COVID-19 Recovery Committee
The Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill was introduced on 15 November 2021 by John Swinney, Deputy First Minister and Cabinet Secretary for COVID Recovery (DFM). The Bill was accompanied by a Policy Memorandum (PM), Explanatory Notes (EN), and a Financial Memorandum (FM). The Scottish Government also published the following impact assessments—
The COVID-19 Recovery Committee was designated as lead committee on the Bill on 24 November 2021 (which means that it considers and reports to the Scottish Parliament on the general principles of the Bill).
The Billseeks to extend temporary modifications to the Public Health Etc (Scotland) Act 2008 (“the 2008 Act”)so that health boards have discretion as to whether to pay compensation for self-isolation in connection with COVID-19, rather than a duty. The Bill is required as a consequence of previous temporary modifications made to the 2008 Act by the UK Coronavirus Act 2020 (“The UK Act”) expiring or ceasing to have effect.
The modifications only remain in force while schedule 21 of the UK Act remains in force and the statutory declaration made under that schedule remains in place. That schedule will expire in March 2022.
The declaration is to the effect that the Scottish Ministers are of the view that—
COVID-19 is a serious and imminent threat to public health; and
the powers in schedule 21 of the UK Act remain a suitable means to reduce transmission of COVID-19.
If the Scottish Ministers cease to be of this view, they must revoke the declaration.
The 2008 Act includes a duty on Health Boards to provide compensation to a person who has been asked by the Board to be quarantined, be excluded from entering or remaining in a specified place or refrain from carrying on any activity or type of activity, and similarly to pay compensation to the carers of such a person (such as parents of children requested to self-isolate).
The UK Act modified the 2008 Act to temporarily remove this duty on Health Boards and to instead make the payment of compensation discretionary. The PM outlines that the 2008 Act1—
was not drafted with a global pandemic, such as COVID-19, in mind. The types of outbreaks referenced by the Policy Memorandum in that Bill refer to diseases such as E-Coli when only limited numbers of people might be asked to quarantine.
If this modification to the 2008 Act were no longer to be in force, Health Boards would become liable to pay compensation to all people they ask in writing to self-isolate and to carers of such people. This would place a substantial financial and administrative burden on Health Boards.
The Bill is being introduced to continue the modifications made to the 2008 Act until October 2022, and so effectively maintains the “status quo” until that date.
In setting out the policy objectives, the PM accompanying the Bill explains2,—
This modification through the UK Act has remained in place since March 2020, and will expire in March 2022. Should transmission of COVID19 continue at significant levels, then health boards would face a significant financial and administrative burden. This Bill seeks to avoid that burden by continuing to keep the modification in place until October 2022, with regulation making powers to extend or expire early, with respect to instances of COVID-19 infection only.
The Bill contains the following sections—
Section 1 modifies sections 56 and 58 of the 2008 Act;
Section 2 provides that section 1 will expire on 31 October 2022 and provides a power for the Scottish Ministers to make regulations making transitional, transitory or saving provision in connection with the expiry of section 1;
Section 3 gives the Scottish Ministers the power to change the date of expiry of section 1 by regulations. (Section 3(1) gives the power to change the expiry date to an earlier date and Section 3(2) gives the power to change the expiry date to a later date);
Section 4 sets out the relevant Parliamentary procedures for regulations made under section 3;
Section 5 provides for the expiry of paragraph 46 of schedule 21 of the Coronavirus Act 2020 if it has not expired before the Bill comes into force;
Section 6 sets out that the Bill will come into force on the day after Royal Assent;
Section 7 contains the short title of the Bill.
Whilst the modification to the 2008 Act remains in force, the PM explains that alternative financial assistance for those people self-isolating due to COVID-19 for those on low incomes is being provided through the Scottish Government’s Self Isolation Support Grant (SISG) administered by local authorities using the Scottish Welfare Fund statutory guidance. Parents and carers of those who are under 16 and are notified to self-isolate are also currently eligible to claim the SISG.
The PM points out that this Bill seeks to limit the financial impacts on health boards of COVID-19 compensation claims, as a far greater number of people would be eligible for compensation than are currently eligible for the SISG. It stated1—
..it is anticipated that the average payment would be higher than the £500 currently provided through the SISG – both because people with higher incomes would be eligible, resulting in higher losses, and because compensation would include all losses, not just income – although for some claimants the payment would be lower.
