Social Security Committee

Meeting date: Thursday, September 10, 2020

Official Report 580KB pdf

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Social Security Administration and Tribunal Membership (Scotland) Bill: Stage 2

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

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

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

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

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

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

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

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

Will the cabinet secretary take an intervention on that point?

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

Okay—I am sorry, convener.

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

It was a question, rather than a statement.

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

Okay.

Thank you, convener.

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

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

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

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

I move amendment 6.

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

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

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

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

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

CPAG says that

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

and that it would

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

which could prove very expensive. CPAG also notes that

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

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

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

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

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

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

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

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

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

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

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

I see that we are agreed.

Amendment 6 agreed to.

Section 1, as amended, agreed to.

After section 1

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

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

09:45  

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

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

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

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

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

I move amendment 22.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment 22, by agreement, withdrawn.

Sections 2 and 3 agreed to.

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

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

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

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

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

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

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

I move amendment 8.

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

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

10:00  

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

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

Amendment 8 agreed to.

Sections 5 and 6 agreed to.

After section 6

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

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

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

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

“the duty to inform about possible eligibility”.

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

I move amendment 9.

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

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

Does the cabinet secretary wish to wind up?

I have nothing to add, convener.

Amendment 9 agreed to.

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

Section 7—Persons who can give diagnosis

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

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

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

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

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

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

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

I hope that the committee will support all those amendments.

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

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

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

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

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

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

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

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

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

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

I move amendment 11.

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

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

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

I ask the cabinet secretary to wind up.

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

Amendment 11 agreed to.

Amendment 5 not moved.

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

Section 7, as amended, agreed to.

After section 7

10:15  

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

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

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

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

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

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

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

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

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

I move amendment 15.

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

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

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

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

Not at the moment, convener.

Does anyone else wish to come in at this point?

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

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

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

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

Amendment 15 agreed to.

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

Sections 8 to 10 agreed to.

Section 11—Commencement

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

Section 11, as amended, agreed to.

Section 12 agreed to.

Long Title

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

Long title, as amended, agreed to.

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

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

10:24 Meeting suspended.  

10:28 On resuming—