Social Security Committee

Meeting date: Thursday, February 27, 2020

Official Report 608KB pdf

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Correspondence (Constituency Inquiries)

Welcome back, everyone. Agenda item 4 is correspondence from the DWP’s Scotland area director.

I remind members that, following concerns being raised by Linda Fabiani MSP, the committee agreed to write to Scottish Jobcentre Plus district managers, seeking clarification on the current procedure for MSPs making universal credit constituency inquiries.

I refer members to paper 4, which is the reply from Margarita Morrison, the DWP’s area director for the delivery of universal credit services across Scotland. The committee is invited to consider her letter and agree its response.

I have strong views on the reply that we have received, but it is only appropriate that I let other members come in first with their thoughts. Who would like to comment?

The process that the Department for Work and Pensions has set out is not at all acceptable. Members of the UK Parliament are regarded as having the implicit consent of their constituents and are able to contact the department about universal credit matters to get immediate solutions for them. A similar process should be in place for members of this Parliament.

In general, matters involving the Department for Work and Pensions are reserved, but the position is much more nuanced than that. We have the power to legislate and to make policy on universal credit flexibilities. The Scottish Government is mitigating the effects of the bedroom tax through discretionary housing payments, and both Governments are working towards a permanent fix, which might or might not be done through universal credit. The Scottish Government and the Scottish Parliament have an ambition to see split payments within couples being made through universal credit, and there is the potential for a future new benefit, or a top-up, over which both of the Scottish bodies will have powers, which could mean changes to universal credit specifically for Scotland. Therefore, it is not the case that universal credit is a purely reserved benefit on which we have no input; we have a whole range of levers that we can use and changes that we can make.

Having two tiers of access in supporting our constituents is completely unacceptable. The DWP should reflect on the changes that we, in this Parliament, can make, and it should regard all parliamentarians as having the implicit consent of the constituents they represent.

If that turns out to be the mood of the meeting, once we have heard everyone’s views, we will decide how best to ask the DWP to reflect on its position.

I understand that the DWP deals with constituents’ issues in the same way as NHS Scotland and local authorities do. If that is not the case, I would be interested in hearing the correct information.

As I read the letter, the DWP is saying that a member who made an inquiry would need a letter from their constituent confirming that they had their consent to do so. My experience has been that NHS Lothian, City of Edinburgh Council and the other Lothian councils will not deal with me until I can provide them with my constituent’s written consent for me to do so. I am not sure that the DWP’s position is any different from that of NHS Scotland or the local authorities in my region. Therefore, if we are to make a principled argument to the DWP, we will need to explore doing so with those other bodies. That is how things work in the area that I represent, and I am not sure that the DWP is asking for anything different from what other organisations in Scotland ask for.

At this point, perhaps I can provide some information. I am sure that members will have read the reply from the DWP, which says:

“Once explicit consent is provided by a claimant, it will last until the specific request for information is resolved, or until the end of the Assessment Period after the one in which consent was given.”

Members across the Parliament regularly correspond with the national health service. My experience with NHS Greater Glasgow and Clyde has been that I have one mandate form for a given constituent and that—

That is not the case in Edinburgh.

Mr Balfour, I will let you come back in once you have let me have my say.

That is how things work in NHS Greater Glasgow and Clyde. With local authorities, I do not always need a mandate, but, when I do, there is one mandate that is not time restricted, which is not how NHS Greater Glasgow and Clyde works.

However, my point is this. We could draw the issue to the attention of the conveners of the Local Government and Communities Committee and the Health and Sport Committee, but, as the Social Security Committee, we need to stay focused on getting the best possible results and outcomes on social security matters for the people we represent. We must do so without fear or favour and regardless of whether we are dealing with councils, Social Security Scotland, the DWP or the UK Government.

I do not want the committee to be deflected by what other public bodies might or might not do. As we have heard, my understanding is different from Mr Balfour’s, and other practices around the country might differ. Let us note that fact when we inform the conveners of the relevant committees, but we should not be sidetracked by unreasonable barriers being put in place and we should not deviate from delivering for the constituents we all represent.

I will bring in Shona Robison.

I thought you said that you would come back to me, convener.

You have indicated that what I have outlined has not been your experience in Edinburgh, and I have suggested what the committee might do.

