Chamber and committees

Will Jeremy Balfour give way?

All the amendments in this group relate to care experience assistance. The bill as introduced includes a broad regulation-making power to create one or more schemes to provide financial assistance to care-experienced people. Although the intention is to use that power to create the care leaver payment in the first instance, other forms of assistance may be delivered under the provision in the future.

Jeremy Balfour’s amendment 1 seeks to place a statutory duty on the Scottish ministers to create one or more schemes to provide financial assistance to care-experienced people, and amendment 2 seeks to ensure that the relevant regulations are laid within two years of the bill receiving royal assent. Although I appreciate the intention behind Mr Balfour’s amendments, I reassure the committee that the Scottish Government remains committed to the care leaver payment and resolute in our commitment to keeping the Promise by 2030.

Officials continue to progress focused work on the care leaver payment, including a public consultation and dedicated engagement sessions. An independent analysis report on that work was published on 18 June. That report is vital in ensuring that the voices of care-experienced people are at the heart of the policy that is developed on the payment. Although work is progressing at pace on the development of the care leaver payment, timelines for its delivery are dependent on the timescales for the bill and subsequent legislative processes, including the laying of regulations. However, I reassure Mr Balfour and the committee that the intention is very much to proceed so that the process is completed before the end of the parliamentary session.

The current provisions in the bill include a requirement to consult ahead of care experience assistance regulations being laid. That will provide a further opportunity to engage with care-experienced people and the wider public to ensure that the care leaver payment best meets the needs of young people before it is delivered. Regulations will be laid to deliver the care leaver payment once the results of that future consultation have been analysed and fully considered.

The wording that is proposed in amendment 1 would create inconsistency between care experience assistance and the regulation-making powers in respect of other assistance that are provided under the 2018 act. There is no precedent elsewhere in that act.

On amendment 2, as I have mentioned, the new power in the bill could be used in the future to deliver other forms of assistance for care-experienced people in addition to the care leaver payment. The time restriction on the laying of regulations that is proposed in amendment 2 would cut across that and would restrict our ability to offer support to those who need it in the future. I am sure that members would not want to do that. I think that we would want to preserve the flexibility of the bill as introduced. On that basis, the Government does not support amendments 1 and 2, and I ask Jeremy Balfour not to press amendment 1 and not to move amendment 2.

Amendment 27, in my name, adds the power to make provision for redeterminations, which mirrors the language and processes that are currently used by Social Security Scotland and contained in the 2018 act. The inclusion of redeterminations in the provision future proofs the regulation-making power, should Social Security Scotland be the preferred delivery vehicle for any schemes that are created under care experience assistance.

I ask the committee to support amendment 27, and I urge it to reject Mr Balfour’s amendments.

Good morning. The Scottish Government’s amendments in this group would simplify our approach to providing income-based benefits for children and young people by broadening the scope of the childhood assistance provisions in section 1 and by repealing the associated existing provisions on early years assistance in the Social Security (Scotland) Act 2018.

The primary reason for taking the new childhood assistance powers is to allow the Scottish child payment to be put on a new legislative footing. I believe that we should progress with providing for eligibility to be the same for all our five family payments while we have the opportunity that is provided by the bill.

The changes will give the Scottish ministers more flexibility in how they develop regulations to support children in low-income families in the future and will allow for longer-term improvements to the experience of clients who access the range of support that is currently offered by the five family payments.

I will turn to some specific aspects of the amendments. Amendments 19 and 17 will add additional primary eligibility criteria to the childhood assistance provisions, broadly mirroring the existing early years provisions in the Social Security (Scotland) Act 2018, with some adjustments to the criteria in relation to the definition of pregnant women and persons with a relationship to them, and of persons who are to, or have,

“become responsible for a child”

and persons with a relationship to them.

Amendment 20 widens the scope for giving assistance in relation to a specific event in a child’s life. Amendment 18 allows for ministers to create regulations that support families that were receiving childhood assistance in cases when the child to whom the claim related passed away during the course of that claim.

Amendment 15 provides for the repeal of the existing early years provisions in the 2018 act, with amendment 18 making transitional provisions for best start grants.

