Overview
This law sets out the legal framework for the Scottish social security system. It allows people to get the help they're entitled to.
It means that the Scottish Government must give financial help to people who are entitled to it.
This law explains how the social security system will be managed, including how:
- applications will be made
- decisions will be made
- people can appeal against decisions
It also gives:
- the Scottish Government the power to top-up payments
- councils powers to make payments to help people pay their rent (known as 'Discretionary Housing Payments')
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
The Scottish Government has new social security powers for 11 benefits. This law was created to set up a system to manage these benefits.
The benefits will be transferred from the UK Government over the next few years. Most of the benefits, though, will still be paid by the UK Government and the Department for Work and Pensions.
People will apply for different benefits or get benefits without having to apply. The process of applying should be roughly the same for all types of benefits.
You can find out more in the Policy Memorandum document that explains the Bill.
Where do laws come from?
The Scottish Parliament can make decisions about many things like:
- agriculture and fisheries
- education and training
- environment
- health and social services
- housing
- justice and policing
- local government
- some aspects of tax and social security
These are 'devolved matters'.
Laws that are decided by the Scottish Parliament come from:
Bill stage timeline
The Social Security (Scotland) Bill became an Act on 01 June 2018
Becomes an Act
This Bill passed by a vote of 119 to 0 and became an Act on 1 June 2018.
Introduced
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Committees involved in this Bill
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill

First meeting transcript
The Convener
Agenda item 3 is an evidence session on the Social Security (Scotland) Bill with people who attended the your say workshop in the Parliament the week before last. I attended that workshop and thoroughly enjoyed it, and I thank them for the evidence session.
I welcome Norman Gray, Brian Hurton and Moira Sinclair. Thank you very much for agreeing to appear before the committee to report back from the your say event. I know that you found it a bit daunting, but please do not find this meeting daunting. I am sure that the committee will be interested in everything that you have to say. I invite you to say a little bit about yourselves and your experiences and to report back on the event. We will then move to questions.
Norman Gray
Good morning, ladies and gentlemen. I do not receive social security benefits, but this is the third time that I have appeared before the committee to give evidence. The first time was as my son’s representative as we faced up to our fears when he prepared to move from the disability living allowance to PIP, despite the lifetime award of his DLA. The second time was in support of my daughter, who went through the harrowing experience of a PIP assessment following a traumatic head injury. Their experiences further raised my interest in the work of the Social Security Committee and the your say initiative. I am therefore delighted to be here to give my views.
Moira Sinclair
Good morning. I have significant issues with my hips and back. I had the first of many surgeries at the age of 11, and I have been riddled with osteoarthritis. I am currently in receipt of DLA as a lifetime award and I use it to fund a Motability car. That gives me the passport to a blue badge. With both of those in place, I am able to work full time, and I pay more in tax than I receive in DLA. I fully expect the award to be completely removed when I am reassessed for PIP, which will leave me with neither the car nor the badge and with significant difficulties in getting to work.
I became involved with the committee when I responded to a consultation on disability benefits. I, too, am delighted to be here to speak on behalf of those who were at the your say meeting and in general.
Brian Hurton
Good morning. I have attended your say events for the past two years. I have keratoconus, which is a degenerative condition.
My experience of going through the system started when I was put into the work-related activity group because I was classed as fit for work. I appealed the decision and the case took around 12 months to go to tribunal. Under regulation 35, I was put into the support group in less than five minutes, as I would be at risk in a working environment. I decided that I would tell people about my experience and I got involved in the Parliament. I have been going backward and forward ever since.
The Convener
Thank you very much. I ask Norman Gray to read out the report of the your say workshop.
Norman Gray
The submission provides the group’s answer to the various questions that we were asked about the Social Security (Scotland) Bill. I will read out each question and then give our group’s views.
The first question was:
“What are your views on these principles and this approach?”
As a group, we fully support the idea of including the principles in the bill. They should underpin how the new system runs. We particularly support the objective that states that
“respect for the dignity of individuals is ... at the heart of the Scottish social security system”
and that
“social security is ... a human right”.
The next question was:
“Are there other principles you would like to see included?”
There should be an additional commitment to providing information to people and making the application process as clear, understandable and transparent as possible. Meeting people’s individual needs should not be an afterthought, and a range of access methods should be available to reach people in the way that works best for them, as the Government has proposed. Meeting people’s needs should be put ahead of improvements to the system, and the system should have the flexibility to change according to individual needs. There should be an additional objective that gives individuals the right to advocacy and support. The Scottish Government’s commitment not to use private contractors should also be enshrined in the bill.
The next question was:
“Do you agree with the idea of a charter? Is there anything specific you would like to see in this charter?”
We are all positive about the idea of the charter and agree that a yearly report is important for accountability. The charter should state the rights and responsibilities of both sides, not just of those claiming benefits. Specifically, the charter should contain the following: a commitment to clear explanations of decisions and the reasons behind them, transparency about the assessment system and who the decision makers are, and a commitment to putting in place timescales for processes and meeting them. We are particularly supportive of the Government’s commitment to there being a range of different communication channels, and we would like that to be included in the charter. Phone contact should possible be by local or freephone numbers, not as it is at present.
The next question was:
“Do you have any views on the rules that should apply to all benefits?”
Lifetime awards should be reinstated for those with conditions that will not improve. Reviews of on-going claims should happen only when individual circumstances change, and the criteria that are used in decision making should be made clearer. There can always be a responsibility on whoever receives the benefit to report any improvement. There should be more respect for medical professionals and the value of medical evidence in the benefit assessment process. There should be straightforward, consistent appeals procedures. Information should be saved and shared and should not need to be supplied multiple times to the agency. If an appeal is made, the claimant should remain on the benefit until a decision has been taken on the appeal. That would be preferable to using the new short-term assistance for that purpose. If an agency error leads to overpayment and the benefit claimant supplied the correct information, the payment should not be recoverable. Each individual should have a named person who deals with their case to allow for consistency and improved communication.
The Convener
Thank you. I will open with a general question. I was at the workshop, and the evidence that was given there is exactly what you have said here. One of the striking points concerned lifetime awards for debilitating illnesses that mean that people can appear to be all right one week and not all right another week. The evidence that was given at the your say event was that that was not looked upon favourably.
We also heard about condescending remarks being made. Because people took the time to dress properly and have a shower and so appeared well, it was remarked that they must be well. What are your thoughts on that issue, which was raised at the your say workshop? Moira Sinclair mentioned that people should get a lifetime award. How difficult is it to put that idea to the DWP?
Moira Sinclair
It has become more difficult with the move to PIP. There are an endless number of medical conditions that medical professionals tell us will not improve. I am not going to grow a new skeleton any time soon, as far as I am aware. There are also conditions, such as multiple sclerosis and motor neurone disease, that are not only degenerative but mean that people will have good days and bad days. One day, it might take somebody a couple of hours to get up and they can do a few things but, another day, they might be in absolute agony, so nothing is going to happen.
The point that was discussed at the your say workshop was that, when people go to assessments, they make an effort. The feeling was that it is wrong to penalise people for making an effort. We all want to go out in public in a presentable fashion. We all have our mother standing over us saying, “You’re not going out like that! Have you washed behind your ears?” Everyone who goes to the reassessments faces the same issues. Somebody might get up six hours earlier than normal to ensure that they are ready and presentable, but that does not mean that they are coping and that, therefore, their disability is not a problem.
The Convener
Forgive me, but I will interject there. I understand that more questions were asked at the workshop and that Norman Gray has told us about the responses to only some of them. Did the witnesses decide to give the answers to the questions between them? If so, does one of the other witnesses want to pick up where Norman left off? Was that what you had decided to do?
Norman Gray
Yes.
Moira Sinclair
Yes.
The Convener
Sorry about that. Whoever is next can continue.
Moira Sinclair
That will be me.
The next question that we considered was:
“What changes, if any, do you think should be made to the individual benefits in the Bill?”
We started by looking at carers allowance. We think that there should be different arrangements in place to allow those who are claiming carers allowance to combine that better with employment. We also feel that the criteria for carers allowance should be looked at. For example, the fact that it is not available beyond pension age should be looked at, and there should be the option of claiming part of the allowance rather than the current all-or-nothing situation. For many people, the allowance is their only source of income.
We agreed on the importance of an allowance for young carers, although we did not think that it should necessarily be financial. We feel that carers allowance should be a passport to other assistance such as vouchers towards glasses and that kind of thing. More should be done to ensure that we look after the health of carers. We believe that, given the alternatives, carers allowance represents very good value for money for the state.
On DLA and PIP, as we have mentioned, if a lifetime award is in place, that should transfer without the need for reassessment. A transitional process should be in place for those who lose the benefit. Links with other agencies, such as Motability, need to remain, and there should be a greater allowance for mobility issues. There should be more recognition of the fact that many disabled people work and contribute or have done so previously. Also, claimants should not be penalised for pushing themselves to do as much as they can. For instance, making an effort on physical appearance should not be a negative factor when people are assessed.
We thought that it would be worth considering a different system for winter fuel payments whereby vouchers are issued or fuel bills are met directly to ensure that the money is spent on fuel. Those who do not want the vouchers could donate them to charity or to those who need them more.
We were asked:
“What are your thoughts on the proposal to increase the Carers Allowance?”
We are supportive of the increase, but we agreed that it is only a step in the right direction and does not go far enough. Carers allowance should be a living wage. Adding extra entitlements such as glasses vouchers, along with improved arrangements for respite, would help. We believe that it is about not just the money but support and assistance in other areas as well.
09:45We were asked:
“What are your views on the proposal of short-term assistance?”
We think that it is a good idea but that it needs to be automatic and to click into place smoothly instead of being a complicated application process. As we mentioned previously, we believe that it may be better to allow people to continue to be on a benefit when they are appealing a decision than to make them switch to a new short-term assistance benefit.
Other ways in which the assistance could be used include during transitional periods such as the loss of PIP or a change in circumstances and when people are forced out of their homes or accommodation—for example, due to flooding. There should also be clarification in the bill about whether money has to be paid back should the appeal be lost.
We were asked:
“Do you agree that discretionary housing payments should continue largely as they are? Do you have any other views?”
We feel that the current system seems to operate as a postcode lottery and that the scheme should be statutory for all local authorities. There should be better information and awareness about the assistance that is available to people, and the application process should be easier.
Brian Hurton
We were asked:
“Do you have any views on the approach to put most of the rules about new benefits in secondary legislation?”
We thought that there were pros and cons to that approach, but we trust that the Government will do the right thing. One of the strengths of the approach that we discussed is that it will make it easier for criteria to be changed once it is better understood how things are working in practice. We are generally supportive. However, there needs to be more clarity around which external bodies the Government is developing the regulations with. They should not be just the usual suspects and should include those who have first-hand experience of the benefits system.
We were asked:
“Is there anything else you want to tell us about the bill?”
We are in agreement that the whole benefit application process needs to be simplified. The use of language is important—for example, in the reference to assistance rather than benefits, which we very much support. The change in name reinforces the principles that the system is supposed to be based on and reinforces that we are to be treated with dignity and respect throughout.
Ruth Maguire (Cunninghame South) (SNP)
The panel said that, for the carers allowance, there should be an option for claiming part of the allowance. Could you expand on that?
Norman Gray
That refers mainly to young carers. Young carers are not looking for financial reward for caring; they need things such as respite care associations, because they miss out so much on life as they go through the caring system. They want a reward or payment in kind rather than a financial payment. That is very important.
Mark Griffin (Central Scotland) (Lab)
Brian Hurton spoke about the group’s views on whether the rules about new benefits should be in primary or secondary legislation. Your submission says:
“We thought that there were pros and cons to this but that we trust that the Government will do the right thing.”
You might trust this Government to do the right thing, but that might not necessarily apply to every Government that comes afterwards. Although you trust this Government, do you feel that some of the good work that is going into the bill should be in primary legislation so that it is safeguarded against a later Government that you might not trust?
Brian Hurton
One of the issues that I brought up was the use of private contractors. One suggestion was that the ban on private contractors should be enshrined so that future Governments can never reverse it and use private contractors when they are in office. We need a guarantee that that ban will never be reversed, as I am concerned about future Governments coming in and taking bits out of the legislation.
Moira Sinclair
Another aspect was that we agree that parts should be in regulation rather than in the bill to make it easier to make changes that will no doubt be required as time goes on. That is partly about the law of unforeseen circumstances. I have no doubt that there will be something that leads us down a path where we want to make a change, and it would be easier to do that if parts were in regulation. That is where we were coming from.
Norman Gray
Another factor is accountability. The Government will have to report to the committee each year on what has happened, so there will be some check on what future Governments are doing. Various checks are built into the bill.
Jeremy Balfour
Thank you very much for coming along. I have a couple of quick questions and I am happy for anyone to answer them. You mentioned transferring from DLA to PIP without any reassessment. Given that the regulations and criteria are different for DLA and for PIP, how would someone be transferred in that way? To give an example from my experience, I went up an award level. If I had been transferred across, I would have been on a lower award than the one that I got under PIP. How do we avoid people not getting the right award? How might that work in practice?
The next question is directed at Moira Sinclair. I am interested in your comment that, if you do not get PIP, you will not get a blue badge. I understand that the test for a blue badge and the test for PIP are different and are assessed differently, so why are you concerned about that? You may or may not lose your DLA or PIP, but why would that affect your blue badge?
Moira Sinclair
Our feeling was that, if people have a lifetime award, it should be transferred from DLA to PIP. We thought that when the criteria were clear—for example, if someone was in the top rates for everything and had gone through various processes—that would transfer, but we were not of the view that absolutely everything should merge into PIP; we were talking about just the top level.
You are right that there is a different assessment for a blue badge. The issue is having to go through that process. At the moment, I can qualify for a blue badge by ticking a box to say that I receive DLA at the higher mobility rate, rather than having to go through the blue badge assessment as a separate process.
Norman Gray
The point about the DLA to PIP transfer is that the two systems can merge together in moving across, but there is a need for an assessment as people move from DLA to PIP. The PIP criteria are sometimes very negative for certain conditions—especially mental conditions. My son has a developmental problem that will never change—it has been the same from birth. He was under great stress because of the transfer. We had about two weeks of very bad behaviour and about two weeks afterwards of unaccountable behaviour from him simply because he thought that he would lose his award. In such cases, it is important to explain that someone’s DLA award will continue into PIP but that they will be reassessed so that we are sure of their level of PIP—that is the main thing.
Jeremy Balfour
As a new member of the committee, I have a supplementary question. On lifetime awards, I fully agree with the comments of all three witnesses. I do not know whether, through the people you have been talking to and meeting, you have evidence to show that people are not getting lifetime awards. My experience as a member of a tribunal was that quite a lot of lifetime awards were given, and I am surprised that people are not getting them. Can you give the committee any evidence to show where people are not getting lifetime awards?
Brian Hurton
I am in receipt of DLA and I am on lifetime awards, but I am still waiting to be put on to PIP, and what will happen is the sort of question that is going through my mind. I get an amount that is based on a low care component and a high mobility component, so if I was going over to PIP without an assessment, I would probably be put into standard care and high mobility. However, what would happen if my care needs changed? I could be given enhanced care. I really do not know about that.
Jeremy Balfour
Thank you.
The Convener
Thank you, Jeremy. Evidence has been given to the committee and the papers are there, but Brian Hurton has answered the question.
Pauline McNeill (Glasgow) (Lab)
Thank you for coming to talk to the committee. I have two quick questions. The first is to Moira Sinclair and is in the same area as Jeremy Balfour asked you about. I want to be clear about why you said that you fully expect your award to be completely removed. Why is that?
Moira Sinclair
I receive DLA at the higher rate for mobility, but I receive nothing for care. With the change of criteria under PIP, mobility components are different. Because I can drag myself 50 yards or whatever, I will lose everything.
Pauline McNeill
What impact will that have on you? You said that you work full time.
Moira Sinclair
Yes—I work full time. The first obvious thing is that the Motability car will go, and then I will have to go through the process of trying to get a blue badge. There are all the transport issues. I can be on a train or a bus, but the issue is standing at the train station or the bus stop and being able to move again afterwards—I can seize up a bit. They are all little things, but I would have to work out how all that would fit together.
Pauline McNeill
In Parliament later today, I will ask the Minister for Social Security a general question about why the ban on using private contractors is not in the bill. Brian Hurton talked about that in his opening remarks and I am interested to know why he is against using such contractors.
Brian Hurton
That is about what disabled people are going through now. We really do not want to go back down that road, to be honest. I would rather have the assessments in public hands, because private contractors are out for profit. I do not want to go into a lot of detail, but a lot of people have had bad experiences of private contracting being used for medical assessments, which should always be in public hands.
Norman Gray
The important thing is that, when the system is out of private hands, we get a consistent approach that is all dealing from the same area and the same source.
My daughter had a bad assessment by one agency. The assessment was inhuman and what she was asked was unfair, especially as she had had a severe head injury. When she appealed the decision and was interviewed by somebody from a different contractor, the assessment was different and was sympathetic. That assessor did not just sit at the computer and ask questions to the computer while the person sat behind them; they interacted with the other person. There is no consistency in how private contractors operate.
Moira Sinclair
We were concerned to make sure that those who are involved in making the decisions base them on medical knowledge and expertise. We felt that that was not always necessarily the case when the assessment was done through a private contractor.
Alison Johnstone (Lothian) (Green)
I thank those on the panel for their evidence and for all the work that they have put in so far. What discussions have you had about the complexity of the current system and how easy it is to get help with applying for benefits? You say that
“there should be an additional objective that gives individuals the right to advocacy and support.”
How easy has it been for people to access support when they need it? How complex do you feel the system is?