The current costs to the Scottish Government this year for providing the SISG is £18.8 million and the FM estimates the compensation costs health boards, should this modification to the 2008 Act not be in place, would be twenty times that amount, £380 million in 2021/22.2 It explains3—
Unlike the SISG, compensation under the 2008 Act provisions is not capped. Under those provisions, compensation will be determined by the losses incurred by all self-isolating people, and their carers, rather than those most in need and who meet the eligibility criteria currently in place for the SISG.
The DFM confirmed that the cost estimates for the Bill were undertaken prior to the emergence of Omicron and that these will be revised in line with updated modelling. He said that it is likely that the estimate will increase significantly. 4Indeed the First Minister announced on 14 December 2021 that an additional £100 million had been identified for the Self-Isolation Support Grant.
The Scottish Government consulted on its proposals for this Bill, the consultation running from 23 August to 27 September 2021. It asked whether respondents agreed with the proposal to extend the modifications to the 2008 Act and whether respondents agreed that the Scottish Government should have powers to extend or expire these early; and on the conditions that should apply to using those powers.
It received 14 responses to the consultation, with 11 in favour of the proposals and 3 against. 9 responses were from individual members of the public and 5 from individuals representing organisations. The Scottish Government produced an analysis of the responses on 21 October 2021.
The Scottish Government stated that the proposal to maintain the modifications made to the 2008 Act will enable it “to focus on continuing to provide financial and practical assistance to people who self-isolate due to Covid, without increasing the financial and administrative burden on Health Boards”.1
The consultation document highlighted that self-isolation has been one of the key tools in the Scottish Government’s response to the pandemic and that the modification to the Public Health Act is thought to have protected Health Boards in Scotland from a very significant financial and administrative burden. It states2—
The Scottish Government has ensured that alternative financial and practical support has been in place during the pandemic for those in need. For example, the Self Isolation Support Grant provides £500 to workers who lose income as a result of self- isolating and earn the Real Living Wage or less.
..In addition, the Scottish Government continues to fund the National Assistance Helpline and the Local Self-Isolation Assistance Service, ensuring pro-active and reactive phone calls to people self-isolating to ensure they can access practical and financial support they require whilst self-isolating.
The Committee launched a call for views on the Bill proposals which ran from 16 November 2021 until 10 December 2021 and resulted in three responses. Following its introduction, SPICe produced a briefing on the Bill.
The Committee took oral evidence at its meetings on 2 and 16 December 2021 (see Annexe A).
The Committee would like to thank all those who provided oral and written evidence as part of its consideration of this Bill.
The Finance and Public Administration Committee issued a call for views on the FM which closed on 8 December 2021. It received three responses which were sent to the Committee for information.
The Delegated Powers and Law Reform (DPLR) Committee considered the delegated powers in the Bill at its meetings on 23 November 2021 and 14 December 2021. That Committee published its report on the Bill on 14 December 2021.
It welcomed the Cabinet Secretary's commitment to lodge an amendment to the Bill at Stage 2 introducing a duty to consult with health boards, and any other persons as the Scottish Ministers consider appropriate, in advance of any regulations under section 3(1) or 3(2) to alter the expiry date of section 1 being made. It also was content with the power in section 3(2) in principle, and was content that it is subject to the affirmative procedure, or in urgent circumstances, the made affirmative procedure.
This Committee also considered the regulation-making powers to vary expiry dates within the Bill, and this is discussed later in this report.
Although most respondents to the Bill proposal were supportive of the Bill, the Scottish Government's analysis of its consultation responses highlighted that a number of written responses related to the levels of isolation support provided, the need to provide sufficient financial support and on some of the differential impacts of COVID-19 on some groups with protected characteristics. The analysis report stated1—
The importance of the Scottish Government providing financial support to individuals who were isolating was highlighted by some respondents, along with the need to prioritise health and social care support for families struggling due to the self-isolation rules. Whilst levels of support, whether financial or practical, are outwith the scope of the proposed Bill this feedback has been noted by the Scottish Government.
