Social Security Committee

Meeting date: Thursday, April 4, 2019

Official Report 664KB pdf

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Benefit Automation

Agenda item 2 is benefit automation. I refer members to paper 1, which contains a note by the clerk and a letter from Inverclyde Council. Members also have a short Scottish Parliament information centre paper, for which I thank SPICe. The Inverclyde Council letter draws the committee’s attention to a barrier to the council’s aim of maximising uptake of free school meals and the school clothing grant.

In March 2018, the committee held an evidence session on benefit automation and maximising uptake. Following that, the committee wrote to all local authorities, the Convention of Scottish Local Authorities and the Minister for Social Security. The issue that Inverclyde Council has raised has been highlighted in other local authority responses, albeit in more general terms. For clarity, and because there might be public interest in the matter, I want to spend a short time setting out the context.

Inverclyde Council’s letter to me, as convener of the committee, says:

“The Council considers the inability to re-use”—

council tax reduction

“data received from the DWP to identify families eligible for”

free school meals or school clothing grants

“represents a barrier to the maximisation of the uptake of these benefits and has also raised this matter with Cosla who have undertaken to take up this matter with the DWP. Inverclyde Council is committed to reducing Child Poverty and sees the re-use of DWP data as one step to achieving this aim so would welcome your assistance.”

The letter helpfully summarises the council’s perspective on the legal positions of the council and the DWP. I thank the council for that.

I want to put on the record some of the information in the briefing paper that SPICe has prepared. On social security information sharing, the briefing states:

“Information sharing is governed by GDPR, but legislation can allow information to be shared for particular purposes. The Welfare Reform Act 2012 allows social security information to be shared for:

• welfare services,

• council tax, and

• housing benefit.

Welfare services: ‘includes services which provide accommodation, support, assistance, advice or counselling to individuals with particular needs, and for these purposes’. The Explanatory Notes to the 2012 Act refer to using the information to assess whether someone has to pay for residential care and”—

this is important—

“‘The information may also be needed for decisions on whether to provide assistance under localised schemes, such as help with council tax.’”

I apologise to members for the length of this explanation. The SPICe briefing, in citing examples of local schemes, quotes the explanatory notes to the 2012 act, which say that

“Examples of further services covered are the provision of: Disability Facilities Grants; Blue Badge parking permits; Discretionary Housing Payments; or assistance to families with multiple disadvantages.”

I will make two points before I seek members’ comments. First, and most important, it appears to be that the difference between the DWP’s and Inverclyde Council’s interpretations of the Welfare Reform Act 2012 has led to denial of data use that would deliver—by automation, potentially—the school clothing grant and free school meals to families in Inverclyde and, perhaps, across Scotland.

I suggest that benefit automation would provide

“assistance to families with multiple disadvantages.”

It would be staggering if the United Kingdom Government sought to deny, in that way, use of data—I am sure that it would not want to do so intentionally—that would help children and families who are in need of support and assistance.

Secondly, I suggest that, as a matter of urgency, we write to the UK Secretary of State for Work and Pensions to seek speedy clarification, in the hope that that will direct the DWP to permit use of the information for that purpose. However, if the clarification does not enable use of the data, we should ask the UK Government to prioritise whatever steps are required to amend the 2012 act, or the relevant regulations, to enable automation of entitlement to families who qualify for free school meals and the school clothing grant.

I know that there is a lot in that, but when a local authority writes to us with a substantive issue relating to getting money to people who are most in need, we have to look at the matter in a meaningful way.

I have made a suggestion for action. Before we make a decision on whether to agree to it, I would welcome members’ comments.

I agree with the steps that you have outlined, convener. I note from Inverclyde Council’s letter the clear difference between the council’s and the DWP’s legal positions. If Inverclyde Council decided to accept the legal advice that has been provided to it by—I imagine—its own legal experts, it is hard to see who would challenge use of the data in the way that has been outlined. If the council’s advice is that it can use the data to reduce poverty in its communities, I would ask it to clarify whether it is going ahead and doing that.

That is helpful.

I agree with Mark Griffin. I am very grateful to Inverclyde Council for drawing the matter to the committee’s attention. For some time, the committee has been interested in income maximisation and automation of benefits. The Social Security (Scotland) Act 2018 has very important principles by which we want to abide. Those principles should be drawn to the attention of the DWP. Inverclyde Council is an example of a local authority that wants to make income maximisation easy. The approach has been proved to work for many local authorities. Glasgow City Council is the obvious example; it seems to be leading the way.

