The Bill would create the Scottish Employment Injuries Advisory Council (section 1) with three functions (section 2):

• scrutinise regulations on Employment Injury Assistance (EIA)

• report on “any matter relevant to Employment Injury Assistance”

• carry out, commission or support research into “any matter relevant to Employment Injury Assistance.”

Additional functions can be added by regulations.

As the law currently stands, the Scottish Commission on Social Security (SCoSS) will consider draft EIA regulations and report on them, as they would for other Scottish social security benefits. This Bill would prevent SCoSS from looking at EIA (Schedule 2). Instead, regulations on EIA would be scrutinised by SEIAC. Under this Bill:

• draft regulations for EIA would be sent to SEIAC and made publicly available

• SEIAC would be required to consult employees with experience of being exposed to the risk of employment-related injury or disease, and their representatives

• SEIAC's report would be sent to Ministers and laid in Parliament

• the Scottish Government would be required to publish its response when they lay the regulations in Parliament.

This is very similar to the procedure for regulations considered by SCoSS except that SCoSS can consult but is not required to do so, and SEIAC must be given at least three months to report on regulations except in cases of 'urgent necessity.'

This level of scrutiny would be required for all regulations creating or amending EIA. This would include the regulations creating the scheme but also relatively minor changes such as annual up-rating for inflation.

SEIAC would be independent of Government (Schedule 1) and have a right to access relevant information from a large range of public bodies including:

• Scottish Government, local authorities, health boards, fire service

• universities and colleges

• any public authority listed under section 3 of the Freedom of Information (Scotland) Act 2002. This currently includes over 100 bodies as diverse as Visit Scotland, Scottish Qualifications Authority, Scottish Law Commission and the Schools Closure Review Panels.

SEIAC would have a power to work jointly with the Parliament, Ministers, SCoSS, health boards and anyone else (section 5).

There would be between six and twelve members in addition to the Chair (Schedule 1, para 13).

Members would be appointed by Scottish Ministers (Schedule 1, para 14) who must “have regard to the desirability” of:

• experience and knowledge across the council as a whole of:

  • formulation, implementation and evaluation of EIA policies in Scotland and elsewhere in the UK

  • research on employment-related injury or disease

  • Scots law on employment and personal injury

  • relevant medical practice, including occupational medicine, epidemiology, and/or toxicology

  • effect of disability on daily life

  • disability resulting from employment

• including a member with lived experience

• including members representing employers and employed earners.

SEIAC would be subject to a range of legislation on public bodies including:

• Gender Representation on Public Boards (Scotland) Act 2018

• Freedom of Information (Scotland) Act 2002

• Public Appointments and Public Bodies etc. (Scotland) Act 2005

• Ethical Standards in Public Life etc. (Scotland) Act 2000

• Public Services Reform (Scotland) Act 2010– includes allowing Scottish Ministers to dissolve a listed public body if it “has or will have by virtue of the order, no exercisable public functions” (section 14, 2010 Act).

This section provides a brief overview of the current industrial injuries benefits scheme, the Scottish Government policy for its replacement and how that relates to the broader context of the devolution of aspects of social security since 2016.

Industrial Injuries benefits are paid by the Department of Work and Pensions (DWP) to people disabled as a result of accident at work or for certain diseases linked to particular occupations. The injury or disease must be work-related but the rules do not require the employer to be at fault. It is not available to self-employed people.

The main benefit is Industrial Injuries Disablement Benefit (IIDB).

The amount provided depends on assessing the ‘degree of disablement’. This is assessed at a medical examination. In 2023-24, the maximum award is £207.60 per week for 100% disablement and the minimum is £41.52 per week for 20% disablement.¹Department of Work and Pensions. (2023). Benefit rates 2023-24. Retrieved from <a href="https://www.gov.uk/government/publications/benefit-and-pension-rates-2023-to-2024/benefit-and-pension-rates-2023-to-2024" target="_blank">https://www.gov.uk/government/publications/benefit-and-pension-rates-2023-to-2024/benefit-and-pension-rates-2023-to-2024</a> [accessed 27 September 2023] Rates are increased by inflation each year.