I thought you said that you would come back to me, though.

Yes, but let me finish.

Yes, you did say that.

I do not need your help, Mr Simpson—I can chair the meeting without your assistance, thank you.

I said that we could note the issue in writing to the conveners of the Local Government and Communities Committee and the Health and Sport Committee. The specific point about the position in Edinburgh is now on the record. I invite other members to come in with their views on how the DWP does or does not do its business.

Would you like to make additional comments on that before I allow your colleagues in, Mr Balfour?

Yes. I do not think that the DWP’s position is unreasonable, and I would not use the word “barrier”. I think that the department is safeguarding constituents’ data protection rights. Therefore I disagree with you, convener. It is important to note that practices clearly differ across Scotland, but I do not see the need to obtain constituents’ consent as being an extra barrier.

I am disappointed that the cross-party consensus that we had earlier may now be fragmenting, which is not very helpful, but you have said what you want.

Let us see whether we can build any consensus. I will bring in Shona Robison and then the deputy convener

I understand what Jeremy Balfour is saying, but a crucial point is being missed here.

Because of the general data protection regulation, mandate and consent forms are standard for the NHS and for local government. However, in the social security context, MPs and MSPs are being treated differently. If a local MP were to go along and take up a constituent’s case with the NHS or local government, they would have to go through the same process as an MSP. However, in social security matters, MPs are being treated differently from MSPs, who are being required to do something that makes it more difficult for the constituent who is in front of them than would be the case if an MP were involved.

I agree with the points that Mark Griffin laid out so articulately. Even if we were to concede that social security is a reserved area—I do not agree with that argument, because I do not think that there should be any difference—the distinction between reserved and devolved matters is no longer so black and white. Especially over the past year or two, a lot of things have changed, which means that we very much have a policy direction on benefits. The situation is now more nuanced, as Mark Griffin laid out very well.

I hope that Jeremy Balfour will accept the crucial point here, which is that MPs and MSPs are being treated differently, which does not happen when MSPs raise issues with other bodies on behalf of their constituents.

I will, of course, let you back in to respond to that, Jeremy—although not right now. We have plenty of time in hand.

Initially, I thought that Jeremy Balfour had a fair point when he said that MSPs were required to prove consent in their dealings with the NHS. However, I now feel differently, for the reasons that Shona Robison has outlined. We must ask ourselves whether we are or are not going to stand up for the rights of elected members of the Scottish Parliament.

There are other examples of MSPs being treated differently from MPs for no reason. Members of the Scottish Parliament, which is the strongest devolved Parliament in the world, do not have the same rights of privilege to speak as MPs do. For what reason? Looking at the situation in reverse, why are MPs not required to jump through more hoops? They are not responsible for the NHS in Scotland, but the NHS does not treat them any differently from MSPs in replying to them. Therefore, why are we being treated differently by the DWP? There should not be one rule for devolved issues and another for reserved ones. We might question why an MP would take up an NHS matter in Scotland, but they would be perfectly entitled to do so, and we would not want to change that.

However, I object to being referred to in the letter as a third party. On reading the letter closely, I feel that it is saying that MSPs are in the same position as, say, a Citizens Advice Scotland worker. There should be some respect for elected members and the responsibilities that we hold.

One of my concerns is that the current approach will delay things. When I was asked to check that the person I was representing had signed the appropriate mandate form, it took a few days because, due to the nature of their job, they could not just go into their journal whenever they wanted but had to wait until they were at home. That delayed the process by 24 hours, yet they had an important issue.

There is implied consent for MPs, and it is implied because they are office holders, everybody knows who they are and they are elected by thousands of people. However, so are we, and we are entitled to be treated according to the same principle. Although I accept Jeremy Balfour’s comments, the overriding point is that we should stick up for ourselves.

It is also worth observing that how the DWP approaches the matter in different parts of the country—even in the same part of the country, depending on the DWP staff member—can be a bit inconsistent. I would like to ask for greater clarity and consistency in how it is done, to ensure that there are no barriers.

Having read the annex of the letter, which has been made available to us and which is about the protocols that DWP workers should work to, I consider that those protocols are open to interpretation. Margarita Morrison has recirculated that guidance, but it does not provide the clarity that is needed for a consistent approach. Whether we agree or disagree with the approach, it should be consistent. The annex is vague and can be interpreted in a draconian fashion if staff so choose. That has certainly been my experience in the cases that my constituency office has seen.

