Welfare Reform Committee

Meeting date: Tuesday, December 11, 2012

Official Report 495KB pdf

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Subordinate Legislation

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Scotland Act 1998 (Modification of Schedule 5) (No 2) Order 2012 [Draft]

Item 2 is consideration of an affirmative order in relation to the social fund. We are joined for this item by the Minister for Housing and Welfare and her officials. I welcome Margaret Burgess back to the committee—she is the first former member of the committee to come back in a ministerial capacity.

Consideration of the order will be split between two agenda items. The first will be an evidence-taking session, during which we will hear from the minister and her officials, and they will answer any questions that we might have. The second part is the formal consideration of the motion, during which the standing orders provide that only the minister and members of the committee may contribute to the debate.

Members will recall that, at our last meeting, we asked the Scottish Government to clarify the drafting of the order, specifically in relation to how confident we could be that the Parliament would know what it was being asked to agree to in article 2. The Government’s response to that question is set out in paper 1, which we have before us this morning.

I invite the minister to make an opening statement.

Thanks for the invitation to present the draft order.

We are here to consider the Scotland Act 1998 (Modification of Schedule 5) (No 2) Order 2012, which will amend schedule 5 to the Scotland Act 1998 to provide a new exception to the social security reservation. The order is required because the United Kingdom Government’s Welfare Reform Act 2012 abolishes the discretionary social fund from 1 April 2013. As social security issues are currently reserved to the UK Government, a section 30 order is required to create an exception to the social security reservation in the 1998 act.

The order will enable Scottish local authorities, from 1 April 2013, to provide assistance to people who could have previously claimed a community care grant or a crisis loan for living expenses from the Department for Work and Pensions. Some time ago, we indicated in our response to the Calman commission that we support the devolution of the social fund, and we welcome the opportunity to take on the new responsibilities. We see that as an opportunity to help to mitigate some of the adverse impacts of the UK Government’s welfare reforms and to protect some of Scotland’s most vulnerable people, which is why we have decided to top up the funding for the Scottish welfare fund by £9.2 million for its first year. That is an indication of our commitment to provide vital support for some of our most vulnerable citizens who face difficult times ahead as a result of the UK welfare reforms. We can also announce—I think that the committee has received a letter about this—that there is an additional £1.8 million for set-up costs in the first year. That takes the amount for the set-up costs to more than £2 million, which is to be welcomed.

The increased funding that we are putting into the Scottish welfare fund will have the capacity to award an additional 5,600 community care grants and more than 100,000 crisis grants. We are working with colleagues in the Convention of Scottish Local Authorities and local authorities on the development and implementation of the Scottish welfare fund. Great progress is being made, and we are well on the way to producing national guidance, an application form, and training and monitoring arrangements for the scheme. In our working partnership with COSLA and local authorities, we are seeing how innovative and creative their plans are to embed the new scheme within existing local authority services.

The section 30 order is a vital step in the process of ensuring that we have the necessary powers in Scotland to implement the Scottish welfare fund.

I am ready to take questions.

Thank you very much, minister. Committee members may ask the minister questions.

I have a quick question. I am interested in the national guidance. When will it be available?

Work on the guidance is well under way. I think that we are currently on the second draft, and it is still out for consultation. I think that I am right in saying that the guidance will not be issued until March, when the order will be through, but the work on it is well under way and there is still the opportunity to give feedback in the consultation.

We have had a look at the guidance. I know that it is still work in progress, and we will have a session later on in which we will look at it. The social fund, which the arrangements will replace, also depended significantly on guidance and regulations, but applicants to it always had the opportunity to appeal to the social fund commissioners to get a decision on whether the legislation underpinning the social fund had been properly applied. I suppose that what we have here is a replacement for that. Although the guidance will provide the detail, the fundamental principle is briefly enshrined in the order. However, there is no recourse to a social fund commissioner or anything like that. What recourse would you expect applicants to have to ensure that local authorities provide the assistance that they are required to provide?

