Social Security (Scotland) Bill

The Convener

Agenda item 2 is the Social Security (Scotland) Bill. I welcome to the meeting Professor Gráinne McKeever. I know that she had a difficult time getting here, because the plane that she was on was delayed. I thank her for rushing to get here on time, which meant that we did not have to change the agenda, which we had to consider doing earlier.

Professor McKeever is from the Ulster University law clinic. Before we move to questions, I should mention that when members considered who to invite to give evidence on the bill, there was a distinct interest in looking at the experience in Northern Ireland. We invited representatives from the relevant Northern Ireland Executive department to give evidence, but in the unfortunate absence of a functioning Government, no one was able to participate today. Therefore, I hope that we can rely on Professor McKeever to cover some of the ground and to answer some of our questions—no pressure then.

Professor McKeever, I understand that you have been involved in research on social security and are a member of the Social Security Advisory Committee. I may come in later and ask you a few questions about that, if you do not mind. First, however, when progressing the Social Security (Scotland) Bill, what lessons can—and should—we learn from the history of devolved social security in Northern Ireland?

Professor Gráinne McKeever (Ulster University Law Clinic)

We are starting with an easy question then. The first thing to note is that the social security powers in Northern Ireland are fully devolved, so they are different from the package of powers that are available to Scotland, where there is a mixture of devolved and reserved powers.

The driver for devolution of social security in Northern Ireland is different from what it is in Scotland. The powers were devolved in 1920, when there was a drive to maintain parity with the rest of the United Kingdom, which was an ideological commitment by the unionist-dominated Parliament of the time. That maintained the system of social security in Northern Ireland in symmetry with that of Great Britain. Therefore, the evolution of devolution of social security in Northern Ireland has been different from the Scottish experience, although the political and ideological drivers in Northern Ireland are not the same as they were, because we have a power-sharing Government—well, sometimes we do.

In reality, the powers devolved to Northern Ireland have not been exercised to their full extent because of financial limitations. The immediate ambition to keep the Northern Ireland social security system the same as the rest of the UK’s meant that the Northern Ireland Executive had to meet the expenditure required to sustain particular contributory benefits. In Northern Ireland, the difficulty was the higher levels of unemployment, so more people were drawing on the social insurance fund and fewer people were paying into it. That led to a potential state of bankruptcy for Northern Ireland in the early 20th century, so the Treasury had to intervene financially. In order to maintain parity, there had to be financial limitations, which still apply. They limit ideologically and operationally the devolutionary differences that happen in Northern Ireland.

The lessons that I bring from Northern Ireland are on how you might seek to manage devolved powers within tight fiscal constraints. The ambition to do things differently must be tempered, of course, by the reality of what that would cost.

Part of the system’s development must come through intergovernmental agreement. The package of reforms from Northern Ireland that you will be interested in looking at are the supplementary payments—the mitigation package—that was agreed in relation to the UK Welfare Reform Act 2012, which came in in Northern Ireland in 2015. That came about as a result of a constitutional cliff edge—as is so often faced in Northern Ireland—where there was a political impasse. The UK Government agreed that devolved powers would be passed back to Westminster and in return a package would be agreed for Northern Ireland that would allow for additional payments to mitigate the worst impacts of welfare reform, recognising the particular circumstances in Northern Ireland. Without that intergovernmental agreement it is unlikely that the Northern Ireland Executive could have done what it wished to do in respect of mitigation. That is the first lesson. The UK Government involvement remains critical.

The second lesson is more general. There have been operational variations in Northern Ireland, notwithstanding the drive for parity and the need to maintain symmetry, and they are sometimes insignificant and sometimes significant. They relate as much to the administration of benefits and the culture of that as to the benefits themselves.

Working around the edges in social security can make quite a difference—that applies across the piece and not just in Northern Ireland. You can recognise exceptional needs in particular categories of claimants, for example, and make adjustments there. Working around the edges to improve the operational delivery of benefits might mean that although the policy design is the same, you can change the outcome. That is probably where Scotland is at the moment: looking at the outcome of the reforms that you hope to bring in as much as how the policy delivery will be considered.

The Convener

You seem to be saying that although social security powers are devolved to Northern Ireland and remain the same, Westminster operates the powers and tops up the Northern Ireland budget from the Treasury. Am I getting that wrong?

Professor McKeever

Yes and no. The devolved powers have always been fully devolved and the process in Northern Ireland is that we do a karaoke version of the British legislation—we change the name to Northern Ireland and change bits and pieces in the legislation, but the bill remains the same. The history of social security legislation passing through the Northern Ireland Assembly is that it has been an expedited process. There has not been much scrutiny, partly because of political control of committees—a unionist-controlled committee is less likely to wish to scrutinise in detail because it might lead to changes to the bill, which might upset the objective of parity.

The main difference was the UK Welfare Reform Act 2012, which produced substantial political differences when it came to the Assembly. It came at a time when there were other political issues at play in Northern Ireland and so it started to divide parties along fairly traditional lines. The legislation acted as a lightning rod for a lot of other political issues that were going on at the time. The legislation was defeated in the Assembly—a petition of concern was raised in order to block it from proceeding in May 2015. The only way to get the legislation through was to get the Assembly to agree to pass powers to put through the welfare reform provisions with those of the Welfare Reform and Work Act 2016. It was a temporary measure and has a sunset clause. There are also some limitations on what the Westminster Parliament can do. However, overall the devolved powers are now with the Northern Ireland Assembly—or would be if the Assembly were operational.

The subvention continues to come from the Treasury and that creates a disincentive to do things differently. There is a bit of a heads I win, tails you lose situation: if Northern Ireland created a bespoke system that generated savings in social security, those savings would be handed back to the Treasury, but if Northern Ireland created a bespoke system that cost extra money, that money would have to be found by the Northern Ireland Executive. The financial incentive to change things is limited not just by the fiscal limits on what the Treasury will give, but on the outcomes of differences that might happen.

The Convener

Thank you. Ruth Maguire wants to come in.

Ruth Maguire (Cunninghame South) (SNP)

If you will indulge me, convener, I will come to scrutiny later; first I have a different question on the powers.

The Convener

You can start with your supplementary question.

Ruth Maguire

Given what you have said, Professor McKeever, who is best placed to take that cross-border view of the interaction between new devolved and reserved powers? What is your advice to ensure that the interaction between them does not have unintended consequences?

Professor McKeever

Just to check the borders that I am talking about, do you mean those between Scotland and the rest of GB?

Ruth Maguire

Yes.

Professor McKeever

Okay. Normally, when I talk about borders, I talk about the Irish border, so that is a nice change.

I think that you are talking about scrutiny from the start of the legislation right through to implementation and delivery. My view is that there needs to be effective scrutiny of the regulations. Social security regulations are where social security happens. On the primary legislation, I know that some of the responses to the Social Security (Scotland) Bill have outlined that the legislation is quite bare and that there is very little detail on the face of the bill. That is becoming increasingly normal for social security legislation—the detail is fleshed out in regulation, so you need proper scrutiny of the regulations. That would apply whether or not there was a border issue.

The scrutiny process for regulations in the UK in relation to reserved benefits and in relation to devolved benefits in Northern Ireland is the Social Security Advisory Committee, which does not have a remit to scrutinise devolved legislation in Scotland, so that creates a gap. On the question of who might be best placed to carry out scrutiny, we could make the argument that the Social Security Advisory Committee would be best placed, but that argument has been lost. The amendment to the bill that became the Scotland Act 2016 very clearly took care of that.

My proposed arrangement would be to have a Social Security Advisory Committee-type body for Scotland that would scrutinise devolved legislation in Scotland relating to social security. There would be some degree of connection and co-ordination with the UK Social Security Advisory Committee so that there could be oversight of where the overlaps were. We do not know what those overlaps will be at this stage. We do not know what the Scottish devolved legislation will look like, so we do not know where the gaps will appear, but we know that gaps will appear.

In a piece for the Journal of Social Security Law, I proposed three potential models. One is to have a memorandum of understanding with the Department for Work and Pensions that would allow some scrutiny by the Social Security Advisory Committee in an advisory capacity rather than on a statutory basis, so that the committee could advise on devolved legislation. There would presumably be a reciprocal arrangement with an equivalent committee in Scotland. I am not sure what the appetite of both Governments for that would be.

The second model would be to have cross-membership, which would probably be the most advantageous in ensuring that there was cross-fertilisation of ideas, but again, that would require intergovernmental agreement. There is a model for that: the Administrative Justice and Tribunals Council, which is now defunct, had a main UK committee and Scottish and Welsh subcommittees, although sadly not a Northern Irish one. That council was able to bring the issues from Scotland to the main committee and bring the issues from the main committee back to Scotland, so the cross-membership model has existed. It would require intergovernmental agreement because the joint membership would have to be agreed by both Governments—or both Governments would have to agree on the overlapping members, at any rate.

In the interim, the most straightforward solution might be to have good working relationships between a Scottish committee and a UK advisory committee. That would rely on good chair-to-chair relations; it would rely on using the powers that already exist to invite presentations from Scotland and creating powers for a new committee in Scotland to invite presentations from the main UK Social Security Advisory Committee, to try to understand what the issues are for each committee and to work on co-operation and co-ordination where possible.

The Social Security Advisory Committee has good form on that—I stress that I am speaking as a member of that advisory committee rather than as the voice of the committee. However, the danger with that model is that it falls victim to other statutory requirements. Currently, the bulk of the Social Security Advisory Committee’s work is the scrutiny of regulations for GB and Northern Ireland. If that work is substantial, something else will have to give in order for that statutory commitment to be met, so there is a danger that that model might not work as well in practice as you might hope. However, it would be a good starting point for seeing what a future model would look like. You could test what the co-operation arrangements should be like. You could test what the extent of overlap and the need for it was because, at this stage, we do not really know what that need will be.

You are right to say that there are likely to be unintended consequences—there always are with social security legislation—and I think that bringing geographical circumstances into a complex system of assessing need is likely to produce unintended, unforeseen consequences at this point.

Alison Johnstone (Lothian) (Green)

Good morning, Professor McKeever. Your report on dignity and respect says:

“A commitment to dfignity and respect requires certain minimum standards”

and

“is an obstacle to the lowering of current standards”.

I understand from that that minimum standards, with regards both to how someone is treated by the system and the extent to which benefits support a minimum standard of living, are central to the idea of dignity and respect. I would be interested to know how you think that we can determine and then protect those minimum standards, especially in terms of the amounts that are paid.

09:45  

Professor McKeever

I wrote that report for the Equality and Human Rights Commission with two colleagues, Mark Simpson, who is the lead author, and Professor Ann-Marie Gray. We were asked to try to figure out what dignity and respect would look like, particularly in legal terms, and how that could be embedded in a social security system.

We could figure out dignity, because there are international human rights agreements that allow us to provide some conception of what dignity might look like. In legal terms, respect is very nebulous, so we did not find anything that would allow us to define it. However, I think that if you get dignity right and you get the culture right, respect will follow.

When we looked at what dignity might involve, we considered the existing international standards. In the briefing paper for this meeting, I set out some of those standards. In particular, we would recommend a close look at the International Covenant on Economic, Social and Cultural Rights and the European social charter, both of which provide an idea of what a minimum income standard might look like. Very few international instruments provide a monetary figure—understandably, perhaps, because it is an issue for each Government or Executive to figure out for itself, and the figure will differ depending on location, timeframe and so on. There is really nothing in the international human rights instruments that guides us on a minimum income standard, although lots of work has been done, for example by the Joseph Rowntree Foundation, on minimum income standards and what is necessary to survive—on what that looks like.

The value of the international instruments is that they do not just look at a subsistence allowance or an absolute definition of poverty. They go beyond saying that it is about people having a roof over their head and enough to eat; they say that there is a right to cultural and civic participation in society. It is about living rather than existing, and that is what provides the protection for dignity. It is a matter not just of having enough to survive but of being able to actively engage in activities that other citizens take for granted, such as having a cup of coffee or going round to someone’s house for a meal.

That would fit very well with the idea of a consensual definition of poverty in Scotland that is led by a co-production model. The idea of a consensual definition of poverty is becoming clearer, certainly through the responses to the bill. A model to measure that already exists. The poverty and social exclusion surveys provide an indication of what the public thinks are basic elements for everyday living. You then prioritise those and identify that people now understand that part of daily living are things such as two good pairs of winter shoes, a suit for an interview or the ability to take your kids to the seaside for a week. Those change over time. Twenty years ago, nobody would have considered mobile phones to be necessary, but now the poverty and social exclusion surveys say that they are necessary.

A monetary figure on its own will not necessarily give you the best definition of dignity for the Scottish Government to look at in terms of the international conventions and human rights instruments. In the report, we recommended embedding international standards in primary legislation in Scotland, using the same model as the Human Rights Act 1998. That legislative model could work. It would allow you to select what it was that you wished to embed that would provide legal protection for those principles. In and of themselves, there is not much common law behind them, and certainly not in the UK outside Scotland—and I am not familiar enough with Scottish law to be able to state what the common-law position on dignity is.

Alison Johnstone

I have a question that follows on from your comments. It seems that you would agree that the uprating of benefits is absolutely essential to any commitment to dignity and respect.

Professor McKeever

That definitely has to be a consideration, because benefit levels are set at a basic floor. That floor has fallen while living standards and costs have increased, so the differential between benefit levels and what it costs to live has increased.

There is clear evidence that people on benefits do not have access to dignity, if that is all the income that they have to survive on. We have seen an increase in food banks, for example, and there is lots of research that looks at the indignity of people having to rely on food banks as an absolute measure of poverty.

It is a question for Governments in terms of resource priority but, if you look at it purely from a dignity perspective, you will want to start with what is defined as the minimum income that is necessary to enjoy the rights of citizens and of citizenship. That might include, for example, people being able to feed their family without fear, meet their rent, take their kids to the cinema once a month or do something else with them, and enjoy life as other citizens do. I would look to the minimum income standards as a guide to what you might wish to set benefit levels at.

Alison Johnstone

Northern Ireland seems to have a more extensive set of mitigations for welfare reform than Scotland, most notably for disability living allowance and the personal independence payment. They are set in law as entitlements, rather than being discretionary. Do you believe that that is advantageous?

Professor McKeever

That is part of what was optimistically called the fresh start agreement, which was the political agreement that allowed for the legislative consent motion that passed the devolved powers back to Westminster at the same time as an additional package to support mitigations in Northern Ireland was agreed.

The mitigations are a transitional, time-limited package. Those that you mentioned in relation to DLA and PIP include the transitional payment for someone who was on DLA and is unsuccessfully transferred to PIP—that is, they are not eligible for PIP but would have been eligible for DLA. There is a transitional payment to enable them to adjust to the position that they will be in in a year’s time. It is too soon to say whether that has been successful but, broadly, we can say that it has been advantageous, because it does not leave people on a cliff edge in quite the same way. It allows them to look into other possibilities, rather than just coming off benefit and having to figure it out.

The packages of mitigation payments were designed to deal with the impacts of welfare reform such as the cliff edge whenever people come off DLA and do not get transferred to PIP. They were agreed by Government and they do not come within the benefit cap—they are supplementary payments and are additional to the benefits that already get paid. We do not know whether they will survive beyond the four-year period for which they are currently scheduled to last.

There are some interesting measures that are worth looking at. There are also things that have not happened yet that will be interesting, such as the cost-of-working allowance, which will offset the issues to do with universal credit work allowance. We hope that the measures will be successful, but I have not seen enough of their implementation to be able to understand exactly how they are working. We will have to keep an eye on that.

Adam Tomkins (Glasgow) (Con)

Thank you for joining us this morning.

I was a member of the Smith commission, which designed the package of welfare devolution that was legislated for in the Scotland Act 2016. The Smith commission looked at the experience of Northern Ireland, but we did not look at it for very long because we quickly and unanimously realised that it was not what we wanted for Scotland. The whole point of welfare devolution in Scotland is to enable the two Governments to pursue different welfare and social security policies, if that is what they choose to do, which is the opposite of the constitutional position in Northern Ireland. The package in Scotland is expressly designed to not replicate anything much about the Northern Ireland experience.

However, with that in mind, I am interested in the extent to which the current constitutional settlement in Northern Ireland enables the Government there, when it exists, to pursue different policies from those that are preferred by the UK Government. It would be helpful if you could flesh that out.

In particular, I want to know whether there is any equivalent in the Northern Ireland settlement to the no-detriment principle in Scotland. As I understand that principle, if the Scottish Government wanted to legislate for welfare benefits that were more generous than benefits in the rest of the UK, the money to do that would have to be found within the Scottish budget—and, vice versa, if the Scottish Government decided to make social security benefits less generous than benefits in the rest of the UK, it would keep those savings in the Scottish budget and would not hand them back to the Treasury. It sounded to me as though—I want to make sure that I have this right—the opposite is the case in Northern Ireland.

Professor McKeever

I will answer your questions in reverse order. We do not have an equivalent to the no-detriment principle.

It is a grand statement to say that there was a constitutional objective behind the devolution of powers to Northern Ireland in 1920. It was a settlement following a civil war, so the constitutional objective, or focus, was not on social security at that time—there was not even a welfare state in 1920. That is just how things have evolved.

The no-detriment principle does not apply. It is not in our constitutional settlement—it is not in the Northern Ireland Act 1998, which followed the Good Friday agreement.

If the Northern Ireland Executive made more generous provision for social security benefits, that would have to be met by the Northern Ireland Executive. However, if we provided a system that produced savings, those savings would, in effect, have to be handed back to the Treasury. There is a complex pathway to get to that conclusion, but that is very much what the Treasury position is. Contesting that position would undoubtedly require complex arguments on both sides, but the overall conclusion would be that that money would be handed back; it would not be kept by Northern Ireland.

On how the constitutional settlement allows Northern Ireland to deviate, there is no limit on what the Northern Ireland Assembly can do to deviate from the social security system in Britain; the limit is around fiscal ability. Section 87 of the Northern Ireland Act 1998 recognises the symmetry between the two systems and talks about the need to have agreement between the Secretary of State for Work and Pensions and the Northern Ireland Government on the extent to which deviations might happen. However, there is no constitutional imperative to maintain parity—and there is no constitutional objection to parity being breached.

If Northern Ireland were to create a bespoke system, it would have to agree to finance the new information technology, the administration and the additional costs that might come from such a benefits system. It would have to look at all the implementation issues itself. I do not think that the UK Government has any particular issue with Northern Ireland doing that—I have never seen that raised as a concern by the UK Government—but we are bound by the fact that we rely on Treasury subventions, so the financial incentive to change is not there.

Adam Tomkins

There is no equivalent in Northern Ireland to our fiscal framework. Under our fiscal framework, the UK and the Scottish Governments agreed to share the implementation costs of social security devolution. A payment of £200 million is going from the Treasury to the Scottish Government to help it to set up the infrastructure that it needs to develop devolved social security regimes. There is no equivalent of that in Northern Ireland.

Professor McKeever

Not to my knowledge, but this is not my area of expertise. There are fiscal agreements with the Treasury on how and on what basis subventions happen. There are three agreements in particular, but I cannot think off the top of my head what they are. I would be happy to give the committee more information at a later date if that would be helpful.

My reading of the provisions is not that the devolutionary powers or costs would be shared by the UK Government; as I understand it, if Northern Ireland wants to do something differently it is free to do so, but it would have to do that off its own bat.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning. You provided us with a copy of your article in the Journal of Social Security Law, in which you argue that

“the role of the SSAC”—

the Social Security Advisory Committee—

“in providing independent advice to the Scottish and UK Governments to ensure coherence across related benefit systems would seem to be required.”

I have a few questions about that. Is a statutory body necessary for independent Scottish scrutiny? What would be necessary for such a body to be effective? Somewhat aside from that, but on a related point, should the Scottish Parliament have a role in being a scrutiny body? What is the role of elected representatives in scrutiny?

10:00  

Professor McKeever

I will take your questions in order. You asked first whether an independent body would need to be statutory. Things are always better protected when they are in statute rather than at the whim of a Government, so my instinct is that such a body should be statutory. It would be an arm’s-length, independent body whose remit would in some ways be similar to that of the Social Security Advisory Committee; it would have a remit to review how social security works and to review draft legislation. Putting a body in statute protects its independence, because it is not subject to political whim in the same way.

A few years back, we saw a bonfire of the quangos under the coalition Government, so we are familiar with the idea of reducing the role of arm’s-length bodies—some for good reasons and others for not-so-good reasons. Having a statutory remit for a body marks it out as having a function with a particular value. Of course, it can be removed from legislation with the consent of Parliament and of the Government, but putting it in legislation sends a clear message that it is a necessary feature of scrutiny and that there has to be an independent body that is there for a particular purpose, which provides additional constitutional comfort to the Parliament in holding the executive to account. The body would not have to be in legislation, but I guess that I conceive it in that way because that mirrors the creation of the Social Security Advisory Committee.

Your question on what is necessary for a body to be effective is a good one. I draw on my experience of the Social Security Advisory Committee—I am speaking as a member of but not as the voice of the committee. What I find to be effective there is the range of expertise. There is technical expertise from members such as Judith Paterson of the Child Poverty Action Group Scotland, who has clear and detailed workings on the regulations and who can drill down into the technical detail and understand where legislation does not fit with definitions in other pieces of legislation, so that the outworkings of how something will play can be clearly identified and problems avoided from the outset.

The range of expertise is critical. I hold the statutory position for a Northern Ireland member, which provides some oversight of where things are different in other areas and allows us to consider issues from different angles. There are positions for people with experience of disability and people with experience of employers and employment, such as the Trades Union Congress representatives who have been on the committee in the past.

Bringing a range of expertise makes committees effective. Sometimes, committees can be ineffective because there is a cacophony of voices, but effectiveness comes from having different input to see how legislation fits with other legislative measures, what the output will be like and how legislation could be changed to avoid unintended consequences and soften the edges.

It is absolutely not the case that such a committee should have a role in demanding policy change. That is not the business of an independent, arm’s-length body, and that brings me to your third point—on whether there should be a role for the Scottish Parliament. I take it that you mean a role in such a committee, rather than generally, or perhaps you mean both.

Ben Macpherson

I am interested in your opinions on both.

Professor McKeever

The value for the Social Security Advisory Committee is that it does not have parliamentary members involved, so there is no ideological objective that dominates or has an influence. That is my personal view on whether there should be parliamentary representation on an independent advisory committee; I think that the point of an independent body is that it is independent of Government influence and is able to make recommendations on legislation rather than on what policy intent might be preferred.

In the scrutiny of legislation by the Scottish Parliament, that process has to happen. You have to be able to hold the executive to account, whatever that executive is. The difficulty with the scrutiny of secondary legislation is that Parliament cannot do anything about it once the draft regulations are laid—it can accept or reject them, but it cannot change them. The difficulty arises when you like most but not all of what is happening, because then you have to choose whether to throw the baby out with the bath water.

Creating an independent committee and giving it the power to scrutinise legislation before it is laid would be effective. Such scrutiny is one of the most valuable and effective things that the Social Security Advisory Committee does. That committee can make changes around the edges to some issues that affect implementation. It is looking at the outcome rather than aiming to change the policy process or objectives. That means that the legislation that comes before Parliament is more robust and has a better chance of avoiding unintended consequences.

Parliament’s ability to scrutinise will be fairly limited, because there will be a significant volume of legislation as a result of the devolved powers. In the previous parliamentary year, when there was no major welfare reform, the Social Security Advisory Committee scrutinised 44 pieces of legislation. Most of the legislation was technical and we dealt with it without any major incidents. Some regulations were quite controversial and we consulted on them. The Westminster Parliament has a second chamber, but its ability to scrutinise 44 sets of regulations was limited. The Scottish Parliament has only one chamber, so there will be a huge burden on parliamentarians, who will not necessarily have the time or expertise to provide that scrutiny.

Having a body that is independent of Parliament provides some constitutional comfort. That body would advise the Parliament, although the decision on whether to take the advice would be another matter. That approach would give the legislation a chance of delivering the policy intent. That is the trick with legislation. The policy intent may be quite simple—for example, universal credit involves the simple idea of simplifying the benefits system so that people claim just one benefit. However, the delivery of that may turn out not to be so simple. The ability to see what the legislation looks like and to scrutinise it effectively will allow the social security system in Scotland to develop. You want to get that right. You do not want to keep going back and changing the regulations, because that takes yet more scrutiny and more parliamentary time.

The absence of a second chamber is a consideration. The House of Lords does not always send a piece of legislation back to the Commons and refuse to implement it, but it provides an important check and balance on the executive. You want to have that structure in place so that the system is protected, rather than simply saying that, as the Scottish Government wants us to look at principles of dignity and respect, we can trust it. That may well be the case now, but you will want the system to endure. You will want to put something in place now to ensure that the system lasts and includes scrutiny that allows the executive body to be held to account and to deliver the policy as intended, rather than in an unintended, adverse way.

Jeremy Balfour (Lothian) (Con)

Thank you for the information that you have shared with us so far. I seek your advice on residence issues and entitlement to benefit. We could end up with differential payments north and south of the border—I am talking about the England and Scotland border and not about the Irish context. How would that work? For example, if I were successful in getting PIP in Aberdeen, but I then moved to Plymouth to work, how would that work if the Scottish award were higher? Would you expect an intergovernmental agreement that the higher payment would last for a certain period, or would I have to reapply for PIP south of the border? Another example might be an older person who is on attendance allowance in Birmingham and who moves north of the border for family reasons. The rules and regulations and the entitlement might be slightly different. Have you any experience of how that might work?

Is there a minimum period for which someone has to have been resident in a country before they can claim an award? As the legislation stands, I can live anywhere in the UK and claim the new awards that will come out of the Social Security (Scotland) Bill.

Professor McKeever

That is a really tough question, which I am not sure that I will be able to answer to your complete satisfaction. We have some experience in Northern Ireland of people moving geographically. Many of the regulations that the Social Security Advisory Committee scrutinises relate to the geography of the GB jurisdiction. The fact that there have to be mirror-image regulations for Northern Ireland means that a shortfall can arise in moving from Northern Ireland to GB. More often than not, that has been managed through an interdepartmental agreement whereby, if someone who has claimed a benefit in GB moves to Northern Ireland, their entitlement to that benefit will be maintained. However, it is sometimes necessary for the issue to be raised and legal action to be threatened—for example, a pre-action protocol letter might have to be issued—to identify and address the position, because it is not always obvious that people will want to move into or out of Northern Ireland. There are interdepartmental methods of addressing that, which can be straightforward. They are straightforward in the sense that the benefit entitlement—the provision that is made and the criteria for the benefit—will be the same in both jurisdictions.

The situation becomes a bit more complicated when it comes to moving from Aberdeen to Southampton, and I am not sure that I know the answer to your question about how that interaction might work. If someone can receive the same benefits in the two countries, that will be fine, but if we are talking about two different sets of benefits, a protocol will have to be arranged to provide certainty for claimants and protect them if they move. It is probably advisable for that protection to be time limited. In that way, people could move for a short period and then return, or they could move for a short period and decide to stay but have time to make a new application, if that was required because the relevant benefit was a different benefit with different entitlement criteria and a different payment.

There are minimum periods that relate to people moving out of GB or Northern Ireland. When people cross our border between the north and the south, they move to a different jurisdiction with a different legal system and a different benefits system. We have to have provision for that, because there is a lot of cross-border movement. Such provision tends to be on a time-limited basis to people who are out of the country for a certain time. That period might be four weeks—it depends on what the benefit is. For housing benefit, it might be four weeks, but exceptions might be built in to extend it to 12 weeks for victims of domestic violence, for example. It might also be extended for people who work overseas, such as members of the security forces.

There is guidance on how to model such arrangements, but the difficulty will arise when two different types of benefits are involved. There could be a time-limited period whereby someone could take their Scottish devolved benefit with them to Southampton—they could maintain that for four weeks, for example, or for longer if they were moving because they were a victim of domestic violence.

Jeremy Balfour

Should that be dealt with in regulations or should some kind of definition of the principle be in the heart of the bill?

Professor McKeever

Ideally, the question would be dealt with in the heart of the bill, because the bill will provide the legal certainty that people will look for when it comes to dignity. That will involve people knowing what they will be entitled to in the face of changing circumstances. People will want some legal certainty; they will want to know that an element of the rule of law will apply in such situations. The difficulty might be that a principle could be put in the bill that could not be delivered, so there would need to be an understanding that the principle could be delivered by the Scottish Government and that agreement could be reached with sister departments in Northern Ireland and the rest of the UK.

In Northern Ireland, the way in which time-limited periods and periods for continuing to receive benefits while out of the country work is through regulations—that is the case for housing benefit, for example. That is a way of responding to changing circumstances that arise, and it might be a way of negotiating differences that become apparent as the Scottish system develops.

Pauline McNeill (Glasgow) (Lab)

What you said about the importance of having a social security advisory body is extremely helpful. You said some other things about scrutiny. Because this area is so important, I want to go over it and make sure that I understand what you said.

I am clear about the importance of a social security advisory body and what it can do. You went on to talk about a memorandum of understanding with the DWP to allow some scrutiny of Scotland’s social security legislation, and you talked about cross-membership through an intergovernmental agreement. I want to understand how those might fit together. The final element is the Scottish Parliament committee system having a scrutiny role and a role in making recommendations and policy. Anything you can add to explain to the committee how you think it all might fit together would be helpful.

10:15  

Professor McKeever

The memorandum of understanding idea comes from the existing relationship between Her Majesty’s Revenue and Customs and the Social Security Advisory Committee. When the SSAC was set up, it scrutinised social security benefits, which were contained within one department. Then tax credits came along and HMRC had responsibility for that, but it became important in social security terms for them to be under a scrutiny provision. The arrangement was that there would be a memorandum of understanding with HMRC that the SSAC could review the regulations. It has no power to take them on formal reference, so the committee’s role is only advisory. The memorandum of understanding means that we do not have a statutory power to take HMRC regulations on formal consultation. If we saw something coming through that we felt was insufficiently supported by the evidence, for example, as we have in the past, our options are fairly limited. We do not have the power to say to HMRC that it should change the regulations. A valuable way of working is to talk to officials behind the scenes to ask them to look again and see whether amendments or adjustments can be made.

It is possible to encourage co-operation. It does not always work, but it is a way of engaging two departments that otherwise have very different ambitions. It is fair to say that the ambitions of the DWP on social security benefits are very different from those of HMRC.

If we assume that there will be a Scottish version of the SSAC, that model could work to get the two committees together to allow some discussion between the two, some scrutiny and some interaction to begin to see where the overlaps lie so that one committee can adjust its advice to the UK Government and the other could adjust its advice to the Scottish Government, depending on how those overlaps played out. Of course, that will require intergovernmental agreement so I am not going to assume that it will happen. I am not going to assume that either Government would be content for that to happen.

Cross-membership would mean that there would be a position on each committee for a member of the other committee. That position would presumably be reserved. The Northern Ireland position, for example, is a statutory position to give insight into what happens in Northern Ireland. That is not an ideal position because, if I do not speak for the Social Security Advisory Committee, I sure as heck do not speak for Northern Ireland, and the idea that I can presents some difficulty. The idea of having a committee behind that Scottish voice or UK voice is more helpful. It would allow for the chair of a Scottish committee, for example, to have a position on the UK Social Security Advisory Committee.

Again, there might be some issues around that. Appointments to the UK Social Security Advisory Committee are made by the UK Secretary of State for Work and Pensions. My position is run past the Northern Ireland ministers, but it is ultimately the decision of the UK minister, and the Scottish Government might not wish to entertain such an arrangement. The quid pro quo would be that, on the Scottish committee, the position reserved for the UK member would effectively be appointed by the UK Government. That is where political difficulty might lie.

I do not think those issues are insurmountable but, again, I do not wish to assume that agreement would be reached. The third option is, therefore, to have two parallel committees that have some informal arrangement between them to keep in touch with each other and to co-ordinate and co-operate on a more informal basis. That could be accommodated within the work that the Social Security Advisory Committee does. For example, at our last meeting, we had a presentation from the Northern Ireland department on issues affecting Northern Ireland, and that is standard.

We do stakeholder visits—we did a stakeholder visit to Scotland, we are due to go to Wales this year and we have been to Northern Ireland—so there is form there for the Social Security Advisory Committee to take account of what is happening in Scotland and to adjust its recommendations on that basis.

It is by custom and practice that we have a position for a Scottish member—in fact, we currently have two Scottish members. Dr Jim McCormick is the other member from Scotland, along with Judith Paterson, so that is helpful. We also have a customary position for Wales. Those members from the other devolved areas can bring expertise, but it would be much easier to bring that expertise from a committee that was looking at the issue in Scotland than it would be for an individual to have their own insight into what was happening.

Is that helpful?

Pauline McNeill

Yes. So the cross-membership would relate to the social security advisory body. In other words, there would be someone from each Parliament on the corresponding committee to get some—

Professor McKeever

It would not be someone from each Parliament; it would be someone from each committee. The committee would be an arm’s-length body; it would not be a parliamentary committee. You asked about the role of the parliamentary committees in the process. The advisory committees would be arm’s-length bodies; they would not be parliamentary committees. I am not proposing that a member of the Social Security Committee here would go and sit on the Work and Pensions Committee; that is a whole different ball game, and I am not even going to get into that.

There is a role for this committee to scrutinise legislation and certainly this committee and its predecessor have good form on investigating the impact of welfare reform. Some really valuable work has been done. However, I worry about the committee’s capacity to do that, because there will be so many issues with welfare reform and devolved benefits. I think that your plate will be pretty full and your ability to provide detailed technical scrutiny of the draft regulations might have to be considered. Certainly, our recommendation in the report for the EHRC was that that should be kept under close scrutiny because the committee might well become overwhelmed and therefore not be able to discharge that duty. Having said that, I think that there is a clear role for the committee to understand what is developing, so it could take evidence from the UK Social Security Advisory Committee as well as from the proposed Scottish social security advisory committee to be informed on that.

The other aspect of the Social Security Advisory Committee is that it has a remit to do independent research. That is its other statutory function. If a new Scottish body had a similar statutory function, that might work very well with your remit; you could identify issues that would be of value to this committee for that new advisory committee to look at. We speak to officials, lots of stakeholders and Government ministers to identify what we think it would be useful to look at in our independent work programme, so there might be additional complementarity there between the parliamentary committee and the independent committee that would scrutinise regulations.

Pauline McNeill

Can that research and information be shared with the parliamentary committee?

Professor McKeever

Yes.

The Convener

As you have been talking about committees, I point out that we have had joint meetings with the Scottish Affairs Committee—it has been here and we have gone down to Westminster—and it is the intention of both committees to meet again. Would you say that that would be a good way to air the issues around what is devolved to Scotland and what is reserved to Westminster? It could, I hope, iron out some obstacles. Is that still a good way to go?

Professor McKeever

I would say so. I do not know much about politics—I am an academic, so that is my game—but it always seems to me that talking behind the scenes achieves quite a lot. Certainly, it has been my experience on the Social Security Advisory Committee that the head to head of the ministers is where the bold statements happen, but the hard work gets done behind the scenes, where individuals can agree on the extent to which changes can be made and the extent to which agreement might be reached. That political process would be very helpful in understanding what the issues are and how resolutions might be agreed, and in making compromises where possible on the issue of scrutiny over the border and how that would work.

Mark Griffin (Central Scotland) (Lab)

On the mitigation package that was agreed, my understanding is that the Northern Ireland Executive came to a policy decision and then it was passed to the DWP to implement that operationally. Is that correct?

Professor McKeever

No. On the supplementary payments and mitigations that Northern Ireland had, a political agreement was reached with the UK Government that there would be a mitigations package. That was then handed to a working group chaired by Professor Eileen Evason, who, working with other members, identified a set of measures that she thought would be effective in mitigating the impact of welfare reform.

Those recommendations were put to the Executive, which agreed them, and the implementation now falls to Northern Ireland. Sorry, I will correct myself—the legislation to implement the mitigations package for the most part falls to the DWP, because of the legislative consent motion. However, there are some mitigations that it will not be possible for the DWP to implement; for example, we are still awaiting some mitigations in relation to universal credit. Mitigations relating to the legacy payments have been implemented by the DWP. Others will have to have Assembly approval, so we are in a tight spot because we do not have an Assembly, but those powers will pass back to the Assembly if and when it is restored. It will be up to Northern Ireland to implement those measures, if they are still outstanding. Delivery will be through the Department for Communities, which will be the body that implements the supplementary payments system and advises on how claimants can access those payments and on the implications of that access.

Mark Griffin

Is that the right way for the Scottish Government to go as well? For example, would it be advisable for the Scottish Government to pursue administering on its own the powers to top-up or to create a new benefit, rather than contract or tender to the DWP to implement those?

Professor McKeever

My instinct is to say yes, because part of what we identified in the report on dignity in social security is that it is not just about what is put in a piece of legislation; it is about cultural changes and shifts in attitudes.

My colleague Dr Mark Simpson has done work on the cultural differences in social security administration between areas. The ability in Northern Ireland to sanction less, for example, seems to be partly related to a Northern Ireland-specific cultural attitude of not wishing to rock the boat and so not necessarily sanctioning because doing so might have other ramifications—which, I hope, would not apply in Scotland. There is also the ability to communicate more readily and effectively with claimants, so that we can understand what their behaviour is and help them avoid sanctions or breaching other conditions, or falling foul of application processes.

If you are going to devolve the legislation, it makes sense to keep the devolved Administration involved in that process. I think that that has been more effective in Northern Ireland than handing the administration back to the DWP. That view is informed by attitudes rather than a constitutional position on who should administer the benefits.

Mark Griffin

How simple has it been for the Governments to agree on the flexibilities in universal credit and administer them? In Scotland, we have had some legislation on payments directly to landlords, but there seems to be difficulty related to the technicalities of split payments. I think that the Government and Parliament would be minded to go ahead with that, but there is some debate about the technicalities of being able to implement it. What has the situation been in Northern Ireland?

Professor McKeever

The situation in Northern Ireland is that we have not yet introduced universal credit. You have got me a week too soon—we introduce it on 27 September—so we have not seen how those technical details will play out. However, social security is bedevilled by technical difficulties so, if you were to be concerned by technical difficulties in social security, you would not do anything. I do not mean to make light of the situation; you are right that there are lots of difficulties. I know that the Work and Pensions Committee took evidence yesterday on the difficulties with universal credit payments reaching landlords. I do not underestimate how much work will be involved in overcoming the difficulties, but I think that it is a worthwhile endeavour, because it will make a difference to the experience of universal credit for many claimants, so something has to be done.

We do not yet have the experience of how it is going to work out in Northern Ireland. We are already having some difficulties with recognising identity certificates. Under the Northern Ireland Act 1998, Northern Irish citizens can have an Irish passport, a British passport or both. However, if someone submits an Irish passport to the DWP, it does not work so well, because the DWP does not pay benefits to Irish citizens—except that it does in Northern Ireland. We already see some glitches happening and they just have to be worked through. I do not know what the solutions to those difficult questions about split payments will be because, although the legislation is there, we have not tested it. In a year’s time, I might be able to come back with some solutions.

The Convener

Thank you for taking the time to speak to us, Professor McKeever. I was going to ask about the Social Security Advisory Committee, but you have already given us a full explanation in answer to other questions. Your evidence has been excellent.

The Convener

Agenda item 2 is continuation of our evidence gathering on the Social Security (Scotland) Bill at stage 1. We have two panels of witnesses. I thank our first panel for getting here so early on such a miserable day, and I welcome to the meeting Jessica Burns, regional tribunal judge on social security and child support issues; John Dickie, Child Poverty Action Group in Scotland; Peter Kelly, the Poverty Alliance; and Dr Jim McCormick, the Joseph Rowntree Foundation.

I will start with a general question that covers most of the bill. What are the panellists’ thoughts on the inclusion of principles in the bill and on the seven principles that are set out in section 1 and which are intended to underpin the new social security system?

Peter Kelly (The Poverty Alliance)

Thank you for the invitation to give evidence.

Given that the Poverty Alliance has worked on social security issues for many years now and has advocated the devolution of further powers to the Scottish Parliament, we are pleased with and welcome the process that this committee is part of. Like other organisations on the panel and in the voluntary sector, we have broadly welcomed the bill, its content and its principles. We have been talking about issues such as dignity and respect for many years, and it is important that those are reflected in the bill and that a human rights approach is given real meaning.

However, I suggest that there is one gap in the principles: the role of social security in preventing and tackling poverty. Perhaps that could be included.

John Dickie (Child Poverty Action Group in Scotland)

We welcome the principles that the Government has set out as well as its overall language about and its approach to social security, and we support the idea of embedding the principles in the legislation.

The key challenge now is to ensure that the Government’s principles and policy intentions and ambitions with regard to social security policy are translated into the detail throughout the bill. The principles should not be just a section at the start of the bill, and we are particularly keen to explore how they and the wider policy intent can be reflected in the detail of the legislation and the rules for social security.

Dr Jim McCormick (Joseph Rowntree Foundation)

I welcome the bill and agree with the comments so far.

As far as the principles are concerned, the bill could say more about genuine accessibility. The Government has already made important pledges on take-up. Figures this week from the Department for Work and Pensions show huge variations in the take-up of legacy Great Britain benefits, and there is a commitment in Scotland to try to do something about that situation and to perform better. To do that, we need to talk more about accessibility, and that will lead us into a conversation not only about the different channels that people can use, but about rights to independent advocacy and advice and understanding what the landscape across Scotland looks like, in order to make sure that we can realise that principle of accessibility.

There is a lot more to say about the balance between primary and subordinate legislation and so forth, but we might come on to that.

The Convener

I think so. Jessica Burns is next.

Jessica Burns (Regional Tribunal Judge, Social Entitlement Chamber)

Thank you very much for inviting me. I support what the other witnesses have said. My reservation is that the control of social security will not be entirely within Holyrood’s grasp and that there might be issues with how the public perceive the two parallel systems that are going to exist. There will have to be quite a lot of detail in the regulations. I know that there are the top-up powers, but it is not at all clear how they will work or how things will work across the border. I just want to express a warning and some concern about that.

The Convener

Members have various questions about the principles and about subordinate legislation, but I note that Jessica Burns mentioned a bit of difficulty in that respect. Is your concern similar to Dr McCormick’s comments about accessibility? Is it about people not just being able to access benefits, but being told which benefits they are entitled to under the devolved powers?

Jessica Burns

It is all about accessibility. It will depend a lot on the provision of advice and assistance. The plan seems to be that the Scottish social security agency will be very enabling in that role but that there will still be a role for independent advice workers to help people navigate through the system. I am not quite sure how those hand-offs will take place. There will still be conditionality around universal credit and assessments under that, but it is not clear whether there will be any sharing of information in relation to those assessments if we go on to look at the disability criteria.

