Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, June 29, 2022

Official Report 1200KB pdf

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Social Security (Special Rules for End of Life) Bill

The next item of business is a debate on motion S6M-05222, in the name of Ben Macpherson, on the Social Security (Special Rules for End of Life) Bill, which is United Kingdom legislation. I invite members who wish to participate in the debate to press their request-to-speak button. I call on Ben Macpherson to speak to and move the motion.

15:56  

This legislative consent motion is in response to the UK Government’s Social Security (Special Rules for End of Life) Bill.

I appreciate that the debate was scheduled at short notice. That was due to the UK legislation being progressed rapidly. Given the extent to which the UK bill has been expedited, as well as our Parliament’s upcoming recess, a legislative consent motion is needed to ensure that we align with the UK Government’s approach. That is expected under the terms of the Scottish Government’s agency agreements with the Department for Work and Pensions.

The UK Government’s bill was introduced in the House of Lords on 11 May and serves to change the UK Government’s current definition of terminal illness for the purposes of disability benefits that are administered by the Department for Work and Pensions.

In the DWP system, currently, those who are estimated to have six months or less to live due to terminal illness can have their disability benefit applications fast-tracked, so that they can start receiving their payments more quickly. The UK Government bill will expand that definition of terminally ill to those who have less than 12 months to live, rather than six months. The UK Government expects that change to result in a widening of fast-tracked access to disability benefits for terminally ill people.

Disability living allowance, personal independence payment and attendance allowance are all affected by the UK Government bill. Provision relating to disability benefits falls within devolved competence by virtue of the Scotland Act 2016 and the amendments that the 2016 act made to the devolution settlement. Therefore, the UK Government bill that is in question today relates to devolved matters, which has triggered the requirement for an LCM.

Until we fully implement our Scottish replacements, disability living allowance, personal independence payment and attendance allowance are being delivered by the DWP—on behalf of the Scottish ministers—under an agency agreement, and there is therefore a requirement for those benefits to be administered consistently across the UK until case transfer completes, and our agency agreements with DWP cease.

Of course, adult disability payment, which replaces disability living allowance and personal independence payment in Scotland, is being rolled out in stages and is currently available in six local authority areas. Another seven areas will be added in July for new applications, ahead of full national introduction at the end of August and the on-going case transfer process. At the point of full roll-out on 29 August, when adult disability payment will be available nationally—this is an important point—anyone in Scotland who becomes terminally ill while in receipt of PIP or DLA will have their entitlement automatically transferred to Social Security Scotland and will benefit from the Scottish definition of terminal illness, which I will come on to shortly.

The UK Government bill will likely have limited impact on those who are currently in receipt of DLA or PIP in Scotland. It will impact people who are in receipt of, or who are applying for, attendance allowance ahead of the introduction of our pension age disability payment, which will replace attendance allowance in due course.

Encouragingly, the UK Government’s bill will bring the new definition of terminal illness in the UK closer to the definition that we have introduced for disability benefits in Scotland, but the UK definition will still be based on a fixed time period with regard to life expectancy. That is in contrast to the Scottish Government definition of terminal illness as part of the delivery of Scottish forms of assistance, including child disability payment and adult disability payment, which is based on clinical judgment that does not include a time limit on life expectancy. That means that people who are approaching the end of their life are more easily able to have their applications processed quickly, but with the Scottish definition.

Given what I have said, I consider a legislative consent motion to be the right course of action in order to maintain alignment with the UK Government’s legislation, as is expected under the terms of our agency agreements. Therefore, providing legislative consent is the most pragmatic and appropriate course of action.

I move,

That the Parliament agrees that the provisions of the Social Security (Special Rules for End of Life) Bill, introduced in the House of Lords on 11 May 2022, relating to Special Rules for Terminal Illness for accessing disability benefits, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.

16:01  

It feels a bit like déjà vu, as we had a similar debate on a different social security issue last week. Last week, the minister felt that I was slightly partisan in my comments, so I will try to be more constructive this week. However, it is worth pointing out, particularly around clause 1 of the bill that is going through Westminster at the moment, that the reason why we are having to debate the issue in relation to DLA, PIP and attendance allowance is that there has been a delay in implementing ADP and other Scottish benefits here in Scotland.

Does the member accept that the devolution of social security benefits is a joint programme of work between the Scottish Government and the UK Government, and that the delay to the delivery of some of our devolved benefits has been because both Governments had to reprioritise during the pandemic?