I am grateful to Inverclyde Council for drawing the matter to our attention. We should progress the issue that it raises.

I am happy with the direction in which we are going. To pick up Mark Griffin’s point, I say that this seems to be an issue of legal definition. It would be interesting to ask the secretary of state what legal advice DWP has taken and is relying on. As we all know, if you have three lawyers in a room, you will get five different bits of legal advice. Clearly, there is a difference in legal views. It would be interesting to explore a wee bit further why that has happened.

I know that the convener wants to handle the issue in a certain way, but I think that we should also ask what has happened in other parts of the United Kingdom. Has this issue been raised by English or Welsh authorities? I cannot believe that Inverclyde is the only place to have hit the problem. Have concerns been raised by English or Welsh local authorities and, if so, how have they got around it? Can we get around it? Is it purely a legal issue or is it a policy issue?

That suggestion is very reasonable, but I want clarity. We will talk about circumventing legal issues when we move to the next stage of our discussions, but our request of the UK Government is not to circumvent legal issues but to remedy deficiencies that might exist in the 2012 act. Rather than having three lawyers in a room arguing something out, it would be more beneficial to bring clarity to the 2012 act. Then we would not be paying lots of lawyers to argue about how many angels can dance on the head of a pin. However, I absolutely agree that we should ask the questions that Mr Balfour suggests. Does Alasdair Allan have a comment?

You said everything that I was going to say, but better.

I agree with the suggestion. As the deputy convener, Pauline McNeill, said, it is an issue in which the committee has long had an interest. She hosted an event with Glasgow City Council—I think that it was last year—at which we learned what it is doing. I would like to think that there is a solution to the issue, because the parties unanimously supported the actions in the Child Poverty (Scotland) Act 2017, so it is really important. It is also important that local authorities have an opportunity to share their activities with one another and to understand the differences.

That is very helpful. We will consider suggestions in relation to COSLA and other local authorities in a moment.

The key word for me is “assumption”—the assumption that the 2012 act provided for only the three elements of information sharing. It is a legal matter and the lawyers have obviously given that advice. I think that we should go back to the UK Government and ask the question. We should tell it what we are trying to do, ask about the legal basis for saying that the assumption is rigid and ask whether we can have flexibility.

At committee a couple of weeks ago I made the point, in relation to housing issues that we face, that we keep on considering make-and-mend solutions—circumventing this or finding a workaround for that. I repeat what I said then: we have to look at the root of the matter. There are two different philosophies here, one of which is about income maximisation, which has been the case in Scotland and parts of the rest of the UK. I am not saying that the UK Government is opposed to it, but it has not built it into the legislation, which is why it throws up such anomalies.

If we step back from the issue and look at it afresh, we see that we are trying to do something fundamental: we are making sure that the people who are most in need get all the benefits that they are entitled to in as seamless a way as possible. That is not working in this case. We might be able to get clarification from the UK Government on this issue, but I am sure that we will trip ourselves up over some other anomaly that comes up.

The best thing is to look at the situation from the other side—from the point of view of somebody who is struggling to feed and clothe their kids and to get the council tax reduction and all the other social security benefits to which they are entitled. They should have to do as little as possible to get them, and the people who are trying to provide the benefits should not be tripping over each other in trying to achieve that end.

It might be a forlorn hope, but a much more holistic view has to be taken in order to make it as easy as possible for people to get the benefits to which they are entitled. However, I am happy to go along with the suggestions that have been made by the convener.

We have pretty much unanimous agreement on how to take the matter forward with the UK Government. However, for the record, I ask whether the committee is agreed on the course of action as outlined.

Members indicated agreement.

I also draw members’ attention to another part of our briefing, which says:

“The DWP has worked with the Department of Education in England and Wales to create an automated eligibility checker to allow individuals and local authorities to check entitlement to free school meals. The Welsh Government pays the Department for Education for use of their eligibility checking service”.

It goes on to say

“The eligibility for free school meals is set by the Scottish Parliament in regulations. The eligibility for school clothing grants is set by local authority policy.

It is a Scottish policy choice”—

a very reasonable one, I suspect—

“to link eligibility to reserved benefits and to set an income threshold for eligibility for those on universal credit.”