10:00Brian Hurton
I tried to get an advocacy worker but, unfortunately, I was told that to do so I would have to have learning difficulties. Somebody with extreme learning difficulties can get an advocacy worker to help them to fill out the forms, but that should be widespread, and everyone should be given an advocacy worker to help them to navigate the system. That would be supportive.
Norman Gray
When my daughter applied for PIP, she went to the citizens advice bureau because, as a result of her condition, she could not understand the form. The staff took her through the whole system of applying but then, when she was told that she had an interview with an assessor, they said that they were not allowed to go with her and represent her. She was left on her own, having had all that support to get to that stage. I had to go with her as her advocate. Continuing advocacy is important.
Moira Sinclair
We talked about simplification of the process in general, which led us on to short-term assistance. We really wanted to avoid people having to fill in more and more applications for slightly different benefits, because that is an arduous process that can be complex. The simpler we can make it, the better. That is where our comments came from about making the forms clear and transparent and using language that the normal person can understand.
That led us to discuss the fact that, if someone has provided the information once, that should be it. They should not need to think, “What did I write on that form two years ago? If I write something slightly different, will I get picked up because I’ve contradicted myself in some strange way?” We wanted to make the system as straightforward as possible.
Alison Johnstone
You are all painting a picture of a stressful system that takes a lot of getting to grips with. When people are at their most vulnerable or unwell, that is even more difficult.
Is there a role for the Government in automatically assessing people for support without making them fill in an application form? I am thinking about the medical professionals you liaise with constantly and the information that they hold on you. Could that be used to ensure that you are receiving everything that you are entitled to, without the need to be assessed by non-medical professionals?
Moira Sinclair
I guess that, if that could be done, we would not object to it. If my general practitioner or surgeon or whoever could say, “Yes—tick that box,” to avoid me filling in a form, I would be all in favour of that.
Brian Hurton
Is Alison Johnstone talking about constant reassessment?
Alison Johnstone
I am asking about the fact that people are being asked to fill in numerous forms.
Brian Hurton
When a consultant or GP writes up someone’s medical condition, that should be it. If it is a degenerative condition, it will never improve. Anyone who looks at that information should accept that, so that we do not have to fill out forms all the time.
Constantly being given forms to fill out is really stressful. We have to go through the same rigmarole of explaining our disability; it should be once and that is it. Later, there could be a smaller form to ask whether someone’s condition has changed. Obviously, we would say no—it has not changed. Somebody with a degenerative condition, who has had a lifetime award, should not be constantly reassessed.
Norman Gray
One problem with PIP assessments is that not enough cognisance is taken of doctors’ reports. In some cases, the assessment is done with no reference whatever to the medical reports. One way of saving people from having to undergo a face-to-face assessment would be having the medical report there on the first application. The assessor could determine from the medical report whether a face-to-face interview was required, which would simplify the process and in some way demystify the situation.
Alison Johnstone
When you were asked whether you wanted to tell us anything else about the bill, you said that the whole
“process needs to be simplified”.
You also spoke about the use of language, which I was struck by. You gave the example of
“referring to assistance rather than benefits”.
There is a benefit cap. We can imagine that, if the language was changed and that was called an assistance cap, there would be an awareness that, although someone needed assistance, they would not get it. That is really important. Do you hope that your input on that subject will be picked up on?
Brian Hurton
I am really pleased that the language is starting to change. I do not like the language that the DWP uses. Disabled people—or whoever—are always classed as a “customer”. To be a customer, someone has to buy a product, but I view myself as a patient of the state. That is what I am: a patient, not a customer.
The language that the DWP uses is demeaning, so I am really pleased that the Scottish Government is getting to grips with changing the language.
Moira Sinclair
Part of the reason why we liked the move to the use of “assistance” harks back to what I understood DLA’s purpose to be originally. It was supposed to level the playing field. It was supposed to account for increased expenditure and difficulties that I might have because of my disability and to get me on a par with everybody else. It is not a benefit, a gain or somebody giving me a gift. It was supposed to be assistance just to get me to the point where I am level with everybody else.
Ben Macpherson (Edinburgh Northern and Leith) (SNP)
Good morning and thank you for everything that you have contributed so far. It has been illuminating, and it is important for us to hear it all.
I want to ask about the points that you made in response to the question about your views on the rules that should apply to all benefits. You said:
“If an appeal is made, the claimant should remain on the benefit until a decision has been taken on the appeal. This would be preferable to using the new short-term assistance for this purpose.”
Will you elaborate on why you think that that is important?
Norman Gray
The main reason is the problem of stress. When a person has their allowance taken off them while they wait for their appeal, the allowance might or might not be reinstated later, but what happens in between? How does the person cope? It means that there is no continuity; there is only upset. It is not humane. We are talking about dignity being one of the basic principles. When someone’s allowance is stopped, and they are then told, “Oh, no. Sorry—you were right. We’ll continue it”, it is heartbreaking for them.
Ben Macpherson
One of the major injustices in the system for universal credit, which is a reserved benefit, is that advance payments of universal credit have to be paid back in the process thereafter. Did that inform your decision making on how the system could be better?
Norman Gray
It was more about stress levels for people whose allowance is stopped. It puts an awful lot more pressure on the appeal and its outcome. If payment of the allowance was continued throughout the process, that would save an awful lot of problems.
Ben Macpherson
You also said:
“If an agency error leads to overpayment and the correct information was supplied by the person claiming benefits then this shouldn't be recoverable.”
That speaks for itself, but do you want to elaborate on it?
Moira Sinclair
I say in response to the previous question, that we want the appeals process to be slightly quicker than it is at the moment, and that people continuing to receive their benefits during that period might encourage it to be quicker. When a benefit, assistance payment or whatever we call it is withdrawn, that will have implications in respect of a person’s car, their rent payment and so on. Life can move far down the road before the appeal decision comes through: it is not necessarily possible for someone to go back to where they were on the day on which the wrong decision was taken.
On repayments, we completely understand and accept that anyone who has filled in a form for fraudulent purposes or has deliberately misled the agency should pay back every penny, but if the claimant has filled in the form in good faith, has provided all the correct information and then gets a letter that says, “Here is your award,” they should be able to accept in good faith that that is the correct award, and to proceed on that basis. It seems to be very unfair that the agency can try to reclaim the money when it is discovered that a mistake was made on the agency side, through no fault of the claimant and when the claimant has done nothing wrong. The claimant might already have used the money for other purposes, so they will lose during the time that it takes them to pay that back.
Mark Griffin
My supplementary is about payments that are made in error. On top of the issue of claimants being asked to repay whatever was paid in error, concern has been raised by a legal body about the fact that the system that is proposed in Scotland is harsher than the one in the United Kingdom when it comes to claimants being prosecuted and criminalised if they have made a fraudulent claim and been overpaid. Under the UK system, someone who makes a fraudulent claim and receives an overpayment can be prosecuted and given a jail sentence, but there is a burden on the prosecutor to prove that the applicant knew that they were making a fraudulent application.
However, in Scotland, that burden of proof will not apply: the prosecutor would not have to prove that the applicant knew that they were making a fraudulent claim, so the applicant might have made an honest mistake, for which they would be criminalised. I have received representations about that, and I think that other members of the committee have heard evidence that the Scottish system will be overly harsh and could criminalise people for honest mistakes. Do you have any views on that? Should the Government look at the system again to make sure that anyone who makes an honest mistake will not be criminalised for doing so?
Norman Gray
The problem is how we define an “honest mistake”. There might well be an appeal situation in which someone who claims that they made an honest mistake would have to prove that.
Mark Griffin
Under the present UK system, if the state wants to prosecute a person for a fraudulent claim, it must prove that the claim was made dishonestly, whereas under the proposed Scottish system, the state would not have to prove that the claim was made dishonestly, but would have to prove only that an incorrect claim had been made, regardless of whether the motive for doing so was dishonest or honest.
Norman Gray
I still think that there are responsibilities on both sides—the people who apply for benefits and the people who award them. It is quite rational to say that the bill should remain as it is and that repayment would be required, even though that might sound harsh.
Moira Sinclair
That is not an issue that we picked up at the your say workshop: as no one raised it, we cannot comment on it, as a group. However, if that is the case, my view is that it sounds as though the Scottish system might be overly harsh in that respect. Therefore, I would advise that the issue be looked at.
The Convener
The issue is not one that I have come across, and other members do not seem to have come across it, either. However, I am sure that we will look at it, now that Mark Griffin has raised it.
10:15Adam Tomkins (Glasgow) (Con)
I have a question about young carers, but before that I would like to pick up on an aspect of the earlier discussion about PIP assessments that arose from the questions that were asked by Pauline McNeill, Alison Johnstone and Jeremy Balfour.
I am trying to understand what you want out of a reformed Scottish equivalent to PIP assessments. I do not want to put words in your mouths, but it sounds almost as if you want the assessment to be based on a medical diagnosis of a condition, which is the job of general practitioner or a surgeon. However, as I understand it, the whole point of PIP is to ensure that assessments are based not on medical diagnosis but on need, because two people with the same medical condition might have quite different needs. It might be that we need to revisit all of that, but the point of the assessment process is not to go over the medical diagnosis, which is the job of the doctor, but to understand the need that is generated by the individual’s condition. Is my understanding right, so far?
Norman Gray
Yes.
Adam Tomkins
I am just wondering how radical your suggestions are. Are you suggesting that we do not need to have that assessment of need and that we should base our disability social security simply on medical conditions, so that assessment essentially becomes the doctor’s job? Is that the force of your position, or am I misunderstanding it?
Moira Sinclair
We are saying that much more emphasis must be placed on medical diagnosis. I accept that there should also be a needs element of the assessment. However, our feeling is that, at the moment, the medical evidence is being forgotten. That thinking led us to state that we believe that people should not be penalised. As you say, two people with the same condition will have different needs. However, the fact that person A is forcing themselves, by whatever means, to do various things that person B is not doing should not mean that person A is punished for that and loses out as a result. At the moment, the system offers a perverse incentive to act like person B. If I were to lie in my bed every morning saying, “It’s too sore—I can’t get out of bed”, I would be better off. That seems to be bizarre.
Adam Tomkins
Yes, it does—to put it mildly.
Norman Gray
I think that you are overstating our position with regard to the role of medical evidence. My point is that the medical evidence should be taken as evidence that an award is required, but there needs also to be a secondary stage involving an assessment of need. We are dealing with individuals, so there needs to be more than simply a statement that the person has something wrong with them. We are all different and, as Mary Sinclair said, two people with the same condition can do different things.
Adam Tomkins
I see that Brian Hurton is nodding. Do you agree with that, Brian?
Brian Hurton
Yes.
Adam Tomkins
So, you all accept that there needs to be a needs assessment that is different from and supplementary to the medical diagnosis, but your argument is that the two need to be viewed together rather than there being a big wall erected between them. Is that correct?
Norman Gray
Yes.
Adam Tomkins
That is helpful, thank you.
When listening to the First Minister announcing her programme for government in Parliament on Tuesday, I noticed that she is no longer talking about a young carers allowance, which I think was a Green Party manifesto commitment that she talked about last year, but is instead talking about a package of support for carers. That is interesting, because it ties in with what you say in your submission about there being
“an allowance for Young Carers”
that is “not necessarily ... financial.” What sort of package of support for young carers do you have in mind?
Norman Gray
Young carers need respite every so often, and people do not always recognise the need for mental respite. My granddaughters care for their mother, and two of them have been away in different weeks on a yacht on the west coast, which has given them a chance to get away from the home environment and enjoy other people’s company, which is a regeneration process for them. It was funded from outwith their home situation. That kind of thing is important—it recognises the needs of the carer and can be adapted to their needs.
It is difficult to state that there is one particular thing that would deal with all young carers; it is more about recognising need and there being something that might provide benefit.
George Adam (Paisley) (SNP)
Good morning. The session has been really good. I was struck by one thing when Brian Hurton was talking about language, although this is not part of my question. If a person was a customer, they could say that they will take their custom elsewhere, but people on benefit will not get that option. What Brian Hurton said was bang on.
As a point to balance what Jeremy Balfour said, while I have been a constituency MSP, nobody has ever come through my door who has been upgraded during the process. I might be extremely unlucky or everybody in Paisley is being targeted, but I have never experienced that.
Moira Sinclair, I think, brought up an issue in respect of the appeals process. People end up going through that process and many get what they appeal for; however, there is turmoil when a person’s car is taken off them if they have a Motability car. In Moira Sinclair’s case, it will affect her working life. If a person’s appeal is successful, they will get their car back. That is very good for my former colleagues in the automotive industry, but it is not so good if we are trying to create a system in which we are trying to help people. Obviously, we need to ensure that we have a system that treats people with dignity and respect, as the Government says, but currently the system does not do that. In effect, it puts people’s lives in complete turmoil.
Brian Hurton
On cars and the Motability scheme, I hope that once the new disability benefit is devolved to the Scottish Parliament, people will, when they have to appeal, be able to retain the car that they need. Everybody is losing their car right now.
Moira Sinclair
In general, the feeling has been that something other than “You’ve lost the claim, so you need to go through the appeal process, apply for short-term assistance”—if it is brought in—“and deal with the consequences”, could be said. All that is unnecessary. We could say, when a person starts their appeal, that their benefit can continue until the appeal ends. That would make the approach much more sensible.
George Adam
I think that Norman Gray mentioned long-term conditions that will not change, and Moira Sinclair mentioned MS and MND in particular. I declare an interest in that my wife has MS. MS is a classic example: the person can walk one day and be fine, but then be in bed for the rest of the week after it. The pressure and stress of the system are triggers for relapses. Adam Tomkins went on about need, but with a lifetime award, a person has proved that the condition will not go away, so it is common sense to use the medical assessment as opposed to talking just about need—although I think that consideration of the two would be combined.
Inclusion Scotland told us that there was a scare about fraudulent use of the old system. However, it said that only under 1 per cent of claims in the old DLA system were found to be fraudulent. We need to strike a balance in the system.
I do not know why the Westminster Government has had a massive experiment with PIP. It is just putting the most vulnerable people in our society under pressure and making them feel undervalued. What do you think of the whole process in general?
Norman Gray
I can understand the problem of moving to the PIP system. The PIP has a broader base than the DLA and it uses different criteria. The problem with PIP is not so much PIP itself, but how assessments and awards have been done, and how, in many respects, outcomes have not been fair. If you look at the number of appeals in the system, that shows that awards are often wrong because so many people end up appealing.
In many ways, PIP has a fairer basis than the DLA when it comes to recognising a person’s needs and requirements—certainly in terms of the mobility award, for example. My son got a low mobility award in his DLA, but was recognised in his PIP assessment as needing a high award—it recognised his problems with moving around much better than the DLA assessment did. The problem is more how the system is being managed than the system itself.
Moira Sinclair
As with everything, there are winners and losers with the move from DLA to PIP. Although the PIP assessment has correctly recognised some of Norman Gray’s son’s needs, it will put me out on the other side. It is about finding a balance.
It is important to recognise that there are good days and bad days. I know what my limits are, so I will do a lot one day if there is something that I really want to achieve, but I might have a difficult week after that. It has to be recognised that illnesses are a bit of a rollercoaster.
Brian Hurton
I agree with Moira Sinclair that there will be winners and losers with PIP, through the UK Government. There are questions that have been missed out—for example, about bathing and washing in the bathroom. Because of my visual impairment, I can easily—and have—cut myself when shaving, but the assessments do not recognise that, so I do not get points for it.
I am not scared at the moment, but I am anxious that it is coming and that I will have to go through the whole carry-on with being re-assessed to get put on to PIP. There are certain things about daily living with visual impairments that do not get recognised in PIP, and I am really annoyed about that.
Norman Gray
Like Brian Hurton, we were concerned about our son’s move from DLA to PIP, but it transpired that some of our fears were not realised. The example that Brian mentioned—about washing himself—was covered very well in the PIP assessment. We were able to put in a long list with riders about what actually happens. For example, they asked our son whether he can wash, and he was able to say, “Yes, but—”, and all the buts were important.
If there is advocacy, that problem will be taken away as people will realise what they are meant to talk about in the terms of the PIP assessment. Again, it is not a matter of the award itself, but how it is applied.
The Convener
The issues of advocacy, transparency and simple language were raised on a number of occasions at the committee’s away day.
Thank you very much for your excellent presentation. There were lots of good answers to our questions.
Norman Gray
Thank you for having us and for listening to our presentations. It is very reassuring to see that the committee has an open view about what it is looking at and what it might determine in the future. We look forward to seeing what emerges, and what our input has been.
The Convener
Thank you very much. We look forward to meeting you again.
10:29 Meeting suspended.10:32 On resuming—
7 September 2017

7 September 2017

14 September 2017

21 September 2017

28 September 2017

5 October 2017

26 October 2017

2 November 2017
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Delegated Powers and Law Reform Committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
It met to discuss the Bill in public on:
3 October 2017:
24 October 2017:
- read the official transcript of the meeting (discussed as part of the Child Poverty (Scotland) Bill section)
- watch a video of the meeting
23 January 2018:
Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 31 October 2017.
Finance and Constitution Committee
The committee may consider:
- the costs of the Bill
- whether there has been enough information provided about the costs
The committee questioned the Scottish Government team that looks at the costs of the Bill on 13 September 2017:
Debate on the Bill
A debate for MSPs to discuss what the Social Security (Scotland) Bill aims to do and how it'll do it.

Stage 1 debate transcript
The Deputy Presiding Officer (Christine Grahame)
The next item is a debate on motion S5M-09629, in the name of Jeane Freeman, on the Social Security (Scotland) Bill at stage 1.
