of 410,000 children each year once fully rolled out. I note that that estimate was made before the significant increase in the number of universal credit claims, which is something that the committee will, no doubt, monitor when it is conducting future budget scrutiny.

For the sums of public money that are involved, I am confident that the Parliament will agree that it is important that the bill ensures that appropriate forward protections are in place before the Scottish child payment commences. The committee is content with that, and none of our respondents raised any objections.

I note that the first payments are now anticipated for early 2021, as opposed to Christmas 2020, because of the impact of Covid-19. If there is any prospect of delivering payments sooner than early 2021, the committee would very much welcome that.

In line with all other benefits, a claimant must report any change of circumstances that could affect their claim. A claimant might be confused about whether to notify the Department for Work and Pensions or Social Security Scotland about their changing circumstances. The committee would therefore be grateful for clarification that it is sufficient to notify Social Security Scotland.

The bill contains changes to the system of appointees to collect social security benefits on behalf of a child or any adult who consents to that. Most children will already have someone with the right to collect any benefits on their behalf and that is usually, but not always, a parent. However, some children have no one with formal parental rights. The bill puts in place foundations for the system of appointees.

For adults, there are already provisions in the 2018 act for appointees where an adult lacks capacity. The bill, however, introduces the ability for an adult with capacity to consent to having an appointee for whatever reason. That is a fundamentally new provision, which has been described as “novel” by the Child Poverty Action Group.

CPAG and the Law Society of Scotland told the committee that the provisions lacked clarity, and pointed to an absence of any provision for challenging decisions on appointees or for resolving disputes. There is nothing in the bill about how appointments will be made or about how to ensure that consent obtained from an adult is explicit, informed and freely given. The Law Society of Scotland and the Equality and Human Rights Commission are concerned that the provisions, as they stand, do not comply with human rights requirements. That is something to reflect on.

The bill’s policy memorandum explains that being able to have someone else make a claim and receive benefits could be useful for claimants who have a diagnosis of terminal illness. However, some stakeholders were concerned that putting an appointee in place could lead to delays in receiving benefits or force a discussion about a claimant’s situation and risk abuse without a process to establish free consent from an individual. In her evidence to the committee, the cabinet secretary acknowledged some of those concerns and sought to reassure and confirm that the operational detail of the appointee system would be brought forward in guidance after consultation with stakeholders.

The committee agrees that operational detail sits best in guidance. However, we want the bill to set out the general safeguarding principles that will underpin that guidance, perhaps providing for mechanisms to challenge appointee decisions, to ensure that periodic reviews are undertaken and to resolve disputes. As the cabinet secretary said, we also recommend that that guidance should be statutory. We welcome the fact that the Scottish Government is open to those suggestions and will give them consideration.

Linked to the provision of appointees is the proposal to allow information about a person’s health to be withheld where disclosure

“would be likely to cause serious harm to the physical or mental health of the recipient.”

The policy memorandum discusses that provision in the context of providing appointees for people who are terminally ill, and Macmillan Cancer Support’s submission refers to

“some cases early on in Universal Credit rollout of people finding out they may have had less than 6 months to live through their UC journal”.

It is clear that we would not want that to happen with Social Security Scotland. However, the bill’s provisions are not limited to cases of terminal illness. Health information should be withheld in any circumstance where disclosing it would cause serious harm to a person’s physical or mental health. The Scottish Association for Mental Health would like to see a definition in the bill of

“serious harm to physical or mental health.”

The committee understands the rationale for withholding information from a claimant in some cases where there has been a diagnosis of terminal illness. However, we will be interested to hear about the different circumstances in which information might be withheld, what the definition of serious harm to physical or mental health would be and how it will be applied consistently across the country.

I will briefly note some other provisions in the bill that the committee broadly welcomes. It will allow health professionals other than doctors to verify that a person is terminally ill for the purpose of fast-tracking their claim for disability payments. The professionals to be included will be set out in regulations and must include registered nurses. That was strongly supported. Some organisations, including Parkinson’s UK, Marie Curie and MND Scotland, supported extending that further, potentially to some allied health professionals.

The committee agrees with the cabinet secretary that the terminology that we commit to in primary legislation must retain sufficient flexibility to respond to any future changes in the health professions. However, there are still discussions to be had on the detail that will be brought forward in draft regulations, and the committee looks forward to being involved in those discussions in due course.

Finally, the bill will allow the temporary appointment of judges and former judges from other jurisdictions to the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. The committee was content with those provisions, but we asked the cabinet secretary whether bringing judicial office-holders over from the reserved system would be a temporary measure. We have received those assurances today. After all, the Scottish social security system is being built on very different principles, underpinned by the charter. The creation of a devolved social security system presents an opportunity to do things differently.

Notwithstanding the committee’s strong views on appointees and safeguarding measures, I conclude by saying on behalf of the committee that we are content to support the general principles of the bill and look forward to engaging positively with the Scottish Government at stage 2.

15:38  

Graham Simpson (Central Scotland) (Con)

This is a largely technical bill, and I imagine that what we will hear today is a series of similar speeches. I expect that Parliament will support the general principles of the bill and that there will be not a single line in the press about it tomorrow. We could, in fact, just jump to the vote and be done with it, but that would be far too simple.

What is the bill for, exactly? It has four main themes: appointees, top-up benefits, terminal illness and tribunals.

On appointees, the bill will allow ministers to appoint a person to receive benefit payments on someone else’s behalf, if the claimant is a child, or if they are an adult and agree to the appointment.

The bill will allow regulations that create top-up benefits to include provisions on offences and investigations. Such provisions will apply to the Scottish child payment, which is due to start early next year.

On terminal illness, the bill will allow medical professionals other than doctors to confirm that a person is terminally ill for the purpose of fast-tracking their benefit claim. The first benefit to which that will apply will be the child disability payment. We will want to look again at that area at stage 2.

On tribunals, the bill will allow the temporary appointment of judges from other jurisdictions to sit on Scottish tribunals, including those dealing with Social Security Scotland benefits.

The committee did its stage 1 work at some speed and held only one—virtual—evidence session. That is not ideal and is no way to legislate. I hope that we sort that out for stage 2.

The Scottish Government had intended to launch two new benefits this year. The child disability payment had been due to start this summer, replacing child disability living allowance. The Scottish child payment had been due to start before Christmas, giving universal credit claimants an additional £10 a week, initially for each child in their family aged under six. However, those benefits can start only if changes are made to the Social Security (Scotland) Act 2018. Without the measures in the bill, it would not be possible to create an offence of fraud in relation to the Scottish child payment, unless that benefit was created using primary legislation. One could therefore easily argue that the bill has been introduced to fix deficiencies in the Social Security (Scotland) Act 2018 and that if the 2018 act had been done properly, the bill would not be required.

When the cabinet secretary first told us of the need for the bill, she said that all stages would need to be completed before the end of this week—but that was pre-Covid. On April 1, she told Parliament that the Scottish child payment would come in sometime early in 2021. However, she was not more specific than that, and she will have to be at some point. She also said that she hoped to introduce a payment for winter heating for families with a disabled child in winter 2020, but she was not able to give a timetable for the start of other benefits, including the child disability payment. There is a bit of a pattern here.

I will focus specifically on the introduction of appointees and those permitted to verify a terminal illness. The Equalities and Human Rights Commission was scathing in its criticism of the appointee proposals. It said:

“We welcome the recognition that individuals with capacity may wish to have another person appointed to deal with their social security on their behalf. Also, that the position of young people requires to be addressed. However, the appointment of a person to act on behalf of an individual has very significant consequences for the individual. We are concerned about the apparent lack of appropriate procedures and necessary safeguards”.

The EHRC had more to say, of course, and the Law Society of Scotland was also critical. That area therefore has to be considered at stage 2.

The other area in relation to which I think that amendments may be required is section 7, on who can verify that a person has a terminal illness. Jeremy Balfour will have more to say on that, so I will keep my comments brief so as not to steal his thunder.

Under the 2018 act, only a doctor can decide whether somebody is terminally ill. The bill will extend that to other health professionals with particular training and experience. The skills and training that are required and the definition of an appropriate healthcare professional will be set out in the regulations that create the disability benefits. The regulations must include a registered nurse but could also include other health professionals. It is worth considering whether we should be more specific in the bill. Although the proposal has received overwhelming support, that should not prevent us from trying to improve it and, for me, it lacks clarity.

There is a little way to go on the bill. However, although it can be improved, we are happy to agree to its general principles at stage 1.

15:43  

Mark Griffin (Central Scotland) (Lab)

Like my colleagues on the committee, Labour will, of course, support the bill. It is a short, technical bill that makes sensible adjustments to the framework of the 2018 act to enhance the smooth running of the devolved benefits, particularly disability benefits and the top-up power in relation to the Scottish child payment, when those are introduced—which will, I hope, be sooner rather than later.

I thank those who were able to give evidence to the committee, including DeafScotland, the Health and Social Care Alliance Scotland and Citizens Advice Scotland, among others. SAMH and CPAG also gave evidence virtually, and we have had helpful briefings in the past couple of days from Marie Curie and Macmillan Cancer Support. Although it is fair to say that scrutinising a bill in lockdown is more challenging, all those organisations gave helpful input. The clerks and Government officials who made that happen, adjusting their timetables and processes amidst the pandemic, likewise deserve our thanks.

The committee’s report reflects the evidence that we heard and shows that the committee agrees with the principles of the bill. As our report says, except in relation to the issue of appointees, those who gave evidence did not object to the measures in the bill.

The cabinet secretary was open and forthcoming, both in her responses at committee and in her response to the report that we issued this week. In most areas, she has further explained how the powers that the Government is seeking might be used and where guidance will regulate those powers.

Proposals to allow nurses and some allied health professionals to complete the benefits assessment under special rules in Scotland—BASRiS—form for fast-tracked terminal illness applications have been widely welcomed by bodies such as Marie Curie, MND Scotland and Macmillan Cancer Support, which have been instrumental in the work on the new terminal illness system.

I am grateful that the cabinet secretary has said that she is minded to include in the bill provision making it a statutory requirement to publish safeguarding guidance as a result of concerns that the appointee system could be open to abuse. Her offer could be improved if she included a requirement that the guidance be approved by the Parliament, as happens with the advocacy standards.

There remains some desire for clarity on the provisions to withhold information. That is a complicated aspect of the bill. The committee has carefully considered the logic of the approach. If an adult is capable, in that they can manage their own affairs, why might it be appropriate to withhold their own health information from them? If they are capable, in what way would disclosure lead to the serious harm that is claimed? SAMH has rightly sought further definition and the Law Society of Scotland has questioned whether that is consistent with a human rights-based approach.

Pending broad stakeholder support, there will be mechanisms to suspend, rather than stop, carer or disability benefits, and there will be an extension of the duty to inform people about their possible eligibility for top-up benefits.

Since the Scottish child payment was announced and the supporting analysis was published, a lot has changed. As a result of the pandemic and the economic consequences of lockdown, the number of people claiming universal credit has leapt substantially. For that reason, I have today written to the cabinet secretary to ask her to consider further provisions at stage 2 that would lock in provisions to maximise take-up of the child payment.

Figures that I obtained today show that almost half of the new applications for universal credit—57,000—were made by claimants with children. Worse still, 3,500 of those applications were from families who had three or more children, and almost all those applications will be subject to the two-child limit.

Although the bill is an administrative one and is intended to be light on policy content, I hope that provisions to set targets for the take-up of top-up benefits, and for the triggering of a review should any target not be met, might be considered.

I appreciate that my letter was sent only today and that the cabinet secretary may not have had a chance to read it, but I would be grateful to have a discussion with her over the summer, ahead of stage 2.

I am in no doubt not only that the number of families who are eligible for the child payment has grown but that more families than ever are taking up the benefits that they so desperately need. That makes the success of the Scottish child payment more important than ever. Those families will be desperately stretched right now. Although we do not have a clear picture of the number who are being pushed into poverty, many are already suffering. Families across Scotland will have claimed universal credit, but they will still have to apply for the child payment, when applications open, if they want to boost their incomes.

Scottish Labour will support amendments that ensure that the committee’s recommendations are achieved. If we can, in the current circumstances, do a little more to reaffirm the importance of securing widespread take-up of the Scottish child payment, we should take that opportunity.

15:49  

Alison Johnstone (Lothian) (Green)

I, too, thank all those who gave evidence to the committee and helped us in our deliberations. It does not seem so long ago that we passed the historic legislation to set up our new Scottish social security system, which—in stark contrast to the system that it has partly replaced—explicitly recognises the role that it can play in fostering the dignity and respect of everyone who needs help with their income.

I welcome the fact that, in the past two years, we have paid the best start grant and provided the best start foods card to almost 100,000 Scots families, and that we have done so without capping the number of children that those schemes can support. Having stood on a manifesto pledge to introduce better financial support for young carers, I am particularly proud that almost 1,200 of them are now receiving the young carer grant.

I note that one of the founding principles of the Social Security (Scotland) Act 2018 was that the Scottish Government should

“continuously improve the Scottish social security system”,

and the bill before us today seeks to do that.

During the passage of the 2018 act, we dealt with the particularly difficult issue of terminal illness. Some of the devolved benefits will often be paid to those who are terminally ill. For such people, every day is even more precious, so we should do everything possible to ensure that they get access to the social security help that they need as soon as possible. That being so, I very much welcome the proposal to allow a greater array of health professionals, including nurses, at least, to certify terminal illness for the purposes of applying for devolved social security payments. As Hospice UK noted in its response to the committee’s consultation on the bill, nurses

“are often the ones who know their patients best”,

so allowing them to confirm that someone has a terminal illness will allow that person to access the special rules more easily.

As we have heard, the bill extends the system of appointees from people without capacity to people with capacity and to children. In some cases, it will clearly be appropriate for someone to apply for a social security payment and have it paid to them on someone else’s behalf. However, I note the concerns that were expressed to the committee about safeguarding in respect of the process. In the past, the system of appointees that operates at the UK level has proven to be flawed. In 2018, a first-tier tribunal judge criticised the DWP for making Birmingham City Council an appointee of an attendance allowance recipient because the application had several very serious errors and omissions that had not been detected.

Citizens Advice Scotland brought to the committee’s attention the case of a recipient of the personal independence payment with mental health conditions who was living in the south of Scotland. They were asked to leave the family home by their mother, who was also their appointee, and the DWP refused to stop paying PIP to the person’s mother. A number of organisations have drawn attention to the need for a mechanism to allow the recipient to challenge the Scottish ministers’ decision to create an appointee for them; the need for periodic reviews; and the need for a system of adjudicating between competing appointee claims. I encourage the cabinet secretary to consider those suggestions carefully.