I accept that the pandemic has been an important factor in the delay, but even before the pandemic, there were statements in the chamber that those benefits would be delayed anyway. I simply point it out as a factual comment.

The second interesting point is that the UK Government seems to be able to introduce legislation fairly speedily when it is required, and I wonder why it takes the Scottish Government quite so long. In the debate last week, the minister indicted that there simply was not time for a bill to be introduced in this Parliament, yet that does not seem to be the case in Westminster. Therefore, I think that we have to look at the time that such emergency bills require and consider whether we can do it quicker in this Parliament.

My third gentle point to the minister, with due respect, is that, for the record, the definition of terminal illness here in Scotland is not a Scottish Government definition; the definition was agreed to by this Parliament. If I may claim credit, it was my amendment that introduced it, and it was agreed to unanimously by the whole Parliament. I appreciate that the Scottish Government is now implementing and taking forward that definition, but the definition can be owned by all five parties and by all MSPs who were in the Parliament at the time.

I will perhaps be a wee bit more constructive in my final couple of remarks. It has been really helpful for the minister to define exactly where people apply to if, sadly, they get a terminal illness after August. However, my concern about that relates to how we get that information out to those who need it, such as to citizens advice bureaux, advice shops and other third sector organisations, and to the Scottish public more generally, so that everyone knows that we have a new definition, that there is a faster way to access the benefit and that people can get higher levels of care and mobility allowance more quickly if they go through that procedure. I ask the minister when closing to address whether any advertisement of the changes will take place over the summer. If so, how will that happen?

Come decision time, the Conservatives will vote for the motion. We think that the UK Government has taken a positive step forward. I hope that the motion gets the support of every member in the chamber.

16:05  

Let me start with the substance of the motion and the impact on people. This is about people’s lives and terminal illness—it is possibly the time when we need our Governments to be the most sensitive and responsive. For that reason, the Labour Party welcomes the move to extend the period in which a person who is terminally ill can qualify for special rules for terminal illness exceptions.

I agree with the minister that these matters are to do with legislation over which this Parliament has competence. In fact, as has been said, Social Security Scotland has its own special rules for terminal illness under which there is no qualifying period. I commend the Scottish Government for having a policy that is designed to ensure that people are provided with the support that they need when they need it, and for its diversion from UK Government policy in that regard.

However, I am again a little disappointed, because the people of Scotland are not yet feeling the full benefits of devolved social security. That is not because we need more power in that area, but because the Scottish Government is still letting people down by failing to manage the powers that it already has.

The Parliament passed social security legislation in 2018, yet, more than four years later, only a handful of local authorities have opened applications for the benefits; new applications will not be available to everyone in Scotland until at least 29 August; full transfer of those currently on PIP over to ADP is not expected until 2025; and 313,620 people on PIP have been left at the hands of the DWP, facing delay after delay as a result.

We all want to move to the implementation of the benefits as quickly as possible and to full case transfer, but I again pose, in a constructive spirit, these questions to Pam Duncan-Glancy. What are the Labour Party’s suggestions, within the budget constraints of the Parliament and within the technical and human challenges of undertaking these exercises in the execution of Government policy? What would it have done differently to make things happen more quickly? We are going as quickly as we can. I am not hearing any constructive suggestions as to how we could have done things more quickly or how we could do things more quickly in the future.

That is possibly the first time that I have heard that point about the budget in relation to pace, which is interesting.

We could do a number of things differently in terms of the administration. We also need to work more closely with other Parliaments in the UK. Like my Conservative colleagues, we will support the Scottish Government’s motion. However, the fact that we have a UK Government that does not consider that a legislative consent motion is needed and a Scottish Government that does shows that there is significant confusion.

Those 313,620 people, who have been led up a hill and left waiting for years and years, are now being told to wait longer for substantial change. The same is true of child disability payment. Despite the process for new applications being fully operational here, safe and secure transfer will not happen until 2023. In addition, the SNP-Green Government has not set out a timetable for attendance allowance.

In the meantime, it is no wonder that there is disagreement between the Governments on what they need consent for, because they have been incapable of working together at pace. I say to the minister that we need to work at pace and together. Instead, the UK Government has created a confused system in which powers have been devolved to Scotland and the Scottish Government has sent some back, has asked the DWP to take care of others and has chosen a few on which to make some progress. It is clearly a messy arrangement that is not helping anyone. Frankly, it seems to me that nobody has a clue and that the Scottish people are paying the price. How on earth can the Governments expect people in Scotland to navigate this if they cannot?