Additional amounts can be paid alongside IIDB or as increases to it. These include:

• constant attendance allowance (between £41.55 and £166.20 per week)

• exceptionally severe disablement allowance (£83.10 per week)

In addition, reduced earnings allowance (REA) is a separate benefit to IIDB and can be paid on it's own or in addition to IIDB. The maximum is £83.04 per week and it is available for accidents or diseases starting before October 1990). A retirement allowance is a reduced rate of REA for people over pension age – maximum of £20.76 per week.

IIDB can be awarded on a provisional basis – with a review set to re-examine - or on a final basis. It can be awarded for a fixed period or for life.

The accident or disease must be work-related. A report commissioned for the Industrial Injuries Advisory Council (IIAC) described how:

This is achieved with a schedule of prescribed diseases for which work causation is assumed, provided pre-defined exposure criteria are met. Work relatedness can also be demonstrated by showing that a specific work related incident has resulted in the injury or the disease.

Stilz, R., & Baker, A. (2014). Assessing disablement under the IIDB scheme - a critical review and international comparison. Retrieved from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/387475/Assessing_Disablement_IIDB_Report-V2.1.pdf [accessed 27 September 2023]

The basic rules have not changed for many years. However, new diseases and new occupations are sometimes added as a result of scrutiny from IIAC.

Industrial injuries benefits can be paid in addition to the main disability benefits, such as Personal Independence Payment and Adult Disability Payment. IIDB is treated as income for means-tested benefits such as Universal Credit, but additions paid such as Constant Attendance Allowance are not.

DWP’s technical guidance on IIDB provides more detail.

The number of claimants is declining. In December 2022, there were around 24,000 people in Scotland in receipt of IIDB. The Scottish Fiscal Commission forecasts that caseload will continue to drop, reaching around 21,000 by 2028-29.¹Scottish Fiscal Commission. (2023). Scotland's Edonomic and Fiscal Forecasts - May 2023. Retrieved from <a href="https://www.fiscalcommission.scot/publications/scotlands-economic-and-fiscal-forecasts-may-2023/" target="_blank">https://www.fiscalcommission.scot/publications/scotlands-economic-and-fiscal-forecasts-may-2023/</a> [accessed 27 September 2023]

Three quarters of the current caseload are men (chart 1 below), reflecting the dominance of traditional heavy industry in the lists of diseases and occupations.

StatXplore. Includes, IIDB, REA and retirement allowance. Data is for number of individuals not number of claims.

Most people getting IIDBsin DEcember 2022 received between £20 and £40 per week, although a few people get much higher awards (chart 2 below). Current spending on IIDB is forecast at £84million, making up just 2% of total devolved social security spend.¹Scottish Fiscal Commission. (2023). Scotland's Edonomic and Fiscal Forecasts - May 2023. Retrieved from <a href="https://www.fiscalcommission.scot/publications/scotlands-economic-and-fiscal-forecasts-may-2023/" target="_blank">https://www.fiscalcommission.scot/publications/scotlands-economic-and-fiscal-forecasts-may-2023/</a> [accessed 27 September 2023]

StatXplore. Includes IIDB, REA and retirement allowance.

The IIAC is an independent scientific advisory body which advises UK ministers on industrial injuries benefits. It is a non-departmental public body sponsored by the DWP. It has 17 members, including:

• independent members with relevant specialist skills (including doctors, scientists and lawyers)

• representatives of employees

• representatives of employers.

Their work programme for 2024-25 includes considering:

• cancer in firefighters

• COVID-19 and its occupational impact

• neurodegenerative brain disease in ex-footballers

• silica and respiratory diseases.

IIAC does not have a budget to directly fund scientific studies but can commission reviews of existing research to assist its deliberations. Where there are gaps it can ask for additional research to be undertaken and put out calls for evidence on particular issues.

It does not have its own staff, but secretariat is provided by the DWP.

As the UK Government has not proposed any regulatory changes to industrial injuries benefits for many years, most of IIAC’s work consists of considering potential additions to the lists of prescribed diseases and occupations.

Under the Scotland Act 2016, section 33, the IIAC cannot advise Scottish Ministers.

The Scottish Government, Social Security Scotland and the DWP are in the process of establishing a Scottish social security system and transferring clients from DWP to Social Security Scotland.