14:54The Minister for Social Security (Jeane Freeman)
The Social Security (Scotland) Bill comes to the Parliament as the legislative foundation for a new public service for Scotland to deliver a rights-based social security system that is founded on the principles of dignity, fairness and respect. Although it is correct that we will not be responsible for all social security, with the bulk remaining reserved to the UK Government, we will be responsible for 11 benefits, affecting 1.4 million people in Scotland. The foundation that we lay in this bill should therefore be capable of being the foundation for all social security in Scotland, should the time come when our Parliament has that opportunity.
The bill sets out the social contract that extends to everyone in Scotland. It underpins the investment that we believe social security is—an investment that we make in ourselves and in each other. It is a recognition that people across Scotland contribute to our society in many different ways, each of which is valuable and each of which adds to the sum total of our quality of life. Every party and every member of this Parliament now has a direct stake in delivering the contract. Members in this chamber must have confidence that, by the end of the parliamentary process, we will have a social security act that the people of Scotland are confident in and content with. With that in mind, I am pleased that the committee has come to a unanimous agreement to support the general principles of the bill.
As we get on with building a new public service that is the beacon of fairness, accessibility and transparency that we intend it to be, and one that is focused on doing the right thing for those whom it serves, we must all be mindful that it is our shared responsibility and one that demands that we put the people of Scotland first. This is a complex bill that will support the biggest single expansion of devolved Scottish public services since the restoration of this Parliament.
Between the bill being announced in September 2015 and published in June this year, the Scottish Government carried out an extensive consultation and engagement exercise. We did that because, if we want to proceed on the basis of consensus, we need to know what people expect from their social security system, so we asked them. Alongside our published consultation document, we held engagement events in every one of Scotland’s 32 local authority areas. We visited communities and organisations to find out what people liked about the current Department for Work and Pensions system, what they did not like and what they wanted to change.
What came through loud and clear is that what matters to the people of Scotland is how they are treated by their social security system. There can be no doubt that people feel that the existing DWP system does not treat its users kindly. Evidence from our most recent stakeholder survey showed that, when people were asked how they view the current system, 60 per cent of respondents—more than half—rated their experience of the current benefits system as poor or very poor. Only 18 per cent rated their experience as good or very good.
If there is one thing that people are agreed on, it is that our Scottish social security system must treat people better. That is what we have set out to achieve and it is reflected in our bill, which ensures that the system that the bill provides for meets peoples’ rightful expectation that they will be treated with dignity and respect. It does this by ensuring that decisions on social security policy and delivery will be governed by a series of key principles, including the principle that,
“respect for the dignity of individuals is to be at the heart of the Scottish social security system.”
Words and intentions alone are not enough, which is why the bill also provides for a duty to prepare and publish a social security charter. Such a charter will make our principles come alive, translating them from statements of aspiration to focused aims on how we will meet those principles in every aspect of our day-to-day delivery. Our approach will enable the principles to be easily understood by all and embed them in a way that is open to monitoring, reporting and scrutiny.
I believe that, inside and outside this chamber, we all agree that basing our social security system on a set of key principles, supported by a charter to carry the principles off the page and into the day-to-day operation of our social security system, is the right thing to do.
I am pleased and grateful that that agreement is reflected in the committee’s report, which says:
“There has been a universal welcome for the inclusion in the Bill of a set of principles on how the Scottish social security system should operate”.
However, there are clearly some areas where the legislation does not set out some of the policy choices that we have made in a way that properly reflects the intent behind those choices, and we will address those areas. When I appeared before the Social Security Committee on 2 November, I gave a couple of examples of where I believe that we need to make some adjustments to ensure that our policy intent is clearly applied and I am pleased that that is reflected in the committee’s report. The committee has welcomed my assurances on the issue of cash versus payments in kind and on support for provision in relation to independent advocacy.
There are other areas where we need to reflect on what the committee has said in its thoughtful and reflective report and on what stakeholders have said to us. One example is the recovery of overpayments, which we will not pursue in instances of official error, other than in exceptional circumstances. Another is the question of redress when an individual feels that their treatment has not been compatible with the charter. We will use the time between now and the beginning of stage 2 to consider these matters and determine what further action we believe is needed.
There are some instances, too, where we need to explain ourselves better—on the process of redeterminations and appeals, for example. I am keen to have further dialogue and an opportunity to present the evidence, which I believe supports our view that the appeals process that the bill sets out will be very different—in purpose, spirit and practice—to the one that is currently operated by the DWP. After that further dialogue, we will reflect on where matters stand.
Between June—when we published the bill—and my committee appearance in November, I had 70 meetings with more than 50 separate individuals, groups, or organisations. If we are going to reach a consensus—and I believe that we can—on areas where people feel that we have not yet addressed their concerns, we need to keep the dialogue going to find solutions. My door is open and I will actively engage in those further discussions with members and with representatives of the many stakeholder communities that have an interest in the bill.
We are, together, engaged in a complex and complicated task—to ensure that we build a rights-based social security system for Scotland that not only delivers the 11 devolved benefits safely and securely but does so true to the principles that we have set out, and works effectively alongside the United Kingdom system. It is complex and it is complicated, but it is also a golden opportunity.
The prize is a social security system that is there to support the people who need it, when they need it, for decades to come; a new public service that embodies the social contract between the individual and the state, founded on the shared recognition that we all contribute in different ways and that it is right that the state should provide at those times when we are in need.
I am pleased that we have come to this stage in the process in a spirit of agreement. I look forward to the debate and to the next legislative stages. I will work with members and with all those outside this chamber who want to work with me, so that we seize this golden opportunity to deliver a new social security system for Scotland and for the future; a system based on respect and dignity and that delivers for the people of Scotland a new public service of which we can all be proud.
I move,
That the Parliament agrees to the general principles of the Social Security (Scotland) Bill.
The Deputy Presiding Officer
I call Clare Adamson, to speak on behalf of the Social Security Committee.
15:04Clare Adamson (Motherwell and Wishaw) (SNP)
I am pleased to be speaking today as convener of the Social Security Committee. I joined the committee last month when Sandra White MSP became a member of the Scottish Parliamentary Corporate Body. I thank Sandra White for her work as convener, particularly in relation to steering the committee through its evidence-taking process. I also thank the clerks for their support as well as the many individuals, organisations and stakeholders who contributed to the evidence that the committee received.
The bill is undoubtedly one of the most important pieces of legislation following the Smith commission and the transfer of new powers to the Scottish Parliament. I am pleased that the committee was unanimous in its support for the general principles. The committee as a whole wants the bill to progress and we want to continue to play our part in improving it through the parliamentary process.
In reaching our decision on the general principles, the committee was mindful of two key factors. The first is the consultative approach that the Scottish Government has taken, which the minister outlined, and the widespread support for that among witnesses and stakeholders. That approach continues through the work of the experience panels and other channels, and the committee welcomes that progress. The second factor that the committee was mindful of is the balance between what is in the bill and what will be brought forward in regulations at later dates. I know that other members are interested in exploring that issue and I will come back to it.
This is a framework bill, the function of which is to create the foundation for the delivery of 11 existing UK social security benefits and to pave the way for Scotland’s new social security system, which will affect more than a million people in our country. Although the committee unanimously approved the general principles, it has identified some areas that require further consideration. I will highlight some of the evidence that the committee received suggesting ways in which the bill could be strengthened or clarified.
The first thing that the bill does is to set out principles. In our evidence, there was particular support for the statements that
“social security is itself a human right”
and that
“respect for the dignity of individuals is to be at the heart of the ... social security system”.
The principles in turn will inform the development of the Scottish social security charter.
A frequent suggestion made in evidence was that the bill should include the right to independent advocacy and advice. The committee concluded that it supports the inclusion of a right to
“independent advocacy under and with regard to the Scottish social security system.”
However, at this stage, the committee has not recommended that the right to advice be added to the bill, although we have asked the Scottish Government to reflect on the evidence received regarding advocacy and advice.
The committee also agreed with stakeholders, including the Scottish campaign on welfare reform, that the bill should state that social security has a role to play in the eradication of poverty.
In further recognition of the evidence received, the committee has also recommended that, instead of the Scottish ministers having a role in ensuring that people are given what they are eligible for under the Scottish social security system, that should be strengthened to become a duty to ensure that people are given the entitlements to which they are eligible.
The committee believes that those additions will strengthen the foundations of our Scottish social security system.
The high-level principles will feed into the development of an accessible and meaningful charter. The committee has drawn the minister’s attention to the importance of ensuring that the charter is available in a range of accessible formats and in a range of locations.
Understandably, much of the evidence to the committee was about the individual forms of assistance. However, the detail of each form of assistance will be brought forward in regulations and the Scottish Government is developing its policy on those. For that reason, the committee did not feel able to make recommendations on the detail of those at this point. However, the Scottish Government has provided illustrative regulations for the best start grant and funeral expense assistance.
The committee welcomed the clarification from the minister that individuals will always have the choice of whether to receive assistance in a form other than cash and that cash will be the default. It was felt that, in that area, the bill was not as clear as the policy memorandum, so we welcome the minister’s undertaking to address that at stage 2.
Because much of the detail about the specific forms of assistance will be in regulations, the committee also considered whether the balance between what is in the framework bill and what will follow in regulations had been appropriately struck. It concluded that the bill does not allow for adequate scrutiny of the detail of the different forms of assistance and noted that it does not make any provision for a super-affirmative procedure or independent scrutiny of the regulations. That was of concern.
One specific way in which scrutiny can be strengthened is the creation of a Scottish body similar to the Social Security Advisory Committee. There is strong support for that among stakeholders. The committee believes that there is a role for a statutory body that is independent of Government and that has an initial focus on assessing draft Scottish social security regulations. The committee also believes that the Scottish ministers should be obliged to consult that body, that the body should report and make its recommendations publicly available and that, if the Scottish Government disagrees with the independent body’s recommendations, it should give its reasons.
Since the publication of the committee’s report, the disability and carers benefits expert advisory group has published its findings and recommendations on how scrutiny could be strengthened. Those include the creation of a statutory advisory non-departmental public body.
The Social Security Committee welcomes the framework bill and supports its general principles. There are a number of issues that will be returned to at stage 2, but the committee looks forward to considering them in detail in the new year.
The Deputy Presiding Officer
Well done on your first go at a convener’s speech. It is quite hard.
15:11Adam Tomkins (Glasgow) (Con)
I welcome Clare Adamson to her new position as convener of the Social Security Committee and underscore her thanks to the clerks, who are sitting at the back of the chamber, for their work in helping us to produce the stage 1 report. I also thank the Government for its comprehensive response to that report, which arrived on Friday afternoon, if I am not mistaken.
The Conservatives are supportive of social security devolution. Ensuring that it works well is one of our paramount duties to the people of Scotland in this session of the Parliament. We support the general principles of the bill and will vote for them at decision time, but we have some reservations about the specifics.
To start with, it is important to note that the bill does not explain who will be entitled to what under any of the devolved streams of social security assistance. Ultimately, that is the question that matters most in social security law and the bill does not address it at all. It has been referred to as a framework bill—Clare Adamson just used that phrase—but it is not even that. What we have is a frame, but all the work will be done by regulations. All rules about eligibility and about the value of each form of assistance are to be set in statutory instruments that are to be made under the bill. That gets the balance between primary and secondary legislation wrong. It reserves to the Scottish ministers much more power than UK ministers have under reserved social security law and it cuts Parliament out of the picture to an unacceptable degree. If I were a different sort of politician—
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Will the member take an intervention?
Adam Tomkins
If I were a different sort of politician I might even call it a power grab, but I will leave that kind of language to others.
Not least because of those concerns, the bill absolutely must be amended to create in statute a Scottish social security advisory committee along the lines that Clare Adamson outlined. It would be that committee’s job to provide expert and independent advice to ministers and, indeed, Parliament on draft regulations. My understanding is that the Government accepts the committee’s verdict that such an amendment is necessary and will seek to amend the bill at stage 2. I welcome that.
I turn to the social security principles in section 1. We support the principled approach to social security that is set out in the bill, but we want to know much more about what the legal status of the principles will be. The same is true with the charter that is provided for in section 2. Will the charter be legally enforceable? Is it a set of political aspirations or legal entitlements?
A broad range of witnesses voiced concerns to the Social Security Committee about that—including those from Leonard Cheshire Disability, SAMH, Engender and the Royal National Institute of Blind People Scotland—and they are right to have done so. Without clarification, as my University of Glasgow school of law colleague Tom Mullen put it in written evidence,
“citizens and their advisers may be unsure what their rights and the Scottish Government’s obligations … are and there”
is likely to be
“wasteful litigation to determine their meaning and effect.”
We need to get those things right at stage 2 to avoid that unnecessary and wasteful litigation.
Ruth Maguire (Cunninghame South) (SNP)
The principles are in plain language so that they can be understood. Obviously, there is a tension in making them legally enforceable, because they would have to be in legally precise terms, which would make them more difficult to understand. How would Adam Tomkins address that?
Adam Tomkins
It is a perfectly reasonable point. There is a trade-off between accessibility of language and legal enforceability. We all say that we want a human rights-based approach to social security. One core element of European human rights is that when one’s rights are breached one has a right to effective judicial protection—not a mere complaint to an ombudsman and not a charter on a wall, but effective judicial protection. If we are serious about saying that we want social security to be founded in human rights, we need to take that on board.
Social security devolution comprises three elements: the streams of assistance devolved in full, the power to top up reserved benefits and the power to create new benefits. The Scottish National Party likes to say that only 15 per cent of social security is devolved, but that is a bit misleading. The truth is that we have devolved 30 per cent of working-age benefits in full, and we have created the power to top up reserved benefits and the power to enact new benefits. The element of that package that is missing from the bill is the power to create new benefits. The bill deals with top-ups, but there is no equivalent provision for new benefits. I have challenged the minister about that before and she has told me that she does not need a provision on new benefits because she has the power to create them already. I am not yet persuaded of that, so I intend to probe the matter further at stage 2. In my view, the bill should include provision on new benefits.
Jeane Freeman
Will the member take an intervention?
Adam Tomkins
If I have time.
The Deputy Presiding Officer
I can give you the time back.
Jeane Freeman
I refer Mr Tomkins to section 28 of the Scotland Act 2016, which provides this Parliament with the competence to create new benefits. It is from there that my stance is taken. We already have the power to create new benefits. There is no need to duplicate that in the bill.
Adam Tomkins
I know that that is the minister’s position and I am sure that it is based on legal advice but, as I said, I intend to probe it further at stage 2.
It is worth making two final points. First, the Scottish ministers are proceeding exceptionally slowly with welfare devolution. For example, we still have no idea at all what kinds or what value of assistance they propose for people with disabilities. We do not know anything at all about how such claims are to be made, assessed or processed. What we do know is that UK ministers think that the SNP is going more slowly than it needs to. As the bill proceeds, that is a matter to which we shall return.
Jeane Freeman
Will the member take an intervention?
The Deputy Presiding Officer
The member is in his last minute.
Adam Tomkins
My last point is on costs. I do not think that the minister referred to the financial memorandum, but the paragraphs on that at the end of the Social Security Committee’s report are important and need to be highlighted. Our concern is that Scottish ministers are devising a very expensive social security system. Of course we want dignity, fairness and respect to be at the heart of that system, but we should treat the taxpayers who pay for all of that with dignity, fairness and respect.
Just last week, in its first report on forecast social security spending, the Scottish Fiscal Commission noted that devolved welfare spending will rise by nearly 50 per cent between 2017 and 2023, moving from £330 million to £470 million. That rise is without knowing anything about what Scottish ministers’ plans are for attendance allowance, disability living allowance, personal independence payments, severe disablement allowance and so on.
The Scottish Conservatives support the general principles of the bill, but we have a number of concerns that we will want to address at stage 2 and as social security devolution proceeds.
15:19Mark Griffin (Central Scotland) (Lab)
The past week has been a momentous one for the Parliament, as we begin to exercise powers devolved under the Scotland Act 2016. Labour has concerns about the bill; nonetheless, I am pleased to confirm that we will support its general principles.
As members have said, we owe particular thanks to the 119 individuals and organisations whose detailed advice and guidance led our considerations. I am also grateful to the committee clerks, who aided our stage 1 proceedings on what will be a landmark piece of legislation.
I am humbled by the opportunity that members of this Parliament have today as we set out to build a new social security system that is founded on dignity and respect. Our decisions and the improvements that we make will be critical to improving the lives of disabled, sick and elderly Scots up and down the country for years to come. We have only one first go at this, so it is vital that we get it right—not for the Government or for members, but for the 1.4 million people who will come to rely on the system. For all the statistics, legislative innovation and debate in this chamber, the public—those who rely on the system—will measure our progress against the cruel and inhumane system that currently exists and look to how we use our new powers to work to eradicate poverty.
At the end of the summer, Labour published its response to the bill. We highlighted concern about the risk of placing so much in secondary legislation, and we said that the bill had failed to live up to some people’s expectations. Those were fair comments then, and we look forward to improving and strengthening the bill in the new year, but there has been welcome movement, which means that we can proceed together.
The committee’s report reflects the evidence that we heard about the imbalance between primary and secondary legislation and reiterates that concerns must be addressed in “key areas”: the fundamentals of accountability and scrutiny; the offences that the bill creates, about which there are very serious questions; and the redetermination system, which echoes the discredited UK system and could be a barrier to justice.
It Is welcome that the minister has set out her intention to lodge amendments on a form of superaffirmative procedure and statutory independent scrutiny, thereby accepting the arguments that have been made since the summer and the committee’s recommendations.
There has also been movement on independent advocacy, with the acceptance that individuals should have a right to support to help them to get the most from the system. The work of the Scottish Independent Advocacy Alliance and others has been crucial to that shift, and they should be encouraged by their success.
One of the most reassuring messages that the committee heard was that the innovative approach of including guiding principles in the bill is the right one. During an evidence session, Judith Robertson, from the Scottish Human Rights Commission, reminded us of the
“threat of a good example”.—[Official Report, Social Security Committee, 21 September 2017; c 33.]
