Social Security Committee

Meeting date: Thursday, March 4, 2021

Official Report 575KB pdf

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Subordinate Legislation

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Disability Assistance for Children and Young People (Scotland) Regulations 2021 [Draft]

Good morning, and welcome to the sixth meeting of the Social Security Committee in 2021. We have no apologies.

There is a lot of subordinate legislation to get through, on child disability assistance, data sharing and uprating. We will consider the instruments in turn.

Our first agenda item is an evidence session on the Disability Assistance for Children and Young People (Scotland) Regulations 2021, which are subject to the affirmative procedure. I refer members to the note by the clerk in paper 1 and to paper 2, which is from the Scottish Parliament information centre.

I welcome Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People, and her officials from the Scottish Government: David George, disability benefits policy team leader; Kirsten Simonnet-Lefevre, principal legal officer; and David Hilber, case transfer policy lead.

I invite the cabinet secretary to make an opening statement before we move to questions.

I am delighted to be here to talk about the regulations for child disability payment.

CDP will be the first regularly recurring disability benefit to be delivered by Social Security Scotland. It will make a significant contribution to the lives of disabled children and young people in Scotland, and to those of their families and carers. We remain on track to deliver child disability payment in 2021, beginning with a summer pilot for new applications in Perth and Kinross, Dundee City and the Western Isles. In the autumn, we plan to accept new applications from children all over Scotland, as well as from children who live abroad who have a genuine and sufficient link to Scotland.

We have co-designed the application process with people who have lived experience of the current system and we will accept applications by phone, online, on paper or face to face. Our new digital service will allow applicants to complete the form at their own pace, which is a significant improvement over the paper-based forms offered in the current system. We will have local delivery staff in all local authority areas to provide pre-application advice and support, as well as support with the application process itself. We will not require any child or young person to undergo a face-to-face assessment; instead, our focus will be to help applicants to collect supporting information so that we can make robust and fair decisions.

Awards of child disability payment will be rolling awards: they will not have an end date, but will be subject to review. That ensures that there is no cliff edge for families. Awards will continue during any review. The reviews will be light touch and designed to minimise stress for children and families. Our review process has been extensively tested with people who have lived experience of the current social security system.

Any young person who becomes entitled to CDP immediately prior to age 16 will have their award automatically extended until they are 18, to avoid the need to apply at 16 for a personal independence payment. Families have repeatedly emphasised to us how unhelpful it is for young people to have to transfer to PIP at age 16, especially at a time when they are moving between health and social care services for children and those for adults.

As with disability living allowance for children, CDP will have care and mobility components. We have broadly aligned the existing criteria with those for DLA, but have sought to make improvements where we can do so.

For children who, sadly, have a terminal illness, we have removed the restrictive requirement that death must reasonably be expected within six months. Instead, doctors and registered nurses will use their clinical judgment, in accordance with guidance published by the chief medical officer, to provide supporting information confirming their diagnosis. That will help to ensure that we process applications quickly and sensitively, without the need to complete a full application for child disability payment.

We will ensure that children and young people who are in legal detention can continue to receive the mobility component, to allow families to maintain crucial contact and be ready for their return home.

We have modernised the requirement for children with a visual disability, so that it now reflects clinical best practice for assessing the vision of children and young people. In doing that, we have engaged with the clinical leads for the visual impairment network for children and young people and we have sought to align with the criteria for other devolved concessions or passported entitlements for children with a severe visual disability.

The regulations also make provision for the case transfer process. That includes moving the administration of disability benefits for children and young people in Scotland from the Department for Work and Pensions to Social Security Scotland. It also provides for ending the disability living allowance awards of those children and young people and beginning their entitlement to child disability payment.

This is the first time that we will transfer benefits in that way. Clients will not have to make a new application as part of the process. They will receive the same rates and components of CDP as they received for disability living allowance and will be paid on the same schedule. We aim to complete case transfer quickly, but we will not risk the process being anything other than safe and secure.

I remain grateful to Dr Sally Witcher and the Scottish Commission on Social Security for their scrutiny of the regulations. I am also grateful to the many individuals, organisations and stakeholders who have helped us constructively during the process.

I welcome the opportunity to assist the committee in its deliberations today.

Thank you—that is helpful. We move to questions.

The approach that has been taken with Social Security Scotland and the Scottish Government has been very careful and measured, to avoid mistakes, especially when transferring people across. However, what safeguards have been put in place against mistakes that are made in the transfer process, not least given the implications for somebody who is subject to such a mistake?

The case transfer process is complex and, as I said in my opening remarks, this is the first time that we will undertake such work. However, when we look at who will be transferring, in essence, it will be done by postal code in Scotland and, therefore, we should be able easily to determine who is and is not applicable for case transfer.

However, we have of course ensured that safeguards are in place. If a client has been transferred in error, we can carry out a redetermination of their initial CDP determination and, if the determination is found to have been incorrect—for example, because the person is not ordinarily resident in Scotland—that can be changed, which effectively undoes the original determination. We are working closely with the DWP to ensure that that is a seamless process, so that the client will immediately be picked back up for child DLA.

If a client believes that they should have been transferred and they have not been, they can notify Social Security Scotland directly or the Department for Work and Pensions, and we will look actively at any case that comes in. Of course, we are keen to ensure that there is a high degree of knowledge among stakeholders and interested networks to ensure that people know that the transfer is coming and that the agency will be transferring cases. By proactively doing our work with stakeholders, as we do with all our benefits, we hope to ensure that mistakes do not arise, but I hope that I have reassured the committee that, when they arise, we have safeguarding in place to deal with those issues.

I am grateful to the cabinet secretary for that information. Can you put into context how big an operation it is, compared with other ones? For example, how many cases does the Scottish Government propose to select for transfer in the first year of full roll-out? How does that compare with previous operations?

As I said, this is the first time that we will undertake case transfer. Obviously, there have previously been case transfers from one benefit to another within the DWP, and it would be fair to say that some of those went more smoothly than others. We are trying hard to learn lessons from that and ensure that we make the process as easy as possible for clients. For example, we will not require them to have an application form, which people require if they are transferring to universal credit.