The Convener

Thank you. John Dickie wants to comment, and then I will bring in Adam Tomkins.

John Dickie

I want to suggest a couple of specific ways in which the bill could be strengthened to try to ensure that people are able to access and get the assistance that they are entitled to. First, the bill sets out the principle that the Scottish Government has a “role” in making sure that people are given the social security assistance that they are eligible for. That should be strengthened so that it has a “duty” to ensure that.

Secondly, we have suggested an additional duty on ministers to devise, implement and regularly review a strategy to reduce underclaiming of devolved social security payments. There is a big issue with underclaiming, particularly in relation to disability benefits, and including a duty to produce and regularly review a strategy to ensure that we are maximising take-up of the devolved benefits would be a way of strengthening the duty and the principle of accessibility.

The Convener

If no one else on the panel wishes to comment, I will bring in Mr Tomkins.

Adam Tomkins (Glasgow) (Con)

Good morning, everyone. With regard to sections 1 and 2, which relate to the general principles and the charter, I ask for your reflections on the written evidence that we have received from my colleague at the Glasgow law school, Tom Mullen, who says:

“It is difficult to work out the intention behind section 1 of the Bill”.

He also points out:

“If the legal status ... is not clarified, citizens and their advisers may be unsure what their rights ... are”.

Finally, he suggests:

“The Parliament should press ... Ministers to (i) make clear precisely what their intentions are as to the legal status and effect of the principles, and (ii) to present amendments which clearly give effect to that intention.”

Do you agree with Professor Mullen?

The Convener

Jessica, do you want to kick off on that?

Jessica Burns

The test of any legislation comes when it is in operation—that is when we can see the levels of satisfaction and delivery. I do not think that that means that there should be no principles to start off with, because legislation provides a kind of road map that regulations can pick up and deliver on. In tribunal rules, there is a very altruistic overriding objective that, although it might not always be delivered, still provides an underpinning principle. At the moment, I do not necessarily share Tom Mullen’s concerns, because any legislation is always capable of being amended to meet the principles.

The Convener

Dr McCormick, would you like to comment?

Dr McCormick

To be honest, this is well outside my area of expertise. However, with something as complex as the Social Security (Scotland) Bill—even within the limits of the powers and budgets that are coming to Scotland—there will be an element of testing the various provisions through regulations and practice. I think that ministers should be pressed by the committee and others to give an account of their thinking on the balance between the principles and values of the bill and its broad direction, and on how much should be set out in primary legislation and how much can safely be left to secondary regulations and guidance. At the moment, I think that the balance is not right, so it would be helpful to press the Government on that.

We must make sure that the provisions for administrative justice, redress, complaints and recourse to law at the end of the process are as safe and deliverable as possible at this stage, and I think that in that regard the work that Ulster University has done for the Equality and Human Rights Commission Scotland might be helpful in a comparative sense.

Adam Tomkins

I want to press you on one particular aspect. The Scottish Government has said many times that it wants to pursue a human rights-based approach to devolved social security, and that has been warmly welcomed by a number of parties. According to article 13 of our most important human rights instrument, the European convention on human rights, one of our human rights is the right to effective judicial protection of our human rights. Do any members of the panel think that, if we are serious about having a human rights approach to devolved social security, one of the elements of that approach must be the ability to take human rights-based claims to court when claimants or others are of the view that their rights to dignity, fairness and respect have not been satisfied? If you think that, do you think that the bill should reflect that?

Jessica Burns

In any social security system, there will be conditionality and a sense of grievance on the part of people who are found not to meet that conditionality. They might think that, because they have not met the criteria for receiving a certain benefit, somehow they have been disrespected and their dignity has not been promoted. There are a lot of people who make claims whose perception of their disability does not alter the fact that it just does not meet the criteria, and it would be naive to think that the bill will always be able to meet the criteria of everybody who would like to fall within its terms. The financial benefits of meeting that conditionality are highly significant, and people might make claims that cannot be allowed. That is why it is not practical to provide for a right to make a claim because someone’s human rights have been infringed on the ground that the social security conditionality does not meet what they think should be their human right.

Peter Kelly

If we are to have principles and a charter that have any meaning, people need to understand that they have the ability to seek redress when they feel as though their rights have not been respected. Probably all of us have long experience of various charters set up by public bodies that individuals either have no knowledge of or feel that they are not able to enforce when levels of service do not meet the charter requirements. There needs to be some form of redress that people can seek in relation to the charter.

09:30  

The Convener

John Dickie, do you want to come in on that?

John Dickie

I want to make two points. The second panel of witnesses might have more expertise to share on how we ensure that the principles of a human rights-based approach are grounded in law. It is important that they are, and that the approach is meaningful. One way of doing that is to ensure that the bill makes explicit reference to article 9 of the International Covenant on Economic, Social and Cultural Rights, so that it is clearly based in international law. There might be other mechanisms in that respect, too. As for the charter, there certainly needs to be a mechanism for ensuring that people have clear avenues if they feel that their experience of the system is not matching up to what the charter sets out.

I repeat that our expertise—and this is the area where I am quite keen to get into the detail—is on how those principles are translated throughout the specific rules set out in the bill for social security in Scotland. In many ways, that is what will make the difference with regard to whether people’s rights to social security in Scotland will be enhanced by the bill.

Adam Tomkins

That is very helpful. As other members want to ask you about exactly that issue, I will leave it there. Thank you very much.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I want to come back to the principles. I have a number of questions based on what has been said already. The points that were made about accessibility have certainly come back in the feedback that we have received from current claimants. If members of the panel would like to expand on that, I would be interested in hearing their views.

Jessica Burns, your warnings really resonated with me, as did your concerns about the realism of the situation, in that only a portion of the powers is being devolved. As far as the principles are concerned, that always needs to be borne in mind.

I have two questions. My first is on independent advocacy as a potential principle. I have some remarkable advocacy organisations in my constituency, and I know what important work they do. However, a lot of their work is based on the fact that they are dealing with the current DWP system, in which—in my view and in those of many others—there is a lack of support. Do we need to think in a nuanced way about the idea of independent advocacy, in that, if we are going to think about including a principle that is oriented around it, does it need to be much more concentrated on the specific benefits that are being devolved and that are covered in the bill, bearing in mind the hope and aspiration that the way in which the new social security system is delivered will be comprehensively different from the status quo with the DWP? That is my first question.

If you do not mind, convener, my second question relates to similar concerns about the scope of the devolved powers. Peter Kelly, in your submission, you suggested including another principle that

“Social security has a role ... in the eradication of poverty in Scotland”.

If we had a bill in which the full comprehensive powers of social security were available, I would be supportive of that. However, while my heart believes that social security, in the round, absolutely has a role in tackling poverty in Scotland, I feel that the bill cannot deliver all the social security powers that are necessary to do so. I am slightly concerned about your proposal because of that nuance and the complexity of the powers that are coming to us. I would be interested to hear your thoughts on those concerns.

Peter Kelly

I will answer the second point first and maybe come back to the other points later.

One could make the claim that the social security system in its pre-1999 state, before anything at all was devolved, had a role only in preventing and eradicating poverty. As I am sure that John Dickie and others would agree, the social security system cannot tackle poverty on its own. With regard to the principles, as Ben Macpherson said, we want to set a different direction, shall we say, with the powers that are coming to Scotland. If we want to do that, we need to be clear on the very positive role that social security, and the powers that we will have, which are not insubstantial, can play in preventing people from going into poverty and supporting people to move out of poverty.

There is no question but that the powers that the Parliament will have with respect to social security cannot solve poverty on their own. Indeed, social security overall cannot solve poverty on its own. We know that many of those who are in poverty are in in-work poverty, so we require a much broader approach to tackling the issue. The bill recognises the critical role that social security plays.

Ben Macpherson

I would be interested to hear any thoughts on my other points.

Jessica Burns

Perhaps I should talk a little about representation and advocacy, and what that means for people who are navigating quite a complex system. I would probably not support the idea that representation and advocacy should apply only to the benefits that are covered by the Social Security (Scotland) Bill. It is equally important that we take a holistic approach in dealing with someone who is claiming benefits through universal credit. At present, a lot of representative organisations are putting a lot of energy into that aspect, but support must cover the whole benefits package that might apply to that individual and their family.

In Scotland, we are blessed with good availability of representation. I am not saying that there is complete availability, and I know that there are shortages in certain areas, but it is substantially greater than is the case south of the border. For instance, representation in tribunals stands at more than 80 per cent in Scotland, in comparison with about 20 per cent south of the border. I have had experience of working in Birmingham, where it was almost impossible for appellants to access representation. That issue is very important.

There are different levels of representation, which is a more complex issue. There is the claiming, the challenging and the going along to tribunal, and there might be different approaches to those aspects. Most people in poverty or who have disabilities are vulnerable; they certainly feel disempowered by the complexity of the process. It is part of the respect and dignity agenda that they should be able to access such support.

Ben Macpherson

I am interested to know whether there is a view that there should be a principle of enabling access—a right, in effect—to independent advocacy and support in a bill that is orientated towards the devolved benefits. However, it has been suggested to us that there should be an all-encompassing right to advocacy across the full social security system. I am asking whether that is appropriate for this bill; I am probing the complexity of that nuance.

Jessica Burns

Advocacy has a very special meaning: it provides a mouthpiece for somebody who is not confident or is not able to articulate their own position clearly. There is a bit of a conflict. In some ways, it can be patronising to say to someone that they do not have their own voice and it has to be fed through somebody else. I would be apprehensive about any suggestion that the system should require someone to access advocacy in as widespread a way as you are perhaps suggesting.

Ben Macpherson

I am just interested in what other suggestions there are. I am listening right now. Your comments were very helpful, Ms Burns.

Dr McCormick

The principle of choice is really important, because it is closely tied to realising the principle of dignity.

My understanding is that a great deal of advocacy is quite light touch and is self-arranged. It involves having someone—family and friends and neighbours—to come along with you. When there is representation even at that level, success rates at appeal are better.

What the bill can say more about is more specialised, higher-level independent advocacy. With the best will in the world, even if we are successful—as I hope we will be—in setting out a different culture with our agency and systems in Scotland, there will still be people who for many reasons, whether to do with language, learning disability, mental health difficulties or traumatic experience in the past, will struggle to achieve from the system what they ought to achieve. Therefore, it is important that people have the choice to be able to draw on such support. Without being starry eyed, we have that right enshrined through devolved mental health legislation, although we know that there is already a lot of unmet demand in the system. Demand is probably rising and resources are falling. We should start by looking at what is currently happening with mental health rights advocacy and work from there to understand what kind of provision we will need.

Jessica Burns is right. Even if we embed such a right in the provisions of the bill and the benefits that will flow from it, in reality the resource will be stretched and used for other needs, such as reserved social security and social care.

John Dickie

I echo and endorse what Jim McCormick says. We would support those who are calling for a right to independent advocacy. We must be very careful that we do not develop a system of advocacy support that is purely for the devolved system. We need to look at things holistically, as Jessica Burns said.

There is also an issue with access to independent advice and information. The potential exists to build into the bill a duty on ministers to ensure the provision of independent advice and advocacy, in order to support people in accessing and challenging decisions in relation to social security at devolved and UK levels. We currently have a system in which housing advice and money advice are underpinned by legislative backing, which means that they are to some extent protected when difficult budget decisions are made at national and local level. There is no equivalence for social security benefits advice. As well as the opportunity to look at independent advocacy issues, there is an opportunity to create a duty on ministers to ensure the provision of independent advice. Advocacy and advice are two separate but related forms of support that are needed in a well-functioning social security system.

To echo what Jim said, we do not need advocacy and advice only when social security systems are failing; they are an integral part of a well-functioning social security system. There will always be people who, for whatever reason, need additional assistance to navigate the system and need advocacy, whether formal or informal. There will always be a need for independent advice to ensure that people can understand their entitlements and seek independent support when they feel that the wrong decisions have been made.

Peter Kelly

We are part of the Scottish campaign for welfare reform, which submitted clear evidence on the importance of independent advocacy. We have also had representations from the Scottish Independent Advocacy Alliance that have reinforced the importance of independent advocacy. Nowhere have we sought to distinguish between advocacy that is related specifically only to the new powers and advocacy that is related to wider social security powers.

We can make the comparison with benefit uptake. Although benefit uptake campaigns may well target specific benefits, we hope that they will have a knock-on impact and that people will understand their entitlement to other benefits.

We also need to relate the issue of independent advocacy back to equalities issues, as others have done. Some people might be less able to claim their entitlements and might need additional support, so on that basis, too, there is an important role for independent advocacy in the system.

09:45  

Ben Macpherson

Thank you very much.

Mark Griffin (Central Scotland) (Lab)

I have a question about the balance of the bill, but first I will continue briefly on the point about advocacy. There seems to be a view among Government policy makers that independent advocacy is needed for people who access reserved benefits because the DWP is so terrible. That was restated in the ministerial statement on Tuesday.

However, the view that I seem to be getting from the Government is that the new agency is going to be so sensitive, caring and welcoming that independent advocacy is perhaps not so necessary. I am sorry if I am misrepresenting the Government, but do members of the panel think that that is a view that we should guard against, because of the potential for a change in Government or attitude? A new Government might come in and set a tougher assessment regime or targets to reduce the social security bill, so there will always be a need for independent advocacy in the system, regardless of how well the agency is set up initially.

The Convener

A lot of people want to come in on that, so I ask for short answers.

John Dickie

That is what I was trying to say. Access to independent advocacy is an integral part of a well-functioning social security system—it is not something that is needed only in a system that is not working well or is failing. There will always be people with particular vulnerabilities and communication barriers for whom the support—whether informal or formal—of somebody advocating on their behalf is necessary to help them to navigate even a well-designed and well-functioning system.

Peter Kelly

My view is similar to John Dickie’s. I think that independent advocacy is needed to address power imbalances, which will exist regardless of the intention behind the system. It is an important and necessary function, as John said.

Mark Griffin

My next question is on the balance of the bill and whether the principles should be in primary or secondary legislation or in guidance. Some members of the panel have talked about Government commitments that they have worked hard to secure, on, for example, an uprating of benefits in line with inflation, a ban on private sector contractors or income maximisation. Where do you think that those principles that have been fought for and won should sit, and how secure do you feel with those principles not being on the face of the bill?

John Dickie

I will make a more general point about the balance between what is on the face of the bill and in primary legislation, what has been left to regulation and what has been left to guidance. There is no question but that there is a balance to be struck on what level of detail is put into the primary legislation on social security and what is left to regulations. An element of flexibility is needed to enable regulations to be changed as policy changes and people’s needs change.

As it stands, we do not feel that the bill gets that balance right. In big-picture terms, the bill as it stands would enable future Governments to make fundamental changes to disability and carers assistance, for example, without the need for primary legislation. They could potentially create entirely new forms of assistance or change fundamentally the assistance that is already in place without the consultation and parliamentary scrutiny that primary legislation requires.

We think that, when more policy is developed around the types of assistance that are being devolved, that should be put in the bill and that, in relation to policies that are not yet developed, more legislation should be brought in further down the line, once those policies are developed and we have a clear idea what we want to do with the powers.

There are also issues to do with people’s individual rights to social security that result from leaving such a great deal to secondary legislation and, in some cases, not even making provision for secondary legislation. For example, there are issues for individuals in relation to the fact that benefits can change at relatively short notice—security of income is of real importance to people, and the idea that those benefits could be fundamentally changed without adequate scrutiny, consultation or a period of time to consider the changes is worrying. There is also an issue about people not having primary legislation to refer to if they want to challenge decisions.

With regard to the types of assistance, policies that are developed—for example, on best-start grants—should be included in the bill and, in relation to policies that have not been developed, further primary legislation should be brought forward in due course.

It might also be helpful to talk about the administration of devolved assistance. I can give you a couple of examples of cases in which we think that leaving a great deal out of primary legislation would reduce people’s rights under the new system rather than enhance them, which is clearly not the policy intent—this is about ensuring that the bill matches the Government’s policy intention.

The first example—

The Convener

I am sorry, Mr Dickie, but we have other questions to ask and other witnesses to hear from. Could you maybe be a bit briefer?

John Dickie

Of course. The first example relates to applications. The bill says that applications for assistance must be made in the way that ministers require, and that those ways will be publicised. However, the problem is that there can be disputes about whether an application has been made validly—we see that in the current system. Without any provision to make regulations about what a valid application is, there will be no grounds for people to be able to challenge a decision about whether an application has been made validly. That can cause delay in people’s payments and the loss of money. There is an issue about making sure that more provision is made to ensure that regulations are in place that set out what would be a valid application.

The other example concerns the recovery of overpayments. There are always situations in which, as a result of individual or agency error, overpayments are made, and it is reasonable to set out when those can be recoverable. However, that needs to be done in a way that does not cause hardship. In the bill as it stands, there is no power to make regulations about the circumstances in which it would or would not be reasonable to recover overpayments, and there is no power to set maximum deductions from people’s benefits, if that is the way in which the recovery is to be made. Leaving such a great deal to discretion or guidance means that, without any regulations or anything in legislation, there are no grounds on which to appeal the decisions, which could potentially leave people in hardship.

Dr McCormick

The example of the right to cash or alternative assistance and the example of overpayments are good examples of where the balance is not right. How we answer the question about balance depends on at least two moving parts of the system in relation to which we do not yet know what will be put in place. One is the charter—we need to know how robust and enforceable the charter will be. The other is scrutiny—we need to know how much assurance we can take from whatever scrutiny arrangements are put in place in relation to secondary legislation and guidance and whether that scrutiny will be independent.

The committee heard a lot last week from Professor McKeever about the need for revisions and independent scrutiny. The answer to your question depends on understanding where the bill sits with those other parts of the jigsaw. John Dickie is absolutely right with the examples that he has chosen.

Peter Kelly

I echo the response that John Dickie has already made. You mentioned uprating, which is clearly missing from the bill. It goes to the principle of adequacy, which comes back to the principle of how the new powers will be used to address poverty. It is important for something about the uprating mechanism for benefits to be in the bill; the balance is too much towards regulations.

Ruth Maguire (Cunninghame South) (SNP)

I want to ask you about scrutiny. What role do you see an elected Scottish Parliament playing in scrutiny? Is there a model that you would like to see? I return to the fact that only part of the benefit system will come here; are there any international examples of scrutiny best practice that we could learn from or follow?

The Convener

I know that Dr McCormick is an expert in that particular field.

Dr McCormick

I will say a word about where I hope that we will be at the end of the calendar year. The Minister for Social Security has asked the advisory group that I chair to establish a short-life workstream to look into scrutiny, so there will be a process, but not yet an answer. We intend that workstream to engage with this committee and with—let me get this right—the Public Audit and Post-legislative Scrutiny Committee. Those are the two appropriate places to position parliamentary engagement on scrutiny at this stage.

You also know that a role for two important existing United Kingdom scrutiny bodies that cover the bulk of social security and also industrial injuries benefit has been ruled out by the Scotland Act 2016. The question to answer in Scotland is what we want to put into that place, bearing it in mind that a lot of the secondary regulations and guidance will be quite complex and technical and that this will be the start of substantial activity. As an example, last year the Social Security Advisory Committee looked at 44 regulations, most of which were of a technical nature.

Scotland does not have a revising chamber, so there is a strong case in principle for an independent body—that is only a personal view, and is not yet the workstream’s view. Such a body may be constituted differently from the SSAC, which was set up more than 30 years ago. It would need a different relationship with the Scottish Parliament than is true at Westminster and a thorough look would be needed at what functions it should take on. There is a strong case for beefing up quite quickly what should be in that scrutiny space, alongside but separate from Parliament.

Ruth Maguire

Do you have international examples of that sort of set-up, where a devolved Administration has a section of a system?

Dr McCormick

I hope that we will be able to do a bit of digging around that question. Examples of the places where we could most helpfully start are Canada, and possibly Belgium and Switzerland. I do not know what we will find from those examples, as I genuinely do not have expertise, at this point, on what those lessons will tell us. Now is the time to look in depth and to look outwards at what we can learn quite quickly.

Ruth Maguire

Sure; thank you.

10:00  

John Dickie

I want to echo everything that Jim McCormick has said. We believe that some form of independent, expert, statutory scrutiny of devolved social security regulations is vital, but that role will be complementary to the important role that Parliament will continue to play with regard to democratic accountability and the scrutiny of regulations. There is something about having that expert, independent and non-politically aligned role, which in the UK social security context is played in large part by the Social Security Advisory Committee. It is important that we take elements of that and ensure that we put in place similarly robust statutory scrutiny in Scotland.

As for international comparisons, I will be interested in seeing what comes out of that work with regard to what might be put in place to deal with the relationship between devolved and UK social security systems. After all, there is a need to look at how UK social security will interact with devolved social security.

Peter Kelly

As we have mentioned in our submission to the committee, our long-standing proposal is to have some form of scrutiny similar to that provided by the Social Security Advisory Committee, and I echo the comments made by John Dickie and Jim McCormick about the precise nature of that. Clearly there is a role for the Parliament in independent scrutiny and, at the Scottish level, we would need to complement what the Parliament was doing. Moreover, the new poverty and inequality commission, which might have some kind of statutory basis—that is all a bit unclear at the moment—could have a role in the overview of social security.

Dr McCormick

Linking back to the previous question, I think that this underlines the importance of having an appropriate amount of scrutiny at the primary stage, and it makes the case for the committee and indeed the whole Parliament being able to scrutinise as much of the primary intent as possible. That said, we must also recognise that there is a timescale to meet and a need to get going; indeed, there have been announcements this week about the new Scottish social security agency. A lot of skill will be required in striking the right balance between having a safe, long-standing and far-sighted bill and ensuring that enough scrutiny takes place at the primary stage so that we do not leave an unfair or unsafe burden of scrutiny to those outside the Parliament further down the line.

Jeremy Balfour (Lothian) (Con)

I want to thank all four individuals on the panel. Some of the issues about how much should be covered in the bill have already been addressed, so I will leave that matter for another day.

Before I ask my questions, which are aimed at Jessica Burns, I should declare that I have sat on tribunals for 20 years now. It is interesting to learn that over 60 per cent of personal independence payment cases are successful. Is that because DWP is getting this so wrong, or is it because the tribunals are getting it so right? Why are so many people bringing successful cases? Given that you have done a lot of that work, it will be interesting to get your views.

We have also been asked to look at how we ensure that the best evidence is available with regard to someone getting or not getting an award. Again, you will have a lot of experience of general practitioners’ records and other professionals’ medical evidence. What, from your perspective, is the best evidence outwith that of the claimant that will help you reach the best possible decision? Do we need to do things differently from how we do them at the moment?

My final and very brief question might be seen as a bit nimbyist. The make-up of the tribunal for a PIP is different from that for employment and support allowance. Should we keep the three-person set-up, or is it better just to have a lawyer and a doctor on the tribunal?

Jessica Burns

There were a lot of questions embodied in that one question.

You asked why so many appeals are successful. There are degrees of success, as you know, because there are different grades or different awards that people can get for PIP, so not everyone is entirely satisfied even if their appeal is allowed. With appeals, essentially, we are looking at a snapshot of the healthcare professional’s assessment of the person’s abilities on a particular day, whereas the tribunal looks at what the person is like over a longer period, even if there is one date of decision. It is functionally based. A lot of people with mental health problems find it very difficult to convey those problems to healthcare professionals who may not have any expertise in that area. That has been quite well documented.

I do not know that tribunals always get it right, because this is a very complex area. A number of appeals that come in are very finely balanced, and tribunals are very conscious that the financial implications for someone who is not successful at appeal can be quite devastating.

As I think you are aware, we get letters from GPs expressing concern, perhaps not so much about the individual’s health, but about the impact of the loss of income to the household, and the added stress that would follow. A lot of people who we see have been quite traumatised by the loss of their transport, their ability to interact with other people and their ability to pay their bills, because they have got used to that additional income. We are talking about awards of up to about £600 a month that are tax free. You can imagine how devastating it is for the individual to go from that benefit to nothing. Sometimes, the process itself impacts on the mental health of the people involved, and there is a very complex association between mental and physical disabilities that impacts, too.

On the evidence that we get, as I think you are aware, the tribunals quite often adjourn or preview cases and decide that it would be a good idea to get medical case notes, perhaps for the past year or two, in order to get some primary evidence on the diagnosis, the treatment and the reasonable range of expectation around that. That is one way of assessing how reliable the individual’s perception of their condition is.

We now very rarely ask the GP to write a report to say, basically, whether they think that the person meets the criteria, because we know that that can impact on the patient and doctor relationship. I am aware that there might be difficulties around involving GPs more in the assessment process, but I understand that there are ways of getting an extract of GP computer records, which might set a baseline for somebody’s entitlement and mean that it is not necessary to call them in for a face-to-face assessment.

Ultimately, however, it will depend on the secondary legislation and the criteria that are applied. Sometimes, in relation to someone’s function, we cannot make a direct correlation between their contact with their GP, their treatment and their loss of function. Some people, particularly those with drug or alcohol abuse issues or mental health problems, may not want to or feel able to engage with their GP, and they may become heavily dependent on support from family, which might not be reflected in medical records.

It is such a complex area that I would like some more research and a bigger factual base of information to come before the Parliament, at least at the stage of the secondary legislation and the regulations, that captures some of those issues a bit more accurately.

The Convener

Thank you very much for that.

Does anyone else on the panel want to comment before I bring in Pauline McNeill?

John Dickie

The best way to reduce the number of appeals that are made is to get more of the decision making right from the start. Given that a new agency is being created, which brings with it the potential to create a whole new culture and a whole new approach to evidence gathering and decision making, we urge that decision makers in the new agency should take a more proactive, inquisitorial approach to gathering evidence and that they be able to make decisions based on the evidence that they have rather than ruling applications out because of the evidence that they do not have. If they were to take a more proactive and positive approach to gathering evidence and were able to make decisions based on the evidence that they had gathered, that would go a long way to ensuring that better decisions were made in the first place.

Jessica Burns

I would like to come back on that. In the vast majority of cases, the best evidence comes from the claimant, but although most claimants are reliable in the evidence that they give, they are not entirely so. The credibility of any system depends on a recognition that, sometimes, statements that individuals make might not be entirely correct.

The Convener

I want to pick up on that point. We heard evidence about notes being taken on the appearance of claimants at the appeal stage or before they went to appeal. Comments were made about people looking well, being well dressed and looking as if they looked after themselves, so they could not be ill. That is what people have faced. Therefore, it is important, as John Dickie said, that we get the new system right from the very beginning to make sure that claimants are looked at properly.

Dr McCormick

It is self-evident that getting this part of the system right and having the best possible approach to assessment is probably the single biggest challenge that faces any social security system. That is certainly the case for the system in Scotland.

It is important that we do not mix together illness and disability. Sometimes they overlap, but often they are quite distinct. Drawing on a medical approach and using the records of GPs, allied health professionals or specialist nurses might work well for the bulk of people with long-term conditions, whether stable or fluctuating, but it will not work well for lots of people with other mental and physical disabilities. We must understand the limitations as well as the importance of the use of, for example, GP records and make sure that we build a system that is based on self-assessment evidence and, for example, other routine evidence that is already in the system that we can do a better job of sharing—with patient consent. We should ask what else is needed and build up the information in that way.

Jessica Burns

There is an issue that I want to come back on. A significant challenge in the system is presented by people who dip in and out of qualifying for benefits. Those transitions are extremely difficult. It is almost a disincentive for somebody to ever acknowledge that there has been an improvement in their condition, because they might be locked into dependence on a particular benefit and it would represent quite a reduction in their standard of living if they were to lose it. Some of the submissions considered the introduction of a lower level of daily living component of PIP and acknowledged that PIP might be too broad brush.

The Scottish Government could perhaps consider having a more graded system. If a benefit was to end, it could be tapered, so that it was not a case of suddenly falling off a cliff. That would give people the opportunity to adjust to a lower income and would go some way towards taking away some of the pain of someone whose condition had palpably improved.

10:15  

Pauline McNeill (Glasgow) (Lab)

Good morning. I apologise to the panel for being late.

I am interested in exploring further what should be in primary legislation in terms of support for the claimant. We have discussed a framework that would be based on dignity and human rights. There is also the question of the people on the agency front line who will administer the system face to face. Should there be a duty in primary legislation on all officials who represent ministers to ensure that they maximise entitlement to all benefits? Beyond benefits, could support for claimants be a duty to be enforced in law?

To go back to Ben Macpherson’s question about advocacy, it seems that the committee will have to spend a lot of time thinking about what the term really means. As has been pointed out, it is a measure to help people who may have specific issues for which they need a professional advocate. Perhaps there needs to be a distinction between those people and others who may just need a bit of support.

A separate issue is a person’s right to have someone accompany and support them throughout the process. Even for people who do not have a language or disability barrier, it is a daunting process to go through.

In order to get the social security system right, it seems that it would be helpful to have pretty much all that in the primary legislation. Have you any thoughts on that?

Jessica Burns

It is about a choice for the individual. You talk about a right for people to have someone supporting them, but such support is not excluded at present. There being such a right in legislation might give people a sense that they really ought to have somebody else with them. Advocacy could be incorporated in the literature that enables people to access the system. However, ultimately, some people will want to deal with the process on their own; we have to respect that right. The person may feel that they are dealing with very personal issues that they do not necessarily want to share, even with their family; they might want, for all sorts of reasons, to protect their family. People may find it easier, however difficult the process is, to access the system themselves.

On your point about placing an obligation on the social security agency to ensure that a person’s entitlement is maximised, I am not sure how enforceable that would be. I have jotted down a note on backdating. It used to be quite well enshrined in the social security system that when there was a good reason why a person had not made a claim earlier, their case could be looked at to see whether their claim should be backdated. It may well be that consideration should be given to backdating in explicit circumstances; that would possibly ameliorate hardship for people who had been totally unaware of a benefit but caught up with it later. I know that retrospective assessments can be difficult, but sometimes the issue is very straightforward.

Dr McCormick

I want to draw a distinction with the current system. We know that in the DWP’s services there is some good, some bad and some ugly stuff happening. Neighbouring jobcentres in one part of Scotland can take very different operational approaches to whether another person can cross the threshold of the office with a claimant.

That is one thing that we can change, not only throughout the premises and the workforce of the new agency, but in co-location arrangements with local government, housing offices and the national health service. The system should welcome people arranging their own support if they are able to do so, if that is a choice that they can and want to make. There should be absolute sharing of information about what people can do before they cross the threshold to access support, whether it is informal support or more formalised advocacy. We want to give the cultural signal that we welcome people bringing someone to support them, because we want to get things right first time.

The system would bear some of the responsibility for trying to achieve good decision making upstream, rather than leaving things to appeals and complaints. I am not sure what a duty for the agency and its workforce on that would look like, but we can certainly ensure that people feel that they are embarking on a journey—whether or not they are successful in the end—and ensure that the experience is of much higher quality.

Peter Kelly

Jim McCormick used the phrase “cultural signal”. There would be no clearer signal than to set out in the bill the right to be accompanied. We have discussed advocacy, which I think is linked to that. We want and expect the bill’s principles around dignity and respect to be reflected in the guidance that will eventually be produced and the operational procedures for the new agency.

The other issue that Pauline McNeill raised was around ensuring that benefits are maximised. We called for a duty to ensure that everyone has their full entitlement, rather than there just being a role to play in that. Such a duty made real would be about ensuring that people have access to their full entitlement.

John Dickie

I endorse what Jim McCormick and Peter Kelly have said. It makes a lot of sense for one of the principles to be that there is a duty to ensure that people are given the social security assistance for which they are eligible. I return to the point that I made earlier: including a duty for ministers to produce, review and report on a strategy to maximise take-up and reduce underclaiming of benefits would help to ensure a real focus on making sure that people get the financial support to which they are entitled. It would help if the system were to review why that was not happening, report on it and take action to improve access and take-up.

Pauline McNeill

I have a quick question on overpayments. Do you think that the committee needs to do a little more work on what the principles should be in that regard? In some meetings that we have had the point has been made that when a claimant has been wrongly assessed the overpayment should not be their fault—there seems to be a view that such overpayments should not be clawed back. Does more work need to be done on that?

Dr McCormick

I do not want to repeat what John Dickie said, but I think that he was right. The answer to Pauline McNeill’s question is yes. The bill feels as though it is based on terms that are similar to how Her Majesty’s Revenue and Customs operates in respect of overpayment of tax credits, in that it has recourse to guidance rather than to statute. That means that a lot of discretion is used and that there is a lot of variation in what happens across the country. That is distinct from issues of fraud and error. Error overlaps with the issue of overpayments, but we are talking about overpayments that have been due to inaccurate assessment by the agency. Points have been made about creating incentives for good decision making upstream. It is really important that we have a fuller appraisal of the options, so that overpayments are minimised and dealt with differently to how tax credit overpayments are currently dealt with. That is one of the highest priorities in revising the bill.

John Dickie

I echo that. I do not want to repeat what I said earlier, but the matter is a key example of the policy memorandum and what ministers have said about policy intent not being matched by the detail in the bill. It is clearly stated that the policy intent is not to recover overpayments that are the result of agency error, except in particular circumstances, but nothing in the bill will prevent recovery. The bill enables automatic recovery of overpayments without creating any provision for setting out the circumstances in which that would be reasonable or how they would be recovered.

Jessica Burns

On the duty to notify a change of circumstances and the offence of failing to notify, it can be difficult for people with disabilities or with disabling illnesses who are in the recovery period to say at what point they have crossed back over the threshold to not qualifying for the benefit. It is intimidating; people who recover from severe mental health problems can wonder whether they are defrauding the system because they have not told someone. It is a stressful period for someone who is in that position. I was surprised that the offence of failing to notify could result in a criminalising approach. The provision could be looked at again in order to create a more supportive system whereby, under certain circumstances, people are invited to resubmit and are told that, if they do so, there would be a taper to their entitlement to the benefit.

Alison Johnstone (Lothian) (Green)

The balance between primary and secondary legislation was discussed earlier. Future proofing is a concern of mine and of many others who have been in touch. A good example of when the system goes wrong is the way in which the UK Government changed the rules about PIP assessments, because it did not particularly welcome a ruling by a tribunal. If the bill is going to work well in the future, it has to address adequacy. Peter Kelly touched on the issue of uprating. For clarity, I would like to understand whether John Dickie, Peter Kelly and Dr McCormick think that an uprating mechanism should be in the bill, so that it cannot be pushed aside so easily in the future.

John Dickie

A provision for annual uprating for devolved types of assistance is really important. The mechanism for how that might work could be left to regulation, but the provision should be in the bill. For disability and carers’ benefits, the primary legislation currently includes annual uprating, unless the Government changes the law to stop that from happening. That provision has protected disability and carers’ benefits in a way that other benefits have not been protected over the past few years.

Alison Johnstone

Would you like to see that approach applied to all benefits? We have seen what has happened to child benefit.

John Dickie

The key thing is to ensure that the bill applies to the types of assistance that are set out as being devolved and which will be covered by the legislation, in order to ensure that there is provision for annual uprating.

Peter Kelly

I echo John Dickie’s points. We would like to see that provision in the bill. The evidence is clear that the value of benefits falls behind when there are no processes for annual uprating. We have seen that over 20 or 30 years with the jobseekers allowance, the value of which in relation to average earnings has declined year on year, so that people on those benefits find it difficult to work themselves out of poverty, or just to get by. It is important that uprating be included in the bill.

Dr McCormick

There are three tests that come together with the bill. One is about take-up, which we have discussed. One is about uprating; I agree with what has been said about that: if we consider that parts of the benefits that are coming to Scotland are taken up by population groups in which there are typically much lower employment rates and higher costs, it is even more important that we are clear about a commitment to uprating.

10:30  

The third test is about adequacy, which is separate from uprating. We know, for example, that, even with annual uprating, older people with complex disabilities especially, with the costs that they face, are supported very inadequately by the current benefits system. A similar case could be made for some people who live in very remote and rural areas. Adequacy is a longer-term issue that is best dealt with through the pledges that the parties make in the committees and the Parliament and through debate with the public.

A really important public interest issue is involved: there is a public stake. It is great that the experience panels will, in collaboration, try to design and improve the system over time, but there is a risk that we are all dancing in the middle of the ice and not taking the public with us on the issues.

It is really important that we have a long-term debate about adequacy and what the contribution of social security in Scotland and the United Kingdom is to a more adequate living standard for the whole population. Peter Kelly mentioned that.

Those are three points that need to be dealt with. However, I agree that the provision ought to be clearly enshrined in primary legislation.

Peter Kelly

To follow up Jim McCormick’s point, it is really important to make the distinction between annual uprating and the process and mechanism for doing that, and adequacy. Jim McCormick’s organisation has been at the forefront of developing methodology for trying to understand what we mean by adequacy. We need to move towards considering how we implement things around the minimum income standard. We have seen that in relation to the living wage, which is based on the minimum income standard. It is possible to start moving and to shift the discussion and the terms of debate.

If we cannot have something about adequacy in the bill, perhaps we should link that back to the issue of scrutiny. That would go beyond the technical scrutiny that Jim McCormick and John Dickie have talked about to broader scrutiny of the overall impact of our new social security powers, which is perhaps within the domain of the proposed poverty and inequality commission.

Alison Johnstone

We have not really discussed mandatory reconsideration. Many of the submissions to the committee refer to that process. Does the system of appeals that is laid out in the bill differ markedly from the UK process? I appreciate that there are improvements. For example, people will still receive benefits when they are appealing and there is the time-limit difference, but is the system different enough?

The Convener

We should have short answers, because we are running out of time.

John Dickie

There are differences, but there is a real concern that, in an important respect, the redetermination process that is set out in the bill recreates one of the key barriers to independent appeal that exists in current mandatory reconsideration. That barrier is the requirement to make two applications—to apply in the first instance for an internal redetermination by the agency and, if that is not successful, to make another application in order to go to an independent appeal.

Our key suggestion—we have proposed a mechanism for doing this—is to remove the second barrier, gateway and requirement for another application. We have seen many people fall away at that point and there has been a real reduction in the number of people accessing independent appeals. We should remove that barrier, ensure that people still have the choice to withdraw from the process if they are satisfied that their case is being looked into, and not require an additional application hurdle to overcome in order to reach the independent appeal.

Peter Kelly

I echo John Dickie’s points. Alison Johnstone asked whether the system is markedly different. It is, but in the important respect that John Dickie has highlighted it is not sufficiently different and it repeats some problems that currently exist. That goes back to questions that we have already discussed. I do not think that the policy intent is to deny people access to justice in that way, so that needs to be looked at again.

Jessica Burns

On mandatory reconsideration, the mandatory aspect and the mandatory redetermination aspect should be taken away. People could have the option of asking the agency to think again about the decision, but it should not prevent them from making a direct appeal. There would be nothing to prevent the agency from revising its decision in the period before the appeal was heard. Quite a number of appeals lapse, although not as many as might be imagined. However, at any point, the DWP can make a decision in favour of the appellant and the appeal does not go ahead. An appeal might just impose another month of waiting time before someone gets a decision.

The Convener

Two members have supplementary questions. They will have to be the last questions on the issue because we are running over time and the next panel of witnesses is waiting patiently. Adam Tomkins has a supplementary, then Ruth Maguire will ask one.

Adam Tomkins

I have a very quick question. Thank you, convener, for squeezing me in. There is a bespoke provision in the bill in section 45 regarding the power to provide for top-ups, but there is no provision in the bill that enables the Scottish Government to create new benefits. Should there be?

The Convener

Can we have a straight yes or no, if that is okay?

Adam Tomkins

If the panel cannot answer that fully, perhaps you can come back to us in writing about it. We are out of time, but I think that it is an important question. The power to create new benefits is an important part of a devolved social security system, but there is no provision in the bill for doing that. We have been talking about omissions from the bill, so I wonder whether you think that that is a significant omission. If it is a significant omission, should we do something about it? That is probably too long a question for you to answer in 30 seconds, so if you cannot, perhaps you would not mind writing to us about it, which would be really helpful.

The Convener

Is answering in writing agreeable to the witnesses? I see by your nods that it is.

Ruth Maguire

Is there a danger that if we remove the opportunity for the social security agency to sort something that has gone wrong, that will delay things for claimants? I was interested in what Jessica Burns said about it being not necessarily mandatory, but optional. Obviously, what we are interested in is folk getting money to which they are entitled. If an appeal has to go straight to a formal tribunal, could that just delay things?

John Dickie

There would be nothing to prevent the agency from undertaking an internal redetermination on a claim and changing its decision. That should always be an option. It is right that that is part of the system; ideally, that is where things will get sorted. However, there should be no barrier or additional hurdle in the sense that if that option does not sort the situation, people then have to make another application to get an appeal.

Peter Kelly

I agree with what John Dickie said.

Dr McCormick

Wherever we get to with this part of the system, it is really important that people are crystal clear about what is expected of them in terms of timescales and what they can expect from the agency. Currently, we have very strict requirements around lodging an MR, but it is a black box as to when we will hear because there are no similar requirements for when the Government should respond. I think that there must be a two-way street in that regard, because that would be part of a dignified culture. If we are going to have expectations and responsibilities one way, we have to have them the other way, too.

Jessica Burns

I do not think that there is anything that I can add to that.

The Convener

I thank the panel. I had hoped to ask Dr McCormick more about scrutiny and so on, but you have certainly answered some of what we were going to ask. We will be speaking to Dr McCormick and his advisory group in the future to explore further the issue of scrutiny.

I suspend the meeting for a changeover of witnesses.

10:39 Meeting suspended.  

10:41 On resuming—  

The Convener

I welcome the second panel of witnesses and thank them for their patience. We have complained on numerous occasions that a Thursday morning is not an ideal time for the committee to meet. It is generally agreed that we will raise that again with the Presiding Officer.

The witnesses are Jatin Haria of the Coalition for Racial Equality and Rights, Chris Oswald of the Equality and Human Rights Commission, Emma Ritch of Engender and Judith Robertson of the Scottish Human Rights Commission.

I will start with the same question as I asked the previous panel. What are the panellists’ thoughts on including principles in the bill and on the seven principles that are set out, which are intended to underpin the new social security system? Anyone who wants to speak can just give me a nod.

Emma Ritch (Engender)

Thank you for inviting Engender to speak to you. If we zoom out to the question of what has happened to women in Scotland as a result of social security changes, we see the need to consider gender at all stages when we consider what to do with the new powers that have come to us in Scotland. Like some of the witnesses in the previous panel, Engender advocated through the Smith commission process for the devolution of social security powers, and we have been pleased to be involved in the past few years in discussions about what that should look like.

