Chamber and committees

If Mr Balfour will allow me to, I will take that away and reflect on it. I think that it was Maggie Chapman who made the point that there needs to be more consultation on this, and the whole point about not putting this in the bill itself was to allow that public consultation to take place. I can see where the member is coming from, but I am a bit hesitant because I have committed to having a consultation on this, which people would obviously be able to take part in. However, I will reflect on whether more can be done.

I thank Mr Doris for his kind remarks to my officials. I absolutely concur that the job that they did on section 17 and, indeed, on other aspects of the bill is remarkable, so I thank him for putting that on the record.

With respect to Mr Balfour’s points, we have had many discussions about tribunals over the years, and I am afraid that that is one of those areas in which we disagree on the best way of proceeding. I see where he is coming from, but I made the points that I wished to make during my remarks on the Delegated Powers and Law Reform Committee’s queries on this area, when I explained the reasons for our decisions. Given the length of my opening remarks, I will leave it there.

Amendment 59 agreed to.

Amendments 60 to 72 moved—[Shirley-Anne Somerville]—and agreed to.

Amendment 73 moved—[Shirley-Anne Somerville].

I absolutely take that point and, if Mr Balfour will bear with me, I assure him that I will get to that. However, the committee has the power to request information.

In addition, allowing Scottish ministers to set key performance indicators for the First-tier Tribunal would undermine ministers’ statutory duty to uphold the independence of the tribunals, which bolsters guarantees of judicial independence that are enshrined elsewhere in legislation. That is a fundamental principle of democratic society. Like Social Security Scotland, the performance and operation of the First-tier Tribunal is already subjected to scrutiny.

On the point that Mr Balfour has raised, he and I have had discussions on that. There has been a degree of frustration about some of the information that he and stakeholders have wished to see; for example, management information is not there for Social Security Scotland to pull, and to do so quickly.

I, too, remember the trips down to Victoria Quay. I was probably responsible for social security at that time, given that I have been for more than half of Mr Balfour’s time in the Scottish Parliament. He will also remember that it was an agile programme and that the aspects that were brought in were always going to require continuous updating and improvements. That was part of the process and was clear from the start. Some of that is about the ability to obtain information and to request information in an easy way that does not, for example, require a lot of manual workarounds.

I hear and appreciate Mr Balfour’s frustration on the issue. As he has already alluded to, I do not think that the way to address that is through primary legislation. I have offered to meet Mr Balfour, along with the senior management of the agency, to discuss the areas on which he feels that more information is required. We will also continue to work on that with stakeholders.

The committee will be pleased to learn that amendment 104 is a minor amendment and that my speaking notes on it are short.

Amendment 104 will allow the provision that sets out the parliamentary procedure for the regulation-making powers to commence the day after the bill is given royal assent. It will remove the need for a set of commencement regulations to be laid for section 24, which would be disproportionate, given that the provision relates solely to parliamentary procedure.

I move amendment 104.

Amendments 92 to 94 bring within the scope of SCOSS’s formal scrutiny remit regulation-making powers on care experience assistance, appointees, assistance given in error and information for audit.

The bill as introduced sought to implement the findings of the Glen Shuraig Consulting review and bring specific additional regulations into SCOSS’s formal scope. At that point, the regulations that were being brought into scope did not include those for care experience assistance, compensation recovery, information for audit, appointees or assistance given in error, as those were not under consideration at the time of the review.

As the committee heard during stage 1, there were calls from stakeholders for all the new regulation-making powers in the bill to be subject to formal scrutiny by SCOSS. Following that evidence, the board of SCOSS wrote to me in April 2024, noting that it welcomed additional scrutiny of some—rather than all—of the regulations that were made possible by the bill. Amendments 92 to 94, in my name, therefore add to the existing list of regulation-making powers that are captured under section 97 of the 2018 act, in accordance with those exchanges with the board of SCOSS—[Interruption.] Excuse me, convener. Clearly, I am allergic to stage 2 proceedings after a certain amount of time.

I urge the committee to support those amendments. We have seen how SCOSS scrutiny adds value to the development of regulations, and I have no doubt that its scrutiny of regulations on the added topics will similarly make an important contribution.

Amendments 95 and 96 simply ensure that section 97 of the 2018 act, on formal scrutiny by SCOSS, applies to regulations whether they are subject to the affirmative or the negative procedure.