There is a way through this. We all agree that there should be consistency in the way that MPs and MSPs are treated, so the question is whether MPs and MSPs should both have to seek consent to deal with a constituent’s problem, whether it involves the DWP, the NHS or a council. That is a separate question, and I tend to agree with Jeremy Balfour that consent should have to be obtained when dealing with sensitive information—I do not have an issue with that.

I think that members’ beef is with the inconsistency in how MPs and MSPs are treated by the DWP, which we also see when dealing with HMRC. Perhaps the treatment of MPs is wrong and they should have to seek consent, but the process should be the same, one way or the other. I agree with colleagues that consistency is required. If the committee wants to take the matter forward, we should seek consistency across the board. We should either all have to seek consent or none of us should. Personally, I think that we should have to get consent but that that should be the case for everyone.

Thank you for your views.

That is helpful. I do not let any constituent leave my office without getting consent from them. We have a simple and straightforward consent form that has to be signed.

However, with the DWP, it is not simple and straightforward; it is being made difficult. There is no concern about having to get consent; it is about how that consent is given. It should be easily obtained and should last for as long as the constituent is in need of assistance from the elected person, whether they are an MP or an MSP.

If we are able to agree on that, it will become a matter for the DWP to take on board and resolve. I would like to pursue the matter on a cross-party basis. If we can agree, that will be progress and it will then be about keeping it simple. We all have consent forms that are good enough for every other public agency and should be good enough for the DWP.

The need for consistency is at the heart of this. I agree with Mark Griffin’s and Shona Robison’s comments, and I appreciate Graham Simpson’s endeavours to find common ground. However, I think that it would be more straightforward to afford MSPs the same treatment as MPs than it would be to have about 600 MPs agree that they, too, should have to seek explicit consent.

GDPR is as much an issue for them as it is for us, yet they have implied consent, which does not make any sense. We are probably all receiving more and more correspondence on social security issues, and that is only going to increase, so we need to get this sorted. By the time a constituent has written to one of us, most of the sensitive information has already been shared and we are acting on information that we already have—they have already contacted us with it. Therefore, I do not think it is beyond the realms of possibility that we could ask for the same implied consent that MPs enjoy.

To be frank, I do not think that the letter has been written in good faith. If you examine the detail, you will see that the DWP is offering us very little. Even if we agreed about the need for explicit consent, we do not get it for very long—it is very restricted. The DWP is not offering us a great deal.

A solution might be for us all to be treated the same, but, like Alison Johnstone, I do not see how we could reverse a situation that MPs have enjoyed for quite some time. Implied consent is still consent—it is the privilege that MPs are allowed—and, when someone walks through the door of an MP’s office seeking help, it is implied that they are consenting. It is a form of consent, but it is obviously not as robust as the DWP would like it to be.

In some of the work that the committee has done on data protection, witnesses have said that there is total overkill—that data protection is being used unnecessarily and is becoming a barrier to a lot of things.

Equal treatment is important, but I do not think that MPs would accept it. Nevertheless, I hope that the committee will agree that what we are being offered is very restricted. The process is not even that simple. At least the NHS approach is quite simple: the person signs a form. That should be the model. What we are being offered is nothing like that, and that should be the starting point.

Graham, how can we get MPs to roll back on the implied consent that they have? I do not think they will.

You are probably right: MPs probably would not agree to that. The committee is asking for the same treatment. Whatever that treatment is, it should be the same, because we are all elected to represent people and we all take up those cases. The process should be the same for all of us, whether or not it is the process that exists for MPs. That is what we should ask for if we take the matter forward.

The committee has been consistent in its view that MSPs should be treated on the same basis as MPs. We do not want to withdraw the entitlement that MPs have to access, but rather to enhance our ability to represent our constituents.

I remind members what the letter says, so that we can think about the practicalities if the DWP were to stick to the letter of its own guidance. It says:

“Once explicit consent is provided by a claimant, it will last until the specific request for information is resolved.”