Amendment 7, in the name of Jeremy Balfour, seeks to impose a duty on the Scottish ministers to define through regulations what being responsible for a child means for the purpose of receiving assistance. It would also require them to provide assistance in relation to a child to the individual who was responsible for them at any point. I absolutely share Mr Balfour’s concern about making sure that we pay the money to the right person, and I am grateful for his continued interest in that issue and for our recent discussion on the topic. However, his amendment is unnecessary. The regulations under the 2018 act for our current low-income benefits for children already set out a child responsibility test and contain a competing claims process that can be used when child responsibility is disputed.

Amendment 7 is based on the assumption that there can be only one parent responsible for a child at any given time, which is often not the case. That approach could unintentionally undermine amicable shared care arrangements. Social Security Scotland has existing processes in place to resolve disputes between parents and to act promptly on any change in circumstances, and it is able to make a change in whom payments are made to if required. I have set out more information on that to Mr Balfour in recent correspondence, and I trust that he has had the opportunity to consider that.

I should also note that amendment 7, as drafted, might affect young people aged 16 and above who wish to manage their own assistance and have the capacity to do so, as is currently possible with child disability payment. The Government therefore does not support amendment 7, and I ask Mr Balfour not to move it.

I urge members to support my amendments in this group, which allow us to set the groundwork for improvements to the five family payments in the future, but to reject amendment 7.

I move amendment 15.

This group contains a total of 26 Scottish Government amendments, all about liability for assistance paid in error. During stage 1, we heard concerns from stakeholders and members that, although the provisions in the bill are welcome in principle, they are quite confusing. I have listened to those concerns and we have, accordingly, redrafted the provisions on overpayment liability in their entirety to set out more clearly our approach to that.

Before I turn to the substantive change, I note that amendments 25, 26 and 51 in my name close a gap in the 2018 act in relation to assistance paid in error. As the committee is aware, liability for overpayments arises from section 63 of the 2018 act or, in the case of the Scottish child payment, the corresponding regulations made under section 79. Currently the provisions for deductions in the schedules for assistance paid under chapter 2 of part 2 of the 2018 act allow the Scottish ministers to make a deduction only in respect of overpayment of assistance paid under the 2018 act, whereas the Scottish child payment regulations provide for deduction for overpayments of assistance either under the 2018 act or under the Scottish child payment regulations.

In practice, that means that an overpayment of Scottish child payment or any other form of assistance that is created using top-up powers in the future cannot be repaid by deduction from any other on-going benefit. If a person has an overpayment in their adult disability payment, that can be repaid by deduction from the Scottish child payment, but not the other way around.

Deductions are often a preferred and simple method for someone to repay an overpayment, as they are set at a manageable level. As, I am sure, the committee is aware, deductions may only be made at a reasonable level that takes into account individual financial circumstances and in order to prevent hardship, and there are challenge rights.

Amendment 51 therefore closes a gap and ensures that individuals have the convenience of knowing that deductions for overpayments from any form of on-going assistance can be recovered from another in accordance with our long-standing policy position. It does that by inserting a new provision into the deduction provisions in the schedules of the 2018 act to include any liabilities arising from any top-up assistance regulations.

Amendments 25 and 26 also future proof the 2018 act by mirroring the deduction provisions in the new schedule for childhood assistance and, if approved, they will ensure that the recovery of overpayments of Scottish child payment or any future top-up payment is in line with all other forms of devolved assistance.

The Scottish Government’s amendments 29 to 34 have one overarching purpose, which is to provide greater clarity around the liability for any assistance paid in error for individuals and for representatives who act on their behalf. When the bill was introduced, it had separate sections for the liability of individuals and for the liability of their representatives. As I noted at stage 1 of the bill, it became clear that some stakeholders were confused about what was being proposed and we have reflected on what we can do to make things easier and clearer.

The amended text in the proposed new sections 63, 63A and 63B of the 2018 act deals with the liability of individuals and their representatives and they simplify and clarify the provisions.

Despite the large number of amendments in the group, I reassure the committee that the two key principles at introduction remain unchanged. First, an individual’s representative will be liable for overpaid assistance only where they have benefited from the overpayment. Secondly, liability for both individuals and representatives will arise from a decision of the Scottish ministers rather than automatically. That will allow us to create a system of reviews and appeals rather than people having to challenge liability in the sheriff court.

The amended section 63 will set out the circumstances in which Scottish ministers may decide where an individual or their representative is liable for an overpayment. Some stakeholders were concerned that the provisions did not make clear enough how liability would be decided between an individual and their representative, so we have clarified that. The new provisions retain key concepts from the 2018 act, such as definitions of error and fault and what should be considered in deciding whether an error is the sort of error that a person could reasonably have been expected to notice. I want to be crystal clear that the protections of the 2018 act will remain in place.