Some of the unintended consequences of failing to consider gender have been seen in what has happened with welfare reform. When I was previously in front of the committee, it was to talk about the family cap and the rape clause, which represent some of the most acute failures to think about gender that are evident in the social security system.

Our broad point has always been that it is vital to consider gender and women’s different experience of social security. One Scot in 10 is a poor woman. The experiences that differ between women and men are vital to consider when we think about how best to use the powers.

We very much welcome the commitment to a human rights-based approach—the broad principles that endorse dignity and respect—that is in the bill. However, we have pointed out that the principle of non-discrimination and equality between women and men is incorporated in the human rights instrument that talks most about social security, which is the International Covenant on Economic, Social and Cultural Rights.

We make the case that the principles should be amended to include non-discrimination and equality, because the enabling framework of the bill means that much will come into being through regulation, as others have pointed out. Unfortunately, we have seen the consequences of primary legislation that does not explicitly refer to gender equality and of the failure to pick up gender in regulation and strategy—an example is the Human Trafficking and Exploitation (Scotland) Act 2015, which has enormous relevance to women and women’s equality.

I urge the committee to consider that point. From our conversations with the minister, I think that there is a receptivity to the point that incorporating the principle of non-discrimination and equality would give effect to the ambition that the bill should take a human rights-based approach.

10:45  

Jatin Haria (Coalition for Racial Equality and Rights)

Thank you for inviting me to the meeting. We totally support having a specific principle on equality in the bill. Unless it is mentioned right there in front of someone’s face, equality is usually forgotten about. With a new agency and a new system, unless equality is up front, we know that it will be ignored and that other things will take over. We hope that the committee will support having equality as a key principle.

Judith Robertson (Scottish Human Rights Commission)

We welcome the ambition of the Scottish Government, particularly in stating that social security is a human right, and, importantly, that it is essential to the realisation of other human rights, and we welcome the rights-based approach to social security. Those commitments are all welcome.

The principles fundamentally reframe the way in which social security is viewed in Scottish public life and they will underpin the social security charter. They have a fundamental value in setting the terms of the debate differently. However, they do not create stand-alone rights and cannot be directly enforced by individuals, which is a fundamental weakness that our proposals can address. That is particularly important to remember given the emphasis on the principles during the consultation process and the discussions on the bill.

We believe that some areas of the bill could be strengthened significantly to ground them further in human rights standards and to reflect the PANEL principles of participation, accountability, non-discrimination and equality, empowerment and legality. Our submission outlines details of the changes that we think can be made.

First and foremost, we would like the bill to enshrine in Scots law the right to social security, which would underpin everything in the bill. As it stands, the bill does not enshrine that right. The right to social security was recognised as far back as the Universal Declaration of Human Rights in 1948, and it features in a number of regional and international human rights instruments—most notably article 9 of the International Covenant of Economic, Social and Cultural Rights. Detailed guidance on the content of the right to social security has been provided through general comment 19 from the United Nations committee on economic, social and cultural rights.

The Government and the Parliament are mandated to deliver on the international treaties that the UK has signed up to, which include the International Covenant of Economic, Social and Cultural Rights. General comment 19 is a key part; it describes the right to social security and breaks it down into core components. Some of them have been discussed in detail this morning; that territory is not far from or alien to our discussions. The overriding principles are availability, adequacy and accessibility, and they are in general comment 19 because, globally, they are key standards to be clear on for social security. The accessibility principles are coverage, eligibility, affordability, participation and information, and physical access.

As the bill stands, we have a principle in relation to the right to social security but we do not have the right. We believe that the bill would be strengthened significantly if that right were enshrined in Scots law.

Chris Oswald (Equality and Human Rights Commission)

I agree with all my colleagues’ points; I will perhaps add a slightly different perspective. The agency and the operation of the social security system in Scotland will be covered by the Human Rights Act 1998 and the equality duties in the Equality Act 2010, so there will be that protection. However, making a human rights challenge or a challenge under the 2010 act is a complex and lengthy process. The incorporation of principles in the charter might present us with an opportunity to have decision making or resolution at a lower level; that will depend on how the charter develops.

As my colleagues have said, it would be extremely helpful to incorporate the International Covenant on Economic, Social and Cultural Rights. Although non-discrimination is part of the human rights principles, the 2010 act takes that a little further and goes into advancing equality in community relations; for reasons similar to those that Emma Ritch mentioned, I believe that it would be useful to reflect that.

I noticed that some submissions mention concerns about the use of the terms “efficient” and “value for money” in relation to the system. I am less concerned about that, as long as we are talking about the administration of the system. The discussion at the end of the previous panel was really helpful. A system that is focused on efficiency and value for money will make the right decision the first time round. One of the most costly and wasteful things in the current UK system is the process of continual appeal, so a focus on efficiency that is beneficial to the claimant would be extremely helpful.

The Convener

Thank you—that is helpful.

Adam Tomkins

I will pick up on Judith Robertson’s helpful comments. I note that the Scottish Human Rights Commission’s written evidence mentions the status of the charter and states:

“The charter should be directly enforceable.”

Before I ask the other panel members whether they agree with that, will you expand on what you mean by that?

Judith Robertson

The bill lacks clarity on the status of the charter, as has been noted, and there has been some confusion about the charter’s purpose. We broadly welcome the charter, potentially—

Adam Tomkins

I presume that you would like to see it before you really welcome it.

Judith Robertson

Yes. In principle, it could be really helpful, but we believe that the right to social security should be set out in the bill, because all else flows from it. The charter should define the right in a way that is accessible to the public, so that people can understand it. In effect, the charter should unpack in an accessible way the content of the right to social security, which should be incorporated in the bill. The charter should not create new rights and entitlements that have no way of being enforced—that is a fundamental caveat. If we put the right in the bill, all else will flow from that.

We appreciate that the charter will be drafted through an inclusive and participatory process, but we believe that, as a minimum, it should reflect the content of the right to social security. Somebody said that we should start with a blank sheet in relation to the charter. The charter is about social security, so it is not a blank sheet; we have to put some caveats around what it focuses on, and focusing it on the right to social security would give it consistency, a framework and—crucially—a grounding in international law.

Adam Tomkins

May I just clarify something? When you say that the charter should be enforceable, do you mean enforceable in court?

Judith Robertson

Well, the right to social security would be enforceable in court. The charter would, from my perspective, define what that right means. There is an option to put in the charter the accountability processes that flow from that. There is a decision to be made about how much detail people want in a charter that says, “Here are your rights—this is what this is actually entitling you to.” That is something that a participatory process might identify.

Adam Tomkins

Thank you.

The Convener

Does anyone else want to come in on that point?

Emma Ritch

To answer the direct question, I agree with what Judith Robertson said. Engender’s submission suggests that

“The charter should include a mechanism via which claimants could contest a breach”.

As Judith says, such a mechanism would need to be scoped out. There is obviously a tension between the ambition of creating a charter that is, as the Government’s policy memorandum states, in

“a format that can be easily understood”

and something that is justiciable. That tension perhaps needs to be worked through. However, I am entirely in accord with Judith’s view that, without having some kind of redress mechanism—there is possibly a role for an independent scrutiny body—the charter would not have much weight.

Adam Tomkins

That is extremely helpful. I have a final follow-up question directly on that point. If we have a charter that is judicially enforceable, or a right to social security that is judicially enforceable, will that lead to an increase in litigation in the Scottish courts? If so, who will pay for that and should there not be something in the financial memorandum that accompanies the bill about a likely increase in calls on the legal aid budget?

Judith Robertson

To be honest, I think that it is very hard to say. If the right to social security is enshrined in the bill and is therefore justiciable, the processes, policy and regulation that flow from that will have to be compliant with that right, because if they are not, they will contravene the law in the bill. As I say, there is a process whereby all else flows from that.

A comment was made previously about getting it right first and having everything in line; if that is done, it could be very strong. If what I have described is in place—and, in principle, the secondary regulation that flows from this has to be compliant with general comment 19 and ICESCR, and that can in itself be tested, argued, debated and understood within the system—there is a strong framework within which decisions can be made about the whole process that flows from this and issues can be tested, argued, discussed and debated transparently.

There may be cost implications that arise from justiciability, but actually the implications of some processes will be much more rigorously tested up front and in advance, and the legal process that supports the development of regulation would be in place to do that in a way that is clearly compliant within the confines of the law.

At the moment, that is a gap in the bill. I do not want to be cheeky, as the bill’s principles try to achieve what I have outlined, but enshrining the right in the legislation would make it strong throughout the process. Ultimately, it would become justiciable, but that is a backstop protection, not the front line of protection. The framework that the bill establishes currently includes all sorts of other protections: predetermination processes, tribunal processes and all sorts of other processes before anyone would get to the point of taking something to court. We are on a journey.

Chris Oswald

It is important to remember that the Human Rights Act 1998 and the Equality Act 2010 apply already in this jurisdiction, so justiciability is on the table immediately. I would hope that the incorporation of principles around equality and human rights would lead to a more anticipatory approach by the agency whereby it would start to identify such issues in advance. Subject to what the charter enables or allows, incorporation would also create the possibility of resolving issues at a lower level without having to go to court to do so. There is an advantage in this approach. The costs of justiciability are there anyway, irrespective of whether such an approach is taken in the bill.

Jatin Haria

As Chris Oswald says, the Equality Act 2010 applies, but we know from the public sector generally that that is not enough. That is why the charter was seen as a good thing. At the moment, the charter sits on its own, because there is no linkage. However, people are saying that they see it as setting an attitude in respect of what the agency will be about and how it will perform its functions. We need to see it.

At the moment, the bill requires users—or claimants—to be consulted on the charter, but there is no requirement to consult equalities groups. We would like the bill to specify that equalities groups should be consulted before the charter is finalised.

11:00  

Emma Ritch

I see the virtue in a less adversarial process, in which if an independent scrutiny body is created—I agree with others that it should be—there would be scope for policy concerns to be raised by interested organisations and those concerns would not have to go to law. If Engender, for example, was aware of a widespread unintended consequence in the process or policy of the agency that seemed to go against what I hope will be the policy of equality and non-discrimination in the charter, we could alert the independent scrutiny body, which could then make a determination. That would be equivalent to the way in which equality bodies tend to operate across Europe. The EHRC is quite unusual in not having that quasi-judicial role. That proposal may be a helpful way in which to bring concerns back into the system and could become a virtuous circle.

Judith Robertson

I endorse that point. Accountability mechanisms in bills such as this one are multifarious—they stack up. At the moment, there are some gaps, particularly in relation to accountability and scrutiny. The process that Emma Ritch describes articulates how the introduction of an additional backstop that is currently not included in the bill would complete that picture.

Ruth Maguire

I wish that we were getting all the benefits, but the fact is that, in the main, it is carers and disability benefits that are being devolved and for which the Scottish Parliament will be responsible. How can the right to social security be enshrined in law, when we have control over only that portion of benefits?

Judith Robertson

That constraint would apply across almost any piece of policy legislation in Scotland. We do not have absolute power over many of the levers of authority. From my perspective, the bill is a landmark piece of legislation. The right to social security will be enshrined only in what the bill can provide—it does not extend into Westminster legislation and the benefit provisions that are not contained in the bill.

However, if that right is included in the bill, it will make it a world-leading piece of legislation—the bill will lead by example. It will also provide what we used to call in my days working for Oxfam the threat of a good example. Good examples test the boundaries of everyone else’s systems. That is an important point, although it is not the reason why the right should be included in the bill.

The right to social security should be in the legislation because, in and of itself, it provides a set of principles and frameworks that are consistent and enshrined in international law and which can be understood and worked on. However, it also does lots of other things and has consequences for social security globally. It is not just in Britain that social security has a bad reputation—some countries have very good reputations around social security and others have less good reputations. We have an opportunity to do really well here. The Government is in the right territory and our role is to seek to make the bill as strong as it can be.

Ruth Maguire

I always come back to the people who come into my constituency office and the people I represent. Although I would not argue with anything that you have said—it is laudable—is there not a danger that we are creating a tension in expectations? The people who are using the system and who are entitled to social security will often be receiving services from both Administrations. It might sound strange, but I worry about creating false expectations for the people we represent.

Judith Robertson

If we are to effectively deliver the bill in the spirit in which it has been put forward, which is to put some distance between the way our current social security system is administered and the new system that Scotland will provide, we have to raise expectations.

Ruth Maguire

We have to meet expectations.

Judith Robertson

We have to raise expectations that people’s relationship to a social security system can include dignity and respect, that people do not need to feel ashamed of being in receipt of benefits, and that we can change the terms and culture of social security in this country. We cannot do that across the system—that is a clear limitation of where we are with the proposed legislation—but we can do it in the part that we have authority and power over. If we do not do that, we will fail to realise the ambition that it can be done better, done well and done in a way that supports people to receive that to which they are entitled. That is what we want, as people are entitled to those benefits. We want that to be strong and supported.

Chris Oswald

I agree with Judith Robertson on that point. We are where we are and we cannot change the settlement as it stands today, but it is encouraging that Scotland is moving toward a more enabling, rather than punitive, system and that is to be commended.

It is important that we look at the relationships in Scotland with regard to the stuff that we control and have power over. In the social security system that we are developing, the regulations and the operation of the system will be dependent on the adequacy of services on the ground that are provided by local authorities or the voluntary sector. The system will be affected by health and social care integration and it will be hugely influenced by the availability of adequate housing. Therefore, we need to think more about how it fits with other areas of Scottish social policy and the enabling rather than punitive approach that is being adopted in Scotland, rather than worrying too much about what we cannot control at the moment.

I was very interested in the discussion about advocacy that the previous panel had. Although I accept that the provision of advocacy in Scotland is better, it is not perfect and we need to move towards a system in which advocacy is guaranteed, rather than just saying that people have a right to it. That right should be achievable and real.

Emma Ritch

The question of carers is helpful, so I will talk about that. It illustrates how vital it is to have principles on the face of the bill.

In 2015, the Welfare Reform Committee published its report on women and social security, which made a number of recommendations for the Government, anticipating the Scotland Act 2016 by some months. It said that the Scottish Government needed to look at

“the gender impact of their policy decisions and ... mitigate these”

and that social security programmes

“should be designed to overcome the barriers which prevent ... women’s labour market participation”,

which a number of Scottish Parliament committees have reflected on. For example, the Economy, Jobs and Fair Work Committee just published a helpful inquiry report on the pay gap.

The reason why that is important for carers is that, at present, the schedule to the bill somewhat replicates the status quo. There is a welcome uplift in the level of support to carers that brings it on a par with other in-work, working-age pieces of social security assistance, but it contains some features that potentially, in regulation, could replicate what we already have. The features are whether a carer is in education, how many hours a week the carer spends caring and what employment they are in, and there is a risk that those things will still function as a barrier to carers getting into the workplace, developing their skills and capacity when they are on their carer journey and, therefore, being appropriately qualified or skilled when their care work ends.

We have an opportunity to be bold and different in the regulation for carers social security assistance. However, without having the principle in the bill, it is not clear what that will look like with regard to gender and the specific impacts on women who care. After all, the majority of carers, and 75 per cent of the recipients of that particular entitlement, are women.

That makes the case for having the principle of equality and non-discrimination in the bill and the vital need to pick up on the challenge from the Welfare Reform Committee in 2015 on the need for the Scottish Government to look at the equality impact assessment for all this stuff in the round and how it articulates with other bits of policy. Engender certainly echoes the disappointment of the Coalition for Racial Equality and Rights in finding the equality impact assessment inadequate at the moment.

George Adam (Paisley) (SNP)

I would like to follow up on what Ruth Maguire mentioned. I get the idea that if we enshrine the right to social security as a human right, internationally, people will look at the human rights that we have and it might force other legislatures to think the same way. I get all that—I get the vision thing.

However, Ruth Maguire brought up a practical point about people who are dealing with the day-to-day issues of accessing the social security system. A person may go to a DWP office and say, “I’ve got this bit of paper from the Scottish Parliament that says I’ve got social security as a right—I’ve got the right to be able to do this,” and the DWP will say, “No, you havenae.” Then the person may say, “Ah, but the Scottish Parliament has passed this bill,”—it is exactly Ruth’s point about expectation—and the DWP will say, “We don’t recognise that.” Then you get into the territory that Adam Tomkins spoke about, if someone ends up going to litigation at a future date and there is different legislation on both sides of the border.

It gets quite complicated when it comes to delivery for the individuals we are trying to help at the end of the day. Does that not build up such an expectation that they could get to the stage where they end up thinking that the bill that says that they have that right is a waste of time?

The Convener

Does anybody want to make a quick comment on that?

Judith Robertson

The complexity of the system is there anyway, to be honest. That is clear. From my perspective, the provision of effective independent advocacy will help people to understand their entitlements and their rights within the process and the limitations on those. That is very important. To be honest, whether or not the right is there, that will be an issue. That is what the previous panel articulated very clearly—the charter, in and of itself, is intended to articulate what people’s rights are.

From my perspective, enshrining the right to social security makes that a very clear process. It puts it out there and makes it explicit. It does not apply to Westminster, and people will definitely need help to understand that.

Jatin Haria

I do not want to get into the constitutional question. What George Adam says may be true but there are also benefits. I will give two examples, which are more particular to black and minority ethnic communities. The question of the stigma of claiming benefits is a key issue. If the bill can reduce that stigma for the whole of the benefits system, it will reduce the stigma for all benefit claimants. There is some research that shows that there is underclaiming of benefits within black communities. If we do it better in Scotland and people claim more of what they are entitled to, I assume that they will increase their claims for reserved benefits as well, so there are definite benefits as well as possible problems.

Mark Griffin

Judith Robertson touched on my question when she mentioned independent advocacy. Do members of the panel feel that there is a need for independent advocacy in the system? Should a right to it be set out on the face of the bill?

Emma Ritch

Engender supports independent advocacy and I think that other submissions have clearly set out what principles should apply in that respect. Entitlement to advocacy should be on the face of the bill, in the charter or in some other appropriate place for the well-rehearsed reasons that the first panel highlighted with regard to its importance, particularly in the context of George Adam’s point.

The cat is out of the bag with regard to the different ambitions for a social security system in Scotland. In the roadshows that have happened across Scotland, communities have set out their ambitions for a system with dignity and respect at its heart, and those same communities are expecting to see such a system. Advocacy can be one way of helping those who are least able to articulate and advocate for themselves understand the myriad complexities of those two interlocking systems—which I am sure that no one sitting in this room would have designed had it been up to us to allocate power, responsibility and process between two different parts of the state.

11:15  

Chris Oswald

My answer to your question is yes, completely—we should have the right to independent advocacy. However, a more critical issue is people’s ability to access it. We have seen massive reductions in the provision of the advice service in Scotland, and the systems themselves are getting more complex.

An issue highlighted in the submissions from the EIA and others is that, with a 30-day appeal window, people might not have access to communications support or advocacy tailored to their specific needs, which could be driven by disability or age. The systems are very complex, and given that many citizens will struggle to deal with them, we need to have advocacy built in.

We also need to talk about the meaning of “adequate independent advocacy” and the potential inadvertent impacts of appeals timetables, which might disadvantage or discriminate against some sections of the community. However, that is all part of the design process, which we are starting to move into.

Judith Robertson

The right to social security, as defined under general comment 19, makes it clear that the social security system would

“ensure the right of individuals ... to seek, receive and impart information on all social security entitlements in a clear and transparent manner.”

Enshrining that right on the face of the bill will lead to those principles coming alive, being looked at and being addressed.

We need to remember—and this is where the importance of the PANEL principle of participation comes in—that the lived experience of people engaging with systems like this is one of difficulty. People generally require social security at those times in their lives when they are most vulnerable, and that is the underlying principle upon which we determine whether those rights should be applied.

In looking at all the technicalities of taking a bill forward, we should not forget that we are seeking to meet the requirements under equalities legislation and international human rights law to address the needs of some of the most vulnerable people first, foremost and with priority. That, for me, is what underpins this particular principle.

Chris Oswald

With regard to that response—and going back to something that Jessica Burns mentioned in the previous session—I think that the issue is the attitude of and approach taken by the new social security system. There is nothing to prevent reconsideration before an appeal, for example; after all, advocacy does not have to be adversarial.

It all comes down to the system’s purpose. One might say that, in Scotland, the ethos appears to be moving in the direction of promoting the public good, given that the system will be joined up and will work with other parts of the social welfare systems to promote and advance people’s income and rights. It could have been posited primarily on the ethos that public money should be protected. In that respect, we are at a very interesting juncture.

Ben Macpherson

I was going to ask a similar question to that asked by Ruth Maguire, but in light of the discussion, I want to clarify something with regard to the questions asked by Ruth and George Adam.

Correct me if I am wrong, but my position is that a full right to social security within Scots and/or international law is clearly not deliverable by the Scottish Government, because of the nature of devolution. Is the proposition, therefore, that the right to social security should come within the competence of the Scotland Act 2016?

Judith Robertson

In this bill, yes.

Ben Macpherson

I am looking at this from a drafting perspective. You are in fact advocating not a right to social security per se but a right to social security within the devolved competences of this Parliament.

Judith Robertson

Yes, that is what it would have to be. There are certain caveats with regard to the creation of the Scotland Act 2016 that have implications in that respect, but we are going to do a piece of work to generate a clear sense of what this will look like in the context of the devolved competence of the Scottish Government and Parliament. We have not done that work yet, but we will.

Ben Macpherson

Thank you for that clarification. I look forward to reviewing that work.

Jeremy Balfour

We have had a very helpful discussion on an important if limited area of the bill, but I am interested in the panel’s views on the wider bill. As I asked the previous panel, how much should be in primary legislation and how much should be in secondary legislation and regulations? Having looked at other systems around the world, would you prefer to have more in the bill than there is at the moment, or are you content for it to be followed by fairly detailed regulations? Finally, picking up on a comment made by one of my colleagues, should the bill contain a section that specifically says that we can create new social security benefits?

The Convener

Who wants to pick that up?

Emma Ritch

On the first question about the division between primary and secondary legislation, Engender’s submission makes it fairly clear that we want to see more in the bill. Parliamentary scrutiny is vital, particularly when we are considering a social security bill that contains quite a lot and needs to articulate well with another system of significant complexity. We have been particularly sensitised to the flaws of secondary legislation in our recent experience of the rape clause. I do not think that, when the clause was first conceived, it was intended to have the impact that it had; however, a lack of parliamentary scrutiny surely did not help its ultimate shape, and we want to avoid that kind of unintended consequence wherever possible.

As for other systems, we have referred to Canada, where quite detailed rules, including eligibility criteria, are prescribed in primary legislation. Doubtless there are many more examples, and I am sure that others are more qualified than we are to comment on them.

It is vital that new entitlements and the capacity to create them are included in the bill. We would also put in other measures, including the universal credit flexibilities that are now within the power of the Scottish Parliament. Something that we have long called for is individual rather than household payments for universal credit. Given the absolutely uncontested evidence that such a measure is in the interest of women’s equality and rights, we want that to be incorporated in the bill for future proofing purposes.

The Convener

Did you want to come in, Chris?

Chris Oswald

No. I was nodding in agreement.

Judith Robertson

My primary comment is about enshrining the right to social security in the bill and what the detail of that would look like in a new section. It would outline a range of processes that would impact on the rest of the bill.

As it stands, there are some gaps in the bill that we would like not to be there, and one of the key ones that I want to be explicit about relates to accountability and the scrutiny mechanism. The issue was discussed in the previous evidence session, and you might well go on to ask about it in your line of questioning. The scrutiny mechanism is absent but, from our perspective, it needs to be in the bill, and it needs to be underpinned by clear principles such as its being independent, its being statutory, its reporting to the Parliament directly, its having a broad mandate with enough powers to carry out that mandate and its having some element of public accountability, with its reports being published and made public. There should be a transparent process around it. The mechanism is absent from the bill and, as far as the question of balance is concerned, it should be included in it.

There are other things that we would strengthen in the accountability process. For a start, there is a duty on ministers to report, but there is little clarity on what they need to report and some clear indicators should be established to set out what ministers should be reporting. If the right to social security is enshrined in the bill, those indicators will be driven by it, and they could be established in a participatory process and be subject to review. There is no issue with flexibility around that, but the fact that they exist could be added to the bill, which would enhance the accountability process.

There is a range of elements that we would add. To be honest, after listening to the session this morning and your conversation about what is and is not in the bill, and given that regulations are subject to less scrutiny, we are of the view that it is better to include more in the bill than less. That is a principle that we hold to.

Jatin Haria

I totally agree with that. I hope that I am not about to go off at a tangent, but we were excited to see in the partial EQIA for the bill ministers saying that the agency must be an exemplar of equality for the Scottish public sector in terms of provision of support to people across all protected characteristics and in terms of the employment opportunities that are offered. However, that has disappeared from the final EQIA. There is some comment about being an international exemplar with regard to dignity and respect, but that is not quite the same thing as being an exemplar of equality in Scotland. That shows that there has already been some slippage, and we think that the more scrutiny there is of these issues, the better.

The Convener

Alison Johnstone will ask our last question.

Alison Johnstone

I will address my question to Emma Ritch.

The gender impacts of welfare reform are well documented, particularly by Engender, for which many thanks. It is difficult for women who are juggling many responsibilities to access the system in the first place. Do you have a view on the right to income maximisation and on people’s understanding of what they are entitled to and where they should go? We know from evidence relating to other Government programmes that efforts to increase that understanding can markedly increase a household’s income. Do you agree that there should be a right to income maximisation support, and, if so, what should it look like?

Emma Ritch

Engender has not considered that in detail, so I want to follow up my answer in writing, if I can. I know that the Scottish Government has funded some advocacy programmes that have resulted in some quite significant income maximisation for households.

I entirely agree that the system is confusing at present, and it runs the risk of becoming much more confusing as it tries to articulate with the UK social security system. In our discussions with civil servants, there has been mention of the “no wrong front door” principle, which means that individuals approaching either agency will get signposting and will not be turned away if they have inadvertently approached the wrong agency.

However, there are some things in the bill that might be difficult for women in terms of their propensity to approach agencies with information. One of those is the seeming harshness with regard to the question of overpayments and whether notification might result in the clawing back of overpayments that might well have been the result of the agency making a wrong determination at the start.

In its written submission, Justice Scotland makes an interesting point about criminalisation, saying that the approach, which appears to criminalise mistakes and errors that were made without full knowledge of their impact, seems to sit at odds with the Scottish Government’s understanding in other policy domains with regard to reducing female imprisonment. There should be additional support for people as they try to wend their way through this thicket.

I will come back to you on the specific question of the right that you propose.

The Convener

Does anyone have any final comments?

11:30  

Judith Robertson

My final comment is on the right to social security in the broader context. Ideally—and this addresses Alison Johnstone’s question, too—we would not incorporate the right to social security in isolation. Instead, we would incorporate into Scots law a range of economic, social and cultural rights such as adequate standards of living, the maximisation of income and so on. The right to social security would be one component that we would use to support people’s economic, social and cultural rights.

Ideally, all economic, social and cultural rights would be incorporated into Scots law, and we welcome the Scottish Government’s recent announcement and establishment of an independent process to consider how that process can be enhanced and developed. My predecessor, Professor Alan Miller, is leading that work, and I think that it is a welcome development as far as the broader context is concerned. Perhaps it can provide some answers to some of the concerns that have been expressed here about what happens if we do this for this particular issue. We need to bring such questions much more broadly into public discussion and debate.

Jatin Haria

We hope that you will support the equality principle that we are arguing for, and we want there to be far more consultation with equality groups throughout the whole process. We have not touched on this, but we hope that as much quality data as possible will be collected and analysed in the process so that we can deal with any discrepancies that arise.

Chris Oswald

The bill and this scrutiny are to be welcomed. We and the Scottish Human Rights Commission see the bill as a fundamental opportunity to advance equality and human rights in a way that is not being done elsewhere. In that respect, we are acting very much as critical friends. As for the point that Jatin Haria made, we are working with the agency to try to get as much data as possible, and I hope that we will get everything that we possibly can get.

An issue that has come up a number of times but which has not really been addressed today is the distinction between errors and omissions on one hand and fraud on the other. We need to be much clearer about that. Clearly, there is organised fraud relating to social security systems; we know that, and we accept the need for legislation to deal with that. However, the idea that people will have their income withdrawn and then be subjected to lengthy investigations as a result of genuine errors and omissions runs against the spirit of what the legislation is attempting to do as well as convention rights. We are against that.

The Convener

That was very succinct. We all got what you meant.

Emma Ritch

I would make a final call for the incorporation of the principle of equality and non-discrimination in the bill. That is important. We welcome the spirit of the bill, but we believe that the idea of equality could be added into human rights work, where there is a specific impact. For example, in relation to the welcome commitment to training agency staff on human rights-based approaches, our colleagues in race equality and gender equality organisations have front-line experience of working on issues such as the Scottish welfare fund and training for staff, and they could usefully be brought into the mix.

The Convener

Thank you all for your answers. We will follow some of them up. We also look forward to the publication of your report, Judith. If it is published in time, will you pass us a copy?

Judith Robertson

Which one?

The Convener

The one that you were speaking about.

Judith Robertson

Okay.

The Convener

That would be great—thank you. We now move into private session.

11:34 Meeting continued in private until 11:40.  

The Convener (Sandra White)

Good morning, everyone, and welcome to the 18th meeting in 2017 of the Social Security Committee. I remind everyone to turn off their mobile phones, as they interfere with the recording system. I have received apologies from Pauline McNeill MSP and Alison Johnstone MSP.

Item 1 on our agenda is the continuation of evidence on the Social Security (Scotland) Bill. We will have two panels this morning. I welcome our first panel: Paul Smith, who is a member of the administrative justice committee of the Law Society of Scotland; David Semple, who is chair of the Scotland committee at the Public and Commercial Services Union; and Nicola Dickie, who is policy manager at the Convention of Scottish Local Authorities.

I will kick off with a general question before I open up the discussion to other members. In previous evidence sessions, we have asked our witnesses for their views on the bill’s principles and the proposed charter. What are your views? What impact, if any, will the principles and the proposed charter have on the organisational culture of the new social security agency?

Paul Smith (Law Society of Scotland)

Good morning. The Law Society warmly welcomes the fact that the principles surrounding the new social security arrangements in Scotland have been placed on the face of the bill. When they are supplemented by further information in the charter, we feel that they will lead to a fairer and more just social security system than currently exists. We would have liked to see included in the principles an additional point about preserving the integrity of social security in the new system in Scotland. Other than that, however, we warmly welcome the principles. They will probably also help to foster a better, more mutually respectful relationship between agency staff and the customers that they deal with day to day.

Nicola Dickie (Convention of Scottish Local Authorities)

COSLA remains supportive of the bill’s principles and the approach that has been taken to devolved social security to date. The principle that social security is a human right is one that local government recognises is important, and we note the Scottish Human Rights Commission’s narrative about the key elements being things such as the availability, adequacy, accessibility and affordability of social security. Those elements will all have to be determined and evaluated so that social security being a human right is genuinely borne out.

We are also supportive of the Scottish ministers ensuring that individuals are given what they are eligible for, and we think it is really positive that that principle is on the face of the bill. That will go some way towards assisting individuals to claim their full entitlement. Local government is actively involved in making sure that everyone claims what they are entitled to from the various elements of social security.

Our membership has pointed to the fact that the provisions could be strengthened by making the principle a bit stronger around people having access to independent advice and support to enable them to get what they are eligible for. We know from our work with the most vulnerable in our communities that those who need the most help are the ones who are least likely to claim what they are eligible for. That is one thing that local government is interested in strengthening and expanding.

David Semple (Public and Commercial Services Union)

Like my colleagues who have already spoken, PCS very much welcomes the inclusion of the principles on the face of the bill. For us, the key issue is not so much the principles, on which there does not seem to be a huge amount of disagreement between us and ministers, but how things are implemented.

We welcome many things about the bill—the commitment to a face-to-face service and the dignity and respect that that can provide; the plans for determination without application, which, from the perspective of colleagues who work in the Department for Work and Pensions, go back to the good old days of the pensions local service and benefit uptake work, which was the positive face of social security; and the open-handed way in which the Minister for Social Security and social security agency colleagues have worked with the union to bring forward implementation.

There are a range of ways in which the bill could give better impact to the principles, and I will mention a few of those. A commitment in the bill to the exclusion of private providers is a key issue. I do not need to tell the committee about the impact that private providers have had in relation to reserved benefits and the destruction of the reputation of the Department for Work and Pensions.

We would welcome the inclusion in the bill of a commitment to an annual uprating of benefits. Decoupling the annual uprating from being in line with the retail prices index and inflation has been a significant move by the Westminster Government.

We also call for a commitment to mitigate sanctions using the short-term assistance that is included in the bill, a commitment to vigorous scrutiny—having spoken to the minister, I know that she is far from opposed to that, but it is for the committee to decide how best to give force to such scrutiny—and a commitment to all devolved benefits having a payment pending appeal process, which is a step beyond what the bill includes at the moment. The bill allows for short-term assistance, but it should go back to the system before the Welfare Reform Act 2012, when claimants could continue to receive their benefits until their appeal, if a decision was made against them.

Those commitments would give much greater force to the principles, which we broadly welcome.

The Convener

Thank you very much. We will investigate that further as committee members ask their questions.

Mr Smith, I am interested that you consider that the charter will foster a better relationship with the clients or customers. There are charters in other public service bodies such as health boards, although I do not know whether there are any at the DWP. Will you elaborate on what you mean by fostering better relationships? Will the charter be better than charters that we already have in other public service bodies? Perhaps our other witnesses will also want to say something about that.

Paul Smith

The basis for the point that I made was that, over time, as the administration of benefits has become more centralised and been taken out of the local area, the gap in the face-to-face relationship between DWP staff and the clients who they deal with has become ever wider. As a result, contact between them is now largely by post, telephone or email. As David Semple suggested, that has led to a breakdown in the relationship between the staff and the clientele, which needs to be fixed. It would not be overstating the position to suggest that, at the moment, there is a relationship based on mutual distrust. That should be turned around so that there is a mutually trusting relationship between the staff and the clients who they deal with. To bring that about, a good deal of work will be needed by way of customer service training, as well as the other training that staff will need.

David Semple

I absolutely agree with that. However, we cannot have a conversation about distrust without talking about sanctions, which are what began the distrust between claimants and staff, who have always been there and believed that their job was to support the claimants.

Nicola Dickie

I do not disagree with anything that has been said. COSLA welcomes the intentions of the charter. Anything that can foster a good relationship between the most vulnerable in our society and those who are charged with helping them to claim social security seems a good thing. In conversations with local government officers, they have been clear to me that the charter should be a two-way process and it should have rights and responsibilities. That is the way to breathe life into it, so that staff at the agency do not see it as something to beat them over the head with. It is the opposite: it is a contract between them and the people who they are serving.

There should be lots of plain English in the charter. It should be usable. We should be able to display it and people on both sides of the table—those who are claiming assistance and those who are helping with it—should be able to buy into its ethos. There is a real opportunity for us to do that, and it helps that the bill commits ministers to co-producing the charter with those who will use it.

We would emphasise that there is an awful lot of experience across the public sector landscape in Scotland. It is not only people who claim benefits and those who are charged with giving them out who should be involved; everyone in the public sector landscape should bring what they know about relationships with customers to the forefront. We are absolutely in agreement, and we stand ready to help from a local government perspective.

The Convener

Thank you very much. That is certainly what I heard when I spoke to staff and claimants in jobcentres and so on. Technically, they are not called jobcentres now, but you get the drift.

Ben, do you want to come in with a supplementary question?

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Yes please, convener. For clarity and transparency, I note that I am no longer a non-practising member of the Law Society of Scotland, but I am still on the roll of Scottish solicitors.

Paul, your point about the principles of general acceptance and agreement was really interesting. Your proposal for ensuring the integrity of the system has not been made elsewhere. Would you like to elaborate on exactly what you mean by that and why you think it is important?

Paul Smith

It goes back to the question about rights and responsibilities. As well as ensuring that everyone who is entitled to a benefit actually goes on to receive it, it is important to recognise the inherent risks of fraud and overpayment. Over the years, the Comptroller and Auditor General has refused to sign off the DWP’s accounts because of the unacceptably high level of fraud in the system. The majority of the principles in the bill relate to how we make the system better for users. The Law Society feels that there is also a need to recognise the risk to expenditure and the taxpayer.

Ben Macpherson

Thank you for clarifying that.

Ruth Maguire (Cunninghame South) (SNP)

May I ask a tiny supplementary, convener?

The Convener

Yes.

Ruth Maguire

Is it not the case that fraud makes up a tiny percentage of expenditure, and that administrative errors make up a bigger proportion?

Paul Smith

Yes—absolutely. I think that the figure is about 3 per cent of overall expenditure, which is, as you say, a very small amount. However, it is concerning that the Comptroller and Auditor General will not sign off the accounts because of that.

David Semple

I add that we also have to take into account the amount of benefit underpayment in the system at the moment, which runs to billions of pounds.

The Convener

Thank you for that.

Adam Tomkins (Glasgow) (Con)

I want to ask the panel two questions, but before I do so, may I pick up on something that Mr Semple said? I saw in PCS’s written evidence that it is strongly opposed to the involvement of the private sector in processing disability living allowance and personal independence payments. Is the union equally opposed to the use of the private sector in the delivery of devolved employability services?

David Semple

Yes. We have spoken about that with the minister and the implementation colleagues who are involved in employability work. For context, I want to be clear that our opposition is not purely ideological; it is based on performance. None of the privatised employability contracts have had the same delivery outcomes as previous state-run programmes. If we go back a little way—this was two Governments ago—the outcomes of the new deal in terms of finding people employment were 0.5 per cent higher than the equivalent in the private sector.

Adam Tomkins

I appreciate that clarification. Thank you.

The first question that I want to ask the whole panel is about the structure of the bill, and in particular the relationship between what it is proposed will be in the bill and what it is proposed will be done by regulations thereafter. Last week, the committee heard from eight witnesses, and the note from the clerk says that there was a universal view that the balance between primary and secondary legislation is not right. Do you agree? If you do, what should be in the bill that is not in the bill?

09:15  

Paul Smith

As you will see from the Law Society’s submission, we did not have any particularly strong issue in this area. However, having seen the responses from people who have submitted to the committee, I think that the key issue would relate to the need for some sort of independent oversight of the system. Many people advocate putting in the bill a body such as the Social Security Advisory Committee, and that is a good idea. Whether it should be a body that looks like the SSAC or a better body is for the Scottish ministers to decide.

The general view is that anything that is in the bill becomes difficult to change thereafter, whereas any provisions that are in secondary legislation can be changed. At the same time, I recognise others’ concerns about the scrutiny of secondary legislation. Perhaps that issue should be considered further.

Adam Tomkins

I am sure that we will come to questions about advice and scrutiny in due course. Perhaps I did not make my question very clear. I am particularly interested in whether the rules for the eligibility and operation of the devolved benefits are appropriately left to secondary legislation, as the bill proposes, or whether we should replicate existing United Kingdom legislation and have much more detail about eligibility and operation of the benefits in the bill so that we can scrutinise it as the bill goes forward. I should probably have made that clearer.

Paul Smith

All that I would say in response is that I need to stick by what the Law Society says in its submission. The current level of detail in the bill is more or less right.

David Semple

We concur. Broadly speaking, the balance between the two is right. That is not to say that other things should not be included in the bill. I have already mentioned the uprating of benefits, which I presume will be included in the secondary legislation when the regulations are devised. I would prefer that to be stated up front in the primary legislation.

There are a number of other things that we want to be included. The process for mandatory redetermination is controversial, and we argue that it replicates too closely what is included in the reserved benefits. Changes should be made to that in the bill. In general, however, the balance between the two is fine.

Nicola Dickie

From a local government perspective, we understand the rationale for much of the nuts and bolts being in the secondary legislation. That said, I agree with David Semple that some things, if they are to be applied consistently across the whole of devolved social security—things such as uprating and residency requirements—should be in the bill, and we were quite surprised that they were not included.

Another aspect is backdating. When universal credit was introduced, full-swoop backdating went from something that was quite long to one month. We would see some benefit in putting things such as that into the primary legislation. That is not to say that we do not understand the reasoning behind putting some stuff into secondary legislation.

The other thing is that, if the parliamentary process means that it takes three or four years to scrutinise this, we might well end up with backdating for one benefit being entirely different from backdating for another, just because of the way the parliamentary process works. The Scottish Government has been clear that devolved social security is an opportunity to simplify the system, but it might look a lot less like simplification if that is how things pan out.

Those things are worth another pass.

Adam Tomkins

My second question concerns the power to create new benefits. We know that section 45 of the bill includes a provision for the top-up power, but there is no section in the bill that enables the Scottish ministers to create new benefits. Is that an omission that, in your view, should be rectified, or is that okay?

Paul Smith

I do not think that the Law Society has a strong view on that, and neither do I, personally.

David Semple

We undertook a huge degree of consultation with members in the Department for Work and Pensions on precisely these kinds of issues. Some of our members harked back to previous benefits and argued that there were advantages to them. Arguably, in any area that is not covered, you could say that there should be a space for the Scottish ministers to enact a new benefit. However, that is surely something that would need to come back to the Parliament for further discussion, scrutiny, public consultation and so on.

Nicola Dickie

I agree with David Semple. That provision is not in the bill but, in the grand scheme of things, it might be something that is worth another look at a later date. However, what we are hearing is that the safe and secure transfer of powers is far more important than having a conversation about new benefits. That is certainly what is exercising the minds of people who are supporting vulnerable customers on the ground.

Paul Smith

Listening to colleagues, I have had a further thought. We are talking today about a system that has not yet been fully devolved. It is not difficult to imagine that, with greater devolution of powers from the UK to the Scottish Government, social security will be devolved entirely to the Scottish Parliament. That makes me think that it might be helpful to include in the bill the power to create new benefits that suit the needs of Scottish people.

The Convener

The evidence that we are hearing in the committee is that it is very important that the transition of powers goes smoothly for the people who are accessing benefits.

Jeremy Balfour (Lothian) (Con)

We have had quite a lot of submissions and discussions about independent advice, how it should work, whether it should be provided for in the bill and, if so, what those provisions should be. I would like to hear views on that and on how it should be funded. Should there be a special Government grant? Should it be similar to the legal aid system that we have at the moment?

My second question is aimed at David Semple and is about the involvement of private sector organisations. I assume that we all want to have in place the best possible service for claimants. We can have a debate about whether that is happening at the moment, but, in principle, why could a private company that trained its staff properly and had a proper chain of accountability not be able to provide that service as well as the public sector? Is it simply because a company is private that you are opposed to its involvement? I am not saying that the system is working at the moment; I am asking whether, if it could be shown that a private sector company could provide the service as well as the public sector could, you would still be opposed to its involvement.