09:15  

I therefore suggest that we also contact the Scottish Government, given its ambition to tackle child poverty and to promote income maximisation. In my view, we should also draw its attention to the alternative model that exists in Wales, although I am not convinced that the Scottish Government or the Welsh Government should have to pay for the privilege of accessing data when it is clearly in all our interests, and in the public interest, for them to be able to do that. I suggest that we ask whether the Scottish Government is aware of the issue and whether it will make representations to the UK Government in order to seek to resolve the matter.

In my view, we should also request that the Scottish Government update the committee on use of reserved benefit entitlements to access devolved services, and on how it is working with the UK Government and the Department for Work and Pensions to resolve issues such as the one that Inverclyde Council has drawn to our attention. That might be a reasonable way to proceed.

Do members have any comments?

As Michelle Ballantyne pointed out, the key word is “assumption”. It would be interesting to find out from the Scottish Government and, in due course, COSLA whether they accept that assumption or take a different view. When we write to COSLA, we could ask whether other local authorities have made the same legal assumption as Inverclyde Council, or a different one. It is clear that Inverclyde Council’s principal solicitor has taken a view and has advised councillors on that basis. I would like to know whether the Scottish Government thinks that the assumption is correct or wrong.

I absolutely agree that that should form part of the letter that we write. However, I state for the record that I do not want us to get involved in a lengthy debate about what assumption two different lawyers would make in interpreting the 2012 act and whether, if a third lawyer was involved, they would make a third assumption.

With respect, convener—

I will let you back in once I have finished what I am saying.

We should definitely ask what the Scottish Government’s view is of the assumption that the DWP makes, which is outlined in the letter that Inverclyde Council sent us about its interpretation of the DWP’s position. I agree with Mr Balfour. I am merely making the point that, for the benefit of the clerks who will have to draft the letter, I want the focus to be on a solution and an outcome rather than on a legal debate.

The point is that we are not talking about an attempt to circumvent the system; we are talking about an interpretation of how the system works. I could interpret a law in a certain way and be completely wrong. If I drive through a red light, I will have broken the law, regardless of how I want to interpret that. I am not in any way saying that we should try to get round the system. However, if the 31 other local authorities have made a different assumption and adopted a different model, it might simply be the case that Inverclyde Council is wrong. I am not saying that it is or that it is not. For me, the key issue is that, if all the other councils are doing things in a different way, Inverclyde might need to reconsider its legal advice.

You might very well be right. That was helpful.

If you ask different lawyers the same question, you will get different answers. There is nothing new there. According to what the DWP says, the purposes for which the data can be reused do not appear to include free schools meals and school clothing grants.

We all know—this is certainly my experience—that application of data protection legislation has been overcautious. Many of us have concerns that preventing the reuse of data for such purposes was not the primary purpose of the data protection legislation. Now we are seeing some of the effects of that. I would say that the DWP has been overcautious.

Inverclyde Council has a different opinion. It is saying that reuse is compatible with the original purpose for which the DWP provided the data. It is up to Inverclyde Council whether it wants to proceed on the basis of its legal advice; it is open to anyone to challenge that.

When it comes to solutions, if there is any dubiety about councils’ ability to use the DWP data for the purposes of free schools meals and school clothing grants, we should write to the DWP to ask it to consider redrafting the purposes for which the data can be used.

However, other local authorities might still feel confident that their legal interpretation is correct. As a last resort, I agree that we should ask the Scottish Government to look at the Welsh model.

Ultimately, we have been consistent in taking the position—both in the Child Poverty (Scotland) Act 2017, which Alison Johnstone referred to, and the Social Security (Scotland) Act 2018—that we want to abide by the principle of encouraging use of data for the specific purpose of allowing people to get benefits that they are entitled to and not going beyond that scope. It seems to me that UK data protection legislation should allow for that, and that local authorities should feel confident about using the data. We should not need to pay for that. However, I presume that in the short term—at least until the social security system is fully set up in Scotland—the interpretation might change, because we would hold the data. However, until such time as that is the case, we have to have that last resort.

The reality is that we are writing to ask the Scottish Government what its opinion is on the situation with regard to data sharing. My problem is that I am not sure that one can just use data without the permission of the person who provided the data in the first place. Pauline McNeill said that it is up to Inverclyde Council what it does with the data once it has it, but I am not sure that that is legally correct.