The bill empowers ministers to create offences in respect of fraudulently claimed Scottish benefit top-ups. In the absence of such provision, it would not be possible to recover payments that are made as a result of fraud, so in that respect it is welcome. However, as I have said previously in the chamber, I hope that the Scottish Government will tread carefully in its approach to tackling benefit fraud. Although social security fraud is a very serious offence and should be dealt with accordingly, it is clear that there is scope for genuine error. The benefits system can be incredibly complicated, and issues that arise from that complexity should never be confused with fraud. As Scottish top-ups are a new area of the benefit system, with two levels of Government involved, there is perhaps even more scope for honest mistakes by applicants and recipients.

The Greens support calls to use the legislation to provide a way of temporarily suspending someone’s benefit payments while maintaining their eligibility. That would, for example, allow payments to be stopped temporarily if someone who was claiming disability benefit with a care component was being looked after in a care home, and the payments could be restarted when the person returned to their own home. That would preserve their eligibility and ensure that passported benefits were not lost, and it would prevent any unwelcome delay.

The bill is a genuine and well-meaning attempt to improve our new social security system, and it is therefore welcome. However, for any such system to work properly, as well as being efficient, it must deliver an adequate income to recipients. As colleagues have agreed, there is still scope to amend the bill to address some of the concerns that stakeholders have raised.

The Greens will support the general principles of the bill at decision time, and we look forward to making improvements at stages 2 and 3.

The Deputy Presiding Officer (Linda Fabiani)

We move to the open debate. Speeches should be four minutes, please.

15:54  

Keith Brown (Clackmannanshire and Dunblane) (SNP)

I am grateful for the opportunity to speak in support of the bill.

My colleagues on the committee will be aware of my strong beliefs that we should always work to improve access to entitlements, that the process of accessing support should be made easier and not harder, and that social security is a fundamental building block of any civilised society. We know that, all too often, an entitlement is the only thing that stops a family going hungry, a home becoming cold or the lights going out. That social security is recognised as a human right in Scotland is not only welcome; it is right and just.

Providing for the social security of its people must be the first and overriding priority of any Government. As the cabinet secretary said in her opening remarks, social security should rightly be seen as an investment, not a burden.

Entitlements are instrumental in delivering on the principles of fairness and respect, and in protecting the dignity of everyone in Scotland. We must be unwavering in our defence of them as a protection against poverty and as a transformative tool.

At various points, the committee has discussed the idea of a universal basic income. That really is a wraparound social security system that, crucially, has a huge economic impact. If people are given enough money so that they can support themselves, they can feed themselves, heat their houses and pay their rent. That would provide a level of security and demand in the economy that would help us with the people-led recovery that we would like to see coming out of the Covid crisis.

For too long, there has been a concerted effort by many to stigmatise those who are vulnerable and in need of our support. Many of us have stood in the chamber to highlight how universal credit fundamentally fails our constituents; how the system is designed to be complicated or impenetrable to those who need it most; and how it punishes claimants, pushes them into spirals of debt and rent arrears, and forces them to food banks. It seems to me that the system is designed to see the most vulnerable in our communities as undeserving and to put up barriers in the way of accessing the meagre support that it offers.

I welcome the bill, which seeks to make accessing entitlements easier, among a number of other measures. I will consider some of those. It is clear that gaps remain in the existing legislation that would result in some children who are entitled to support missing out. Allowing appointees to act on behalf of children if they have no adult with legal authority is reasonable, legitimate and right.

Similarly, there are circumstances in which it is appropriate for adults with capacity, where they agree, to have somebody act on their behalf. The creation of that process in circumstances in which a person is terminally ill will provide support at an undeniably extremely difficult time. As we have heard, support for people who are terminally ill is a complex and sensitive matter. There are many competing pressures and a multitude of decisions that those who are ill and their loved ones must navigate.

I have concerns about the current lack of a review mechanism for the appointees. That issue was raised in our stage 1 report. Although it is right that we work to improve the ease of access to support, we must not sacrifice safeguarding for vulnerable people at the same time. I am reminded of a case that I raised in the committee. A young woman in the west of Scotland was murdered by two adults who then claimed her benefits for around 20 years, I think—forgive me if those details are not exactly right. It is crucial that we avoid the repetition of such a situation.

It seems reasonable to me that we should introduce a periodic review of appointees in order to ensure that the system has not been taken advantage of. I realise, of course, that such instances may be very few, but the impact on those affected is huge.

I note that the Scottish Government has responded on that point, that it was grateful for it, and that it will introduce a statutory duty to publish guidance following a consultative period. I appreciate that there may be a number of ways of achieving that aim, but the Government will understand that there is a difference between setting guidance and setting out a review procedure, and having a statutory duty to review appointments regularly. Apart from anything else, that will send out a very powerful message that such corruption of the system will not be tolerated. That is an issue of importance, and I will continue to seek assurances on it from the Government to ensure that rights are properly safeguarded.

I am pleased to support the bill, which makes necessary and positive changes to our social security system.

15:59  

Brian Whittle (South Scotland) (Con)

I am pleased to be able to speak in this stage 1 debate. As members have pointed out, the bill is quite technical; as such, it will probably not get the attention that it may deserve. However, it is always worth mentioning as we make changes to such laws that we are dealing with significant changes to people’s lives.

In the short time that I have, I want to focus on section 1 of the bill, on appointees, which is pertinent to a young man whom I know, who is a coach. That young man’s foster parents, who have looked after him for nine years, are truly remarkable. I have nothing but admiration for the job that they have done in bringing up him and his sister. They introduced him to athletics and he has become an excellent athlete, winning a bronze medal at the European championships and qualifying for the world championships, with the goal of going next year to the Paralympics.

That young man and his sister have foetal alcohol spectrum disorder. If anyone met him, however, they would probably decide that he was an enthusiastic young man, always smiling—and always complaining, as it happens, about training. Sport is important to someone with that kind of condition, because it introduces a sense of order and commitment.

During the past nine years, his foster parents have done an incredible job—so much so that he is now studying at college and is doing exceptionally well. He has moved out of the family home, is living in a shared flat, and can cook and clean and do all the types of household chore at which I am particularly bad.

I can see how an assessment for benefits would be particularly problematic. However, his ability to handle money is in question. When he asked for his foster mother to be able to collect and look after his finances, that was turned down. He is smart enough to recognise that he has a weakness, but the system could not accommodate his request. The net result has been that, not having previously had to deal with that level of finance, he has struggled. For example, one of the first things that he did was to go out and buy himself a pair of £200 trainers—that certainly does not constitute good financial planning.

That highlights to me the need for the law to adapt to people in such circumstances. In giving people as much freedom as possible to live their lives, we must also be able to recognise that, in certain circumstances, there may be limitations that have to be taken into account.

That is why I think that section 1 is on the right lines, in its provision for appointing a person to receive benefits on someone else’s behalf, if the claimant agrees to that appointment; and in the enabling of an adult who does not have parental rights—which applied in the instance that I have mentioned—to manage a child’s benefits in those circumstances.

However, the bill would allow ministers to

“terminate an appointment at any time”,

and says that they “must” do so if the consent is withdrawn. That needs more careful consideration. Decisions that are made in a fit of pique are not always or necessarily in the best interests of the benefit recipient. That thought is probably for the next stage of the bill.

I do not quite understand the bill’s provision to allow “Ministers” to appoint. I am not sure that that is the right terminology.

There is much to consider about putting in place the correct checks and balances—a few members have mentioned that—but, for me, the bill takes the right direction of travel. As I have said, Conservative members will support the bill at decision time.

16:02  

Clare Adamson (Motherwell and Wishaw) (SNP)

I am not a member of the Social Security Committee but, as a former convener, I take an interest in its continuing work. I thank the convener and members for their work on the stage 1 report. As has been mentioned, that happened during the Covid crisis, as we were all getting used to a new way of working, and it was not without its challenges, but the committee has come to a very good conclusion in its stage 1 report.

That had an impact on me too, because, not being a committee member, my first port of call was to look back at the evidence session. I found that it was not available because of technical difficulties, so I had to resort to the Official Report. It is therefore an absolute pleasure today to see so many committee members speak, both virtually and in the chamber.

In my time as convener of the committee, fairness, dignity and respect were at the heart of what we were doing in developing a social security system in Scotland. It is good to see some positive additional work in that area, still with those principles at heart.

We have heard a few concerns about how the issue of appointees, and the permanency of such arrangements, might be handled, and that it should be done with diligence. That is an important area. It is unfortunate that wicked people might intend to abuse the situation, but it is absolutely right that we give adults who have capacity the choice to appoint someone to receive their benefits on their behalf.

The dignity of people for whom revealing a diagnosis may have a detrimental health impact has been very much considered under the bill. That is a delicate issue but, judging from the speeches that I have heard this afternoon, I think that everyone on the committee appreciates just how delicate that situation can be. We should be able to build safeguards into the system to ensure that, when it is in the minds of clinicians that that is the right thing to do, something is not revealed that could be detrimental to someone.

I am mindful of the sensitivities of the issues around terminal diagnosis. When we were developing the social security system, that probably caused most of my concern about getting things right for people. We were presented with a UK system that depended on six-month accuracy for a diagnosis of life expectancy. That is totally unrealistic and cruel, and it would have been devastating to claimants who, in the last months or weeks of their lives, could have had their benefits cut because of that restrictive rule. I am very happy that we did not embed that into our system. The bill goes further, ensuring that any terminal diagnosis is available as early as possible, so that the right support is there for people at the most difficult point in their lives.

I know that many multiple sclerosis and motor neurone disease nurses and Macmillan Cancer Support nurses will know much more about their patients than a doctor might know, and that they will be the best people to take the decision to switch and let the patients know, to ensure that the fast-track benefits get to people at the most difficult time in their lives.

I thank the committee for its work. I think that the five proposals will strengthen our social security system in future, and I look forward to seeing developments at stage 2.

16:07  

Gordon Lindhurst (Lothian) (Con)

The bill would appear to significantly increase the workload for the Scottish Courts and Tribunals Service—or at least it has the potential to do so—in dealing with devolved social security. I welcome the measures to make the scrutiny and justice mechanisms for those devolved benefits more robust, for example through the creation of statutory fraud offences in relation to section 79 of the 2018 act, in addition to allowing ministers to make provision in regulations for the investigation of allegations.

As I have said, however, the upshot of those measures is likely to be a volume of additional cases, and it is vital, as the Law Society of Scotland noted in its written evidence, that the temporary appointment of other types of judge to sit on the tribunals should be just that: temporary only. The only realistic and long-term solution is permanent provision, support and resourcing for those at tribunal level with expertise in social security matters. Otherwise, we are liable to end up with the consequences of potentially bad decisions doing the system down. The current proposals should perhaps even be time limited, and it might even be appropriate for something of that nature to be included in the bill through amendment at stage 2.

The provisions made for the recognition of individuals capable of diagnosing a terminal illness, as outlined in section 7, are welcome. That measure is likely to be the correct decision to expand the definition to an “appropriate healthcare professional” in order to speed up the process for disability assistance claims, for instance.

After the passing of the 2018 act, the consultation that was carried out to develop guidance by the chief medical officer to complement the act found that the majority of DS1500s—being the form used by the DWP to certify terminal illness—were in fact completed by nurses. As a way to bring oversight of the existing act into line with UK practice at the DWP level, the measures are therefore welcomed.

In conclusion, the regulations that will follow from the legislation and set out the professional criteria for appropriate healthcare professionals need to be specific, rigorous and of a high quality, despite the Government’s apparent reluctance to clarify in primary legislation which particular job titles would qualify. I look forward with anticipation to the stage 2 proceedings and greater clarification in those areas. The Scottish Government’s responsibility for social security payments as part of the devolution settlement is significant and must be carried out in a thoroughly careful and cautious fashion.

16:10  

Pauline McNeill (Glasgow) (Lab)

When I received a call from the cabinet secretary’s office for an urgent meeting on the Social Security Administration and Tribunal Membership (Scotland) Bill, I was at first surprised that there were so many omissions from the Social Security (Scotland) Act 2018. The Social Security Committee and Bob Doris, who also attended the meeting, were only too willing to get on with the job that the committee is set up to do, which is to make sure that the provisions in the 2018 act are as they should be and fit for purpose.

As has been said, this short bill has five specific provisions. As other members have done, I thank the many organisations that gave evidence and made observations, and all the officials who worked on the bill.

However, the bill needs further amendment. It is an administrative bill. Mark Griffin and Bob Doris have said clearly that there is much work to be done—particularly on urging the Scottish Government to bring forward, whenever practically possible, the child payment that is so needed.

The circumstances of terminally ill patients are a campaign issue for organisations such as MND Scotland and Marie Curie, which never gave up on finding a solution to fast-tracking benefits for terminally ill patients. The bill seeks to expand the scope for health professionals, other than doctors, to be able to sign off on a terminally ill patient to allow quicker decisions. Between 2013 and 2018, nearly 8,000 people had claims for PIP refused by the DWP and died within six months of their claim. That illustrates how necessary the bill’s provisions are.

The cabinet secretary said that she will lodge amendments at stage 2 on the duty to inform, and I welcome that commitment. Mark Griffin has also spoken to that. The duty to maximise uptake is critical to the ethos behind the Social Security (Scotland) Act 2018, which we all agreed, and if amendments are lodged on that at stage 2, they will be whole-heartedly welcomed, certainly by the Labour Party. I still want to see progress on other ways to increase the uptake of benefits, such as automation, which I know that the cabinet secretary has been in discussions about.

We need to get the Scottish child payment cash into the pockets of families and many anti-poverty organisations have already set out to the Social Security Committee other ways of bringing forward perhaps a lump sum payment equivalent to the proposed child payment. I hope to see an uptake around the suggested target of 85 per cent when we can undertake that work. As I think almost every other member mentioned, one of the most significant areas that requires amendment is the part 1 provisions on challenging an appointee in order to prevent deception and exploitation. Brian Whittle, Keith Brown and Alison Johnstone mentioned cases. If anyone needs convincing, listening to those speeches makes it clear that we need to get those provisions right.

I will conclude with two major points. First, I agree with Gordon Lindhurst on the question of the temporary appointment of judges. Throughout the passage of the bill I have raised the need for all judges in the system to have clear training on the ethos behind the Social Security (Scotland) Act 2018. Similarly, while extending the franchise means that the workload can be dealt with, and I totally accept that the judges must have expertise, they have expertise in a UK-wide system that has a different ethos. My concern is that at some point there need to be proposals to ensure that all the judges making decisions on social security are making them from the standpoint of the ethos behind our 2018 act, which we all agree should produce something different.