We will be transferring just over 50,000 cases of disability living allowance to child disability payment, and we plan to complete the vast majority of those cases within the first 12 months of national launch. However, I absolutely reaffirm our commitment to a safe and secure transition. Therefore, if we need to go slightly more slowly at the start, we will do that, because it is vital that people’s payments are protected and that they are reassured about that. Of course, if we can accelerate the process, we will do so.

The other important aspect of case transfer is that we will clearly communicate the process to the clients. The client will know when their case is about to be transferred, and will be communicated with throughout the process and at its end. We will ensure that the client is fully aware of what is happening with their case, and is reassured during the process, because we know that it could be a worrying time. However, we are satisfied that what we have put in place for when it has begun will reassure people that they do not have to do anything as part of the process. We are absolutely determined to protect that safe and secure transition, as, I am sure, is the DWP.

That is great—thank you for that response.

I welcome a number of the crucial additions in the regulations, particularly the automatic continuation of benefit award for 16 to 18-year-olds. The arrangements for application by phone or face to face are also excellent provisions.

I will ask about the incorporation of case law into decision making. Last week, we heard quite a bit from witnesses that a careful balance has been struck between the succinct putting of case law into the definitions where that is possible, and, where it is not possible, the mirroring of the language in the DLA regulations. One notable difference in language is between “at night” and “throughout the night”. Was it intentional to phrase it in that way, or could it be changed to match the DLA regulations? Should we assume that it is the Government’s intention to mirror the DLA in case law and in the definition?

With specific reference to the wording “at night” and “throughout the night”, that has been expressed somewhat differently, but there is absolutely no intention to diverge from the existing DLA provision. It is simply a different way of expressing the same principle. We will set out clearly in the guidance for case managers that the rule should apply in the same way as the equivalent DLA provision that is already being completed by case managers.

That is really helpful. Is it the intention to incorporate any future case law into the regulations?

Rather than give a blanket answer, we have to look at that case by case, in order to establish whether a change in regulations is required or whether any future decisions can be dealt with adequately just through an update in the guidance. It would be premature to say one way or t’other how that would be dealt with.

Systems are in place to monitor what happens in Scotland as well as the tribunal decisions in the rest of the United Kingdom. That is part of our continued approach to ensuring that we have safe and secure transition and that we are aware of what is happening not just in Scotland but in the rest of the UK. We will therefore look at things case by case. If something needs to come back in regulations, we will absolutely do that; if it can be done in guidance, it will be done in that way.

Throughout all that, we will have a close working relationship with our stakeholders so that we can determine their views on how such things should be dealt with. We might not necessarily agree with them all the time, but it is important that we have had a really close relationship with stakeholders as we have developed the regulations, and that will not stop as we go through the process. If the committee approves the regulations, that relationship will continue as they are put into practice and as we work through how they work and, if they have to be flexible, how flexible they have to be in terms of changes following any case law change.

09:15  

I have a quick follow-up question. If there was a significant departure in case law and the regulations were not adjusted to adopt the new case law, could a future committee raise that with the future Government and the cabinet secretary and establish the reason why?

I would certainly expect any future committee to question what happens in order to ensure that we live up to what I have spoken about today, and I would expect the future cabinet secretary to answer that.

We welcome the scrutiny of the committee, because we want to get it right. We want to be able to reassure the committee, the stakeholders and, most importantly, the people who receive payments that we are dealing with it fairly and that we are listening and adapting where necessary. That will be an important role for the committee and stakeholders to play in future. We must ensure that we have that level of scrutiny.

I want to follow up on Pauline McNeill’s question on the difference between “at night” and “throughout the night”. I understand the comment that you made about the guidance that will go to decision makers, but I still have a slight concern about how that will be interpreted by tribunals. I remind members that I spent about 20 years on DLA and PIP tribunals. As a former tribunal member, it seems to me that you are making the test higher in regard to how often a person would have to be up through the night. I appreciate that that is not your intention and that you do not want that to happen, but how will the guidance be understood by and passed on to the tribunal service so that we do not end up with reinterpretation that goes against the policy of the Parliament and the Government?

As I have stated, we have no intention to change the interpretation—the guidance will be clear. I am sure that the committee is aware of this, but I reassure members that the guidance is publicly available to stakeholders, the judiciary and anybody else who wants to look at it. We are determined to ensure that how we make decisions and the basis for them is publicly understood by clients and others, all the way up to anyone who is in an appeals process.

The judiciary has a duty to uphold its independence. I do not think that there will be a change in how the provision is interpreted, but if there is, we can revisit it. That is one of the aspects that we are determined to keep a close eye on when the system goes live. We will monitor what happens and any changes when it is being used as a live benefit. The monitoring of decisions will be an important part of the process. As I said, we do not intend there to be and do not think that there will be any change, particularly with the guidance behind the regulations.

If there is no change of policy, why are you using different wording to what everyone in the third sector and the service is used to and understands?

It comes down to one of the challenges that we have had as we have been drafting this large part of the regulations—as the committee can see, the regulations are substantial. There are parts where we could follow the exact wording, but there are examples where we have not done so. The drafting process was part of our long engagement with stakeholders about how we intended to draft the regulations and what we intended to put in them. It is a simple matter of drafting, rather than a change of policy.

I would point out that, in deliberating on the regulations, SCOSS did not raise any concerns or issues on that point, which I hope reassures the committee. I appreciate that Mr Balfour has a keen interest in the matter and remains concerned about it. I again emphasise that we will monitor the situation closely to ensure that our intent is what is carried out.

We will move on. I will now bring Pauline McNeill back in for the next theme.

My question relates to late requests for redetermination. The regulations allow for 42 days to ask for a redetermination, or up to a year with “good reason”. You will know that the time limit under the DLA regulations is 31 days, which can be extended to 13 months. In practice, decision makers at the DWP rarely refuse to accept a late request for a decision made in that absolute time limit of 13 months. Do you want Social Security Scotland guidance to encourage decision makers to be lenient in their judgments? Will they be given any guidance as to what constitutes “good reason” for a late request for redetermination, or is that something that you simply intend to build on as we go forward? It would be useful to get your answer to that.

I would not use the word “lenient”; I would probably use the word “fair”. There should be a fair assessment and a fair approach. That very much involves agency staff listening to clients and understanding the reasons why they have made their request for a late determination. In essence, we have lengthened the timelines for requesting a redetermination from one month under the DWP system to 42 days under the devolved system. As Pauline McNeill says, both systems accept late determinations.