She challenged us to enshrine the right to social security in the principles. In acting on that challenge, we would make the bill a world-leading piece of legislation. Clarity of intention would flow from it, creating a backstop in relation to unintended consequences.
I do not have time to run through every aspect of the bill or every improvement that we will propose. Ahead of the Christmas break, Labour will work to ensure that opportunities are not missed in the bill.
I was one of the minority of committee members who refused to accept that the bill should not provide for a ban on private sector assessment. I have instructed the legislation team to devise an amendment that could give legal effect to such a policy. The minister has made it clear that her door remains open; I trust that she will reopen discussions on the measure.
I am also one of the minority of committee members who do not accept the recommendation on redetermination or the Government’s view in that regard. Pauline McNeill, Alison Johnstone and I regard the two-stage process as a barrier to justice. Such an approach is one of the worst vagaries of the current system. We will work to change the bill in that regard.
Take-up, uprating and adequacy of payments will be fundamental to a better system. We welcome the Government’s agreement that the new social security agency should have a duty to ensure take-up, but we should go further. Last week, an inflationary uplift in the higher rate threshold was announced. If such an approach is good enough for half a million top earners, social security recipients, too, should expect uprating to be guaranteed in law. Taking a far more holistic, no-wrong-door approach to how we help people get what they are due would go so much further, so we intend to push for the duty to be strengthened and matched with a mechanism to guarantee annual uprating.
Presiding Officer, you will hear this afternoon that we have a fair amount of work ahead of us. Underlining that work should be our ambition to create a better system than that which exists today. I hope that we come back to that challenge—to go further than others—throughout this afternoon’s debate. Over the coming months, we must embrace that first chance to get things right and make the bill the landmark legislation that the people of Scotland expect.
The Deputy Presiding Officer
We come to the open debate—speeches of six minutes, please.
15:25Ben Macpherson (Edinburgh Northern and Leith) (SNP)
I, like others, very much welcome the debate on the bill at stage 1. Others, from the convener of the Social Security Committee to the members who have spoken so far and the Minister for Social Security, have mentioned that the process the committee has gone through—of hearing the evidence and deliberating on the bill—has been very constructive. That process demonstrates the Parliament at its best—listening to stakeholders and to those who engage with the current social security system and thinking of their aspirations for how we can exercise the powers of this Parliament to build a new social security system for the future.
I thank the clerks and all those who gave evidence, particularly those who gave evidence of their experience of the system. I notice that some of those who gave us their insight are in the public gallery today. From the evidence that we heard from them, and from written evidence, it was clear that there are problems in the current system. Through the bill, we have a huge opportunity—with the 15 per cent of social security spending, with the 11 benefits and with the framework that the bill will create—not only to build a new system based on the social contract, but to reimagine and reinforce the idea of social security and what it means.
That is a collective process and a collective investment in ourselves and each other. For me, a big part of that relates to the principles in part 1 of the bill, on which the committee took a lot of evidence. I welcome the Government’s response to the committee’s stage 1 report, which states that the principles are about defining
“the nature and ethos of the new”
social security system. That approach has been welcomed warmly and enthusiastically by stakeholders. It is an important part of the bill.
The principles as they are currently drafted have been welcomed, but there has also been a recognition that new principles would be of benefit. I am glad that organisations such as Advocard in my constituency and others have successfully persuaded the committee and—I think, based on its response—the Government to bring forward a new principle around the right to advocacy. I think that that is the right thing to do.
I pay tribute to the Poverty Alliance, which proposed the addition of a principle that
“Social security has a role to play in the eradication of poverty in Scotland.”
I suggest, instead, that the bill should perhaps state that the Scottish social security system should have a role to play in the eradication of poverty in Scotland. That would clearly attach it to the point that this is the Scottish social security system, as defined in section 7; given that that system will account for just 15 per cent of the social security spend in Scotland, it can have only a limited impact on addressing poverty, which of course we all want to do.
I could say a lot more about the principles, and there have been interesting deliberations so far about the legal status. I completely agree with the position that the simple language of the principles is important, because it makes them accessible; Ruth Maguire rightly pointed that out. The Government, in its response to our report, makes an important point about how the charter will translate the principles into “specific, tangible commitments”. At stage 2, I think that the committee needs to come together with the Government to consider how we can ensure that the relationship between the principles and the charter, and what they mean for people, is very clear.
In the time that I have left, I want to address a point that was raised in written evidence but was not heavily elaborated on in our oral evidence sessions. It relates to part 4 of the bill, which is on discretionary housing payments.
Given that housing and the fear of homelessness come up in the context of social security at the surgeries that I hold and are mentioned regularly in deliberations in the chamber and elsewhere in the Parliament, DHPs play an important role. The Scottish Government has committed to them, and they are used by local authorities to make a meaningful difference on the ground in mitigating the bedroom tax or dealing with issues around the benefit cap or universal credit and the challenging circumstances that those aspects of UK Government welfare reform have put individuals and families in. In my view, as we move to stage 2, we might want to consider the possibility of putting discretionary housing payments on a statutory footing. They could continue to be provided by councils, as they are at present, but we could also consider including in the bill their being provided by the Scottish Government. I will look to probe that as we move towards stage 2.
The whole notion of social security is based on the premise that it is better to give people a hand and to help our fellow citizens than it is to have to pick people up off the floor. The new social security system that we are building together will do that in a more effective and humane way than the current system does. The building of a new system for the 15 per cent of social security spending that we control is an important move, and I absolutely support the general principles of the bill.
15:32Jeremy Balfour (Lothian) (Con)
I remind members that I am in receipt of a PIP.
As others have done, I welcome the bill, and I thank the clerks and all those people who gave evidence to the Social Security Committee. However, I think that there is a long way to go at stages 2 and 3, because the bill leaves a lot of uncertainty for people out there who are on benefits or who might go on to benefits in the future.
I understand that the Government’s purpose is to deal with many matters in the regulations that will be produced in due course, but the uncertainty to which that gives rise means that somebody like me who is in receipt of a PIP does not know whether they will be in receipt of a PIP in two, three or four years’ time. The people I talk to tell me that that creates uncertainty with regard to planning and what is going to happen next. That is why, when it comes to stage 2, we need to consider putting more into the bill instead of leaving things to regulations. That way, we will be able to give people clearer guidance on what they can expect in the future. I invite the minister to give an indication in her summing up of when the regulations for the various benefits—particularly those that relate to the DLA, the PIP and the attendance allowance—will be laid out.
The second area that I want to discuss is one that I have previously mentioned in the chamber—the role of the new agency and how it will work. We could have lots of interesting discussions about principles, charters and objectives, all of which are important. Ultimately, however, what is important is how the individual who claims a benefit is treated. There is still a danger that people think that the new agency will be cuddly and soft and will never say no to anyone, but it is clear that it cannot play such a role—its role will be to decide whether someone should get a particular benefit. I will elaborate on that later in my speech.
I am concerned that we might be throwing the baby out with the bath water. For some people, the face-to-face assessment is very beneficial because they have time to talk to somebody face to face and explain what their disability is and how it works. I accept that the present system has its failings, but to say suddenly “We’re never again going to use any private contractor for face-to-face assessments” leaves us, first, with the practical issue of who will do such assessments and who will pay for them; and, secondly, with the issue of whether we will simply rely on medical and professional evidence.
Jeane Freeman
There is no contradiction between saying, as I have done repeatedly, that we will not use private contractors to deliver one-to-one health assessments because that would be incompatible with the system that we are setting up, and having one-to-one health assessments. Mr Balfour assumes that there will be no such assessments, but I am sure that he will remember my saying in committee that if an individual wishes to have a one-to-one health assessment, it will of course be provided. However, as I have said repeatedly, we will have far fewer such assessments and we will not work on the current presumption of the UK Government that every individual requires a one-to-one assessment, because the information that we will need in order to make the right decisions the first time will already exist in public records that the individual can choose to provide us with.
The Deputy Presiding Officer
I will give you your time back, Mr Balfour, as that was a long intervention.
Jeremy Balfour
Thank you, Presiding Officer.
There are two issues in what the minister said. First, I question whether all the medical evidence that people will require will be there. I ask the minister to go back and look, because about four or five years ago the tribunal service asked for all medical evidence to be provided when a tribunal sat. However, even with that medical evidence before a tribunal, it was found that face-to-face questioning still had to take place. I therefore challenge that presumption by the minister. Secondly, what she said still does not answer the question of who will do the face-to-face assessments. Where are the people out there who have the skills to do that? We need more information on that.
I turn quickly to the issues of advocacy and advice and assistance, because I believe that those are two separate things. Some people will require advocacy, some people will require advice and assistance, and some people will require both. We need to make it clear at stage 2 that there is a distinction between advocacy and advice and assistance, because they are different and will need to occur at different times. In addition, to return to my view of the new agency, we must ensure that both advocacy and advice and assistance are independent of the agency and the Government, that they are properly funded and that people are signposted towards them. Some people will need advocacy through the process, some people will need advice and assistance through the process, and other people’s needs will vary between them. The bill is unclear when it comes to making that distinction between advocacy and advice and assistance.
I welcome the bill, but I think that it can be improved by amendments at stage 2.
15:38Sandra White (Glasgow Kelvin) (SNP)
As other members have done, I thank the Social Security Committee’s members and its clerks for the work that they carried out on the bill. I also thank the many groups and individuals—as has been mentioned, some are in the gallery—who took part in the many committee evidence sessions, round-table discussions and other meetings. Without their willingness to get involved, we would not be at stage 1 of this historic bill.
The bill puts people at its heart, with the principles that social security is a human right and that people should be treated with dignity, fairness and respect. It is important to emphasise that. The Scottish Government must also be thanked for the way in which it has approached the bill. It has been proactive and has consulted organisations and individuals from day 1. I thank it for that, as, I am sure, other members do.
The ethos of the bill is based on dignity, fairness and respect, but the bill must also deliver a safe and secure transfer of benefits to the 1.4 million people who rely on them. I say to Adam Tomkins, with regard to his contribution to the debate, that we must remember that the bill is for the 1.4 million people who rely on benefits. As we go through the stages of the bill, we must keep that in mind. We cannot rush things through, which would result in people being missed out. We must make sure that we deliver with the bill. That has been said from the very beginning, and we have to keep it in mind as we go through the bill’s stages.
The minister replied to Jeremy Balfour, but I want to say to Jeremy Balfour that we must ensure that the people from whom the committee heard are listened to. One of the gentlemen from whom it heard is in the gallery today: Brian Hurton suffers from the degenerative eye disease keratoconus—I hope that I have pronounced it correctly—which is a condition that will not improve. He and the many others who gave evidence and who have conditions that will not improve or that will deteriorate should not be subjected to a never-ending round of giving evidence to medical assessors. When we look at the evidence, we see that some assessors are not even medical people. We must make sure that people do not have to go through that after the Social Security (Scotland) Bill is passed. The never-ending medicals and appeals are very debilitating—not just for people’s physical health, but for their mental health. I have faith that the committee, Parliament and the Government will make sure that the new social security agency will ensure that people are not put through that process, which came up in evidence time and again. I thank Brian and others who came forward to give us their evidence.
I want to raise a number of recommendations from the stage 1 report; they have been touched on in previous speeches. The issue of primary and secondary legislation has been raised by many groups, and is mentioned in correspondence that was received by the committee and in its report. I remember that it exercised the minds of committee members. My view at the time was, as I mentioned, that a balance needs to be struck. My concern is that too much detail in the primary legislation, before design or testing have been undertaken, could lead to mistakes, thereby making the provisions in the bill undeliverable. It struck me when reading papers on the bill that changes to rectify such mistakes would need to be made through primary legislation, which is a very long process that could delay implementation of the new social security system. That is something that committee members and Parliament need to consider.
I am pleased to note that the Scottish Government has said that it will lodge amendments to the bill, including on use of the superaffirmative procedure for subordinate legislation and on the establishment of an independent scrutiny body, which will be important.
I want to touch on two other areas. The first is the principles of the bill and the fact that the Scottish Government clarified their legal status. I am concerned about the ethos of the bill, which is about dignity and respect. If I go out and speak to people and ask them about dignity and respect, most know what the words mean. I am concerned that if we start bringing in lawyers and so on to clarify what “respect” means, we will lose from the bill the transparency and the plain speaking that people expect and to which they are entitled. The committee’s members, and I, will consider the matter before stage 2.
The second point is about the charter. It must be available in all languages and in places such as libraries, so that people know exactly what they are entitled to. People’s entitlement and knowing that they are entitled to it is the main purpose of the bill. The charter must be plain, simple and transparent and be available for people to reach out and pick up.
15:44Johann Lamont (Glasgow) (Lab)
As members may notice, I have a seasonal lurgy to look forward to as Christmas appears. I warn you that my voice may not last until the end of my speech. Some people might regard that as a blessing. [Laughter.] Exactly.
I welcome the opportunity to participate in this important debate. I am not a member of the Social Security Committee, but I am very grateful for its stage 1 report and for its highlighting of issues in it. I have enjoyed reading about them: its focus is on the key issues rather than on the generalised discussion about social security and powers coming to the Parliament, although such discussions have sometimes been lost in their own right, and have become significant for other issues.
I am also grateful for all the briefings that have been provided, including briefings from groups that give voice to people who will be most directly affected by the bill’s proposals. We should not understate our responsibility for getting things right in the eventual legislation.
It is important to recognise how significant the bill is in the real world. Decisions that are made in Parliament will have a direct impact on individuals and families across our communities. An understanding of the purpose of social security is at the heart of the matter. It is a mark of our decency as a society that we have a social security system that works and which recognises that any one of us might at any time need support.
Adam Tomkins created a false division when he talked about taxpayers being treated with dignity and benefit recipients being treated with dignity. They are often the same people: we should understand that the benefits system is not for people “over there”, but is potentially for all of us at some time in our lives.
I regret that the UK Conservative Government chose to divide people into workers and shirkers, that it created changes in the social security system that are predicated on demonising people who are on benefits, and that it created a complexity that often puts up insurmountable barriers to people who seek the support to which they are entitled. That is unforgivable, but it is also short-sighted and irrational.
The debate and the briefings that we have received reflect that complexity, and take us beyond our comfort zone of the general principles, to test the bill’s workability and effectiveness for people who depend on benefits. That is why it is so important to have greater parliamentary scrutiny than that which is currently proposed; not to give MSPs more time to talk about the issues but to ensure that the proposals are shaped by the people who have lived experience of the process, people who can perhaps see the unintended consequences, and people who understand how aspiration has to be translated into budget choices. We need to see the visibility of the process in order to ensure that we get it right, and it is not good enough, even using the superaffirmative procedure, to have what still remains a “take it or leave it” approach in the parliamentary process. I would prefer an open and transparent role for all the organisations and groups in developing proposals, which can then be decided on.
There are significant issues to do with discrimination that should be explored further. We note what has been said about the difficulties of people with learning disabilities in ensuring that they secure their rights, and we know that many people with learning disabilities are living longer. That is a blessing for all of us, but it means that many parent carers continue to care into very old age. That should be respected, so we should look at age discrimination, too.
We also know that many disabled people are denied the opportunity to achieve their full potential—to work, to study and to play their part in society—because of discrimination that they experience in the social care system. We know that, as a direct consequence of cuts to local government, there is a double whammy for people who need care and people who provide unpaid care. The more services are reduced, the more unpaid care expands. I believe that we all acknowledge what unpaid carers do, but the social security system should, through the bill, result in real changes in their lives.
Equally, the capacity for groups to help and support people through the system—whether through advocacy or whatever—is being limited by the same cuts. We need to see the Government’s proposals in that context.
I understand that the Scottish Government does not have responsibility for all of the social security system, and I welcome the ways in which it has highlighted the issue of dignity in the system, but we need to see social security not just in its social context but in its economic context. The Scottish Government can act in that broader context.
We know that many people who live in poverty are in work. They are often caught in precarious work with limited guaranteed hours and lack of certainty about when they will work. That can lead to chaos in managing family budgets, childcare or care for other people. It is essential that we recognise that for the many people who may, in some circumstances, give up work altogether. The Scottish Government can play a role in creating more secure work and in stopping such jobs being defined as “positive destinations”, when they are nothing of the sort.
I am interested in what dialogue the Government has with businesses that might sign the business pledge about recognising their role in supporting people to work. I am also interested in the dialogue that it has with businesses that get the small business bonus about what is expected of them in relation to rights at work and providing security, because lack of job security often leads to people falling into a situation in which they are unable to manage their budgets effectively.
We know that social security does not stand separate from the economy, and we know that it is not simply about other people. It is about fairness, greater equality and opportunity. If we are to get it right, we will need to recognise not only the needs of the people who seek support at any given time, but the benefits to us all in ensuring that we have an economy and a society that create greater equality and opportunity for everyone.
15:50Alison Johnstone (Lothian) (Green)
The bill offers an opportunity to reject decisively more than two decades of welfare reform, and to show that a different way of providing financial support to people who need it is possible.
We must seize this opportunity, because the UK approach is leaving tens of thousands of Scots not knowing whether they can put food on the table for their families. In many cases, they cannot. Figures from the Trussell Trust show us that in 2016-17 it issued 146,000 three-day emergency food parcels in Scotland—48,000 of them to children. Before so-called welfare reform, food banks were not part of everyday life in Scotland.
We must seize this opportunity because, under the current system, households—almost all of them with children—are, because of the benefit cap, told that they have been assessed as needing a certain amount of money to support them, but the amount is arbitrarily capped, in the full knowledge that it is not enough to meet their needs.
We have the opportunity to restore dignity and respect to our social security system. We have the opportunity to reclaim the idea that when we provide a good reliable income for the most vulnerable people in society, everyone benefits. The bill makes a reasonable start towards those goals, but there is much more to be done.
