This short Bill would make changes to the administration of Scottish social security on appointees, terminal illness and topping up reserved benefits. It would also extend existing provisions to allow judges from other jurisdictions to sit on Scottish Tribunals.
The Social Security Administration and Tribunal Membership (Scotland) Bill1 (the Bill) was introduced in the Parliament on 27 April. This short Bill makes several relatively minor changes to the Social Security (Scotland) Act 20182 and allows judges from other jurisdictions to sit on Scottish tribunals. The Bill has four main themes.
Appointees: It would allow Ministers to appoint a person to receive benefit payments on someone else’s behalf if the claimant is a child or, if an adult, the claimant agrees to the appointment. (Section 1)
Top-up Benefits: It would allow regulations that create ‘top-up’ benefits to include provisions on offences and investigations. This would apply to the Scottish child payment, due to start early next year. (Sections 3 to 6)
Terminal illness: It would allow medical professionals other than doctors to confirm that a person is terminally ill for the purpose of ‘fast tracking’ their benefit claim. The first benefit to which this would apply would be the child disability payment. (Section 7)
Tribunals: It would allow the temporary appointment of judges from other jurisdictions to sit on Scottish tribunals including those dealing with Social Security Scotland benefits. (Sections 8 and 9)
There has been no public consultation on this Bill and it is expected to be subject to a truncated parliamentary timetable. The time available for public scrutiny is therefore severely limited compared to the normal Bill procedure.
Stage 1 is due to conclude before the summer recess which starts on 27 June. The Social Security Committee has asked for written views on the Bill by 14 May which will inform an oral evidence session with the Cabinet Secretary on 21 May.3
Prior to the Coronavirus COVID-19 outbreak the Scottish Government intended to launch two new benefits this year:
Child disability payment had been due to start this summer, replacing child disability living allowance
Scottish child payment had been due to start before Christmas, giving universal credit claimants an additional £10 per week, initially for each child in their family aged under 6.
In order that these benefits can start with the administrative framework fully in place, changes are needed to the ‘framework’ legislation – the Social Security (Scotland) Act 2018 (the 2018 Act). In particular, without the measures in this Bill it would not be possible to create an offence of fraud for the Scottish child payment unless that benefit was created using primary legislation.
The first mention of a Bill being required was in a letter from the Cabinet Secretary to the Social Security Committee on 21st February 20201 which set out the main policy proposals and informed the Committee that the Bill would need to complete all parliamentary stages before summer recess.
On 1 April,2 the Cabinet Secretary announced to the Parliament that the timetable for Scottish social security had been delayed due to the impact of Coronavirus COVID-19. She hoped to introduce the Scottish child payment ‘early in 2021’ and winter heating for families with a disabled child in winter 2020. She was not able to give a timetable for the start of other benefits including the child disability payment.
The delayed social security timetable means that there is slightly less urgency around this Bill and it is not now expected to complete its passage through Parliament until after summer recess.
Even so, the timetable for Stage 1 is still considerably shorter than normal. The Social Security Committee issued a call for views on 30 April, asking for submissions by 14 May:
To meet the required timescale for stage 1 scrutiny, the Committee plans to hold a single oral evidence session on 21 May.
Scottish Parliament Social Security Committee. (2020, April). Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/115059.aspx [accessed 1 May 2020]
As mentioned, there has been no public consultation on this Bill. The policy memorandum states that the Bill is:
a small series of fixes to the legislative framework for social security in Scotland and […] many of the issues in the Bill have been raised in one form or another previously.
Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
The proposal to allow appointees to receive benefit payments on behalf of a child was welcomed by the Scottish Commission on Social Security in their report on the draft child disability payment regulations2. They also recommended that disability payments should be suspended rather than ended when a person goes into a care home:
The Scottish Government should ensure that the simple processes, passported exemptions and entitlements, and certainty of award currently available to people entering or leaving a care home are not lost to those getting CDP. One route to achieving this is to consider amending the Act to enable entitlement to remain while payment is suspended.
Scottish Commission on Social Security. (2020, March). The Disability Assistance for Children and Young People (Scotland) Regulations: Scrutiny report on draft regulations. Retrieved from https://www.gov.scot/publications/the-disability-assistance-for-children-and-young-people-scotland-regulations-2020-scrutiny-report-on-draft-regulations/ [accessed 28 April 2020]
This is not addressed in the Bill.