There are two things. We certainly hope that the scheme will be consistent throughout Scotland and it will be monitored and evaluated. We recognise that there is demand for second-tier review and that people are looking for it, and we are considering how we can take that through. There is quite a considerable cost factor in the operation of the current system—perhaps somebody would like to comment on that—but we are certainly looking at the matter, as we recognise that there must be some review of decisions.

The cabinet secretary said that in a previous session, and the draft guidance reflects that as well. Second-tier reviews are being looked at, but it might be helpful if some of the thinking could be shared with the committee.

We are certainly actively looking at the matter, but perhaps Ann McVie might want to say where we are with it.

We are working as fast as we can on looking at the options. It is quite complicated and, as the minister said, we are trying to get something that is fit for purpose and affordable. We are also trying to take account of other areas in which similar administrative decisions are made by local authorities, and we are looking at how the second-tier review process might fit within that.

The matter is under active consideration. We are discussing it internally with colleagues who deal with social work services in local authorities, and we will have discussions with the Scottish Public Services Ombudsman later this week. We will share some of that thinking as soon as we can.

If you are looking at options, you must know what those options are. Can you share them with us?

They are not particularly detailed options at the moment. There were three suggestions that we looked at initially, including peer review by other councils and some form of board or committee within a local authority that is separate from the original decision making. Those are the types of things that we have been looking at.

My question follows on slightly from that. The decision was taken at Westminster to devolve the social fund and pass it down to local authorities in England and to the national Governments in Scotland and Wales. What is your position on the proportionality of the inclusion of local authorities? Is it best to have central administration from Edinburgh, or should local authorities take a substantial part of the decisions?

In terms of the decisions on the—

I am simply trying to compare the English model with the Scottish model. How much do you feel that you can involve local authorities in Scotland, given that local authorities in England had the full power devolved to them?

In Scotland, the scheme will be national and we want it to be uniform and consistent across Scotland, but it will be delivered by local authorities, so they will have the decision-making powers. There will be national guidance, which we hope local authorities will follow, and the local authority decision makers will make the decisions in their area. They will manage the budget and the amount of community care grants and crisis loans or grants in their area. They will have a considerable amount of autonomy in doing that, although we anticipate that the guidance on the scheme will ensure that someone who puts in an application in one area of Scotland will be treated in the same way as someone who puts in an application in another area.

The other thing that I wanted to ask for is a total figure for the scheme. I believe that you said that the Scottish Government will top up the scheme by £9.2 million in year 1. What does that make the total budget for the scheme in year 1?

I think that it will be 32 point something million pounds.

Yes. It will be about £33 million. As yet, we have only had indicative allocations from the DWP, and the latest figure was £23.8 million. If we add the £9.2 million, the total is £33 million.

I return to Iain Gray’s question on the appeals process. Many councils already have housing and/or social work review panels. Has any consideration been given to making those bodies the appeal panels for decisions that are challenged?

That is one of the options that we are looking at.

How much input has COSLA had on this aspect of the proposals?

COSLA is closely involved in developing the scheme as a whole. We have a development officer who is based in COSLA and the local authority practitioners group that meets once a month is convened by COSLA. We are discussing the issues with them in partnership.

I want to change the subject a wee bit, because I understood that we were supposed to be looking at the long title of the order, which I will not repeat because the minister read it so well at the outset.

Reading the papers last night, I understood the technical point that has been raised, which you came to speak to us about today but, by the same token, it seems to me that the Scottish Parliament does not have any competence with respect to the provision in section 69 of the act that is referred to in the order—the Child Support, Pensions and Social Security Act 2000. On that basis, and taking into account that the UK Government has indicated that it has no plans to amend the provision in the intervening period, before the order takes effect, it seemed to me that, although the question posed was a nice one if you were an administrative or legal expert, from a practical point of view the issue really was arcane. There would certainly be no reason not to recommend that the order be approved by the committee and the Scottish Parliament. Would you agree? I assume that you would.