I return to how we are running our entire social security system and the principles of dignity, fairness and respect on which it is based. The case managers and decision makers are not there to catch out clients or make life difficult for clients; they are there, as I said earlier, to make a fair decision. That will very much be based on guidance, as the committee would expect, and the guidance will reassure stakeholders and clients that things will very much be done in a fair manner.

We try hard to work with stakeholders as we draft the guidance, to ensure that it is fit for purpose, allowing for fair decision making. I would expect the work with stakeholders on this issue to be as productive as it has been on many other issues. The detail will be in the guidance that follows some of the regulations. I can reassure the committee that we work with stakeholders on the drafting of the guidance—it is not presented as a fait accompli to them.

That is how we ensure that we make fair decisions that genuinely take account of a client’s needs and situation. In essence, we all want to ensure that every individual who comes forward to the agency gets the benefits and payments to which they are entitled. We can do that only if we make the decisions in a fair manner. That involves any issues around late requests for redeterminations—or a myriad of other things, for that matter.

I want to be clear about that. You are saying that there will be guidance on the use of the 12 months and on reasonable use.

Yes. There will certainly not be situations in which case managers are making that decision themselves without the ability to refer back to guidance.

We have made very good progress with our guidance on what constitutes “good reason”. As I said, we have worked with stakeholders on that, because we want to be transparent with them about how the decisions are made. Any decision that is made on those issues would absolutely be based on the guidance, which we worked on with stakeholders as we drafted it.

Thank you very much.

I would like to ask about the right to review an award. Being able to request a review of an award is obviously important, because a child’s condition might worsen, or it might come to light that relevant information that should have been in an application was not. There is a lot of DLA and PIP underpayment due to worsening conditions not being acted on, so I am sure that you will agree that it is vital to get that right.

We have been advised by the Scottish Parliament information centre and by witnesses that there is no absolute right to a review in the draft regulations. The draft regulations say:

“The Scottish Ministers must make a determination”

if they believe that it “possibly” might change the award. That seems to leave open the possibility that a review request might not be accepted, and, because no determination will have been made, there would be no right to appeal. Is the Scottish Government’s intention that anyone who requests a review should get one? If so, could that be made more explicit in the regulations?

As we have gone through the process, we have lowered the threshold around notification of a change of circumstances from a client and changed the term from “probably” to “possibly”. It is important that we have that threshold, because, in essence, it sets an appropriate level at which decisions can be made.

I will go through the process. If a client reports a change of circumstances to the agency, they will get a fresh determination of entitlement. That tells them whether their entitlement will stay the same, increase or decrease. The client has a right to request a redetermination, or, indeed, to appeal, if they wish to at that point. It is important to have a process in which managers have a threshold level that they look at to make those decisions. As I said, we have changed the term from “probably” to “possibly”, which changes the threshold.

If a case manager has determined, for example, that there should not be a change in an award and a determination of entitlement goes out saying that things will stay the same, the client has the ability to request a redetermination or, indeed, to appeal, if that is the process. I hope that that reassures the committee that a person can go back and challenge.

Again, I would point to one of the key points about how social security works. It is there to ensure that an individual gets the maximum benefit to which they are entitled, and one of the responsibilities of case managers is to ensure that a person gets the maximum to which they are entitled.

We are not looking to minimise awards or someone’s ability to come forward, and case managers are not sitting with guidance that looks to do that either. We want to encourage people to come forward when they have a change of circumstances. We want people to know that there is a system that they can trust, and that they will be supported as they go through the process, so that they get what they are entitled to at the end of it.

I hope that that reassures Alison Johnstone that the system is built—from the principles in the Social Security (Scotland) Act 2018, through to the guidance that case managers will have—to challenge case managers to seek what the client is entitled to and to ensure that case managers do everything that they can to get the maximum to which a client is entitled.

09:30  

I very much welcome your language and your determination that we should seek to optimise people’s incomes and ensure that they receive what they are entitled to. Will you clarify whether you are saying that there is no danger of a review not being able to be obtained if a child’s condition worsened?

Section 52 of the 2018 act sets out the circumstances in which we should

“make a determination ... without receiving an application.”

Once that threshold is met, we have a legal duty to make a further determination.

The 2018 act sets out the thresholds and circumstances, and, as we drafted the regulations, we changed the word “probably” to “possibly”. I go back to my point that, in relation to guidance and ethos, the agency is set up to ensure that people get the maximum to which they are entitled.

On the change of the term “probably” to “possibly”, the SPICe briefing and witnesses have raised the issue of whether the duty to act on information that could “possibly” lead to a change in award could, in practice, result in frequent reconsiderations of a child’s award, which would be in contrast to the policy intention of rolling awards. Are you satisfied that that will not be the case?

Yes. That is an interesting point. As I said in my previous answer, we are trying to ensure that we give people the maximum opportunity to come forward with changes in their circumstances and to have redeterminations if they are required. However, we are also aware that, because of their experiences of the current system, people find any review process stressful and that it is a very anxious time for them. Although we will look at the options as we go, we have been clear that we will not review clients’ awards unnecessarily, because we want to reduce that stress. If we decide to review an award early, we will have to give the client reasons why that is being done.

I go back to my point about guidance. Case managers will have clear guidance on how to handle relevant changes of circumstances. We have been clear that changes such as moving into work—that might not be relevant to the vast majority of people who receive CDP, but I am giving that as an example—will not automatically result in a loss of entitlement, because we recognise that there are concerns that, in the current system, assumptions are made when people move into work.

We have to strike a balance. We are clear that we are building a system in which people should be encouraged to come forward so that they get their maximum entitlement, but the agency should not step in and carry out a review unless there is a reason for it to do so. As I said, that reason needs to be justified to the client, too. We will also monitor the number of times that we review an award early. We will be transparent about how many times that happens, so that we can challenge ourselves—I am sure that stakeholders and others will challenge us, too—if we feel that we are doing that too often. That is absolutely not the intention, so we will monitor that closely.

I have a final quick question about new information. Will there be a clear process for parents or guardians to ask for a review on the grounds that information was missing, for whatever reason, the first time round, so that such information can be provided?