Recognising that social security is a human right is absolutely the correct thing to do, but I am not convinced that that laudable ambition is followed through throughout the bill. I, too, draw the minister’s attention to the charter. One might expect it to be a charter of rights, but it seems to be intended to be more of, as Citizens Advice Scotland has put it, a “performance framework” for the new system. The charter appears not to confer any rights on benefit applicants and recipients. Without a clear statement of rights and a system of redress, should those rights not be respected—
Adam Tomkins
Does Alison Johnstone think that the charter should be legally enforceable in Scottish courts?
Alison Johnstone
One thing on which we can agree is that the status of the charter is entirely unclear. I hope that the Government will confirm—perhaps in the minister’s closing speech, or during the bill’s passage—exactly what the status of the charter is. At the moment, it seems to be fairly meaningless, and the Government cannot claim that the system is built on social security as a human right.
Another aspect of the bill that undermines the rights-based principle of the new system is the proposed redetermination procedure that claimants can use to have a benefit decision reconsidered. The Scottish Government has made some improvements, but in one important respect it duplicates the UK mandatory reconsideration process by creating the same two-stage appeals process that the UK Social Security Advisory Committee in a report last year said
“has deterred some claimants from pursuing disputes when they would have done so under the previous system and would have been successful on appeal.”
The introduction of mandatory reconsideration was intended to achieve—and has achieved—a huge reduction in the number of benefit appeals making it to tribunal, compared with benefits for which MR does not apply. Data from the advisory committee shows a massive 95 per cent decline in jobseekers allowance tribunal appeals since MR was introduced. At the very least, the Scottish Government must explain what strategy it has to stop that from happening again under its proposed plans for redetermination. I implore the minister to listen again to the huge number of organisations that have made submissions to the Social Security Committee arguing that reconsideration will prevent people from accessing justice in the new system.
A few weeks ago, Parliament passed into law legislation that sets challenging new targets for reduction of child poverty. At the urging of Opposition parties, the Child Poverty (Scotland) Act 2017 makes an explicit link to the use of social security, particularly the new devolved social security powers. Now that we have done that, the Government must use those powers to meet the targets.
That being the case, it is surprising that the reduction of poverty is not one of the key principles of the new system. If social security is not about reducing poverty, what is it for? I am glad that the stage 1 report urged the Government to amend section 1 of the bill accordingly. I will lodge an amendment to that effect at stage 2.
Driving up access to benefits will also be key. The Greens will lodge or support amendments on a statutory right to benefits advocacy and to advice services. Those are different services: some people may require one or the other, or both. We also need to consider introducing a ministerial duty to set targets for benefit take-up.
Before closing, I want to discuss uprating of benefits in line with rising costs. Sheffield Hallam University estimates that between 2015-16 and 2020-21 freezing of benefits and uprating of benefits below the rate of inflation will cost 700,000 Scots households more than £450 annually, which is a £300 million cut to benefits each year. That is far and away the biggest benefit cut that is being imposed by the UK Government. Therefore it is disappointing that the bill will currently do nothing to ensure that a future benefits freeze could not easily be imposed by a future Scottish Government. I acknowledge that the current Scottish Government has pledged to uprate disability benefits with inflation. Given the number of people who are claiming them, that is a serious and welcome commitment, but it is only a pledge and there is nothing in the bill to prevent its not being honoured by a future Government. The bill is based on dignity and respect. However, we cannot have those if the benefits are of inadequate value. To have benefits that could diminish in value year on year is not respectful and does not afford dignity.
In conclusion, I believe that the Scottish Government has the very best of intentions, and I acknowledge that it is setting up a genuinely new system rather than simply administering existing UK benefits. However, in doing so, some mistakes have been made. The bill must contain stronger rights for claimants, a better system of appeals, a commitment to reduce poverty and a mechanism to uprate benefits. As William Beveridge said in the 1942 report that set up much of the social security system that we have:
“Now ... is a time for revolutions, not for patching”.
Given all that the social security system and its users have had thrown at them in recent years, we now need a radical, rights-based and forward-looking system. I look forward to lodging amendments at stage 2 and to working with others to help to make that a reality.
The Deputy Presiding Officer
I was hoping that it would be quite a short quote from Beveridge.
15:57Alex Cole-Hamilton (Edinburgh Western) (LD)
I start by referring members to my entry in the register of interests: I am the joint owner of a rental flat in Edinburgh for which I receive direct payments of housing benefit from socially renting tenants.
I begin by thanking the Social Security Committee for its work. It is not a committee on which Liberal Democrats have a representative, but we have been paying close attention to its work and the unanimity of acclaim that the stage 1 proceedings will receive tonight is testimony to it. Today represents something of a coming of age for the Parliament, so I am proud to lead the debate on behalf of the Scottish Liberal Democrats this afternoon.
I also thank the Scottish Government for the inclusive approach that it has taken to developing the legislation and for the access that the minister has afforded Opposition members from the start to discuss areas of both common ground and disagreement, such that we will have no hesitation in supporting the bill through stage 1 tonight.
Constructing a social safety net is one of the most important tasks entrusted to any Administration that is empowered so to do, so we do our constituents a disservice if we make it into a political football. We must come to the task soberly, in full cognisance of the social impact to which the right decision can lead or the social cost that might result from error.
When considering the role of the state in providing social security, as Alison Johnstone has just done, I always draw upon the words of William Beveridge, that great Liberal, in particular these ones, which I have reminded members of before:
“The State in organizing security should not stifle incentive, opportunity, responsibility; in establishing a national minimum, it should leave room and encouragement for voluntary action by each individual to provide more than that minimum for himself and his family.”
For me, that precept should form the touchstone of all our efforts in this regard. All our efforts to establish a new Scottish social security system should have the principles of social mobility at their heart.
As parliamentarians, it is not often that we can start from square one, but we have a clean slate here, which is well worth remembering, because it means that we have an opportunity to improve how welfare is managed and to improve the lives of people in this country. It is essential that we take smart decisions to tailor our social security policy and its agency to the needs of our constituents and our country and, above all, that we do so in a manner that is grounded in international human rights law, which we have heard much discussion of today.
I expect that we have all heard shocking and heartbreaking stories about how delayed payments and changes to or errors in the roll-out of universal credit have caused enormous unnecessary stress for people. In many cases, fundamental human rights have been denied. We must set our aim far higher.
Johann Lamont
I am interested in the member’s view in relation to rights. Does he think that it is possible for someone to exercise a right that has not been legally defined?
Alex Cole-Hamilton
The fundamental protection of human rights lies in people’s access to justice, which we do not have in many walks of life in this country; so no, I do not think that that is possible right now.
We are dealing with a form of Government intervention that has been designed to confuse and deter. Unnecessary bureaucracy has been adopted precisely to dissuade applicants from going any further and the eligibility assessments have stripped deserving citizens of their benefits due to misapplication of the rules.
The 1.4 million Scots who will rely on the benefits that we construct are looking to us to do things differently. They will ask whether the culture around the new benefits will change for the better and for things not to be left up to the interpretation of officials. Today and at subsequent stages of the bill’s passage, we owe it to them not to leave those questions unanswered.
The process has been confusing and, sometimes, degrading, so I whole-heartedly support the calls from a vast number of stakeholders for claimants’ right to access the services of a trained independent advocate to guide them and speak for them throughout the process. I also support the call of the Scottish campaign on welfare reform to set out as much as possible of our new social security system in primary legislation, so that future changes that successor Governments might seek to make through regulations have to undergo full parliamentary scrutiny through the superaffirmative procedure.
In that same vein, I recognise the importance of making the mechanism for uprating the benefits a creature of statute, as Alison Johnstone said. We must always plan for less enlightened times and, by locking into law the right to a meaningful uplift of the benefits, we will offer a level of protection to some of our most vulnerable citizens.
I am grateful to the Scottish Government for its sensible and progressive approach to the application of the new powers, but I also wish to sound a note of caution. On a number of occasions, I have heard the minister and her colleagues state that it should not fall to this Government to clear up the messes made by Westminster. I have some sympathy with that point of view, but it cannot be our only response. In some cases, we have the power to help people through the new powers that this Parliament has been afforded, and if there are clear areas of injustice that are within our reach to rectify, we should consider so doing—whether the state pension inequality suffered by women born in the 1950s or the loss of up to 18 years of benefits by those who are widowed at an early age. If the system is failing those people and we have the power to fix it, we must consider doing so.
I will finish on a note of consensus. This coming of age for our Parliament is welcome and will allow us to turn the rhetoric that we often hear in the chamber into meaningful action to deliver assistance to the millions of our fellow Scots who look to us for help.
The Deputy Presiding Officer (Linda Fabiani)
We are a wee bit pushed for time, so I ask members to stick to their six minutes.
16:03George Adam (Paisley) (SNP)
As a member of the Social Security Committee, I was going to start by saying that I was a bit surprised at how downbeat the debate has been so far but, apart from the bit in the middle of Mr Cole-Hamilton’s speech that I disagreed with, I thought his idea of the Parliament coming of age was the way that we should look at this—we stand at the dawn of a new day for our Parliament.
I am very pleased to speak in this debate, which for me is about not just social security but an opportunity for MSPs to make new decisions, implement new procedures and put people at the centre. The devolution of 11 social security benefits through the Scotland Act 2016 is the first time that we, as parliamentarians, have the power to make real changes to the welfare system, demonstrate our strong desire to do things differently, put respect and dignity at the top of the agenda and ensure that the system does not make life harder for our constituents.
The new social security system that the Scottish Government proposes is a big leap forward and paves the way for using the devolved powers over non-income-related disability benefits, including disability living allowance and personal independence payments. We know that the current Westminster model is seriously flawed and about the difficulties involved. The bill heralds a material change in the social responsibilities of the Scottish Parliament. It is a significant moment for Scotland and in the history of devolution, and an important step towards our future growth as a country. The Scottish Government really has a chance to change things for the better and I am confident that the bill will live up to that aim.
Putting dignity and respect at the heart of the bill is of the utmost importance, and those principles are embedded throughout, whether in how entitlement to benefits is determined, in a more just review and appeals system, or in the decision to remove the private sector from disability benefit assessments. The often appalling assessment process is the subject of the most frequent complaints that I hear in my constituency office and I am repeatedly shocked when I hear of the impersonal, cold and calculating way in which my constituents are treated by the DWP. Many come to my office after they have been left confused, frustrated and distressed following their assessment—above all they are left feeling as if they have not been believed or taken seriously. That will not be the case in Scotland.
The bill clearly outlines the seven principles for the social security system and underlying them all, each step of the way, is the Scottish Government’s belief that social security is a fundamental human right. The message of the bill is, “We believe you, we value you and we will take you seriously.” The bill also proposes the creation of a social security charter, which will put that belief into practice. For me, one of the most important aspects of the charter is that it is co-produced with people with disabilities. It is easy for parliamentarians to talk the talk, but the Scottish Government has gone a step further and has actually asked our constituents to join us in creating the legislation that will affect them.
The establishment of the experience panels has given people from all walks of life a voice, and the Government has listened, learned and then implemented. While our counterparts down in Westminster routinely ignore the stream of advice and evidence from stakeholders and claimants alike and are determined to push through the abysmal universal credit system and abhorrent rape clause, no matter the cost to people’s physical and mental health, the Scottish Government is actively seeking suggestions and advice from those who are in receipt of social security right now and from those who are experiencing difficulty in navigating the minefield that is the DWP.
The Government’s recent survey of how experience panel members view the current UK system showed, shockingly, that 60 per cent of respondents rated their experience of the current benefits system as “poor” or “very poor”. That is clearly the side effect of a Westminster Tory Government that is quite happy on its path of austerity and welfare cuts. All I can say is that Westminster might be happy to ignore people, but this Government wants to meet them, hear their story and do all that it can to make the process easier. That is what it really means to put people at the heart of policy.
Once ministers create the charter, the bill will also place an important duty on Government to review policy and to update the Parliament regularly on what has been done to meet expectations and how the system has performed. The bill makes it clear that the consultation activities that have been undertaken to date by no means mark the end of the Government’s engagement with stakeholders and claimants. Unlike the one at Westminster, the Scottish Government fully intends to continue listening, with a view to understanding people’s issues and taking action when it is required.
The latter sections of the bill deal with the framework of the system, the type of benefits to be delivered and how they will be rolled out. One of the top priorities is the safe and secure transfer of the 1.4 million people who rely on the benefits system. Every single one of us has no doubt heard horror stories about the chaotic roll-out of universal credit. One of the main complaints was about the hardship that people were suddenly plunged into by having to wait months for their first payment. The Scottish Government has made it clear that we will have a Scottish agency delivering devolved benefits by the end of this session of Parliament. The timetable and process that have been set out will ensure that we get delivery right, so that those who depend on this vital support do not miss a payment.
The bill is first and foremost about people, and I hope that I have outlined how our Scottish Government has planned to do things differently. However, we are talking about only 11 benefits, and my preference would be for much, much more than that. The most important thing is that the Scottish Government is working to produce a system that is people centred. In this bill and at this time, we have the opportunity to make real changes in people’s lives. Let us ensure that we all remain focused on that as we progress the bill further.
16:09Alexander Stewart (Mid Scotland and Fife) (Con)
I am pleased to have the opportunity to speak today on a bill that is rooted in the devolution of social security in Scotland. I am not a member of the committee but I pay tribute to all who took part by giving evidence and supporting the committee in its endeavours.
As Adam Tomkins indicated, we are supportive of the general principles of the bill, which grants legislative competence to the Scottish Parliament in respect of a number of benefits. While supporting those general principles and wanting the bill to work in the interests of everyone in Scotland, we do have some reservations on the specifics.
The bill is based on principles on which we all agree—dignity, fairness and respect. We all expect dignity, fairness and respect for all individuals who require our support and assistance. However, in determining the strength of those principles as part of the bill, it is important to understand how they will work in practice.
Scottish ministers will have a duty to prepare a social security charter and to report to Parliament annually on how the system is performing. However, the bill does not place ministers under a duty to abide by the charter, and that needs to be addressed if the provision is to be included.
Furthermore, it is absolutely right that we take a human rights based approach, but we do not know exactly who will be entitled to what under any of the devolved streams of social security assistance. That carries the risk of the bill not living up to expectations as we set a new path. That is particularly important for a bill under which Scottish ministers will be given wide-ranging powers to define rules about eligibility and to set out in secondary instruments the figures for how much claimants are likely to receive. Further to the idea of managing expectations, Citizens Advice Scotland has also pointed out the importance of clarifying rules around residency so that who is eligible for the devolved streams of social security and what happens when people move over the border is understood.
As has been touched on, it is absolutely vital that the bill provides an acceptable level of scrutiny, particularly when stakeholders have consistently raised concerns about the balance between primary and secondary legislation. While that will allow the Scottish Government the flexibility to adapt the rules depending on how the system develops, the balance should be examined in greater detail during the bill’s passage so that any secondary legislation is adequately scrutinised.
The Social Security Committee has been clear that it has some issues in relation to scrutiny as there is no provision in the bill for a superaffirmative procedure for, or independent scrutiny of, regulations produced under it. That point was echoed by Citizens Advice Scotland, which has called for the new system to have an equivalent body to the UK Social Security Advisory Committee. I look forward to seeing that develop at stage 2.
There is a need for absolute clarity in all future political debate about social security, particularly when we are talking about a bill that gives us the opportunity to transpose powers to Scotland. Although there was scope to do so, it is worth noting that there is no provision in the bill to create new benefits beyond what is covered by the current forms of assistance. As Inclusion Scotland and Poverty Alliance pointed out during the evidence sessions, the bill lacks clarity on how the power to top up reserved benefits will be used. That is an important point. Those organisations understand, because they work with affected individuals. The Parliament needs to take on board their opinions.
If we are to have a meaningful debate, we need to be honest about what powers the Scottish Parliament now has. The bill will be the official marker of the power Scotland now has over social security, as will the system that we endorse.
I reiterate my support for the Social Security (Scotland) Bill at stage 1. However, although we all agree on the general principles of the bill, I hope that the Scottish Government will reflect on the points that have been raised by my colleagues today. We are required to support the social security system and we have an opportunity to set standards; we cannot get that wrong for the individuals who require our support. They want us to make sure that we get it right for them and we need to do so. Let us make bold choices and deliver for everyone as the bill progresses to stage 2. I look forward to that.
16:15Ruth Maguire (Cunninghame South) (SNP)
This historic bill establishes the first UK social security system based on the principle that social security is a human right. It is heartening to note the unequivocal support from across the Parliament and from external stakeholders alike for the broad principles and aims that underpin the bill. They are principles and aims that we should all be proud of and which are worth reiterating. The bill seeks to create a society in which those in need of help are supported and not demonised; a society in which our social security system is run for the people and not for profit; and a society in which every person, with no exception, is treated with dignity and respect.
The bill will enshrine those principles in legislation and further establish Scotland’s reputation as a nation that values compassion and empathy and that rejects selfishness and demonisation when it comes to how we treat those in need of a little extra support. When the bill passes stage 1 today, it will mark a hugely positive step forward. There is much to celebrate and to feel optimistic about.
However, at the same time—I regret having to point this out, but it is important to do so—we cannot lose sight of the challenges that remain and the limitations that exist upon the powers of this Parliament. When we discuss social security-related issues from child poverty to disability rights, the regrettable reality is that Scotland is, more often than not, acting with one hand tied behind its back, with UK Government policies taking things backwards as we legislate to move forwards. We must also remember that 85 per cent of welfare powers will remain under Westminster control and that even the powers that are being devolved are being impacted by cuts at the UK level.