Let us stop on that point. We can imagine a constituent saying that they are not sure what the child element is of their UC claim, and then, as that unfolds, saying that there is an issue with their housing element. They would need specifically to say, “This is about only this one part of my UC claim” and then, if something else came up, we would need a fresh mandate form for the second part of their UC claim.

10:30  

When we try to help our constituents by interrogating and scrutinising their entitlements on their behalf, we do not know what direction that representation will take us in, because we do not know what information we will receive. It is unwieldy and unworkable to have to have explicit consent for every specific request.

Also, consent lasts only until the end of an assessment period—I assume that that means a cycle of four weeks or one month—so if we have an on-going inquiry about one element of representation for our constituent, and that lasts beyond a month, we then have to get them to sign a fresh mandate form. By all accounts, that is just wrong and is putting up artificial barriers, as the deputy convener has pointed out from a sedentary position.

I promise you, Mr Simpson, that those are not new things or grandstanding by the committee. It has been an on-going struggle and tussle by the committee for quite a long time, which may explain some of the frustrations that you are hearing.

I agree with the comments that have been made by Mark Griffin, Alison Johnstone, Shona Robison, Pauline McNeill and you, convener. I also agree with Graham Simpson’s point about having the same system. The one thing not to do is to make it as difficult for MPs as it is for MSPs. That would just make a worse system for everybody.

However, there is a pattern. When I was elected in 2007 to be an MSP, I could quite easily contact the UK Government about immigration policy and it would communicate on individual cases. It stopped that. It has stopped communicating in other areas since then, for example in some tax areas.

As a minister—I am sure that it was the same for Shona Robison—one has a huge correspondence folder, and the number of requests that ministers get from MPs on devolved issues, which the Government has never stopped answering, is in contrast to the way in which the UK Government has greyed out certain areas for MSPs. That is the pattern. It is also about who is trusted. The point was made, I think by Pauline McNeill, that they know who MSPs are. It is about whether the person is trusted and MPs are trusted because they are a known quantity. So are MSPs; we do not change from week to week.

The question comes down to what we do about the matter. We could write to the Secretary of State for Work and Pensions, but the committee has signally failed to get a secretary of state to come before it. Even in the relatively short time that I have been a member, we have tended to hear, “Well, it’s another new secretary of state, give them time to bed in.” The issue is not the individual, but the contempt that the committee is being shown as it tries to take matters forward. I think that we have to get a bit more shouty about it, especially since, at the bottom of it, we agree that the system is not perfect.

For the committee’s information, NHS Forth Valley works in exactly the way that the convener described NHS Greater Glasgow and Clyde working. An MSP has to get explicit consent, but once we have it, we do not keep going back for consent to correspond with the health board about that patient. That is the case for both MPs and MSPs. If we were to adopt the same policy as the UK Government, we would say to MPs, “You’re not getting to ask questions about a person’s health situation without going through some rigmarole.” That is what they are doing to us. We have to try to get it resolved.

We would not, of course, propose what you describe, because it would be juvenile and not in the best interests of constituents.

That is right.

I concur with the points that you made a few moments ago, convener. As a matter of principle, there must be consistency and parity between MPs and MSPs. It terms of practicalities, as you effectively and eloquently outlined, given that it is a split competency, the access afforded to MSPs must be commensurate with our responsibility if we are to discharge effectively our duties as representatives.

In the first instance, my view is that, for reasons of principle and practicality, there should be parity between MSPs and MPs. Mr Simpson has raised fair points, but concerns about data protection and access should be reflected on separately. That should be a matter of dialogue with our colleagues in Westminster across not just parties, but Governments and Parliaments. Given that it is deemed acceptable for MPs to have a level of access that has not been afforded to MSPs at the moment, the first step should be towards achieving parity. Once that parity has been established, any other considerations about the level of access should take place jointly with members of the UK Parliament and others.

We will have to wrap up the discussion shortly. I will bring in Graham Simpson and Jeremy Balfour, but we will have to come to a conclusion at some point.

We need to think about how we take the matter forward. There is the issue that the committee has been looking at, which is within its remit, but we have all faced wider issues relating to getting consent and the varying policies of different public bodies. It is entirely up to the convener, but he could raise the issue at the Conveners Group and see what other conveners think in relation to their portfolios. If the Conveners Group were to come to a view on the issue in general, that might carry some weight. It is a difficult matter, but the next step might be for the committee to write a letter to the appropriate UK Government minister. I am not sure how far that would get us, but I think that we all agree that there needs to be consistency.