Although the Committee only received three responses to its call for views, all were in favour of the Bill.
Sandra MacLeod, representing Aberdeen City Health and Social Care Partnership said that the Partnership was in support of the Bill, telling the Committee that the Bill’s support for people on low incomes in helping them to remain in self-isolation is a positive move. This point was echoed by Susan McKellar representing the Scottish Women’s Convention.2
The Law Society of Scotland suggested that a statement of reasons should accompany any emergency regulations made under section 4 of the Bill to move the expiry of section 1 (using the provisions in section 3 of the Bill) to a later date and that it should explain why it is necessary to make the regulations urgently. Michael Clancy representing the Law Society of Scotland said3—
The point is that there is no definition of “emergency”. The only reason that is given in section 4(4) is that the Scottish ministers consider that regulations “need to be made urgently”. Why they think that regulations need to be made urgently is the question to which we are seeking the answer... we think it appropriate for ministers to be transparent about the reasons for urgency, and for those reasons to be made clear to Parliament, so that, in contemplating the regulations after they have been made—it is important to remember that Parliament will do that after the regulations have been made—it can assess whether it was appropriate for ministers to take the route in section 4(4).
This issue was raised with the DFM who responded4—
The Law Society makes a reasonable proposition in relation to the statement of reasons, and I have asked my officials to explore that point.
On the Financial Memorandum, in its response to the Finance and Public Administration Committee's call for views, NHS Ayrshire and Arran supported the Bill and said it thought "the figures in the financial memorandum are reasonable."5
In its written response, Shetland Islands Council acknowledged the additional financial cost should the modification to the 2008 Act not be in place and the universal nature of the financial support under that Act. It stated6—
There is also acknowledgement of the targeted nature of the support provided by the Self Isolation Support Grant but would like to highlight the potential socio-economic impact on those with lower incomes or in areas where there is a significantly higher cost of living if this Bill is passed and no consideration is given to reviewing the SISG scheme, qualifying criteria and financial support.
The PM outlines the following three alternative approaches considered prior to the Bill's introduction—
Allow the mandatory compensation power in the 2008 Act to resume including with respect to COVID-19;
Make regulations under sections 56 and 58 of the 2008 Act to establish a compensation scheme with some limitations;
Use Primary Legislation to continue the modification once the UK Act expires.
The first alternative approach was not considered by the Scottish Government to be a sustainable option given the compensations costs under the 2008 Act powers. The second approach was discounted as, according to the PM, these powers could not be used to limit eligibility for compensation. On the third alternative approach, according to the PM1—
On balance, primary legislation was the only route, owing to the need to limit the costs of the financial and administrative burdens the 2008 Act’s compensation duty would incur on health boards, and there is no other way to limit these costs other than to continue the existing arrangements for the purposes of COVID-19, which requires primary legislation to do so.
The Law Society of Scotland gave its view on the difference between introducing this Bill rather than using the powers under the 2020 Act to extend the modifications to the 2008 Act. It stated that whilst the Scottish Government could have used powers under the 2020 Act, the extension could only have been made until 25 September 2022 initially, and subject to further six-month extensions if required. In its written submission it stated2—
This bill differs from what could be done under the 2020 Act:
It makes the initial extension until 31 October 2022.
It changes the procedures for extension. Under the 2020 Act regulations are subject to the made affirmative procedure. Here the initial extension is by primary legislation, and subsequent extensions are subject to the affirmative procedure (unless they are emergency regulations) and must be accompanied by a statement of reasons.
Whereas Schedule 21, para 46 of the 2020 Act made a blanket modification of the compensation provision in the 2008 Act from a duty to a discretion, this Bill makes compensation discretionary only in respect of quarantine for Covid-19.
We welcome the change to the 2008 Act because it is both more narrowly targeted and subject to better procedural control.
Michael Clancy told the Committee— 3
...I can see perfectly clearly why the Scottish Government alighted on the solution of producing the bill that is before the committee today...It is clearer, it allows the Government to achieve its policy objective and it ensures that we get the opportunity to give evidence to the committee, as we are doing today.