Gordon Lindhurst might have been referring to a case that I think is quite old now. The temporary appointment of judges is always risky, and it has led to problems in the past in situations in which the appointment goes on for so long that it is not really temporary any longer and the appointee might not be seen as independent.

Lastly, I want to use the opportunity to say that, in the future, we need to keep an eye on social security reform. The need for anti-poverty measures has probably never been greater. The Joseph Rowntree Foundation and Save the Children, in their briefing, mentioned that 70 per cent of the families that they have surveyed have taken out some loan or other in order to get themselves through the pandemic and the crisis that we face.

It is important to finish the work on the bill and to take it through to the end of its passage and ensure that it is signed by the end of the parliamentary session, but we must also think ahead to how we can ensure that our social security system is fit for purpose, given the fact that the past three months have changed people’s lives a little bit. We support solid commitments such as the child payment and many of the other things that the Scottish Government has done, but we must also be flexible and assess what the nation needs from its social security system.

16:16  

Jeremy Balfour (Lothian) (Con)

I thank all members for their contributions to the debate, which has been helpful. As has been said, the bill is quite technical, but it contains welcome policy changes, too.

None of us wants to be in a place where, as Graham Simpson pointed out, we have seen a delay in the delivery of benefits. Some of that delay is due to the crisis that we are going through at present, but it is also true to say that the Scottish Government’s timetable has lapsed and, if it was not for the DWP picking up the responsibility, many people in Scotland would not be getting the benefits that they deserve.

I will focus on two areas, which most members have picked up on already. First, I agree with what all the speakers have said about the need to think about appointees and ensure that the appropriate safeguards are put in place. Having spoken to Epilepsy Scotland, I know that it is not just people who have a severe health condition or mental health condition who are affected; it can be a much more nuanced area. I am slightly concerned that the Scottish Government wants to put a lot into guidance. As Bob Doris pointed out at the Justice Committee meeting yesterday, guidance is guidance; it is not law. I think that we need to look again at what is in the bill in order to ensure that people are not manipulated and are not being used by third parties in a way that would not be acceptable.

The second area that I want to cover regards the provisions around terminal illness. As someone who campaigned on that during the passage of the 2018 act, I think that we have made great progress and I welcome the direction that the Government is going in with regard to opening up who can fill out the forms. We have had helpful submissions from Macmillan Cancer Support, Marie Curie and MND Scotland. One of the things that the briefing paper from Marie Curie and MND Scotland stressed was the need for mandatory training to ensure that people can complete the form. That is an important point to make. It probably would not be appropriate for every nurse in Scotland to complete the form. I have already heard that some nurses are concerned that they would be expected to fill out the form as part of their day-to-day working. I think that, during the passage of the bill, we will have to think about ensuring that nurses are protected and that those who fill out the form will be able to do it in an appropriate way. As Graham Simpson said, we might need to come back to that at stage 2.

My colleague Gordon Lindhurst made some interesting points about tribunal judges and their temporary appointment. As a former tribunal member, who worked with the DWP, I am aware of the benefits of that but I am also aware that training will be required on how to apply the Social Security (Scotland) Act 2018.

I thank the committee clerks for all the work that they did in difficult circumstances. The bill will tidy things up and take us forward to the next stage but it will need amendments at stages 2 and 3 to make sure that the people of Scotland get the best social security system that they can expect.

16:20  

Shirley-Anne Somerville

I thank members for their constructive contributions today. I have listened carefully to their critique and their suggestions for how the bill can be improved, and I look forward to working with them in committee and bilaterally to improve what we have before us today.

As members have pointed out, it is a technical but important bill. The obvious example of that is that we cannot move forward with delivery of the Scottish child payment—a key component of our efforts to tackle child poverty that we want to implement as soon as possible—without having in place the appropriate tools to address instances of fraud. I am pleased that Parliament recognises that and seems to support that principle.

However, I concur with Alison Johnstone’s point about the importance of recognising the difference between an honest mistake or genuine error, and fraud. They are exceptionally different. The agency treats them as different by having different teams that look into them. We should never treat a person who has made an honest mistake as though they have been fraudulent.

I am pleased to say that we will, as members have discussed, lodge an amendment at stage 2 to ensure that the duty under section 53 of the 2018 act is extended to include forms of devolved top-up assistance.

This afternoon, members have spent most time on the issue of appointees. Few speeches did not bring it up, and many members spoke about issues that were raised at committee in written and oral evidence. I reaffirm my commitment to delivering an appointee process that is fit for purpose, informed by stakeholder engagement and consistent with our rights-based approach.

I acknowledge the desire for more detail being placed in statute—particularly around mechanisms to challenge or review the need for an appointee—rather than leaving that to guidance. However, I believe that guidance allows us to be more responsive to the needs of clients; for example, we can readily incorporate best practice that way and can improve the process as required, in a way that statutory provisions would not allow. However, I have listened carefully to what has been said today and in evidence to the committee, with an eye to how we can improve the balance as we move forward. I look forward to working with committee members on that; our aim is the same.

The guidance will ensure that, where an appointment needs to be reviewed or there is a dispute, Social Security Scotland staff will act fairly, sensitively and in a way that takes into account the views of the client and, for children, the views of their parents or others who are responsible for the care of the child. In developing the guidance, we will engage with stakeholders to ensure that the process works for clients and appointees, and that appropriate safeguarding is built in to every step of the process. The tragic case that Keith Brown brought up and members’ other examples demonstrate why we need to get that right.

I again give the reassurance that we will continue the work over the summer with the disability and carers benefits expert advisory group, our experience panels and stakeholders to understand how we can strike a balance between prescriptive statutory safeguards and safeguards that will be set out in decision-making processes and guidance.

Graham Simpson and Jeremy Balfour discussed the timetable for passing the bill and how we hope to move forward with other benefit payments this year. Graham Simpson is quite right that we had hoped, and we were on track, to deliver the child disability payments this summer, and that we were on track to open up the Scottish child payment earlier than we had said in our public announcements. That has not been possible because of Covid-19; changes to the timetable have been made strictly because of Covid-19. However, we still need to pass the bill as soon as possible to allow us to deliver the Scottish child payment as quickly as possible.

Graham Simpson asked about the timings for the Scottish child payment, which are very much dependent on when the agency can recruit staff. I am afraid that I do not have a crystal ball that will tell me what will happen over the next couple of months, but he has my absolute reassurance that the agency and I are very keen for the agency to get going on that work as soon as it is safe, and within the guidance, for it to take place.

Graham Simpson will also be interested to know that, only this morning, I had a very constructive joint ministerial working group meeting with Scotland Office and DWP ministers. We discussed the joint programme of devolution of social security to Scotland, including the child winter heating allowance. We are considering replanning of on-going work between the DWP and the Scottish Government, because both are working under the pressure and circumstances of Covid-19. That constructive work is going on between the Governments.

Graham Simpson

I thank the cabinet secretary for taking an intervention. I am trying to help her to spin this out a little bit. I appreciate the staffing difficulties at Social Security Scotland, but from what I have heard, I believe that staff have been doing an excellent job and that the Government has done really well to recruit so many people under the current circumstances.

I make a general plea that, over the summer, the cabinet secretary engages with me and others on potential amendments. That would really help to smooth the way for stage 2, especially if we have to do it virtually.

Shirley-Anne Somerville

I am grateful to Graham Simpson for recognising the hard work of Social Security Scotland staff, including the new recruits who have been working remotely. I commit to working with him and members from across the chamber over the short summer recess.

That brings me nicely to the letter that Mark Griffin mentioned. He will forgive me—it came in not long before I came down to the chamber for the debate, but I have had a chance to look at it. We share the wish to improve the take-up of devolved benefits. The question is, “How?”. Social Security Scotland will ensure that everyone, including people who are new to universal credit, will be invited to apply for devolved benefits. I suggest that that is a direct way of encouraging people to sign up to the benefits for which Social Security Scotland is responsible.

Pauline McNeill mentioned automated payments. She will know that I am very keen to develop work on that. It is not possible for the first Scottish child payments to be automated, because of the speed with which we are introducing the payments, but I have already said that we will consider what we can do in that area. I am personally committed to doing that.

Several members, including Pauline McNeill, talked about training of judges. I stress that that is not a matter for the Scottish Government, because the independence of the judiciary is exceptionally important. The matter is for the judicial institutes, but committee members might want to take up the issue through the committee’s work. The Government will definitely not give instructions to the judiciary, although I acknowledge Pauline McNeill’s long-standing concerns on the issue and the importance of the ethos of Social Security Scotland.

Bob Doris and others spoke about disclosure of harmful information, which is a very difficult issue. I am clear that it is justifiable to withhold information that a medical professional has already determined should be withheld because that is deemed to be necessary to prevent serious harm to an individual. In doing that we must ensure that clients are not disadvantaged in respect of accessing disability assistance. However, it is for medical professionals, not the agency, to decide on that. I would never want us to get to a place where the agency second guesses what is happening and the decisions of medical professionals.

Other members spoke about the importance of diagnosing terminal illnesses correctly for disability assistance purposes. As he suggested, Graham Simpson is not yet entirely convinced by my argument that we have the balance right on that. I have already noted that that will be a discussion for during the summer. He shall certainly hear from me on that.

It is a technical bill, but it is, as I said, an important bill. We have actively engaged with stakeholders and will continue to do so during the summer, because I accept that we have improvements to make.

I thank the Social Security Committee for its support of the general principles of the bill, and I hope that Parliament can unite in passing it at stage 1.

The Presiding Officer

That concludes the stage 1 debate on the Social Security Administration and Tribunal Membership (Scotland) Bill.

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-22121, in the name of Shirley-Anne Somerville, on the Social Security Administration and Tribunal Membership (Scotland) Bill at stage 1, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Social Security Administration and Tribunal Membership (Scotland) Bill.

The Presiding Officer

The second question is, that motion S5M-21907, in the name of Kate Forbes on the financial resolution of the Social Security Administration and Tribunal Membership (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Social Security Administration and Tribunal Membership (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Presiding Officer

I propose to ask a single question on nine Parliamentary Bureau motions. Does anyone object?

Members: No.

The Presiding Officer

The question is, that motions S5M-22130 to S5M-22137 and motion S5M-22143, in the name of Graeme Dey, on behalf of the Parliamentary Bureau, be agreed to.

Motions agreed to,

That the Parliament agrees that the Finance and Constitution Committee be designated as the lead committee, and that the Environment, Climate Change and Land Reform Committee be designated as a secondary committee, in consideration of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill at stage 1.

That the Parliament agrees that the Rural Economy and Connectivity Committee be designated as the lead committee in consideration of the legislative consent memorandum in relation to the Fisheries Bill (UK Legislation).

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Scotland) Regulations 2020 (SSI 2020/169) be approved.

That the Parliament agrees that the Health Protection (Coronavirus, Public Health Information for Passengers Travelling to Scotland) Regulations 2020 (SSI 2020/170) be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Scotland) Amendment Regulations 2020 (SSI 2020/171) be approved.

That the Parliament agrees that the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 [draft] be approved.

That the Parliament agrees that the Registration of Independent Schools (Prescribed Person) (Coronavirus) (Scotland) Amendment Regulations 2020 [draft] be approved.

That the Parliament agrees that the UEFA European Championship (Scotland) Act 2020 (Ticket Touting Offence) (Exceptions for Use of Internet etc.) (Scotland) Regulations 2020 [draft] be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 4) Regulations 2020 (SSI 2020/182) be approved.

The Presiding Officer

The final question is, that motion S5M-22120, in the name of Jeane Freeman, on approval of a Scottish statutory instrument, be agreed to.

Motion agreed to,

That the Parliament recommends that the Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No 2) Regulations 2020 (SSI 2020/184) be approved.

The Presiding Officer

We will meet again here on 9 July in a hybrid meeting. However, there will be virtual question times every Thursday. A decision will be sent out on Monday night on the topic for virtual question time next Thursday.

I close the meeting. Enjoy the recess, if you can.

Meeting closed at 16:34.  

The Convener

We move to item 2. I welcome the Cabinet Secretary for Social Security and Older People and her officials to support us in this endeavour. Everyone who is taking part in the stage 2 process should have a list of the groupings and the marshalled list.

Section 1—Appointment of person to act on behalf of individual

The Convener

Amendment 6, in the name of the cabinet secretary, is grouped with amendments 7 and 18.

The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)

Good morning. Of all the areas on which the bill touches, the subject of appointees raises the most complex issues and has understandably attracted the most interest from the committee and from stakeholders. As members will know, I wrote to the committee to set out in detail how I have responded to the many issues that were raised. Although I will not go over the detail that I provided in that letter, I will take a bit of time now to highlight key areas of my proposals in this area.

I am keen to reassure members that I have taken seriously all the issues that have been raised, and worked to ensure that the amendments appropriately address key themes and the committee’s recommendations. As members will know, we engaged with our experience panels, the ill health and disability benefits stakeholder reference group and the disability and carers benefits expert advisory group, and their recommendations, along with my response, were sent to the committee.

I turn first to the proposed use of guidelines to set out the processes that ministers will follow. Members will see that amendment 7 requires the guidelines to include information on how ministers will determine the suitability of an appointee; how they will handle requests for reviews of decisions about appointments; how they will include persons with an interest in their decision-making processes; and—crucially—how they will undertake periodic reviews and handle any concerns that are raised. Amendment 7 also requires all that guidance to be developed with stakeholders and to be published.

On the issue of safeguarding clients, which was raised at stage 1, I have paid careful attention to the committee’s recommendations and to recommendations from the disability and carers benefits expert advisory group, the ill health and disability benefits stakeholder reference group and the experience panels.

That consideration has led me to lodge amendment 7, which sets out in the bill, to be enshrined in law, a set of safeguarding principles, including principles that are drawn from the United Nations Convention on the Rights of Persons with Disabilities. I hope that members will agree that those are sound principles that will ensure that where an appointment is made, it is the most appropriate arrangement for the individual in question.

Jeremy Balfour (Lothian) (Con)

Will the cabinet secretary take an intervention on that point?

The Convener

I am in your hands, cabinet secretary—I would have given members time for questions anyway.

Jeremy Balfour

Okay—I am sorry, convener.

The Convener

I will let the cabinet secretary decide. Cabinet secretary, do you want to finish your comments? There will absolutely be time for members to come in with questions afterwards. Members should think of this process as the same as the stage 3 process in the chamber—once the cabinet secretary has made her comments, members can make a bid to speak and make some observations and comments. That might be a more appropriate way to proceed.

Jeremy Balfour

It was a question, rather than a statement.

The Convener

You can ask that question once the cabinet secretary has finished.

Jeremy Balfour

Okay.

Shirley-Anne Somerville

Thank you, convener.