David Semple

I will answer the second question first. I do not believe—no evidence has ever shown me or my colleagues across the union—that the private sector can deliver what the public sector can deliver in that regard. I suppose that comes down to a matter of motivation. The motivation of the private sector is to extract the maximum amount of money from a contract in order to make a profit, whereas the motivation of the public sector is always to deliver a quality service. With regard to any private sector service provision under the DWP—whether it be jobseekers allowance telephone lines, some of which are run by Capita, the employability contracts, the situation with healthcare providers and PIP claims, and so on—there is a continual issue around quality.

There are continual issues with staffing, investment in staff training and so on. The service is never delivered to the same standard as the DWP service, which is why—repeatedly and routinely, for all private contracts—DWP staff end up being moved across to the private sector provider to support its delivery because it cannot deliver the service by itself. I think that that comes down to the private sector motive being profit as opposed to public service.

To respond to the more general point on independent advice, we do not have particularly strong views on that. We would say, without wishing to denigrate in any way the excellent work of many of our colleagues in the independent advice and guidance sector, that such advice is required these days because of sanctions and the distrust between DWP staff and claimants. If there were no sanctions regime, claimants could get that advice from DWP staff. That would be the ideal way to proceed, bearing it in mind that I believe that a lot of services should be delivered purely as public services. In the fullness of time, we should have all those services delivered at one point by the public sector.

Jeremy Balfour

Twenty years ago, when DLA was introduced as a new benefit, there was as much representation at tribunals as there is for PIP these days—in fact, there was probably more. Are you saying that people will not need independent advice under the new system if we get it right?

David Semple

No, sir. Obviously, we want people to have as much opportunity to get as much advice as possible, and there is definitely a role for the independent sector in that. However, people would not need to go to independent providers to ask about small things such as eligibility rules and how to claim a benefit, because they would not be afraid to walk into whatever the Scottish equivalent of a jobcentre will be to get that advice.

A few years ago, it was the case that claimants would come in with no idea about what they were eligible for or what to claim. A member of staff would sit with them and fill in the claim form. That was 40,000 job cuts ago. If we went back to having a properly staffed public service, people could get that level of support from it. That is not to take away the role of the independent sector in tribunal representation and so forth, because in those circumstances people are appealing against decisions that are made by DWP staff.

The Convener

Does George Adam want to ask a supplementary before the other witnesses come in?

George Adam (Paisley) (SNP)

Yes. Those points go back to an issue that we were discussing earlier.

I am sorry—I forgot to say good morning to the witnesses.

Paul Smith said that there is a culture of mistrust between claimants and the DWP. The bill is about trying to create the type of atmosphere that David Semple is talking about, in which a claimant will get the opportunity to sort things out at that level.

On the subject of advice, I know, as a former local councillor, that local authorities already have a duty to ensure that people have access to such advice. If a requirement was placed in the bill, would that not involve, to a certain degree, the centralisation of independent advice? That would affect delivery in local communities, especially given the differences between rural and urban communities. Is not local government best placed, therefore, to continue to provide the types of advice services that they already provide?

There are two sides to my question, but it is all about independent advice.

The Convener

Does Nicola Dickie want to come in on that, given that George Adam mentioned local government?

Nicola Dickie

From a local government perspective, we believe that, regardless of how well we do in making the system much better for people to navigate, if we are to ensure access to social security as a human right, people must be able to access independent advice.

I agree with what David Semple said. If we design good processes, people will not necessarily have to seek help from advice agencies to fill in a form as they might do at present. People would be able, through whatever means they find accessible, to navigate the system themselves. However, there will be a point at which, regardless of how we set up the agency, and with the best will in the world, some people will have to be told, “I am sorry, you are not entitled” or “You don’t qualify”. At that point, the person surely has the right to step outside and access independent advice and support.

Mr Adam’s point is correct—local government does have internal welfare rights teams. In recent years, the vast majority of local authorities have moved those teams into the realm of social work and they have become advocates for the customer. How we do it and whether the Scottish ministers should allow local government to commission that support locally is a different conversation. Our principle is that if the agency is coming in and it is expected that people will require advice and advocacy, someone has to pay for that. I am sure that some members will have visited the advice and advocacy projects that are running in Scotland and will know that there are queues of people accessing them.

09:30  

We have to be aware that there are two things at play. In principle, do we think that people accessing devolved social security will need independent advice and support? Local government would say, “Yes, they do”. Then there is a conversation about the best way in which to deliver that. The local government take on that would be that those who are closest to the communities are in the best place to decide how and when that advice and support should be provided.

Paul Smith

I agree with everything that Nicola Dickie and David Semple have said. Over the years, and especially in the last 20 years, the local advice sector has been squeezed year on year, with the result that it is struggling to meet the demand placed on its services. However, it is heartening to see the minister’s announcement about providing better face-to-face contact with clientele at the very beginning of the claim. If you get things right from the beginning there will be fewer cases at the end that have problems that need to be resolved.

We already have a fairly well established network of advice givers across Scotland. We could look at how they might be better co-ordinated. We also need to look at how those services are funded and think about what kind of demand is likely to continue to come to their doors once the new arrangements are fully in place.

On the question of independent advice, Mr Balfour mentioned legal aid. As the committee probably already knows, there is currently no provision for legal aid to take an appeal to the first-tier tribunal or the upper tribunal, unless a case is of such complexity that the upper tribunal judge suggests that legal aid should be provided. However, that is the exception to the rule.

Tribunals were never intended to be overly formal forums for decisions—they were meant to be informal, quick and cheap in comparison to the courts. However, as we know, over the years the law becomes more complicated and in reality people need legal advice.

David Semple

I will respond to Mr Adam’s point. I do not disagree that my colleagues in welfare rights organisations across local authorities have an important role to play in the system. On delivering to both rural and urban communities, we welcome the commitment by the minister to have a presence across communities in Scotland and a face-to-face service to allow the new social security agency to interact with claimants in such a way. Whether that involves the agency having its own premises or being co-located in local authority premises is a discussion about resources rather than about the principle. We support the principle.

Ruth Maguire

I want to tease this out a bit. When we talk about advice and advocacy what is brought to mind is an outside organisation. However, we heard last week that informal advocacy that is sought out by the person who is entitled to the benefits is equally powerful.

I think that David Semple has already touched on this, but is it not the case that if we change the relationship between the agency and the people entitled to benefits we can be just as effective? I was struck by a local authority worker’s comment that where they once used to do income maximisation they now did income defence. Surely if we get the agency’s relationship right and ensure that those who work in it are empowered to maximise people’s entitlements, the need for the formal aspects will be reduced.

David Semple

I absolutely agree. We have already discussed the need to get the culture of the organisation right, and I think that that is crucial.

However, as far as culture is concerned, I point out that new DWP staff are inducted with the idea of eradicating poverty. It is all very well to say the right words, but if you do not have the resources, you will not, even with the best will in the world, deliver the outcomes. With regard to staffing, for example, you should not be running around, doing 15 cases instead of the three that are appropriate, and you should be giving full support to the people involved. After all, for a lot of our staff, these are people, not just numbers on a page.

Paul Smith

We are talking about a culture and a mindset. At the moment, the emphasis appears to be on quantity rather than quality, and that needs to change.

Nicola Dickie

I do not disagree with my colleagues on this. I go back to the principle of social security as a human right. In my view, if that is the principle and if we know that people need help to access that right, the provision of access to independent advice should be a principle, too. I absolutely take the point that if we design good processes and if there is a culture and ethos of doing things the way in which Scotland wants them to be done, that will go some way towards dealing with lower-level tasks such as form filling and so on.

Ruth Maguire was absolutely right about local government. It has been a long time since we in local government have been able to prioritise what we want to do with income maximisation, because we have had to spend a long time dealing with potential service failure elsewhere in the public sector.

For me, it comes down to two questions. Do we agree with the principle that if people are to access what is a human right they will need support? If so, what are the ways in which we can take that forward? I know of a number of ways, and all of the things that have been mentioned will definitely be relevant.

The Convener

Mark Griffin has a supplementary, but I think that he will then ask some other questions.

Mark Griffin (Central Scotland) (Lab)

I want to come back to the point that, if we can get the culture in the agency right, the people who come through it will not have as great a need for independent advocacy and advice. Of course, even if the culture is right at the beginning, that does not mean that it will be right in perpetuity.

We have spoken about the system at the DWP, where a political change has led to greater need for independent advocacy and advice, and it might well be that, regardless of how well the new agency is set up, a change in Government or a minister who goes in the direction of reducing the benefits bill and charges the chief executive of the agency with altering its culture might lead to more of a need for independent advice and advocacy. If we are to safeguard social security as a human right, regardless of the culture of the organisation, we should ensure at the outset that people have a right to independent advocacy so that there is no abuse of state power and the right of the individual is always protected. The way to do that is to put it in the bill.

David Semple

I agree that a change of Government or priority can change the culture of any organisation, but that situation is not specific to the proposed social security agency; it is also true of organisations that have to deliver welfare rights, which have also been subject to cuts. Cuts to the legal aid budget, local authorities and so on have driven changes to the organisations affected, because they do not have the resources to deal with the claimants as they would like. The key priority is for everybody in the room to be committed to properly funding the organisation as well as independent advice and guidance.

I do not have a horse in the race about whether the provision of advice should be enshrined in the bill but, on the idea that the culture might change, we should set everything in place at the start to make sure that it does not change. That should be a key focus of the bill.

Nicola Dickie

Mark Griffin spoke about how things might change in future. I note that the bill includes a redetermination process. If you spoke to independent or local government welfare rights teams and advice teams, I am sure that they would tell you that they spend an awful lot of their time helping people to navigate the current mandatory reconsideration process. We recognise and are totally on board with the ideas about culture change in an organisation, but the bill as drafted does not do away with the fact that people might still have to have an internal review by the Scottish Government or the agency and then have to move to another stage. Right away, we have designed in an aspect that means that we are already seeing significant spikes in the services that we provide.

Marrying up the two things is important to us as we move forward. There is a balance to be struck between making the processes good and usable and ensuring that people get the right outcomes. There is also a requirement to note that people will want to step away, in the same way that they often step away from local government. People might not want to come to local government welfare rights teams. They might want to go independently, and that is why local government does a bit of both. We do what we do internally, but we also fund external services because we recognise that, at some stage, people will want to step away from services that are provided by local government.

The Convener

Yes—they have choice, to an extent. Do you want to comment on that, Paul?

Paul Smith

I have nothing further to add, convener.

The Convener

Jeremy Balfour has a supplementary question before Mark Griffin comes back in.

Jeremy Balfour

On Nicola Dickie’s point, there is a danger that we will paint a picture that shows that, if we change the culture, everybody will be really happy. Whatever system we design and however friendly it is, some people will get an award and some will not. We need to design a system that protects those who get turned down but might still deserve an award. That brings me back to David Semple’s point, because is that not the role of independent advice?

There must be a difference between advice and representation. We often use those words as if they are the same things, but there is a difference between someone getting advice when they go in at an early stage and someone getting representation at whatever level they need it. I am just slightly concerned that people think that, if we redesign everything, everybody will get an award, because that will clearly not be the case. There will be people who do not get an award, and it is about how we look after those individuals.

Paul Smith

The problem partly stems from the toxic relationship that exists between claimants and DWP staff. Another factor is people taking decisions to appeal tribunals, where the success rate is running at 63 per cent for employment and support allowance and PIP appeals. As long as that is the success rate, people will be distrustful of the decisions that are made in the DWP.

There is also an issue about how we improve decision making. Given that mandatory reconsideration was meant to enable the DWP to get its decisions right or to correct them at the earliest opportunity, why is the appeal success rate not reducing? Why is the percentage of mandatory reconsiderations that are successful in the claimant’s favour running at only 13 per cent? Those issues are all relative.

Mark Griffin

I want to ask about the new offences that the bill creates and about applicants providing the wrong information.

Under the current DWP system, the prosecution has to prove dishonesty in the application, whereas the evidence that the committee has received is that the system proposed for Scotland is that there would be no requirement for a prosecution to prove dishonesty. An honest mistake made by an applicant could result in a criminal prosecution. What is the panel’s view of the legislation as drafted? Do the witnesses agree with the evidence that we have received on the new offences regime? Should any changes be made?

09:45  

Paul Smith

Prosecuting people for accidentally providing incorrect information is quite an unhealthy proposal. Some evidence of intention to defraud has to be the basis for any decision to prosecute someone.

David Semple

I completely agree with that. If what Mr Griffin has just outlined is in the bill, and the obligation on the department to prove that there has been dishonesty at the outset has been removed, that is unhelpful. The fraud and compliance officers that I work with are serious and specific about exactly that issue; they have to prove dishonesty before referring to the courts. Off the back of that approach, many things are settled informally, which is the way that things should go.

The Convener

My understanding of the bill is that dishonesty has to be proved. I suppose that whoever reads the bill can project from there, but that is my understanding. Does Mark Griffin want to come in again?

Mark Griffin

No; I was just reflecting the evidence that we have received.

Ruth Maguire

On the point about redetermination, I understand the pain that folk are going through with the current system. Would it not usually be quicker for the agency to set something right, rather than a person having to go to a tribunal? Even if a case goes directly to tribunal, would that not slow things right down, even for a simple case? I care about my constituents getting the money that they are entitled to; the quickest way to do that feels like the agency having an opportunity to put something right if they have not got it right the first time.

Nicola Dickie

I am not advocating that the agency should not have the opportunity to do an internal review. If they do an internal review and do not change the decision to the customer’s benefit, I am advocating that the case then proceeds to a tribunal. That system goes back a number of years, beyond the Welfare Reform Act 2012.

Local government subscribes to the notion that decisions that are incorrect or need revisiting should be handled at the lowest possible level. That is what we in the public sector are signed up to do. We suggest that some of the barriers—perceived or otherwise—in a mandatory reconsideration process, around feeling disempowered, having to put in a second request to go to tribunal or having to provide additional information, would be retained in the system.

Ruth Maguire

Can we remove some of those barriers, rather than saying that redetermination is not the right way to go?

David Semple

Members with constituency work will remember the way that things used to be done with form GL24, which claimants filled in whenever they appealed against a decision. That form would wind up with the tribunal, but, before that, it would go through the internal review process. That process was changed for the purpose of removing benefit, pending appeal. Once it was decided that a person was disallowed benefit, the benefit was stopped. The person then had to put in a request for mandatory reconsideration and wait for that to come back, after which they could put in a request for an appeal and benefit payments would resume. The purpose of mandatory reconsideration was to remove benefit entitlement.

The problem is that mandatory redetermination does not allow for the continuation of benefit entitlement, but it does allow for short-term assistance to be applied. The bill does not say how much that will be or whether it will be at the same rate as benefit entitlement, so the problem is exactly the worry that Ruth Maguire raised about supporting constituents as they go through the process. We would like to see full payment of allowance pending appeal—the existing benefit entitlement rate being paid all the way through any redetermination of a case or looking at it again, until the tribunal itself. That has to be key.

What we call it or what we do between those times will matter less to the claimant if they are not struggling to pay for what they eat. However, on the question of terminology and having the “MR” term, a lot of claimants coming through from reserved benefits will be familiar with that term and hostile to it. It is absolutely right that we should look at everything again when it comes back to us by way of going to an appeal. That is the most helpful thing for the claimants. However, we should definitely look at changing the terminology as well as making sure that benefit entitlement is not challenged by the redetermination process.

The Convener

Paul Smith, would you like to come back in on any of that?

Paul Smith

When mandatory reconsideration was brought in through the Welfare Reform Act 2012, all that it really did was put another barrier in front of people before they got to a tribunal. The system that was in place beforehand was that a claimant had an immediate right of appeal but that the agency undertook a review. If it changed the decision in the claimant’s favour, the appeal was cancelled. MR was almost an acknowledgment by the Department for Work and Pensions that it might have got its decision wrong, so it reserved the right to have another bite of the cherry and, until it got that, the claimant would not have access to a tribunal. The other problem was that there was no time limit for mandatory reconsideration to be carried out. Benefits stopped and people were left in perilous situations.

Ruth Maguire

Just to be clear, there will be a time limit on the redetermination process, and short-term assistance is proposed. I hear what the panel says about benefits pending appeal. The challenge that springs to mind is what we do with overpayments if appeals are not successful.

David Semple

Under the old system, if an appeal was unsuccessful, the date of disallowance was the date of the appeal decision, so there was no overpayment—and that is what we want to see.

The Convener

I am being reminded that the Government has published a paper on redetermination. I presume that the panel has seen it. I will not ask panel members for their comments on it; I am just checking whether they have seen it.

Adam Tomkins wants to come in with a supplementary question.

Adam Tomkins

It is on a different issue, convener. While we have COSLA in front of us, I think that it is important to get on record its views about discretionary housing payments. There are some quite powerful remarks in paragraph 11.4 of COSLA’s submission, which I will quote:

“It is imperative that there is clarity over the future use of DHPs, as early as possible.”

It goes on to say that its reading of the bill

“suggests that there is no duty on Scottish Ministers to provide funding more widely for DHPs going forward. Without clarity, there is a risk that Councils continuing to provide DHPs will find that the funding is not available in the future for this.”

While we have Nicola Dickie in front of us, I invite her to expand on that, because it seems to be a very important point.

Nicola Dickie

We have long called for a whole-system review of DHPs. We welcome the fact that bedroom tax will be taken care of at source. That said, that does not get us away from the traditional DHP and takes us back to the way that such payments were before the bedroom tax became the mainstay of what was going on. As we see it, the bill points to local authorities not having to have DHPs. I am not aware of any local authority that is planning to do so, to be honest.

Our membership said that the other thing that the bill does not do is require the Scottish ministers to provide funding for DHPs. If we look at the Scottish welfare fund, which is a similar fund but does something slightly different, there is a statutory requirement on local authorities to provide welfare funding as long as moneys are paid in by the Scottish ministers. Our members point out that it is imperative that we get clarity. If the Scottish ministers are taking care of their commitment around bedroom tax at source, where does that leave us with the traditional side of DHPs and also, increasingly, cases that are being used through DHPs around the benefits cap? Those matters will not be sorted at source and there will still be a requirement for local authorities to deal with them.

The Convener

Does anyone else want to come in on that point?

Ben Macpherson

My question is also for Nicola Dickie. In paragraph 12.2 of its submission, COSLA touches on no recourse to public funds, on which I am doing work with Shakti Women’s Aid in my constituency. Why do you think that it is important for that to be considered in the framework of the new system, given that it is principally an immigration issue, and immigration is reserved? It is a very complex area to navigate as things stand, and it is right that you have raised it.

Nicola Dickie

We are looking for consistency on that. With the way in which the regulations will be developed across the various benefit streams, we might well come across some quite odd connotations as we move forward. We expected to see something in the bill about whether access to devolved social security would be on the prescribed list of things that people who have no recourse to public funds can access. We are not looking for all the answers to be put in the bill, but we would look for that principle to be in there. From the Scottish ministers’ perspective, should those with no recourse to public funds be accessing devolved social security?

That is the clarity that we are looking for. If there has to be a distillation between on-going benefits and access to one-off payments, we should have a conversation about that. We were pointing to the fact that there has been no such conversation, as far as we are aware, and the principle is not dealt with in the individual schedules for the secondary legislation. We do not have the answers, but we need to have that conversation, given the number of people who are in that situation in Scotland already. Very often, local government finds itself picking up such people if they become destitute.

Ben Macpherson

I agree. It is an important point that has not been emphasised so far, so I thank COSLA for highlighting it.

The Convener

I thank our witnesses for the very interesting evidence that they have given, which the committee will certainly look at.

09:57 Meeting suspended.  

09:59 On resuming—  

The Convener

I welcome the second panel of witnesses. Simon Hodge is a solicitor at the Scottish Association of Law Centres, Rob Gowans is a policy officer at Citizens Advice Scotland and Richard Gass is the chair of Rights Advice Scotland.

I will start with a question that is similar to the one that I asked the previous witnesses. You were here, so you probably heard their answers. In previous evidence sessions we have asked our witnesses for their views on the principles of the bill and on the proposed charter. What are your views? In what way, if any, will the principles and the proposed charter influence the workings of the new benefits agency?

Rob Gowans (Citizens Advice Scotland)

CAS generally welcomes the principles. In particular, we welcome the principle that the Government has a role in ensuring that people receive all the income that they are entitled to—that is very important—and the principle that social security is a human right. We have suggested the inclusion of a couple more: first, that the system should be accessible and fair and, secondly, that procedures, decision making and reviews should be handled quickly and effectively.

It has also been suggested that there should be a right to independent advice. We agree that that should be in the bill, although I am not sure whether it would be a principle; it might sit better in another part of the bill.

We welcome the charter as having the potential to allow individuals to secure their rights, but we are not clear about what status the charter would have in terms of conveying individual rights. Our understanding from the Government’s consultation last year is that the charter would almost be a bill of rights that would set out people’s rights and responsibilities and would allow those rights to be achieved and allow people to seek redress. It is not clear from the bill that that is the purpose of the charter, so there should perhaps be some clarity on that. As well as the right for them to achieve redress if people’s experience falls short of the principles, there should also be a right to give feedback and make complaints.

Richard Gass (Rights Advice Scotland)

RAS is pleased to see the principles laid out at the start of the bill, which makes it clear up front that the social security system in Scotland will be that bit different from the system in the rest of the UK.

The list of principles could go slightly further to include what to do if one is dissatisfied with one’s treatment in the social security system, and it could include a commitment that the value of benefits that are paid in the Scottish social security system will be protected in real terms, with regard to inflation.

We welcome the fact that there will also be a charter—it is not one or other of the principles and a charter, but both. The charter will be very valuable. It will be a readily accessible document: a section in an act of Parliament could seem somewhat distant, but a charter—provided that it is not too long—could be up on the walls in social security offices, so that folk who are waiting to be seen can see it. That might be the first time that folk read it; they will get an understanding that the system here is a bit different. Furthermore, the charter could be incorporated into the personal development plans of staff working in the agency.

The Convener

Thank you. One of my follow-up questions was to ask what you think of the charter. I will maybe come back to that.

Simon Hodge (Scottish Association of Law Centres)

The SALC is in a similar place. We are very pleased to see that the principles have been included and that there is a starting point for making a real effort to make the system very different to the previous one.

I reiterate the importance of people having the right to be provided with independent advice: I would include it as one of the principles. There are a variety of reasons why I think that that is important, which I can elaborate on if you wish.

I also reiterate what was said at an earlier session about private providers. Our experience of working in the field for many years has not been happy, especially with the system of private providers of medical assessors. Something needs to be included in the bill to protect against that type of system being put back in place. Not having private providers would probably be helpful.

I agree with Richard Gass about the charter: if it is intended to be a guide for people who are coming into social security benefit offices, it really does have to be in clear language and to be straightforward.

I also agree that some form of complaints procedure is necessary, and would be helpful. It should go right across the board and not be just in relation to general members of social security staff, but should include medical assessors. A complaints procedure should be in the charter to cover people’s treatment so that claimants can complain about how they have been treated by the medical assessors.

The Convener

I just have a comment on what Richard Gass said. Many people have said that the charter should be visible so that people know what their rights are. It is important to get such a charter correct for the benefit of the people who access social security benefits. It would be good if it was up in every office and people had access to it.

Adam Tomkins

I want to pick up on a point that was made very strongly in CAS’s written evidence, for which I offer many thanks. It is CAS’s strong view that the balance between primary and secondary legislation is not quite right, and that a number of issues that are not in the bill should be in it. Would Rob Gowans expand on that, for the record? I invite the other members of the panel to then reflect on the extent to which they agree.

Rob Gowans

CAS’s view is that things that will be common, that will be essential to the system and that will cut across social security benefits should be in the bill. I have already mentioned provisions for people to make complaints, get redress and give feedback. That could work in a similar way to the provisions in sections 14 and 15 of the Patient Rights (Scotland) Act 2011, which provides a good model.

The bill should also make provision for independent scrutiny or independent scrutiny bodies that can play a similar role to that of the Social Security Advisory Committee at UK level, although there could be slight differences in design. For example, it could report to Scottish Parliament committees to aid their scrutiny as well as to help the Scottish Government to design regulations.

There should be provision for uprating of benefits annually in line with RPI, and additional things could be taken into account, including energy costs and transport costs. We want to make sure that the benefits have the same value each year and that things that have to be paid for, such as funeral costs, which are a great example, because we have seen rising funeral poverty—

The Convener

Can I just come in there? You mentioned funeral costs and said that uprating of benefits should be in the bill, and that they should be uprated for things such as energy costs. Energy is reserved to Westminster and the Scottish Parliament does not have control over those costs. Are you saying that if the energy companies put their prices for electricity and gas up by a great percentage, as has happened recently, provisions to cover that should be in the bill, and the benefits that are devolved to the Scottish Parliament should be raised? What would happen with the benefits from the Westminster Parliament?

Rob Gowans

We suggest that the devolved benefits be uprated annually according to the RPI. It would be helpful if ministers had the power or the responsibility to consider things including energy costs. There would not necessarily need to be a formal lock in to the process, but benefits would not lose value over the years and would pay for the same as they had paid for in the previous years.

In terms of how that would break from reserved benefits, it might well be the case that the value of benefits in Scotland would be higher than the value of equivalent UK benefits, but that is a potential feature of devolution. In the Scottish context, we would welcome benefits being adequate and keeping their value as the years go on.

The Convener

If energy costs go up, should Westminster give more money to the Scottish Government? Should the benefits extend to that?

Rob Gowans

We would always say that action should be taken to ensure that energy costs are low anyway. Social security has a vital role in tackling poverty and is one of the best ways of doing that, but that does not mean that there is not other action that can and should be taken. Action on energy costs is a good example.

The Convener

I am sorry for interrupting Adam Tomkins with that question.

Adam Tomkins

That is absolutely fine. I just want to get back to the structure of the bill and the relationship between primary and secondary legislation. In its written evidence, CAS goes even further than the opinion that Rob Gowans has just shared with the committee. It states:

“Details of eligibility and operation of many of the reserved benefits are included in primary legislation”,

but that does not appear to be the case in the bill. We are still at stage 1—would you be looking for amendments at stage 2 to put some of those details into the bill?

Rob Gowans

That is possible, although my understanding is that the eligibility criteria for the benefits are still to be developed. There might be something, at least for the basics, for which the rules are a bit more developed. The best start grant could be brought in, as has been suggested by the Child Poverty Action Group in evidence. Perhaps when benefits are up and running at a future point, provisions could be brought in to primary legislation to set out the eligibility process. The system could probably operate without that at this point, but I return to my earlier point about independent scrutiny of regulations, which will be massively important if so much of the system is to be developed through regulations. There are good arguments for including the details, but some criteria are quite detailed and it would not be appropriate to have them in primary legislation. It is important that provision be effectively scrutinised and that there is independent expert input.

Adam Tomkins

Would you rather have that level of detail scrutinised by independent experts than by Parliament? Do you think that independent scrutiny is more important than parliamentary scrutiny?

Rob Gowans

Either could work. The level of scrutiny is very important, whoever scrutinises it.

The Convener

Does Richard Gass want to comment on that?

Richard Gass

The bill lays out very broadly what the social security system will look like, and leaves much of the detail to regulations that we have yet to see. I think it correct that regulations are where the detail will be expanded on. However, we are creating a new system; we have only one chance to create it for the first time, as we have heard from Scottish Government ministers. In order to have it correct the first time, we need to ensure that there is extra scrutiny of the regulations in their first iteration.

10:15  

The negative procedure or the affirmative procedure would be insufficient—that would be an all-or-nothing approach. Parliament, however, is not constrained by the need to use such crude procedures. It could introduce in the bill a requirement for the first iteration of the regulations to be given to external organisations for scrutiny. The draft regulations could then come back to elected members so that they could consider further amendments. I recommend that some kind of super-affirmative or greater process is introduced for the first draft of the regulations.

The Convener

That is a very interesting suggestion. Does Simon Hodge want to come in on that?

Simon Hodge

I reiterate that the Social Security Administration Act 1992, which brought in DLA, and the Welfare Reform Act 2012, which brought in PIP, set down the basic framework—the primary conditions—for the operation of those systems. The details were then dealt with in regulations.

There is a good argument that the details should be laid before Parliament so that we can all have a good idea of, and can properly scrutinise, the basic pillars of the system. There is also an argument that those details should be dealt with in regulations. I can see a good argument for setting out the pillars of the new system in the bill itself, along the same lines as the legislation for the current and previous systems.

There is a caveat. I know from working within the system that the detail is where the devil resides. The real problem is that benefits being designed in a particular way is often subverted by regulations. Unfortunately, therefore, including the primary conditions in the bill would not necessarily safeguard the operation of a benefit in the way that it was first intended it would operate.

Other than that, I reiterate what we heard earlier. There are elements—uprating, backdating and residency—that it would be useful to include in the bill. It is important that residency is in the bill, given the current climate.

The Convener

Do you want to come in again, Mr Tomkins?

Adam Tomkins

I can come in later.

Jeremy Balfour

I have two questions. The point about residency is interesting. We had quite a long discussion the week before last about cross-border residency issues and what happens if people who are on a particular benefit move to England or Wales. Do you have any views on how we can define residency in the bill?

All three of your organisations do a lot of representation. Do you see advice and representation as two different things? Should they be defined differently, or can they be defined collectively?

As I asked the previous panel, should there be statutory funding for those services? How would that be accessed? Although you would probably not want to say this, you are slightly in competition with each other for who you represent. How do we divide the money up to ensure that the right people represent the right individuals? I am sorry for the long question—there was a lot in there.

Richard Gass

We are talking about a Scottish social security system for folk who are resident in Scotland. If someone relocated south of the border, they would no longer be entitled to Scottish benefits. However, a person’s entitlement could continue for a period—three months or whatever; a figure could be arrived at—while they established their entitlement to UK benefits, and there could be something similar for folk who come to live in Scotland.

We have habitual residence rules in the DWP regulations. They are quite cumbersome, but they contain examples of when it would be appropriate to commence paying a benefit to someone—in effect, that is when someone has shown beyond doubt the location of their new address.

As for advice versus representation, they are very different. The agency can provide advice on benefits, within the constraints of how it perceives entitlement, but it cannot advocate for someone. Representation can push the boundaries of entitlement by taking matters to tribunals and courts and establishing case law. Advocacy is a third category; it ensures that a person’s voice is heard and stands aside from advice and representation.

The question whether there should be a pot of money to bid for is loaded. There should be adequate funding for advice services, but it is not the duty of simply the Scottish Government to fund them. Local authorities have a vested interest in their populations receiving advice. Some local authorities may choose to invest more, and there should be no hindrance to that. It would be nice if there were a guaranteed sum of money for the future, but the danger is that other funding providers could step back and say that, as the money was allocated by the Scottish Government, they did not need to come forward.

The Convener

That is a good point.

Rob Gowans

The cross-border issue is slightly complicated. We would like to see residency provisions in the bill. Cross-border issues might be addressed by using criteria; for example, if someone worked in England but lived in Scotland, their entitlement would depend on where they spent most of their time. If someone moved to England, they would probably fall under the remit of the UK system. The Scottish and UK Governments should work together on a reciprocal arrangement system.

We consider independent advice to be an essential part of a well-functioning social security system, regardless of how good the agency is and what services it provides. We particularly welcome the commitment to a face-to-face element with the agency staff, which is important. However, independent advice will always be needed. Last year, we provided advice on more than 94,000 issues that related to the benefits that are due to be devolved. That number might reduce over time if the system is well designed, but advice will always be needed. Our experience is that, when changes are made, there is always a bit of an increase in demand, particularly from people who come in for information about how changes might affect them.

We support including in the bill a duty on the Scottish ministers to make provision for access to independent advice, and they should be required to make sure that that would be adequately resourced. Such advice is largely funded currently through local authorities; the assumption is often made that there will always be citizens advice bureaux, but they require funding and it would be helpful to guarantee that in the bill.

Separately, we would also support having in the bill a right to independent advocacy, which is different from independent advice.

The Convener

Ben Macpherson wants to ask a supplementary.

Ben Macpherson

For clarity, Mr Gowans, if you were to put a right to independent advice or advocacy in the bill, would you do so strictly in relation to devolved benefits?

Rob Gowans

One of the particularly helpful things about the independent advice that Citizens Advice provides is that it is holistic. For instance—

Ben Macpherson

I am sorry to interrupt, but I will reword my question. The bill deals with the social security benefits that are devolved to this country. Surely it would be appropriate for any advice that was attached to the bill to relate only to the powers that are applicable to this Parliament.

Rob Gowans

If funding or advice were provided, you would find that they sat within the wider advice landscape. For instance, if someone came in for advice about devolved benefits, that advice would be provided in addition to other services, so they would be able to get advice about reserved benefits, such as employment and support allowance, and about housing problems or problems at work.

Ben Macpherson

I appreciate that Citizens Advice Scotland gives advice across the spectrum of social security, and the bureaux in my constituency do remarkable work in that respect, but if the bill placed a duty on the Scottish Government that affected its budget—I am asking a question, not making a proposition—would it be unfair and unreasonable for those resources to be used to advise people on complications with the reserved system? There is a nuance—an important distinction about what advice is provided. If an advice provision were included in the bill, perhaps providing specialised advice to do with devolved benefits would be a more meaningful way to move forward.

Rob Gowans

I take your point. I think that the position would depend on how such a provision was drafted.

Simon Hodge

There is a problem of practicality. If a person came into an advice service with a raft of problems that had to be dealt with, but that service was funded to give advice only on devolved benefits, it would be in the odd position of being able to give advice on a particular area but not being able to expand that advice to include reserved matters.

I understand that the committee is looking at the areas that the bill deals with and that funding should therefore really be given only for those areas, but there is an alternative approach. The people who are seeking advice are Scottish subjects, and it is for the Scottish Government to ensure that they have the best possible independent advice. If that advice goes across the board, as it often has to, that is really a matter of practicality.

Ben Macpherson

I absolutely appreciate that practicality on the ground. What I get from ministers and from the content of the bill—this was touched on in the evidence session earlier this morning—is that it is their ambition, through the bill and through the creation of the new agency and of a new culture, to reduce demand on advice services.

There is a practical issue on the other side of the argument: if a right to advocacy, advice or representation is included in the bill, we need to be careful and specific about it. As Mr Balfour said, resourcing and funding are an issue, and we must ensure that the principles and requirements that are in the bill are deliverable, given that the bill deals only with devolved benefits.

That complication is born out of the fact that the bill does not cover the whole social security system; it demonstrates the complexities that result from that point. There was not necessarily a clear question there; it is more of an issue for discussion.

10:30  

The Convener

Does Mr Hodge want to come back on that?

Simon Hodge

No—I have put my position. We are getting an indication of Mr Macpherson’s worries and concerns. There is a finite pot of money, and that is where the stress lines meet. I simply made the point that, although a good policy can be introduced through the bill, it might be quite difficult to achieve in practical terms.

I have a point about residence that the committee might want to consider. I agree that, when someone moves away from Scotland and becomes habitually resident down south, they should not have access to the benefits that are in the bill. However, you might want to consider a temporary period of overlap, such as the one that we have for carers allowance—when a person dies, carers allowance goes on for a time thereafter.

People might have to move for any number of reasons, and there might be a period during which the benefits that are contained in the bill stop and the benefits down south take time to catch up. That could mean a period without funds that a person could well do with. It would be worth considering having some sort of on-going entitlement to allow such a person to get up to speed with what they need to apply for down south.

The Convener

That is interesting. I will just make a point about the practicalities. As MSPs, we cannot carry out work in relation to social security matters that are reserved, which is a problem.

Another problem might arise when people come for advice and have the charter—whether it is included in the bill or is introduced by an affirmative or negative instrument—and think that they have recourse to court. That could present a bit of a problem. If they go for advice and they do not get their social security moneys, they might think that they could take that to court—as some have suggested—but the particular benefits might be reserved. Perhaps we should talk to our counterparts in Westminster about that.

Simon Hodge

Yes.

Ben Macpherson

I will bring things together. I am very supportive of the advice sector and I am looking for a way to bring in realistic support for the sector, if there is room in the bill. I would be interested in any clear propositions on how to do that, given the complexity of what we are handling.

Richard Gass

The agency will be able to give advice and information only on devolved matters, but its staff will need to be trained to be aware of UK benefits and the interactions. The agency’s role should be to signpost people to the advice sector.

If funds were available for the advice sector to expand, services could bid for that funding. However, the sector would provide that advice alongside the rest of the advice that it provides. Someone who was signposted to the local authority advice service or the CAB could then get advice on how the Scottish benefits interacted with the UK benefits.

The Convener

That needs to be looked at.

Ruth Maguire

My colleague Ben Macpherson made some interesting points. No one would deny the complexity of people’s lives and the assistance that we have to give them, but the question is how we include the point about advice in the bill. That was not a question but a small reflection.

My questions are about overpayments. The Scottish Government has suggested that there should be a minimum income floor to try to protect people from being driven into poverty. Would that help and how do you see it working? [Interruption.]

Richard Gass

There are people coming through the door—I will wait while the audience arrives for this important question.

On overpayments, the proposal to take into consideration someone’s financial circumstances before seeking recovery is welcome, although working out exactly how to set the level will be a challenging task. There are other aspects of overpayment. The policy memorandum refers to the bill, but the bill suggests that official overpayments that are made in error could be within the scope of recovery, whereas the policy memorandum suggests that they would be out of scope. The bill needs to be amended to make it crystal clear that agency error payments will not be recovered unless there are exceptional circumstances and, perhaps, those circumstances are spelled out.

Rob Gowans

We welcome the commitment to the minimum income floor. There are other things that could be done, such as using the common financial statement and limiting the amount that can be directly deducted from someone’s benefit to repay an overpayment, to ensure that people do not experience hardship.

I share Richard Gass’s concerns about the bill in relation to overpayments because of agency error. I understand from the policy memorandum that the Scottish Government does not intend to pursue recovery in such cases unless a large overpayment has been made. We would prefer the bill to set out that overpayments that result from agency error are not recoverable at all, even if they are large. That would reflect the practice with most UK benefits. Someone who received an overpayment through no fault of their own would not be required to pay it back, and that would create an incentive for the agency to perform well in making accurate payments.

Simon Hodge

I agree—the overpayment provision is certainly one of our concerns. One of the biggest areas that the bill deals with is disability benefits and, as it stands, the bill will make very different provision on overpayments up here from that down south. The position will be far more stringent up here. Currently, misrepresentation or failure to disclose has to be shown in order for such an overpayment to be recovered, but that will not be the case under the bill. The approach also seems to fly slightly in the face of some of the principles relating to dignity and human rights that are set out at the beginning of the bill.

If we are looking to have a good relationship between the agency and claimants, I certainly know from experience of representing clients that, if they feel that they have not contributed to an overpayment error—so it is not their fault—but they nevertheless have to pay back the overpayment, that is a problem. That would undermine any good work that was done in creating a new system.

Another issue—a curious one—is that it would come out to claimants that, if they happened to live in England, they would not have to repay, but because they live in Scotland, they do. That would further undermine any good work that might be done on the relationship between the claimants and the agency.

I reiterate what my colleagues said about the financial floor, but it is also important to take people’s personal circumstances into account. That is missing from the bill. There can be many reasons why somebody does what they do and why the agency should not necessarily try to recover money from them. One of the primary reasons is that domestic abuse may be involved. A person who was in such a situation would currently be caught by the overpayment provisions. They would then be in the even worse position of having to make repayments, which could lead to the domestic abuse increasing. The overpayment could even have occurred as a result of domestic abuse. Mental health is another consideration. Recovering an overpayment could lead to a deterioration of a claimant’s mental health.

The discretion not to recover overpayments because of financial circumstances is welcome but, given the stress and other issues that recovering overpayments can lead to, the provisions ought to be broadened out to take a claimant’s entire circumstances into account.

Ruth Maguire

Do you agree that there should be a differentiation between unintentional error and intentional fraud in the bill? How does the DWP treat that difference at the moment if there has been anf overpayment?

Richard Gass

As Mr Hodge has described, under DWP regulations, intentional fraud is when someone has failed to disclose material facts or has misrepresented their circumstances, while unintentional error might happen when a claimant does not advise of a change in circumstances. A person might not know that a fact is a circumstance that should be reported, but if someone is clearly aware that their circumstances have changed and that they ought to report it, failure to do so would be considered intentional.

Ruth Maguire

Should that be detailed in the bill?

Richard Gass

Something in the bill should make it clear that there is a duty to disclose your information. However, it should also say that in the case of an error lying outwith the duties on the individual or an official error, overpayments will not be recoverable—although we could concede that that should not be the case if the person ought to have known that they were being overpaid. For example, if someone gets a lottery win rather than their normal weekly payment, clearly something has gone wrong, and it might not be appropriate for them to have the right to retain that money. If someone reported a change but their benefits remained unaltered, it would be somewhat unfair if, five or six years later, it was discovered that they had been overpaid a quantity above the threshold and it had to be recovered.

The Convener

Mr Hodge, did you want to come back in?

Simon Hodge

No. I was just wondering whether we were moving on to the question of fraudulent penalties.

Jeremy Balfour

Ben Macpherson has raised an interesting issue about who funds what. I just want to push a bit harder on one of those questions. Should we separate advice, assistance and representation into three different areas? If someone were to come in for, say, general advice, that would be funded from a particular pot of money, but as far as assistance and representation were concerned, that would be only for devolved benefits. Would it be helpful to make a clear distinction between the three areas of work to ensure that there is no confusion, or would that make things even more complicated in practice?

Rob Gowans

Making a distinction between independent advice and independent advocacy is important, but we would be cautious about making a distinction between independent advice and representation, particularly because of the nature of the independent service that we provide. People who come to a CAB are able to get advice on a whole range of things related to social security benefits, from making the application all the way through to representation at tribunal.

There are considerations to be made about funding but, even with a well-functioning system, advice will still be needed on some of the more basic elements, such as making applications, as well as the representation function. It is important that the representation function remains independent—it cannot really be provided by the agency.

Richard Gass

There should be a duty on the agency to provide information on the benefits that it is delivering and to signpost people to the advice sector for information on reserved benefits.

As for what advice agencies will provide to individuals who come through the door, the fact is that, without funding, they are going to provide information on everything—that is the nature of such organisations. If extra funding is available to make that easier, that will be great, but it will be difficult to constrain advice agencies to saying, “This is the piece that I’m funded for, and this is what I’m not funded for.” That will just add unnecessary complications.

10:45  

The Convener

Do you want to comment on that, Mr Hodge?