If information comes to light that was not available when a decision was made and which would entitle a child to a higher award, the earlier decision could be revisited and corrected. That is entirely consistent with the provisions in the 2018 act. Steps will be in place to work through that issue.

Thank you.

My apologies, Mr Balfour, but we are pushed for time and I am not able to let you in at this point. We will move on to the next theme with questions from Tom Arthur.

I have a relatively brief line of questioning. The priority for transition from DLA to CDP is the rising-16 cohort, who will start to turn 18 in about 18 months’ time. My question is around transition to adult disability payment, which I understand is to come online from the summer of next year. What contingencies will be put in place in the event that ADP is delayed?

We certainly do not anticipate any further delays to ADP. Scottish Government and DWP officials are working on ADP and progressing the detailed planning that they must do for that. We still believe that the timescales that I set out to Parliament some months ago are a fair judgment as to when that can be delivered. Of course, if that changes, we would build in contingencies, but we do not feel that that is necessary at this point. I am confident about the timescale for delivery.

As a quick supplementary to that, if contingencies were required, would they perhaps be along the lines of allowing people to change benefit before they turn 18, or allowing people to continue on CDP after they have turned 18?

I will not speculate on the hypothetical contingencies that we would have in place, but I will talk about what we are doing to ensure that people are able to move between CDP and ADP without there being any gaps. For example, a young person would be able to stay on CDP if they were over 18 and still waiting on a decision for ADP. That is the way that we will work through that.

That is the current situation and, as I said, I will not speculate on possible contingencies at this point. I do not think that it would be fair for the committee to hear something that has not been worked through, as we do with all our contingencies.

We will move on to the next theme, on which I have two indications of interest from members. We will take Shona Robison, followed by Rachael Hamilton.

First of all, I am pleased that Dundee has been identified as a pilot. Will you say a bit more about how information from the pilot will be gathered and used to inform the national roll-out?

After the national roll-out, what monitoring data will Social Security Scotland collect on child disability payment in order to ensure that the rules are being interpreted as expected and that the administrative systems are working as expected?

Pilots are a normal part of the process of going live with a large benefit change such as this. They give us the opportunity to ensure that the processes, systems and links between other services, particularly the interdependencies between the agency and DWP, are working well. It is much better to test that through low numbers at pilot level, where contingencies are in place, rather than through full national roll-out in one go.

We will obviously keep a very close eye on how that is working. In the pilot, we have the ability to make changes as required if any of the processes, systems or links are not working, and also to see what could be included in terms of continuous improvement, which would be done once the national roll-out has been completed.

We will look carefully at what is going on during the pilot from a process and systems point of view, but we will also work closely with clients. For example, when clients make applications, particularly online applications, they will be able to report any faults in the form. Those reports would therefore be coming back directly from individuals. Although I would stress that the form has already been user tested to the nth degree before it gets to that stage, that ability will still be there. We will also have the option for people to leave a rating of their experience as they go through the process, and there will be an open comment text box as well.

We know that we will have to do some more qualitative work with a representative group of applicants, so that is also planned. As we go through that, we will work closely with stakeholders, as the committee would expect, and as we have done from the start of the process, during the pilot process and as we will do after the national roll-out, so that we can understand how the delivery is working for people at that point.

I hope that that reassures the committee that we are taking the pilot very seriously as an opportunity to test, review and change anything that will enhance the client experience even further than we believe that we already will be doing from day 1.

That is helpful. I was about to ask you about the evaluation and stakeholder involvement, but you have addressed that matter extensively. Will the Scottish Government expand the remit of the independent review of ADP to include CDP?

No, I do not intend to do that, and I hope that the reasons for that are reasonably clear to the committee. There is understandably a lot more concern around ADP—or certainly PIP—as it performs at the moment. There is a desire to see more substantial change than we can achieve as we move to safe and secure transfer. The main issue that comes back on CDP is the need to make the application process easier and simpler for people to understand, and we believe that we have done that through the changes that we have made.

I appreciate that some stakeholders want to have a wider review that looks at whole-life benefits and so on, but, if we started to look at that, that would impact on our ability to deliver any changes, because changes in benefits take a long time from policy development, or from an independent review then back to Government for policy development, to programme testing and implementation. I am concerned that, if we extended that further, we would not make the changes that some people might want us to make—[Inaudible.]—until later than is planned.

Cabinet secretary, you have just alluded to one of the lessons being about simplifying the forms. Have any other lessons been learned from developing CDP that the Government and Social Security Scotland might apply to forthcoming benefits?

The major one will probably not come as a surprise to the committee: the ability for us to work with clients from the current DWP system and to work closely with stakeholders so that we are co-designing and co-producing work is integral. I am very confident that we have made the changes to CDP that will make it a much better experience for families who are having to go through filling in those forms. That might not be a new lesson, but, when looking at something such as this, it strikes home how important it is to do that work with clients right from the start and, most important, to act on what they say.

[Inaudible.]—the points that you have just addressed. Can you describe what you mean by the systems, links and interdependencies between the DWP and Social Security Scotland? Do you foresee any issues in relation to those links?

The committee will be aware that we are, in effect, sharing clients with the DWP as we go through this process, which is why it is a joint programme. We are connecting in many different ways with different parts of the DWP system—some of those parts are quite old, and some are newer. All those interdependencies must join together seamlessly so that clients receive, for example, passported benefits and entitlements that are still reserved. That will ensure that the DWP has knowledge of the pure and simple fact that an individual has been awarded CDP and, therefore, that a myriad of things have to happen in the reserved benefit section for that to work.

09:45  

It is a complex piece of work; it is not just one system of information that goes back and forward between the agency and the DWP. The relationship is a complex one with a great number of interdependencies. The DWP system is not one system that just sits there; it is a myriad of different systems.

Of course, we need to connect with HMRC, too. There are a number of interdependencies with different parts of Government that need to be tested as we proceed—as, indeed, would happen if the DWP introduced a brand new benefit that linked into different parts of the overall DWP system.

My general point is about whether you foresee any issues with that interdependency. You have talked about old systems, and I presume that you mean software systems. There is also a human link. Do you see there being any issue with data transfer?