We have gone further by also proposing that we set out in the bill new specific duties for Scottish ministers in relation to safeguarding. Those duties are that ministers must have regard to the views of individuals—or in the case of people who are regarded as not having capacity, their wishes and feelings—when deciding to make or terminate an appointment, as well as the views of other interested persons. There are new rights to allow a wide range of persons to request, at any time, that ministers review decisions about appointments.

There is a significant new right for individuals who are dissatisfied with the outcome of a review of an appointment decision to make an application to the First-tier Tribunal for a decision.

Taking on board concerns that the committee raised on the risk of coercion, there is a requirement for a third-party certification process for appointees for adults with capacity. The third party will act in a professional capacity to provide an additional safeguard against the possibility of coercive situations arising. Finally, there is a requirement for an appointee to have regard to any guidance that is issued by the Scottish ministers on the way in which appointments should be carried out.

I trust that all that serves to reassure members that we have addressed the committee’s concerns, and that we have done so after thorough and careful consideration of the significant stakeholder evidence that was gathered. I hope that members will therefore support the amendments.

I move amendment 6.

The Convener

Thank you, cabinet secretary. I will bring in Mr Balfour first, but if any other member wishes to contribute to the debate, they can indicate just now or put a message in the chat box on the BlueJeans platform.

Jeremy Balfour

I welcome the amendments on appointees, but I seek some clarification with regard to face-to-face interviews, which are not in there. In some of the evidence that we took in committee, the feeling was expressed that people might have to go to Social Security Scotland or a relevant group for a face-to-face interview, rather than doing everything on paper, so that things could be worked out with no possibility of coercion. Why did you choose not to go down the route of face-to-face interviews? Can you explain a bit more about that?

The Convener

Before I give the cabinet secretary a chance to wind up in what is a very brief debate—she can address Mr Balfour’s points then—does any other member wish to come in at this point?

Alison Johnstone (Lothian) (Green)

I have another point of clarification that the cabinet secretary can perhaps touch on. The Child Poverty Action Group has confirmed that it supports amendments 6 and 7, but it says:

“It would ... be helpful to understand why the amendment in the name of the Cabinet Secretary has included paragraph (10) in the new Section 85D.”

CPAG says that

“This prevents an individual from appealing against a First-tier Tribunal decision”,

and that it would

“leave individuals with no option but to apply for judicial review”,

which could prove very expensive. CPAG also notes that

“such appeals will be ... rare, but ... will occur”.

I would be grateful for the Government’s view on that.

The Convener

Are there any other contributions from members before we go to the cabinet secretary so that she can wind up?

I see that members have no more comments. I ask the cabinet secretary to sum up the debate.

Shirley-Anne Somerville

I will respond to the points from members. We considered face-to-face interviews, but we need to bear in mind—DACBEAG has been helpful on this—the need to set up something that ensures that we safeguard clients, but not in a way that becomes overly bureaucratic and time consuming. Some of the decisions on appointees may relate to clients who have a terminal illness, so we want the process to be completed safely but quickly, for the benefit of the client. We need to strike a balance on where to set those aspects.

We have said—DACBEAG has encouraged us in this—that we will have a test-and-learn approach to that. On this occasion, I think that we have got the balance right in respect of how we deal with those issues in relation to adults with capacity.

On Alison Johnstone’s point, we have been clear that, rather than framing an application to a tribunal as an appeal, we think of the tribunal process as resolving a dispute in what is a sensitive administrative process. We chose a tribunal because we can ensure that the panel is composed of individuals who have the relevant knowledge and experience to handle such matters.

As is reflected in DACBEAG’s advice, such disputes are rare, and they are not like decisions about entitlement to benefits, which revolve around fairly detailed criteria. Of course, in the reserved system, decisions about appointments are purely administrative and discretionary; there is no dispute mechanism for appointments. We have reflected on that, and have already introduced two ways in which a person might raise an objection if they are not satisfied. That is the reason that the amendments have been drafted in the way that they have.

I thank the committee for its engagement, for the constructive discussions that I have had with members over the summer and for the recommendations that the committee has made. In particular, I thank former committee member Graham Simpson for his engagement on the issue. Our detailed engagement with members and stakeholders has allowed us to resolve the issue of how we can best safeguard individuals and involve them in what is a crucial component of the social security system in Scotland. On that basis, I hope that members feel that they are able to support the amendments.

The Convener

The question is, that amendment 6 be agreed to. Are we agreed?

I will allow a moment for those members who are dialling in to look at the chat box format. I point out to those members that, if they stay silent in the chat box, I will assume that they agree—I will take their silence as compliance, if that is all right. I will not wait to see whether everyone has agreed, but that would be helpful.

I see that we are agreed.

Amendment 6 agreed to.

Section 1, as amended, agreed to.

After section 1

Amendment 7 moved—[Shirley-Anne Somerville]—and agreed to.

Section 2—Determination of entitlement to assistance: non-disclosure of information

09:45  

The Convener

Group 2 is on the determination of entitlement to assistance. Amendment 22, in the name of Jeremy Balfour, is the only amendment in the group.

Jeremy Balfour

The issue of non-disclosure of information is clearly sensitive, and the committee has taken evidence on it.

Amendment 22 simply seeks to find out how often the non-disclosure power is being used to withhold information that may have a physical or mental impact on the patient. As we have discussed, and taken evidence on previously, that will be appropriate in some circumstances, but it should definitely be the exception rather than the norm. My amendment asks the Scottish ministers to report to the Scottish Parliament annually on how often the power has been used.

As a Parliament, we rightly pride ourselves on being open and transparent in regard to the power that we use. Amendment 22 would simply ensure that the power is not overused, and that the Scottish Government can show why it is being used—obviously with no reference to specifics—so that the Parliament can be satisfied that the power is not being abused or used without due course and thought.

The amendment would ensure that the use of the power is monitored in line with policy objectives, which would include highlighting the proportion of cases in which the power is used where someone does not have a terminal illness. A number of organisations such as Citizens Advice Scotland and the Scottish Association for Mental Health have recognised that, although the power will be used predominantly in cases of terminal illness, other medical conditions will be caught by the provision. My amendment offers a way to help the Parliament to keep on top of what is going on and to ensure that the power is not being used inappropriately as we move forward.

I move amendment 22.

Tom Arthur (Renfrewshire South) (SNP)

Perhaps Mr Balfour can clarify this point; I may have misunderstood it. As he recognises, each occasion on which information is not disclosed will be unique. However, from the way in which his amendment has been drafted, as I understand it, the analysis would be quantitative. It would seek to make a judgment, where information has not been disclosed, on whether that decision was appropriate based solely on the number of such decisions in a calendar year. The analysis is not qualitative, because that would involve revealing information about each particular set of circumstances.

As I understand it, the purpose of amendment 22 would be to determine whether the non-disclosure power is being used appropriately, but we could know whether that was the case only if we knew the details of each individual’s circumstances. The amendment does not seek information on each individual’s circumstances—it simply seeks information on the number of instances, which means that the analysis is only quantitative and not qualitative. How, therefore, would the amendment give effect to the policy objective that Mr Balfour outlined?

The Convener

Mr Balfour will have the opportunity to sum up at the end of the debate, so he can come back to that question. Do any other members wish to comment?

Alison Johnstone

I would like to understand whether Mr Balfour has undertaken any consultation with any organisations from which we may have expected to hear on the issue. I am thinking of the notable clinical organisations with which the committee is in regular contact, such as the British Medical Association, the Royal College of General Practitioners and so on.

Secondly, has any consideration been given to the potential, in the event that there is a very small number of cases of non-disclosure, for the information that the amendment is seeking to lead to the identification of those individuals?

Pauline McNeill (Glasgow) (Lab)

It is actually—[Inaudible.]—an issue for the committee at stage 2. I agree with the sentiment behind the amendment; we would want to know, in a way in which information was not disclosed, that a decision that was arrived at was made in accordance with the guidelines. My question is whether such information would be useful for the Parliament. As Tom Arthur said, we would see only the number of times that the power was used. I am not convinced that that is the type of information that should be presented to the Parliament. I am happy for Jeremy Balfour to come back to me on that.

As clinicians would be making those decisions, such a reporting requirement would seem to be a wee bit out of step with current parliamentary reports. For example, we have annual parliamentary reports on child poverty and domestic violence. Is there any precedent for presenting to Parliament an annual report on the number of times that a particular power has been used?

I recall—it seems like many decades ago now—that we used to publish the number of times that a warrant was issued by ministers, but things have moved on since those days. That information told us the number of warrants that ministers had issued, but not why they had issued them. I am open minded on the amendment, but I would like to hear from Jeremy Balfour on those points, and I am interested to hear what the minister has to say about the amendment too.

Shirley-Anne Somerville

I absolutely understand Mr Balfour’s interest in the provisions on non-disclosure of information, given Social Security Scotland’s ethos of transparency and open communication, to which he referred in his opening remarks.? That is why a very high bar has been set for the test that must be met. There must be no unintended consequences from any changes.

It is already the case that Social Security Scotland may withhold information from a client only where a registered medical practitioner or registered nurse has used their? clinical judgment to determine that it would cause that client serious physical or mental harm.

I am happy to make a commitment now to report annually on how often those provisions have been used in relation to applications for standard disability assistance and applications for disability assistance on the grounds of terminal illness, provided that the numbers are not so low that reporting the information could lead to the identification of clients.

However, Mr Balfour’s amendment would go much further, in requiring reporting on all forms of assistance, including on whether information has been withheld because the serious physical or serious mental harm element of the test has been met. The amendment would require us to publish granular information every year, regardless of whether that could lead to the identification of clients.? Clinicians do not withhold information from their patients lightly. I therefore expect that the provisions would be used rarely, and primarily where a clinical judgment is provided to certify that a client is terminally ill.? The financial memorandum that accompanies the bill estimates that harmful information could be withheld from clients who are terminally ill approximately 350 times per year.

The committee will be aware that there was a duty on the chief medical officer to draft guidance to support the new legal definition of terminal illness, in consultation with registered medical practitioners. Significant and close consultation and engagement took place with clinicians, wider stakeholders and unions to develop and sign off the clinical aspects of that guidance. Mr Balfour’s amendment would require the chief medical officer to revisit that guidance and the supporting form, and I do not believe that that should be done without again consulting those on whom it would have an impact.

Changes to the guidance that impact on how a clinical judgment is given need to be agreed by the clinicians and the relevant unions involved in the development of the guidance.? I would be happy to explore the matter with them, but that would—understandably—take some time, and it would not automatically mean that there would be agreement on the issue. However, it is vital that clinicians are consulted—given that they are the intended users of the guidance—and that the requirement is not imposed on them.?

I therefore urge Mr Balfour not to press? amendment? 22. If he does press the amendment, I urge the committee to vote against it.

Jeremy Balfour

The debate has been helpful, and I welcome the contributions from members and the cabinet secretary.

As the cabinet secretary said, we are setting ourselves a high bar; recording information from any patient or client has to be done only in rare circumstances. I welcome the cabinet secretary’s comment that she is willing to publish some of the information, which is helpful.

I turn to the comments from Mr Arthur. I accept that the information that we would get would be purely a number, but—as we are all aware—we are setting legislation for not just the next two or three years but probably a decade and beyond. The concern would be that, if the numbers started to increase, at that point this committee or another committee would want to do a deep dive into that and get more information. The amendment would, in effect, put in place a warning system for the Parliament and this committee so that, if the numbers grew over a number of years, we could do that deep dive.

Alison Johnstone made some helpful comments. I have not consulted with the wider medical profession, on the presumption that, if my amendment is accepted, there would have to be consultation.

To some extent, we as a Parliament need to have that information—it is important. Having said that, I would like to reflect further on the comments from the cabinet secretary and members. I seek to withdraw my amendment.

Amendment 22, by agreement, withdrawn.

Sections 2 and 3 agreed to.

Section 4—Assistance given in error: First-tier Tribunal’s jurisdiction

The Convener

The next group is on assistance given in error. Amendment 8, in the name of the cabinet secretary, is grouped with amendments 17, 19 and 21.

Shirley-Anne Somerville

I thank Jeremy Balfour for highlighting the opportunity that the bill gives us to reaffirm our commitment to moving areas of competence and jurisdiction—those relating to the recovery of money owed—that sit with the sheriff courts to the First-tier Tribunal. I recognise the principles at stake and the sincerity with which Mr Balfour has raised these issues, and I am grateful to him for his constructive engagement on them. It has allowed for the crafting of a Scottish Government amendment that demonstrates that commitment while also allowing a consultative and considered approach to ensure that the transfer is effected appropriately and to guard against any unintended consequences.

The Scottish Government has always intended to transfer some or all of the competence and jurisdiction in relation to the recovery of overpayment from the sheriff courts to the First-tier Tribunal, and I agree with Mr Balfour that the bill gives us an opportunity to achieve that.

It is important that we recognise that those stakeholders who deal with these matters daily must be consulted to ensure that the system that we implement works for the clients involved and for those who will administrate it. Therefore, if members agree with the approach that we have set out in these amendments, we will formally seek stakeholders’ views to guide the approach; the bill sets out that that will be done before the early part of next year. I hope that the inclusion in the bill of a firm date for the required consultation shows that that is a priority area for us.

Amendment 17 places a duty on the Scottish ministers to make regulations to effect the transfer of jurisdiction, and places an obligation on them to undertake consultation on the matter before 1 April 2021 and to ensure that key stakeholders are appropriately engaged to guide the correct outcome. The amendments avoid effecting the transfer in the bill itself, and instead provide for that to be done through regulations. That will provide the flexibility that is needed around how, and to what degree, competence and jurisdiction should be transferred. Of course, we will not know the answers until we consult key stakeholders, including the Lord President of the Court of Session and the president of the Scottish Courts and Tribunals Service.

Amendment 19 will ensure that the provisions on the transfer of jurisdiction will come into effect the day after royal assent, which underlines the priority that I attach to the issue. Amendment 21 will alter the long title of the bill to more accurately reflect that the issue is addressed within it. Our approach places a duty on the Scottish ministers to prioritise that work, achieves the desired outcome though the appropriate process and avoids any risk of unintended consequences. I hope that the committee will support it.

I move amendment 8.

Jeremy Balfour

I thank the cabinet secretary for these amendments. This issue had, between all of us, fallen through the cracks when the original Social Security (Scotland) Bill was considered. Its inclusion in this bill is important, because it would be unfair and overburdensome for a normal claimant to have to go to a civil court. I hope that the consultation is constructive and quick, and that the provisions in the amendments can come into force as soon as possible. I put on record my thanks to the cabinet secretary for her work on this area.