The proposal for adult appointees arose during consultation on the disability benefits terminal illness guidance. This was a confidential consultation with limited stakeholders in 2019. The statutory guidance gives advice on certifying that someone is terminally ill for the purpose of fast-tracking disability benefits.
Other issues raised during the consultation on the terminal illness guidance included that:
Nurses should be able to certify that someone is terminally ill, as they do for DWP benefits. This is provided for in section 7 of this Bill.
That if someone is terminally ill, it may be in their best interests to have certain information withheld from them. This is provided for in section 2 of this Bill.
Sections 3 to 6 of the Bill would enable statutory offences to be created for top-up benefits. The policy memorandum refers to a consultation on the general approach to fraud in 20164 (prior to any detailed proposals being developed) and to the consultation on the powers of investigation of offences5 in 2018. This latter consultation received only 18 responses but included some strong concerns about the breadth of powers proposed. The subsequent regulations were revised before being discussed by the Social Security Committee on 19 December 20196.
On extending tribunal membership (Part 2 of the Bill) the policy memorandum refers to discussion with the Scottish Courts and Tribunal Service, the Ministry of Justice, Her Majesty’s Court and Tribunal Service, Judicial Appointments Board for Scotland and Judicial Office.
The remainder of this briefing looks at the provisions in the Bill.
An appointee is someone who can receive and manage benefit payments on behalf of someone else. Section 1 of the Bill would allow a person to be appointed to receive benefit payments on behalf of a child or on behalf of an adult who agreed to the appointment.
The Social Security (Scotland) Act 2018 already includes the ability to make appointees for adults where the individual has diedi or lacks capacity.
These provisions were added to the then Social Security (Scotland) Bill by Scottish Government amendment and were agreed at the time without discussion.1
This new Bill would give Ministers the ability to make an appointee where the benefit claimant has capacity and agrees to the appointment being made. Ministers will be able to terminate an appointment at any time and must do so if the individual withdraws their consent.
For benefits administered by the Department of Work and Pensions (DWP), provision for making appointees for adults is set out in regulations,2 and detailed guidance3 is provided for decision makers. In the reserved system an appointee must be 18 or over and they must apply in writing if they wish to be an appointee for a “person who is unable to act”. The Secretary of State can revoke the appointment at any time. Guidance provides further detail such as on ensuring that the appointment is suitable by requiring that the claimant and the prospective appointee are interviewed.
There is no requirement in the Bill that applications to be an appointee must be made in writing, nor are there provisions for challenging an appointee decision – other than that an appointment must be revoked where the person on whose behalf the appointment is made withdraws their consent.
The policy memorandum accompanying the Bill suggests that this provision would be used by clients:
where they are terminally ill or for other personal reasons unable to act on their own behalf (without lacking capacity to do so)
para 25 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
The provision is needed because:
It has become clear that, in order to make the application process accessible and to avoid harmful information being disclosed to clients, provision should be made to allow appointeeship for adults where they agree.
para 28 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
Although the policy memorandum discussed these provisions in terms of people who are terminally ill, the Bill provisions are not limited in this way. The policy memorandum states:
It may be appropriate for adults to agree to an appointment in other circumstances, for example where their personal circumstances are such that the individual would not wish, and it would not be reasonable to expect the individual, to act on their own behalf or instruct an agent to do so.
para 31 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
The policy memorandum does not discuss how to ensure a client is not pressurised into agreeing to such an appointment when it may not be in their best interests.
The Social Security (Scotland) Act 2018 requires Ministers to give reasons for certain decisions they make. For example, they are required to explain why they have rejected a person’s application for benefit. When providing such reasons, section 2 of the Bill would allow Ministers to withhold health information if a doctor or nurse consider that to reveal it: “would cause serious harm to the physical or mental health of the recipient.”
This provision in the Bill is not restricted to cases of terminal illness although the policy memorandum discusses it mainly in that context.
The requirement to withhold information where it is considered harmful stems from the Chief Medical Officer’s Guidance which advises that information may be withheld where it is in the best interest of the patient, and that disclosing the clinical information to the patient, would be harmful.
para 32 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
This guidance on terminal illness is not published but was subject to a confidential consultation with relevant stakeholders in 2019.