I am sorry, but that is what Inverclyde Council has stated as its legal opinion.

It would not be writing to us if it thought that it could just go off and use the data regardless, when it has been told specifically that the opinion of the people who shared the data with it in the first place is that it could not.

That is not what the council has said.

So, is it writing to seek clarification about that existing blockage?

No. Inverclyde Council says that the data on a person who has already given it permission to use that data can be reused for the purposes of getting to that person benefits to which they are already entitled. That is the opinion that it has stated.

Its legal opinion is that it can do that. However, you made the comment that it is up to it what it wants to do with the data once it has it.

No. That interpretation of my comment is wrong. My interpretation is that it is up to Inverclyde Council how it wishes to proceed with its legal advice.

Okay. I misunderstood you.

My comment was about how it wishes to proceed with its legal advice, not with the data.

I am tempted to ask all the lawyers in the room to raise their hands now. Thank you, Jeremy.

I do not think that we can take the discussion any further. However, it has illuminated the lack of clarity and certainty, which need to be established. If that involves amending the 2012 act, so be it. If it does not, and we can move quickly, that will be better.

Do we have agreement on what I outlined about how we should approach the Scottish Government?

I want to ask one more question. The deputy convener asked an interesting question about who owns the data. If I am right, the new agency Social Security Scotland will take control of the data in April next year. It is an interesting question generally but, in relation to this specific issue, come April next year when the agency holds the data, will that make the agency the data controller rather than the DWP? We might well face a different issue in April.

That might be the situation. It is reasonable to ask what lessons a new Scottish social security system can learn about using the data that will migrate to it effectively in order to passport and automate benefits. That might be a more focused way of asking the question.

I think that we have agreement. Keith Brown wants to add something.

The deputy convener made an important point. In a way, we are being asked to be legal arbiters or to ask somebody else to be a legal arbiter. However, if not autonomous, councils have their own mandate and they can make their own decisions and seek their own legal advice. If there is uncertainty, they can get the opinion of a Queen’s counsel.

I would rather see councils proceed until apprehended on that kind of issue than see them being constantly checked. However, it is perhaps in the interest of the greater good to get the clarity that the convener seeks by writing as he has suggested, so I will go along with that.

That is a helpful segue into the final aspect of the issue that we have to look at before we move to the next item.

It is worth noting that it was Clare Adamson’s letter to Inverclyde Council asking about the matter that generated this conversation. Inverclyde has not just come running to us to ask us to be arbiters.

I will check the Official Report, but I think I said at the start that the committee has done previous work on the matter; that is also in the SPICe paper. Fair play to Inverclyde Council for following the matter up in order to try to deliver for families in its area.

I do not have it in front of me, but Glasgow City Council also helpfully provided some information. I apologise if I misrepresent how Glasgow City Council has sought to enable benefit automation, but I understand that it uses information on people who are in receipt of council tax reduction to passport them to the school clothing grant. The way in which the council approaches some individuals allows it to automate some benefits. The committee might therefore have other ways of giving meaningful assistance. It would be reasonable, therefore, to write to ask Glasgow City Council for an update on how it seeks to maximise entitlement to free school meals and the school clothing grant, despite the restrictions and constraints that might be placed on it by the DWP or the general data protection regulations. Would that be a reasonable thing to do?

For brevity, given that Inverclyde has also approached COSLA, could we write to ask COSLA for an update on its perspective?

Members indicated agreement.

It looks like we are there, now. I know that we have taken a bit of time over the matter, but irrespective of the conversation that we have just had, we all want to make sure that the people who are most in need get the benefits to which they are entitled, as speedily as possible. As long as we all stay focused on that, the committee can drive changes to make sure that that happens.

Are there any comments before we move on to the next item?

I am happy with your proposals, convener. However, you mentioned how the council tax reduction is used. Am I right in thinking that no council tax reduction applies in England or Wales?

I will ask that question, because I do not have that information. I think that you are right, but let us get an update for the next time we consider the issue.

I thank members for their patience. I also thank SPICe for its assistance in preparing for this morning’s meeting, and Inverclyde Council for raising such an important matter.

We will shortly move to item 3. I suspend the meeting briefly to allow witnesses to take their seats.

09:27 Meeting suspended.  

09:28 On resuming—