Pauline McNeill

My point is similar to the one that Jeremy Balfour raised. I want to put on the record that what the cabinet secretary outlined is a significant and progressive move on behalf of the Government, and I thank Mr Balfour for drawing the issue to the Government’s attention.

10:00  

As I have said already, it is significant that those who may be the subject of an overpayment are able to appear in a more appropriate forum, in particular in the city that I represent. In Glasgow, the sheriff court is very daunting—not that it will not be daunting, I suppose, if someone is appearing before an administrative tribunal, but the tribunal is more practical and appropriate for the issue concerned. I thank everybody who has been involved in the matter.

Shirley-Anne Somerville

I do not have a great deal to add, convener. I thank Mr Balfour once again for bringing the issue into the bill, and for his amendment, which, although he has now withdrawn it, nevertheless helped us to engage with the issue and provoked the constructive engagement that we have had with him on the issue. I hope that we have found a way to use the bill to firm up our commitment to take forward the issue, as we had always intended to do, and I hope that members will now help us to meet that commitment by voting in favour of the amendments.

Amendment 8 agreed to.

Sections 5 and 6 agreed to.

After section 6

The Convener

The next group is on identifying possible eligibility. Amendment 9, in the name of the cabinet secretary, is grouped with amendments 10 and 20.

Shirley-Anne Somerville

Promoting take-up is a duty that is placed on the Scottish Government by the Social Security (Scotland) Act 2018, but it is much more than that. It is a moral imperative and a fundamental priority that feeds into our wider commitments around tackling poverty and inequalities in all forms. This group of three amendments meets the Social Security Committee’s recommendation at stage 1 and enjoys the support of a broad range of stakeholders.

Section 53 of the 2018 act places a duty on the Scottish ministers to inform individuals of their possible eligibility for other forms of assistance under part 2 of the act when making a determination on their eligibility for any form of assistance under that part of the act. However, as the Scottish child payment is to be made under the top-up powers in section 79 of the act, it is not covered by the existing duty. Amendment 9 extends the duty in section 53 to include informing individuals of their possible eligibility for the Scottish child payment. It also ensures that the Scottish ministers must inform an individual of their possible eligibility for any other forms of assistance under section 79.

Amendments 10 and 20 are consequential amendments. Amendment 10 stipulates a transitional provision to put beyond doubt that anything that is done under section 53 is, in the future, to be treated as having been done under the newly renumbered section. Amendment 20 modifies the long title to refer specifically to

“the duty to inform about possible eligibility”.

This group of amendments extends and strengthens our existing duties on take-up. I hope that the committee will agree with the approach that is being taken and will support the amendments in this group.

I move amendment 9.

Alison Johnstone

I speak in support of the amendments. This is an important step forward, and anything that we can do to ensure that those who are entitled to benefits receive them is welcome. We know that investing in advice bears fruit—according to research, every £1 that we spend on advice returns over £20—so that approach is very welcome.

Pauline McNeill

My view is similar to that of Alison Johnstone. We know that some of the revisions that we are making to this bill at stage 2 are because of things that were missed when we debated the original bill. It is worth putting on record again that the significance of the provisions in the 2018 act is that there is an obligation on the social security system to see whether people are eligible for other benefits. That is an important departure from the Department for Work and Pensions system for all those involved. When we get to the end of this process, it is important to remind people that, when they apply to the social security system for one benefit, there is a duty on the system to ascertain whether they are eligible for other benefits. I whole-heartedly support that approach.

The Convener

Does the cabinet secretary wish to wind up?

Shirley-Anne Somerville

I have nothing to add, convener.

Amendment 9 agreed to.

Amendment 10 moved—[Shirley-Anne Somerville]—and agreed to.

Section 7—Persons who can give diagnosis

The Convener

The next group is on diagnosing terminal illness. Amendment 11, in the name of the cabinet secretary, is grouped with amendments 5 and 12 to 14.

Shirley-Anne Somerville

This is a large group, so I will take a bit of time to go over my intentions and address the non-Government amendment in the name of Jeremy Balfour.

My amendments provide a technical fix to the provision of a clinical judgment certifying that a client is terminally ill. That relates to clients who are resident outside the United Kingdom. The European Union rules on the co-ordination of social security systems allow for the payment of assistance to individuals who are resident outside the UK in some cases. It is vital that clients who are eligible for disability assistance under these rules can access it without undue barriers. That applies in particular to terminally ill clients, who require expedited access to assistance. The amendments therefore allow for an overseas healthcare professional to confirm that their patient meets the terminal illness definition.

Amendment 11 allows ministers to accept a diagnosis of terminal illness that has not been formed with regard to the chief medical officer’s guidance, but only if the client is not resident in the UK, and only if it would not be reasonable to insist on a clinical judgment that has been formed with regard to the CMO guidance.

Amendment 12 clarifies that, where the individual receiving the diagnosis is not resident in the UK, different requirements that an appropriate healthcare practitioner must meet may be prescribed. That addresses the fact that, under the current provisions, the definition of “an appropriate healthcare professional” must include being a registered medical professional or a registered nurse, which, by definition, means that they must have current membership of the General Medical Council or the Nursing and Midwifery Council, which are both UK regulatory bodies.

Amendment 13 clarifies that the duty on the CMO to consult “appropriate healthcare professionals” when preparing or revising the CMO guidance does not extend to healthcare professionals who are not registered in the UK.

Amendment 14 corrects a cross-reference in a consequential amendment made in the introduction of the bill, which removes the definition of “registered practitioner” and replaces it with “appropriate healthcare professional”.

I hope that the committee will support all those amendments.

I will also address Jeremy Balfour’s amendment 5 in this group. Mr Balfour discussed his intention in this area with me; I was able to set out my position in correspondence with him, and I thank him for his engagement on the issue. Amendment 5 would require a registered nurse or registered medical practitioner, when providing a clinical judgment certifying a patient as terminally ill, to have

“appropriate skills and training, as prescribed by the Scottish Ministers in the regulations”.

Although I share Mr Balfour’s view that only appropriate registered nurses or registered medical practitioners should provide a clinical judgment, I do not believe that his amendment would achieve that aim. Ensuring that only appropriate registered nurses and registered medical practitioners provide a clinical judgment is about competence, and it is absolutely the case that they should have the appropriate skills, training and experience. However, the mandatory requirements should be those that guarantee the highest level of competence, rather than making it mandatory for ministers to specify skills and training requirements.

I am also mindful that there is no stakeholder consensus on the issue. Although two stakeholders have proposed training, that approach does not have majority stakeholder support. In particular, the Royal College of Nursing does not support a requirement for mandatory training for registered nurses, and Macmillan Cancer Support has said that nurses do not require specific specialist training to act under the terminal illness provisions.

However, I have considered the issue carefully and believe that we can take action in this area. I therefore propose that a more appropriate and robust approach to ensuring that only appropriate registered nurses and registered medical practitioners provide a clinical judgment is to include a number of requirements in a combination of regulations and the chief medical officer’s guidance.

The requirements that I propose have been agreed in consultation with stakeholders, the CMO and the chief nursing officer. They require that the registered medical practitioner or nurse must meet the following five criteria: they should have appropriate skills, knowledge and experience to carry out the clinical judgment, be involved in the diagnosis or care of the patient; act in their professional capacity; work in accordance with a clinical governance framework; and meet the requirements or contractual obligations of their employer.

It is important that, where we include criteria in regulations, Social Security Scotland is able to verify that the registered medical practitioner or registered nurse meets those criteria. I therefore intend to include criterion 2, which requires that they are involved in the diagnosis or care of the patient, and criterion 3, which requires that they are acting in their professional capacity, in the regulations for each form of disability assistance. The remaining criteria are governed by employers and registration requirements. For those reasons, they should be included in the chief medical officer’s guidance rather than in regulations.

I recognise that the improved terminal illness definition in Scotland presents a significant change for registered medical practitioners and nurses. That is why the CMO guidance is very detailed and is intended to provide all the information that is required to provide a clinical judgment, including tools to support practitioners and nurses should they need them.

Furthermore, a raft of support measures are being developed with the terminal illness national implementation group. Those include carefully crafted communications; a one-stop online hub for all related information; frequently asked questions; easy-read information leaflets that are tailored for both clients and medical professionals; and—importantly—a clinical helpline that is managed by Social Security Scotland.

I hope that both Mr Balfour and the wider committee would agree that that proposal meets the intention of Mr Balfour’s amendments, but in a better way. I therefore ask him not to move amendment 5.

I move amendment 11.

Jeremy Balfour

First, I thank the cabinet secretary for the constructive way in which she has communicated with me over the past number of weeks. My amendment has given the cabinet secretary an opportunity to give a bit more detail on her thinking and to move the issue forward.

I lodged the amendment because I was concerned. I had been contacted by a number of district nurses and practice nurses who felt that they may be caught by the provisions without having the relevant experience or any understanding of what was being asked of them.

What the cabinet secretary has set out this morning meets what I am looking for, so I will not move amendment 5.

The Convener

I ask the cabinet secretary to wind up.

Shirley-Anne Somerville

I have very little to add—I believe that we have found a way to achieve what Mr Balfour has been seeking, and once again I thank him for the constructive discussions that we have had since stage 1 to take the matter forward.

Amendment 11 agreed to.

Amendment 5 not moved.

Amendments 12 to 14 moved—[Shirley-Anne Somerville]—and agreed to.

Section 7, as amended, agreed to.

After section 7

10:15  

The Convener

Amendment 15, in the name of the cabinet secretary, is grouped with amendment 16.

Shirley-Anne Somerville

During the stage 1 debate, I said that I would lodge amendments at stage 2 to provide for suspension of assistance, conditional on receiving broad stakeholder support. Stakeholders have made a clear case for the need to make provision for suspension and non-payment of assistance, in a narrow range of circumstances, for relevant forms of assistance. The amendments in this group have been developed to achieve that, and I am pleased that key stakeholders such as CPAG, CAS, Inclusion Scotland and the Health and Social Care Alliance Scotland have all responded positively to those proposals.

I will not go over the detail that I provided to the committee in my letter; however, I want to emphasise, and put on the record, that suspending payment of social security benefits will be used only as a last resort, and only when we have explored all other alternatives.

Amendment 15 will enable the Scottish ministers to temporarily suspend payment of assistance under part 2 of the 2018 act, and it introduces the power to make regulations prescribing the three circumstances in which such payments may be suspended. The three circumstances in which suspensions are intended to best support clients have been developed on the basis of the views of stakeholders and the committee’s stage 1 consideration.

I provided full details in my letter to the committee, but in summary those circumstances are as follows: one, where a client does not provide necessary information required to ensure on-going entitlement; two, where payment should not be paid to a third party acting on a client’s behalf because of concerns raised about potential financial abuse; and three, where a client requests that their benefit is suspended because they do not have access to their bank account.

Regulations will also set out a number of safeguards that I believe are crucial to ensuring that the rights of the individual are respected and that our approach aligns with our core values of dignity, fairness and respect. Those include the provision that the individual’s financial circumstances must be considered before suspending payment, and that where payment is suspended, the individual will have the right to have the decision to suspend reviewed by Scottish ministers.

Individuals who have their payment of assistance suspended must be given notice of the decision to suspend; the reasons for the suspension; what steps they may take in order for Scottish ministers to consider ending the suspension; and their right to request a review of the decision. Once a decision is made to end a suspension, regulations will provide that the individual will become immediately entitled to be paid any assistance due under the period of suspension, subject to any new determination of entitlement.

The Scottish Government has also been asked by stakeholders to lodge amendments that allow for the value of certain types of on-going assistance to be set at zero, to avoid a situation in which an individual would otherwise see their entitlement to assistance come to an end under the existing provisions of the 2018 act.

I recognise the importance of clients being able to retain what is called “underlying entitlement” to certain aspects of reserved, means-tested benefits, and amendment 16 achieves that. Amendment 16 will allow payment of specific types of on-going devolved assistance to be more quickly and easily restarted when an individual is no longer resident in a specific place, such as a care home, hospital or legal detention.

I move amendment 15.

The Convener

Does any member want to contribute to the debate? I see that Alison Johnstone wants to come in. I apologise—it is Rachael Hamilton.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

Thank you, convener. I agree with everything that the cabinet secretary has said, but I would like her to clarify one point regarding the time period for gathering information. I know that it is at the Scottish ministers’ discretion to set a time period—that relates to section 54 of the 2018 act. However, in this specific circumstance, the DWP sets a time limit—a blanket period—of around 14 days.

Have you considered that, cabinet secretary? If you have not, perhaps you might consider it.

The Convener

I am sorry, Rachael, for my memory blank there in trying to bring in Alison Johnstone. I suppose that I should check, as a courtesy, whether she would like to come in. Alison, would you like to contribute to the debate?

Alison Johnstone

Not at the moment, convener.

The Convener

Does anyone else wish to come in at this point?

As there are no other contributions, I ask the cabinet secretary to wind up.

Shirley-Anne Somerville

First, I will address Rachael Hamilton’s point. The idea of setting prescriptive timescales for the maximum or minimum duration of a suspension would limit our ability to tailor our approach to the client. We have made it clear that a suspension would not be in force for any longer than necessary. If an arbitrary timescale was included in the bill, in many cases, if information had not been received by that date, the only possible action would be to end the individual’s entitlement to assistance, and we do not believe that that would necessarily be in the best interests of the client. The approach that we are undertaking in the bill gives us the ability to tailor the decisions to the specific needs of that individual client and what has come forward in their specific case.

I thank all the stakeholders who contributed to the discussion on this issue and who have helped to shape the approach to the suspension of assistance. I also thank the committee for its continued engagement in this area.

The safeguards that we have set out as part of these amendments are testament to the continued positive dialogue between the Scottish Government and stakeholders, and that dialogue will continue to help shape the detailed provision that will be made by way of regulations. These amendments are essential to help us ensure that clients are paid the right amount at the right time.

Amendment 15 agreed to.

Amendments 16 and 17 moved—[Shirley-Anne Somerville]—and agreed to.

Sections 8 to 10 agreed to.

Section 11—Commencement

Amendments 18 and 19 moved—[Shirley-Anne Somerville]—and agreed to.

Section 11, as amended, agreed to.

Section 12 agreed to.

Long Title

Amendments 20 and 21 moved—[Shirley-Anne Somerville]—and agreed to.

Long title, as amended, agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank the cabinet secretary and her officials for coming along this morning and engaging in the process. The bill will now be reprinted as amended at stage 2. The Parliament has not yet determined when stage 3 will take place—members will be informed of that in due course, along with the deadline for lodging any stage 3 amendments that they may wish to be considered. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.

I suspend the meeting briefly before we move to the next agenda item.

10:24 Meeting suspended.  