The Scotland Act 2016 provided for the devolution of a number of benefits – mostly nonmeans- tested disability and carer benefits. The Scottish Government has also created several new benefits, not available elsewhere in the UK. It is a large-scale programme – representing around 15% of total social security spend in Scotland. The main benefits that remain reserved are Universal Credit (and the benefits it replaces), pension credit and the state pension. David Wallace, Chief Executive of Social Security Scotland has said:

social security is one of the largest delivery programmes and transfers of powers under devolution. By the end of 2024-25, we will deliver 16.5 million payments a year to people in Scotland, worth around £6 billion to an estimated 2 million people.

David Wallace, Chief Executive, Social Security Scotland.Scottish Parliament. (2023, June 29). Official Report. Retrieved from https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=15411 [accessed 27 September 2023]

Throughout, there have been two key principles:

• creating a system based on fairness, dignity and respect

• safe and secure transfer.

Safe and secure transfer has meant that the ‘Scottish versions’ of DWP benefits are created with much the same legal rules as their DWP equivalent.

The benefits yet to start²Scottish Parliament. (2023, February 7). Official Report. Retrieved from <a href="https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=14136" target="_blank">https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=14136</a> [accessed 27 September 2023] are:

• Carer Support Payment replacing Carer’s Allowance – phasing in from November 2023

• Pension Age Disability Payment – replacing Attendance Allowance – pilot starting in autumn 2024

• Pension Age Winter Heating Payment – replacing Winter Fuel Payment from winter 2024-25

• Employment Injuries Assistance – replacing Industrial Injuries benefits – date to be announced. This does not include devolution of those schemes providing 'lump sum' compensation for certain conditions such as pneumoconiosis. (See list of excluded benefits in section 22(4) of the Scotland Act 2016).

The final benefit, Severe Disablement Allowance is staying with DWP permanently under an agency agreement, largely because it has been closed to new claims for many years.

The Scottish Government plan to replace industrial injuries benefits with ‘Employment Injury Assistance’ although a definite start date and detailed policy have yet to be announced.

Under agency agreements, the DWP continues to deliver benefits on behalf of Scottish Ministers, on the understanding that Scottish Ministers will align with DWP policy.

Legislative competence for industrial injuries benefits was devolved in 2018 with executive competence (including financial responsibility) devolved two years later in April 2020. Since then, the Scottish Government has had agency agreements with the DWP for carer and disability benefits, including industrial injuries benefits.

These agreements give time for the Scottish Government to develop Scottish benefits, including Employment Injuries Assistance, which will be administered by Social Security Scotland.

An initial agency agreement for industrial injuries benefits ran from April 2020 to end March 2023. An updated Agreement is now in place, which runs until the end of March 2026. Any extension requires at least 12 months’ notice. In the January 2023 meeting of the Joint Ministerial Working Group on Welfare, the Minister for Disabled People, Health and Work, Tom Pursglove MP noted:

the importance of keeping on track with the agreed delivery timetable, due to the knock-on implications for other DWP project work. A formal request would be required if the agency agreement for IIDB were to be extended further.

Scottish Government. (2023, January). Minutes of the Joint Ministerial Working Group on Welfare. Retrieved from https://www.gov.scot/publications/joint-ministerial-working-group-on-welfare-january-2023/ [accessed 27 September 2023]

In a memorandum to the Social Justice and Social Security Committee in September 2023, the Scottish Government referred to being: "still some years away from delivering EIA."²Scottish Government. (2023). Memorandum, Scottish Employment Injuries Advisory Council. Retrieved from <a href="https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-social-justice-and-social-security-committee/correspondence/2023/scottish-government-memorandum-scottish-employment-injuries-advisory-council-bill" target="_blank">https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-social-justice-and-social-security-committee/correspondence/2023/scottish-government-memorandum-scottish-employment-injuries-advisory-council-bill</a> [accessed 6 October 2023]

The Scottish Government has emphasised the challenges involved in creating EIA. In a policy position paper in 2019¹Scottish Government. (2019). Industrial Injuries Disablement Benefit Policy Position Paper. Retrieved from <a href="https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/" target="_blank">https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/</a> [accessed 27 September 2023], they described how:

• significant reform is difficult as key policies remain reserved

• information is almost entirely in paper files in remote storage – making transition to Social Security Scotland complex.