It comes down to the work that has to happen between the DWP and Social Security Scotland way before the benefits get to a go-live process—we test all those abilities.

I return to the fact that this needs to be a joint project in which the DWP works as hard as Social Security Scotland to ensure that the arrangements are working. We have extensively tested all those links with the DWP, but there is only so much that can be done before a system goes fully live. You can test certain points, but other aspects must be tested in the live system.

I am very confident that, because of the work that has been done both by the programme and by the DWP, the system is working well. We certainly do not anticipate any problems. Everything is going through the procedures and gate keeping at all levels to ensure that it is working well. We need to have the live system, too, however, which is why we have the pilot. If there are any issues, they will concern a small number of cases, which can be dealt with using manual workarounds, for instance, until the issues are sorted out.

I stress that we do not anticipate—[Inaudible.]

Thank you. That leads me nicely on to some of the concerns that witnesses have brought up—which you will, no doubt, be aware of—about collecting the right data. They want to be reassured that the remit of the pilot is correct, so that it will be worth while. Witnesses wanted to know, for example, why claims are being refused when requests for reviews are being turned down, to ensure that regulation 31 is working. I want to give you the opportunity to reassure those witnesses that the right data is being collected.

Absolutely. One way in which that can be done is through the length of the pilot. The vast majority of monitoring that we will be doing is at the start, on brand-new applications, but, because of the length of the pilot, we will be able to test all the way through. Once decisions are made, how are redeterminations and so on being dealt with? We should be able to test the system all the way through. We will examine every step of the process as we go through it. As every step of the process is brand new, every step will be getting analysed and monitored. That will not just be about the number of applications, whether the applications came through and whether the interfaces worked; it will be about how that felt and worked for the client and how it felt for the case manager.

We will keep in very close contact with the DWP to ensure that its experiences are as we have planned them to be. There has been very good contact with the DWP as we have gone through the process, and both Governments are persuaded that we are at the right stage to go through with the pilots and the go-live dates.

In a response to Shona Robison, you said that you are unlikely to extend the remit of the independent review on adult disability payments to include CDP. However, one of the witnesses said that the regulation could be open to interpretation and that the balance between the guidance and the regulation needs to be right. How do you respond to that concern?

The remit of the independent review of ADP is to question whether major substantive changes need to be made to ADP. However, the fact that CDP is not part of that does not mean that it is not part of our testing and learning system. We are very responsive to the fact that, once we go live with a benefit, we have to work continuously with stakeholders to see how it works. The independent review of ADP is looking at particular issues to do with ADP and the wider aspects and challenges that people might have, particularly in keeping their eligibility, but we will still be looking very closely at CDP to do any learning that needs to be done.

We will, absolutely, be working with stakeholders as we go through the process, both during and after the pilot—and after we go live—to monitor how it is working and to ensure that we have the regulations right all the way down to the client experience, which is also very important.

I hope that I can reassure the witnesses who had concerns about that that we will still be very much in a learning process on CDP and are very keen to work with stakeholders as we go through that, to see whether any changes should be made to regulations, to guidance or to the way in which the agency is dealing with certain issues. That will, absolutely, all still be looked at after we go live.

[Inaudible.]—just checking that you still want to come in, Jeremy.

[Inaudible.]

We are struggling to hear you. Will you indicate in the chat box whether you want to come in? We will then persevere to get you in. If you do not, we will move on.

I see that you want to come in. Hopefully, we will get your sound.

Can you hear me now, convener?

Perfectly, thank you.

I will move us on slightly, cabinet secretary, to another point that has been raised in the cross-party group on disability, about where we go next when a benefit comes to an end or a change of circumstances happens whereby the benefit will come to an end.

Concern has been raised by quite a number of parents, who came to the cross-party group to say that they might suddenly lose their car or a benefit that affects the whole family. Although they have—[Inaudible.]—no one wants a cliff edge. Once the review has taken place and the appeals system has been gone through, they will lose that car at some point. Has there been any thinking within the Scottish Government about making a kind of taper system whereby, rather than that cliff edge, there might be a six-month or nine-month period wherein people can readjust to such a change in circumstances? I appreciate that that is not for today, but did you think about it as you were looking at the regulations?

With the regulations, we have put in place something to ensure that, if people have concerns about the decision that has been made, short-term assistance is available to allow them to move through the determinations and appeals process without fear of losing their benefit at that point. An individual can therefore be reassured that they can go through that process and still receive the payments to which they were entitled before any change was made to their entitlement from the agency. That would include their Motability car.

Thank you. I will leave it there, convener.

Thank you very much for your brevity, Jeremy—it is appreciated. It is an important line of questioning, but we are a bit pushed for time.

That concludes our consideration of agenda item 1. We now move to agenda item 2, which is on the same piece of subordinate legislation. I invite Ms Somerville to move motion S5M-24149.

Motion moved,

That the Social Security Committee recommends that the Disability Assistance for Children and Young People (Scotland) Regulations 2021 [draft] be approved.—[Shirley-Anne Somerville]

We now come to the part of our session in which, in theory, we can debate the motion. However, we had a pretty good cut at the evidence earlier. If any member would like to comment for the purposes of debate, I ask them to indicate that in the chat box now.

I had been hoping against hope that we might not have a debate, but it is important that members put their thoughts and considerations on the record, and I thank them for those. I have two indications of interest.

I appreciate that time is tight, convener, but it is important that we acknowledge where we have got to. This has been a five-year process, which has gone through lots of consultation. I am sure that members from all parties welcome the regulations and hope that they will be successful.

I place on record the fact that I still have concerns about the definition in relation to night time. I understand what the cabinet secretary has said, but I am not quite sure why it was felt that we needed to change the wording for that. Everyone understood it and it had been working well for a number of years. That might have to be revisited at some point.

The other area in which I still have concerns is the reviews that the new agency might undertake. I appreciate that the cabinet secretary has said that she wants to see the agency taking a light touch and that there must be evidence to show the need for a review. However, it is still unclear to me when any review would take place, where evidence would come from to start it and whether the agency would have to go on fishing trips. That might become clearer once we have the guidance and the system is up and running.

Notwithstanding those two concerns, in general, I welcome the regulations and hope that they will give children and their families the security that they require. I look forward to seeing them working in practice over the next few years.