As previously outlined, the UK Act made the original modifications to the 2008 Act and witnesses discussed why, rather than introducing the UK Act, the existing provisions in the Civil Contingencies Act 2004 were not used to deal with the pandemic. This was an area of discussion not directly related to this Bill, however the Committee notes the points raised and these may help inform the Committee's consideration of the Scottish Government's forthcoming Covid Recovery Bill which is expected to be introduced in 2022.
Consideration of this Bill also raised questions in relation to the compensation provisions contained in the 2008 Act. Questions arose as to whether the existing provisions in the 2008 Act are too widely drawn, whereby health boards are required to pay compensation to all people who are asked to self-isolate in relation to other infectious diseases following a written request from the health board to do so. This is not subject to any eligibility criteria. For example, compensation is not targeted at low earners.
Any compensation under the 2008 Act is provided directly by health boards, and information on the number or value of awards has not been collated centrally. The Scottish Government did however consult health boards on the amount of payments that have been made under this power in relation to COVID-19 and is aware of a small number of awards, including 8 payments from three health boards, for the purposes of COVID-19, since March 2020. The DFM confirmed in evidence that around 30 payments have been made under the terms of the 2008 act in non COVID-19 circumstances of isolated requirements of self-isolation.1
When asked whether the 2008 Act was too widely drawn and should be revisited, Michael Clancy told the Committee that the Law Society of Scotland have recommended that "the whole vista of emergency legislation needs some revision in relation to whatever emergencies there might be."2
The DFM, when asked if he felt the compensation provisions in the 2008 Act were fit for purpose, told the Committee3—
We must be clear that the 2008 act is fit for the purpose for which it was designed—that is, for isolated examples of self-isolation. It is not fit for the purpose of providing financial support in a pandemic, which is why we must put in place the new legislation.
As set out in the SPICe briefing on the bill, there is evidence that financial support for self-isolation can be a crucial tool in encouraging compliance and so reducing transmission of the virus, whilst preventing severe hardship. For example, the Scottish Government’s literature review says that1—
Rates of compliance are heavily influenced by financial constraints and depend on income support, job protection and support with accommodation. The economic risks of self-isolating are often perceived as more significant than risks to health, particularly for people from more disadvantaged backgrounds.
A number of witnesses expressed concern regarding the support provided to those who have been asked to self-isolate or carers of those self-isolating. Questions arose around limiting compensation only to those on low incomes and a need to adopt a more flexible means testing approach. Concern was also raised around public awareness of the SISG and eligibility criteria.
The Scottish Government has set out its guidance on those people who should self-isolate under its Test and Protect public health measure. This was first published on 18 February 2021 and was last updated on 6 January 2022, to reflect latest changes in light of the new Omicron variant. This position was correct at the time of writing however may be subject to change by the time of publication.
Scottish Government guidance explains that generally speaking, everyone who develops symptoms of COVID-19 should isolate straight away and book a PCR test as should those who live in the same household. If the test result for the symptomatic person is negative they can end isolation and return to work or school and the rest of the household can end isolation straight away.
Previously, if the test was positive, the symptomatic person was asked to remain in isolation until 10 days from symptom onset and the rest of the household asked to self-isolate and book a PCR test. The household of a positive case was also asked to self-isolate for the same 10-day period as the positive case, regardless of vaccination status of anyone in the household.
This was changed from 6 January 2022. The DFM wrote to the Committee to explain that all positive cases, regardless of vaccination status, are still advised to self-isolate for 10 days. However, if the individual returns two consecutive negative lateral flow device (LFD) tests taken at least 24 hours apart, with the first test no earlier than day 6, they may end isolation after 7 days if they have no fever. The letter also outlines daily testing as an alternative to isolating for close contacts although, those who are not fully vaccinated will still be asked to isolate for 10 days and be asked to take a PCR test. The letter states1—
If a close contact has received three doses of a UK approved vaccination or are under 18 years and 4 months, they will be able to undertake seven daily LFD tests as an alternative to isolation, provided the tests are negative and they remain without symptoms.
The letter also states that if a person tests positive on an LFD test, they should treat this as a positive test, follow the isolation guidance that applies to them, and will not need a PCR to confirm their infection. The DFM explained that there are exceptions to this though, for instance in ensuring that people on low-incomes can evidence their infection for the Self-Isolation Support Grant and therefore they will need a PCR test as confirmation of their infection.