I emphasised that point back in November 2016, when we first debated the future of social security in Scotland. If it was an important point then, it is even more important today because, although the bill will make a hugely positive difference to the lives of people in Scotland, it will not—because it cannot—solve all the issues around social security. That is not to detract from the significant difference that the bill can and will make, but we need to remind ourselves to keep a broader perspective on the context in which we are working towards our aims.
Although the bill’s fundamental aims and principles are not in question, in taking evidence, the committee heard concerns from stakeholders about some of the details at this stage, which we have highlighted in our report and which the Government has responded to. The complex issue of the balance of primary and secondary legislation was raised by stakeholders who were concerned about the Parliament’s ability to scrutinise changes. One Parent Families Scotland, for example, argued that more detail in the bill would
“ensure that the legislation is future-proofed so that forthcoming governments can be held to account over any planned changes”.
I appreciate that the Government is considering the issue of that balance carefully, and I acknowledge the risk that, if too much detail goes into primary legislation before design, development and testing have been undertaken, that could lead to costly mistakes or undeliverability. Nevertheless, in everything that we do, our top priority must be the safe and secure transfer of benefits to the 1.4 million folk who rely on them, and we must be mindful of anything that could delay or otherwise adversely affect implementation.
I am glad that the Scottish Government agrees with the committee that regulations should set a time limit within which the agency is required to complete redeterminations. With regard to the two-stage appeal process, the committee accepted that the agency should have the opportunity to correct errors before a case goes to appeal. Although it is right that the focus is on getting the initial decision correct, people’s previous experience of the DWP system means that it will be even more important to actively seek out any part of our process that might discourage people or be a barrier to their appealing and getting what they are entitled to. I therefore welcome the Scottish Government’s commitment to gather further evidence on that and make adjustments if needed.
The issue of social security offences is particularly sensitive, and I support calls for the bill to be clarified in relation to offences and investigations. I do not think that the bill reflects the Scottish Government’s policy statement, and I believe that further consideration is required, particularly of the provisions on “failure to notify”. I ask the Scottish Government to reflect carefully on the evidence and to consider amendments at stage 2 to make the bill clearer.
The bill is a landmark piece of legislation for the Parliament and for our nation. It will affect more than 1 million people across Scotland. We must get it right, and committee scrutiny is crucial to ensuring that we do so. It is a privilege to be involved in scrutinising such a significant piece of legislation, and I welcome the Scottish Government’s initial response to the committee’s report, which clearly takes on board the recommendations. I look forward to further work with committee colleagues at stage 2 as we make different choices on social security in Scotland and show that we can create a fairer and more just society when we take matters into our own hands.
16:20Pauline McNeill (Glasgow) (Lab)
The bill to create a new social security system for Scotland is, in my opinion, the most important piece of legislation of this parliamentary session. I agree with other members that it marks a new era for the Scottish Parliament and that we could have life-changing provisions at the end of the process. We have an excellent starting point, which is an intention to depart from the worst aspects of the UK system. We are creating a distinctly Scottish system for the 11 benefits that we will administer, so it is important that we are radical and that the legislation is strong, clear and workable.
I will focus on a few areas where I believe a lot more work needs to be done, beginning with the question of advocacy. I am pleased that the Government has recognised the need for a statutory duty to provide access to independent advocacy, but I want to debate the scope of who will be included in any statutory provision. I am in favour of drawing that provision widely and not narrowly, as might be the Government’s intention, although we have still to hear what that is. I have heard from many advocacy groups that advocacy can be an important aspect of a claimant’s rights and that many advocates have been refused the right to be heard in the assessment process because they do not always have a clear role.
Many people lose out because they cannot navigate the system on their own. From March 2015 to August 2016, the Scottish Government funded four advocacy organisations as part of the welfare advocacy pilot project. Over that period, they worked with more than 1,000 people, helping to provide £2.7 million-worth of benefit entitlements to those people, so the importance of advocacy speaks for itself. According to Inclusion Scotland, independent advocacy is necessary for a substantial proportion of those who will claim Scottish disability assistance.
The second issue that I will address—Ruth Maguire, Alison Johnstone and other members have mentioned it—is the question of mandatory reconsideration and the appeal process. That area of the bill requires considerable reflection to ensure that the process will not prove to be a barrier for claimants. We believe that it should be a one-stage process, which can be achieved by allowing claimants whose application has been unsuccessful to indicate at the outset that they wish to proceed to an appeal.
Until now, mandatory reconsideration has served to block claimants advancing to an appeal. Interestingly, Jessica Burns, a regional tribunal judge, told the committee that the mandatory aspect should be removed. She said that people should
“have the option of asking the agency to think again about the decision, but it should not prevent them from making a direct appeal.”—[Official Report, Social Security Committee, 21 September 2017; c 25.]
That appeal would be to the first-tier tribunal. I welcome the fact that the minister has said that, in the event of the first decision being unsatisfactory, another member of the agency staff will have a fresh look at the decision and that that procedure will be contained in the operational manual. Nevertheless, I want to ensure that it is in the statute, because it is an important feature of the system.
Adam Tomkins
The member has talked about that in committee as well. Has she done or commissioned any research on what the impact would be on our already congested tribunal service if people had an automatic or direct right of appeal without any mandatory reconsideration?
Pauline McNeill
I am more concerned about the number of people who might not be able to come to the end of the process if we do not ensure that it is a smooth one. However, I assure the member that I will address the question at stage 2. I have had discussions behind the scenes with other people who have an interest in the matter.
Sections 27 to 29 deal with appeals, and the claimant has 31 days to appeal. There needs to be more information about whether new tribunal judges will be appointed or whether we will simply be tacking appeals on to the old system. It seems obvious that there should at least be training for new judges; after all, we are creating a new system with a new approach.
There should also be more transparency in the tribunal judgments, which should be published. Each judge should have their decisions in the public domain. If we are going to have a new approach throughout the system, a more radical approach to transparency in decisions would be welcome.
Quite a few witnesses, including Morna Simpkins from the Multiple Sclerosis Society, mentioned that there are no timescales in the bill. I hope that we can address that at stage 2. We might want to consider various timescales for the first decision. Six weeks has been suggested when more evidence is required or it might be four weeks. Whatever our views on that, more work needs to be done on the matter.
In my last 30 seconds or so, I will address overpayments, because that is an important matter. If the social security agency makes an error, there should be no requirement to pay it back. That was said by a Scottish Government official on 16 August at an event that was run by Inclusion Scotland, and I want to ensure that we can rely on that as a key principle. Since then, the Government has stated its intention as being that the overpayment will not be pursued except in exceptional circumstances. However, section 36 clearly says:
“An individual is liable to pay the Scottish Ministers the value of any assistance”.
I simply want to get some clarification at stage 2 and ensure that, if it is the Government’s stated intention for such payments not to be returned, that is reflected in the bill.
I agree with Alison Johnstone that we have the chance to create a radical, rights-based system. I support the general principles of the bill and look forward to the rest of the debate.
16:27Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Some people have suggested that the social security system stems from Beveridge. We might reasonably argue that it stems from the Old Age Pensions Act 1908, which was introduced by the Liberal Government that paid the first pensions in 1909. The first political book that I read was a biography of Lloyd George, which I read when I was seven years old.
Alex Cole-Hamilton
He mentions it every year.
Stewart Stevenson
Absolutely.
The important thing about the reference that I am making is that, 100-plus years ago, The Times, which was then known as “The Thunderer”, definitely thundered against the iniquity of paying people without their having put something into a fund—the national insurance provision did not come along until 1911. However, we now have a consensus that we will support the bill, which is, of course, much more wide ranging than the 1908 act. That is a good and proper measure of how far we have travelled in the regard that we have for people in our society. The bill will apply to all of us, because, at different stages of our lives, we have different needs and will, in one way or another, depend on a social security payment.
Johann Lamont mentioned the need for rights to be in legislation, but I am not sure that they need to be. We can exercise rights that are not in legislation. In particular, the modern concept of human rights stems from the work of Eleanor Roosevelt in the aftermath of the founding of the United Nations. In 1948, she wrote:
“while words, ideas and ideals may mean little by themselves, they hold great power when properly disseminated and embraced”.
I hope that the debate spreads the word about what we want to do.
I will pick up one or two particular points. I was not on the committee but I read with interest the excellent report that it produced. In particular, where the bill says “role”, in section 1(d), the report suggests that it should instead say “duty”. We need to be slightly careful when we change a single word, and we must weigh that word. If we say that the Scottish ministers have a duty, we might lock the Scottish social security system out from topping up somebody else’s social security provision financially without our creating a new social security provision. I say “might” because I have not examined the matter in detail, but I hope that others will look closely at that.
Adam Tomkins is, without question, the most experienced constitutional lawyer in the Parliament. I do not think that there would be much debate about that. But—and it is quite a big “but”—he may have inadvertently failed to understand the practical application of our constitutional position. If, as he suggests, we should incorporate into primary legislation more than is currently intended, that would end discussion of the matters introduced in the primary legislation at the end of stage 3. However, debating and discussing those matters in the context of secondary legislation will extend the consideration that the Parliament is able to give them into the committee stages that follow as secondary legislation is introduced. It is particularly apposite that I make that point in relation to Adam Tomkins’s remarks, because—
Adam Tomkins
Will the member take an intervention?
Stewart Stevenson
I will not. It is tit for tat. I may come back to the member if time permits.
Adam Tomkins suggests that the Government is behind the curve in its preparations for what has to follow while insisting that that incomplete and imperfect preparation should be incorporated into the primary legislation. Those two positions are pretty inconsistent.
Legislators—which includes every one of us here—are perfectly capable of making mistakes. In secondary legislation, we have an opportunity to more readily correct those mistakes. I—mea culpa—provide an example from my experience. On 23 April 2012, I signed the Snares (Training) (Scotland) Order 2012. It turned out not to be quite as good as I thought it was when I signed it. Therefore, on 22 May, less than a month later, I lodged the Snares (Training) (Scotland) (No 2) Order 2012, which was a better presentation of the legislation that was required.
Finally—I leave this as a little mystery for colleagues to pursue—I turn to the very first order that I signed as a minister. It was the Port of Cairnryan Harbour Empowerment Order 2007, which I signed on 25 May 2007. I will let members discover why the order is entirely invalid. The good news is that it was never used or required.
This excellent bill is a big and important step forward for the Parliament. Having flexibility in how we deal with the legislation in the future is not about giving the Government flexibility but about giving Parliament flexibility. I welcome the indications that a superaffirmative procedure will be introduced at stage 2, because that will give us an opportunity to have extended consideration of the secondary legislation. It is a proven technique that works very well.
16:33Michelle Ballantyne (South Scotland) (Con)
I, too, thank the Social Security Committee and acknowledge the work and evidence that has informed the bill so far.
As my colleague Adam Tomkins said, the Scottish Conservative Party is the party of devolution in this place. Since 2014 and the Smith commission, we have reinforced and expanded the powers of this Parliament, helping to build one of the most powerful devolved legislatures in the world. Three years on, 30 per cent of working-age benefits have been devolved, along with the power to top up reserved benefits and create new ones, paving the way for this new legislation.
The bill will redefine welfare north of the border. Parliament has the opportunity to create a fair, simple system that is accessible and understandable to all. This is an opportunity to take responsibility for how we support people at the most difficult times in their lives. In doing so, we must ensure that the bill is fit for purpose and does not raise expectations only to snatch them away again.
The principles of a new system are certainly present in the bill. The recognition of social security as an investment in people rather than a support, the enshrining of social security as a human right in Scots law, and the embedding of respect for and the dignity of the individual are all welcome, but if we are serious about achieving such outcomes we will need more than just words. I would like to see more detail in the bill, so that the Parliament and the people can be clear about what the devolved powers will deliver.
The Parliament must be part of the decision-making process, and the balance between primary and secondary legislation needs to be addressed as the bill goes through stage 2. On that basis, I welcome the proposal to create a Scottish social security advisory body in statute.
I will focus briefly on an area that is close to my heart: the need for advocacy. Around a quarter of the written submissions to the Social Security Committee called for a legal right to independent advocacy. For a person who is at their lowest, having someone at their side who understands the system and can articulate their position can make all the difference. I accept what my colleague Jeremy Balfour said about the difference between advocacy and advice, but I think that both can take place at the same time.
Advocard, an organisation that supports people in the Edinburgh area who have mental health issues, said:
“to leave the legislation, as it stands, is an erosion of human rights work that has been done previously”.
Citizens Advice Scotland and Inclusion Scotland voiced similar concerns about the issue. I understand that the minister is aware of that evidence and I urge her to ensure that there is adequate provision in the bill for advocacy.
My other concern is slightly more technical in nature, and I have heard no mention of it in today’s debate. The Scottish Government intends to spend £190 million on information technology implementation, while committing to the principle that
“the Scottish social security system is to be efficient and deliver value for money.”
We have seen problems with the development of IT systems, and the Government’s record in that regard does not fill me with confidence. One need only look at the way in which common agricultural policy payments were delivered to become a little worried about the implementation of an IT system that will affect many, many more Scots.
I note that the Scottish Government responded to the Social Security Committee’s request for a further breakdown of IT costs, and I urge the minister to ensure that robust procedures are in place to ensure that the costs do not spiral. The IT system must be delivered within budget, on time and in a condition such that it is fit for use, to avoid scenes similar to those that we witnessed last winter, when farmers were forced to take out loans while waiting for payments. If a similar crisis were to affect social security, the consequences could be disastrous.
The bill has the potential to revolutionise social security in this country. It presents an unprecedented opportunity to create a tailored system, which provides the support that people need, when they need it. If we want the principles of respect, dignity and fairness to be delivered through the bill, we must ensure that we take all the people of Scotland with us. As Alex Cole-Hamilton rightly reminded us, the principle of social security is to help individuals and families to be socially mobile. That is why we must ensure that the new system is delivered promptly and properly, with an appropriate level of parliamentary scrutiny to ensure transparency and fairness. If the Scottish Government does not get the bill right, it will be the people of Scotland who pay for that mistake.
16:38Mark Griffin
In my opening speech, I reminded members that our decisions, and the improvements that we make to the bill, will be critical to improving the lives of disabled, sick and elderly people up and down the country, for years to come. I think that the Parliament has sent out a clear message that we all want to get the bill right, for that reason.
If the people who will rely on the system—those who have lived under the existing so-called welfare system—have heard our debate this afternoon, they will have heard that the Parliament is brimming with ideas about how we can build a new social security system of which people can be proud.
Earlier I spoke about some of the areas where we on the Labour side of the chamber hope to work with the Government and perhaps even push it to go a little further. We have focused on those areas for a number of months. I want to welcome Alison Johnstone’s speech and confirm that we will work with the Green Party at stage 2 to improve the bill in some of the areas that she addressed.
The committee was clear and unanimous on one thing that she spoke about: the bill should include the additional principle that
“Social security has a role to play in the eradication of poverty in Scotland”.
In our response, we said that the bill is a route map to cutting poverty in Scotland, and we want that new principle to be included.
The Government’s response, that the socioeconomic duty would be sufficient and that we have only 15 per cent of the powers, requires some reflection. That 15 per cent figure includes pensions and relies on a somewhat strange calculation of welfare spend. The bill does, after all, include powers to make the Scottish social security system more adequate. A top-up of child benefit, which is advocated by the give me five campaign, would not only cut poverty in Scotland but mean that that 15 per cent could become 31 per cent, once pensions were stripped out. I do not remember anyone in the Smith commission arguing for the devolution of pensions, with the looming costs that would come with that. The proposal that I have set out would go further than the UK Government is going and would underline our ambition to use the powers to cut poverty.
We also want to go further than the UK Government by ensuring that equality of outcome for groups that share one or more protected characteristic is embedded in the Scottish social security system. We look forward to having discussions with the minister on that.
I want to touch on how we adjust the definition of what we regard as a terminal illness. I think that it is fair to say that accepting the definition in the Welfare Reform Act 2012 would not set a good example or underline our ambition to create a better system than that which exists today. Marie Curie and MND Scotland are clear that the right to have an application fast-tracked should be included in the bill and that the definition should not be a life expectancy of a short six months. I am told that, although six months is sufficient for 95 per cent of cancer patients, it is just not reasonable for someone with a varying condition such as motor neurone disease.
This chamber has made huge progress on helping those with palliative care needs. To include a better definition on the face of the bill would go further and would ensure that someone who is terminally ill can access the support that they need quickly and in a fair and dignified way.
The tribunal arrangements—which were mentioned by Pauline McNeill—the issue of the offences regime and the provisions in the bill that deal with what happens when things go wrong need forensic and detailed attention. We still take the view that overpayments that are caused by the errors of officials should not be recoverable from an individual, and believe that it would be unacceptable to pass a bill that criminalises those who fail to notify in such cases. We will take advice on how to rectify those provisions, but I hope that the minister will be able to come forward with adjustments ahead of the Christmas break. Those amendments will, of course, require further scrutiny and time to digest.
We will support the general principles of the bill today. In my opening speech, I made the point that we have a fair amount of work ahead of us to get this right for the people who will rely on the new system. I hope that those individuals—the young mum worried about her child being born into poverty, the disabled person with hundreds of pounds of additional costs every month and the pensioner who is worried about their heating bill this winter—will have been reassured by this debate.
16:44Adam Tomkins
There was all-party agreement in the Smith commission that we should devolve the aspects of social security that have been devolved. There was no dissent. This debate on social security has been maybe the most consensual debate that we have had in the chamber since the last election, and I think that it is entirely appropriate that all parties in the chamber are agreed that the general principles of the bill should be supported.
Many members who have spoken in the debate, including Alex Cole-Hamilton and George Adam, have said how important a moment this is for our Parliament, and Ruth Maguire said that the bill is landmark legislation. I agree. Pauline McNeill said that we have entered a new era, in which the Parliament will make life-changing decisions. I think that the Parliament has made life-changing decisions in the past, but it is certainly a new era. Mark Griffin was right to say that we will have only one first go at this, so it is important that we get the bill right the first time. I agree with all of that.