The proposed new section frames the questions around liability in a more straightforward manner, but the underlying concepts, the policy intent and the implementation remain the same. Whereas the 2018 act contains exclusions from liability, the provisions have been simplified and they now focus on establishing when someone is liable for an overpayment, rather than when they are not. I trust that the committee agrees that that is a clearer way to set out how liability applies.

Amendments 30, 31 and 32 will remove the sections of the bill that are replaced by the text in proposed new sections 63A and 63B.

Amendments 33 and 34 relate to section 69 of the 2018 act, which focuses on the liability for assistance that is given for a period after death. Sections 12(2) and 12(3) of the bill as introduced would amend section 69 of the 2018 act, renaming and modifying it to specify that, if a decision was made on liability after a person had died, their estate would become liable to repay the sums that the person would have been liable for had they not died. We reflected on that following stage 1, and we have instead made provision for that in subsections (10) and (11) of the modified section 63 that is set out in amendment 29. That will make the drafting clearer by covering all liability decisions in the same place. Amendments 33 and 34 therefore delete the changes that the bill proposes to section 69 of the 2018 act.

Amendment 33 will also allow the Scottish ministers to recover any assistance that was paid in the period after an eligible person has died, whether that was a result of a determination or some other error, such as a systems error.

The remaining amendments in the group—amendments 35 to 50—are minor technical amendments that make consequential changes to the bill to ensure that the section numbers and references to individuals or their representatives are consistent with the newly inserted provisions.

I move amendment 25.

Amendment 5, from Jeremy Balfour, is focused on expanding eligibility to provide winter heating assistance via the winter heating payment to people who are on the higher rates of the pension age disability payment and attendance allowance.

From the outset, I say that the way to protect people of pensionable age is for the UK Government to reverse the decision to means test the winter fuel payment, and to reinstate the payment for all pensioners. To pick up on one aspect of what Mr O’Kane said, the Scottish Government does not agree to the change—we are reluctantly being forced into a position, given the aforementioned £160 million cut from the UK Government.

We are doing so, therefore, very much against our wishes on the issue. It is not too late for the UK Government to reconsider its position on the matter, and we would all be in a better place for it.

Mr Balfour is quite right to say that third party representation is exceptionally important for people and I understand his position. There is no disagreement between us on the policy intent. I thank him for bringing the issue to the committee and to my attention. I recognise that it is still a concern, and I am more than happy to continue discussions with him and with stakeholders directly in order to see whether there is more that can be done to reassure them between stages 2 and 3 of the bill, because we do not want to do anything that puts people off, as volunteers are an exceptionally important part of the process. I am not entirely sure that an amendment is required at this stage, so Mr Balfour will forgive me if I do not put that reassurance to him today.

My understanding is that any claim on the estate would be part of the usual executory practice. The deadlines and timeframes for that are set out in regulations that are outwith social security, but there would be no delay because of social security. There would also be a right to review. I hope that I have been able to provide some reassurance on those points. As I said in my opening remarks, many of the amendments are technical in nature. Mr Balfour has raised a particular point on third-party representation, which I am happy to further consider with him and others, should they so wish.

Amendment 25 agreed to.

Amendment 26 moved—[Shirley-Anne Somerville]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Care experience assistance

I see where the member is coming from. However, the way to test out what the DWP will do is not by putting provisions in primary legislation, which is exceptionally difficult to unpick. We do not want to find out what the DWP will do if what it does will adversely affect clients, because undoing primary legislation is exceptionally challenging. Although I understand the member’s point, I strongly urge him not to use primary legislation to attempt to force the DWP’s hand or to find out what it thinks.

The Scottish Government does not support amendment 8, which seeks to make local authorities disregard military compensation as income when deciding whether to provide a discretionary housing payment. That is not because we think that military compensation should be counted as income in those circumstances, but because there are potential issues with Mr Balfour’s amendment and, in any case, we do not consider the bill to be an appropriate place for the policy.

Although the Government is keen to encourage consistency across different parts of the country, it is important to retain a level of discretion that allows for applications to be assessed on a case-by-case basis. Discretion is baked into that design. That said, my officials will soon be undertaking a review. Given that, in the debates on other groups of amendments, Mr Balfour has expressed concerns about timeframes, I reassure him that that review is due next month, so there is not too long to wait. Officials will undertake a review of the statutory discretionary housing payment guidance, which we consider to be a more appropriate place for the policy than primary legislation.