Amendment 97 ensures that SCOSS is aligned with similar public bodies in its duties to publish an annual report. The Glen Shuraig review noted that the 2018 act’s relatively onerous statutory duty on the commission to prepare accounts and submit those for external audit should be removed. Amendment 97 replaces it with a more proportionate requirement to prepare an annual report that must be submitted to ministers and laid before the Parliament. The SCOSS board has welcomed that amendment.

Amendment 11, in Jeremy Balfour’s name, would expand SCOSS scrutiny to primary social security legislation as well as a broader range of secondary legislation. The Government cannot support that. The Scottish Government is already bringing the majority of the regulation-making powers in the 2018 act within the scope of scrutiny by SCOSS. That aligns with the recommendations of the independent review, which recommended a focus on areas that can have an impact on clients. The widening of the scope that is proposed in amendment 11 would both undercut that policy objective and create unclear resource implications for SCOSS.

The Government also has concerns about how the provisions on the scrutiny of primary legislation would work in some contexts—for example, if emergency legislation is required, there might not be sufficient time.

It is also important to highlight that the functions of SCOSS under the 2018 act are already wide ranging, and relate not only to the scrutiny of legislative proposals; SCOSS can, when requested, prepare and submit to the Scottish ministers and the Parliament advice on any matter relevant to social security and report on whether expectations as set out in the Scottish social security charter are being fulfilled, as well as make any recommendations for improvement. According to its most recent annual report, the commission has progressed work in that area, and I believe that it would be useful for the committee to consider those existing functions rather than create entirely new statutory functions, given that those that are available to the Parliament have been used so little.

I move amendment 92.

I will respond to some of the points that Mr Balfour and Mr O’Kane made on the authority of Social Security Scotland to make the decisions in relation to children around some aspects, based on the common-law approach.

With regard to amendment 9, I can see where Mr Balfour is coming from on third-party representatives. However, that is one of the areas where we must be careful of unintended consequences. For example, there is a default position that representation is for three months. That was asked for by the Scottish Women’s Convention. We can imagine circumstances where a woman who is experiencing coercive control by her partner or husband might wish not to have something like Mr Balfour’s suggestion in place. Therefore, primary legislation is really not the place for such a provision, because the system needs to be flexible.

Of course, a client can ask for longer. The default position is that representation is for three months but it does not have to be three months. Clients have the opportunity, as I said in my opening remarks, not just to use the mandate form from Social Security Scotland and not just to have representation for three months but to choose to do something different should they so wish.

I hear where Mr Balfour is coming from. Can he perhaps try to persuade me that we can audit Social Security Scotland and the way in which it does things without auditing the decisions that it makes and, therefore, its case load? I simply do not see how to do that. The entire purpose of Social Security Scotland is to deliver the right decisions at the right time; therefore, we must examine the decisions.

Mr Balfour’s amendments 12 and 13 would introduce powers to set out key performance indicators in legislation for both Social Security Scotland and the First-tier Tribunal for Scotland. The Scottish Government does not support either amendment.

As an executive agency, Social Security Scotland already publishes an annual report on accounts, in line with the Scottish public finance manual. It must also comply with the Public Finance and Accountability (Scotland) Act 2000.

The 2018 act also requires Scottish ministers to report on the number of people who are appealing to the tribunal. The committee can—and frequently does—hear evidence from senior leadership at Social Security Scotland on matters of operational delivery.

The committee will also be aware that section 15 of the 2018 act requires a Scottish social security charter to be prepared, published and reviewed. The charter was co-designed with people with lived experience of social security and it underpins everything that the agency does. As approved by the Parliament in 2019, the 2018 act sets out the service that people should expect from Social Security Scotland. A revised charter, which was developed by using a comprehensive co-design approach with clients and stakeholders, was approved by Parliament in June.

I repeat my comments from the debate on the previous group of amendments—if the committee would like more information on an aspect, the Parliament already has the power to get it.

Good morning, convener. The Scottish Government’s amendments 52 and 53 are technical changes to clarify that an individual’s eligibility to receive assistance has no bearing on whether an appointee may act on their behalf. An appointee may act in connection with a determination, even if the result of that determination is that the individual is not eligible.

Amendments 54, 55 and 56 are minor drafting amendments relating to terminology: they change the words “their” and “they are” to “the person’s” and “the person is”, respectively, to avoid any potential ambiguity as to whom is being referred to. It has no substantive effect on the operation of the provision or policy.