The Committee was interested in the exemptions used by the Scottish Government in key sectors aimed at minimising the impacts of isolation on those sectors. In supplementary written evidence to the Committee, the DFM outlined the Critical National Infrastructure exemption scheme used to minimise the impacts of isolation on key sectors and details of the exemption criteria for health and social care workers. In his subsequent letter of 5 January 2022, the DFM explained that these schemes had now ended stating2—
The First Minister has updated Parliament today on the changes being made to self-isolation policy, that will help support the economy and critical public services while still dampening transmission of Covid-19. The existing Critical National Infrastructure (CNI) scheme that supported critical industry to minimise the impacts of isolation related absence will end, as the exemption set out in that scheme is being applied on a population wide basis.
The SPICe briefing on the Bill looked at compliance with the self-isolation rules and the Scottish Government's survey work in this area. It stated3—
Detailed survey work from the Scottish Government (published August 2021) indicated that overall, compliance with self-isolation was high among survey participants and that people complied with self-isolation requirements in order to protect the wider population by reducing the transmission of COVID-19. However, the analysis found that there was a difference between how compliant people thought they had been, compared to an objective measure of compliance suggesting, says the analysis, that some participants may have lacked the knowledge, willingness and/or capability to self-isolate successfully.
When asked why the rules on self-isolation are set out in guidance and not in law, the DFM explained that this was to enhance cooperation with the rules. He stated4—
We recognise the importance of self-isolation, but we also recognise the importance of public consent in the work that we take forward. We listen carefully to behavioural scientists in relation to many aspects of the pandemic, and the behavioural analysis that we have undertaken indicates that it is best in that respect to work closely with and invite the collaboration of individuals in our common endeavour to control the spread of the virus.
The Scottish Government announced the SISG on 28 September 2020 and opened for applications on 13 October 2020. The details of the scheme were expanded as the policy on self-isolation developed, see fig 1.

As set out in the SPICe briefing, the Scottish Government spent between £0.5 million and £1 million per month up to May 2021 on SISG awards. However by September 2021, payments were costing £5 million per month. In total, in the year to September 2021, the scheme has cost £21.7m, involving just over 43,000 payments, see fig 2.

When giving evidence, the Scottish Women's Convention told the Committee that more should be done to help support people through self-isolation. Following a consultation exercise which was sent to over 4,000 women they found that none of the 100 women who responded had been successful in accessing the self-isolation support grant or local self-isolation assistance service, even though they had been required to self-isolate. Susan McKellar explained the reasons given as1—
Some of them did not even know that it existed and that they were able to claim, and others said that they did not know how it would affect their current benefits. Some people were on universal credit and thought that, if they claimed the grant, the money would get taken off their universal credit in the future.
She also told the Committee that the information around self-isolation support varied from health board to health board and that some respondents felt there was a stigma and discrimination attached to claiming benefits. In addition, she said although it is improving, there was not enough publicity around the SISG and that information on self-isolation support services should be more accessible.
Sandra MacLeod spoke of the experiences in Aberdeen where they received 3,234 applications for SISG with a reward rate of 53 per cent. She explained that the SISG has been promoted through a dedicated web page and online application form and they have support staff to help people who want to apply.
Susan McKellar also called for more transparency around the reasons for claims being rejected as reasons are often not provided.
The Resolution Foundation published a briefing note on the case for better financial support to self-isolate (May 2021) across the UK. In their briefing, the Foundation explored how the Government could further expand financial support for self-isolation so as not to risk undermining the vaccine rollout and exit from lockdown. It stated2—
Although the Government has expanded financial and practical assistance to those isolating, the restrictive eligibility criteria, administrative complexity, and low levels of compensation involved in existing benefits mean that many people still lose earnings for staying home if sick with or exposed to the virus. The £500 Test and Trace Support Payments only cover about 1 in 8 workers, and Statutory Sick Pay only covers a quarter of the average worker’s earnings – and misses out 2 million of the lowest paid workers altogether.