Alexander Stewart said that we should make bold choices in the bill, and I completely agree, but it has to be said that we still do not know very much about the bold choices that Jeane Freeman and her ministerial colleagues want to make about devolved social security. There is still a huge degree of uncertainty about who will be entitled to what; there is no clarity on either of those questions in the bill. Jeremy Balfour was right to ask the minister when she proposes to produce regulations, or even draft regulations, that will clarify matters and reduce some of the uncertainty. Perhaps she will respond when she winds up the debate.
The minister and Mr Balfour exchanged views on assessments. It is not the case that medical evidence that is already on record explains what an individual claimant needs by way of a PIP—the medical diagnosis is different from the assessment of need. There will be occasions when the new Scottish social security agency will need to do a face-to-face assessment, even when the claimant would prefer not to have to undergo one. It cannot always be a question of choice for the claimant. Those are just some of the tough choices that will have to be made in the regulations, which we are not allowed to see yet; indeed, we do not even know when we will see them. The sooner the minister can be honest and up front with the Parliament about what those tough choices will have to be, the better our social security system will be.
There has been a lot of comment about effective parliamentary scrutiny. That is the area in which there is a key difference between primary and secondary legislation. I thank my friend Stewart Stevenson for schooling me in constitutional law—or, at least, in the constitutional law that was valid in the day of David Lloyd George—but the point about the difference between primary and secondary legislation was encapsulated by Johann Lamont when she said that she was worried about the use of secondary legislation not because it cuts MSPs out of the question, but because it cuts the people who come and give us evidence out of the question.
Stewart Stevenson rose—
Adam Tomkins
We cannot take evidence on a piece of delegated legislation—even one that is subject to the superaffirmative procedure—to the same extent that we can in a stage 1 inquiry, which goes on for weeks. We do not have procedures that enable us to have parliamentary scrutiny of delegated legislation that goes on for weeks.
The other important point to make—if Mr Stevenson wants to countermand me on this, I will let him in—is that, at the end of a debate on a piece of secondary legislation, even if it is subject to the superaffirmative procedure, all that we can do is say yea or no to it. We cannot amend it. That means that stakeholders or users with lived experience of social security will not be able to come and explain to us, for example, that 90 per cent of the regulation is right but it needs to be tweaked in a number of regards. We do not have that power. That is where there is an important difference between primary and secondary legislation.
Stewart Stevenson
I accept the procedural point that Adam Tomkins makes, but he is wrong in practical terms. I speak from experience. If he consults Ross Finnie, he will find that, on two occasions, Ross Finnie had to withdraw secondary legislation at my instance, to consult stakeholders and to bring back something that met the requirements of stakeholders and of Parliament before it would be agreed. There is precedent for that. There have been multiple committee meetings on certain pieces of secondary legislation. It is up to Parliament to make the time available; it can do so.
Adam Tomkins
Perhaps the Parliament will make a bit more time available to me right now.
The critical aspect of the difference between primary and secondary legislation is that the Parliament cannot amend secondary legislation, so in making primary legislation, we must be absolutely sure that the choices that ministers will put before us in the form of draft regulations or statutory instruments are choices that we just want to say yes or no to, without having the ability to amend them. That is a critical hurdle that the bill does not yet overcome, but which it will need to overcome by the end of stage 2 if we are to support it further.
The Government said in its response to the committee’s stage 1 report that it agrees that there should be a statutory social security advisory committee for Scotland. However, the one point that I want to make to the minister about that is that that committee must have a role in approving regulations or helping Parliament and ministers to approve them; its role should not be to provide redress for individual grievances. Providing redress for grievances is a different function from the function of helping with rule making and law making.
Providing redress for grievances is the second big theme that has emerged during the debate. There is widespread concern across the chamber about the social security charter. There is no point in legislating for a human rights-based approach to social security unless there are remedies when those rights are breached. They do not have to be remedies in a court of law, but they do have to be remedies and they have to be enforceable, whether through an ombudsman or a court of law—there will be a role for the courts to play.
There needs to be sharper clarity in the Government’s thinking, if I may put it so impolitely, about its exact proposals for a system that provides effective redress for grievances. I know that the minister thinks that the new social security agency will never make any mistakes; I share her optimism that it will make as few mistakes as possible. However, from time to time, claimants will not get what they think that they are entitled to and they will want to make complaints about that, so there needs to be an effective complaints machinery. We need much greater clarity than we have had so far about the role of the bill’s principles and the charter in the determination of those grievances.
The Deputy Presiding Officer
I call Jeane Freeman to wind up the debate—eight minutes, please, minister.
16:51Jeane Freeman
First, I thank the committee again and, on behalf of myself and the Government, I thank Sandra White for her work as convener of the committee through a substantive part of the stage 1 evidence gathering, which proved to be the foundation of the committee’s report.
I believe that this has been a good debate, in keeping with something that I think we all recognise: this is a historic moment in the life of the Scottish Parliament. I intend to touch on some of the issues raised in the debate. I will not be able to cover them all in the time allowed, but I am sure that members across the chamber will carefully read the Government’s response to the committee’s stage 1 report and recognise in it our openness to considering in more detail many of the issues that have been raised.
I start with some of the points in the committee’s report that Clare Adamson helpfully raised. She mentioned the role that social security could play in the eradication of poverty. I am indeed sympathetic to that point, but I have to add the caveat that we are talking about the Scottish social security system. Members have debated back and forth what our powers actually are—we will have powers over 15 per cent of the total spend on social security in Scotland and 11 benefits. Of course we have a role in the eradication of poverty and of course social security has a part to play in that, but we cannot be held responsible for benefits that we do not have power over, or for powers that we do not have. Ms Adamson also raised the committee’s point that ministers should have a duty to ensure that people are given what they are entitled to. At the moment, as members will know, the bill refers to a “role” for ministers. Again, I am sympathetic to that point. We will return to both those points when we come to Government amendments at stage 2.
I turn to the substantive question of the balance between primary and secondary legislation. There is, of course, a reason for the approach that we have taken as a Government. I take members back to the points that I made in my opening speech, taking us right back to the consultation that we held in 2016 and the consultations that we have had since then. Those consultations have been with not only stakeholder organisations but people with lived experience of the benefits system, key organisations that provide welfare support and advice, our local authorities and many others. All have consistently said to us that one of the fundamental problems with the UK legislation is that it is opaque and incomprehensible at times because it is contained in both primary and secondary legislation. Indeed, a citizen’s advice bureau told me that it takes longer to work through the UK legislation than it takes to provide advice to clients.
Our purpose here is to provide clarity on the foundation of social security in Scotland, with the details in regulations. That is our intent. In my view, putting eligibility criteria on the face of the bill will not best serve the interests of the people who receive benefits. It will not give us enough time to consult, via experience panels, the expert group or any other means, as we have consistently committed to doing. I am not prepared to break that consistent commitment because I am convinced that our approach is the right way to build this new public service and the only way to meet the principles of the bill.
That said, we are of course willing to consider amendments and will look at the issues over the recess. Mr Griffin’s idea was that we would bring forward all the amendments before the recess—by Thursday. I am sure that my officials are watching the debate, and that would have given some of them conniptions. That will not happen. However, we have already begun to set up discussions with Mr Griffin and others that will happen immediately we come back to look at Government amendments.
We have said that we will bring forward amendments to introduce a superaffirmative procedure in recognition of the difficult balance that Mr Griffin acknowledges we have to strike and to set up a body to provide for independent scrutiny. I wrote to the Social Security Committee in June asking for its views on how we might do that and what such a body would do. I have been consistently clear that I want an independent scrutiny body and that I want a duty on ministers—unlike at the UK level—to consult on any regulations or changes in social security that they want to introduce before those are introduced, with no exemptions and no fast tracking.
We asked our expert group to consider that matter and I am very grateful to it for the report that it produced. We will go back to the group in due course. I hope that the Social Security Committee will also give me advice on both that issue and Mr Tomkins’s point about how an individual can seek redress in terms of the charter.
I know that Mr Tomkins understands full well that legal enforceability is always on the table. In this case, it comes from the Scotland Act 1998, which requires that Parliament’s legislation is compatible with the European convention on human rights and with the Human Rights Act 1998, which makes it unlawful for public authorities to act in a way that is incompatible with convention rights.
Mr Tomkins will also know of the report commissioned by the Equality and Human Rights Commission from the University of Ulster, which talks helpfully about how the principles of dignity and respect, which the charter will translate for us, are difficult to enforce judicially and makes some suggestions about how we might do that. I look forward to returning to the committee and discussing with members how we make that possible. It is of course a different form of redress from the complaints procedure that we would expect any well-governed public body or agency to have in place. We need to make that distinction very clearly.
Members ask us to put detail into primary legislation because the alternative cuts out Parliament’s scrutiny. However, that is not compatible with also asking us to put into primary legislation a power to create new benefits. I do not believe that we need such a power, as I have already explained. It would be a very wide-ranging power for ministers to have with no particular scrutiny other than through the scrutiny of regulations. There is a contradiction there.
Mr Macpherson made an important point about DHPs that we will consider—we look forward to discussing it further. We will come back to the matter of redeterminations. On the question of uprating, we have already made a commitment on annual uprating of the benefits under disability assistance. We also said in our response that we welcome the committee urging us to consider how we might review the impact on benefits of rising costs.
The Government has already committed to a significant increase to the carers allowance and to the best start grant, which takes current provision for the first child from £500 to £1,100 and for the second child and all subsequent children from the current position of zero from the UK Government to a total of £800. Therefore, we are already moving in the direction of ensuring that, within the overall restrictions on our budget—I am conscious that Derek Mackay is sitting next to me—we are making significant progress and moving to ensure that individuals receive adequate support through the social security system.
Johann Lamont
Will the minister take an intervention?
Jeane Freeman
I am sorry, but I must press on. I am coming to the points that Ms Lamont made.
I could not agree more with Johann Lamont when she states that a false distinction is being made between those who pay tax and those who are in receipt of benefits, and I am very grateful to her for the important point that she made, which she asked us to consider, about placing social security in a wider context. However, I am also very grateful to George Adam for reminding us all that our first priority in all of this is the safe and secure transfer of 11 benefits in order to ensure that 1.4 million people receive the support that they are entitled to on the day that they expect it and at the right amount.
Finally, I have listened very carefully and made extensive notes. We will consider all the points that have been raised, and we will come back and have discussions at the start of next year. I know from what members across the chamber have said that, at that point, all of us will be looking for solutions to the issues. We will reach consensus as best we can. There might still be points of difference, but our overall objective is to create a social security system that is founded on good legislation and which the people of Scotland can be proud of.
19 December 2017
Financial resolution
A financial resolution is needed for Bills that may have a large impact on the 'public purse'.
MSPs must agree to this for the Bill to proceed.

Financial resolution transcript
The Presiding Officer (Ken Macintosh)
The next item of business is consideration of motion S5M-09503, in the name of Derek Mackay, on the financial resolution for the Social Security (Scotland) Bill.
Motion moved,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Social Security (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Standing Orders arising in consequence of the Act.—[Derek Mackay]
19 December 2017
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
First meeting on changes
Documents with the changes considered at the meeting held on 1 February 2018:

First meeting on changes transcript
The Convener (Clare Adamson)
Good morning and welcome to the third meeting in 2018 of the Social Security Committee. I remind everyone to turn mobile phones and other devices to silent mode so that they do not disrupt the broadcasting.
There is only one item on today’s agenda: consideration of the Social Security (Scotland) Bill at stage 2. It has been agreed that we will not proceed beyond part 1 today. There are 13 groups of amendments in part 1 and we may not get through them all this morning as we have to finish at around 11.30 to allow members to get to the chamber for question time.
I welcome the Minister for Social Security, Jeane Freeman, and her accompanying officials to the meeting.
Section 1—The Scottish social security principles
The Convener
Amendment 77, in the name of George Adam, is grouped with amendments 1, 102, 78, 5, 6, and 113.
George Adam (Paisley) (SNP)
I wanted to move amendment 77 for one very important reason—I wanted to be the first committee member to speak. No—in all seriousness, I believe that it is important to set the foundations correctly for the bill. We all know how important it is. It is one of the biggest bits of legislation that the Parliament has produced since this place came into being.
It is important that we set out right from the beginning what we want to do. When people all over the world talk about documents, everybody remembers the founding principles that are mentioned right at the start of those documents, and stating that
“the delivery of social security is a public service”
sets out to everyone exactly what we are trying to achieve.
During the stage 1 debate, the minister said:
“The Social Security (Scotland) Bill comes to the Parliament as the legislative foundation for a new public service for Scotland to deliver a rights-based social security system that is founded on the principles of dignity, fairness and respect.”—[Official Report, 19 December 2017; c 22.]
She is right, and that is a noteworthy and meaningful principle. Therefore, the founding principle of the bill should be that social security is going to be a public service. That sets out to the 1.4 million people in Scotland who will use the service how important it is to the Parliament and the Scottish Government. In putting these principles forward, we are showing that we see this as the way forward.
To summarise, it is very important—in any documentation and in anything that we do—to get the founding principles correct. I believe that putting this amendment at the very beginning of the bill would tell everyone exactly what we want from the social security system in Scotland.
I move amendment 77.
Alison Johnstone (Lothian) (Green)
The principles section of the bill—section 1—is absolutely crucial, as my colleague George Adam has just pointed out. Laying out the foundation stones of the system sends out a really clear message that the new Scottish system will not chop and change at will or create uncertainty for applicants and recipients. The minister is absolutely right to take this approach, which I welcome. If every other aspect of the system is going to flow from the principles, which I believe is the policy intention, it is absolutely imperative that they are the right principles.
The principle that the system should reduce poverty, as is outlined in amendment 1, is absolutely key. Social security performs many functions, but one of them is the reduction of poverty on the basis of the belief that poverty is unacceptable. That is one of the fundamental tenets of the post-war social security system, and it should be a fundamental principle of the Scottish system that is now being built.
The principle has already been established in the Child Poverty (Scotland) Act 2017 and, as a result of the work of the committee, that act contains several references to the important role that social security plays in the reduction of child poverty. That being the case, it would be remiss of us not to have, in this bill, a similar recognition that social security is vital to the reduction of poverty. That recognition should be stated up front as one of the core principles of the new system.
Mark Griffin (Central Scotland) (Lab)
I will support the two amendments that have just been spoken to.
The purpose of amendment 102 and the related amendments that I have lodged, which we will come to later in the debate, is to make sure that equality is embedded in the legislation and, therefore, in the Scottish social security system.
My amendments have the support of Engender, Scottish Women’s Aid and the Coalition for Racial Equality and Rights.
When equality is not embedded in policy from the beginning, the danger is that it becomes an add-on—something that happens after the fact but that has not been considered sufficiently to shape the system itself. The take-up of benefits among black and minority ethnic groups in Scotland is not routinely published—indeed, it is not monitored in order to see how significant disparities come about and to determine the best way to address them. I have lodged amendment 102 because we know that many equalities groups—particularly women, BME groups and disabled people—experience higher rates of poverty and, therefore, may depend more on the social security system.
I have lodged amendment 78 to start a debate on the issues that disabled people face in their daily lives, including higher costs. However, I do not intend to press the amendment, which has come about on the back of support from Disability Agenda Scotland. Almost half the people in this country who live in poverty have at least one disabled person in their household. Therefore, we must consider how the Scottish social security system would cover the additional costs of a disability, which can push someone into poverty, and how it would break down the barriers and enable disabled people to get into work and lift themselves out of poverty.
Amendment 78 has the support of Disability Agenda Scotland, Camphill Scotland, the Carers Trust, the Health and Social Care Alliance Scotland, the Scottish Independent Advocacy Alliance and Leonard Cheshire Disability. As I have said, the purpose of the amendment is to start a debate on the poverty that a lot of disabled people find themselves in and how the Scottish social security system could alleviate the situation.
The Convener
I invite the minister to speak to amendment 5 and the other amendments in the group.
The Minister for Social Security (Jeane Freeman)
Good morning, committee. I will start with some of the other amendments in the group. I am pleased to support amendment 77, in the name of George Adam. As Mr Adam has said, we have always intended that the Scottish social security system should be delivered as a public service, and the new principle in amendment 77 fits well with the ethos that is expressed in the other principles.
I am also happy to support amendment 1, in the name of Alison Johnstone. The proposal recognises that the Scottish social security system has a role in reducing poverty, and I understand that the amendment has the support of a wide range of stakeholders, including the Poverty Alliance.
I am grateful to Mr Griffin for his indication that he does not intend to press amendment 78, which I could not support. I do not consider that singling out a group at this point in the bill would reflect the spirit of the other principles. More fundamentally, amendment 78, as it is written, misunderstands the nature of disability assistance and the scope of our ministerial powers in relation to social security. Disability assistance is not designed to be an anti-poverty measure, although I accept that, for some people, it has that effect. It is not means tested and it does not seek to top-up or to replace income—its purpose is to help people who have a disability or a terminal illness with their living costs. The Scottish Government has no control over the forms of assistance that, in my view, could really make an impact on reducing poverty for disabled people, but I welcome the opening of a debate on the issue and I am sure that, through the committee and elsewhere, we will continue to have that debate.
Amendment 102, also in Mr Griffin’s name, seeks to achieve broadly similar goals to those that amendments 5 and 6, in my name, seek to achieve, but the wording of amendment 102 is problematic. Devolved assistance will be capable of delivering equality of treatment, but it will not be possible or appropriate to seek to guarantee exactly the same outcomes for every person purely on the ground that they belong to a specific group. To ignore individual needs in that manner runs contrary to the international human rights framework, which, as a broad rule, puts meeting individuals’ needs at the heart of a rights-based approach.