Simon Hodge

I agree. I made a similar point earlier.

The Convener

Mark Griffin has a question, and then I will bring in George Adam.

Mark Griffin

The committee has received evidence from Justice Scotland, Engender and others expressing concern that the new offences created in the bill are overly harsh in comparison with the UK system. There is potential for an honest mistake to be treated as a criminal offence, whereas in the UK system, the prosecution has to prove that there has been dishonesty in order to take the case to court. What is your interpretation of the new offences in the bill?

The Convener

Mr Hodge, you said that you wanted to comment on that.

Simon Hodge

Under the offence in section 39, intent has to be shown; however, that is not the case with the offence in section 40, which is the one that we have a problem with. Mark Griffin is correct to say that that is different from the UK system. As I have said before, it is unfortunate that a new system that is trying to engender dignity and human rights actually gives less protection to Scottish subjects than they would have down south.

I have problems with the drafting of the bill. Section 40 is particularly weak, as it provides that

“A person commits an offence if ... the person ... ought to have known that the change might result in an individual ceasing to be entitled to assistance”.

That is equivalent to saying that the person suspects that something might be wrong, and it is a very low threshold for criminalising people. We must remember that criminalising individuals has a huge effect on their lives, including in areas such as their credit rating, insurance and travel, so giving someone a criminal record is something that should not be looked at lightly.

Our position, therefore, is that a simple suspicion that something might be wrong is too low a threshold. As far as protections are concerned, the most similar to the one that we are discussing is in the housing benefit overpayment regulations, which an Upper Tribunal judge has described as draconian. The problem is that requiring that somebody be reasonably expected to realise that something is wrong is a low threshold. We have a case where a couple gave a local authority the correct information on four different occasions, but the money was still held to be recoverable because they knew or ought to have known that there was a problem. Someone may have given the right information, but at any point while the benefit continues to be in place, it can be argued that, because the person knows that their information has not got to the right place, any overpayment made thereafter is recoverable.

In another case—if I remember correctly—a gentleman who had very limited experience of the housing benefit system put in for housing benefit and gave in his wage slips correctly, but the local authority assessed his weekly wage slip as an annual wage slip and he was given full housing benefit. Immediately prior to that, he had gone in to see his housing benefit office and the person who had put in the information incorrectly and told him that he was going to get full housing benefit, but it was still held that he ought to have known because when he got the letter in which the mistake that was made was identified, he ought to have read it in full. That letter is about eight pages long and quite difficult to decipher.

The problem is that the level of protection under section 40 is far too low. Our position—and the bottom line—is that, for someone to be given a criminal record, there ought to be criminal intent, and that ought to be in the bill. It is in section 39, but it should be in section 40, too.

Richard Gass

I agree that there cannot be a crime where there is no intention to commit the crime, and it is wrong to suggest otherwise. We wonder whether the offence of fraud under Scots law or common law would be sufficient to cover offences arising under the Scottish social security system. Is there a need to have so much detail on that in the bill? Is it not sufficient to say that an attempt to obtain benefit by fraudulent means will be prosecuted as fraud under common law?

Rob Gowans

I agree with a lot of the points that have been made. We would welcome drawing as much of a distinction as possible between unintentional overpayments and deliberate fraud. If somebody were to be prosecuted for fraud, there would have to be unambiguous evidence that it was done deliberately, with intent, and that they had not been inadvertently sucked into an action because of lack of awareness of the rules or an error in not declaring something that they were not aware that they had to declare. There is the potential for work on the reasons why fraud happens in social security in the first place.

According to the official statistics, the rate of fraud in disability benefits is 0.5 per cent—a very small proportion. I am aware from speaking to advisers that they do not often encounter situations of fraud; the issue tends to be people’s lack of awareness of the rules or their doing something desperate because of financial hardship. Something could be done in that respect to reduce the rate of fraud, as well as things being done in the system, but as I have said, we would welcome drawing a clear distinction between overpayments and fraud.

The Convener

Mr Hodge, you mentioned section 40, but does what you are talking about also apply to section 39? Is it section 40 that is causing most of the problems?

Simon Hodge

Yes. I think that it is actually sections 40 and 41.

The Convener

Thank you.

Simon Hodge

I would point out that the housing benefit system has similar provision regarding people who break the rules. For example, somebody who has been sent a document containing the rules will be held responsible if they break them, even if, for whatever reason, they have not read the document. It is regarded as reasonable to state that the person should have known that they were creating a problem, but under that test, people can be criminalised simply because they did not read a document fully. As a result, people have only weak protection against potentially being criminalised, and that is a significant matter.

The Convener

Thank you. George Adam wants to come in.

George Adam

I want to go back to what we spoke about at length with the first panel: the culture change that will be required now that the powers coming to Scotland will account for 15 per cent of the benefits bill. A lot of the advice that the witnesses will be giving at the moment will relate to the disability elements of some of those powers. Do you believe that the culture change will have an impact on the services that you are giving? As the PCS suggested earlier, the idea is that the system should get things right the first time but that advice services should still be in place for people if that does not happen. I understand from my constituency work that there is still scope for your services to act in that regard, but will the devolved side of things have an impact on your services?

Rob Gowans

We hope that the change will have a positive effect on people’s interactions with the system and their ability to receive what they are entitled to with much less stress and faster than currently happens. As for how the new agency might interact with CABs, that could happen in a number of ways, including, for example, through giving advisers and agency staff regular opportunities to meet and compare situations. Where we have done that with DWP staff and jobcentres, the response from both sides has been quite positive. The potential joint training of agency staff and advisers will be helpful in building a new culture. There are other issues alongside that, but we hope that a cultural change in the agency will have a positive effect in many areas of the system.

Richard Gass

An agency that sets out its stall by saying, “We want to pay you the benefit to which you are entitled, and we want to give you information about that benefit” can only breed a better culture. However, many of the folk who will be entitled to a benefit will be unable to come to an office, and completing a claim through a conversation over the phone might well not enable staff to drill down to the finer detail. In many local authorities, folk who claim disability benefits are visited in their own houses. When you visit someone in their own house, you appreciate an awful lot just from seeing how long it takes them to get to the door, the arrangement of their living room and so on, and what you see and hear in the house helps you to help that person articulate their circumstances in a form. I do not think that we are going to get away from that.

It is the more able folk who can get to an office; the folk who are unable to get to an office might still require someone to come out. If they felt that they could contact—

George Adam

I am sorry to interrupt—I was asking about how we build a culture that is different from the current culture of mistrust that we are told exists between claimants and the DWP. The idea, more or less, is to change that culture. Even if that can be sorted, advice will still of course be needed from your organisations on certain aspects, but I am talking about how we get the culture right at the beginning and move away from the current culture, which is more or less about saying, “Let’s just cut the budget any way we can.”

Richard Gass

If there is a change in culture—if, say, folk feel confident enough to pick up the phone to the new agency and say, “I was wondering whether I’m entitled to this benefit”, and the response is, “You could qualify for it”—other links can also be made. If the person who receives the call recognises that the claimant needs to be visited in their house, they will know who to contact to put in place a referral so that the visit can take place. That would be great, as long as the agency does not fall back into the current climate of suspicion that exists in the DWP. We can set out from the start with something brand new. The principles in the charter might be just the way to achieve that.

Rob Gowans

Can I just add—

The Convener

I was just going to ask Mr Hodge if he wanted to comment.

Simon Hodge

I agree entirely with what has been said. We are looking at what we hope to achieve, and the real question is how we develop the process by which we achieve that.

I think that everybody would like to have in place the social security system that we are describing today, but it is important to look at the means of achieving that. Some elements, such as staff training, might be addressed to a degree in the charter; after all, the attitude of front-line staff in the new agency to claimants will be one of the key points. There is a litany of issues—waiting times on telephones is another one. All of those aspects make up a lot of small blocks that we need to look at carefully in order to get where we are going. I agree with George Adam that, at the point at which we achieve our aims—if we get there—there might be huge benefits for the advice agencies, because we will be able to concentrate on the other areas where we would rather be involved.

George Adam

I am going off on a tangent here, but on the uprating of benefits, which Mr Gowans mentioned, I note that the Scottish Government has already committed to uprating disability benefits. You said that industrial injuries benefits and winter fuel payments should be uprated automatically. Can you explain why?

Rob Gowans

We would like a commitment in the bill to uprate benefits annually in line with RPI.

George Adam

So, basically, you are saying that benefits should be put up. I am just asking why you mentioned the automatic uprating of industrial injuries benefits and winter fuel payments.

Rob Gowans

I was referring to the points that I made earlier in relation to some of the other things that could be considered to ensure that benefits keep their value in the context of energy costs and so on.

George Adam

But you are aware that the Scottish Government is committed to uprating disability benefits.

Rob Gowans

Yes, and we would like to see that in the bill.

The Convener

As members have no more questions, I thank our witnesses very much. We will certainly take on board what you have said.

We now move into private session.

11:00 Meeting continued in private until 11:20.  

The Convener

Agenda item 2 is continuation of our evidence taking on the Social Security (Scotland) Bill. We will hear from two panels of witnesses today. I welcome Bill Scott, who is the director of policy with Inclusion Scotland; Morna Simpkins, who is director for Scotland of the Multiple Sclerosis Society; and Steven McAvoy, who is a senior welfare rights adviser with Enable Scotland and is, I believe, taking the place of Kayleigh Thorpe.

Steven McAvoy (Enable Scotland)

Yes, I am.

The Convener

Thank you very much for coming.

I will start with what might seem to be a very simple question. In fact, it is simple, although I do not know what the answers will be. In your opinion, what are the greatest strength and the greatest weakness of the bill in relation to the people whom you represent? I do not expect you to give me all the strengths and weaknesses, because members will want to ask about some of those.

Bill Scott (Inclusion Scotland)

We consider the greatest strength to be some of the principles in the bill; for example, that social security is seen as an investment in people to realise their potential to live in society, and that people who use the system will be treated with dignity and respect. Those are important rights that disabled people have sought for many years but have often been denied in the current United Kingdom system. We see the principles that underpin the bill as being an important signal of how social security will be delivered. The greatest quality of the bill is that human rights-based approach.

The Convener

I want to know about the weaknesses, but I am sure that you will come on to those in answer to members’ questions.

Morna Simpkins (Multiple Sclerosis Society)

I echo Bill Scott’s comments. We welcome the principles in the bill. We are also pleased to see the reference to a Scottish social security charter. Obviously, we want and welcome the embedding of human rights within the principles. We hope that the approach will help to tackle the stigma that sadly affects many people who claim benefits, including people who are affected by MS.

Steven McAvoy

Enable Scotland also echoes the point about the principles. I will also mention the extra support for carers.

The Convener

That was very succinct. I am sure that we will have questions on various other issues.

Adam Tomkins (Glasgow) (Con)

I want to ask about the structure of the bill. We have explored in previous evidence sessions a number of questions about that, including the legal status of the charter and the enforceability of the rights that Bill Scott just talked about. Feel free to reflect on any of those issues if you want to.

My specific question is on the relationship in the bill between primary and secondary legislation. That might seem like an arcane lawyer’s point, but actually it goes to the core of what we are trying to do, which is to expose the newly created devolved Scottish social security system to as much parliamentary scrutiny, openness and transparency as possible. Clearly, Parliament can scrutinise primary legislation more fully than it can scrutinise delegated legislation, and it can scrutinise delegated legislation more fully than it can scrutinise guidance or other forms of informal rule making that might govern the way in which the new Scottish social security agency gets on with the job that it will be required to do.

In its evidence, the Scottish Association for Mental Health argues that

“key principles should be placed within the Bill itself rather than regulations.”

Inclusion Scotland has said that the people it consulted were “very concerned” about the lack of detail on eligibility criteria in the bill. Enable Scotland argues that the purpose of benefits and the framework for their operation should be placed in the bill.

Does the bill get the relationship between primary legislation, secondary legislation and informal guidance right?

Steven McAvoy

I will be representing people at social security tribunals, so I am very interested in the legislation. As far as the principles are concerned, there is a comparison to be drawn. At social security appeal tribunals, there is an “overriding objective” rule that tribunals must deal with issues fairly and justly. It would be good to have a similar rule in the Social Security (Scotland) Bill, which might provide people with practical redress in cases of principles being breached.

Some bits of the bill could be strengthened. We would like it to be made clear that the purpose of disability benefits is that they are a cash transfer that is paid to cover additional costs that arise through disability. I can see reasons why you would not necessarily want every small detail to be included in the bill, but setting out the overarching purpose of each benefit would provide a framework to work to and through which to measure whether or not you are being successful.

Morna Simpkins

I support my colleagues. In the society’s written response to the committee, we said that much of the stuff—on timescales and entitlement criteria, for example—that can impact on a person who is living with MS, which is a very unpredictable condition, is not in the bill but will be in regulations. Because MS is an unpredictable condition, as I said, we want to allow people to plan and to have some certainty in their lives. Timescales and entitlement criteria being included in the bill would provide greater certainty.

Bill Scott

As Inclusion Scotland has said in our evidence, and as I continue to believe, the balance between primary legislation and regulations is not right. However, we are where we are.

We were in discussions about entitlement criteria with the Minister for Social Security. We have a particular concern around disability benefits. The minister was open to an amendment that would place entitlement criteria for disability benefits in the bill, although she also said that, if we were to do that, we would have to think about including entitlement criteria for other benefits, too.

The Inclusion Scotland policy team considered that with the policy officer for Camphill Scotland, who has been working with us for several days on drafting amendments. Our problem is that, because we are a membership-based organisation and disabled people make our policy—it is not made by me or the chief executive officer, or even the board—we are normally given general direction on what policies to pursue. On this matter, which is so essential to the lives of disabled people, we would have preferred to enter into detailed consultation about what entitlement criteria they would want for the new disability benefits.

When we consulted on “A New Future for Social Security: Consultation on Social Security in Scotland” last year, there was no general agreement about whether to take a disability living allowance approach or a personal independence payment approach. There was near unanimity that we would like a return to the 50m walking rule, but there was not that sort of consensus on the daily living component or the care component. We would have had to work with people for quite some time to narrow things down to ensure that the entitlement criteria that we were proposing were in line with disabled people’s wishes. We are not able to do that and to develop amendments in the time that is available for further consideration of the bill.

We ran four consultation events across Scotland last year and engaged with 160 to 170 disabled people. We also engaged with several hundred disabled people online through social media, so we had a fair basis on which to give a response then. We do not have that at the moment. The practicalities and our wish to be sure that the entitlement criteria are definitely in line with disabled people’s wishes have prevented us from developing amendments.

Adam Tomkins

That was a full and helpful answer. You are right that that is the area that the committee is concerned about.

Where does that leave us? Your opening remark was that the bill gets the balance wrong. Your closing remark was that there is not much that can be done about it because we do not have enough time. Is that your advice?

Bill Scott

No. We came to that conclusion, then I met the minister last week. The minister was still keen to offer reassurance to disabled people that the criteria could not be changed easily once they had been set and that there will be consultation on them.

She agreed that the super-affirmative procedure will be used when the entitlement criteria are put before Parliament. That will allow organisations such as Inclusion Scotland, Enable, the MS Society and SAMH to make representations to the committee about whether the entitlement criteria are in line with disabled people’s needs. We will then have the chance to carry out the sort of consultation on the entitlement criteria that we would like to do.

Any changes to the regulations in the future will also be subject to the super-affirmative procedure. Again, that gives some reassurance that they cannot be changed easily, without public consultation.

Ruth Maguire (Cunninghame South) (SNP)

You have almost answered my question, which is to ask whether one of the benefits of having the criteria in secondary legislation might be that there can be the extensive consultation that you want. You will get that consultation, anyway.

Bill Scott

We could already have had that consultation if the criteria were in the primary legislation. If we had had the proposed criteria over the summer, we could have done the consultation. Because they are not in the bill, we could not ask people whether they like the entitlement criteria or would prefer others.

It could have been done either way. I still believe that the balance is a bit wrong, but there will be a great deal of reassurance from use of the super-affirmative procedure.

Pauline McNeill (Glasgow) (Lab)

This is the central area for the committee to scrutinise and on which to make sure that we have understood the evidence and can take a view on the balance.

I presume, based on your evidence, that if we could get more principles into the primary legislation, that would be a protection. The regulations should not undermine the basic principles.

Steven McAvoy

Yes.

Pauline McNeill

Secondly—I want to be clear about this—are you content that you will be consulted, for example on entitlement to disability benefits, and have a say in the criteria, and to have them in regulations and not the primary legislation? Is that the right model for other benefits? Is that the right balance? The committee needs a steer.

The Convener

Mr Scott may respond, too, as can other members and witnesses, if they wish.

Steven McAvoy

We would like to see some parts of the bill strengthened, particularly in order to make it clear that disability benefits are a cash transfer, non-means-tested benefit that has the specific purpose of covering the costs that arise through disability, and that carers allowance is an earnings-replacement benefit. The bill should set out clearly what the purpose of each benefit is. If the regulations are then properly scrutinised, that could be a way forward. It is important to include the purpose of the benefits in the bill so that it is known what the regulations are being measured against.

Morna Simpkins

The Multiple Sclerosis Society would support that. As we have said, we also want the bill to include timescales for decisions and such things.

09:15  

Bill Scott

There are definitely things that we still want to see in the bill. For example, we do not think that the wording on overpayments is in line with the policy intent. We drafted an amendment that would require that ministers give due regard to the principles in exercising their functions as ministers. We believe that that would make the principles stronger and more effective in their action. In setting regulations, for example, ministers would have to have regard to those principles.

Alison Johnstone (Lothian) (Green)

On the same subject, I have a question about future proofing. It sounds as if you are having constructive discussions with the current Government and the current minister, but what if the situation changes?

I raised with the UK Government the issue of its using secondary legislation to undermine a tribunal decision on PIP eligibility. You say in your submission that your fear relates partly to the fact that the UK recently made changes to the scope of entitlement to PIP via changes to regulations. Can the bill be future proofed? Even if you have a really good relationship with the current Government, is that enough? In the future, a different Government may simply disregard, or find it easier to disregard, agendas that are set in secondary legislation.

Bill Scott

If the super-affirmative procedure is in the bill, it would be very difficult for a future Government to ignore that, because it would have to change the primary legislation to get around it. That provides some reassurance that making such a change would not be easy. There would be a chance for Inclusion Scotland and others to mount a campaign against any changes with which we did not agree.

I would have preferred the criteria to be in the bill—but we are where we are, as they say. We can work with the bill as it is. The greatest degree of reassurance that it could offer us would be for it to include the requirement to use the super-affirmative procedure and, if possible, a reference to a Scottish social security advisory committee like the current UK committee. If such a body was brought into being, that would offer some reassurance because it would provide independent advice to the social security agency and the minister on how the regulations would fit recipients. That would, I hope, provide some reassurance to current recipients that things could not easily be changed without somebody having something to say about it.

The Convener

Jeremy Balfour has a supplementary.

Jeremy Balfour (Lothian) (Con)

I want to follow up on what has been said. It would be interesting to get a view from Steven McAvoy, given his tribunal experience.

There has been a reasonable amount of latitude in the interpretation of rules on DLA and, to a degree, on PIP. Tribunals can reach very different decisions, as can the upper tier and even the House of Lords, or the Supreme Court now. Would you want the regulations to be a lot tighter so that it is clear who is in and who is out, or is flexibility in interpretation helpful?

Steven McAvoy

It would be difficult to design regulations in a way that ensured that no disputes would arise and no one would fall into a grey area. The rules on entitlement to disability benefits are only ever a means of calibrating disabilities. Those benefits are intended to cover a wide range of people with different and combined conditions, so it will always be very difficult to get a system that is 100 per cent perfect. If the regulations are left relatively open, that will provide for a degree of flexibility to cover people who do not necessarily fall completely within the rules.

We have looked at a potential way in which the regulations could be fixed while still allowing people who desperately need support to be covered under the criteria. For employment and support allowance, there are rules on exceptional circumstances. If it was found that a person did not meet the ordinary criteria but would be at substantial risk if they were not entitled to the benefit, the exceptional circumstances rules could be used to give them entitlement. There could therefore be firm regulations regarding who qualifies but also exceptional circumstances criteria so that somebody with a disability who would otherwise be at a disadvantage if they did not qualify for support could get in via that route.

Morna Simpkins

I echo what has been said. We would like the criteria to be more defined as well. We want to ensure that MS is recognised as an unpredictable and fluctuating condition. We do not want what happened previously, whereby one in three people with MS who received the higher rate mobility component of DLA had their payments cut after being reassessed for PIP. We want to avoid such things happening in future.

Jeremy Balfour

I am interested in hearing the witnesses’ views on this, but the two tests regarding a typical day are obviously quite difficult for people with certain conditions, particularly MS. There is also the issue of not knowing how long a condition will continue. I think that all members are concerned about what happens at the coalface. We can talk about great principles, but the issue is how somebody gets on when they apply. How would you get round the issue of providing a snapshot of one day? How would you redefine that?

Morna Simpkins

You probably already know about the unpredictability of MS. It is a long-term condition and there is currently no cure for it. One difficulty in the current system is the 20m rule, which does not work for someone with MS. They could wake up tomorrow morning and be able to walk 20m, but the next day they might not be able to walk at all. We want to ensure that the criteria capture conditions such as MS and its unpredictability, and that people with such medical conditions are assessed by people who understand them.

Steven McAvoy

Disability living allowance was slightly better than PIP, which refers simply to the majority of days; whereas under DLA decision makers were supposed to take a step back and look at the overall pattern of a person’s life in deciding whether they met the criteria. That was one of the ways in which DLA was definitely better for those with fluctuating conditions.

George Adam (Paisley) (SNP)

Good morning, everyone. I declare my membership of the MS Society. My wife Stacey has had MS since she was 16, and I am only too aware of the issues that the MS Society has to deal with.

The problem with the current system is that it is so flawed that about 60 per cent of individuals who are knocked back for PIP during the transition period get it on appeal. Bill Scott mentioned in evidence previously that the older system was a paper-based one and that less than 1 per cent of claims were fraudulent, which in social security terms is incredible. Does the bill not set out how we can ensure that people with MS, for example, get what they need and are treated with dignity and respect? In the current system, people with MS can be asked to walk 20m, for example. They might be able to do it that day, but they could then be in their bed for the next week. Is it not the case that we are moving away from the heartless approach of PIP to something that is a lot better and based on the individual?

Morna Simpkins

Absolutely. We want MS to be included as one of the conditions that do not require people to go through a face-to-face assessment. We have discussed that with the minister, and the suggestion has been quite welcomed. As George Adam said, there is the unpredictability of the condition and the fact that it costs someone living with a neurological condition £200 extra a week just to exist.

Bill Scott

That will be determined by the regulations on assessments. The current policy intent and the commitments given by the minister are that there will be fewer face-to-face assessments. That is a step forward, because a lot could be determined from evidence that already exists—care assessments, general practitioners’ health records, community psychiatric nurses’ opinions and so on—about how the condition or impairment affects the disabled person’s functionality, and that is what PIP assessment really measures.

As well as having far fewer face-to-face assessments, having longer awards would also reduce the number of reassessments. Some people who transferred from DLA to PIP less than two years ago are already being reassessed, because their awards were for only two years but the period is backdated to when they claimed, even though people are often not assessed until five or six months after that.

The idea that somebody gets an award but, only a year later, has to go through another assessment process to determine exactly the same things as before seems ludicrous to us, and it is a waste of public money. If there is a follow-through in regulations to a more paper-based approach where all the evidence is collected prior to a decision being made, that will improve things for everybody. It will reduce public expenditure and will give a certain amount of certainty, which will reduce the stress for disabled people going through that process.

The snapshot assessment approach is very unfortunate for people with fluctuating conditions, including people with mental health conditions. We have seen people denied the benefit on the basis that they wore make-up and were well dressed when they attended the assessment, which was seen as evidence that they were not severely depressed. I am sorry, but that is just not on. We should look at all the evidence in the round in making a determination. I hope that that will reduce the number of face-to-face assessments and the number of repeat assessments that have to be made.

Steven McAvoy

The regulations will obviously be really important, but there has been a historical issue across benefits. I have seen really poor assessments and decision making under incapacity benefit, employment and support allowance, disability living allowance, attendance allowance and PIP. Although the regulations will be important, we need to fix what goes on behind them. Irrespective of the benefit that is being assessed, the decision-making quality has been so poor, historically, that something else behind it needs to be fixed as well to do with how regulations are applied. It is about the evidence that is gathered and empowering decision makers so that they can go to the most appropriate source rather than just do things by rote, and it is about fixing some of the silly examples.

Our appeal success rate is well into the 90 per cent range. I would like to say that that is because we are so good at what we do but, if the decision making was of a better standard, our success rate clearly would not be at that level. We represent people who appeal. For example, recently a man who gets 24-hour support was given no mobility component, yet he got it at the enhanced rate at tribunal. People who attend additional support needs schools are getting no points for communication, reading or budgeting. Those are things that could be fixed very easily.

Although the regulations will be really important, it is also important to focus on how they are applied because that is about the person getting the letter through the door telling them what their entitlement is.

George Adam

We have all been to various events with the minister and we can ask her about that when she comes here, but she has said that the road that she wants to take is the getting it right first time approach so that people do not have to go through that whole process, because it is the process that causes more heartache than anything else.

Morna Simpkins

Yes. As has been said, the stress can cause a major relapse for someone with MS, for example. That is exactly what we want to avoid.

Alison Johnstone

It sounds as though assessment is absolutely key to the whole process and, in far too many instances, it has been going horribly wrong. I feel astonished that, despite advice from physios, consultants and GPs, people are still being subjected to what is, in many instances, a non-expert assessment, which results in their losing cash, being very stressed and becoming even more unwell. Do you think that regulation is the right place to deal with the assessment process? Are we giving the area enough attention, given that it is so key to people’s day-to-day lives?

09:30  

Bill Scott

It is extremely difficult to set that out in primary legislation. Steven McAvoy is correct that the way in which regulations are interpreted and the standard of decision making are also very important, and those cannot always be changed by legislating. It is about the ethos of the new agency and the leadership, at political level and within the agency, which will set the standards that people look to.

I have been taking part in the duration of awards working group, which is a sub-committee of the expert advisory group on disability and carers benefits. The duration of awards is a key issue. The assumption with PIP is that awards will be short—one, two or three years—but, as we have said, many disabled people have lifetime conditions. Although many of those may be variable, the key point is that they are not likely to improve. In other words, they may get worse, and they are quite often progressive conditions. If somebody is awarded the highest rate for the mobility and daily living components on the basis of a lifetime condition, what is the point of assessing them again? I can see no rhyme or reason why somebody should be subjected to an assessment when there is no prospect that their condition will improve so there can be no improvement in functionality.

If the new agency adopts regulations that include the possibility of longer awards, that should, we hope, improve things for disabled people. Even if the decision making does not improve much, people will have longer periods of entitlement once they get an award.

Mark Griffin (Central Scotland) (Lab)

I want to ask about assistance in cash or in kind. Steven McAvoy has been pretty clear on that, but what views do Morna Simpkins and Bill Scott have on whether assistance should be provided in cash by default?

Morna Simpkins

We support the calls from other organisations for cash benefits to be the default position. As I have already said, there are additional costs of living with a neurological condition such as MS and we feel that cash awards provide greater certainty and give people the flexibility to live as well as they can with such a condition.

Bill Scott

We have exactly the same point of view. Currently, all disability benefits are provided as cash assistance. Even when a disabled person chooses to use the cash in another way—for example, to lease a Motability vehicle—they still have an underlying entitlement to the cash assistance. That is not in-kind support because it is that person’s choice. The arrangement is that the Department for Work and Pensions pays the benefit to the Motability scheme rather than directly to the person. It is much like an arrangement for rent in which the rent is paid directly to the landlord rather than to the tenant. That does not mean that the person is not entitled to housing benefit—they retain the entitlement, but they have chosen where the payment will go.

That is what we would like to see in future. If people are offered in-kind support—for example, reduced fuel bills—that should be a choice that they make rather than one that is imposed on them, so cash should be the default.

Mark Griffin

That seems to be the Government’s position as well. The policy papers set out that cash assistance should be given in all instances except when the applicant makes the choice. That decision is clearly not a choice for the agency to make. Do you feel that it should be set out clearly in the bill so that there can be no movement away from it?

Bill Scott

Absolutely. That is another instance where the policy intent is not matched by the wording in the bill. The wording would allow the agency to substitute cash payments with in-kind assistance. We would prefer it if that was amended—the indications are that the minister will lodge an amendment—to make it clear that it is for the claimant or the recipient of the benefit to choose whether to take in-kind support rather than cash.

The Convener

Jeremy Balfour can come in with a small supplementary.

Jeremy Balfour

I will be brief. I am interested in that issue. At the moment, for the care part of PIP rather than the mobility part, people can get only money. Could that be reversed so that a claimant who wants it could get practical help rather than a cash payment? For some people, depending on where they live, a cash payment might not meet the cost of the service that they require. If somebody needs someone to come into their house for one hour a day, there could be a statutory duty to provide that. Would you like such an option in the bill, or do you think that cash is the best way forward?

Bill Scott

Cash is the best way forward. We are moving towards a self-directed support system in which cash is provided to the recipient and they can choose who provides their social care, when it is provided and in what form. Therefore, it would not make sense to bring something into the benefit system that would give people less choice.

Ruth Maguire

We have heard a fair bit of evidence on independent advocacy. From reflecting on that, it seems to mean different things to different people. How would you define advocacy, and what makes it different from advice and representation?

Bill Scott

Along with several other organisations—Disability Agenda Scotland, the Scottish Independent Advocacy Alliance, Camphill Scotland, AdvoCard and the Health and Social Care Alliance Scotland—we have put together an amendment on that, because we believe that advocacy is essential for some groups of disabled people.

We have to be clear that advocacy is not advice, although advice workers often talk about being advocates on behalf of claimants and disabled people. Advocacy workers perform an essential role for people with learning difficulties, mental health issues, and cognitive impairments such as autism and brain injuries. The advocate tries to make questions intelligible to the disabled person. It is almost like having a translator. The advocate tries to get the disabled person to understand the nature of the question and then to give the answer that is required rather than the answer that they might immediately give.

For example, to go back to self-directed support, I note that learning disabled people are often told to say that they can manage a budget so that they can get self-directed support. In that scenario, a social worker will ask, “If we gave you that money, could you manage it?” The answer that the person is encouraged to give is yes, but it is actually “Yes—with support,” because they cannot really manage the money on their own. They need support to do that. In a PIP assessment, when the same person is asked whether they can manage a budget, because they have been told before that the answer that they are supposed to give is yes, they say yes, and then they get no points, even though there is no way that they could manage a budget without support.

An advocacy worker’s role is to drill down and make sure that the disabled person really understands the nature of the question and gives a full answer rather than just the immediate answer that they might give without an advocacy worker being there.

Ruth Maguire

You use the term “advocacy worker”, but I suppose the person who advocates for a disabled person can be someone who they choose and not necessarily a professional.

Bill Scott

Yes—it could be a peer advocate. The Mental Health (Care and Treatment) (Scotland) Act 2003 defines advocacy and sets out the circumstances in which it must be provided, and we would like a similar right to be embedded in the bill to ensure that disabled people with the greatest need for advocacy can access professional advocacy support. Of course they can choose somebody else to be their advocate—we are not saying that they cannot—but they should have the choice and be able to obtain the support when it is needed.

A lot of learning disabled people will, we hope, live into their old age, but when they are in their 50s, their parents, who might have been their advocates in dealing with issues such as social security, might die. All of a sudden, they are deprived of that support, and who will advocate on their behalf then?

Steven McAvoy

We are clear that advocacy and advice are really important. In the past three or four years, with relatively small projects, we have helped people to claim over £4 million in previously unclaimed benefits. We work with client groups that might not necessarily go to traditional advice services, because we are a bespoke service for people with learning disabilities and their families and carers. We have built up referral networks with other professionals, who can refer clients to us for extra support. They are people who might not ordinarily contact an advice centre, and we can maximise their income. It is important that advice is not only available, but available across a range of services.

Another issue that we would like to be taken into account is the growing complexity in providing advice and the importance of ensuring that it is properly funded so that there is stability in the resources that are available to provide it. New benefits such as universal credit are being introduced, and that system is working alongside the legacy benefits system. We now have the devolution of benefits. A system that was already complicated is getting increasingly so. It is important that people have not just advice, but good advice that is up to date and—

Ruth Maguire

Sorry to interrupt, but do you agree with Bill Scott that advice and advocacy are two different things?

Steven McAvoy

They are different. Advice on social security is quite specific. It is about helping people to maximise their entitlement, how the legislation is interpreted and representing people at tribunals. Advocacy can be used in a range of settings, including for health and legal issues—it applies to any decision that people have to make. The two are separate, and there is a need for both. With social security, there is a real need for representation. Although advocates play an important role in getting people’s message across, representatives can help people to challenge and to take issues to a level that unsupported people would not be able to reach, such as to upper tribunals or cases involving the interpretation of the legislation.

Morna Simpkins

I agree with my colleagues. There should be provision for advice and advocacy, and those are two fundamentally different things. We support the call for that to be put into the bill. That is really important for the MS Society, because 80 per cent of our members have said that they found the process of claiming benefits very stressful. There are huge cognitive issues associated with MS, so there is a need for pre-advice on entitlement and for advocacy as appropriate.

Bill Scott

Having such a measure in the bill would be in line with the minister’s idea that the new agency should get it right first time. If we can give somebody access to a service that helps them to be understood and lets them be heard by the professionals who do the assessments—whether they are officials in the new agency or health professionals—and that gives them a better understanding of the system that they are trying to navigate, we are more likely to get the correct information from the get-go. That is better than having to go to an appeal tribunal to argue the difference because the information that was supplied at an early stage, although not incorrect, did not expand in a way that somebody with no learning difficulties, mental health issues or cognitive impairments would have no difficulty in ensuring. Such a measure would improve decision making, because the correct evidence would be provided at an early stage.

09:45  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning, panel. I want to ask about the same point, because it is very important and AdvoCard in my constituency has been in touch with me about it. The distinction that has been made between advocacy and advice is extremely helpful to us, as is the commentary on it that is provided in paragraph 3.9 of Inclusion Scotland’s submission. It proposes that advocacy be provided in a range of scenarios for individuals in certain circumstances—for example, to people with certain disabilities.

With regard to advice, if the Scottish social security agency is able to get the advice right, will there still be a need for independent advice? Is the fact that independent advice is a necessity in the current scenario a manifestation of the way in which social security is managed at present by the DWP? I hope that my question is clear—it is a complicated area.

Steven McAvoy

Even if we manage to get the devolved system 100 per cent perfect, we will still have the UK system and the devolved system’s interaction with the UK system, so I think that clients will still need somebody who is able to understand the whole picture and advise them on it. People will want to know whether getting a devolved benefit will change their entitlement to a reserved benefit and whether they will be able to claim other things, so I think that there will still be a need for advice to be provided.

Disability benefits are only ever a means of calibrating disabilities. There will always be subjective opinion, so there will always be disagreements. That means that there will always be a need for an independent person to go through someone’s case and, if necessary, support them in challenging a decision. Even in a system that is 100 per cent perfect, there will still be a need for advice. Even when a person is not entitled to a benefit, it is important that it is explained to them properly why that is the case and what the rules are so that they have a grasp of the situation and can understand that they have not been treated unfairly. Sometimes, being given an explanation by an independent person of why they are not entitled to a benefit, rather than just getting the agency’s interpretation, can reassure people.

We also need advice services to challenge legislation, because the original intention of legislation as expressed in the way that it is written can always be expanded through case law.

The Convener

Perhaps Morna Simpkins or Bill Scott would like to comment.

Bill Scott

It is a long time since I was an advice worker, but I know from my years of providing advice that case law often expands the understanding of the intention of policy makers. For example, with the 50m rule—or the 50-yard rule, as it was when it was introduced—the intention was to provide assistance to people who had mobility issues. What was tested in tribunal was whether that test was a test simply of whether someone could walk 50 yards or whether it was a test of whether they could do that repeatedly, safely and so on. The tribunals decided that it was not a simple yes or no test; the issue was whether someone could walk 50 yards safely over and over again. If a person cannot do that, they should pass the test and get the award.

I think that there will still be a need for independent advice to continue to test how the regulations and the primary legislation work in practice. However, there should be less need for independent advice for people to go to a tribunal if more decisions are made correctly from the get-go. Although there will still be a need for independent advice, there might not be as great a need as there is under the current system. In advance of the new system being in place, it is hard to tell whether the need will reduce, but if the intention is carried through into practice, that might be the case. However, there will still be a need for advice in relation to the UK system and on the interaction of the devolved system with the UK system, as Steven McAvoy said.

Ben Macpherson

Steven, I want to pick up on something that you said. You were absolutely right to say that there will be a need to think about the interaction between the reserved system and the devolved system. However, given that the Social Security (Scotland) Bill is on the Scottish social security system and is defined as only being relevant to the devolved benefits, would it be understandable to you if the right to advice or advocacy that is included was only on what is being devolved?

Steven McAvoy

I think that there will also always be a need in the devolved system for advice and representation.

Ben Macpherson

That is what I was saying.

Steven McAvoy

Yes. There will be a need for advocacy and advice in response to the introduction of the devolved system. Advocacy and advice can be seen as important positives for the system as we are there, in effect, to test the regulations and to see how far we can push them to get entitlement, which tests whether the regulations are fit for purpose.

We are able to help clients to present the best possible case at the earliest opportunity, and if they have advice and information, it will mean that the form will be well filled in. What is written on the form will be quite closely related to the regulations, so those who provide accurate information at the first point will reduce the workload of decision makers and help us to get the decision right the first time.

Advice and information networks can also build up referral routes and sources of evidence, which can be really helpful in reducing costs and helping decision makers to get things right the first time. If a professional refers to me, they are usually happy to do supporting evidence for me as well. That can go in with the initial application and it means that the decision maker does not have to request it at cost.

All those things can speed up the process and improve the accuracy. As well as being there to test and challenge the system, we are there to support people through it and to make decision makers’ lives easier.

The Convener

You are basically saying that there is a need for both advocacy and advice, as they are different.

Steven McAvoy

Yes.

The Convener

Okay.

Alison Johnstone

What are your views on the need for the uprating of benefits to be in the bill? Do you believe that benefits should be uprated annually, and should that be in the bill?

Steven McAvoy

We are clear that the reductions in uprating have led to a significant decrease in the incomes of the people who we support. That cut has been the cause of the biggest individual saving in the bill for social security. We definitely believe that benefits need to be uprated annually, and that should be in the bill.

Morna Simpkins

We agree that annual uprating should be there.

Bill Scott

One of the problems with the bill is that it is a catch-all, as all the benefits and assistance are included. We believe in annual uprating but, if the nature of the benefits changes in the future, that might not be how they are paid. That goes back to the question of benefits being provided in cash or in kind. For example, if, at some point in the future, funeral payments are provided by other means, such as in-kind support, it might not be possible to uprate them.

There is a problem with having a catch-all bill rather than individual pieces of legislation for each benefit. However, that could be addressed by saying that certain benefits will definitely be uprated annually. For example, at Westminster, all the disability benefits have that provision at the moment, and we would like carers allowance to be included in that. In general, we support annual uprating of all the benefits that are covered but, if proposals are made at some point to change the nature of the benefits, a change might be required in the primary legislation.

Adam Tomkins

There is no provision in the bill to enable Scottish ministers to exercise their power under the Scotland Act 2016 to create new benefits. Should there be such a provision in the bill?

Bill Scott

Yes. It should be on the face of the bill. It is an important power and I would like the Scottish ministers to take it up. There have been instances when people have been deprived of assistance that they should probably have received. I am thinking of kinship carers in particular. There could be another such instance in the future, and having the power in the bill would allow ministers to exercise it.

The Convener

Ben Macpherson has a supplementary question.

Ben Macpherson

It is not really a supplementary, but a separate question, convener. We have touched on the principles, which are set out in section 1. Paragraph 3.5 of Bill Scott’s submission gives an interesting angle on the principle that is set out in section 1(c), which is on dignity and respect. Will you elaborate on that?

Bill Scott

Yes. At present, British law is based on the European convention on human rights, but when the convention was put together, social security was not uppermost in legislators’ minds. The European court has proven itself to be reluctant to intervene when nation states have cut benefit entitlement. There is a need to provide adequate support, and dignity and respect flow from that. If someone does not get adequate support, they cannot maintain their dignity and respect. They are reduced to being beholden to others in order to eat, keep a roof over their head or heat their home. We would like provision on that to be strengthened in the bill.

The Convener

I thank the witnesses for attending and for the great information that they have given us.

Bill Scott

We submitted suggested amendments to the minister and the head of the bill team. Can we forward those to you, convener?

The Convener

Absolutely. That would be great. Thank you.

Steven, did you want to come in?

Steven McAvoy

I want to add something that we did not get a chance to raise. We would like the provision on mandatory reconsideration prior to the appeal stage to be removed from the bill. We would like to return to the previous system whereby, if the person disagreed with a decision, they could lodge an appeal, an internal reconsideration would be conducted and, if the decision was not changed, the person could then go to a tribunal.

The stats on mandatory reconsideration in the reserved system show that decision making did not improve; instead, the number of appeals reduced. Our concern is that that would also happen in the devolved system. Decision making will not improve; people who are not supported or who have other issues in their lives at the time will fall out of the system. The provision places quite a big administrative burden on clients and organisations such as ours that support clients, because we will need to keep track of when decisions were made and whether individuals have appealed, given the time limits that are involved. It will massively increase the workload of advice agencies as well as causing clients additional stress. We do not think that the provision is needed, because an internal review process could be conducted to the same standard without making that process mandatory.

Pauline McNeill

You raise a very important issue. Have you discussed it with ministers? If so, what response have you received?

Steven McAvoy

The response that we received is that, under the reserved system, mandatory reconsideration was introduced with perhaps a more cynical purpose, which was to reduce the number of appeals, and that the devolved system would be better. However, there was not really anything concrete behind that to show why that would be the case.

A recent policy paper gave the impression that the intention is to proceed with mandatory reconsideration. If the intention is to make decision making better in the first instance, I do not see the need for the review process to have a mandatory second stage. It just does not seem to have any practical purpose. The person can lodge the appeal and an internal review can be conducted in any case.

The Convener

Thank you very much. You got that issue in at the end. We will certainly consider it.

09:59 Meeting suspended.  

10:01 On resuming—  

The Convener

I welcome the second panel of witnesses: Craig Smith, policy officer with the Scottish Association for Mental Health; Peter Hastie, campaigns, policy and public affairs manager for Macmillan Cancer Support; and Hugh Robertson from the Industrial Injuries Advisory Council. Thank you for coming along.