We will support today’s motion, but I stress that I would far prefer to spend parliamentary time on social security legislation that would fundamentally and materially improve the lives of the people of Scotland, instead of spending time debating constitutional intricacies that have been caused by delays and confusion, which have left people without the support that they need. It is not good enough that neither Government can get this right. This is the second time in a week that we have faced the same type of motion and the same constitutional tug of war because neither Government is able to establish who has responsibility for what.

I recognise the policy and ideological differences between the SNP Government at Holyrood and the Tory Government at Westminster, but, although social security remains a shared responsibility, it is of the utmost importance that Governments talk to and engage with each other and stop wasting time on disagreements. That is the best chance that we have of getting things right—and doing so quickly—for the people of Scotland.

16:10  

I am grateful to members across the chamber for their time and their contributions to the debate. Although the Scottish Government has taken a very different approach to the UK Government’s in its definition of terminal illness—as decided by the Scottish Parliament—this UK Government bill represents a positive change that will benefit those who are terminally ill and are applying for disability benefits administered by the DWP.

I requested this legislative consent motion because it is required in order for the UK Government to make changes to the definition of terminal illness in Scotland. To be clear to Pam Duncan-Glancy, there is agreement between the Scottish Government and the UK Government on this legislative consent motion. The situation is different from that of the previous legislative consent motion that we considered. In fact, the UK Government formally requested the legislative consent motion that we are considering.

I thank the minister for that clarity. I appreciate it. The confusion has resulted because we face such a confused situation. It is incumbent on all of us to work together and do the best that we can to roll out social security payments as quickly as possible in Scotland.

I agree with the spirit of that, and that is certainly how I engage with UK DWP ministers and Scotland Office ministers on the process.

The only alternative to a legislative consent motion would be the introduction of equivalent Scottish primary legislation. However, to take that approach, we would need to have the legislation in place at the same time as the UK bill—which was introduced seven weeks ago—came into force. Given the extent to which the UK bill has been expedited, that would be extremely challenging because of the other pressures on this Parliament’s legislative programme. Without parliamentary approval for the legislative consent motion that we are considering today, those in receipt of, or applying for, DWP disability benefits in Scotland would not be able to take advantage of the widening of the terminal illness definition. I appreciate the member’s point, but I think that the process that we are following is the most practical one in the circumstances.

Pam Duncan-Glancy made a point about speed. I want to be clear that I was in no way insinuating that budget is a factor in delivering the roll-out of new devolved Scottish benefits or in the case transfer process. As a member of the Social Justice and Social Security Committee, Pam Duncan-Glancy will be aware that Social Security Scotland has made it very clear that it could not have gone faster with this process. We have had to ensure the safe and secure delivery of these benefits by creating benefits that have been designed for those with lived experience in mind, and we have undertaken all the stakeholder engagement involved in that process. We have moved at a strong pace to deliver a high-quality service as we continue to undertake the case transfer process and introduce seven benefits that are not available elsewhere in the UK. That is a significant improvement.

Jeremy Balfour raised an important point about awareness. When we deliver new benefits, including through the phases of adult disability payment, we engage with local authorities and stakeholders through our local delivery teams to raise awareness. All of us MSPs can play a really positive role in that process. I will write to all MSPs and Scottish MPs in the coming days to encourage all of us to do what we can through the summer recess to raise awareness of what benefits are available for people, so that they can apply. The Government, of course, does that work on an on-going basis, and it will continue to do so as proactively as it can. However, we can all make a difference, and we should do it together.

It is important that those people who are terminally ill benefit from the change that the UK Government’s definition of terminal illness will create. That includes those people who receive attendance allowance and those adults who will apply for DWP benefits in the short time between the UK Government’s bill coming into force and the end of August, when the adult disability payment will be introduced nationally.

The legislative consent motion that is before us today will ensure the continued delivery of UK Government benefits on our behalf while we continue the safe and secure transfer of people to their respective forms of Scottish assistance.

I thank Parliament for considering the matter, and I look forward to working with colleagues through the summer as we continue to support people who receive disability assistance and to raise awareness of what is available to support people. I hope that Parliament will back the legislative consent motion.

That concludes the debate on the Social Security (Special Rules for End of Life) Bill—UK Legislation.