I will be brief. I have already put on record my view that the regulations contain a number of good measures that everyone should welcome.

I emphasise that it will be important for a future committee to keep an eye on any divergence that there might be in future case law on the regulations. I put to the cabinet secretary a question about the phrase “on redetermination” being applied to the 12-month period as opposed to 42 days. In time, what will be put in the guidance as a good reason to have a late redetermination?

Having said that, I am happy to support the regulations.

I will make a brief comment before I bring the cabinet secretary back in, if she would like to respond to those comments before we conclude.

The way in which the committee, the Scottish Government and stakeholders have engaged with the roll-out of the new child disability payment bodes well for the transformation of Scotland’s approach to entitlements for those living with disabilities across the age ranges—not least, adults who do so, for whom entitlements will be coming shortly. We are in a very good place. I thank the Government for its constructive approach to that engagement.

There is not much time left in this parliamentary session, so I also thank members of the committee for all the work that they have done. I thank, too, earlier committees from before the point at which I took over as convener. Our successor committee should scrutinise the implementation of disability payments in real time.

The committee and the Parliament have come together and engaged constructively with the Government, and I place on record my thanks to committee members for their sterling scrutiny of these important proposals.

Cabinet secretary, do you wish to respond to that brief debate?

I will not say much, convener, because I know that time is tight.

I agree with the committee that this is a milestone event. We have rightly gone through the details of the regulations, but it is important to take a step back and recognise the point that we are reaching with their being passed.

I will not rehearse the points that committee members raised in that brief debate, because I went over them during our session. However, the guidance that we are completing for the agency will, of course, be made public. Given where we are with timescales, if future committees are keen to investigate that guidance further, once it has been published, we will be keen to be transparent about that, so that people will be reassured about how we are putting the regulations into practice. However, that will be for the next committee and for whoever holds my position after the election, if it is not me.

Cabinet secretary, you will be joining us slightly later in the meeting, so you will be returning. However, for the moment, I ask whether members are content to recommend approval of the instrument. I ask any member who is not so content to indicate that in the chat box.

There has been no indication of dissent.

Motion agreed to,

That the Social Security Committee recommends that the Disability Assistance for Children and Young People (Scotland) Regulations 2021 [draft] be approved.

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Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 (SSI 2020/73)

Under agenda item 3, the committee will consider the Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021, which is an instrument subject to the negative procedure. The purpose of the instrument is to allow the child disability payment to be treated in the same way as child disability living allowance for devolved passported benefits.

Members should be aware that the Scottish Government intends to lay amending regulations tomorrow, to correct an ambiguity in the definition of “care home”.

Are members content to note the instrument? Any member who is not so content should indicate that in the chat box.

That is agreed to.

I said that the cabinet secretary would not be getting away that quickly, and we will shortly move to agenda item 4. However, I have a note asking me to suspend the meeting briefly to allow our information technology colleagues to get the cameras for the cabinet secretary and her officials in working order. I therefore suspend the meeting to give our IT colleagues the opportunity to get those sorted.

10:02 Meeting suspended.  

10:06 On resuming—  

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Social Security Information-sharing (Scotland) Regulations 2021 [Draft]

Item 4 is also subordinate legislation. The committee will take evidence on the Social Security Information-sharing (Scotland) Regulations 2021, which are subject to the affirmative procedure. I refer members to paper 6. As before, this item is an evidence session, not formal consideration of the motion. Officials are permitted to speak during this item, but once we move to the next item, which is formal consideration of the motion to approve the regulations, only members and the cabinet secretary can contribute.

I welcome back Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People, and her officials: Andrew Hiskett, information governance policy officer, Ryan Laurenson, product owner, and Susan Robb, solicitor.

I am delighted to be here to talk about the Social Security Information-sharing (Scotland) Regulations 2021.

The transition to deliver Scottish disability benefits is a complex process involving many interactions between different Government departments and agencies. That means that information sharing between agencies will be necessary to ensure a seamless transition and an uninterrupted delivery of benefits.

There are two main reasons for that. First, it will be essential for Social Security Scotland to work and share information with other agencies, such as local authorities, to enable individuals to receive all the benefits that they are entitled to from those agencies. Those are referred to as passported benefits and include entitlements such as council tax reductions and blue badge permits.

Enabling local authorities to request information about an individual’s disability benefit entitlement from Social Security Scotland reduces the burden on individuals who would otherwise have to prove their entitlement by themselves, making it easier for them to apply for and receive passported benefits. It also speeds up the application and review process for local authorities, helping individuals get the support that they need sooner.

The second reason why information sharing is critical for the delivery of the new disability benefits is that it ensures that Social Security Scotland is equipped to access information supporting an individual’s application or review for a disability benefit. Supporting information may be supplied by the individual, but the Scottish Government is committed to supporting individuals who apply for benefits by gathering that information on their behalf, if they so choose.

That option makes the application or award review process less onerous and costly for the individual. Having access to all the relevant supporting information will enable case managers to make an appropriate and informed decision on an individual’s case, which minimises the need for consultations. It is important to note that it is always the individual’s choice to instruct Social Security Scotland to gather that information on their behalf; it is not mandatory, and the individual’s confidentiality will take precedence.

Social Security Scotland will only seek to gather information on behalf of an individual that is relevant to the determination of a benefit award. That can include information relating to the individual’s medical conditions, prognosis, medications and elements of their conditions or symptoms that affect their daily life. Importantly, it can also include information on the individual’s need for support.

The framework for information sharing is set out in the Social Security (Scotland) Act 2018. The regulations provide more detail on the agencies and organisations that Social Security Scotland can share information with and require information from and detail the purposes of information sharing. As part of this approach to information sharing, I emphasise that we take the safeguarding of individuals’ privacy seriously. The regulations give us the ability to share only relevant information and no other information beyond what is necessary.

Transparency and privacy have been keenly considered in the preparation of the regulations, which means that we have placed limitations on how information can be shared to ensure that any necessary sharing remains proportionate, relevant and transparent at all times. Individuals will always be given a choice before sensitive data, such as details about a medical condition, are shared. We will always get explicit authorisation of the individual before requesting supporting information about them from a health board, general practitioner practice or local authority, and that is enshrined in the regulations.