I will start with the first question, which is similar to the question that I asked the previous panel. We have heard lots about issues with the bill. What is your opinion? What are the greatest strengths, or weaknesses, of the bill in relation to the people whom you represent?

Craig Smith (Scottish Association for Mental Health)

I would say something very similar to what the previous panel said. For us, the biggest strength is the inclusion in the bill of the principles and the charter, particularly the principle of social security as a human right. That is really welcome. The Government’s rhetoric about the bill has been very welcome, too. That aligns with our greatest fear about the bill, which has been discussed a lot in previous evidence sessions, including in the session with the first panel today, and which relates to the balance between primary and secondary legislation.

Although the principles are very well worded, we would like there to be an extra principle around promoting wellbeing and health through the social security system. There are some big concerns about the balance between primary and secondary legislation when it comes to the principles and giving the charter practical force for individuals using the system.

Peter Hastie (Macmillan Cancer Support)

Macmillan Cancer Support echoes many of those views. We were positive about the way in which the bill was developed and all the discussions around it. It started back in March 2016, when the Scottish Government released the cancer plan, which mentioned

“welfare based on treating people with dignity and respect”.

That was in the actual plan. It also mentioned

“seeking to fast track ... those that qualify and are living with a terminal illness such as cancer.”

We are delighted that the bill includes that.

One of the things that we want to get across is that we think that it is more than the job of just the bill to have a good social security system in Scotland; we think that it is up to the health service, private sector employers, third sector employers and state employers to support the bill, and to support cancer patients, for instance, staying in work. The cancer plan that was published in March 2016 used exactly the language that is in the bill, and we were delighted to see that.

Hugh Robertson (Industrial Injuries Advisory Council)

As a UK-wide Government body, we do not think that it is appropriate for us to tell the Scottish Government what it should be doing. We are here mainly to answer questions about the UK system for employment injury assistance. I do not think that it would be appropriate for me to answer the question.

The Convener

We will have a special question for you, Mr Robertson.

Hugh Robertson

I am sure that you will.

Pauline McNeill

I would like to ask the witnesses about the rules that should apply under the bill regarding terminal illness. We have had evidence that it is not defined in the bill. As the witnesses will know, there is a separate eligibility route in the case of someone with a terminal illness.

The Welfare Reform Act 2012 refers to a person who

“suffers from a progressive disease and the person’s death in consequence of that disease can reasonably be expected within 6 months”.

The view of Marie Curie, which I met yesterday, is that that definition is far too prescriptive. What are the witnesses’ views?

Peter Hastie

There are a range of views on the timescale. In terms of our knowledge of the cancer pathway, six months remains the suggestion. Broadly, the consultants and consultant nurse specialists know that the person is likely to be in their last six months and therefore eligible for benefits. We are still comfortable that the requirements of the cancer pathway are met by a six-month timescale. As more drugs come into the system, as we get better at palliative care and as we detect cancer earlier, that may change. However, for Macmillan, the timescale broadly serves the cancer pathway well. As the committee members know, it is not an exact six months—the consultant and CNS will give a rough approximation.

Representations that the committee has received show a different view in relation to other long-term conditions, where the illness is different and there is a different trajectory from that of cancer. The committee would need to take more views on those individual long-term conditions, particularly from the relevant representative bodies.

However, as I said, we know the trajectory for cancer at the moment and, although it is obviously not an exact science, we think that the timescale—the last six months of life—is appropriate. We hope that, with improved palliative care and by detecting cancer earlier, we will be able to provide a longer period of support. Six months broadly does the job for cancer patients, although it is still a very difficult situation.

Pauline McNeill

So are you content with the current definition as far as your interests are concerned?

Peter Hastie

Only for cancer, because the doctors can tell what the trajectory will be.

Pauline McNeill

But you acknowledge that there may be other conditions where a strict six-month rule might not be appropriate.

Peter Hastie

Yes—we see that with other conditions, but I am not an expert on those.

Pauline McNeill

I had to ask you because Marie Curie was not able to give evidence and I want to make sure that all the organisations with a view have the chance to contribute.

Peter Hastie

Absolutely.

Adam Tomkins

I want to take up the point that Mr Smith mentioned in his opening remarks about the relationship in the bill between primary and secondary legislation. The committee has already heard that there are a number of concerns that the balance in the bill is not quite right.

Would you go into a bit more detail and give us chapter and verse on things that are not in the bill but should be, or, conversely, which are in the bill and should not be? We want to understand the issue in as much detail as possible.

Craig Smith

Most of my comments will be about disability benefits. Key concerns—some of these were raised by the first panel—are that the bill should include a key purpose for each of the individual benefits covered and a clear definition of disability. It is implicit in the bill and the policy memorandum that the Equality Act 2010 definition of disability is being used. We would like the bill to state that.

In our written evidence, we talked about principles of assessment. While there needs to be a balance with secondary legislation and an understanding that primary legislation is not the right place for huge screeds of detail about how individual assessments will be undertaken, we would like to see more principles on assessment in the primary legislation.

Assessment should be paper based; it should be face to face only when there is a real need for that. Assessment should be undertaken by people with a professional background or experience in the applicant’s primary condition. More detail on the eligibility criteria should also be in the bill.

Adam Tomkins

Is that also the view of the other witnesses?

Peter Hastie

We had a lot of trouble in trying to understand some of the motives behind the bill. Obviously, it is written in parliamentary language, which Macmillan does not necessarily have expertise in. We come to the bill with a lot of good faith, and we think that it allows the right judgments to be taken, whether through its provisions or through decisions by Government ministers that are then secured by Parliament. The issue is difficult for organisations such as ours. Even in Macmillan, we have varying views—perhaps I will come to that later. However, the bill does a lot and it shows an understanding of much of what we say in our submission—I refer in particular to the reality of the cancer patient’s journey through the benefits system, rather than the technical nature of the legislation. We think that much of the bill shows an understanding of real life in society and the experiences that people might have in working their way through a new benefits system.

Craig Smith

I agree with Peter Hastie. We are broadly happy with the general approach that the Government has taken to social security. I suppose that our key concern is about the things that are not in the primary legislation and the level of scrutiny that can be undertaken of secondary legislation. It is good that the affirmative and super-affirmative procedures are being put in place for the development of regulations and how they are approved, but the Parliament will still not be able to amend regulations that are scrutinised.

From what the Government has said, we are still not hugely clear about the level of scrutiny that will be open to the public on individual sets of regulations. I suppose that our concern stems from some of the experiences that we have had with the UK system. In November, the Upper Tribunal changed some of the conditions around PIP for people in psychological distress in relation to travel and reduced entitlement. The Westminster Government changed the regulations very quickly—it did that in February. We would not like to see something like that happen to the system here.

Although we are very positive about the approach that the Scottish Government is taking, we are concerned about future proofing, and that is why we would like to see a wee bit more in the primary legislation, including things such as timescales for awards. We welcome the fact that there is a timescale for redeterminations in the bill, but we think that that approach should be expanded to include other aspects of the system.

Adam Tomkins

Thank you. I have a final question. Would you like the bill to make express provision for the creation of new benefits?

Craig Smith

Yes. I can give you a huge example of what new benefits we would like to see right now, but—

Adam Tomkins

Yes, please. That would be helpful.

Craig Smith

I cannot give you a huge amount of detail on specific new benefits that we would like to see, but the fact that there is no such provision in the bill represents a big gap. I have more detail about the topping up of existing benefits. We would definitely like the Government to move to top up reserved benefits. With employment and support allowance for the work-related activity group, people have recently had a £30 cut, bringing ESA WRAG to the level of jobseekers allowance. We would like the Scottish Government to move to mitigate that and put in place a top-up, and to do the same around the changes to PIP that happened earlier this year.

In principle, however, the fact that the bill contains no provisions on the creation of new benefits represents a gap.

Peter Hastie

If the committee thought that including such provisions was the only way to do it, we would absolutely want the committee to include them. If the committee and the Parliament come to a judgment that things can be done—for instance, on ESA WRAG—through other mechanisms, we will trust them. We put into your hands the need to top up, reinstate, recover or whatever in order to support the cancer patients who have just lost £30 a week, and we trust the committee and the Parliament to do the right thing for them.

As I said, we are not experts on legislation. We believe that, if a provision on the creation of new benefits is the only mechanism, it should be included in the bill, but we also think that the Parliament and the Government can support cancer patients using the top-up tool. Therefore, we leave it in your hands.

Adam Tomkins

I think that, for the record, it is important to note that there is a difference between the power to top up benefits and a power to create new benefits. There is a provision in the bill about the power to top up benefits, but there is no provision in the bill about the power to create new ones. It is important to bear that distinction in mind. Thank you for your help.

10:15  

Jeremy Balfour

I have a couple of questions. Maybe Craig Smith and Peter Hastie can answer the first one, and we can bring in Hugh Robertson for the second one.

My experience is that people with mental health conditions who applied for DLA and those who now apply for PIP are often the people who find it most difficult. We had a discussion with the first panel about advocacy and representation. I am interested in your views on advocacy, particularly in relation to the people whom you represent. Should there be an advocacy provision in the bill? If advocacy is to be provided for in the bill, or, as is more likely, in regulations—this gets into the nitty-gritty of how the bill will work—should we have a separate category for those who have mental health issues, rather than try to fit those people into categories that are predominately based on physical disability?

My second question is on residency. Perhaps Peter Hastie can come in on this one. At the moment, residency—where someone lives—is not defined in the bill. Someone with a cancer diagnosis may, for family reasons or whatever, move north or south of the border. For example, someone in Aberdeen who has a terminal illness may move to be with family in Carlisle. Does the bill need to cover such situations?

Craig Smith

We are very clear that we would like to see in the bill a right to independent advocacy for all individuals who engage with the social security system. There is really good precedent for that in the Mental Health (Care and Treatment) (Scotland) Act 2003, which provides a right to advocacy for everyone who has a mental health disorder, irrespective of whether they are being treated. We would like to see a similar provision in the bill.

If we are really going to embed a human rights approach, advocacy is key. There is a very good evidence base around the important impact of advocacy in social security, which you heard about earlier. We know that the Scottish Government funded a welfare advocacy pilot a few years ago, in which local advocacy projects delivered specialist welfare advice advocacy for individuals who were undertaking ESA and PIP applications and assessments. Its impact on individuals’ confidence and the quality of decision making was quite stark. There is a clear role for advocacy, and a right to advocacy should be in the bill. That is one aspect that could help embed a human rights approach to the system.

Your question on whether there should be a separate category for mental health is an interesting one that we have discussed a lot internally. In some ways, it would be a good approach to have a dedicated mental health stream that people would go through if their primary condition was a mental health condition. What is most important—and it would probably alleviate the need for such an approach—is that the quality of assessments and information gathering is good. There is a fairly wide consensus across disability groups on the need to move away from having a face-to-face assessment by default to an approach that is much more paper based and focused on the individual and the impact that their disability or mental health problem is having on their life. We would like a system in which such an approach is key.

We have heard good things from Government on that, but one of our slight concerns is on where liability for the collection of evidence lies. In the current system, where some people are charged for additional evidence and some people struggle to gather evidence because of their condition, we know that there can be big problems and gaps in evidence, which is leading to people having to go to appeal and tribunals. We would like the agency to have a much stronger role in gathering evidence on behalf of the individual, once the individual has given their consent and possibly identified key evidence sources. Quality evidence that is gathered from community psychiatric nurses, psychiatrists and family and friends—people who really know the individual—and evidence that is gathered from the individual themselves about their understanding of the impact of their health complaint could make a big difference to decision making. When face-to-face assessments have to happen, they should be undertaken by someone with a mental health background if the applicant’s primary condition is a mental health condition. Those things would go a long way towards improving the quality of assessments and the experience of those who undergo them. We know that undergoing an assessment can be a very damaging experience.

The Convener

I will bring in Hugh Robertson at this point. SAMH said in its written submission that post-traumatic stress disorder should be looked at, but the Scottish Government’s position paper notes that the IIAC has considered the issue and has “not found sufficient evidence” to recommend changing the criteria. In addition, the Scotland Act 2016 prevents the IIAC from providing advice to Scottish ministers.

I have a two-pronged question. First, do you have any comments on what SAMH has said? Secondly, do you have a view on how the IIAC could provide functions in Scotland under the bill?

Hugh Robertson

That requires quite a long answer. I will start with mental health issues, if that is okay. We have looked at that area. The problem is that the scheme is not a sick pay scheme, but a benefit payment scheme for disabilities that are caused by work. Roughly a third of mental health disorders involve a work component, but it is very difficult to say that someone’s mental health problems have been caused purely by work.

Last month, we published a report on teachers and healthcare workers. We felt that there must be good evidence in that area—we have all heard anecdotes and stories. However, because stress and anxiety are so common among the general population, we could not ascertain that people in that group are more than twice as likely to experience such problems. If we wanted to say that it is more likely than not that such disorders are caused by work, we would need to see that kind of doubling, and unfortunately it is not there.

One issue is that mental disorders that are caused primarily by work are treatable and people can recover from them. We do not want such disorders to be seen as a disability, because that medicalises the issue and institutionalises people. We want to empower people to feel that they want to get back to work and get well rather than see themselves as victims.

Another issue is that such disorders are preventable, but there is no link between the current industrial diseases system and the workplace and the employer, which means that there is no real incentive. The Scottish Government could end up paying large sums of money in benefit to those people, but what would it do to prevent the problem? The scheme does not really do that.

We looked at PTSD and said, “Yes, it is different.” It can arise from a one-off traumatic event and can be very disabling, which is why we said that although the occupational diseases scheme does not apply to it, the accident provision may apply. If someone experiences PTSD as a one-off event, they can claim benefit under the accident provision. That is probably a reasonable approach to the issue, because it is a different state in the context of mental health issues.

With regard to what kind of model we should have, there is a fantastic amount of occupational medical experience and skills in Scotland. Just down the road there is the Institute of Occupational Medicine; one of the fathers of occupational medicine, Professor Ewan Macdonald, set up the healthy working lives group in Scotland; and there are professors of occupational medicine and so on in Glasgow and Aberdeen.

The point about setting up a committee to deal with the issue is that it is not primarily a medical approach that is needed. We need the epidemiologists: the people who can look at the evidence around the world and say whether it shows that it is more likely than not that people in certain occupations have developed this particular disease because of their work.

The difficulty is that, if you use the same criteria in Scotland as will be used in England and Wales and as apply in Northern Ireland, two committees will be looking at exactly the same diseases on a scientific basis and coming up with different decisions, which will cause problems. In the long term, are you going to use a 71-year-old system, which is what we have in England and Wales—which was set up for a completely different purpose, to deal with a completely different workforce, at a time before our current occupational health priorities were developed—or will you have your own system?

The initial issue is having two parallel committees looking at exactly the same issues. In the long term, it is a question of the Scottish Government deciding what kind of system it wants to evolve for the modern Scottish workplace and having a group that is appropriate to that.

We have found that having a mixture of academics, a lawyer and people who know the world of work—representatives of both employers and employees—has worked fantastically well, and we very rarely have disputes within the IIAC. I have been on the council since 1999 and we do not normally disagree, because we go where the evidence takes us, whether we like it or not. I do not like the decision that we made on stress in teachers and healthcare workers, but we made it because of what the evidence shows us. The evidence will not be different, whether it is being looked at in Scotland or in London, and that is where we have a problem.

The Convener

Thank you, Mr Robertson. I did say that we would have a question specifically for you. That was very interesting. Obviously, we cannot make assumptions, but if you have looked at evidence and you have advice, perhaps you could work together with the new social security agency so that it can receive that advice.

Are you saying that it would be better to keep things separate, or are you saying that you would give that advice if you were asked? We have talked about PTSD, which is recognised now, so if that was considered to be a disability a person would get a social security benefit for that. Would the evidence for that need to be provided by the committee?

Hugh Robertson

We have been told that we cannot give such advice to Scotland. We cannot really comment on that—that is what we have been told. Once Scotland takes over devolved responsibility for industrial injuries benefit—you are calling it “employee injury assistance”, which I welcome—then we will no longer be able to give advice.

The reality is that occupational diseases in Scotland will not be different from those in England. In the initial period, when Scotland will be mirroring the scheme in England and Wales, reports on issues will be coming from the IIAC in England and Wales. We cannot really advise you on whether Scotland should just accept those reports and put them into Scottish regulation, or whether it should set up its own specialist committee, either as a sub-committee of the Social Security Committee or as a separate one.

However, we can say that, because those reports are meant to be evidence-based academic ones, problems would arise if the two committees looked at the same things and reached totally different conclusions. That should not happen. Is it a useful use of Scotland’s resources to duplicate the committee’s work? That is your decision, I am afraid.

The Convener

I am sure that the committee will reflect on that.

Jeremy Balfour

Can I say for the record that I forgot to declare that I sat on PIP and DLA tribunals and I am in receipt of PIP? My apologies for that.

The Convener

Not at all. Thank you, Mr Balfour.

Alison Johnstone

Earlier, Peter Hastie commented on the fact that the Social Security (Scotland) Bill has a hugely important role to play, but that society at large can also contribute to a good system. In his submission, he said:

“Recent work at the Spinal Unit based at the Queen Elizabeth Hospital in Glasgow showed that here is a real opportunity to change how decisions are made for people with longterm conditions working closely with nurses, physios and consultants”,

which could have a real impact on the way that we assess those conditions in the first place. Can he give us more information on how that worked?

Peter Hastie

Absolutely. I do not want to make up a new phrase but I think that we could be interested in something about pre-advocacy. In our submission we talked a lot—sometimes defensively and sometimes positively—about the work that we have done with the UK Government on changing the nature of cancer patients’ claims. A Macmillan Cancer Support phone line is now credited by the DWP to fast-track those payments.

10:30  

The Scottish Government is the only Administration in the UK that has helped fund Macmillan Cancer Support benefit advisers, which it did for the five cancer centres across Scotland in 2008. It is about changing the nature of somebody’s benefits journey. If members want to, they can visit the Western general, for example, and see the benefits staff going round the chemotherapy ward to get the patients to fill in the forms. We know that somebody going through chemo could not go to the advice centre on the high street and so on.

The Queen Elizabeth practice follows Macmillan’s benefits model, which takes the advice into the hospital, fast-tracks the form and avoids all the face-to-face assessments, because the judgment of the consultant and the CNS that the person going through chemotherapy is not able to work can be trusted. The Queen Elizabeth has built on that model, which surrounds the patient. Macmillan normally deals with those who have cancer, and the Queen Elizabeth deals with those with long-term conditions. We can support them through that journey.

I am passionate about addressing the changes regarding people going back to work. As the state retirement age rises to 68, cancer is going to be more and more of a working-age illness. Back in the day, if someone got cancer when they were 60, they were just about at retirement age and could get their pension. However, that is not the case anymore. We now need to get people back to work, which chimes nicely with the fact that survival rates are growing massively. The next Scottish cancer survival rate figures will be issued around January and they will show increased survival rates, with one, two, five and 10 years’ survival. We would like those rates to be higher, but that is an issue for another committee.

If we can surround the cancer patient or the person with the long-term condition with physiotherapy and vocational rehabilitation and all that that brings within the health service and their workplace, we will not necessarily take them out of the benefits system, but we can keep them away from it as long as possible. There are so many roles for so many professionals in our society to support the person with the illness to not always need the support of the benefits system.

Alison Johnstone

I address this question to Craig Smith. At the start of the evidence session, you were asked about the strengths of the bill and I think that you mentioned the charter. Does the bill provide a framework of rights and a mechanism of redress that a benefit applicant could rely on if they felt that their rights were not being fully respected?

Craig Smith

No, not at the moment. I very much welcome the fact that the bill stipulates that there will be a charter. We would like to see it co-produced with the experience panels, but with a wider audience of stakeholders. We stated in our submission that we want that to reflect the fact that over 30 per cent of people receiving PIP have mental health problems as their main condition, so the mental health population needs to be reflected.

Redress is one of our concerns. We very much welcome the bill’s principles and the legislative promise that a charter will be developed. What is currently missing, though, is avenues for redress. If we want a system that is based on human rights, we need it to have accountability, scrutiny and redress. There needs to be a wee bit of clarity around whether the principles are systemic or are for the individual and whether the charter will be for enshrining the rights and principles for the individual. If that is the case—it should be—there must be an avenue for individuals to complain or seek legal redress if they feel that their rights under the principles and, subsequently, the charter are not being adhered to by the state or social security agency.

We hope that that can be developed and we would like further clarity from the Government on it. The concern has been raised not just by us but quite widely across the disability third sector that there are some gaps regarding the issue of redress. That is crucial, because people need to be able to get redress when they feel that their rights have been breached.

The Convener

Ruth Maguire has a supplementary question.

Ruth Maguire

It follows on from what Craig Smith has just said. If the charter was to be legally enforceable, it would have to be drafted as a legal document. I believe that that would be a disadvantage, because it would detract from the charter’s purpose of being accessible, easy to read and not legalistic, and it would affect its ability to be co-produced, as Craig Smith said that he wanted it to be. What are your reflections on that?

Craig Smith

That is a big challenge. A balance needs to be struck, but I do not have the answer. We believe that the charter must have some form of mechanism of redress, but the charter needs to be accessible for everyone who uses the system and it should be co-produced.

Ruth Maguire’s question is a really good one, and it is a difficult one to answer. We would not like the charter to become window dressing for the system. I am certainly not suggesting that that is the intention or that that is what will happen, but charters under other legislation perhaps have not had the impact that they could have had. We need to get a balance, but an individual’s right to redress is a key issue.

Ben Macpherson

I am interested in Peter Hastie’s thoughts on this question. Macmillan’s written evidence mentioned the fast-tracking element for those who qualify for assistance and who are living with terminal illnesses such as cancer. Other organisations, such as Marie Curie, have suggested that the fast-tracking element should be mentioned in the primary legislation. Do you have a view about where a right to fast tracking, or a statement about it, should be included?

Peter Hastie

I have been thinking about that, and I cannot remember ever coming across a situation in which people did not just accept that terminal illnesses are different from other issues. We push the UK Government all the time to speed up payments, but we have most success when we are talking about terminal illness. Most people would normally accept that the system should have different criteria in that regard. Despite the brilliant work of the detect cancer early programme, many Scots are diagnosed very close to the end of their lives. Most people accept that the system should have built into it a shorter timeframe for those with a terminal diagnosis of six months or less—it is often a lot less—than the timeframe that it has for those who have a normal diagnosis. I should perhaps not say “normal”, but you get my point.

I am not clear that that has to be in the bill. As Pauline McNeill alluded to, the nature of terminal illnesses will change over time, so you would not want to tie your hands too tightly. However, the committee and the Parliament can send a very strong message. Every system that there has ever been accepts that those with terminal illnesses have to be fast tracked ahead of others, although we would love all benefits to be processed within 24 hours.

It is pretty clear that the seven-day targets that have been set by Westminster are being met, and we would not want the bill to do away with those hard-won targets. My colleagues Emma Cross and Grace Brownfield fought hard at Westminster for years to have those targets put in place. However, we do not perceive for a moment that the Scottish Government would do anything other than continue with those targets and keep publishing the statistics so that the committee can hold ministers’ feet to the fire when the quarterly statistics are published, just as we currently do at Westminster.

The Convener

Ruth Maguire, do you wish to come in on advocacy?

Ruth Maguire

I could do.

The Convener

Sorry—I had your name down for a question on advocacy.

Ruth Maguire

That was for the first panel. To be honest, the panel have already reflected on advocacy and advice, but thank you for the offer.

The Convener

That was remiss of me.

Questions have been asked on numerous occasions about the issue of primary and secondary legislation. We have had evidence from many groups, most of which say that they would like some particular measure to be included in the bill. Why is it so important to have measures in primary legislation rather than secondary legislation, when the latter is easier to change because we do not have to go through the full parliamentary process? Could you explain that to us in simple terms?

Craig Smith

Although regulations certainly are easier and quicker to change, we are concerned about the scrutiny aspect. That is key for us. Changing primary legislation requires a much longer process, but that is not necessarily a bad thing, as it allows proper public consultation and Parliament can amend proposals rather than just pass or reject them. We fully understand that, in a complex social security system, we cannot have every single detail in the primary legislation, as that would become unmanageable but, for us, it is important that we have the key eligibility and assessment criteria as well as timescales—the key principles—to provide a framework for further regulation. Scrutiny is a real concern for us.

The experience of the changes to PIP that were made through regulation, which we felt were very damaging and were made without any public scrutiny, is a warning for us that we need to future proof the bill. Although we welcome the Government’s tone in the debate on social security—actually, it has been a fairly cross-party tone across Scotland since before the bill was produced—we do not know whether that level of discourse will always be there. It is important that safeguards are put in place, which is why we feel that the balance between primary and secondary legislation is still not quite right.

The Convener

So scrutiny is really important—

Craig Smith

Scrutiny is really important for us.

The Convener

—and you believe that, if measures are in the bill, scrutiny will come along. You do not think that having an independent scrutiny body would be enough.

Craig Smith

We definitely agree that there should be an independent scrutiny body, but it is important to have that public scrutiny, too.

Peter Hastie

I certainly do not want to contradict Craig Smith, but we have not asked for that. Maybe it is just because I am so long in the tooth now, but I am fairly sure that more social security bills will come in front of the committee as the years go on. Macmillan will scrutinise those for cancer patients through the committee and the Parliament and outside the Parliament. The reason why we have not called for measures to be put in the bill is that, because the nature of cancer is changing so much—in a good way—if we tried to pin down every single one of our beliefs in the bill, we would be concerned that we would have to come back to you in six months to say, “We’ve got a new one.”

I am not an expert on putting things in bills and I am not speaking against that, but we strongly believe that the changes to the welfare system for cancer patients are non-stop. The survival rates are incredible. I could not have told you that five years ago.

The Convener

Something might even change that concerns Mr Robertson’s council—you never know. I am bringing Mr Robertson back into the discussion, as we talked earlier about post-traumatic stress disorder and that type of thing. I have heard from a number of people that things are changing all the time in the welfare system and that it would take a long time to deal with that if everything was in the bill. However, it is for the committee to make up its mind on that when proposals are made.

Ben Macpherson

Some of the panel were in the public gallery listening to the first panel, with which we discussed a commitment from the minister to use the super-affirmative procedure for secondary legislation. Does that reassure you, Mr Smith?

Craig Smith

It is definitely very welcome, as it would provide a greater level of debate on regulations. However, I would need to reflect on that a bit more. There are still certain areas that we would like to be covered in the bill, but it is a very welcome step if the minister is going down the super-affirmative route.

The Convener

I thank the panel very much for their evidence. We now go into private session.

10:43 Meeting continued in private until 11:25.  

The Convener

Under agenda item 2, we continue our evidence taking on the Social Security (Scotland) Bill at stage 1. Today, we will hear from two panels of witnesses. I welcome our first panel: Heather Noller is the policy and parliamentary officer at the Carers Trust Scotland, and Amy Woodhouse is the head of policy at Children in Scotland. Thank you very much for coming along at this early hour.

I will begin with a general question. In previous evidence sessions, we have asked our witnesses for their views on the Scottish social security principles and the proposed Scottish social security charter. What are your views on the principles and the charter? How will they influence the organisational culture of the new Scottish social security agency?

Heather Noller (Carers Trust Scotland)

In line with what other organisations have said in evidence, Carers Trust Scotland welcomes the fact that the principles and the charter have been included in primary legislation, because that inclusion will be the major driver of cultural and organisational change. The principles around human rights are particularly important in that regard, and the setting out of the view of social security as an investment in the people of Scotland is an extremely positive step, which will be useful in driving cultural change in how social security is seen.

Amy Woodhouse (Children in Scotland)

Children in Scotland is also very supportive of the principles and the charter. It is welcome that the principles are set out right at the start of the bill—they are the first thing that people see. We would be supportive of that continuing to be the case.

The emphasis on human rights is very important. If the opportunity were to be taken to emphasise an extension of child rights, that would be welcomed by us. Dignity is equally important, so we are pleased that the term has been included in the bill. We would like it to be threaded throughout the rest of the bill, where appropriate.

One potential gap in the principles that we are keen to address is to do with recognition that the purpose of social security is to address poverty and inequalities. We suggest that an additional principle relating to that be inserted in the bill.

The Convener

Thank you. I note that you made that point in your submission.

You mentioned the culture. Once the principles have been agreed, do you think that agencies might need training on them?

Amy Woodhouse

We would welcome that; I am sure that it is a good idea. In addition, more detail in the charter might help people to understand how the principles can be put into practice and what that will mean with regard to how the system works and operates. Human relationships are the most obvious interface in the system, so training on how to put positive relationships at the heart of the system would be welcome; we would encourage inclusion in the charter and the implementation process of emphasis on the importance of relationships.

The Convener

Would you like to add to that, Heather?

Heather Noller

I reiterate that we would always welcome training for agencies, particularly as there will be two different systems working alongside each other. Many carers will still receive reserved benefits or will support people who receive those benefits, so it will be beneficial to make sure that there is an understanding of how the systems interact.

Positive relationships will be important, too, and there will be a need to reiterate the difference that a Scottish social security system will make. Many people are quite reticent about the changes because they have had quite negative experiences of the current system. It will be important to make sure that staff who deal with people who have had those negative experiences recognise that and are willing to support them.

The Convener

You have hit on a very important point. Obviously, 15 per cent of the social security powers are coming to the Scottish Parliament, but the rest will remain with Westminster. On information from agencies, should the information be in written form for people who use the system? We hope that the charter will be pinned on walls so that people can see what their rights are. Should there be written information to let people know about the differences and what they can claim, and to direct them where to go?

Heather Noller

That would be useful. Information should be available in the agencies and online, and it should be provided directly in claim forms. A lot of people will prefer paper claim forms to applying online. Information should be available in any way that people can access it; it is really important that information be as accessible as possible.

Amy Woodhouse

I agree with Heather Noller. It will be important that there are easy to read and accessible versions of the information. I know that the issue is complicated, but it is important to have ways in which we can clearly articulate to people whose first language is not English what their entitlements are.

Jeremy Balfour (Lothian) (Con)

Good morning, and thank you very much for coming to the meeting.

I want to dig down into two issues to do with the carers allowance. The first is about the current link between the number of hours for which a person cares for an individual and that individual having a certain award himself or herself. Should there be a division such that it does not matter whether that individual is getting an award—if someone cares for that individual for a certain number of hours, the carer gets an award—so we separate the two awards? I would be interested in your views on that.

Secondly, there is currently one award only: if a person reaches 35 hours a week—I think—they get the award. Obviously, some people care for 15, 20 or 25 hours and do not get any award. Should there be tiering up to the 35 hours, so that a person who cares for 20 hours gets £X and a person who cares for someone for 25 hours gets more, rather than there just being one straightforward award that people get all of if they hit that number? Should there be a more tiered, downward approach?

Heather Noller

Both issues come up regularly when we consult and speak with carers.

On the first question, the link between carers allowance and the qualifying benefits has been explored: we have discussed it with the Scottish Government and carers. As with anything, there are positives and negatives in it. Currently, for a person who meets all the eligibility criteria for the carers allowance, it is quite an easy benefit to receive. The application process is quite straightforward, which is obviously beneficial for carers and their families.

However, the downside is that some people have significant caring responsibilities for people who do not receive a qualifying disability benefit. This is anecdotal but, for example, quite often people who look after frail elderly parents who are not eligible for attendance allowance—which has quite strict eligibility criteria—do not qualify. That can cause problems for that age group, who are usually in older middle age and may be balancing work and childcare with that caring responsibility. There would be a definite benefit there in removing the link between carers allowance and the qualifying benefits, but that would also make the carers allowance application process more complicated, and there would have to be a different way of assessing whether a person is providing care. At this stage, I am not sure how that would be done, how complicated it would be, and how much assessments would cost. That needs to be explored more widely.

On the second question, on tiered amounts of carers allowance, 35 hours of care or more a week is a substantial amount. I am sure that it is quite obvious to the committee that people who provide fewer hours of care than that still provide substantial amounts of care, which will impact on their ability to stay in employment or to have enough leisure time outside their caring role. We would be interested in exploring that issue more.

Again, the approach has positives and negatives. I presume that there would be not a means-testing approach, but an assessment of how the caring could be done and what the levels of benefit and the hours of caring would be. There will always be a cut-off in such things, whereby some people will just not meet the required hours and will not be eligible, which would cause difficulties for them. The idea would need to be looked at in a lot more detail before we could make a definitive statement on whether the tiered approach would be appropriate.

Amy Woodhouse

Children in Scotland is particularly concerned about young carers, who are really disadvantaged by the current system in terms of financial support for their role. We welcome the young carers grants announcement, but we have questions about how carers assistance and carers allowance will work for younger carers. We are interested in whether a pro rata approach would work—an approach that would recognise that many young carers mix significant caring responsibilities with being in school, for example.

In the context of the bill’s proposal for the carers allowance supplement, we have a question about the link to jobseekers allowance, for which 18 to 24-year-olds get a lower rate. We would like clarity on whether the supplement will be at the higher rate for everybody, including people in the 18 to 24 age range.

We want to ensure for carers the principle of parity, regardless of their age. One way in which that will need to be addressed is by recognising that although younger carers are less likely to be caring for 35 hours a week, they still have significant caring responsibilities. More flexibility and an exploration of a pro rata approach would be welcome.

Mark Griffin (Central Scotland) (Lab)

I will continue on the eligibility criteria for carers allowance, particularly for people who care for more than one person. At the moment, to qualify for carers allowance, a person has to be caring for a single person for 35 hours. However, a person could be caring for two people—individually, for less than 35 hours, but cumulatively for longer than that—but not qualify for carers allowance. Should the Scottish Government look at the eligibility criteria in that respect?

On the Government’s commitment to increasing carers allowance for parents who care for more than one disabled child, should that increase apply across the board to people who care for more than one person, rather than only for more than one disabled child? Should the Government look at that issue?

Heather Noller

We have approached the Scottish Government about that; it comes up a lot in general campaigns about carers allowance and when we gather carers’ views, and we have mentioned it in our written evidence. As Mark Griffin mentioned, situations in which a person cares for more than one person, which takes them way above the 35 hours a week eligibility criteria, are prevalent. We do not hear a lot about it, but it happens for sure, and it disadvantages people. A person who has multiple caring roles is more unlikely than others to be able to stay in paid employment, so it is important that they have access to benefits and to an income for providing that care.

Amy Woodhouse

I would probably defer to the expert and agree with Heather Noller that additional caring responsibilities should be considered and recompensed accordingly.

Mark Griffin

The Government says that it will not look at eligibility criteria until it is further down the line in implementing its policy on paying carers allowance for more than one disabled child. Should it be looking at eligibility criteria now?

Heather Noller

The matter should perhaps be looked at in policy terms, but I understand the Government’s reasons for not wanting to look at it until we are further down the line. It is a big change to introduce a new social security agency and to transfer benefits across: we need to look at all the different aspects in that. It is more important to get that right, to implement the initial commitment to increasing the carers allowance through the supplement and to ensure that carers in Scotland are supported as soon as the benefits transfer.

I believe that the issue is being looked at from a policy perspective. We are consulting carers on that to ensure that there is enough evidence and information available to the Government and others, so that decisions can be made in the correct way.

09:15  

Alison Johnstone (Lothian) (Green)

Carers allowance is currently defined as an “income replacement benefit”. Several of the submissions suggest that, if that is the case, people would be being paid £2 an hour. Clearly, £2 an hour is no sort of salary for someone who could be looking after several people: it is neither the minimum wage nor a living wage. How adequate is the benefit? Is it possible to deliver dignity and respect if people simply do not have enough cash in the first place?

Heather Noller

Broadly, I do not think that it is an adequate benefit. As Alison Johnstone has identified, as an income replacement benefit, it is not particularly substantial. As we mention in our written submission, raising carers allowance to the level of jobseekers allowance is not necessarily the correct approach, because although people can stay on jobseekers allowance for a long time, it is meant to be a temporary benefit while they look for work. I am not sure of the exact figures, but substantial numbers of carers have been on carers allowance for more than five years and will never not receive the benefit while they are providing care. It is a long-term benefit that people need in order to survive. Therefore, further down the line, we will need to consider what is an adequate income replacement for people who provide substantial amounts of care.

That is also being considered from a policy perspective. We need more evidence on what an adequate level of carers allowance would be, and we need to consult carers about that. We also need to know what is financially sustainable—that probably needs to be considered to ensure that there are no unintended consequences in the long term.

Amy Woodhouse

From a children’s perspective, there should be a recognition of the number of unknown carers who get no support, at the moment. In respect of children who have to look after their parents when they come home from school, which is a huge responsibility, and who have very little services support, let alone financial support, it is difficult to see where dignity and respect feature. It might be slightly outwith the scope of the social security system to address that fully, but in applying the principles, it is important that consideration be given to how children and young people are recompensed for carrying out their caring responsibilities.

The Convener

You mentioned young carers: obviously, we have the young carers grant coming in. I am sure that we have all met kids who have found it very difficult to go to college and university. I have spoken to such people, and they welcome the grant, even though it is only £300. Do you have any ideas about how we could support kids who are under 16? Could it be through a grant or through something other than monetary support? A committee that I was on previously did an investigation on the issue and found that a lot of young kids do not want people to know that they are caring for parents, because there is stigma attached to that. You said that it might not just be the social security system that can deal with the issue, so perhaps the committee could help by passing information to the Equalities and Human Rights Committee. What are your thoughts in respect of those who are under 16? There are people who, because of stigma, do not want to talk about their caring.

Amy Woodhouse

Yes. Obviously with younger children, direct payment is not appropriate. There are also a number of young children who do not realise that they are carers: they just do it and do not realise that it is not a normal part of everyday life and that they should be getting support for it. There should be adequate service provision to enable children to be children by taking those responsibilities off them.

We would hugely welcome the committee taking a role in advocating that as part of the wider system, because social security sits within the wider context of social care and social support. It would be very welcome if the role of social security, within broader social care, in addressing poverty and disadvantage and ensuring the wellbeing of the population, were to be recognised within the charter.

Heather Noller

I echo Amy Woodhouse. It is absolutely about the provision of services and making sure that there is adequate support for young people. We work on the principle that young carers under the age of 16 should have relief from their appropriate caring roles: services should be put in place for the person whom they look after. That should happen as a matter of principle.

Young people can have a lot of positive experiences through caring and living in a family in which someone needs care; it is not always feasible to say that no aspect of such help should be provided by them because that is not how families work. A young person who lives in a family in which someone is ill or disabled will support them and help them in some way. There is an emotional impact of that, as well as it involving practical tasks. That is not something that can be relieved.

However, we need to make sure that there are adequate young carer support services, that young carers have opportunities for respite and breaks from caring, and that their schooling is not interrupted, which requires a number of services and supports to be put in place for them. It is important that adequate funding be available for that.

Mark Griffin

I agree with the point that, for people under 16, there should be wider support through health and social care to alleviate their caring responsibilities. However, with the cuts to local government and other areas, although that is a great principle to have, sometimes it is just not a realistic picture of what is happening on the ground.

Someone who is 15, in their fourth year at school—a challenging year, with exams—could have the same caring responsibilities at home as someone in the same year group who happens to have turned 16 already and is therefore getting support. Is it appropriate to look at a payment in trust through a parent, or something along those lines, to make sure that people who happen to be below that age threshold but are still providing the same level of care are being recognised and supported?

Heather Noller

There are two issues there. It comes back to what the convener mentioned about different legislation and how to influence different spheres of policy. Under the Carers (Scotland) Act 2016, which is being implemented next year, young carers are defined as carers who are under 18 or who are 18 but are still at school, so there is potentially a bit of a mismatch with legislation that supports young people up to the age of 16. In the wider Scotland sphere of children and young people’s policy, young people are quite often defined as people who are under the age of 26, so there are quite a lot of different levels there.

Were you talking about supporting families in general rather than supporting the young carer directly?

Mark Griffin

I was just recognising that it might not be appropriate to pay someone under the age of 16 through the social security system. There could be other avenues, such as a payment in trust to the parent rather than one that goes direct to the child, to recognise the child’s caring responsibilities and efforts in the same way that those of someone who is six months older than them are recognised.

Heather Noller

Absolutely. In the consultation around the bill and in last year’s consultation, which looked at wider principles of social security, the parents of young carers gave their opinions and experiences, and said that they should be the ones who financially support their children. The majority of young carers live in family situations where that is possible.

Although the young carers grant and other financial provisions for young carers will be useful, it is usually wise to take a whole-family approach. Whether it comes through a payment in trust, just making more money or support available to the family as a whole will generally be beneficial.

Amy Woodhouse

I agree. I do not have anything to add.

Adam Tomkins (Glasgow) (Con)

I have a very specific question that might have a very quick answer; I do not know. There is in Glasgow, the city that I represent—and elsewhere as well, for all I know—increasing concern about a gap in welfare and family law provision for kinship carers. When it is scrutinising the bill, does the committee need to take anything into account to make sure that that gap is plugged by the provisions of the bill, if the gap is there and can be plugged?

Heather Noller

Kinship care is a quite specific issue and it is not my area of expertise. Although kinship carers are defined as carers, they are not within the client group that we work with, unless care provision is happening, such as when a kinship carer is looking after children who have additional needs. From what I have read and understand, there can be a gap, and it is down to whether the local authority has recognised the kinship caring relationship and whether it has been formalised. That has an impact on the kinship carer’s access to money.

The issue definitely needs to be looked at just to make sure that families are not missing out. From the perspective of Carers Trust Scotland and other national carer organisations, if there is a caring relationship within the kinship caring relationship, that also has to be recognised.

Amy Woodhouse

This is another area where different bits of legislation and policy overlap. Clarity on that would be really welcome. I echo Heather Noller’s point that quite a few kinship carers and foster carers care for children who have disabilities—the figure is higher than it is for the general population, so the issue needs more exploration. We should certainly be looking for where that links into the changes that have been made in the Children and Young People (Scotland) Act 2014.

Adam Tomkins

You are absolutely right that there seems to be some variation between local authorities in Scotland in the extent to which kinship care is recognised as being an informal variant of foster care, where people might or might not be liable for local authority financial support. Are kinship carers not eligible for carers allowance?

Heather Noller

They are if they provide care to a young person who has a disability or an illness. Again, it all depends on income. If they do not meet the eligibility criteria for carers allowance, they will not get it. To be honest, I am not sure how any payment that they receive for kinship care affects their eligibility for other benefits. It is not something I am an expert on. The issue needs to be looked at.

The Convener

Does Amy Woodhouse want to come in?

