Chamber and committees

That information is simply not available. I have given an example of my having written to Social Security Scotland to ask for that information, but it is not producing it. We can have the chief executive in front of the committee as often as we want, but if the agency is not producing that information how can we scrutinise it?

Convener, you will pleased to hear that I think this will be my last contribution of the morning, so I just want to take this opportunity to thank the cabinet secretary and her officials for their positive engagement. We might disagree, but at least we do so nicely. I also thank officials for the time that they have given, both in one-to-one meetings and in writing to me, with regard to this matter.

Amendment 14 seeks to meet the principles that we all agree on of dignity, fairness and respect. The First-tier Tribunal is important as a place where people’s cases can be looked at with a fresh pair of eyes and different decisions made. Statistically speaking, people who go to the tribunal are more likely to succeed in their appeals. For some, going to a tribunal in person is not what they would want, and that view should be absolutely respected. Whether their preference is for an online hearing or for the tribunal to review their case on paper, that should be their choice. However, people should also be allowed to go to the First-tier Tribunal for a face-to-face hearing, if that is what they want.

Things have changed since Covid. As I have said previously, eight or nine years ago, I was a member of the DWP tribunal when it was still run by the Scottish Courts and Tribunals Service. Across the country, from Aberdeen to Stornoway and from Gala to Dumfries, tribunals would sit on a daily basis, particularly in the central belt, and cases would be heard. We have discovered through a freedom of information request that between January 2023 and January 2024 one in-person hearing was held, while over the same period 343 hearings were held over the telephone.

I am sure that all members have been spending their evenings reading the “Scottish Tribunals Annual Report 2022-2023”. It contains a really interesting sentence that is the reason for my having lodged amendment 14. It says that

“on cause shown the Chamber President can”—

and I emphasise the word “can”—

“authorise in-person hearings.”

That means that the chamber president can choose whether or not to hold an in-person tribunal hearing, but it does not mean that the individual will automatically be given an in-person hearing if he or she wants it. That is why amendment 14 is really important.

I have heard from various organisations that are involved with the First-tier Tribunal that they would want hearings to be held in person if that was what the claimant wanted, but they have been put off by the tribunals service in that regard. For that reason, I think that there should be a presumption of an in-person First-tier Tribunal hearing; however, if the claimant does not want that and instead wants a telephone or online hearing, or wants their case to be reviewed on paper, that should absolutely be their choice. I simply think that the chamber president having the power to authorise such hearings seems to me to move away from the principle of treating the individual with dignity, fairness and respect.

I move amendment 14.

Absolutely.

It would be fair to say that, of all the areas that we looked at during stage 1, this was probably the most controversial and perhaps the hardest for us to come to a view on. In some ways, it is unfortunate that Mr Mason is no longer with us, as he was a bit of a Rottweiler on this particular issue.

With your permission, convener, I will take a wee bit of time to explain where I am coming from. Let me be absolutely clear: I believe in audit. That is why I think, at this moment, that I will not support Maggie Chapman’s amendment 58, which would get rid of the audit completely, although I look forward to her trying to persuade me otherwise.

I believe in audit, but the issue is who is being audited. The point of having an audit, as set out in the original purpose of the bill, was to audit Social Security Scotland. I feel that we have taken it a step further and are saying that we want to audit people who have been given an entitlement to an award even though nothing has changed. Nothing in their circumstances has changed, but we are now going to take away that entitlement.

The Scottish Government has moved quite cleverly, through a back door, from saying that it wants to audit Social Security Scotland to saying that the audit is actually about fraud and has nothing to do with how Social Security Scotland is doing.

I am fully supportive of the Government’s amendments and will vote for them.

I think that there has been some confusion around amendment 9, from some of the feedback that I have had from third sector organisations. I am also slightly concerned that we are relying on practice notes and things that happen within Social Security Scotland, because those can change without any scrutiny by Parliament or this committee. On certain issues, we need to have things either in primary legislation or within regulations so that if changes are made by Social Security Scotland, or if a different Government comes in and changes practice, we have at least some role in scrutinising that. There has been mixed feedback on how Social Security Scotland has dealt with those issues in the past four years.

My amendment 9 seeks to make it the case that, where a person wants to have the same representative all the way through, they are able to say, at the start: “I want that individual to have the papers all the way through to the end of a First-tier Tribunal, if it goes that far.” That would safeguard the individual. For example, somebody may have early dementia or some other condition, or they might live in a very chaotic household—papers will come in and go out, and they will often not know when they have to be responded to.

I would be happy if the cabinet secretary could pick up on this point. There seems to be a presumption that a person gives a six-month notice of representation; then, after that six months, they have to go back to Social Security Scotland and ask for that individual to continue to represent them. My fear is that, if people forget at that six-month point, their representative no longer gets the papers, and the claim could go off track.

That does not stop the individual from saying at any point, “I do not want that person to represent me”, but it puts that person in charge. I think that that is the way forward, and that it gives the claimant the assurance that the representative gets all the documentation that is required from Social Security Scotland.

On amendment 126, in relation to children, I accept what the cabinet secretary said; however, again, we are being asked, as a Parliament, to rely on Social Security Scotland acting in a certain way.

I have read the correspondence, for which I am grateful to the cabinet secretary, but I am still not absolutely sure of the legal basis for Social Security Scotland being able to do all that. Who gives it the power to make those notices and to make all those things? Where is the legislation allowing it to do that? I would be interested to hear the cabinet secretary deal with that issue in her closing remarks.