We have had one indication of a question from Jeremy Balfour. If there are any other questions, please could committee members indicate that in the chat box?

I welcome the regulations. I have questions on the practicalities. First, the committee heard evidence last week that some GPs charge to provide medical evidence, which sometimes has to be paid for by the person making the claim. Presumably, that charge will go, but are GPs aware of that and how will it work in practice if a GP still wants payment?

Secondly, sometimes the GP is not the best person to get evidence from; rather than a health official, the best person might be a carer or somebody else like that. Again, last week, concern was expressed that the agency would just go for the easy option of using a GP or a consultant. Can you reassure us that guidance will set out that the agency will look to get the best evidence, which might not necessarily be somebody with whom there is a formal agreement?

Jeremy, thank you for rolling those questions together—that was helpful.

On the first question, yes, we will pay GPs for medical evidence, and we are working with stakeholders on the comms to GPs on that. I hope that that deals with that issue.

On the second aspect, the GP is not the easy option if we are going to the wrong person. Therefore, an individual—a client—can let Social Security Scotland know who they believe the formal information should be obtained from. They know who is best able to tell the agency about them and answer the relevant questions about them. We will take on board what the client says, because we cannot approach people unless the client has given us permission. We want to get the right person, as that will allow us to make the quickest decision for the client. Therefore, on all those counts, it benefits the agency as well as the client if we go to the person who the client believes knows and understands them best. As Jeremy Balfour says, that is often not a GP. It could be another person who has a closer relationship with the client than the GP does. I hope that that reassures him on both points.

This is quite a niche question, cabinet secretary. How easy is it to change the regulations that set out the process for applications for blue badges? I ask because of my experience of my campaign to extend access to blue badges to individuals with, for example, motor neurone disease. I am having to go through a process of a study in conjunction with Transport Scotland. I want to tease out the issues of the limitations of the regulations, how those can be changed and, indeed, whether they need to be changed, to address the issue of access to blue badges.

10:15  

We can perhaps take up that point after the meeting if my answer does not deal with the question. I think that the matter is not really about the regulations for Social Security Scotland but about how the blue badge system works and whether a person is entitled to a blue badge. Social Security Scotland will be able to answer and respond to any request from a local authority that is dealing with the blue badge system. That point should probably be reflected back to other parts of Government to ensure that the blue badge system is working effectively. The regulations on information sharing ensure that whatever is in place is dealt with effectively and efficiently. That is Social Security Scotland’s responsibility, but I presume that how well the blue badge scheme works is a matter for Transport Scotland.

Thank you.

I know that the cabinet secretary addressed this, but I would like the purpose of the regulations to be put on the record, because it might be useful for a future committee to look at the matter in more depth. On the face of it, it appears that the regulations will be helpful to applicants, which is the primary purpose, but I am a little bit cautious, because it is important that we get issues relating to information sharing and privacy right. For my satisfaction, can you put on the record that people’s privacy will be protected, that people will get a say in the sharing of information and that information will be shared for no purpose other than to help the applicant?

Absolutely. Information will be shared to assist the client as they go through their journey. We can imagine what would happen if we did not approve the regulations. The client would have to go to different agencies to get the important information that they required and would have to put extra work into getting passported benefits and so on, rather than there being a process in which such information is shared.

I absolutely take Pauline McNeill’s point that the sharing of information must be taken very seriously. It should be done only when the client has agreed to it and knows the reasons for it, and the client should be able to share any concerns that they have about it. I associate myself with her remarks.

Thank you. I am grateful for that.

There are no other questions, so I invite the cabinet secretary to move motion S5M-24148.

Motion moved,

That the Social Security Committee recommends that the Social Security Information-sharing (Scotland) Regulations 2021 [draft] be approved.—[Shirley-Anne Somerville]

I hope that we will not now have a debate on the regulations, but I do not want to stifle debate, so I will follow the procedure. If anyone wishes to make any comments at this stage, they should indicate that they wish to do so in the chat box.

No one wishes to comment. Given that there has been no debate, I suspect that there is no requirement for the cabinet secretary to sum up.

Is the committee content to recommend approval of the regulations? Unless I see any dissent in the chat box, I will assume that the motion is agreed to.

There has been no dissent, so the motion is agreed to.

Motion agreed to.

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Social Security Up-rating (Scotland) Order 2021 [Draft]

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Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021 [Draft]

We now move to item 6, under which the committee will take evidence on two affirmative instruments. I refer members to paper 9.

Once again, I welcome Shirley-Anne Somerville, the Cabinet Secretary for Social Security and Older People, and her officials: Camilo Arredondo is a solicitor for the Scottish Government; Vana Anastasiadou is an economic adviser; and Veronica Smith is a cross-cutting policy adviser.

As before, we invite the cabinet secretary to make an opening statement; we will then move to questions.

This provides an opportunity to assist the committee with its consideration of the draft order and draft regulations, which are required to uprate devolved social security benefits in April 2021.

As members know, we took over executive competence for the remaining disability benefits and industrial injuries benefits on 1 April 2020 and, as a result, we are responsible for introducing legislation to uprate all those benefits, including the carers allowance, for which we have had responsibility since 2018.

As members can see from the draft order, there is an extensive list of benefits and associated benefits, particularly in relation to the industrial injuries scheme and the severe disablement allowance.

The section 77 report, which was laid in the Scottish Parliament on 29 January, sets out the impact of inflation on devolved assistance and what we intend to do for the next financial year. The report was extended to include all devolved benefits, and I hope that it assists the committee in understanding the complexity of the benefits that we are now responsible for uprating.

As required under agency agreements with the Department for Work and Pensions, the draft order uprates those benefits through the uprating policy of the September consumer prices index, which was 0.5 per cent this year. The only exception to that is the industrial death benefit, which is a form of pension, and which is to be uprated by 2.5 per cent under the triple-lock guarantee.

I now turn to our own benefits. The duty to uprate the young carer grant and the funeral support payment by inflation in 2021-22 would have resulted in a 0.5 per cent increase. However, because of the exceptional circumstances arising from Covid-19, I decided to increase the young carer grant, the funeral support payment, the best start grant, the child winter heating assistance and the job start payment by 1 per cent.