The Bill remedies what the Scottish Commission on Social Security (SCOSS) has called ‘a gap in the law’,1 by enabling adults to be appointed to manage a child’s benefit payments on their behalf. This is particularly relevant for the child disability payment which was due to start this summer.
A person with parental rights and responsibilities can administer a child’s property2and, certainly in a human rights context, social security benefit payments are considered ‘property.’3
The provision in the Bill would enable an adult without parental rights and responsibilities to manage a child’s benefit payment. This might include some informal kinship care arrangements. The policy memorandum refers to:
children who are being cared for by family members who do not have parental rights and responsibilities (“PRRs”), such as grandparents, step-parents, older siblings and unmarried fathers who have not acquired PRRs.
para 14 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
The Bill's proposals are less detailed than their DWP equivalent. In the reserved system an adult is automatically appointed to receive child disability living allowance on a child’s behalf.5 That person must be: living with the child, aged 18 or over and either the child’s natural parent or someone appointed by the Secretary of State. Appointments end if a child goes into care and benefits can be paid to the NHS or social services if a child is in hospital and there is no-one else to receive the payment.
In contrast, the Bill would enable, but not require, Ministers to create an appointee. This may be because the expectation is that, in most cases, a parent will act under parental rights and responsibilities rather than needing to be appointed under the Bill’s provisions.
An appointee would not have to be living with the child, but they can only be appointed if there is no-one living with the child who has authority to act for the child. This also suggests that appointees would not be common for the child disability payment.
The Bill provides for a minimum age for an appointee of 16 rather 18 as it is the case for DWP benefits. A minimum age of 16 opens the possibility that an appointee for a child could be considered a child themselves and could themselves be in receipt of child disability payment. This is because it is proposed that child disability payment could continue to be paid up to the age of 18. The policy memorandum provides no explanation why 16 was chosen as the minimum age for becoming an appointee.
While there has been no consultation on this Bill, SCOSS were aware of the proposal when they reported on the draft child disability payment regulations. They suggested that there should:
certainly be a clear process for dealing with disputes between appointees, which should provide an independent review, and a process for assessing a young person’s capacity to handle their own claim when they turn 16.
Scottish Commission on Social Security. (2020, March). The Disability Assistance for Children and Young People (Scotland) Regulations: Scrutiny report on draft regulations. Retrieved from https://www.gov.scot/publications/the-disability-assistance-for-children-and-young-people-scotland-regulations-2020-scrutiny-report-on-draft-regulations/ [accessed 28 April 2020]
There are no dispute resolution procedures on the face of the Bill although Ministers can terminate an appointment at any time. The policy memorandum does not discuss the possibility of disputes or assessing capacity at age 16.
Sections 3 to 6 of the Bill would enable offences and powers to investigate possible offences to be created for the Scottish child payment and any other ‘top-up’ benefits that may be created in future. A ‘default’ provision would mean that the same provisions would apply to top-ups as apply to other benefits created under the Social Security (Scotland) Act 2018 (the 2018 Act).
Top-ups are created by regulations under Section 79 of the 2018 Act. The general administrative provisions around applications, appeals, offences etc that are set out in the 2018 Act for other benefits do not apply to top-ups. The provisions need to be set out separately in the regulations for each top-up. The first top-up being introduced is the Scottish child payment which tops up universal credit. The Schedule to the draft regulations for the Scottish child payment1 set out administrative rules which largely mirror those that apply to other benefits in the 2018 Act.
The main problem which prompted the Bill’s introduction is that it is not possible to create offences of fraud for the Scottish child payment. This is because the payment is being introduced by regulations and criminal offences were not included in the matters that that parent act (the 2018 Act) stated could be included in those regulations. This Bill would add that in, and create a ‘default’ provision, that the offences already set out in the 2018 Act in sections 71 to 73 would apply to top-ups.
The effect would be to allow the same provisions on offences and investigations to apply to top-ups, such as the Scottish child payment, that would apply to benefits created under Part 2 of the 2018 Act such as the child disability payment or best start grant.