We have concerns that the amendment would leave out recipients of other forms of compensation, which we may, when we undertake the review, also wish to include in addition to military compensation. We are more than happy to work broadly with all stakeholders, including, of course, Poppyscotland and Mr Balfour directly, to ensure that the intent behind the amendment is integral to the work that is undertaken as part of that review.

I recommend that the committee does not support the amendment if Mr Balfour presses it, not because it is wrong in principle but because the policy does not belong in primary legislation and because we want to ensure that any approach does not leave out other people who may be awarded other types of compensation.

I will do so very briefly. Again, I thank Jeremy Balfour for our discussions on those issues, because an important point has been raised. As he pointed out, his conversations with stakeholders have suggested that the third sector does not understand that area. It is the responsibility of the agency, not the third sector, to make sure that we do something about that. I confirm to Mr Balfour that I will speak to the agency and ask it to carry out further work with the third sector and engage with wider stakeholders to ensure that the guidance is understood.

Mr Balfour asked for further reassurances about changes in guidance. Again, that is an important point, not just on this issue but on others. If the agency makes significant changes to guidance, there should be a process to alert stakeholders and the committee to that. I will take his point away and reflect with the agency’s senior team on how best to do that. I give my assurances that we will work to provide reassurance on the future proofing of that process.

Amendment 15 agreed to.

Amendments 16 to 23 moved—[Shirley-Anne Somerville]—and agreed to.

The Scottish Government supports Jeremy Balfour’s amendments 109 to 111. We consider that the definition of “error” in proposed new section 49A is very broad and that the bill as drafted will allow a new determination to be made and an appeal stopped in a wide range of scenarios, including where a decision maker reaches a different conclusion on the same facts. However, I am content that amendments 109 to 111 as drafted meet the policy intention that a decision maker should be able to make a more favourable determination for the client during an appeal. On that basis, the Scottish Government is happy to support those amendments. We may lodge amendments at stage 3 to make small technical changes to the provisions, but I assure Mr Balfour that such amendments would not alter the policy.

The Scottish Government does not support amendment 112, which seeks to remove the definition of “error” in the bill as far as it relates to allowing Social Security Scotland to make a new determination and an appeal to stop as a result. Although we are supportive of that, and support Mr Balfour’s other amendments that seek to remove the need for error in the process, amendment 112 also seeks to remove the need for any new determination to be advantageous for the client.

We believe that an important aspect of the process is that a client be offered an advantageous award only in order to stop an appeal. That has been the intention behind the proposal since it was first introduced through the bill, and it remains an important aspect of the offer that would be made to a client. Removing it might result in Social Security Scotland contacting a client to offer them a lower award than that which they were challenging in the first place.

Therefore, the Government does not support amendment 112, and I ask Jeremy Balfour not to move it. However, if amendments 109 to 111 are agreed to, we will, at stage 3, remove the unnecessary definition of error that amendment 112 identifies.

The Scottish Government also cannot support amendments 106 to 108 or 113 to 115, in the name of Jeremy Balfour. The amendments seek to remove the requirement for a client to request a redetermination of the determination that stopped the appeal.

Our focus is on getting the decisions right first time. However, if a client disagrees with the determination that stopped the appeal, a right of redetermination provides the opportunity to correct any mistakes at an early stage through an independent rerun. Giving people redetermination and appeal rights in that scenario gives people the same range of challenge rights that are given to people who challenge all other determinations that are made under the 2018 act.

Some clients might find a tribunal process intimidating and stressful, and might prefer the opportunity to have Social Security Scotland look at their case again rather than having to appeal to the tribunal. In addition, not everyone who has lodged an appeal will have had a previous redetermination outcome. Some people might have appealed because their redetermination was not concluded by Social Security Scotland within the timescale that is set out in the regulations.

It should be noted that, even if the Government agreed in principle with the amendments, they would not, as currently drafted, achieve the intended purpose. Some references to redeterminations have not been removed and, therefore, the legislation would not work properly.

For those reasons, I urge the committee to support Mr Balfour’s amendments 109 to 111 but not to support amendments 106 to 108 or 112 to 115. I ask Jeremy Balfour not to move the latter amendments.