More technically, amendment 102 is silent on precisely which category of outcome it targets and with what group or other benchmark it seeks equality. That makes it difficult, if not impossible, to discern exactly how the system could live up to such a principle. The amendment also fails to recognise that the term “protected characteristics” can have meaning only if it is used comparatively. As all of us have age, sex and religion—which, for the purpose of legislation, includes having no religion—the use of the term in the amendment does not make sense, because everyone has some protected characteristics.
Mr Griffin will remember that his colleagues Ms Baillie and Ms McNeill lodged similar amendments to the Child Poverty (Scotland) Bill but were persuaded, on the basis of the arguments that I have outlined, not to press them. I hope that Mr Griffin will reach a similar view on amendment 102. However, because equality and non-discrimination are important ideals to capture in the principles, I hope that Mr Griffin and other members will support amendments 5 and 6, in my name.
Amendment 113, in the name of Ms McNeill, seeks to introduce a new principle on matters that we would all agree are important and worthwhile. However, health and mental wellbeing are already strongly reflected in the principles of respect and dignity and in our human rights approach. Those existing principles should facilitate a system that is supportive, accessible and sensitive to individuals’ particular needs. That is already taking shape through the commitments that have been made to local delivery, face-to-face pre-claims advice and the elimination of jargon in correspondence. All of that speaks directly to the realisation of a system that is in keeping with the culture that the amendment envisages. Therefore, I ask Ms McNeill not to move amendment 113.
Pauline McNeill (Glasgow) (Lab)
Amendment 113 seeks to promote health and wellbeing. The social security system has a role in promoting improved health and wellbeing, and section 1 deals with the principles of the system. Evidence that has been provided by the Scottish Association for Mental Health supports the idea that some people who have had the employment and support allowance and personal independence payment have found the experience to be stigmatising and to have had a negative effect on their health. Studies by Heriot-Watt University show that work capability assessments for employment support have had a lasting and negative impact on some people with a mental health problem.
A well-designed social security system must have a commitment to eradicating stigma. I am a wee bit disappointed that the Government will not support specific mention of the importance of promoting mental health and wellbeing in the system, as there is a case for having that specifically in the principles.
Adam Tomkins (Glasgow) (Con)
Section 1 is hugely important as a statement of political principles, but we remain concerned about the legal effect of the principles and will later speak to amendments that seek to clarify that effect.
Some of the amendments in the group will exacerbate those problems—particularly amendment 77, in the name of George Adam. It is completely unclear what including
“the delivery of social security is a public service”
in the bill will do and what difference it will make. The sentiment is clear but the legal effect is obscure, so we will not support the amendment. However, we will support the amendments in the minister’s name.
09:15Ben Macpherson (Edinburgh Northern and Leith) (SNP)
Mr Tomkins mentions the amendments on the status of the principles, which we will get to in due course. I do not want to speak about the principles in detail now, but it is important to recognise that, as is detailed in the Government’s response to our stage 1 report, they have been set forth to define the ethos and nature of the Scottish social security system.
I will support amendment 77, in the name of George Adam, because clarity and the statement that the Scottish social security system will be a public service are important in describing and explaining the ethos and nature of that system.
I will also strongly support amendment 1, in the name of Alison Johnstone, which is supported by Mark Griffin. It is a helpful amendment that is based on the recommendation that the committee made at stage 1. I definitely think that the Scottish social security system should play a part—it cannot do it by itself—in reducing poverty in Scotland. I am glad to see that we have not retained the word “eradication”, as that would have been problematic from legal and definitions perspectives.
The sentiment of amendment 102, in the name of Mark Griffin, is to make sure that equality is part of the system that we create, which chimes with a lot of the evidence that the committee took and evidence that I took in person at one of the outreach sessions that we had at MECOPP. The minister’s wording on the promotion of the goals of equality and non-discrimination is more holistic and, therefore, more effective, so I urge Mr Griffin not to move amendment 102 and instead to support amendments 5 and 6.
Amendment 78, in the name of Mr Griffin, is problematic in that the Scottish social security system, as created under the Scotland Act 2016, does not have the power to create income replacement benefits. The amendment does not consider that position.
I turn to amendment 113, in the name of Pauline McNeill. Although we should be trying to improve health and mental wellbeing across the public sector, that is primarily a function of the national health service. The promotion of health and wellbeing is already taken into account in the existing principles of dignity, respect and human rights, as Ms Freeman said. Although, on the basis of the evidence that we took, committee members want to enhance the principles that were originally drafted, we need to be careful not to create an exhaustive list that might lose the meaning that I mentioned in my opening point about their setting out the nature and ethos of the Scottish social security system.
Jeremy Balfour (Lothian) (Con)
The Scottish Conservatives will not support amendment 1, in the name of Alison Johnstone, as it places too strong an emphasis on what the social security system and benefits are for. I do not think that the primary reason for having benefits is to contribute to reducing poverty. In fact, I would almost adopt the minister’s words, when she was speaking to another amendment, in saying that benefits are there to help those with a disability or terminal illness to live as normally as possible. That is the key point that we should make about benefits. Their contribution to reducing poverty may be an additional reason for having them, but it is not the primary reason for our giving people benefits. I say that because we have universal benefits such as PIP, which is not means tested in any way. The appearance of such words early on in the legislation could put some people off, because they might think, “I’m not poor, so I shouldn’t apply for this award.”
As a result, I do not think that amendment 1 is helpful; indeed, it deflects from what we want benefits for, which is to allow disabled people—whether their disability is physical or mental—to live as normal a life as possible, to give them the money to live that life and to help their families to get the support that is needed. Reducing poverty might be a secondary effect of benefits, but making it a principle in the bill could steer people away from applying for benefits, because they might say, “I don’t fit into that category.”
Jeane Freeman
I want to make it absolutely clear to the committee that our not supporting amendment 113, in the name of Ms McNeill, should not be taken as an indication that, with regard to the social security system or any other matter in which the Government is engaged, the Government does not have a responsibility to pay proper attention to the importance of mental health and wellbeing. Such a characterisation would be unfair. I made my reasons for not supporting the amendment very clear.
Ms Johnstone’s amendment 1 is important, which is why the Government supports it.
The point has been made that disability assistance such as PIP and disability living allowance is a universal benefit that is not specifically targeted at anything other than providing additional financial support to those with a disability or health condition. However, I would point out that some of the other benefits that we will take responsibility for—for example, the best start grant, funeral expense assistance and others—will assist those who are on low incomes. Certainly, in the Government’s view, it is important that—today and as we move through stage 2 to stage 3—we are mindful of the fact that we are laying the foundations for a social security system that will have responsibility for 11 benefits. Nevertheless, it is my hope that the Government will have responsibility for significantly more parts of the system in the future.
The Convener
I invite George Adam to wind up and indicate whether he wishes to press or withdraw his amendment.
George Adam
I will press amendment 77, but first I want to make a point—I will do so very quickly, because I know that we have quite a lot on today.
Historically speaking, what people remember about documents are the principles. They are the most important part of a document because they allow you to state clearly and succinctly what you want to achieve. Therefore, it is extremely important to make it clear that the social security system is a public service that will serve the people of Scotland as and when they need it, because that sets out exactly what the service is for.
I do not want to get too involved in what has been discussed previously, but this must be how we take the matter forward. People might think that these are just words, but words can be extremely important; indeed, they can change history and people’s lives. On this occasion, we are stating right from the outset the most important point: the service that we are setting up will serve the people of Scotland.
The Convener
The question is, that amendment 77 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Against
Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 77 agreed to.
Amendment 1 moved—[Alison Johnstone].
The Convener
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Against
Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 1 agreed to.
The Convener
Amendment 4, in the name of the minister, is grouped with amendments 7, 7A, 7B, 114, 115, 140, 14, 126, 128, 129 and 51.
Jeane Freeman
This is a group on which I hope that we can reach consensus.
Amendments 4 and 7, which are Scottish Government amendments, were prepared in response to the view of the committee and stakeholders that the principle in section 1(d) should be strengthened to say that ministers have a duty rather than a role to promote benefit take-up. In practice, the amendments go considerably further than that by removing the principle and creating a separate and legally enforceable duty.
Amendments 7A and 7B, in the name of Mr Griffin, seek to change amendment 7 to state that ministers simply have a duty to ensure that everyone gets what they are entitled to. Although I am sure that they are intended to strengthen amendment 7, I ask Mr Griffin to consider that they make the duty weaker than what I propose. Ministers already have a duty to give people what they are eligible for. Under section 8 of the bill, it is ministers’ basic duty to determine entitlement to assistance. Amendment 7 requires more than that. It frames the duty as something that requires continuous improvement, with ministers always keeping under consideration what more could be done.
A further problem with amendment 7A is that it would remove the discretion of ministers to take steps that they consider appropriate. To take the amendment through to its logical conclusion, that could mean that ministers should take any necessary steps, within the law, to fulfil the duty. It would remove discretion and the “keep under consideration” part of amendment 7, which would require ministers to continually consider what more could and should be done to increase benefit take-up. That would apply to all future Scottish Governments. Amendment 7 is a very active amendment. Furthermore, the language that amendment 7A seeks to remove fits much better with the upcoming amendments on income maximisation.
Amendment 7B is ambiguous. It defines “other social security assistance” by referring to
“social security schemes other than those listed in exceptions 1 to 10 in Section F1 of Part 2 of schedule 5 of the Scotland Act 1998”,
but those exceptions do not list social security schemes. I ask Mr Griffin to consider not moving his amendments on the basis that what he seeks to achieve is already delivered by amendments 4 and 7.
Ms McNeill’s amendments 126, 128 and 129 are essentially aimed at making life easier for people who apply for assistance by providing them with information about what else they may be entitled to and, where appropriate, treating an application for one form of assistance as an application for another. I am pleased to support all three amendments. However, ahead of stage 3, I will look to discuss with Ms McNeill amending the duty to treat an application for one type of assistance as an application for any other type to make it clear that nothing should be done without the permission of the individual in question. That is in line with the person-centred approach that I have referred to, which I am sure Ms McNeill supports.
Amendments 140, 14 and 51, in the name of Ms Johnstone, seek to achieve something very similar, so it seems that there is broad agreement. I am sure that Ms Johnstone did not intend this, but the wording of her amendment does not meet her intention. In effect, it means that someone in the agency or on behalf of the Scottish ministers, who would have the duty placed on them, would need to consider any application that they received against eligibility criteria for every other form of assistance and make that decision for people. We think that Ms Johnstone would like to ensure that people would have information and that applications would be considered for other types of assistance, which Ms McNeill’s amendments would achieve. I strongly urge Ms Johnstone not to move her amendments, as they would mean that the social security agency would have to judge whether an individual who applied for one type of assistance should be entitled to another.
09:30I am pleased to support amendments 114 and 115, in the name of Mr Griffin. As I have outlined, we are serious about achieving improvements in take-up, and our approach to this group of amendments indicates that. I hope that my position on those amendments provides any further reassurance that Mr Griffin needs to reconsider his position on amendments 7A and 7B.
To draw all of that together, the package of measures that we support in the group would provide a robust approach to improving take-up. I know that we all agree that that should be a priority in a system that is founded on the ideal that social security is a right.
I move amendment 4.
Mark Griffin
I will not support amendment 4, in the name of the minister, but I will support all other amendments in the group.
We feel that amendment 4 goes beyond the evidence that was given to the committee. The committee expected a one-word change in removing the word “role” and inserting the word “duty”, and that was included in the committee’s report. With the backing of Citizens Advice Scotland, we seek to reinstate the duty in a revised paragraph.
We feel that “keep under consideration” in amendment 7 is ineffectual wording that waters down any duty. The committee agreed on
“the amendment of the fourth principle in the Bill to introduce a duty on Scottish Ministers, rather than a role, to ensure that individuals are given what they are eligible to be given under the Scottish social security system”.
In its response to the stage 1 report, the Scottish Government said:
“The Scottish Government agrees with this recommendation ... this proposal would more accurately reflect the work that it will take forward to remove stigma and to improve the take-up of assistance.”
It went on to say:
“the Scottish Government is committed to bringing an amendment to the Bill at Stage 2 to place a duty (rather than a role) on Scottish Ministers to ensure people get what they are entitled to from the Scottish social security system.”
My amendments 7A and 7B more accurately and in stronger words reflect the committee’s recommendation and the Government’s response.
In amendment 7B, I have attempted to recognise the minister’s comments at stage 1. She did not think that it would be appropriate for the Government to have a duty to maximise the uptake of benefits that were not its responsibility. That is why the amendment was drafted to say that the Government should have
“a role in encouraging individuals to apply for”
social security assistance that the Government is not responsible for. The amendment attempts to improve the uptake of around £2 billion-worth of benefits that go unclaimed every year, most of which are reserved. We have made the argument before that that money could lift families and communities out of poverty and boost local economies. It was reflected in the debate that we have already had that no such duty can be applied to the Government. The amendment was drafted to accommodate that point.
I appreciate the Government’s support for amendments 114 and 115. They set out wide-ranging requirements for the Scottish Government to make its duty to promote take-up a reality, record progress and set out in detail the areas in which more work is required. They are target based. They require the Government to come forward with measurable outcomes for which statistics should be released regularly.
I ask committee members to support my amendments.
Alison Johnstone
Throughout the stage 1 evidence, we heard much about how the new Scottish system could be more streamlined and easier for claimants to navigate. We are all aware of the complexities of the current system.
In October, Derek Young from Age Scotland told us:
“People would find it extremely advantageous if there were an opportunity to look at the different forms of assessment ... 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.”—[Official Report, Social Security Committee, 26 October 2017; c 26.]
In written evidence, NHS Greater Glasgow and Clyde said:
“Glasgow City Council has explored automatic payment of benefits and have successfully implemented this approach for school clothing grants by identifying eligible families.”
Amendment 140 seeks to create a right for individuals who apply for any form of assistance to be considered for all other assistance that ministers have reason to believe they might be entitled to. I see it as a companion amendment to amendment 128, in the name of Pauline McNeill, which seeks to establish that process in the part of the bill that deals with determinations. Amendment 140 is also in the spirit of the minister’s amendment to create a duty on the Scottish ministers to
“keep under consideration what steps they could take to ensure that individuals are given what they are eligible to be given under the Scottish social security system”.
Amendment 140 would be such a step.
I know that the minister shares the intentions behind the amendment because she has made a very similar proposal to improve the interface between the Scottish system and other systems at the United Kingdom and local levels. Just last week, on 24 January, the minister proposed the excellent idea of sharing an application that was made for Scottish benefits with another agency—the Department for Work and Pensions or a local authority—for another benefit provided by it, so that multiple applications do not need to be made. Amendment 140 proposes something similar—as I believe, does Pauline McNeill’s amendment 128—but for within our Scottish system. When someone applies for one benefit, they should be considered for any other benefits that ministers think that they might be entitled to.
The minister or other committee members might have reservations about the wording. I am happy to discuss how that might be improved at stage 3.
What I propose in amendment 140 is uncontroversial. It is about helping people, some of whom find the benefits system really difficult to navigate, to ensure that they receive everything to which they are entitled. That is a theme that runs through the bill.
Pauline McNeill
We are discussing a very important part of the bill. From what has been said so far, it is clear that there is some common ground between us all in a desire to design a progressive system that ensures that someone who asks for assistance is given support to find out what other assistance they might be entitled to. We know that there is a huge issue about unclaimed benefits.
Amendment 128 specifies that
“Where it appears to the Scottish Ministers that an individual who has applied for a particular type of assistance may be entitled to another type of assistance described in Chapter 2, the application may be treated ... as an application for that other type of assistance as an alternative, or in addition”.
I welcome the minister’s support for amendments 126, 128 and 129. I am delighted about that, and I give a commitment to work with the Scottish Government at stage 3.
In previous debates, the minister has raised the concern that individuals should be clear about what is being done in their name every step of the way. I am happy to work with ministers at stage 3 if any adjustments need to be made in that respect.
Amendment 129 is important because it specifies that the claimant must be informed where it appears to ministers that they may qualify for other benefits.
Ruth Maguire (Cunninghame South) (SNP)
I am a bit concerned about amendments 7A and 7B, which I find ambiguous. Despite Mark Griffin’s explanation, I am not sure what he is trying to achieve. My reading of them suggests that they would dilute amendment 7, in the minister’s name, and I would be concerned about that loss of continuous improvement.
I would also like to speak to amendment 14, in the name of Alison Johnstone. I fully agree with the thinking behind it, but I believe that it is covered by amendments 114 and 115. The bit of amendment 14 that is problematic for me is about setting targets for take-up. I hope that the target for take-up would always be 100 per cent and that we would measure against that. I would be interested to hear from the minister whether we have baseline take-up at the moment.
Adam Tomkins
My party’s intention is to support the amendments in the name of the minister in this group, but not the amendments in the names of Mark Griffin, Alison Johnstone or Pauline McNeill. It seems to us that a number of the Opposition amendments in this group are overly prescriptive and do not need to appear in primary legislation. For example, amendments 128 and 129, in the name of Pauline McNeill, would be better in the operating manual of the new Scottish social security agency than in primary legislation, and amendments 114 and 115, in the name of Mark Griffin, on income maximisation strategy, seem to us to be overprescriptive for primary legislation. We are not opposed to the policy intent underpinning those provisions, and indeed we would encourage that policy intent, but we do not see the need for them to be in primary legislation.
I pause to note amendment 140, in the name of Alison Johnstone, which I understand the minister is not supporting. That is an indication of just how difficult it is going to be to navigate the meaning of section 1, which states that Scottish social security will be a rights-based system. Alison Johnstone’s amendment probes the extent to which that rights-based system will become a real