In its published report, SCOSS

“welcome this decision. It reflects information we have sourced on the impact of COVID on some low income households. It maintains and slightly enhances the system’s contribution to the realisation of certain human rights and the reduction of poverty’’.

I note that SCOSS questioned the implications of that decision for the Scottish Government’s long-term policy approach to uprating. I take this opportunity to emphasise that our annual uprating policy is unchanged and remains focused on ensuring that payments keep pace with price inflation, as reflected by the September CPI. However, as I think the committee would agree, we are in exceptional circumstances this year given the impact of Covid-19, and I wished to respond accordingly and to provide a 1 per cent increase.

In the meeting on the budget two weeks ago, we discussed the other measures that the Scottish Government has taken to support people during this time, and the 1 per cent increase should be seen as part of that overall package. The draft regulations before you will bring that 1 per cent increase into effect for payments other than the job start payment, which will be increased administratively.

The carers allowance supplement statement in the section 77 report confirms that the supplement will be uprated by September CPI—0.5 per cent. Section 81 of the Social Security (Scotland) Act 2018 does not allow the payment to be increased by more than the rate of inflation. However, the supplement, together with the carers allowance, will provide recipients in Scotland with up to £462.80 more a year than equivalent carers in England and Wales in 2021-22. Combining the carers allowance and the carers allowance supplement gives a total investment of £348 million in carers through social security.

When we revisit the annual uprating process next year, I hope that the worst of the pandemic will be behind us and the measures that we have introduced will have made a real difference to people’s lives.

I am happy to take questions.

Thank you, cabinet secretary. Do members have any questions?

I want to understand why best start foods will not go up at all. In effect, that is a real-terms cut.

The best start foods card replaced the UK-wide healthy start vouchers in Scotland. When we first introduced it, it was increased by 37 per cent.

As well as the introductory increase, I note that best start foods does not stand alone—it is not the only support that people might be entitled to, as there is also the best start grant and Scottish child payment. A number of aspects of the Scottish Government’s work, particularly in relation to the impact of Covid, will benefit those who receive best start food.

Therefore, rather than simply looking at best start foods in isolation, I looked at it in the round, bearing in mind the introductory increase and the other work that is going on in Government, particularly on the Scottish child payment.

[Inaudible.]—the situation in which the uprating was not carried out for the Scottish child payment in February, but—[Inaudible.]—2021-22. I think that I am correct about that. Will that approach have any impact on decisions about comparable benefits that the Scottish Government might introduce in the future?

I apologise, but I missed a bit of Rachael Hamilton’s question. I could see her but I could not hear part of her question. If I do not get it right, she can ask me again.

The Scottish child payment was introduced in February, and we took the decision not to uprate it at this point, because the important aspects to concentrate on are processing applications and getting them out for payment. Making changes to the programme and how the agency works might have detracted from dealing with the applications that are going through just now.

We took that decision on the Scottish child payment because of the current circumstances and the timing of what is happening. We would take decisions on any future benefit based on the issues that were having an impact at that time. The decision in question was about the Scottish child payment, when it came in, the number of applications that we are due to get through and our wish to concentrate on all that rather than on making changes to processing.

I hope that that answers your question.

Yes, it does. In comparable situations that do not involve a pandemic, will you have stakeholder engagement to inform you on uprating any future benefits?

As we go through the uprating process in future years, the Scottish child payment will be uprated, of course. At previous meetings, the committee looked at our decision on how to deal with the uprating of the Scottish child payment. Once the Scottish child payment is up and running, it will be considered as part of the usual annual uprating decisions that we make, but it will not be consulted on annually.

I go back to our uprating principles. Uprating is there because we need to keep uprating by price inflation each year. That is how we have determined that we will do it, which stakeholders might have opinions on. It is part of the budget process rather than the uprating process—I hope that that splits up those two aspects. We do not consult on uprating, but we will consider the views of stakeholders if they wish to express them.

10:30  

I am just checking that I am not missing anything, but I do not see any further questions. I just want to check with the clerk whether we are moving next to the question on the motions to approve the instruments. Will the clerk drop a message into the chat box? I have just lost my thread a little; my apologies.

It is taking a little time.

We now move to item 7. My apologies for that. I had to deal with a small child in the background while that evidence session was going on, so I lost my thread. I just wanted to make sure that I am at the right bit. We have disposed of item 6 and we are now on item 7. I invite Ms Somerville to move motion S5M-24124.

Motion moved,

That the Social Security Committee recommends that the Social Security Up-rating (Scotland) Order 2021 [draft] be approved.—[Shirley-Anne Somerville]

There is an opportunity to debate the motion, if members wish.

Just really quickly, what happens if the DWP still has power over severe disablement allowance? Does that have any effect on our approving the instrument today? I just want reassurance on that.

That is part of the debate. The cabinet secretary can deal with that during her summing up, if she wishes.

There are no other comments. There is an opportunity for you to sum up if you wish, cabinet secretary, before we move to a vote.

I simply assure Rachael Hamilton that the order ensures that the uprating that applies is the same as that of the DWP. If we did not approve the order, that uprating would not happen. The uprating agreement is part of our agency agreement with the DWP.

Thank you, cabinet secretary. The summing up being complete, the question is, that motion S5M-24124 be agreed to.

Motion agreed to.

Item 8 is on the other instrument that we have just looked at.

I invite Ms Somerville to move motion S5M-24125.

Motion moved,

That the Social Security Committee recommends that the Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021 [draft] be approved.—[Shirley-Anne Somerville]

Motion agreed to.

Cabinet secretary, I thank you and your officials, not just those who have been on board during the rather lengthy evidence session on the statutory instruments but your officials throughout the Parliamentary session. This discussion is likely to be our last this session, given that the Parliament is about to move into the electoral period. As I hinted earlier, when we were looking at the child disability payment, I put on record my thanks to you and your officials for all your efforts and work over the years. Some of us might see some of you on the other side of the election, but I thank you for all your collegiate working.

That concludes item 9—rather, item 8; that is the peril of having to try to deal with a small child and an Alexa in the background at the same time.

Agenda item 9 is in private session. Members will be relieved to know that the broadcast part is complete. I close the public part of the meeting.

10:35 Meeting continued in private until 11:52.