Chapter 6 of Part 2 of the 2018 Act creates offences relating to claims for Scottish social security benefits and, under the provisions in this Bill, this would be the default position for top-up benefits also. The offences are:
Fraud – intentionally providing or causing a person to provide false or misleading information to obtain benefits. (s.71)
Failure to notify a change in circumstances without a reasonable excuse (s.72).
Causing another person to fail to notify a change. (s.73)
The penalties for each offence range from a fine to five years imprisonment.
The Bill would also apply another provision to top-ups that applies to other benefits. Section 68 of the 2018 Act allows Ministers to make regulations to transfer the Sheriff’s powers on recovery of overpayments to the First-tier Tribunal. No such regulations have yet been made. The Bill would create a corresponding provision for top-ups.
The policy memorandum states that:
During the passage of the Social Security (Scotland) Bill 2018 through the Parliament, concerns were raised by some stakeholders that the liability for a debt would, in some instances, only be determined when challenged through the Sheriff Court. This was considered as more daunting for vulnerable individuals than attending a First-Tier Tribunal. Therefore at Stage 3 an amendment was made to the Bill to allow some or all of the powers in relation to security debt recovery to be transferred from the sheriff courts to the First-Tier Tribunal.
para 51 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
In order to introduce the Scottish child payment as quickly as possible the Scottish Government chose to use regulations rather than primary legislation.
However, as discussed earlier in this briefing, gaps in the regulation making powers have meant that primary legislation is required in any case.
Benefits created as top-ups have certain limitations including an inability to:
make payments in advance, as top-ups require that someone is eligible for a reserved benefit for the period the top-up is provided1
include housing benefit as a qualifying benefit, as the top-up power cannot be used for housing costs.1
provide a ‘run-on’ payment if someone loses eligibility to a qualifying benefit, because a person must be eligible for a reserved benefit in order to get a top-up.
The Social Security Committee discussed the draft Scottish child payment regulations with the Scottish Commission on Social Security. At that meeting on 30 January Dr Sally Witcher noted that:
Stakeholders raised the issue with us. In many ways, a stand alone benefit would be a better option. [but] it would have created considerable and unavoidable delay, which would have been unacceptable.
Social Security Committee. (2020, January 30). Official Report col 13. Retrieved from http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12496&mode=pdf [accessed 29 April 2020]
The current Bill begs the question whether it might have been possible to create the Scottish child payment using primary legislation without a significant impact on the delivery timetable.
Section 7 of the Bill would allow a wider range of healthcare professionals to certify that a person is terminally ill in order to fast track a claim for Scottish disability benefits.
Currently, under the 2018 Act,i whether or not someone is terminally ill is a matter for the clinical judgement of a registered medical practitioner (i.e doctor) based on guidance issued by the chief medical officer.
The Bill would extend this to other health professionals with particular training and experience. The skills and training required and the definition of ‘appropriate healthcare professional,’ will be set out in the regulations creating the disability benefits. These must include a registered nurse but could also include other health professionals.
The provisions currently in the 2018 Act referring to a ‘registered medical practitioner’ have not yet been used because Scottish disability benefits have not started yet. The first had been due to start this summer but this has now been delayed.
The terminal illness clinical guidance required under the 2018 Act has not yet been published. This guidance was subject to a closed consultation in 2019 and was provided to the Social Security Committee on 18 December 2019 on a confidential basis before an informal briefing from the chief medical officer on 19 December 2019.
The policy memorandum states that, for DWP benefits, it is generally nurses rather than doctors who complete the DS1500 form. This is the form used to confirm that someone is terminally ill in order to fast-track DWP benefits. The policy memorandum states that:
Feedback in the managed consultation from all medical professions demonstrated overwhelming support for extending responsibility to certify a person as terminally ill to registered nurses. The CMO and Chief Nursing Officer are supportive of such an extension
para 62 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
The definition of terminal illness was discussed at length during the consideration of the Social Security (Scotland) Bill in 2017. As a result provisions were added by amendment at stages 2 and 3. However, the discussion focused on whether the definition should refer to a specific time period rather than who would make the decision. At the time, the Minister consulted with the chief medical officer and others. Their views helped frame a government amendment at stage 3 which referred to the judgement of a ‘registered medical practitioner.’