Amy Woodhouse

No. I am not an expert on kinship care either. It is probably worth getting a bit more specific evidence on that issue from a relevant organisation such as Kindred.

The Convener

Lots of kinship carers are grandparents looking after their grandchildren, but they are not guardians. Whether benefits would be affected was something that we had to really look at before we introduced the kinship care allowance. If a kinship carer got that extra money, it had a knock-on effect on any benefits that they were claiming. That is why we went for the kinship care allowance rather than money through social security or anything else. I think we should perhaps explore that avenue further.

Does anyone want to come in on that issue?

Pauline McNeill (Glasgow) (Lab)

I believe that there is a gap around kinship carers, and I note that the Children in Scotland submission talks about how the principles of the bill do not specifically mention poverty or inequality—it is right about that.

What strikes me about the gap is that kinship carers who might not get the proper support because they are not in a formalised arrangement are more likely to fall into the category of people who face poverty inequality. As the convener says, grandparents often become involved because they do not want the child to be cared for by the local authority. They are doing the right thing, but they are penalised for it.

I acknowledge what was said in answer to Adam Tomkins, which was that the carers allowance applies only where there is a disability or illness. However, we are not talking about that. I think there will be an impact on children, depending on the situation of the grandparents or whoever the kinship carer is. It is worth the children’s organisations thinking about the impact on children.

09:30  

Amy Woodhouse

You are right. Poverty and inequality are not equally distributed across Scotland. Kinship carers certainly experience more disadvantage than others. Organisations in the children’s sector that work more directly in this area have been campaigning for adequate support for kinship carers for many years. I recognise that there has been progress and development in the area recently, but I am sure that those organisations would say that there is more to be done and that they would welcome additional attention being paid to the matter.

The Convener

The committee will certainly consider that.

Do members wish to ask any further questions? Is there anything that the witnesses wish to ask the committee?

Amy Woodhouse

Yes.

The Convener

I am sorry that I said that. [Laughter.] No, it is okay—on you go.

Amy Woodhouse

There are a number of areas. I will try to be brief. We are particularly interested in top-up benefits. I would like the committee to consider how that part of the bill could be explored and developed a bit further. We feel that it is quite limited in what it offers.

We are part of the give me five campaign to top up child benefit, which the committee will be well aware of. We would welcome whatever potential there is to include that issue within the scope of the bill. I would be interested to hear members’ views on that.

The other area on which I would be interested to hear members’ thinking concerns scrutiny. We feel that that aspect is very limited in the bill as introduced. We would welcome greater emphasis on independent scrutiny of progress and on what the markers and indicators of the bill’s success will be. We would welcome linking that directly to reducing poverty, particularly child poverty.

That is a question of how the Social Security (Scotland) Bill links with the Child Poverty (Scotland) Bill, which is also going through the Parliament and which refers directly to social security as a mechanism for reducing poverty. There is therefore a clear need to link the two bills together, but it is not evident that that is happening. I would like to hear members’ thoughts and reflections on how that could happen.

Heather Noller

I, too, have a couple of points to make. To reiterate what you have heard in previous evidence sessions, we would align with the idea that, if benefits can be offered as benefits in kind or as cash payments, there should be a choice for the recipient. First and foremost, cash should be the default. That aligns to the principles of dignity and respect: it is more appropriate, in most cases, for people to have a choice.

Our written evidence and the submissions from the national carer organisations make points about short-term assistance for people challenging decisions. The issue can be overly complex. In line with other organisations that have submitted evidence, we think that it would generally be more appropriate for carers and for people with ill health and disability simply to have a continuation of benefit, rather than having to make a specific and different application for short-term assistance. I know that the provisions in the bill on that are quite broad and that the detail will be in regulations, but that is definitely something to consider. There is already a run-on for carers allowance in some instances, such as when the cared-for person dies or if they are admitted to hospital. It is possible for that to happen.

The Convener

Thank you. I am glad that I asked the question.

Adam Tomkins

Heather Noller has anticipated a little bit of what I was going to say in response to Amy Woodhouse’s prompts, which were very helpful.

A number of the issues that Amy Woodhouse raised are not dealt with in the bill, because the scheme in the bill is that those issues will be dealt with in regulations that are to be made under the bill. One of the concerns that the committee has been keen to explore with witnesses throughout our inquiry into the bill is whether the balance is right between what is in the bill—or “on the face of the bill”—and what is to be left for secondary legislation. Further, whatever your response to that issue, do you think that there are adequate means for scrutinising the making of secondary instruments under the bill, whether that is scrutiny in the Scottish Parliament or by an independent body that might need to be set up, perhaps modelled on the United Kingdom’s Social Security Advisory Committee?

The convener invited you to ask questions of us and my response is to ask those questions of you, if that is permitted.

The Convener

Absolutely.

Amy Woodhouse

That seems fair enough.

We will always want things to be in primary legislation because that makes it more secure and future proofs it, so that we know where we are and what the system will be. However, I recognise that that will not always be possible.

There could be more in the bill—in primary legislation—than there currently is, particularly with regard to scrutiny and accountability. Accountability is covered by section 6—it is currently just an annual report, which does not feel sufficient. The bill could say something about an independent commission, whether that is the poverty and inequality commission that the Poverty Alliance has suggested, or something else. Some of it will have to go into regulations, but there could be more in the bill than there is at the moment.

Heather Noller

To echo Amy Woodhouse’s point and the points that I have heard in other evidence sessions, we expected there to be a little bit more in the bill, but we understand the reasons for that—for example, the complexities around what the bill is trying to achieve and the fact that it can be easier to amend or change regulations at short notice, although there are negative aspects to that. I agree that primary legislation is more secure and is open to more scrutiny.

On the second point that Adam Tomkins made about scrutiny by Parliament or by an external body, we think that it would be appropriate to set up scrutiny bodies, and we would be interested to hear more about the kind of scrutiny bodies that might be set up to ensure that there is adequate sight of what is changing.

Jeremy Balfour

I thank Heather Noller for helpfully summing up. I return to her point whether benefits should be cash or in kind, and that the default should be cash. I think that that is absolutely right. Have your organisations done any work on costing a benefit in kind? It could prove to be more expensive than a cash payment. Do you know whether there is any information that the committee could look at to see how much it would cost if someone said that their preference was to have a carer come in for two hours a day, or something like that, instead of the cash?

Heather Noller

I am not sure whether anything like that is available at the moment. I will have a look and get back to the committee at a later date if such information is available and I can source it.

A lot of comparisons are made with the Scottish welfare fund and similar set-ups, but they are different as they are for emergency assistance. For example, it might be more appropriate for a household appliance such as a fridge to be purchased if that is the defined need in the emergency.

In terms of a benefit in kind taking the form of social care support, such as a care worker coming in, I am not sure whether that would always be appropriate. There is already quite a lot of confusion as to how social security interacts with social care provision. That is particularly the case with self-directed support, now that people receive direct payments. I have spoken to a lot of carers and people who receive such support who are not sure whether social care support will affect their benefits or vice versa.

That is potentially more complicated than it needs to be. If someone is eligible for support, that should not interact with the social security system. Obviously, the issue needs to be considered in further detail. If somebody is not eligible for support but is eligible for benefits, that may be more appropriate for them. It is difficult to give a broader approach because it is so dependent on people’s specific situations. However, I reiterate my earlier point that providing cash benefits is far more aligned with principles of dignity, respect and investment in people through social security.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

At the beginning of her evidence, Amy Woodhouse warmly welcomed the approach of basing the ethos of the new social security system and the bill in dignity and respect, as I do. Is she content that the drafting of the principle in section 1(c) reflects those values and that ethos?

Amy Woodhouse

Broadly, yes. It is really welcome that the bill frames social security in terms of human rights, and it is important to use words such as “dignity”. The important thing to have in the bill is not only principles but how they are applied and how they work. For example, does it feel as if they are embodied in the system?

I guess that the principles are a starting point. I reiterate my earlier point that we need to consider whether there is potential specifically to highlight children’s rights in the principles. Although human rights affect all humans regardless of age, we should recognise the particular focus on children’s rights that we have in Scotland, and we should recognise them in the social security system. The bill could also specifically mention the system’s role in addressing poverty and inequalities. You might also want to consider including the principle of accessibility and simplicity where possible—that is, the principle that we make things as easy for people as we can.

There are some additions that could be made to section 1 but, generally speaking, what is there already is good. We do not want to be critical of it. It is a good way of framing things.

The Convener

Thank you very much. You have certainly given us food for thought. I am sure that we have all written down the issues that you raised, and we will have a chat about them.

I suspend the meeting for a couple of minutes while we bring in our next set of witnesses.

09:43 Meeting suspended.  

09:44 On resuming—  

The Convener

I welcome our second panel of witnesses: Derek Young, senior policy officer, Age Scotland; Norman Kerr, vice-chair, Scottish fuel poverty forum; and Suzanne Munday, director, Minority Ethnic Carers of People Project.

As with the previous panel, I will start by asking an overarching question first. In earlier evidence sessions, we have asked for views on the social security principles and the proposed social security charter. What are your views and in what ways do you see the principles and the charter influencing the organisational culture of the new agency?

Derek Young (Age Scotland)

Norman Kerr seems to be indicating that I should start.

We welcome the principle-based approach. It is perhaps not the most common format or model of legislation, but there are other examples of it being adopted. In particular, we welcome the first three principles, which we think are clear and explicit. There are some queries about the practical implications of some of the later principles, and some of those have been articulated in our written evidence and the written evidence that you have received from organisations such as the Health and Social Care Alliance.

The broader point concerns what practical impact the principles will have on a day-to-day level. I know that Mr Tomkins has raised that point with witnesses in previous evidence-taking sessions. At the lowest possible level, the effect of the principles could be purely symbolic, which would be regrettable.

It may well be that the principles help to shape administrative practice and the decisions that are made by the officials who are working for the agency, for example, but that will depend to a great extent on the practical operations of the agency, which are not in the bill because the Government has chosen an executive agency model.

A final point on the principles is the extent to which individual applicants and recipients can rely on them when making their applications or challenging decisions. That is not clear in the bill and we would prefer that it was.

We have largely viewed the charter as a way of explaining in ordinary language to potential recipients and claimants what their expectations and entitlements should be. To that extent, it will be helpful. It is also helpful that the Scottish Government has made the point that it wants the charter to be co-produced pretty broadly, so the experience of users of the system will inform what the charter says. We also agree with the point that was made by witnesses in your first panel that the charter should be accessible, particularly to people with cognitive challenges—which is the issue that we are particularly concerned about—and other accessibility requirements.

The bill says that there will be annual reporting on the extent to which the charter is being implemented. However, there are certainly more robust forms of accountability available. We are not sure that an annual report will be the most effective form of accountability with regard to translating the principles, which are extremely valuable and welcome, into day-to-day practice.

Norman Kerr (Scottish Fuel Poverty Forum)

The fuel poverty forum represents quite a wide range of interests, from the energy regulator to colleagues at Age Scotland. Our response has been fairly narrow and focuses on two specific areas. However, I do not think that we would disagree with what our colleagues from Age Scotland have said in their response. It is helpful that the charter gives more explanation to help people understand the system. The principle-based approach is one that we have seen elsewhere. For example, the regulator in the energy industry talks about moving to a principle-based approach. Therefore, we are not unhappy with that.

Suzanne Munday (Minority Ethnic Carers of People Project)

Like colleagues, we welcome the principle-based approach. However, by their nature, principles are aspirational, and we have a concern about how they will be applied in the day-to-day operation of the new social security system in Scotland. We see the charter playing a role but, based on feedback from our service users, we are aware that there are issues about how the application of the charter will be monitored and about the accountability of the system.

With regard to the application of the charter, one issue that came out clearly from our work with carers was the idea that the charter should be underpinned by a set of standards that we feel are more robust and measurable. Again, that is about people having redress if they feel that the system has not operated as it should have.

There is also a vital role for independent advocacy in enabling people to hold the system to account for their personal experience of it.

The Convener

Members of the panel have talked about the charter being robust, about accountability and about the principles being challenging—Derek Young mentioned that latter point. Could you expand on what you mean by that? I do not want to get into courts of law or whatever, but I feel that you are going along that line.

Derek Young

In our written evidence, we point out that principle (d) is that

“the Scottish ministers have a role in ensuring that”

people receive what they are entitled to, whereas provisions elsewhere in the bill specify that the Scottish ministers “must” do something. That rather implies that it ought to be possible for it to be articulated that the Scottish ministers have a duty to ensure something, rather than simply having a role. That would be a far more reassuring form of language.

We alluded to the fact that the Health and Social Care Alliance has made points, which we endorse, about what evidence would be relied on for principle (e), I think, and how continuous improvement is defined for the purposes of principle (f).

The final principle reflects efficiency and value for money, which is a noble ideal in a time of constrained public finances. However, it is notable that, in debates that have taken place elsewhere about social security, the ideas of efficiency and value for money are sometimes used as a pretext for restricting either the eligibility criteria or the way in which they are applied. Our question regarding the final principle is, what happens when there might be conflict between that principle and some of the other principles, such as the one that establishes that social security is a human right? The bill is not clear—perhaps it does not need to be—but some clarity, whether in the bill or elsewhere, would be helpful with regard to how to resolve issues where the principles seem to come into conflict.

The Convener

Suzanne Munday, do you want to come in on that point, given that you specifically mentioned the charter?

Suzanne Munday

I might come back to that later, if that is okay.

The Convener

Absolutely. You are allowed to think about it.

Pauline McNeill

My compliments on the submissions, which are comprehensive and clear. I was drawn to the point that has just been made in response to the convener about whether the bill, as drafted, will deliver a principle-based approach. It is worth spending a wee bit of time on that, because other witnesses have said something similar. Everyone wants a principle-based approach, but we do not know whether the bill, in its current form, will deliver that.

Suzanne Munday, you spoke about a set of standards and redress for individuals. That is the most important thing. Can individuals rely on the principles that are contained in the bill to enforce their particular issue, whether that is a speedy decision or an appeal decision? That applies to everything. Could you go into that in a bit more detail? If the committee were to take a similar view, how could we go about fixing the bill?

For example, should the bill include a set of standards? If it included a principle that everyone is entitled to a speedy decision by the new social security agency, what would that actually mean? Does that suggest that there should be a set of more specific standards, for example about timescales? What will people be able to rely on if we have a principle but we all have different views about it?

I know that I am going over the same ground, but I am really interested to get a bit more detail if that is possible, because I think that the committee needs to look at this area in some depth.

Suzanne Munday

That is a difficult one because, very often, timescales will depend on local circumstances. Although we can talk about reasonable timescales, those are difficult to define. However, I do not think that there is any harm in looking at a timescale that should not exceed X number of weeks.

Derek Young

The only time limit in the bill relates to the mandatory redetermination provisions. If redetermination is not made within 28 days, an automatic trigger occurs, which is different from the way in which mandatory reconsideration happens at the UK level. There will certainly have to be detail of that kind. Whether it is necessarily required in the bill is a matter of debate. I do not know. In the Westminster model, we see a lot of that type of detail in the regulations that follow primary legislation.

On standards of decision making and how people feel that they have been treated by the decision-making process, there are good models elsewhere that can be followed. There has been a recent update of the national health and care standards, which are framed very much in terms of outcomes. A lot of the planning for the delivery of the new agency also seems to be outcome based and that is a welcome approach. I would not give evidence to the effect that that must be in statute—the national health and care standards are not in statute—but we have yet to see what practical impact they have and the actual improvement of quality in regulated care settings.

We should try the model that is being proposed, but be willing to reconsider it and see whether a more robust, statutory definition of what standards of decision making are to be applied might be necessary.

Suzanne Munday

There are certain situations in which we need to look at quicker timescales. For example, in our focus group, the issue of assistance with funeral payments was raised. Individuals who are applying for assistance are experiencing difficulties with both the time that it takes to establish eligibility and the time that it can take to process payments. When somebody has passed away, the burial of the body has to take place within a set time period. We have had situations where communities have had to fundraise in order to pay funeral costs up front before people have been able to establish whether they can get assistance with the costs. There are particular circumstances where we need to look at whether we can speed up decision making.

The Convener

Can I clarify something? Is that situation with funeral payments something that is happening at the moment?

Suzanne Munday

Yes.

The Convener

Obviously, we are looking at a different approach.

Suzanne Munday

Yes.

Pauline McNeill

That was really helpful.

My second question is on something that I was not aware of, which you have drawn to my attention. The bit that caught my attention is:

“as of September 2018, when the UC mixed-age couples rules come into effect, it will no longer be possible for new claimants to receive Pension Credit until the younger of the couple has also attained Pension Credit age.”

I was quite staggered by that. I suppose that the size of the age gap might determine how annoyed people will be about it. Anyway, I just wanted to get that on the record. It would be really helpful if you could speak to it.

The Convener

Suzanne, do you want to come in on that?

Suzanne Munday

I do not recall that being in our submission.

The Convener

Okay. I think it is in Age Scotland’s submission.

10:00  

Derek Young

It is in Age Scotland’s submission, and we have sought to highlight the issue. It is little known about, so I am not surprised that it came as a surprise even to you, Ms McNeill. As you have alluded to, there could well be couples who live in the same household between whom there is a significant age difference, the older of whom would become eligible for pension credit first. When the mixed-age couples rules come into effect, that eligibility will cease until their younger partner also becomes eligible.

That will have a number of potentially detrimental effects. First, because pension credit is probably worth about £100 a week more than universal credit, their household income will be significantly reduced. Secondly, universal credit is subject to the sanctions regime—someone must prove their eligibility for work and their willingness to meet specific, agreed targets and so on—whereas pension credit is not, which may affect the household income even though there is somebody of pension credit age in it.

The change may also bring into effect some of the rules that do not apply to pension credit but that apply to universal credit, the principal one—for the committee’s inquiry and for the bill—being the underoccupancy charge rule for housing benefit, which will become the housing cost element of universal credit. At the moment, the underoccupancy charge rule does not apply to a pension credit recipient but it does apply to a universal credit recipient. Therefore, for the period of time for which a mixed-age couple are not both of pension credit age, when the rules change—unlike the situation now—somebody of pension credit age or above could be subject to the underoccupancy charge.

Because the Scottish Government’s policy is to mitigate the effects of the underoccupancy charge through discretionary housing payments, that means that a group of people will have a greater call on the discretionary housing payment budget at least until the rules implementing the underoccupancy charge can be changed. There will, therefore, also be a financial impact on the Scottish Government through the operation of those rules, even though they are a reserved matter in the operation of universal credit.

It is a complex area that I have found difficult to explain to people who have been unaware of it, and it shows that there could be a benefit to improving the uptake of pension credit now, before September 2018. If couples who would be affected by the rules and who have not yet claimed pension credit were to do so, they would come in before the rules changed and that would reduce the potential extra liability on discretionary housing payments for a while.

There is the potential for the Scottish Government to save money by increasing the uptake of a reserved benefit—pension credit. Benefit uptake campaigns are usually a double-edged sword because the more successful they are, the greater the financial draw on the Government’s spending is. If the Scottish Government increased the benefit uptake rate in this case, more people would get access to the money that they are already entitled to and a potential future spend by the Scottish Government, resulting from a change in a reserved matter and the Scottish Government’s own policy, would be obviated.

I have tried to make that as clear as possible; I do not know whether I have succeeded.

Pauline McNeill

I will read the Official Report.

That is really helpful, not just in relation to the bill but in the context of the on-going debate about universal credit. The pension credit system was introduced to stop pensioners falling into poverty, and I imagine that there might even be an argument about age discrimination. People would certainly think twice before marrying somebody 10 years younger than them if they thought that far ahead. [Laughter.]

Derek Young

It is not the only area in which the issue arises, but it could be argued that the change will offer a financial incentive for couples who are on low incomes not to stay together. They might be financially better off if they separated and did not live in the same household, because the person of pension credit age could then claim pension credit and would not be undercut because they lived with someone who was under the pension age.

Pauline McNeill

I will leave it there, but I will put that in my social media columns, because £100 a week is a significant amount to lose through the system being changed. Thank you for highlighting that.

Ben Macpherson

Good morning, panel. I have a number of questions about the principles, which I know we have talked about already.

My first question is for Derek Young, in particular. It relates to the earlier discussion about scrutiny, accountability and redress. Should the principles have a greater link to Scots or international law, as other witnesses have proposed?

Derek Young

I am aware of the international law on the right to social security, although I was not terribly aware of it before the start of the bill process. It is in a different position from a number of other international human rights instruments, particularly the European convention on human rights, which applies to everything that the Parliament, Government and public bodies in Scotland do, so I think that it is a useful guide to the aspirations on which we ought to hold ourselves accountable.

I know that it is suggested somewhere in the policy memorandum that one of the ambitions for the system should be to avoid international criticism that the Government has not lived up to the right to social security. That is slightly unfortunate language: we ought to articulate a much more aspirational and positive purpose for the system than the avoidance of criticism.

However, it is certainly valuable to articulate social security as a human right. As the committee has heard in previous evidence sessions, that does not necessarily mean that people have a human right to individual forms of assistance—that is not what is intended. What is intended is that there is a functioning and effective system that is designed to ensure that people do not fall into destitution and poverty, that the rules are clear, that the processes are fair and that things are explained to people in a way that they can understand. If we meet those aspirations, we will have gone a long way towards meeting the international right to social security.

There is a substantive element to the right to social security, but as is the case with many human rights, it is couched in very broad terms, just as the principles are. We can say that people should not be left in destitution, but there is a broad debate to be had about what that means in practice in terms of amounts of money and the regularity with which money is paid to individuals. It is principally for the Parliament to determine those issues.

The difficulty with having the debate now is that those details are not in the bill: they are to be left to regulations to which a different form of parliamentary scrutiny will be applied when they are eventually made. An independent scrutiny body along the lines of the Social Security Advisory Committee would assist in allowing detailed and well informed scrutiny of the regulations, when they eventually come before Parliament.

Ben Macpherson

Would that be preferable to binding the principle in Scots or international law in the bill?

Derek Young

Age Scotland does not have a specific view about what form the binding nature of the principle should take, but we think that it is very important that that be clarified in the bill because, as Professor Tom Mullen and others have said in their written submissions, if the position were to remain uncertain, that would have to be resolved through litigation, which would be expensive, time consuming and probably unnecessary.

Ben Macpherson

Thank you. That was very helpful.

As no other members of the panel want to come in on that point, I will move on. In its submission, the Minority Ethnic Carers of People Project raised the issue of accessibility. I took part in a workshop on that with Suzanne Munday and MECOPP service users. The Scottish Government’s position is that detailed rules on equality and accessibility will be dealt with in subordinate legislation and in the charter, and that the charter will be co-produced. I think that there is strong support for that.

As far as another principle on accessibility is concerned, would that accessibility be at a very high level? Would it be very general? Are you arguing for a clear principle?

Suzanne Munday

I am aware that other witnesses have asked for what has been described as an equality clause to be included in the bill, but I am not sure what shape that would take. I would certainly like the committee to consider an additional principle that was based on the principles of equity of access, because I feel that that would encapsulate many of the practical measures that would be necessary.

For example, in our evidence, we cautioned against overreliance on digital technology, because many people do not have access to computers and may not be digitally literate. It was good to see that there has been consideration of face-to-face support from the new agency. Equity of access is an important principle to consider.

Ben Macpherson

Thank you for clarifying that.

My final point is about a right to advocacy, which you have also raised and which other witnesses have mentioned as a potential principle for inclusion in the bill. If there was a right to advocacy, should it be for certain individuals in certain circumstances rather than a blanket right? Does MECOPP, which supports minority ethnic carers, recognise that advocacy would be meaningful and important in specific circumstances for specific individuals?

Suzanne Munday

The current benefits system is very complex, even for people who are steeped in it. Therefore, it is difficult to ask a layperson to navigate their way through it without support. If people have to go between two systems—Westminster-based benefits and Scotland-based benefits—that will potentially add another layer of complexity.

It is difficult to determine in what circumstances people have a right to advocacy: many people self-select. Clearly, people who are in more straightforward circumstances and who are competent will feel that they can do it all with minimum support. Advocacy comes in when people experience difficulties. Someone who has applied for a benefit and disagrees with the outcome might need advocacy to take forward an appeal or a review of the decision.

To go right back to basics, and to echo what previous witnesses have said, the system needs to be as simple as possible and as easily navigable as possible. However, on whether people should have a blanket right to advocacy or only a right in certain circumstances, I would not like to say in which circumstances people need advocacy. There are individuals who will perhaps require more help at the start of the process. For example, people with cognitive difficulties, whom we have talked about, should have the right to advocacy.

Ben Macpherson

That is really helpful. Just for information, my consideration is about whether a blanket right to advocacy is required or whether we need to make sure that such services are available only for those who really need them. It is clear from what you are saying that if we get the system right and it is simplified and accessible, there will be people who do not need advocacy, but in certain circumstances and in situations where there are more complicated steps to go through—for example, if there is a challenge to a decision, as you suggested—advocacy is clearly important for the service users whom you see regularly.

Suzanne Munday

Yes.

It is also important to distinguish between advocacy and other forms of support. For the communities with whom I work, a lot of what we provide is language support, which is very different from advocacy. It is important to make that distinction.

Ben Macpherson

Absolutely. Thank you very much.

The Convener

Jeremy Balfour and Alison Johnstone want to come in with supplementaries.

Jeremy Balfour

My question is on a new area, convener.

The Convener

Alison, do you have a supplementary?

Alison Johnstone

Yes. I want to pick up on what Suzanne Munday said about the complexity of the new system—in particular, when it is running in tandem with the Westminster system.

Some complexity is probably inevitable, but a way to deal with that is to offer benefits without an application, which section 35 of the bill allows for. The social security agency could actively look at what someone might be entitled to, without their having to go through another application. That is a bit like our system for cold weather and winter fuel payments, which many people do not have to apply for—they are passported from other benefits. That would also help to tackle low take-up of benefits. Should Scotland’s social security system take that approach?

10:15  

Derek Young

Our written evidence and broader communications make the point that the social security system should not be considered exclusively, because people who have entitlements to social security probably have other needs, for which the different assessment processes can be time consuming and difficult. For example, it is common for older people with disabilities also to have care needs, and so they also undergo a care assessment. If, as a result of getting older and having established care needs, they want to move closer to family, for example, they may need to go through another care needs assessment with a different local authority, because those benefits are not passported automatically. Similarly, certain types of disability benefit, such as attendance allowance, do not passport the person automatically to entitlement to a vehicle blue badge, for example.

People would find it extremely advantageous if there were an opportunity to look at the different forms of assessment, including and beyond the social security system, and how the processes could be streamlined. We hear quite a bit from older people who complain about having to answer the same questions several times.

Suzanne Munday

What Alison Johnstone asked about happens on a small scale—perhaps with individual organisations. For example, benefits clinics that are run by citizens advice bureaux often look at underlying entitlements to other benefits or services and provide advice and information, which has been useful.

The Convener

We talked earlier about choice, in cash or in kind, and it brought to mind winter fuel payments and fuel poverty. Norman Kerr’s group looked at that issue in its submission. What are the panel’s thoughts on the choice between cash and in kind, and about winter fuel and cold weather payments?

Norman Kerr

Choice would be appropriate for some people, who I am sure would welcome it and say, “Please provide that money direct to my supplier”. However, there are a variety of fuels; if that payment was simply made to electricity or gas suppliers, our concern would be for someone who is off the gas grid and relies heavily on oil, for example.

Timing of the payment is also an issue. Your colleague in Westminster, Mike Weir, has raised that issue time and again, particularly with regard to people who are off the gas grid and buy oil, and who are not able to buy a full tank because the payment timing means that they do not have all the cash up front.

If the payment is given to a supplier, it limits the consumer’s ability to shop around for a good deal, probably more so if they rely on oil, solid fuel or liquefied petroleum gas. If it is paid to a gas or electricity supplier, it ties the individual in to that supplier. Some people may be happy with that, but it disengages them from the market. We are doing a lot to get people more engaged in the market—to shop around and to think about changing their payment method and supplier. For some people, it will be entirely right—they will be very happy and settled and will want to continue with that method—but others might use the cash payment to shop around for a better deal. Giving payments to the supplier is not necessarily right for everybody.

Suzanne Munday

We stated in our submission that there would be merit in looking at whether the winter fuel payment could be extended beyond its current constituency. Fuel poverty is a significant issue for people with disabilities and long-term conditions—and sometimes, by association, carers, if they are living within such a household. There is a significant body of evidence that shows that winter fuel costs disproportionately impact on those groups of people. It may be that by virtue of the illness or disability that someone has, they need to turn their heating on earlier in the year or set it at a higher temperature. However, people who do not fall within the current criteria are not eligible for that payment, so we believe that there would be merit in looking at extending that.

We would also like to highlight a particular group of people we work with—the Gypsy Traveller community, who live on sites. It has been brought to our attention that the utility account is very often held by the local authority. That makes it problematic because people do not have individual accounts so they cannot shop around for the cheapest tariff. That increases fuel poverty for particular groups of people.

Derek Young

I am delighted that the committee is looking at winter heating assistance because although it is not the most significant amount of money of the current spend across the £2.9 billion that is to be devolved, it is the payment that touches the lives of the most people. I think that altogether, 1.4 million people receive one or more of the benefits articulated in the bill and 1.1 million of them are winter fuel payment recipients.

I agree entirely with Norrie Kerr’s points about off-grid properties in particular. The broader point about non-cash payments is that I do not think that any witness has suggested that there should be anything other than a system in which the potential recipient would have to elect first to receive a non-cash form of support rather than have it foisted upon them, which I do not think is anyone’s intention. That being the case, it would be helpful to have that clarified in the bill.

Other forms of non-cash support exist in the public sector—we have alluded to the Azure payment cards that are used for refugees and asylum seekers. Those are beset by difficulties. They involve a certain amount of stigma and they restrict choice about where people can spend their money. That certainly does not seem to us to accord with the broad principle of dignity and respect that is articulated at the outset of the bill. For all those reasons, we think that there should be a specification that a recipient should articulate a desire for the non-cash payment first, before that form of assistance is provided.

On the broader issues around winter fuel, we have not touched on the eligibility issue, but we have tried in our evidence to make a powerful case for the current system and why it works well. Although it is perfectly reasonable for people to think that there may be an opportunity to save some money through targeting, every attempt to do so would increase the administrative cost for the agency because it would have to implement whatever restriction is put in place, whether it is a means test or something else. Also, whenever a barrier is placed in the way of people accessing an entitlement, it tends to be the people who are the most articulate and the most assertive who are able to negotiate that hurdle; those people tend not to be, in the main, the people who are in the greatest need.

We are very pleased to see the commitments that different politicians and parties have already made to the principle that winter fuel should remain a universal benefit. We strongly support that position and are grateful that it seems to be generally supported. However, there is still a provision on winter heating assistance in the schedule to the bill that allows assistance to be restricted on the terms of the finances of the individual.

Various parties have made a commitment. It was stated during the UK general election that the universal basis for the winter fuel payment might be re-examined but, following the results of the election, that seems less likely to happen. If there is a robust political consensus in Scotland on maintaining the winter fuel payment, that is great but we would like the bill to reflect that more directly.

Ruth Maguire (Cunninghame South) (SNP)

I have a supplementary question that, I hope, will not be too controversial, given what Derek Young has just said.

I was interested to hear Suzanne Munday say that there are other folk in our communities who could benefit from a winter fuel payment. Derek Young made himself clear, but I want to hear everyone else’s reflection on whether there might be value in targeting some of the payment of other people in need rather than giving a blanket payment to everyone of a certain age.

Suzanne Munday

We talked previously about underlying entitlements and passporting. If we were talking about extending the winter fuel payment system, one way to do it may be to use receipt of disability-related benefits as a way of targeting it. However, that would not be to cut across the existing provision; it would extend it to another group.

Norman Kerr

The eligibility for the £25-a-week cold weather payments provides a list of people who are considered to be vulnerable and in need of additional heating support. It may be possible to extend the payment through that. I am not going against what Derek Young said about universality. However, if we have a group that, by virtue of age, is universally accepted for the winter fuel payment, we might have a secondary group that would be eligible by virtue of need but that would not necessarily be universal. I do not think that anybody is arguing that we should take away the universality, but it could be supplemented by the list of groups who are eligible for cold weather payments.

Pauline McNeill

My question relates to the high importance of fuel poverty and energy. Under winter heating assistance, the Age Scotland submission says:

“There are some possibilities here around, for example, securing discounts from energy suppliers.”

How could that be done?

Norman Kerr

Scotland is neatly split in two for the distribution of electricity. There is a district network operator, as it is called, that operates in the north of Scotland—by that, we mean from around Perth upwards—and one that operates in the south of Scotland. The distribution and network charges in the north of Scotland mean that consumers pay a higher unit rate there. It is around about £70 a year more per house like for like simply because of the additional network costs. That immediately places those consumers at a disadvantage. The cold weather payment is simply £25. That will buy a bit more in the south of Scotland than it will in the north. Therefore, there is an opportunity to adjust winter fuel payments or, indeed, cold weather payments by virtue of where the occupant stays. There are clear and defined boundaries in place for that, so we could do it by postcode area.

10:30  

Derek Young

I would like to come in briefly on the fuel poverty issue. Sixteen years ago, in a piece of housing legislation, the Parliament articulated a desire to abolish fuel poverty within a 15-year timescale. That seemed to be a realistic ambition at the time, but the aim was not met by 2016, so we are going to articulate a new desire and a new strategy to tackle fuel poverty. Even for the last few years of the strategy’s operation, the rates of fuel poverty did not decline; they increased.

There is a good amount of evidence that winter fuel payments, as they currently are, put money directly in the hands of those in the age group that is most at risk of age-related illness and deaths. Every year, a fairly grim set of statistics on excess winter deaths is published that points to the fact that they are beyond what we would see even on a seasonal basis because of how people are affected by cold-related illness. Winter fuel payments are therefore an extremely valuable form of assistance, and they work.

There is also a lot of evidence that people spend their winter fuel payments on fuel costs, which are the single greatest element of household spend that has proportionately increased over the past decade. Although there is a perfectly legitimate and understandable thought process that says that some more efficiency might be available there, the current model works well, and changing it without consulting widely with the people who would be most directly affected would be wrong and politically difficult.

Jeremy Balfour

Good morning. I declare again that I receive the higher rate of the personal independence payment.

I will start with two issues for Derek Young, although others might respond too. First, we do not know yet what the Government’s thinking about attendance allowance is and whether that will simply be brought over from the present system. My impression is that it is harder to get the attendance allowance than it is to get some kinds of PIP. Does the attendance allowance and the criteria for it need to be looked at again?

Secondly, if a person is over 65, they will never be entitled to the mobility component, however immobile they are. With an ageing population, would you look to change that within the financial restraints? Should the age limit be raised? Is there a discrimination issue in a challenge that, if a person is 64, they can get that for life but if they are 65, they will never get it?

How much of that would you like to be in the bill? How much of it would you be content to have in regulations and secondary legislation at a later date?

The Convener

Who wishes to start off on that question? Derek Young looks keen. On you go.

Derek Young

What Mr Balfour said was directed at least partly to me, so it is perhaps appropriate for me to start off.

I am very grateful for Mr Balfour’s question, which touches directly on the principal issue for us that can be tackled during the parliamentary passage of the bill, albeit that it is not answered in the bill, as it is one of the issues that will be left to regulation.

I will answer the second question first, as it is, in a sense, much more clean and straightforward. We strongly support the idea that the current system is indefensible in its effect on people of different ages—not in terms of their age now, but in terms of the age at which they are able to qualify for disability-related support. As Mr Balfour explained, if a person is over the age of 65 when they first establish that they have a disability that would entitle them to financial support, the question whether their mobility needs are such that they would deserve a higher level of support is never even asked, because that level of support is simply not available. It does not matter whether the person would meet exactly the same test that they would have met a week, a month or a year before—that support is simply not available. We consider that to be a form of discrimination, and the Equality and Human Rights Commission seems to agree with us. It has pointed to the fact that there will be a difficulty around the public sector equality duty if the Scottish Government goes through the process of reviewing the eligibility and does not tackle what seems to be a very clear case.

Other recent examples have gone to litigation. For example, there was a case involving the Student Awards Agency for Scotland in which the approach was ruled to be illegal and had to be addressed.

A substantial amount of money is involved. At the higher rate, which is about £57 a week, it can mean a difference of well over £3,000 a year to the claimant, yet the award is made purely on the basis of their age, not their condition or its impact. We would very much like the Government to tackle the issue and the Parliament to continue to have a strong focus on it.

We acknowledge that there would be substantial financial effects simply to abolish the distinction or to extend mobility component availability to all attendance allowance recipients. We did some analysis that suggested that we are talking about hundreds of millions of pounds. However, because the question is not asked, we do not have very reliable bits of data.

In some respects, the cleanest and most satisfactory approach might be to abolish altogether the distinction between attendance allowance and the working age disability benefits but, again, because of the nature of the bill, it is not clear from the bill whether the Scottish Government is contemplating that. It would allow the possibility to think about, for example, how paying for care needs, as well as for the additional costs of living with a disability, might be treated in a more coherent and holistic way. We have not articulated a very specific costed-out proposal about how that could be done within current funds.

The most important thing is that the age discriminatory element should cease. Age should cease to be a factor in the quality of financial support that someone gets based on disability. If the committee can keep a focus on that and the Government can respond to it, we would be delighted.

The Convener

Have you met the Minister for Social Security or officials and raised that issue with them?

Derek Young

Yes, we have. I met the minister and the lead official for the bill two or three weeks ago and the meeting was very positive. Obviously, the minister will appear before the committee later and it is probably best that she reports on the outcome of that meeting rather than me. However, I must say that they are aware of that issue. They have been responsive in acknowledging that it is a difficulty and, in particular, that the fact that there is a legal problem on the discrimination basis changes the nature of the conversation about whether it can be resolved and on what timescale it might be resolved.

We understand that the immediate focus will be on areas in which there has already been a public commitment, whether in a manifesto or a statement in Parliament, to shift the way in which the system operates. It is also true that the most important thing by far—we agree with this—is that there is a seamless transition so that payments that are made on the day before the transition to the new agency continue to be made. That is vital and it could well be problematic to try to disrupt the eligibility too much.

We know that there is a special expert group that is led by Dr Jim McCormick—he has given evidence to the committee already—that looks at disability and carers in the broader sense. We hope that, whether in the short term or a slightly longer term—but not too long—the fundamental discriminatory problem is resolved in a way that is satisfactory for everyone.

The Convener

We will certainly ask that question.

Suzanne Munday

I echo what Derek Young eloquently said. We believe that it is an artificial distinction that cannot be justified.

Jeremy Balfour

I return to the last part of my question, which was about how much should be in the primary legislation and in the secondary legislation. My colleague Adam Tomkins might ask about that, too. We cannot have everything in the primary legislation but, if we are going to keep attendance allowance, would you want that in there? If the Government was moved to say that everyone, no matter their age, would be entitled to PIP, would you want that in the primary legislation, too?

The Convener

Would Derek Young like to come in first on that one?

Derek Young

You keep coming to me first, convener.

The Convener

You nodded, so I took it that you wanted to answer.

Derek Young

We said in our written evidence that a balance in favour of greater provision in legislation would be justified. When you look at many of the cases that happen under the present system, several involve testing whether the regulations meet the statutory definitions and criteria that are set out in primary legislation. People have a greater level of certainty about their expectations if something is articulated in primary legislation, and primary legislation can be used as a basis to challenge whether secondary legislation is consistent with it. We understand the desire for flexibility that has been articulated. That is perfectly legitimate, but there is also a need for consistency and certainty.

There is a further point, which has been made before, about parliamentary scrutiny. Meetings such as this one are an opportunity for external organisations such as ours to influence the primary legislation process. We do not enjoy a similar opportunity through the affirmative resolution procedure as, for example, there is no opportunity to lodge amendments. If the meat and drink, or the great substance, of what people will enjoy and on what eligibility basis is entirely, or for the greater part, in regulation, that would limit the committee’s ability to get access to expert evidence and to ask questions in the back-and-forth way that we have done today. That would be regrettable and there would be an advantage in having greater certainty in the bill.

I do not know whether that needs to be at the full level that exists under the Westminster model, as I do not know what practical possibilities there might be between the two positions. However, a greater level of certainty would improve not just outcomes for people, but the process of scrutiny so that Parliament could be sure that it had set up a system that was robust and which led to better outcomes.

The Convener

Does any other member of the panel want to respond?

Suzanne Munday

We agree. Given that we do not know what shape any external oversight body might take, we believe that there is a strong case to be made for having more in primary legislation, particularly in relation to accountability and scrutiny.

The Convener

Thank you very much. We move into private session.

10:41 Meeting continued in private until 11:10.  

The Convener (Sandra White)

Good morning and welcome to the 21st meeting in 2017 of the Social Security Committee. I remind everyone to turn off their mobile phones, as they interfere with the sound system. Apologies have been received from Mark Griffin, who, I believe, will be slightly late due to transport difficulties.

Agenda item 1 is consideration of the Social Security (Scotland) Bill at stage 1. We will take evidence from the Minister for Social Security, Jeane Freeman. I welcome her and her officials Colin Brown, James Wallace, Chris Boyland and Andy McClintock. Minister, I believe that you want to make an opening statement.

The Minister for Social Security (Jeane Freeman)

Thank you very much, convener, and thank you, committee members. I am grateful for the opportunity to be here this morning. I place on record my sincere thanks to everyone who has given evidence to the committee so far either in person or in writing.

Our whole approach to building a new social security system for Scotland has been to make use of the knowledge and expertise of those with lived experience of the existing system under the Department for Work and Pensions. That includes, of course, the bill that we are discussing today, whose genesis lies in the consultation that took place over the summer of 2016. We received 521 detailed responses to the consultation, and we published all of them in February along with our findings and independent analysis. Since the consultation, I have attended more than 70 individual meetings with more than 50 separate individuals, groups and organisations ranging from Age Scotland to the Convention of Scottish Local Authorities and from the Multiple Sclerosis Society Scotland to Shelter. Alongside that, key stakeholders have kindly made many other contributions to our thinking.

The bill is the way it is because of our wide-ranging, detailed and on-going engagement work, the scope of which now goes well beyond our consultation to encompass our expert advisory group, the experience panels and the stakeholder groups covering both policy and delivery. Because of that engagement work, we saw before we introduced the bill the need to ensure an appropriate balance between primary and secondary legislation, and we built into the bill a mechanism to address that. Members will have read paragraph 12 of the delegated powers memorandum, which we published alongside the bill back in June. It says that

“the Scottish Government is live to concerns about the effect of this approach on the opportunity for the Parliament to control the detail around the different types of assistance during the Bill’s passage. The schedules attached to ... sections 11 to 17 are a way of ensuring that ... members will be able to control what may ... be done using the power to make provision about a particular type of assistance. In this way, members will be able to exert just as much control ... as they would if ... the ... rules were set directly on the face of the Bill.”