Amendment 102 corrects an error in the Social Security (Scotland) Act 2018. My officials, while considering other amendments to the bill, identified that section 85B(5) of the 2018 act on appointees is not included in the list of negative procedure powers in section 96(3). Amendment 102 amends section 24 of the bill to correct that. I ask the committee to support amendments 52 to 56 and amendment 102.

Amendment 126, in the name of Jeremy Balfour, seeks to allow Scottish ministers to appoint a person who already has authority to act on behalf of a child—for example, someone with existing parental responsibilities and rights. I again thank Mr Balfour for his on-going interest and support in relation to ensuring that we make payments to the right person and based on the best interests of disabled children. That is, I think, our shared aim, and I will explain why I do not think that the amendment will meet that aim.

I believe that amendment 126 could create uncertainty or an unnecessary additional step for parents who, in most cases, already have the right to be their child’s legal representative.

Social Security Scotland already has procedures in place to ensure that the child disability payment goes to someone who is suitable to manage that payment on behalf of the child. If Social Security Scotland receives information that suggests that persons may no longer be suitable to manage payments, it will take action urgently. It will also ensure that payments are suspended when there is a risk of financial abuse or when someone is no longer able to continue managing the assistance.

I am concerned that amendment 126 could result in Social Security Scotland or the First-tier Tribunal for Scotland being used as an arena for some separated parents to play out their disputes, with neither being suited to fully arbitrate such disputes. I believe that that would be a negative outcome for Social Security Scotland, the tribunal and the child, particularly when there are processes in place to manage such disputes. I have written to Mr Balfour to provide more information, and I hope that he has had the opportunity to reflect on that additional information.

For those reasons, the Government does not support amendment 126, and I ask Mr Balfour not to press it.

I turn to Jeremy Balfour’s amendment 9, which seeks to put third-party representatives on a statutory footing by setting out existing policy and processes in primary legislation. Nomination of a third-party representative can already be achieved under common law using a mandate form, and the process has been in place at Social Security Scotland for more than four years. Clients are not restricted to using Social Security Scotland’s mandate. They can nominate a third-party representative using other methods, such as over the phone or by submitting an organisation’s own mandate.

I understand the motivation behind amendment 9. I assure the committee that the Government continues to listen to clients and stakeholders and will seek to streamline the administrative process for nominating a third-party representative as much as possible. For example, for the launch of the pension-age disability payment, we have integrated a mandate into the application form, reducing the need for any additional forms or phone calls from the client.

I am not persuaded that we should remove the flexibility to respond quickly to feedback and to continuously improve our processes by setting out such operational detail in primary legislation. We have heard similar things from organisations that regularly act as third-party representatives in connection with social security. Citizens Advice Scotland told us that it does not support amendment 9. CAS said:

“The insertion of this process into legislation and the addition of the word ‘must’, may create operational difficulties”,

noting that representatives can change in the course of a client journey.

Therefore, although I very much respect the intent behind amendment 9, I encourage Mr Balfour not to press it.

I move amendment 52.

I would not suggest provision in the bill. As I said, on those issues, it is important that we are able to be much more flexible than we would be able to be under primary legislation. Social Security Scotland, of course, follows strict guidance. Yes, we need the culture and the ethos but, more importantly, we must have the guidance.

On the concern about not having scrutiny, the committee can call the chief executive and others from Social Security Scotland to come to discuss anything that the committee wishes or has concerns about. Of course, the Parliament also has the power to ask the Scottish Commission on Social Security to report on any matter relevant to social security if there is a concern.

I absolutely recognise that, as I have said on many issues, Social Security Scotland is still new. The agency is learning, open to learning and open to adaptations. That is the way to address the matter in conjunction with stakeholders, knowing that we have the ability for the Parliament or SCOSS to scrutinise and investigate should they wish to do so. Therefore, I still ask Mr Balfour not to move amendment 9.

Amendment 52 agreed to.

Amendment 53 moved—[Shirley-Anne Somerville]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Liability of appointees under sections 85A and 85B of the 2018 Act

Amendments 54 to 56 moved—[Shirley-Anne Somerville]—and agreed to.

Section 15, as amended, agreed to.

After section 15

Amendment 126 moved—[Jeremy Balfour].