At stage 3, the then Minister for Social Security, Jeane Freeman referred to the terminal illness provisions as: “the most challenging issue that I have faced in all the work on the Bill.” The proposal to rely on the clinical judgement of a medical practitioner had the support the medical profession. She said:
Amendment 148 sets no arbitrary timeframe to the definition of terminal illness but recognises that it is the skill and expertise of the registered medical practitioner that are needed to determine a terminal diagnosis. To support that critical decision making, the amendment allows the chief medical officer, in consultation with registered medical practitioners, to set a framework in guidance. It is that guidance that will decide when an individual has a progressive disease that can reasonably be expected to cause that individual’s death. Both the chief medical officer and the chief nursing officer, as our national experts have reviewed and fully support the amendment as the best way to achieve timely support for those with a terminal illness.
Scottish Parliament Social Security Committee. (2018, April 25). Official Report column 52. Retrieved from http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=11482&mode=pdf [accessed 29 April 2020]
The discussions with stakeholders that led to amendments were not public so it is unclear at what point the term ‘registered medical practitioner’ was chosen and whether it was deliberate or an oversight that professionals such as specialist nurses were excluded.
The Bill would bring the devolved position closer to the current reserved position where both doctors and specialist nurses can enable fast-tracking of a disability benefit claim.
For Scottish disability benefits the terminal illness rules would apply if it is the clinical judgement of a registered medical practitioneri that the individual has a progressive disease that can reasonably be expected to cause the individual's death.ii
For DWP benefits the terminal illness rules apply if a patient has a progressive disease and, as a consequence, that person’s death can be reasonably expected within six months.iii Guidance specifies that only a GP, hospital doctor or registered nurse can complete the required form. Not every nurse can do so:
The registered nurse needs to have acquired the expert knowledge and clinical competencies to undertake the assessment. They may be working in a role such as an advanced nurse practitioner, a Macmillan nurse, a clinical specialist nurse or a practice nurse with expertise in long term conditions management.
Department for Work and Pensions. (2019, August). DWP Medical (factual) reports: a guide to completion. Retrieved from https://www.gov.uk/government/publications/dwp-factual-medical-reports-guidance-for-healthcare-professionals/dwp-medical-factual-reports-a-guide-to-completion [accessed 29 April 2020]
Health professionals in Scotland will need to make judgements about terminal illness under both the reserved and devolved rules because the terminal illness rules can apply to the DWP administered benefits such as Employment Support Allowance and Universal Credit as well as to Scottish disability benefits.2 The fact that both DWP and Social Security Scotland ‘terminal illness’ rules will operate in parallel may be relevant when considering which professionals can make judgements under the rules.
Part 2 of the Bill would enable judges and former judges from other jurisdictions to sit on Scottish First-tier and Upper Tribunals. The purpose behind this is to create a greater pool of expertise for the social security chamber of the First-tier Tribunal, but the provisions are not restricted to social security. The other chambers of the First-tier Tribunal are:
General Regulatory Chamber (Charity appeals and Parking and bus lane appeals)
Health and Education Chamber (Additional Support Needs)
Housing and Property Chamber
Tax Chamber
The ability to make temporary appointments is intended as a short-term measure, pending further devolution of the tribunal service at which point:
the Scottish Government will invite the current cohort of salaried and fee paid members in the reserved tribunals system to transfer. It is anticipated that the Scottish Government will review the judicial structure, more widely, at the point of devolution.
para 80 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
Currently, a temporary authorisation to sit on the Upper Tribunal can be granted for: a judge of a court or tribunal in a country or territory outwith Scotland, a former judge of the Court of Session, the Chair of the Scottish Land Court or a sheriff. Current provisions do not allow temporary authorisations to the First-tier Tribunal.
The Bill would extend this so that former judges from other jurisdictions could also be authorised and extends the ability to make temporary authorisations to the First-tier Tribunal.
The social security chamber of the First-tier Tribunal was established1 in November 2018 to hear appeals on Scottish social security. At the moment, the only benefits that it can hear appeals on are:
By February 2020, around 60 to 65 appeals had been received, almost all of them on best start grant.i
The First-tier Tribunal does not publish its decisions but does summarise key issues in its ‘decision reports.’
Although the number of appeals so far is very low, it has always been clear that numbers will increase considerably once it takes responsibility for appeals on Scottish disability benefits.