10:28 On resuming—  

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Social Security Administration and Tribunal Membership (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.

Should there be a division, the division bell will sound, and proceedings will be suspended for a short technical break.

I encourage members who wish to speak on any group of amendments to press their request-to-speak button as soon as the group is called.

We turn to the marshalled list.

Section 5—Investigations

The Presiding Officer

Group 1 is on investigations. Amendment 1, in the name of Shirley-Anne Somerville, is the only amendment in the group.

The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)

Amendment 1 is a short, technical amendment, to fix numerical ordering in the Social Security (Scotland) Act 2018.

Section 96(2) of the 2018 act is a numerical list of sections under which regulations are made under affirmative procedure. One of those listed sections of the 2018 act is section 75. Section 5 of the bill reorders the 2018 act so that its section 75 becomes section 84A. Section 96(2) of the 2018 act therefore requires amendment so that the reference in the list to section 75 is substituted by a reference to section 84A. Section 5(8) of the bill does that; however, the present provision places the reference to section 84A in the list after section 85, when it should be before that section.

I trust that members are content and will support what is a minor tidying amendment.

I move amendment 1.

Amendment 1 agreed to.

After section 6

The Presiding Officer

Group 2 is on uprating for inflation. Amendment 2, in the name of the cabinet secretary, is grouped with amendment 3.

Shirley-Anne Somerville

The new Scottish child payment will play a vital role in tackling child poverty. When it was first announced in June 2019, we made a commitment that the payment would be uprated annually in line with inflation. We already have the power to increase the value of the payment through amendments to the Scottish child payment regulations, but our statutory duties to report on and uprate certain forms of assistance in sections 77 and 78 of the Social Security (Scotland) Act 2018 do not extend to the child payment.

That is why I made clear in our response to the Scottish Commission on Social Security’s report on the Scottish child payment regulations, published on 8 September, my intention to lodge substantive amendments at stage 3 of the bill, to ensure that we enshrine in law the annual uprating of the Scottish child payment in line with inflation.

Sections 77 and 78 of the 2018 act contain the existing, overarching provision on uprating. However, as the Scottish child payment is to be made under top-up powers, under section 79 of the 2018 act, it is not covered by existing duties.

Amendment 2 modifies section 77 of the 2018 act so that the existing duty to report to Parliament annually on the inflation-adjusted level of all forms of assistance that are payable under part 2 of the act is now extended to require ministers to report on the inflation-adjusted level of all forms of top-up assistance that are payable under regulations under section 79.

Amendment 2 also modifies section 78 of the 2018 act to require ministers to bring forward regulations uprating the value of the Scottish child payment in line with its inflation-adjusted level. Since sections 77 and 78, as modified, will relate to assistance under parts 2 and 3 of the 2018 act, amendment 2 also moves those sections to part 4 of the act and renumbers them as sections 86A and 86B.

Amendment 3 makes provision in connection with this reordering to provide that

“Anything done under section 77 or 78 of the ... 2018 Act”

before the date on which the relevant provisions of this bill come into force will be treated after that date as having been done under the renumbered sections.

As the first payments of the Scottish child payment will start from the end of February 2021, the duty to uprate annually will be in effect from April 2022 and will be brought into force by commencement regulations, which are likely to be laid in late 2021, and that will be made under section 11 of the bill. I urge members to support the amendment.

I move amendment 2.

Amendment 2 agreed to.

Amendment 3 moved—[Shirley-Anne Somerville]—and agreed to.

Section 7A—Power to suspend payment of assistance

The Presiding Officer

The final group is on the suspension of assistance. Amendment 4, in the name of the cabinet secretary, is the only amendment in the group.

Shirley-Anne Somerville

Amendment 4 is another minor technical amendment to the provisions on suspensions, which were introduced at stage 2 of the bill. The amendment makes it clear that the ability to suspend payment should be Social Security Scotland’s first choice where an individual has failed for the first time to supply information by the date set by the agency.

Where assistance is suspended after requesting information from the individual, Social Security Scotland will be required to ask for the information again and allow a further period for that to be supplied. If an individual fails to supply information for a second time, Social Security Scotland will have the power to terminate entitlement to assistance.

I want to make clear, as I did at stage 2, that although we will have the power to terminate entitlement at this point, the outcome is not predetermined. Case managers will consider all the information that is held before making their determinations. The decision to terminate entitlement will not be taken lightly and will be used as the last step in a process, not the first. We will continue to work in a co-operative, fair way with all clients in seeking to obtain the information that we need to ensure that people continue to be paid the right amount at the right time. The priority is to avoid clients being overpaid assistance and to develop a fair process that is tailored to individual circumstances.

As stage 2 amendments made clear, our system of suspensions has important safeguards, including the need to consider an individual’s financial circumstances and their right to request a review. This minor technical amendment will fulfil stakeholders’ expectations and ensure the effective functioning of Scotland’s social security system.

I move amendment 4.

Amendment 4 agreed to.

The Presiding Officer

That ends consideration of amendments.

As members are aware, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system or the franchise for Scottish parliamentary elections. In my view, no provision relates to a protected subject matter, so the bill does not require a supermajority in order to be passed at stage 3.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is the stage 3 debate on motion S5M-22845, in the name of Shirley-Anne Somerville, on the Social Security Administration and Tribunal Membership (Scotland) Bill.

15:57  

The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)

I thank all those who have contributed to and supported the development of the bill. I know that the past months have been hard on everyone, so I am particularly grateful to the organisations, groups and individuals who have worked hard to help us with the bill and to improve it.

I give grateful thanks to the members of the Scottish Government’s disability and carers benefits expert advisory group and members of our ill health and disability benefits stakeholder reference group, to colleagues in the Scottish Courts and Tribunals Service and to the chief medical officer, the chief nursing officer and staff in their offices. Their work has been invaluable in ensuring that the bill is as it is today. I thank the stakeholder groups that have contributed, including Citizens Advice Scotland, the Child Poverty Action Group, the Equality and Human Rights Commission, the Scottish Association for Mental Health, Inclusion Scotland and the Health and Social Care Alliance Scotland.

I also extend my thanks to all the members of the Social Security Committee, past and present, and to the committee’s convener and the clerking team, who have supported a process of parliamentary scrutiny that was undertaken in difficult and unprecedented circumstances. Of course, I also very much thank my bill team and private office for their support throughout.

As that list of involved and interested parties makes clear, the bill covers a broad range of matters. It is an important package of changes to the framework of Scottish social security legislation, which is still very new. The changes that the bill will make are necessary and valuable, and, in the case of provisions that are required before the launch of the Government’s brand-new benefit, the Scottish child payment, they are urgent.

I will take a little time to talk through some of the improvements that were made to the bill during its earlier stages. In relation to appointees, I am pleased that the bill now includes safeguards to ensure that the process of appointment is not misused. The guidelines that govern how decisions on appointments should be made will now be on a statutory footing, and the list of safeguarding principles, which include principles drawn from the United Nations Convention on the Rights of Persons with Disabilities, was added at stage 2. Those provisions will ensure that, when an appointment is made, it will always be the best and most appropriate arrangement for the individual. In the event that those arrangements are not appropriate, the bill now provides the right to apply to the First-tier Tribunal for a review of the appointment decision.

A second improvement has been the extension of the existing duty in the Social Security (Scotland) Act 2018 to inform individuals of their potential eligibility for other forms of assistance. That was based on the Social Security Committee’s recommendation that the section 53 duties should be extended to cover benefits, such as the Scottish child payment, that are made using the top-up powers in section 79 of the 2018 act. I was more than happy to accept that recommendation. Promoting the take-up of Scotland’s social security benefits and removing the barriers to claim entitlements is the right thing to do. It encapsulates many of the principles of the 2018 act, including that social security is an investment in the people of Scotland, that social security is a human right, that the Scottish social security system is there to contribute to reducing poverty in Scotland and that delivery of social security is a public service.

The bill also makes some adjustments to provide for cases in which a diagnosis of terminal illness is made by a medical professional who is based outwith the United Kingdom, who will, of course, not be subject to our chief medical officer’s guidance. The new guidance does not specify how healthcare professionals should be trained. The issue was discussed in detail during stage 2, when I made it clear that I absolutely recognised that the improved terminal illness definition in Scotland introduces a change in the way that some of our health professionals will carry out their duties in relation to terminally ill patients. That is why the CMO’s guidance is very detailed; it is also why we have taken other steps to ensure that the right support is in place—for example, by developing additional support measures with the terminal illness national implementation group.

I am pleased that, in the end, we have agreed a sensible approach to ensuring that only appropriate health professionals provide a clinical judgment by including a number of requirements and criteria in a combination of regulations and guidance from the CMO.

During the bill process, a clear case was made for us to provide for suspension and non-payment of assistance in a very narrow and specific range of circumstances. To ensure that there will be no negative consequences of the use of those provisions, there are a number of safeguards to ensure that the rights of the individual are respected at all times. Our amendments to allow for the value of certain types of assistance to be set at zero will also be used only when it will be of benefit to the individual concerned—for example, by allowing payments of specific on-going benefits to be restarted more quickly when the individual’s stay in a care home or in hospital has come to an end. I am pleased that organisations such as the Child Poverty Action Group, Citizens Advice Scotland, Inclusion Scotland and the Health and Social Care Alliance Scotland have all responded positively to those changes and that they consider them to be improvements to the bill.

The final way in which I think that the bill has been improved is in the opportunity that it presented for the Scottish Government—prompted by Jeremy Balfour—to reaffirm our commitment to moving areas of competence and jurisdiction that the sheriff court currently holds to the First-tier Tribunal, in relation to the recovery of money that is owed to Social Security Scotland. We made changes at stage 2 that demonstrate that commitment but that also allow a consultative and considered approach to be taken that will ensure that the transfer is effected appropriately while guarding against unintended consequences.

I am pleased that the final additions to the bill that have been made today have had support from across the chamber. Those additions will bring forward the increase in the value of the Scottish child payment in line with inflation. I am pleased and proud that, in the teeth of a global pandemic, the Scottish child payment will open for applications in November, with the first payments to start from the end of February 2021. That is only two months later than we previously planned, despite the impact of Covid. The amendments that have just been agreed to will ensure that the payment will be uprated every year in line with inflation from April 2022 onwards.

In conclusion, I thank everyone who has helped to shape the bill.

I move,

That the Parliament agrees that the Social Security Administration and Tribunal Membership (Scotland) Bill be passed.

16:04  

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I am delighted to open on behalf of the Scottish Conservatives, and I want to thank everyone who gave evidence for the purposes of the bill. Its development has been an unusual process as we have coped with the Covid-19 restrictions. I also want to put on record my thanks to my colleague Graham Simpson, who was previously a member of the Social Security Committee and who contributed to the bill’s consideration.

The bill offers solutions to the problems that have been experienced through the Social Security (Scotland) Act 2018, as well as offering claimants dignity and respect. In short, it corrects previous shortcomings in social security legislation, which the SNP should have sorted out the first time round, and it makes several procedural changes that we, on the Conservative benches, support.

Behind the legislation, we must all be mindful of the fact that Scotland’s social security programme provides crucial support for people in need across Scotland. People must have confidence and trust in the system, and we all know that we cannot afford to let them down, especially in these uncertain times during the pandemic.

An aspect of the bill about which I felt strongly earlier in the bill process is suspended payments. The provision was not included when the bill was introduced, but I believed that it was crucial to ensuring fairness and understanding the changing circumstances of claimants and their families. Jon Shaw of the Child Poverty Action Group emphasised its importance to the committee. He told us:

“Simply stopping entitlement in these circumstances will create further problems around passported entitlement to reserved benefits. There may be gaps in entitlement even if the benefit is later reclaimed. We believe amending the Act to allow for the suspension of payments will be the most effective way to deal with these issues.”

A number of other organisations, including Citizens Advice Scotland and the Health and Social Care Alliance Scotland, also called for the ability to enable carer and disability benefits to be suspended rather than stopped. CPAG raised a further important point, stating that the ability to suspend payments would offer claimants greater flexibility and put a stop to the need for them to reapply.

The Department for Work and Pensions exercises the suspension of payments, and it was inevitable that the issue would arise in Scotland. However, we did not have the relevant provisions in the original version of the bill, as I said. CPAG reiterated the point in its written evidence, stating:

“The power to make an award of benefit but to suspend payment is used by the DWP in circumstances such as when claimants go into hospital or care homes, or are in legal detention. Payments are also suspended prior to terminating a claim when, for example, the DWP has lost touch with a claimant. All these issues will arise in the Scottish social security system.”

I am glad that the cabinet secretary recognised that deficiency and rectified the matter at stage 2.

As I said, claimants deserve dignity and respect. Section 7 of the bill, on terminal illness, will enable a wider range of healthcare professionals to certify that a person is terminally ill, in order to fast-track a claim for Scottish disability benefits. Under the 2018 act, whether someone is terminally ill is a matter for the clinical judgment of a registered medical practitioner based on guidance issued by the chief medical officer.

Given the fantastic work of Macmillan Cancer Support’s nurses, I am glad that it highlighted the following in its written evidence to the committee:

“Nurses will already be demonstrating and evidencing the required clinical competencies in line with the relevant NHS Knowledge and Skills Competency Frameworks for their roles. In this regard, they do not require ... specialist training to act under the terminal illness provisions, however, as with all professionals, nurses should be supported to access relevant Continuing Professional Development ... to keep their knowledge and skills up to date.”

By encompassing a wider range of appropriate health professionals with in-depth knowledge and experience, the bill will ensure that those who work the closest with terminally ill claimants can make valid judgments.

The bill offers crucial support for those who need it, but it is worth examining the Government’s wider record of delivery on a Scottish welfare system in order to see the wider context. As we know, all future devolved benefits delivery has been halted due to the coronavirus. Fortunately, we have been safeguarded in that the UK Government has agreed to continue to deliver the benefits on behalf of the Scottish Government until it is in a position to deliver them safely.

Nevertheless, that does not excuse the fact that the programme of delivery by the SNP Government has already been delayed, with full responsibility for the devolved benefits not being expected until 2025. What does that mean for Scots? It will be nearly a decade since the Scottish Government received powers over the devolved benefits before all cases are transferred from the Department of Work and Pensions to Social Security Scotland.

We, on the Conservative benches, very much support the bill at stage 3. It is an important and much-needed opportunity to make amendments to address issues that have been identified since the passing of the Social Security (Scotland) Act 2018, including through making provision for the introduction of the Scottish child payment.

I again thank those who gave evidence that helped to inform the bill process and that shaped the bill for the better.