Tom Arthur summed up the issue very well. We should send a letter to the DWP and to the secretary of state simply saying that the same rules should apply for MPs and MSPs, and we should ask the secretary of state to clarify why that is not the case. Depending on what response comes back, we can take the matter forward. There is a separate debate about how that should happen and how consent is given. However, as the deputy convener pointed out, as a principle, MPs and MSPs should be treated in the same way, and that is the point that we should pursue in our letter.

I have taken some notes on points on which I think that there is consensus. Despite the initial comments, I think that we can agree that the committee received an unsatisfactory reply that does not take us any further forward or get to the bottom of the issues that we raised. We can reflect that back to the secretary of state. I will say more about that in a second.

There is consensus that there should be parity and consistency across the country in how MPs and MSPs are treated in relation to these matters. Everyone has read annex A and has looked at Margarita Morrison’s response, so I hope that there is consensus that there is a lack of clarity in how the guidance could be interpreted. It would be helpful if we could spell that out, too.

I said that mandates are valid for only one assessment period, and I would like to think that there is consensus that the time-limited nature of mandating is not satisfactory either, so we can say that.

Convener—

I will finish what I am saying and then I will bring you back in.

I gave the example that, when you start an inquiry into universal credit, you need a mandate for getting information on one narrow thread of a universal credit claim, and then you need to seek an additional mandate for getting information on another thread of the claim. In essence, you are making one constituency inquiry, but it evolves as you get more information, so it is not satisfactory or acceptable to need to get fresh mandates for the one case.

I hope that we can get an agreement that none of the things that I have outlined is acceptable. Do we have that agreement?

No.

That is unfortunate. What bits do you not agree with?

I do not agree with your last comments. We need to focus on getting it right for MPs and MSPs; that is the issue. We should have a separate debate and discussion on how that is done once we have agreement with the DWP that it will treat MPs and MSPs in the same way. I want to remain focused solely on asking the DWP why it is treating MSPs differently from how it treats MPs, because we should all be treated in the same way.

The deputy convener is right: I do not think that MPs will want to use a more complicated model, so we might end up where we are, but that is a separate issue. If we are to remain focused, we should focus on why two lots of elected members of Parliaments are being treated differently.

Again, we have to stick to what we are responsible for as the Social Security Committee. We are responsible for making sure that our parliamentarians do not have any undue barriers or restrictions placed on them in representing constituents as far as social security is concerned.

Irrespective of the debate on MPs, MSPs and parity—and we seem to have agreement on that—I would like to think that we have agreement that a mandate form existing for a time period of only four weeks would be unreasonable. I would like to think that if we are inquiring about a universal credit claim, we would not have to spell out the individual elements of that claim with separate mandates each time to be authorised to get information. That is self-evidently unreasonable, and I ask for that to be reflected in any correspondence.

I think that I have agreement from the majority of the committee. I do not think that we are re-inventing the wheel or asking our Conservative colleagues to break party ranks. The committee has agreed on this previously, and I hope that we can stay strong on it.

We have agreement that MPs and MSPs should be treated the same. I was not comfortable with some of the language that you were suggesting but, if we boil it down, we are asking to simplify the system. If we sent a letter in those terms, we could agree to it, but I would be less comfortable with some of the more inflammatory language. I assume that you will send the letter around the committee members for approval.

We could possibly agree to do that, but what do you mean by “inflammatory language”? I asked members to decide whether we think that the time limit of four weeks for the mandating process was acceptable, and whether we think that the narrow nature of the mandating process was restrictive and should be looked at again. I did not say anything inflammatory. We all need to be careful with our language in relation to these things.

I do not see how it can possibly be the case that arguing for equal treatment for MSPs and MPs does not also go to the point about how well the system works. If we think that we should ask everyone to do this and ask the MPs, we can imagine what they are going to say. It is never going to happen. We all know that it is not going to happen; that point is conceded.

Convener, I know that you are keen to get cross-party support on this issue. I do not understand why two MSPs would want to limit the role of MSPs in trying to progress social security cases, but I am not that concerned about that. If people want to stick on that and can justify it, let them do it.