In Great Britain as a whole, in 2018/19, there were over 100,000 applications for appeal for Personal Independence Payment and over 10,000 for Disability Living Allowance (DLA) 5 It may be that these very high volumes will reduce as the transition from DLA to PIP is completed.
When the Social Security (Scotland) Bill was introduced in 2017 and since, the Scottish Government has been of the view that there will be fewer appeals in the devolved system compared to DWP benefits.6 Even a substantial reduction in appeals compared to the reserved system could still represent a considerable volume of work.
The policy memorandum notes that:
Judicial resources will, accordingly, need to be significantly increased and the President of the Scottish Tribunals is of the view that the right place to look for that resource will be within the ranks of those members in the reserved system who currently handle these appeals, whose work load will start to diminish as more benefits are devolved.
para 74 Scottish Parliament. (2020, April 28). Policy memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/bills/social-security-administration-and-tribunal-membership-scotland-bill [accessed 28 April 2020]
At the time the regulations to establish the new chamber were considered by the Social Security Committee, the Cabinet Secretary assured the Committee that there was capacity to deal with the expected number of appeals:
Alison Johnstone: Having met the team yesterday, are you content that the capacity exists to deal timeously with appeals that are unavoidable?
Shirley-Anne Somerville: Very much so. That applies to the redetermination process in the agency and, if a decision requires to go to an appeal and to a tribunal, the capacity will be there for that, too.
Scottish Parliament Social Security Committee. (2018, October 4). Official Report column 23. Retrieved from http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=11719&mode=pdf [accessed 29 April 2020]
The Chamber is headed by the Chamber President, Mrs Anne Scott, who also chairs the tax tribunal.9 The rules prevent the same person chairing more than one chamber at a time. The rule was disapplied for the first wave of Scottish social security benefits as the number of appeals was expected to be low (as has proved to be the case – see above). The rule was due to be re-applied once child disability payment started10 but has been extended until April 2021.11 Given the delay to the social security programme announced on 1 April, it is not now clear when larger volumes of appeals might be expected.
Judges in devolved tribunals have different terms of appointment than those in the reserved system who have “higher daily fees and salaries, pensions for legal members and occupational holiday and sick pay.”1 The total annual salary cost of a First-tier tribunal judge in the reserved system is £187,907 compared to £94,160 in the devolved system.
The financial memorandum estimates that five salaried members may be required to be appointed temporarily to the devolved social security chamber. The total difference in cost between paying five judges according to the arrangements in the reserved rather than devolved system is around £455,000 per annum.
The financial memorandum acknowledges that there is a risk of legal challenge due to the different terms of appointment of reserved and devolved tribunal judges. It notes that, in the event of any successful legal challenge:
it may need to consider extending pensions to legal members of Scottish Tribunals, including current Chamber Presidents. If the Scottish Ministers opt to extend pension provisions to Chamber Presidents, it is likely to lead to a cost of approximately £500k per year.
para 35 Scottish Parliament. (2020, April 28). Financial memorandum: Social Security Administration and Tribunal Membership (Scotland) Bill. Retrieved from https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/social-security-administration-and-tribunal-membership-scotland-bill/introduced/financial-memorandum-social-security-administration-and-tribunal-membership-scotland-bill.pdf [accessed 29 April 2020]
This Bill forms part of the on-going programme of devolving certain aspects of social security, mainly disability and carer benefits, following the Smith Commission and Scotland Act 2016. Benefits available to datei are:
| Start date | Benefit |
|---|---|
| October 2017 | Universal credit Scottish choices |
| September 2018 | Carer's allowance administered by DWP on Scottish Government's behalf under agency agreement. |
| September 2018 | Carer's allowance supplement |
| December 2018 | Best start grant: pregnancy and baby payment |
| April 2019 | Best start grant: early years payment |
| June 2019 | Best start grant: school age payment |
| August 2019 | Best start foods |
| September 2019 | Funeral support payment |
| October 2019 | Young carer grant |
| April 2020 | Disability benefits, including PIP, DLA and attendance allowance being administered by DWP on Scottish Government's behalf under agency agreement. |
On April 1,1 the remainder of the programme was delayed and a revised timetable has yet to be established. However, the hope is that:
Scottish child payment, initially for children under 6, will be available from early 2021
Winter heating payment for families with a disabled child, will be available from winter 2020