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I think that we would agree. The UK Government has indicated to us that it has no intention of changing section 69. We think that what we are proposing should be accepted.

It is an arcane issue but, in any event, irrespective of whether the UK Government was going to amend section 69—and it has confirmed that it will not—we do not have any power over the issue anyway as it is a reserved matter. As a matter of practical effect, it makes no difference to the legal effect of the order here in the Scottish Parliament.

I will let the legal person answer that one.

I quite like arcane legal points. It has to be clear what the provision is referring to. The legislation that Westminster has created is changing over a period so it has to be fixed at some point in that time. The order does that to a logical point. The Subordinate Legislation Committee has quite properly pointed out that there is potential for that to change, given that it is a future test. The DWP has confirmed what we all know, which is that it has no intention at present of changing it anyway. Frankly, that deals with the issue.

I have a supplementary to Kevin Stewart’s question on second-tier appeals. I am delighted to know that COSLA has been consulted to ensure that the second-tier appeal procedure suits it. I am rather more concerned to know that work is being done to ensure that the second-tier appeal procedure is fair to those who are appealing and protects their legal and human rights. I would be interested to know who is being consulted to ensure that that is delivered correctly.

All of that will be taken into account. I, too, am anxious to ensure that the individual who applies to the fund for a community care grant or a crisis grant gets a decision that they understand, and that, if they are not happy, there is somewhere that they can take that decision to get it looked at again. I think that we are all anxious to do that.

However, we have to look at that in terms of the existing arrangements. From the point of view of cost, I do not think that we would be able to do it under the current independent social fund review body and commissioners. We would want the money from the social fund to go to people in communities and not be spent on administration. We have to look at that.

There should be a fair process for having a decision looked at again. We are considering that not just through COSLA but through the ombudsman, and other suggestions might come up in relation to the process as a whole. All of us are anxious that, if anybody is not happy with a decision or feels they have been treated unfairly, there should be another tier to consider the decision.

Nobody could disagree with that, but my question was about who is being consulted. We know that COSLA and the ombudsman are being consulted. Is there anyone else?

I think that the stakeholders have been consulted.

Yes. We have regular discussions about all the issues relating to the new Scottish welfare fund, through the welfare reform scrutiny group, which includes the Poverty Alliance, Citizens Advice Scotland, the Child Poverty Action Group in Scotland and the Scottish Council for Voluntary Organisations. We are engaging with the third sector on those issues.

Minister, can you clarify something that you said earlier? Has the additional £1.8 million that has come from Westminster to the Scottish Government come from within the Scottish Government’s budget?

It has come from the DWP for set-up costs in the first year.

Okay. Is that money intended to be spent by the Scottish Government or will some of it be disbursed to local authorities for their set-up costs?

Yes. The intention is to pass it on to local authorities. Convener, you have been copied into the reply about set-up costs, so it is probably on its way to your inbox.

I have a final question on the additional £9 million for the social fund, which I have been trying to clarify in my own mind. It has been stated that the money will assist about 100,000 claimants, but is that right or are we actually talking about 100,000 claims? After all, claimants can claim more than once a year. Is the 100,000 the total number of claimants or claims?

What we have said is that it will allow another 100,000 crisis grants to be paid. There could be 100,000 claimants or we could have people claiming for more than one crisis in a year.

Thank you for clarifying the matter.

As we have exhausted our questions and as no member has indicated a wish to debate the motion, I ask the minister whether she has any comments to make before she moves it.

I simply invite the committee to approve the order.

I move,

That the Welfare Reform Committee recommends that the Scotland Act 1998 (Modification of Schedule 5) (No. 2) Order 2012 [draft] be approved.

Motion agreed to.

Thank you very much, minister.

10:21 Meeting suspended.

10:23 On resuming—