16:10  

Pauline McNeill (Glasgow) (Lab)

Building a social security system that is fit for purpose clearly takes many years and a lot of hard work. I imagine that it must have been a very stressful day for officials and the cabinet secretary when they discovered that there were some omissions from the Social Security (Scotland) Act 2018. I put on record Scottish Labour’s thanks to the cabinet secretary, her officials and the organisations that have come together with the committee to come up with the changes that are needed.

We welcome and support all those changes. They will ensure a robust appointee system by putting into statute guidance for that system, including for adults with capacity who wish to be represented by an appointee. Nurses and other allied health professionals will now be able to sign off benefit forms, which will make it considerably easier for people to access benefits quickly. The bill will also ensure that fraud offences can apply to the proposed Scottish child payment and any other Scottish benefits that top up United Kingdom social security.

We know that the Scottish Association for Mental Health welcomed the cabinet secretary’s commitment to report annually on how often the powers to withhold harmful information from claimants is used in relation to applications for standard disability assistance and assistance on the ground of terminal illness, which will ensure a good measure of transparency.

I want to say something about the Scottish child payment, which the cabinet secretary spoke to the committee about last week. We know that applications will open in November, but someone need not apply if their child turns six before the February eligibility date. The cabinet secretary has put on record that that is because a “flood of applications” is expected, and that

“backdating provision would add a great deal of complexity”

and

“increase the risk of error”,—[Official Report, Social Security Committee, 24 September 2020; c 12.]

which would put pressure on the agency. She said that checking eligibility for each of the 14 weeks from November to February would introduce a huge burden for the agency.

I acknowledge the complexity of the matter and I know that the cabinet secretary has said that she will work on the question of backdated payments, but I believe that there will be a loss to many families whose child is not yet six when applications open but who will not get the benefit. They will see that as unfair, and that is disappointing.

I want to make some remarks about automation. Mark Griffin—who has served on the Social Security Committee since its beginning—and I raised that issue and we continue to raise it. I acknowledge the cabinet secretary’s support for that idea. Given that the Scottish child payment is a passported benefit and that the Scottish Government has the data on exactly who is entitled to it, it seems ripe for automation. I appreciate that the cabinet secretary is concerned about the time that it would take to build that into the system, and we do not want to delay payments, but I put on record that Scottish Labour wants to see a commitment to automation of the Scottish child payment at a future date. We would like to discuss with the Scottish Government whether a timetable for that can be set. It may well be that, as we move into the next parliamentary session, that is a matter for a future Administration, but I hope that someone can pick up the issue.

I remain concerned that those in the most extreme poverty might not apply for the benefit—I think that probably everyone involved has that concern. We should continue to look at the most effective ways of advertising the benefit. People who are entitled to other benefits need the opportunity to see that they might be entitled to the Scottish child payment.

We need to remember that one in four children in Scotland still lives in poverty. The chief executive officer of One Parent Families Scotland, Satwat Rehman, said:

“39% of children in single parent families were living in poverty before COVID-19, and the effect of the virus and resulting lockdown has only added to the pressure for single parents who are balancing the responsibility of caring for their children and bringing in an income alone.”

In conclusion, Scottish Labour welcomes the uprating of benefits. When the Scottish Government introduced the Scottish child payment in June 2019, it made the commitment to uprate it annually in line with inflation. My colleague Mark Griffin repeated the call for that, and we are delighted that that is now in legislation. As the first payments of the Scottish child payment will start from the end of February, the duty to uprate will be effective from April 2022. I think that we all wish and hope that the work that has gone into the issue will ensure that there will be an extremely high uptake of the Scottish child payment.

Scottish Labour supports all the amendments, and I am pleased to support the bill at stage 3.

16:15  

Alison Johnstone (Lothian) (Green)

I, too, thank everybody who provided evidence to assist our scrutiny of the bill.

The main purpose of the bill is to make adjustments to our new social security system so that the Scottish child payment may be introduced. Research that was commissioned by the Scottish Government projected that relative child poverty could reach as high as an unthinkable 38 per cent by the early 2030s, so the child payment cannot come a moment too soon.

The Greens will be pleased to vote for the bill later today so that hundreds of thousands of Scots families can get much-needed support at a time when many—too many—of them will be under intolerable financial pressure. However, the Government must leave no stone unturned with the powers that it currently has to get additional money into the pockets of poor families.

In response to very reasonable calls to uprate the child payment by higher earnings growth or inflation, the Scottish Government cited

“a significant and persistent impact upon the wider Scottish budget”

as the reason for not putting that in place. However, the cost would be just £4 million in the first year. The cost of child poverty, which has been estimated to be over £20 billion a year across the UK, has an even more significant and persistent impact on the budget.

The Scottish Government’s intention is to begin to uprate the payment in 2022. Provisions to allow that to happen are in the cabinet secretary’s amendments today. However, a number of organisations have questioned why that is not being done at the first opportunity, in April 2021. That uprating would be almost three years—with three years of inflation and devaluation—after the new payment was first announced. That should be reconsidered.

I welcome the bill’s provisions to place a requirement on the Scottish Government to inform people about their eligibility for top-up benefits such as the child payment. It is vital to ensure that everyone who is entitled to the child payment is made aware of their entitlement and is supported to claim it. Recent figures from the Scottish Fiscal Commission show the size of that task. The commission has projected that 20 per cent of eligible families will not take up the payment when it is launched for under-sixes. That figure rises to 27 per cent for when the payment is fully rolled out in 2024-25. According to projections, at least 39,000 children may miss out when the payment is launched, and that is not even taking into account families who are not claiming the qualifying payments. I would be grateful if the cabinet secretary addresses in closing how the Government intends to support those 39,000 families to take up payments.

The Scottish Government has taken the opportunity of the bill to make a number of other changes, which are largely very welcome. Our hard-working nursing staff will often know terminally ill patients better than any other health professional, so the Greens welcome the bill’s provision to enable more types of health professional to help terminally ill people to access devolved benefits. I understand that that is primarily meant to apply to nurses.

I am also pleased that the Scottish Government has listened to the Poverty Alliance and other groups in establishing a power to suspend benefit payments without stopping a claim altogether. There are a number of circumstances in which that would avoid recipients having to reapply, and that is very welcome.

The Greens recognise the need for benefit appointees to receive benefits on a person’s behalf. Since stage 1, the Scottish Government has worked hard to incorporate safeguards, which are very welcome, but I note that the Law Society of Scotland is concerned that the provisions are not compliant with the European convention on human rights. The Social Security (Scotland) Act 2018 recognises that social security is a human right, so that was concerning to hear. Any assurances that the cabinet secretary can give on that would be gratefully received.

The Greens welcome the bill as a genuine attempt to make our social security system work more effectively and to pave the way for the Scottish child payment. Although I have some budgetary disagreements with the cabinet secretary, I respect the way in which she has engaged with me, the committee and stakeholders to improve the bill, which the Greens will support later.

16:19  

Shona Robison (Dundee City East) (SNP)

Although the Social Security Administration and Tribunal Membership (Scotland) Bill is a short, technical bill, it makes some important changes to the administration of Scottish social security with regard to appointees, terminal illness and topping up reserved benefits. The bill also extends existing provisions to allow judges from other jurisdictions to sit on Scottish tribunals.

Although the bill is technical, it will do some important things, including allowing regulations that create top-up benefits to include provisions on offences and investigations, which will apply to the Scottish child payment. One of the main reasons for the bill is the urgent need to create statutory offences in primary legislation in relation to the Scottish child payment. Without the bill, no such offences are in place in relation to top-up assistance, and no powers currently exist to create any.

The Scottish child payment has rightly been described as a “game changer” in tackling poverty, which illustrates the need for the legislation. According to the latest figures from the Scottish Fiscal Commission, across Scotland, 194,000 children aged under six could benefit. Once fully rolled out to under-16s in 2022-23, the Scottish Fiscal Commission estimates that there could be 499,000 eligible children. In my home city of Dundee, an estimated 5,200 children could benefit from the Scottish Government’s groundbreaking antipoverty payment.

I am sure that there will be a good uptake of the new benefit, particularly, as other members have said, during this time of added financial hardship and uncertainty. I have some sympathy with the point that was made by Pauline McNeill about the automation of the Scottish child payment. I hope that that is considered in due course.

Although the Social Security Committee, of which I am a member, was generally supportive of the bill at stage 1, the committee report stated that there were issues around the appointment of individuals to receive benefit payments on behalf of another person that required further discussion. I add my thanks to those who gave evidence, which has helped to improve the bill.

The committee report also made recommendations about non-disclosure of health information, top-up of reserved benefits, who can diagnose terminal illness and tribunal membership. The committee highlighted a concern about the lack of public consultation on the bill, and stated that the proposals on appointees in particular might have benefited from more public input. However, I am pleased that the cabinet secretary’s response to the report took on board many of the committee’s recommendations.

The Scottish Government’s stage 3 amendments allow the uprating of the Scottish child payment, and the intention is to uprate it annually in line with inflation. During the stage 1 debate, concern was raised over the issue of appointees, and the lack of appropriate procedures and necessary safeguards. At the committee’s meeting on 10 September, the cabinet secretary said, in response to those concerns, that the Scottish Government had

“engaged with our experience panels, the ill health and disability benefits stakeholder reference group and the disability and carers benefits expert advisory group”,

and that amendment 7 at stage 2

“requires the guidelines to include information on how ministers will determine the suitability of an appointee; how they will handle requests for reviews of decisions about appointments; how they will include persons with an interest in their decision-making processes; and—crucially—how they will undertake periodic reviews and handle any concerns that are raised. Amendment 7 also requires all that guidance to be developed with stakeholders and to be published.”—[Official Report, Social Security Committee, 10 September 2020; c 2.]

Amendment 7 also set out

“a set of safeguarding principles, including principles that are drawn from the United Nations Convention on the Rights of Persons with Disabilities.”—[Official Report, Social Security Committee, 10 September 2020; c 3.]

On the issue of diagnosing terminal illness, I am pleased that the Scottish Government has listened to the views of those who are on the front line, and is extending responsibility for diagnosing terminal illness for social security purposes to include registered nurses. That is very welcome, and will help to avoid delays and prevent additional burdens falling on doctors. That will help the social security chamber to cope with the arrival of significant numbers of new cases.

I will support the bill at decision time this evening.

16:24  

Graham Simpson (Central Scotland) (Con)

I speak as a former member of the Social Security Committee. I was technically in charge of the bill for my party for a very brief period, in my stint as shadow cabinet secretary for social security and other issues. It was a hugely successful period in which absolutely nothing went wrong. I had the pleasure of shadowing the cabinet secretary. I found her easy to work with, and I was encouraged by her willingness to work with the DWP for the good of everyone we represent. I hope that I have not caused her any issues with the good people of Dunfermline in saying that.

As I said in the stage 1 debate, this is a largely technical bill, so I do not intend to speak for long. I imagine that the chamber will be delighted at that.

The bill has four main themes: appointees, top-up benefits, terminal illness and tribunals. On appointees, it would allow ministers to appoint a person to receive benefit payments on someone else’s behalf if the claimant was a child. If the claimant is an adult, they must agree to the appointment. On top-up benefits, it would allow regulations that create top-up benefits to include provisions on offences and investigations, and that would apply to the Scottish child payment, which is due to start early next year. On terminal illness, it would allow medical professionals other than doctors to confirm that a person is terminally ill, for the purpose of fast-tracking their benefit claim. On tribunals, it would allow the temporary appointment of judges from other jurisdictions to sit on Scottish tribunals, including those that are dealing with Social Security Scotland benefits.

Jeremy Balfour and I lodged amendments at stage 2. That spurred the Government to lodge similar, but better, amendments. I and Mr Balfour, not being precious souls, considered that job done and performed a tactical withdrawal. We had amendments on the appointments, on the recovery of overpayments, on suspended payments, on overseas healthcare professionals and on eligibility for the Scottish child payment. Members have heard about them already, and I will not repeat what has already been said.

The bill might not be the most contentious in the world—in fact, it is not—but it is no less important for that. It is an example of how parties can work together for the greater good. Let us hope that that example rubs off on future bills in the Parliament—we can but hope.

The Deputy Presiding Officer

Stewart Stevenson is the last speaker in the open debate.

16:27  

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Congratulations to Graham Simpson, who has made the bold and, I am sure, entirely justified claim that nothing went wrong on his watch. Of course, he was careful to draw his frame quite narrowly, so I dare say that we might have revelations at another point in his parliamentary career that draw a distinction from the claim that he has made today. However, he and the other members of the committee have done a fine job in bringing to the Parliament a proposal on whose merits there is universal consensus.

In a perfect world, everyone who requires assistance would be able to act in their own interest at all times. In the case of juveniles, of course, such actions on their part cannot be unqualified, and an adult is needed to oversee their decisions. However, the voice of juveniles must be heard in important jurisdictions that affect their futures. The children’s panel is an excellent example of where the child’s voice is often decisive in determining what should happen in particular circumstances.

The appointment of someone to look after a child’s interests with regard to social security is not to be thought about casually. It is important that, as parliamentarians and legislators, we are somewhat cynical when we look at this topic. Why cynical? Because a small number of the people who are given that responsibility will abuse that trust. We need to make sure that there are provisions to cover that circumstance and penalties for those who take away from the deserving youngsters the emoluments that are provided from the public purse. The bill takes good steps towards ensuring that we can protect the interests of our youngsters. It also makes some more general provisions in that regard.

The bill also tidies up some of the imperfections of previous legislation. It would, however, be naive of us to imagine that there is a perfect act out there that reflects the perfect parliamentary process and absolutely everything that might have been relevant to what is going on. Indeed, when the Parliament was established by the Scotland Act 1998, one of the little errors that it contained—it was not particularly important, but it was an error—was that it made no provision for what should be done about who got elected if, in calculating the last position to be elected from the list, there was a tie. As the 1998 act was first passed, everyone who was tied for last position would be elected to the Parliament. Far from having a limit of 129 members, we almost had, in a sense, no limit at all. That might be trivial, and it was very unlikely to happen, but every bit of legislation that we might get ourselves involved in will have some flaw somewhere. If we are very lucky, it never matters and it never emerges. It is, therefore, right and proper that the Government brings forward legislation that deals with some of the things that were not quite right in the first iteration of legislation.

I particularly welcome the provisions that take beyond the view of registered medical practitioners the ability to confirm whether someone is terminally ill. I spent a brief period 56 years ago as a nurse in a ward where quite a few of our patients could reasonably be so categorised, and it did not require a doctor to know that. Even as a callow 17-year-old, I could see that mortality was beckoning for some of our patients, although I would not have been sufficiently qualified to give an opinion that could be relied on. Nurses are, however, often closer to their patients than general practitioners or other practitioners in hospital. They spend more time with them, and that is a good and proper thing to say.