At the moment, I am still minded to move my two amendments, but I look forward to hearing what the cabinet secretary has to say in her closing remarks.

You took the words right out of my mouth, cabinet secretary—here is my persuasive argument. Can you imagine the Royal Bank of Scotland, the Bank of Scotland or any of the other big banks being audited in such a way? The banks are audited on an annual basis, and rightly so, but can you imagine them coming to account holders and saying, “We want to audit how you are managing your account as an individual. If you don’t give us that information, we will close down your bank account”? That is what we are doing here. We are saying that we will go beyond auditing the organisation and look at the people who benefit from social security. That does not seem to me to be what auditing is.

There should be a power for Social Security Scotland to go to a claimant and say, “Will you share that information with us?” However, if the claimant, for whatever reason, does not want to do that, I do not think that they should be penalised.

I will develop that further. Section 52 of the 2018 act allows for unscheduled review of entitlement. Therefore, Social Security Scotland can already review anybody—it has that power. What it does not have is the power to take away an award without doing a review. That is a very significant difference.

In its submission to the committee, the Law Society of Scotland says that the provisions “conflate audit and fraud”. It also says:

“It is not clear why individuals should need to be involved in auditing the system in this way, or indeed, why Ministers could not obtain the information they need through other channels.”

For once, I agree with the Law Society of Scotland—it is absolutely right. We are trying to use audit as a way of bringing about fraud claims. With due respect to the Government, I think that we have stepped over the line of treating a claimant with dignity, fairness and respect.

Beyond that—and it does not matter what terminology you use—we are now introducing sanctions to deal with people. We have been having debates about sanctions for a long time now. Marie McNair has said that benefit sanctions are

“a vehicle for penalising those who are in need of benefits”,

while Ben Macpherson, the previous social security minister, said:

“we have shown ... that people respond much better to support and encouragement than they do to threat and fear.”—[Official Report, 31 March 2022; c 32, 46.]

However, if we support the bill as it stands, we as a committee will be voting for sanctions. We will be voting to say to somebody, “If you do not give Social Security Scotland some kind of response, we will take away or hold back your benefit.” They might get it back later, but that does not help them in the immediate period.

It does not seem to me that we would be treating those people with dignity, fairness and respect, because those individuals have done nothing wrong. Their circumstances have not changed; the claim that they were entitled to is still the same; all that they are saying is, “We do not want to be involved in this audit process.” Therefore, what is proposed seems unfair to me.

I was interested to see that, in the Scottish Government’s response to our stage 1 report, we seem to move from talking about audit to talking about “fraudulent”. As the cabinet secretary said in that response,

“If there is no such power to suspend,”—

in other words, no power to sanction—

“there is no incentive for anyone who is claiming assistance fraudulently ... to participate in the process.”

That is true, but my point is that the Scottish Government already has the power to do that under section 52 of the 2018 act. However, what it wants is the power to sanction someone without reviewing their claim, and I believe that that goes too far. I am not arguing against an audit of Social Security Scotland—that is where I probably disagree with Maggie Chapman—but I am totally against auditing vulnerable individuals with regard to decisions that they have no power over.

On the presumption that I might not be successful in the next few minutes, I will support the Scottish Government’s amendment 57, which I think at least gives organisations and individuals a further bite at the cherry. However, I genuinely urge members to think about what they are voting for and whether they are going too far with regard to getting information from vulnerable individuals who have—I repeat—done nothing wrong. Their circumstances have not changed; all they have been unwilling to do is to respond to what is, in fact, an audit of an organisation, not an individual.

I have sympathy with what the cabinet secretary says, but I still have concerns about the sanctions on an individual if they do not respond. I know that you are trying to address that through amendment 57, but I want to seek a consensus. Is there any possibility, to pick up Mr Doris’s point, that, before stage 3, we could have a fuller list in the bill itself of who would not be sanctioned if they did not respond? Is there an opportunity for the Government to outline at least some categories of individuals? You might want to add to that after the consultation, but could the bill itself say that, if someone is in category X, Y or Z, they will not be sanctioned if they do not respond?

I will be brief, as always, convener.

I thank the cabinet secretary for her remarks, but I still do not agree that the information is coming forward quickly enough. There is frustration that we do not know some of the timescales that are involved in the process. I welcome the meeting that has been arranged, which the cabinet secretary mentioned a moment ago.

A number of committee members have previously been critical of the DWP’s processes. To be fair to the DWP, at least its processes were there to be scrutinised. I still do not think that Social Security Scotland is being properly scrutinised, because we simply do not have the information. KPIs are a way forward that can be flexible because they are in secondary legislation. On that basis, I will press amendment 12.

I will be pressing the amendment, convener.

The cabinet secretary and I do not disagree on this—I totally accept that online or telephone hearings are the way forward for some people, and amendment 14 in no way takes that away. I do not accept that it will have unforeseen consequences.

We have to look at the evidence of what is happening on the ground, and we have to consider that sentence in the “Scottish Tribunals Annual Report 2022-2023” about the chamber president having this particular power. I believe that, as many third-party organisations have said to me, many people want to go along to a tribunal hearing. From my purely practical experience of sitting on the tribunal, I can tell you that, when the claimant walked in, you could see them face to face, you immediately understood why they were making the claim and the decision was far more likely to go their way than if the hearing had been on a telephone.

Does Social Security Scotland not already have that power under section 52 of the 2018 act? Why do we need an additional power?