We have therefore addressed by design the need to strike the right balance between primary and secondary legislation.

We have also taken steps to address another key concern: the need to ensure that our secondary legislation receives the input and scrutiny that it requires. We are committed to producing illustrative versions of some of the regulations that we will make under the bill, and I was pleased that, last month, we were able to share with the committee the first illustrative drafts of our planned best start grant regulations. Those have also been shared with stakeholders, and, last Thursday, I took part in a discussion with our best start grant reference group. We have sought feedback on our illustrative regulations to ensure that we get things right.

I feel the same about the bill. For example, sections 11 to 17, in which the bill specifies that assistance may or may not be given in the form of money, do not say that the individual should always have a choice of whether or not to receive their assistance in any form other than cash. I believe that our policy memorandum makes it clear that we would wish the individual to have that choice. Indeed, our intention is that individuals should always have that choice, and I will make changes at stage 2 to make that clear.

Similarly, we heard a great deal during stage 1 evidence about independent advocacy. As Inclusion Scotland has put it, advocacy

“is vital to ensure that the rights of those who cannot properly communicate their needs are upheld”

and

“helps people to access advice and services that they would otherwise be unable to engage with due to communication needs”.

I am grateful to Inclusion Scotland and others for their evidence on the matter—in particular, the clarification that advocacy does not mean

“mediation, giving advice ... or speaking up for someone when they are able to express themselves”.

I am happy to say that we will take steps to address that issue at stage 2.

We have also responded to concerns about independent expert scrutiny, which we all accept is about more than just the scrutiny of legislation, important though that is.

Members are aware that the short-life working group that was made up from members of our disability and carers benefits expert advisory group has begun the work that I tasked it to do. I am grateful for the time that its members took on Tuesday of this week to update me on their thinking so far and for the discussion that we had then. They are working at pace. I know that they have had a discussion with the committee, and they will hold a workshop with a wider group of stakeholders later this month.

I hope that the committee found the session with the working group useful. You will appreciate that a number of interested parties—myself included—are keen to hear more about the committee’s views on the issue, and I hope that we will be able to discuss it further this morning. It is an issue on which the Government, the Parliament and stakeholders need to work together to get it right. As I have said, stakeholder evidence and our continued engagement with the wide community of stakeholders who have an interest in the legislation is the foundation of the bill. That principle has guided us in the bill’s development and drafting, leading us to make the legislation clear, accessible and flexible by putting the cardinal points into primary legislation and the detailed rules for the operation of our Scottish benefits into subordinate legislation.

We have continued that direct involvement since the bill was introduced, through the 2,400 volunteers on our experience panels, and we will go on doing so into the future. The experience panels have been established to run for at least four years, by which time the new Scottish social security system will be in place, our new agency will be up and running and we will be delivering benefits to the people of Scotland.

I am happy to take any questions that the committee may have.

The Convener

I will start with an overarching question. In your opening remarks, you mentioned primary legislation and subordinate legislation. We have heard from various stakeholders about what will be in the bill, about what will be in secondary legislation and about the super-affirmative procedure. I know that you mentioned this in your opening statement, but can you expand on the Scottish Government’s proposals in those areas? In particular, can you expand on what will be in the bill? A number of stakeholders have asked the committee to explore that.

Jeane Freeman

Let me start with the consultation and everything that we have heard from people since then on one aspect of how the current system works.

It has been very clear that individuals and stakeholder organisations find the current United Kingdom system confusing, as it is difficult to identify what the situation may be in any instance. That is partly because there is a mix of cardinal points and regulations and rules in the primary and secondary legislation. We therefore set out to make our proposition clearer for people.

In primary legislation we will make the cardinal points about a social security system for Scotland, but in the regulations for each type of assistance we will tell the whole story about that type of assistance, congruent with those cardinal points, and we will make things such as eligibility and the type of assistance clear. We believe that that will allow individuals, as well as those who are working with and for them, to be very clear about what they can expect and to identify fairly straightforwardly any person’s eligibility for a particular type of assistance, the requirements that would be placed on them to demonstrate that eligibility and the rules surrounding the assistance.

The critical part of all of that is, of course, how we introduce the regulations and what procedure we adopt. I am conscious that there is no perfect way of doing that—one of your colleagues said to me, “It is a difficult thing to get right. Good luck with that.” We hope to adopt an affirmative approach in the majority of instances, adding elements that might be called super-affirmative—although I am conscious that there is more than one model of that—which will allow members to engage with and scrutinise draft regulations before they are laid. It should also ensure that stakeholder groups are consulted on draft regulations before they are laid.

As an example, the illustrative regulations that we have produced on the best start grant and the ones that we will produce on funeral assistance are not simply there to provide an illustration of what members should expect to see in the regulations; they also illustrate the approach that we would take in consulting on the drafts of those regulations prior to formally laying them before the Parliament.

I will also touch on the question of independent scrutiny, although I am sure that we will go into that in more detail. Whatever resolution we come to—collectively, I hope—on that, it is my firm view that, in addition to the Parliament’s committees having an important scrutiny role, we will have an independent body that is charged with scrutiny as part of its remit, which ministers should be required to consult in advance of making regulations or changing matters with respect to social security. That is very different from the current position of the Social Security Advisory Committee at the UK level, as there is no obligation or duty on ministers to engage in consultation with it prior to making their decisions.

I hope that all of that in the round—our having got the balance between primary and secondary legislation clear and the fact that we are building in, and remain open to propositions to build in more, aspects of the affirmative procedure that will take the procedure to our collective definition of the super-affirmative procedure—gives members the assurance that they will be able to look at the regulations in some detail as they come forward.

The Convener

Thank you very much, minister. That has clarified quite a bit. A number of members want to come in, and I may come back in later.

Ruth Maguire (Cunninghame South) (SNP)

I want to ask about redeterminations and appeals. There is quite a bit of good faith and hope out there among folk who will be using the system, which has probably been helped by the consultation and the approach that has been taken. That said, people’s views cannot help but be coloured by the experience that they have already had. Their concerns about redetermination have come across quite a bit in evidence, particularly at an Inclusion Scotland event that Pauline McNeill and I attended. How will that process be different from what happens under the current system, and why does there need to be a mandatory redetermination, not a reconsideration?

09:15  

Jeane Freeman

I understand that the proposition that people experience in the current system is that, if they challenge a decision that has been made, that decision will be reconsidered but there is no particular timescale for that. Nevertheless, should the initial decision reduce the individual’s benefit, that decision will be enacted straight away.

Our proposition is significantly different. If an individual challenges a decision that the Scottish social security agency has made, when the agency advises the individual of its decision they will be advised at the same time of their right to disagree, of the process that is clearly set out for what will happen if they disagree and of the timescale within which the agency must consider their challenge. The challenge will be considered with the whole application being looked at afresh—that is why we call it a redetermination.

If, for instance, I made a decision in the first instance on a claim that you had made and you challenged that decision, my colleague James Wallace, if he was then deciding, would not check what work I had done but would look at the application afresh and reach his own view. If he agreed with your challenge, that would be the decision. If he agreed with me, you would be advised of that and of your right to appeal. The matter would then proceed to an appeal in the normal course.

The final significant difference is that, in our system, should the decision that I made in the first instance, which you disagreed with, reduce the financial support that you received, that reduction would not be made until the whole process had been concluded. Therefore, you would retain your original level of financial support until we had concluded the process with James’s decision or it was concluded at appeal.

Ruth Maguire

It has been argued that the mandatory element should be taken away. What are your reflections on why the mandatory element needs to be there?

Jeane Freeman

I understand what is in people’s heads when they argue that. There is a widely held perception that the current system is designed to put people off challenging. Our system is not designed to do that, and I am finding it difficult to square a rights-based approach with one that would take away from an individual the right to decide whether they wanted to challenge. That is why it should always sit with the individual to choose what to do. If they disagree with a decision, it should be for them to choose whether they want to challenge it and not for the agency or Government to make that decision on their behalf.

It is also important to put into place a process whereby, if the agency has got a decision wrong, it can correct that quickly. That is why we have a timescale. Obviously, that is in the interests of the individual, too.

Ruth Maguire

On going straight to appeal rather than the agency having the opportunity to correct the decision, your position is that there is an opportunity to fix it more quickly if it goes to the agency.

Jeane Freeman

Yes.

Ruth Maguire

Thank you.

My next question is about the language that is used in the bill. It was put to me by—

The Convener

I am sorry to interrupt you, Ruth, but there are two supplementary questions on appeals. Is it all right with you if those questions are asked?

Ruth Maguire

Of course.

Pauline McNeill (Glasgow) (Lab)

Good morning, minister. As Ruth Maguire has said, we have picked up that the message is clearly not getting through and that people are nervous about reconsideration. The approach that you describe is clearly different from people’s experiences. Where will that approach be clearly set out, in the way that you have done this morning, so that we can point people to it?

Jeane Freeman

The details that I have described, including what individuals will receive, will be set out in the agency’s operational manual, which is part of what our experience panels are currently engaged in discussing with our officials. Our experience panels are looking at not just the design of individual benefits but delivery matters, and they are working with the agency on that.

On your point about the process being clearly understood, I can assure you that I have now spoken to, I think, every one of the key stakeholders on the matter in exactly the terms that I have just done. However, I understand that people look at what we are proposing through the lens of their experience of the UK system—I get that.

Pauline McNeill

Yes, but I think that there is an added concern. You say that the process will be in the operational manual but not in the bill. As a result, it will not come through the parliamentary scrutiny process, and we will not be able to see whether it is as you describe it. That is my concern.

Jeane Freeman

As my colleague Chris Boyland has just rightly pointed out to me, the other place where we would expect to see that is in the charter.

Pauline McNeill

I am sure that we will get to the question of the charter at some point. Obviously, we would need to be clear about its status and enforceability.

Jeremy Balfour (Lothian) (Con)

For the record, I declare that I am in receipt of the higher rate of personal independence payment and that I am a former tribunal member.

One of the issues with reconsideration is the double ticking or filling in of forms. If somebody asks for a decision to be reconsidered and the decision that they then get back is negative, they have to fill out another form in order to get an appeal. A number of organisations have asked for a one-stage process. Internally, there could be two stages, but if the claimant is unsuccessful—to go back to your earlier example, if your colleague James agrees with you and the matter goes to appeal—the process could just happen automatically instead of the claimant having to fill in another form. Have you given any thought to taking that approach instead of having double administration for claimants?

Jeane Freeman

I understand that point, and I thank you for raising it. We are giving some thought to the issue. We are also having discussions with our colleagues in the Scottish Courts and Tribunals Service about what they require and are looking for so that we minimise the amount of effort that the individual needs to go to. I want the decision about what happens next to sit with the individual who has challenged a decision, but I do not want to overburden them with lots of form filling—in this instance or indeed in any instance—in a way that they feel precludes them from pursuing the issue. I want people to be really clear about what they need to do, what they should expect and the timeframe within which they should expect it.

As for appeals, we need to understand what our colleagues in the Scottish Courts and Tribunals Service require to do at their end of the process, and we are discussing that with them. The objective is to reduce the amount of paperwork and form filling that individuals have to do.

Alison Johnstone (Lothian) (Green)

I welcome the fact that you are having a good look at that, because I think that my colleague Jeremy Balfour’s suggestion that appeals should automatically proceed would help a lot of people. Currently, a lot of people think that the internal appeal is the final stage, and they do not push the matter any further. We need to strike a balance and ensure that people understand that the redetermination is not the final stage. It would be helpful if cases went forward to appeal automatically to a degree, and I am interested in hearing what comes out of that discussion that you are having.

Jeane Freeman

The matter will go forward automatically, provided that the individual wants it to go forward. The agency will not automatically forward the case to the appeal stage. If, after looking at the issue internally, the agency decides that it does not agree with the challenge, the individual will need to trigger the appeal. However, as Mr Balfour has rightly requested, they must be able to trigger it in the simplest way possible, without lots more form filling.

Alison Johnstone

Absolutely.

The Convener

In previous evidence sessions, a number of stakeholders have said that the charter should be available to people, either online or in paper form—perhaps in advice centres—so that they can see what is available to them. Will people be able to see exactly what is in the charter concerning appeals?

Jeane Freeman

Absolutely. The charter is where we take the principles of the bill and transfer them into what an individual should expect and what their responsibilities are in their dealings with the agency. It is a document—a piece of paper—that we intend to write with our stakeholders and the input of our experience panels. I am sure that we will come to discuss the exact enforceability of the charter and how we make those rights and responsibilities real so that it is not just something on a bit of paper. I expect the charter to be widely displayed. I have also asked our officials who are leading on the implementation of the agency to consider whether people will simply be given the charter in their initial and subsequent communications with the agency—although, to be fair, that depends on the size of the charter.

The Convener

Thank you for clarifying that. That is certainly what stakeholders have asked for.

Ruth Maguire

I have a brief question about language. It has been pointed out to me that the term “physical or mental impairment” might not sit well with or might almost be a barrier to folk living with conditions that have stigma attached to them, specifically people living with HIV. Is that term fixed? The language feels slightly diminishing anyway, so why has it been used?

Jeane Freeman

Again, I understand the points that are being raised. The term is used because, in the Scotland Act 2016, the term “disability benefit” is defined as

“a benefit which is normally payable in respect of ... a significant need ... arising from impairment to a person’s physical or mental condition”.

There is a need, where we can, to retain consistency of language across different pieces of legislation, so that we are clear about what we are talking about. That is why we have taken that from the 2016 act.

Ruth Maguire

Okay. Thank you.

Adam Tomkins (Glasgow) (Con)

Good morning, minister. It has been clear since you became minister in May last year that you want to regard yourself as being accountable to key stakeholders and to social security system users. That is to be welcomed and applauded, but you are also accountable to the Parliament. Over the half hour that you have been speaking to us, my concern has grown that, in your desire to be accountable to stakeholders and user groups, the Scottish Parliament is being cut out of various aspects of the process, which makes me uneasy as an MSP.

In your answer to Pauline McNeill’s question, you talked about the new agency’s operating manual, of which there will be no parliamentary scrutiny. Indeed, there is no parliamentary scrutiny of the creation of the agency at all, as it is not to be a statutory body. In section 3, there is a list of people who must be consulted by ministers in the creation of the first charter, but that list does not include the Scottish Parliament.

That lies at the core of the concern that the Delegated Powers and Law Reform Committee set out in the report that it published yesterday about the balance between primary and secondary legislation, which is the issue that you have discussed with the convener. That committee concluded that the bill could strike a better balance between accessibility and parliamentary scrutiny. In paragraph 31 of its report, it calls for

“a ‘reasonable level of detail’ to be set out on the face of the Bill on eligibility criteria and the assistance to be given.”

I find its conclusions and recommendations compelling.

09:30  

In the light of what I have just put to you, what can you say to reassure us as MSPs that, notwithstanding the values of co-production that you have been working so hard to engineer over the past year and a half and which we welcome and support, the Scottish Parliament will be front and centre in the design and delivery of devolved social security in Scotland?

Jeane Freeman

I absolutely consider myself to be accountable to the Parliament. As a Government, we have said that the social security delivery body will be an agency precisely because agencies are accountable to ministers and ministers are accountable to the Parliament. Therefore, the agency will be accountable to the Parliament for its operation through the minister.

It is not my intention to cut parliamentary scrutiny and involvement out of the process of constructing a social security service and delivery agency for Scotland. At the outset, I acknowledged that there is no perfect balance that can be struck, and there might be areas where we need to reconsider what should be included in primary as opposed to secondary legislation. However, I ask members to hold in their heads the fact that it is not simply the important role of the Parliament that we must consider; we must also take account of the delivery experience of people in Scotland, who will look to the social security system for the support that they are entitled to.

I am reluctant to set out eligibility criteria in the bill because I believe that that might create difficulties for people. If I were to set out in the bill a list of things that an individual had to produce to demonstrate that they were eligible for a particular form of assistance, it might mean that if an individual could not produce every one of those, the agency could not exercise discretion in order to deliver the benefit. Such matters need to be borne in mind as we seek to get what we consider to be the right balance between primary and secondary legislation.

I am mindful of Ms McNeill’s question about where the process for redetermination and appeals will be set out. In that area, as in others, I am open-minded about where we might make improvements to the bill. In my opening statement, I gave a couple of examples of how we have already demonstrated our open-mindedness with regard to stage 2 amendments.

Therefore, I am not saying, “This is what’ll be in primary legislation, that’s what’ll be in secondary legislation and I’m no willing to move.” I am simply asking members to consider—as I have to—the practical implications of putting some aspects into primary legislation when witnesses to the committee have suggested that, in practice, doing so would undercut the approach that we are attempting to take in delivering social security in Scotland.

Adam Tomkins

That is helpful. Thank you. You mentioned in your opening statement—or perhaps it was in response to the convener’s first question—that you recognise the need for an independent advisory body, perhaps along the lines of the SSAC but with more powers. You also said that you were attracted by the idea of there being a requirement on ministers to consult that body. Do you intend for the independent advisory body to be a statutory body and created by the bill? Should the requirement on ministers to consult it be a legal requirement also under the bill? If so, are you minded to lodge amendments along those lines at stage 2?

Jeane Freeman

My view is that we should have an independent scrutiny body. I am not settled on whether its role should be solely scrutiny or whether it may have additional areas in its remit. I look to the committee—I have raised it before here—and the expert group to express their views. There should be a duty on ministers to consult that independent body before they introduce draft regulations or changes to primary legislation relating to social security. I am open to the proposition that the body should have a statutory footing.

Adam Tomkins

The power to create new benefits is an important part of the Smith commission package and the Scotland Act 2016. Some social security powers are devolved in full, we have the top-up power and we have the power to create new benefits. There are provisions in the bill that deal with the streams of social security that are devolved in full and provisions in it that deal with the top-up power—section 45 in particular—but there is no provision in the bill that enables the Scottish ministers to create new benefits. I have asked you about that in the chamber and you have said that that is because you already have the power and do not need such a provision. Will you walk me through that? I still struggle to understand why you need a bespoke power to top up benefits in section 45 but you do not need a companion bespoke power in the bill to create new benefits.

Jeane Freeman

As you know, Mr Tomkins, and as I said, the Scotland Act 2016 gives us the power to create new benefits. It is not wise—in fact, it is contradictory—to worry about the degree to which Parliament and the committee have scrutiny over what we do, which is fair on many points, but also to want us to put into primary legislation a simple provision that gives us the power to create new benefits without specifying what those new benefits might be. That would simply allow the Government to create a new benefit and produce secondary legislation without the primary point of the new benefit coming to the Parliament for scrutiny at the committee. That is not a consistent approach.

That is why we have not put into primary legislation a blanket power to create new benefits. Should the current Government or a future Government propose the creation of a new benefit, it would need to amend primary legislation to do that. Indeed, at stage 2, we will come with just such a proposition to overcome the difficulty that we have encountered with respect to housing benefit for 18 to 21-year-olds. Members will recall that we currently have an interim solution. That is fine for now but it is not a sustainable approach. The alternative to it is to amend the bill specifically with a new benefit for that purpose. We will lodge such an amendment. That is how it is appropriate to use the powers of the 2016 act to introduce new benefits. That is why we have not done that in this bill.

Top-up is, of course, a separate proposition and the primary legislation allows us to make the additional payment to carers allowance, which we intend to introduce as soon as the bill receives royal assent.

Pauline McNeill

Obviously this is an important area to examine at this point. I agree with the minister that it is important to get the balance right. There is a good case for saying that not everything should be in the bill. However, as you know, there are different understandings of that among witnesses.

You have talked about the super-affirmative procedure, and that is one way in which regulations would have a higher degree of scrutiny. The first set of regulations on the best start grant, for example, would come before the committee and there would be a consultation on them. I am trying to think of a scenario. Let us say that there was something in the regulations that the committee felt went against the principles of primary legislation but, by and large, most of the instrument was okay. We cannot take out the bit that we do not like, and that is the problem.

What is your view? What would you do in that case? Do you have any power to withdraw the regulations if the committee feels that they do not comply with the principles of the primary legislation?

Jeane Freeman

Let me stick with the best start grant because it is around just now and there are draft illustrative regulations. They are in the process of being written by my officials in consultation with the key stakeholders through the stakeholder reference group. They are now before this committee and with the Delegated Powers and Law Reform Committee, and I understand that, yesterday, they were circulated to about 100 different individuals and organisations drawn from our consultation exercise for their comments and views. All of that, including any views that the committee might have, will come to me when we get to the stage of turning those illustrative regulations into draft regulations.

In my opinion, it would be a remarkably foolish Government that, despite knowing that either stakeholders or a committee of the Parliament responding to stakeholders had a serious disagreement with what was in draft regulations and thought that they contradicted some of the key cardinal points in primary legislation, nonetheless ploughed ahead with an affirmative process that risked Parliament voting those regulations down. That would mean that we would not have the regulations for that form of assistance and we could not then go ahead and deliver it.

This Government, and any future Government, would have two options. One would be to alter the regulations between the draft and what is then laid in order to respond to the concerns that have been expressed, and the other would be to lay the regulations and then withdraw them—of course, there is a third option, which is to fire ahead and risk losing the vote in Parliament.

Pauline McNeill

The dilemma for Parliament comes if 75 per cent of the instrument is okay and the other 25 per cent is not. The problem is that we cannot amend regulations.

If an individual claimant or organisation felt that the regulations were not compatible with the principles of the bill, what redress would they have?

Jeane Freeman

Initial redress is through the charter, which will make it clear what people’s rights are. They would raise their objection initially with the agency, if it was a particular matter that the agency could resolve, or directly with the Government. All ministers are obliged to comply with the European convention on human rights and human rights legislation in what we do, so the final recourse is the judicial one that is always available in relation to this Parliament’s legislation.

09:45  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I want to move the questioning on to an area that has produced a lot of evidence, both in writing and orally here at committee—the principles of the bill in section 1.

In your opening remarks, you made reference to the evidence received on advocacy and I welcome what you stated on that point. There have been a number of other suggestions, both on amending the principles as drafted and for some new principles, particularly on accessibility. As a very broad question, do you have any comments on the suggestions that have been made? I will then follow up with a question about a particular principle as drafted.

Jeane Freeman

One of the suggestions that I understand have been made is on equality—ensuring that there is equality of access and treatment. I understand that principle and why people might want that and am open to it being included. I can see no reason why we would not want to do that.

There have been other suggestions about ensuring that we tie the principles and the rights-based approach to international conventions—that may not be the right word, but you will know what I mean.

I make the point that, as I have just touched on, the Scotland Act 1998 requires Parliament’s legislation to be compatible with the ECHR. The Human Rights Act 1998 makes it unlawful for public authorities in Scotland to act incompatibly with the convention rights. Everything that we do is set in that context. It may be that we need to remind people of that and make it clearer. In addition, all Scottish ministers now and in the future are required to comply with our code, which includes an overarching duty to comply with the law, including international law.

Our bill and our principles sit very firmly in that landscape. It may be that there is a case for making that clearer. I am not sure that we need to do more than make that clear, although people may come forward with propositions to suggest otherwise.

I am also mindful—and this has arisen in a number of discussions that I have had with organisations that want us to do certain things—that, although I am intending to create a legislative framework for social security in Scotland, in the first instance it is for 11 benefits, or 15 per cent of the total. I cannot have this Government or a future Government required to meet obligations that 11 benefits are not sufficient to allow it to meet. We need to get that balance right as well.

Ben Macpherson

Indeed, and that complexity and how difficult it is to navigate came through in some of the evidence we received.

The your say workshop powerfully said that, as a group, it warmly welcomed the principles and particularly supported the objective that respect and dignity should be at the heart of the Scottish social security system, as do I. However, some concerns have been raised with me, particularly by Advocard, a local advocacy agency in my constituency, that dignity and respect are subjective terms. Would you be open to tightening that aspect of the principle in order to make sure that we are as clear as possible about what those terms mean in the legislation?

Also, several pieces of evidence have referred to the principle in section 1(d), which says:

“the Scottish Ministers have a role in ensuring that individuals are given what they are eligible to”.

Some representations have said that that should be a duty, rather than a role.

Jeane Freeman

Let me start with the last point. I am open to lodging an amendment to make that change. I understand why people want it. For me, the important part of that principle is the phrase

“eligible to be given under the Scottish social security system,”

because that makes clear what we would be responsible for. I think that that is fair enough.

The point about dignity and respect is a fair one. Last night I read again the report that the Equality and Human Rights Commission commissioned from Ulster University, which talks in some helpful ways about dignity and respect and how that set of words or concept is difficult to enforce judicially because it is largely subjective. We should look to make the meaning of those words more tangible in our charter. I do not know how they could be tightened in the primary legislation to address the issue that you have raised and to make them enforceable, while still retaining their meaning. What Ulster University’s report says is very helpful in that regard. It points us towards the charter and I think that that is the right direction for us to take.

Ben Macpherson

Thank you.

George Adam (Paisley) (SNP)

I asked this question previously when we discussed various things. It is about the information technology systems. We can all have great principles and ideals about how we want to treat people, but the practicality is that, come the day of delivery, we could have a problem. Traditionally, Governments are not great when it comes to IT.

We know that Audit Scotland said that you were in a good place when it had a look at everything earlier on, but where are we now? What is the update? I believe that that is important because, at the end of the day, all that the claimants care about is that the money is in their bank account. We can talk about everything else, but to me that is probably one of the most important issues.

Jeane Freeman

Thank you very much, Mr Adam. I think that you are absolutely right that what people will care about at the end of the day is that the money has arrived—the right amount, in the right bank account, on the right day. I also think that they care about how they are treated, but we have dealt with that.

Andy McClintock, our chief digital officer, is here this morning and will happily provide you with some detail about exactly where we are. Before I ask him to do that, I remind everyone, including me, that the approach that we are taking is absolutely compliant with Audit Scotland’s key lessons learned from previous IT projects, both those that worked and those that have encountered difficulties.

Those lessons include not going for the big bang but doing things in manageable chunks. That approach sits perfectly with the way in which we are building the agency and taking over responsibility for the individual benefits on an incremental basis. It also allows us to make best use of our expert group, stakeholder groups and experience panels in the design, test and build stages.

That is the overall approach across the piece to the individual benefits, the build of the agency and the IT. Our approach is that the IT is the infrastructure that supports the overall objective of what we are delivering. We have adopted that approach from the outset in the Scottish Government’s social security directorate. It has been adopted by the officials who work with and for me. All our teams are integrated, so we do not have a team of officials in one corner working on policy without delivery folk sitting right beside them advising on whether the policy is deliverable. Equally, we do not have delivery folks on one side working out a good system only to have policy people telling them that it might be a good system but it will not deliver the policy intent, or finance people sitting somewhere else altogether. Those integrated teams exemplify our intent to ensure that everything works together.

I am sure that Mr McClintock can give members more details on where we are on the IT build.

Andy McClintock (Scottish Government)

Thank you, minister. I will give members an update on where we are.

The minister has already explained that we are taking an incremental approach to the delivery of IT solutions. It is important to say that the programme is an IT-enabled programme for delivery; it is not an IT-led approach. We are very much picking up on the lessons that others have learned before us, and the Audit Scotland report has shaped our thinking and will continue to do so. The contract that was awarded some 10 days ago was the first step on a long journey that is about building an incremental approach to the delivery of social security in Scotland. It is a contract for £8.3 million, which was well publicised in the media last week. That approach and the award of that contract have an element of the reuse of software that has previously been used across the world. In addition, we are looking at the reuse of systems from across the UK public sector. We are not trying to build everything ourselves or to do everything in one large release. The approach is very much incremental.

Members will have heard the term “agile delivery”. That brings a different methodology to the way in which projects are structured and the way in which technology is delivered. As the minister has outlined, it sets out a journey in which we have policy colleagues, legislation colleagues and delivery colleagues embedded in all the teams to ensure that users’ needs and respect for users are at the forefront of everything that we do and that citizens and users are engaged along that journey so that what we are building is fit for purpose and highly useable.

It will be a three or four-year journey of technology delivery that will support multiple benefits. The first wave of those benefits will arrive next year. The technology journey has only just begun, and the early indications are that we are on the right track and are learning lessons from those before us. We are absolutely taking into our thinking all the digital principles and standards that are right to follow. Our incremental approach to procurement and investment is proportionate and timely so that we can take things in small, bite-size chunks to ensure that what we produce and deliver is fit for purpose and will work for now and for the benefits of the future.

George Adam

I do not know whether my next question is for the minister or for Mr McClintock. I remember it being mentioned that the current benefits are spread over various data streams and that there are manual systems in some cases. Is there work to try to embed our system with other UK systems? Where are we with that? That seems to be quite complicated.

Andy McClintock

We are aware that the current UK benefits platforms are predominantly technology driven, but there are some off-table solutions and manual approaches. As part of our journey in understanding how we intend to deliver and implement benefits in Scotland, we will look to automate as much as possible and ensure that the end-to-end process is efficient, has the citizen in mind and ensures that as little as possible is not automated. We need to learn lessons from systems that were developed decades ago and that have not been able to keep pace with the modern requirements of citizens and legislation, ensure that we implement the new technologies with the citizen at the forefront of what we do, and ensure that those technologies are adaptable to the changing landscape.

George Adam

The system will be more open and flexible to any changes in future.

Andy McClintock

That is the plan. The whole approach that we are taking here is that we are not building a system, locking it down and saying, “That’s what it has to be”, and then having to bend benefits, rules and regulations to fit it. We are creating an architecture that is loosely designed and can accommodate changes in not only legislation and benefit powers, but technology, which will continue to change over the lifetime of the programme and beyond.

10:00  

Jeane Freeman

I think that part of your question, Mr Adam, was about data transfer and data exchange. Colleagues may have met Lisa Baron-Broadhurst, who is another of our depute directors and is leading the programme delivery work on systems and processes, alongside Mr McClintock and the IT side. There is, I suspect, daily contact between our officials and DWP officials to work out the process for data transfer, so that we are assured that the information that we are receiving on those who are currently in receipt of the benefits that we will take responsibility for is as robust and accurate as possible. That work sits alongside the work that Mr McClintock has described.

George Adam

COSLA has raised the issue that there are people who, because they are asylum seekers or on account of their immigration status, cannot get access to benefits and have no recourse to public funds. What is your understanding of that situation, minister?

Jeane Freeman

That is correct. If, as a consequence of an individual’s asylum or immigration status, they have no recourse to public funds, they have no recourse to public funds. There is nothing that we, as the Scottish Government, can do to alter that, because it is a consequence of immigration and asylum policy, which sits with the UK Government, and we are obliged to comply with that.

However, there are other areas of support, primarily for children, where a proxy for eligibility is used for benefits that an individual may be receiving. I am thinking about local authorities and access to free school meals, school uniform support and so on. In those instances, the authorities are perfectly free to find another means of determining eligibility for those individuals, other than receipt of benefits. In fact, I have had correspondence with Ben Macpherson on that very matter.

The condition of no recourse to public funds that comes as a consequence of a pending decision on immigration or asylum status sits with the UK Government. It is a reserved area and not one that we can alter at this point.

Jeremy Balfour

I have two specific questions and one general question. First, from my reading of the bill—I am happy to be corrected on this—there is no clear definition of “residence” in relation to who gets an award, how long they would have had to live in Scotland and so on. Have I missed that in the bill? If it is not there, are you minded to amend the bill and, if so, what kind of residence requirement would you be looking for?

Related to that is the issue of people moving between jurisdictions. If I live in Aberdeen and get carers allowance and because of some change have to move to Newcastle, do I take my award with me or do I have to reapply in England? Have there been any discussions between Governments on how long awards last if people move from the area of residence in which they made a claim?

Jeane Freeman

We are still looking at that, but we are minded to follow the existing DWP approach, which is to operate on the basis of what is called “habitually resident”, a widely recognised term in the common travel area and the European Union. That would be the approach that we are most likely to take. That would be set out in the regulations for each of the benefits.

In terms of moving between different jurisdictions, we are in discussions with our colleagues in the DWP to resolve that so that it can be as simple and straightforward as possible. It is not new—we need to look at how it operates in other subject areas and whether that method is agreeable to the Scottish Government as well as to the DWP and the UK Government in the case of social security. As we resolve that, we will make sure that the committee is aware.

Jeremy Balfour

To clarify, once you come to a view on residence, will that be in the bill or in regulations? I think you said that it would be in regulations.

Jeane Freeman

It will be outlined in regulations. It is also in part 1 of schedule 1 to the bill.

Jeremy Balfour

My second question is to seek clarification on those who have a terminal illness. At the moment, under UK legislation, there is a six-month rule. I have had correspondence from charities and from doctors who say that, while for some conditions such as cancers it is very easy to say that, sadly, the person has six months or less to live, for some conditions that is less clear. It may be six months, or nine months or two years. Some conditions will have terminal consequences, but in longer than six months.

Would you be open to extending the six-month figure to two years? That would not be an open definition of terminal illness, but it would extend it from six months to perhaps 18 months or two years.

Jeane Freeman

That issue has been raised with me and I am alert to the views of various organisations. My understanding is that there are disagreements between some of our stakeholder groups, and quite strongly held disagreements at that. I am not minded to take sides on the matter.

As I understand it so far, although I am open to other interpretations, the current six months also accommodates those who may, happily, live longer. A number of our clinicians are more likely to give a band between two figures rather than an absolute number, because, as we all do, they understand that aspects of clinical judgment are less binary than we might sometimes like them to be.

At this point, I am not minded to move beyond what we currently have, but I am open to other representations. The reason why I am not minded to move is that there is significant disagreement among stakeholder groups and in our clinical community on the matter.

Jeremy Balfour

My general point picks up on Pauline McNeill’s and Adam Tomkins’s points.

I appreciate that you want to listen to stakeholders and be as open as possible. At some stage, however, we have to make either primary legislation or regulations on who does or does not qualify. Those will be decisions that you will have to bring forward and with which we as a committee will have to agree or disagree.

The example that many people have raised with us is the higher-rate mobility component. Under the disability living allowance, there was a certain distance that people had to be able to walk and that was lowered under PIP. I presume that, at some point, the Government will come to a view on that and that that will be in regulations. When will the regulations be available?

People are concerned. They genuinely accept and appreciate your openness but, at some point, we have to make some hard decisions. If the measure is not in the bill, then, as Pauline McNeill said, it might be that the regulations will come to the committee and we will love 99 per cent of them but—to take a ridiculous example—they will say that people who can walk a tiny bit do not get the benefit so, although we like everything else, we have to throw out the regulations as a whole on that one thing. It is difficult for the committee to make it work. Is there any possibility that the regulations will be available for consultation before we get to stage 3?

Jeane Freeman

No, not on every area of assistance. That is not possible. We will have the draft regulations on what we have described as the first wave of benefits that we will deliver. The carers supplement is covered, so it will be the best start grant and funeral assistance. At this point, we are bottoming out the next set of benefits of which we will take delivery after those first three.

We are mindful that we have made a clear commitment to deliver all 11 benefits by the end of this parliamentary session. A significant amount of work is going on at pace because I am conscious of two things, as you might expect me to be. The first is that it is not that long until the end of this parliamentary session and the second is that I have to make hard decisions, for which I am accountable.

There will be significant consultation on the regulations for the disability assistance benefits. That will take place in the drafting of the regulations and the discussions around their drafting. Those benefits will be in regulations and, as I hope that members are clear, I have already accepted the difficulties in striking the right balance between primary and secondary legislation. I have also accepted the positives and negatives of where we might set that balance.

I repeat that it would be a remarkably foolish Government that introduced regulations under the affirmative procedure if it knew that there was significant disagreement on an aspect of them. If we did that, we would risk those regulations being voted down—particularly because we are a minority Government—and, therefore, not being able to fulfil the commitment that we have made to deliver those benefits in this session of the Parliament. There would be clear consequences of that not only for the Government but, more importantly, for the individuals whom we would not be assisting until those regulations found approval across the board. We would be exceptionally foolish to get ourselves into that position.

Alison Johnstone

I was heartened to hear the minister say in her response to Mr Macpherson that she was open to lodging an amendment at stage 2 to change the Government’s role in maximising recipients’ incomes into a duty, because that is what the cabinet secretary has previously said to us. She said in the Parliament:

“It is important for the Scottish Government to help people to navigate their way through that complexity. That includes ensuring that our new social security agency has a duty to maximise incomes.”—[Official Report, 17 May 2017; c 19.]

Will the minister expand on how the Government would fulfil such a duty? Could it be, for example, that the new agency, having assessed someone for entitlement to one benefit, might automatically consider what other benefits they are entitled to without that person having to fill in various forms?

10:15  

Jeane Freeman

I, too, am mindful of what the cabinet secretary has said. There are a number of ways in which the Government should be expected to do that. The first is through the way in which our agency will operate. We have been very clear that, in addition to the staff who are employed at the headquarter site in Dundee and at the large site in Glasgow, there will be at least 400 staff who are spread across all local authority areas in Scotland, including the islands, with the job of providing pre-claims advice and support. Of course, their primary role will be on the benefits that we are responsible for, and that is why people will come to them in the first instance, but we have also been clear that their job is to help people to secure what they are entitled to, regardless of whether a benefit is delivered by the UK or the Scottish Government. Those staff will have a key role in that regard.

My officials are conducting a series of meetings with local authorities and other key agencies in each local authority area and, as we have said, my expectation is that the model of operation will differ from one local authority to another. For example, some local authorities have reconfigured their housing, welfare advice and council tax reduction services to ensure a streamlined approach for individuals. A person might come to the council for help and advice on one area, but that will trigger support from the authority in another area. Where local authorities have done that, I expect local social security agency staff to be working there and complementing that, and therefore to be part of that triggering approach. The overall objective is that people should receive what they are entitled to with the minimum of fuss and burden on them, in a way that is congruent with the good use of public funds.

However, not every local authority is like that. Some remain disparate in their approach, so we need to adapt to that and find a way to complement it. Also, where we can, we need to act as a trigger to the realignment and reconfiguration of services, so that the individual can receive a more streamlined service.

If I may say so, the way in which we will deliver through the local social security staff is a bit of a big deal. They will not make decisions on individual applications—those will rightly be taken elsewhere in the agency—but they will have the role that I have described. If we look to some of the work in and lessons from Northern Ireland, we see that the comparable approach there has had a significant impact in increasing benefit uptake, for example.

Of course, there is the complementary work that we are doing on benefit uptake. I am delighted that we are working closely with COSLA and local authorities to ensure that our uptake campaign work, which will continue throughout this session of Parliament, is operating at national and local level.

Alison Johnstone

Is the minister striving for 100 per cent take-up? Will there be annual targets so that we can assess the gap between entitlement and what people receive?

Jeane Freeman

We have not yet looked at that in any detail or set a target for ourselves. Along with COSLA, we operate two types of campaign. One is a general, broad-brush, trigger campaign asking people whether they have thought about what they might be entitled to. That is aimed at people who are in work who may think that they are not entitled to support, although they may be entitled to tax credits and other things because of their low income. The second type of campaign targets areas in which we know that there is low uptake.

The difficulty is that we do not hold the data on the uptake across all the benefits. That data is either held elsewhere or not held at all. Given those circumstances, it is more difficult to set a target because we do not have a baseline. However, we know that there is low uptake in some areas, such as among carers and young carers in particular. We are targeting that group.

We have just completed the campaign that was targeted at over-65s. We will now sit down with our local authority colleagues and review how that has worked. We will look at the response rate that we can measure and the feedback that we have had from the citizens advice bureaux and others about people pursuing applications for support. We will review what we might do next. It is an evolving piece of work.

Alison Johnstone

Mr Macpherson brought up the issue of dignity and respect. I really appreciate the focus that the Government is putting on ensuring that the system delivers that. However, in order for that to be achieved, people must have an adequate income. We can treat people with the utmost dignity and respect, but if the benefits are simply inadequate because they keep decreasing as a result of inflation, it will be very hard to deliver.

We have heard from many organisations that there should be an annual uprating mechanism in the bill. NHS Lothian said:

“Annual uprating of benefits should not be discretionary.”

Is the Government considering that?

Jeane Freeman

I have read that evidence. We will continue to consider what we might do on that. We have made the commitment on uprating disability assistance. We will consider the other areas and what we might do in that respect.

Mark Griffin (Central Scotland) (Lab)

I apologise for arriving late.

I would like to go back to the balance between primary and secondary legislation and the detail of the calls made by some organisations. I do not envy the task of the minister and her officials in getting the balance right—it is not an easy job. We have touched on some areas, such as a duty to ensure that entitlement is met, income maximisation and annual uprating and whether it would be appropriate to put that into primary legislation to give people an up-front assurance that their benefits will increase in line with inflation.

The other thing that I wanted to touch on is something that we have spoken about before: disability assessments. The minister has said that a legislative ban would be the wrong way to go because

“it brings significant potential for other difficulties and unintended consequences to occur.”—[Official Report, 7 September 2017; c 2.]

Can you set out those difficulties and unintended consequences?

Jeane Freeman

I am very mindful that when we put something in primary legislation, our language—notwithstanding the points that we have discussed on dignity and respect—needs to be very clear and careful. We have said very clearly that we will not use the private sector for one-to-one health assessments for disability benefits. I do not want us to get into the situation where putting something like that in the bill means that we are constrained from accepting, for example, supporting evidence for an application that comes from a private sector organisation. Such evidence to support an individual’s application may come from any of the private healthcare providers. I do not want us to be in a situation where we exclude the private sector from information technology contracts and so on.

I am looking at devising a model that makes it clear that assessment will not be provided by the private sector because of the nature of that model. Devising what the assessment model will look like is work that the expert group is undertaking and which we are doing with parts of our experience panels. I hope that that will then be described in regulations around disability assessments.

Mark Griffin

We have spoken about the fact that many people view the new social security system through the prism of the current system. Making it clear in the bill that the use of the private sector is banned solely from the medical assessments, and that such assessments will be carried out entirely by the public sector, would be a bold statement. However, I take on board the minister’s points.

Can you expand on the issue of annual uprating and where your officials see any difficulty in putting that in the bill?

Jeane Freeman

No. As I said to Alison Johnstone, we are looking at that and several other areas to see whether it would be appropriate to include them in the bill. We will return to that at stage 2 when we have the benefit of the committee’s report.

The Convener

Thank you for answering so honestly, minister. I thank you and your officials for coming to the committee.

10:26 Meeting continued in private until 11:47.