I never said that.

Let me finish; I have listened to everyone else.

The endless correspondence has got us nowhere in the end. We should get the secretary of state here. She has not yet come. The previous one never came, and various other ministers have not come. We should get her to come and justify why she thinks it is in the interests of our constituents not to be properly represented by MSPs.

If Jeremy Balfour and Graham Simpson want to go their own way, I am fine with that, but we have to make the point on behalf of our constituents.

We have to make a decision. I have some additional information for the new members of the committee: we have already said much of this to Thérèse Coffey, the secretary of state, and we have not yet had a reply.

We do have a reply from the DWP that allows us to write a much more detailed letter to the secretary of state and ask again for her to come to the committee, as we have already done, diplomatically, without using inflammatory language. In fact, if you go back to the Official Report, Mr Simpson, you will see that I made some complimentary comments about the secretary of state regarding her initial dialogue with me. We do our business professionally at this committee.

For my own integrity, I cannot sign up to a letter that says nothing and goes nowhere. I want to champion the constituents that I represent, not withdraw rights from MSPs so that we cannot represent our constituents effectively.

I will go to the deputy convener and then we will come to a decision.

I am certainly making an effort to meet the two members who have concerns; I hope that that is appreciated. I will stick with it, but if there is a difference of opinion on the committee, Keith Brown is right: we will just have to go our separate ways.

If we narrow our concerns down, the first point is that we want to know why we and MPs are not being treated equally. Do we agree on that point?

Yes.

Yes.

10:45  

Whether we put it in this letter or the next letter, we all agree that, whatever the process is, it needs to be simple.

Yes.

Yes.

I hope that we also agree that there is an issue about the length of the consent. It is too short. There needs to be a reasonable length of consent. We can leave that open-ended. I think that consent should be for a parliamentary term, but I am happy to leave it open-ended.

Yes.

Yes.

Finally, if all else fails, I am perfectly content with the idea of implied consent. I am okay with parity on the basis of implied consent, and I am happy to leave that point until we get a response. However, I wonder whether Graham Simpson and Jeremy Balfour would concede that we could say in the official letter that the first point is about parity, point two is that the process needs to be simple, and point three is that a month is too short, that we need longer period of consent and that we can debate what that should be. If Graham Simpson and Jeremy Balfour agree on those points, and we get a response that says that things will not be changed, then we can discuss whether the committee agrees on implied consent. That would be my position; I want to make that clear.

I am happy with that.

I agree.

That is wonderful. The deputy convener has just said all the things that I said initially about parity, consistency, clarity, time limits and the narrowness of the problem. We will get the clerks to draft a letter to the secretary of state urging her to respond to those issues and to come to the committee as early as possible. It will not be the first time that we have asked the secretary of state to come to the committee, but we will do it again.

We will circulate the letter. If we cannot get agreement from the Conservative members, I will send it anyway, noting that they did not sign up to it. That will at least give us an opportunity to stick together as a committee. I am not going to sign off a letter as convener that does not fully meet the needs of the constituents that I represent who are struggling with the welfare state and their interactions with the DWP. We all have an agenda to help those people.

If the letter is sent in the terms that Pauline McNeill expressed, we can all agree to it.

The letter will be circulated. What our deputy convener said will be in the Official Report.

As with all these matters, I do not write the letter personally. I ask my clerks to sum up the mood and agreement of the committee. They draft the letter and put it out for consideration. That is important for clarity, Mr Simpson. When you see a letter from the convener, it will be a considered, professional and careful reflection of what the committee has agreed to this morning. It will be up to the Conservative members to decide whether to sign up to it once they have seen it.

On a point of order, convener. This is on the record and people have been watching the meeting. Will the letter be brought back to the committee so that people will be able to see what has been written? We have just had a discussion and people will wonder what has been written.

The way that we have done our business in all the time that we have both been on this committee, Mr Balfour, is that any letter that I send as convener goes on to the website and so into the public domain. That is absolutely vital for openness and transparency. Nothing will be secret or hidden. The views expressed by the committee will be public in relation to that letter, as will be whether our Conservative colleagues sign up to it.

I am obliged.

We now move to item 5, which we previously agreed to take in private.

10:48 Meeting continued in private until 10:59.