I will conclude my short contribution to the debate by welcoming some of the things that Rachael Hamilton said. She said that we should not be working together with the UK Government. Curiously enough, I think that we have a collaborationist Government, which is a good thing because we collaborate across the chamber, and we collaborate with the UK Government, if it is in our mutual interests to do so. If Rachael Hamilton wants to argue that we should not be doing that, I will make common cause with her—

The Deputy Presiding Officer

Can I stop you there, Mr Stevenson? You might think that you have made a short contribution, but you are already a minute and a half over.

Stewart Stevenson

I am most obliged to you, Presiding Officer. As I peer at my screen, I can now see the clock. I will draw my remarks to a conclusion there by saying that I will be happy to support the bill at decision time.

The Deputy Presiding Officer

Thank you. I appreciate that it is difficult when you are attending remotely. Notwithstanding my little scolding of Mr Stevenson, we might be able to bring decision time forward to around 4.45. I say that in fairness to other speakers who are getting only four minutes.

16:33  

Pauline McNeill

There is not much to add. When Graham Simpson reminded us that nothing went wrong during his brief stint as shadow minister for social security, I was reminded that six members of the Tory party have joined us on the Social Security Committee: Adam Tomkins, Michelle Ballantyne, Gordon Lindhurst, Graham Simpson, Jeremy Balfour and Rachael Hamilton. They have all made an excellent contribution to the work of the committee; I say that genuinely, even to Graham Simpson, but I wonder whether there was a requirement to serve on the committee.

Mark Griffin and I, and I think Alison Johnstone, have served on the committee from the beginning of the session. It is worth while serving on the committee—even for a brief period—because what we have been doing, with the organisations that have been mentioned during the debate and the ministers, is creating from scratch a completely new social security agency for Scotland. It is clear that a great deal of hard work goes into that.

I will summarise a few issues. Moving the jurisdiction for the recovery of payments from the sheriff court to the First-tier Tribunal, which was proposed by Jeremy Balfour, is a significant and important amendment to the bill, because it allows easier access.

The extension of the duty to inform people of their eligibility is important, because it will ensure that ministers do that for the Scottish child payment and other top-up benefits. That duty is a distinct feature of our social security system that applies to other benefits and it is important that it applies to this one. It is a really important concept.

The bill also allows overseas healthcare professionals to determine whether a person who is terminally ill meets the definition, which is a niche area but it will turn out to be really important for someone at some time.

The suspension of assistance and the zero value that can be attributed to that is also an important provision, because, as the cabinet secretary said, it allows for easier starting of payments. Those may appear to be niche issues, but they will be very important for the people who rely on them.

I recognise that there is still a lot of work to be undertaken by officials and health professionals, but the uprating provision has completed some of that work in anticipation of the payment kicking in next year. I was pleased to hear Shona Robison talk about the importance of uptake and automation, on which she and others have made many comments, showing the broad-based support that there is for that idea. I appreciate that the cabinet secretary cannot commit to that because we will be dissolving the Parliament soon and it will be for the next Parliament to do it. However, I know that she is committed to the idea and it would be good if we could set up a timetable for a future Parliament to look at the automation of benefits as a sign of things to come.

Scottish Labour whole-heartedly supports the bill.

16:37  

Jeremy Balfour (Lothian) (Con)

This has been a consensual debate—so much so that even the convener of the committee has not felt the need to intervene.

Bob Doris (Glasgow Maryhill and Springburn) (SNP)

I was going to intervene on Pauline McNeill, who is the deputy convener, but I will intervene on Mr Balfour instead to put on record my thanks to fellow committee members. The Government informed us of the short timescale for scrutiny of the bill and the committee has done Parliament and the people whom we aim to serve proud. I thank the committee members for all their support in doing that.

Jeremy Balfour

I thank Mr Doris—that is probably the most positive comment that he has made in the past four and a half years. [Laughter.] I was about to say that the committee has worked really well on the bill in a very short time. Having been slightly rude to the convener, I pay tribute to him for the fact that we were able to take evidence from which both Opposition MSPs and Government were able to bring forward suggestions and amendments, which has meant that we have ended up with a bill that is much better than it started out.

It is very much a tidying-up bill, as many members have said, dealing mostly with technical issues, but they are ones that will affect people dearly. I will make three quick observations. It is appropriate that Jeane Freeman has just walked into the chamber as I say that one of the lasting things from the original Social Security (Scotland) Bill, which the previous cabinet secretary took through, will be the issue around terminal illness. Allowing people to get benefits as quickly as possible was a key principle that Parliament passed with that bill and people in future generations who are going through difficulties and hard times will be in a much better position because of it. I welcome the further amendments in this bill that tidy things up and allow the appropriate people to sign the forms in an appropriate way. Collectively, members across the chamber can be pleased with and proud of what we have done on that.

The second issue, which both Pauline McNeill and the cabinet secretary mentioned, concerns the appropriate jurisdiction for hearing appeals in regard to payments. It is wrong that, where we have tribunals, the process starts in the sheriff court. I welcome the cabinet secretary’s commitment to move quickly on that consultation so that those changes can come forward with—I hope—cross-party support but, more importantly, with support from the third sector and other stakeholders, so that we can have a fairer and more modern system that works well.

Finally, my one gripe is that even where we are today is still not where we should be. I accept that we have gone through a difficult seven or eight months and things have been put on hold, but we have to recognise that, as Rachael Hamilton said, even if it had not been for Covid, we would still not have had every benefit devolved within the current five-year session of Parliament. That is a disappointment—we should and could have made quicker progress.

There are people in Scotland who would wish that the new agency was looking after all their benefits. Although others have disagreements with the DWP, it is worth putting on record that, if it were not for the DWP continuing to deliver people’s benefits monthly into their bank accounts, those people would miss out. We can, and others will, criticise the DWP, but we should recognise that the DWP and the UK Government are helping to ensure that those payments happen and that the most vulnerable people are still being protected.

With those remarks made, I reiterate that we on the Conservative side of the chamber welcome the bill and look forward to it becoming an act and, more importantly, to its bringing forward practical ways that will enhance the lives of those who are the most vulnerable in our society.

16:42  

Shirley-Anne Somerville

I thank all members for their contributions to the debate, and everyone who contributed at stages 1 and 2 of the bill’s passage. Pauline McNeill was quite right to refer in her closing remarks to the “niche” issues that are addressed in the bill; some have called it a technical bill, and I have even heard it called a dry bill.

Graham Simpson quite rightly said that the bill is not contentious. However, as many members have pointed out during the closing speeches in particular, that does not mean that the bill is not important. It is vitally important, and it progresses a number of vital issues in relation to social security.

I thank Graham Simpson and Jeremy Balfour in particular for their amendments at stage 2. That constructive engagement is in large part why the bill is in such a good state as we move to close the final stage. If it is okay with Graham Simpson, I will not put his kind words on my election material in Dunfermline or elsewhere, but I thank him for his contribution, and I will certainly bear it in mind.

I fully agree that it would be good if all stage 3s were as simple as this one. I simply suggest that, in future, Opposition members should feel free just to vote for the Scottish Government amendments at stages 2 and 3, as they have done with this bill. I am sure that the Minister for Parliamentary Business and Veterans in particular, who has just arrived in the chamber, would be grateful for that too.

In all sincerity, the suggestions and input during the bill process have got us to a point at which we have managed to resolve matters positively in all instances, and I am grateful for all the work that has gone into that. The bill provides a package of improvements to the social security system. They are technical changes, but they are significant in what they will do.

As Jeremy Balfour rightly said, the provisions have real effects and will impact on people in their day-to-day lives. The legislation will ensure, for example, that on occasions when it is right for an individual to have somebody else appointed to act on their behalf, there are safeguards around those appointments and we will ensure that that is always the best and most appropriate relationship for the individual.

A number of members have pointed to the work to make the system for the suspension of payments better and fairer. In considering the contributions that have been made during this stage 3 debate, I point out to Rachael Hamilton that the work on the devolution of benefits has not been halted, although Covid has of course had an impact. That work is on-going, and we will report on a new timetable in due course. One of the important aspects as we move forward with discussions on that new timetable is the availability of health and social care staff to allow us to develop the delivery and implementation of the disability benefits in particular, together with the DWP. Indeed, we cannot forget that this is a joint programme. Covid has not just affected the Scottish Government or the UK Government as a whole; it has of course had a particular impact on the DWP. As I have done in the past, I again pay tribute to the work that the DWP has had to undertake during Covid to ensure that people are receiving support, such as it is, through the system.

Talking about timetables, I gently point out that universal credit was first announced in 2010; its introduction is now forecast to be completed seven years after the originally intended date of 2017. We should bear it in mind that the Conservatives do not exactly come to the chamber with a strong record when it comes to their work on the application of new benefits.

I welcome Stewart Stevenson’s deliberations, at the end of the open debate, on legislative imperfections. We always learn something new from Stewart Stevenson in every speech, including about the possibility of having an unlimited number of MSPs, which is probably not something that anyone would welcome the sight of. However, Stewart Stevenson rightly points out the challenges that arise when passing a very large piece of legislation, as with the Social Security (Scotland) Bill in 2018. Amendments can sometimes be lodged at a late stage, as was the case in relation to terminal illness at stage 3. It is not surprising if we wish to proceed with technical amendments to ensure that the legislation delivers what the Parliament wanted at the time but which it was not possible to include in that debate, after amendments were lodged at such a late stage. That is an example of making technical improvements to this bill that will make a real difference.

Pauline McNeill spoke again, quite rightly, about the automation of benefits. As she knows, I am particularly keen that we move on that. As I know she is aware, we have ensured that the Scottish child payment is linked to the three payments of the best start grant and best start foods, ensuring that there is one application for all. That will assist people. We will of course review the Scottish child payment and all its workings, including automation, when we review the Scottish child delivery action plan. I have committed to that in the past, and I am happy to do so again now.

Both Pauline McNeill and Alison Johnstone mentioned uptake, which is crucially important for the Scottish child payment. Both those members will be aware that the Scottish Fiscal Commission has increased its forecast for the take-up of the benefit, which is due in part to what is planned for communications and for the stakeholder engagement work that the agency has in train. I assure the Parliament that we take uptake exceptionally seriously. The entire purpose of the Scottish child payment is to make a difference to families the length and breadth of Scotland, and the only way that we can do that is by ensuring that we are fulfilling our obligations to improve take-up in that process.

Alison Johnstone made a point about the Law Society of Scotland briefing on the ECHR. I appreciate that the Law Society has concerns about whether the bill is compliant. In its briefing, it was pointing to amendments that were lodged at stage 2. I assure the Parliament that we are convinced that there are no difficulties with what we have proposed in the bill.

When the bill was introduced, the driving force was to ensure that the Scottish child payment was delivered as soon as possible. Little did we know then that, by the time we reached stage 3, we would be in the middle of a global pandemic. The Scottish Fiscal Commission has estimated that the Scottish child payment could support up to 194,000 children this year; that number has increased by 14 per cent since the Scottish Government released forecasts in 2019, which is largely due to the increased universal credit case load resulting from Covid-19. That tells us that this support is needed now more than ever. That is why I am proud that we are using the social security powers that are available to us to benefit children and families across Scotland at a time when financial security is uncertain and some people are struggling and face financial hardship.

It is our intention to open the Scottish child payment for applications in November, with the first payments being made in February.

As I noted in my opening remarks, we were happy to be able to agree to the amendments made at stage 2 and 3, across the chamber and in the committee. That is testimony to the hard work of the Social Security Committee and the Parliament to deliver a social security system that we can all be proud of.

The Deputy Presiding Officer

Thank you, cabinet secretary. When I am waving my pen and glowering at you, it means that you are running well over time. I might have to do other gestures; I will invent some.

That concludes the debate on the Social Security Administration and Tribunal Membership (Scotland) Bill.

The Presiding Officer

There are a number of questions to be put this evening. The first question is that motion S5M-22213, in the name of Bill Kidd, on a proposal for a committee bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the proposal for a Committee Bill, under Rule 9.15, contained in the Standards, Procedures and Public Appointments Committee’s 7th Report, 2020 (Session 5), Proposal for a Committee Bill — Complaints against MSPs — amendment of the Scottish Parliamentary Standards Commissioner Act 2002 (SP Paper 766).

The Presiding Officer

The next question is, that motion S5M-22845, in the name of Shirley-Anne Somerville, on the Social Security Administration and Tribunal Membership (Scotland) Bill, be agreed to.

We will have a division, because the question is on a bill. We will have a short technical break to allow members in the chamber and online to access the voting platform.

16:53 Meeting suspended.  

16:59 On resuming—  

The Presiding Officer

Thank you colleagues. I repeat, the question is, that motion S5M-22845, in the name of Shirley-Anne Somerville, on the Social Security Administration and Tribunal Membership (Scotland) Bill, be agreed to. This will be a one-minute division, after which there will be a pause to ensure that everyone has registered their vote. Members should vote now.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 109, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Social Security Administration and Tribunal Membership (Scotland) Bill be passed.

The Presiding Officer

The motion has been agreed to, so the Social Security Administration and Tribunal Membership (Scotland) Bill is passed. [Applause.]

The next question is, that motion S5M-22868, in the name of Humza Yousaf, on a legislative consent motion on the Sentencing Bill, which is United Kingdom legislation, be agreed to.

Motion agreed to,

That the Parliament agrees that the relevant provisions of the Sentencing Bill, introduced in the House of Lords on 3 March 2020, relating to transfer of community orders to Scotland or Northern Ireland, transfer to Scotland or Northern Ireland of suspended sentence orders which impose community requirements, making of sexual harm prevention order: effect on other orders and offences, effect of derogatory assertion orders, effect of order for absolute discharge and order for conditional discharge, execution of process between England and Wales and Scotland and consequential, repeal and revocations so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.

The Presiding Officer

I propose to put a single question on the two Parliamentary Bureau motions, unless any member objects. No member objects.

The question is, that motions S5M-22874 and S5M-22875, in the name of Graeme Dey, on behalf of the Parliamentary Bureau, on designations of lead committees, be agreed to.

Motions agreed to,

That the Parliament agrees that the Finance and Constitution Committee be designated as the lead committee in consideration of the legislative consent memorandum in relation to the Internal Market Bill (UK Legislation).

That the Parliament agrees that the Rural Economy and Connectivity Committee be designated as the lead committee in consideration of the supplementary legislative consent memorandum in relation to the Agriculture Bill (UK Legislation).

The Presiding Officer

That concludes decision time.

Before we move to members’ business, we will have a short pause to allow some members to leave the chamber. I ask members to be careful to observe social distancing while leaving the chamber.