Although the £500 level of support grant seemed fair to Susan McKellar, she did raise concerns regarding eligibility, particularly for those just above the low income bracket who do not qualify for the grant. She told the Committee3—
With the cost of electricity going up, fuel poverty is a major issue at the moment, as is food poverty and insecurity. More people are trying to access food banks than ever before and most of them are working. They would come into the same category. Eligibility should be looked at on that basis. What would be the real cost to someone of spending that time in isolation and would it put their income below the real living wage? If so, they should be entitled to the grant.
When asked about the adequacy of the SISG, the DFM said4—
We feel confident that, combined with the other financial support that is available for individuals in such circumstances, the self-isolation support grant provides an adequate and appropriate level of financial support for the 10-day period. However, we have to continue to consider and be mindful of the issue.
The DFM acknowledged that there may be a case for the Scottish Government to look in greater depth at further promotion of SISG and said "I will endeavour to do that."
In addition to the SISG, the Scottish Government outlined the following additional support for those who have been asked to self-isolate1—
the National Assistance Helpline (NAH), a central support phone line that people self-isolating can call to engage the relevant local authority team who can triage their need for support whilst isolating; and
the Local Self-Isolation Assistance Service (LSIAS), a pro-active service that phones people self-isolating who wish to receive the service to consider whether they require support with access to food, essential medication or other local voluntary sector and statutory services.
As with the SISG, concerns were raised regarding the promotion of other support available to those who have been asked to self-isolate and the differing information provided to people across health boards2.
The Committee acknowledges the reasons why the Scottish Government considers this Bill is required and is in agreement that separate legislation is required.
The Committee notes the concerns raised by witnesses in relation to the support available to those asked to self-isolate in respect of COVID-19. It draws the Scottish Government’s attention to this evidence and recommends that the Scottish Government, separately from the Bill, reviews the level of support currently being provided and the eligibility criteria for those who qualify for support.
The Committee also recommends that the Scottish Government considers how best to increase public awareness of the support available to those being asked to self-isolate and of the eligibility criteria for the support schemes in place.
The Committee considers that a requirement to produce a statement of reasons when making regulations under section 3(2) to extend the expiry date of section 1, or when making emergency regulations under section 3, is appropriate and is provided for in the Bill in section 4(3) and section 4(5) respectively. However, in the interests of parliamentary scrutiny, when making emergency regulations, the Committee believes that the statement of reasons should also explain why it is necessary to make the regulations urgently and recommends the Scottish Government considers this in advance of Stage 2.
The Committee recommends that, at an appropriate time, the Scottish Government should review the compensation provisions in the 2008 Act to ensure they are fit for purpose.
The Committee supports the general principles of the Bill and recommends to the Parliament that they be agreed to.
10th Meeting, 2021 (Session 6) Thursday 11 November 2021
Coronavirus (Discretionary Compensation for Self-Isolation) (Scotland) Bill (In Private):
The Committee agreed its approach to the scrutiny of the Bill at Stage 1 and to consider its draft Stage 1 report in private at future meetings.
13th Meeting, 2021 (Session 6) Thursday 2 December 2021
Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill:
The Committee took evidence on the Bill at Stage 1 from—
Sandra MacLeod, Chief Officer, Aberdeen City Health and Social Care Partnership;
Michael Clancy, Director Law Reform, Law Society of Scotland;
Mike Brewer, Deputy Chief Executive, Resolution Foundation;
Susan McKellar, Operations Manager, Scottish Women’s Convention.
Consideration of evidence (In Private): The Committee considered the evidence heard earlier in the meeting.
15th Meeting, 2021 (Session 6) Thursday 16 December 2021
Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill:
The Committee took evidence on the Bill at Stage 1 from—
John Swinney, Deputy First Minister and Cabinet Secretary for COVID Recovery;
Marie Penman, Solicitor, Scottish Government Legal Directorate;
Michael Tighe, Team Leader, COVID-19 Legislation and Daily Contact Testing;
James Wilson, Head of Contact Tracing and Supporting Isolation Policy, Scottish Government.
Murdo Fraser declared an interest as a member of the Law Society of Scotland.
Consideration of evidence (In Private): The Committee considered the evidence heard earlier in the meeting.
1st Meeting, 2022 (Session 6) Thursday 13 January 2022
Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill: The Committee agreed its Stage 1 Report.