That paper made a commitment to:

extensive consultation in advance of the new delivery date to ensure that we identify as many opportunities to improve this benefit as possible, within the limitations of Scotland’s devolution settlement.

Scottish Government. (2019, February). Industrial injuries disabled benefit: policy position paper. Retrieved from https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/ [accessed 16 April 2019]

More recently, in September 2023, the Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, re-emphasised the challenges involved. She told the Social Justice and Social Security Committee that:

The current system is literally based on paper sitting in a large warehouse—even if we wanted to lift and shift Scottish cases from that paper-based system, it is not set up to enable us to do that. The system is untouched and quite archaic in the way in which it is currently administered, which is a real challenge. […] Inevitably, there would be more cost involved in providing a benefit up here when we are not able in any way to lift and shift the information from a digital programme down south. Devolving the benefit presents us with great challenges, and we therefore need to be cognisant of the cost of that and what that would mean. That is why I am looking carefully at how it could be done. We need to look at the cost not just of the benefit but of the implementation. That can be approached in several ways, but, as I said, it would not be without cost. I am giving consideration to the matter, but, at this point, I am unable to provide the committee with a date when any consultation would go live.

Shirley-Anne Somerville MSP, Cabinet Secretary for Social JusticeScottish Parliament. (2023, September). Social Justice and Social Security Committee, Official Report . Retrieved from https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=15439 [accessed 27 September 2023]

The Disability and Carer Benefit Expert Advisory Groupran from 2017 to February 2023, advising the Scottish Government on a wide range of issues related to social security devolution.

In 2017, the group published advice on the independent scrutiny of social security. This included relying on IIAC reports at the start:

For scientific advice, in the first instance, the Scottish Government could rely on IIAC’s published reports. We recommend exploring with IIAC informal good working relationships to optimise information sharing, given there can be no formal advice-giving to Scottish Ministers. As policy in Scotland on Employment Injury Assistance diverges from that in the rest of the UK, there will be a need for independent medical and scientific advice beyond that available from IIAC. Options include commissioning adhoc reports or setting up a panel of experts. The resource committed should be proportionate.

Disability and Carer Benefits Expert Advisory Group. (2017). Independent scrutiny report: advice. Retrieved from https://www.gov.scot/publications/disability-and-carers-expert-advisory-group-independent-scrutiny-report/ [accessed 27 September 2023]

In 2021, the Scottish Government asked for further advice on EIA, including whether there shouldbe a Scottish equivalent to the Industrial Injuries Advisory Council (IIAC). In December 2022,DACBEAG reported. In the body of the report it stated that:

Our view is that there should be a Scottish equivalent of the IIAC established, with a short-term arrangement with IIAC agreed.

Disability Benefit and Carers Benefits Advisory Group. (2022, December). Employment Injury Assistance - advice. Retrieved from https://www.gov.scot/publications/disability-and-carers-benefits-expert-advisory-group-employment-injury-assistance-advice/ [accessed 27 September 2023]

It made two recommendations on this issue, which appear to envisage use of IIAC until and unless policy for EIA diverges from IIDB:

The Scottish Government should continue to explore short term arrangements that would enable Employment Injury Assistance to be updated in line with the advice of the IIAC, for as long as Industrial Injuries Disablement Benefit remains a comparable benefit. (Recommendation 15)

Longer term arrangements should be designed to reflect the longer-term direction of Employment Injury Assistance and the Scheme in Scotland. (Recommendation 16)

Disability Benefit and Carers Benefits Advisory Group. (2022, December). Employment Injury Assistance - advice. Retrieved from https://www.gov.scot/publications/disability-and-carers-benefits-expert-advisory-group-employment-injury-assistance-advice/ [accessed 27 September 2023]

The Scottish Government gave an initial response in February 2023. The then Minister for Social Security and Local Government, Ben Macpherson MSP, said that the forthcoming consultation on EIA, at that point due “in the next few months” would serve as the Scottish Government’s response to their advice.⁴Scottish Government. (2023, March). Disability and Carers Benefits Expert Advisoty Group - Employment Injury Assistance: response from ministers. Retrieved from <a href="https://www.gov.scot/publications/disability-and-carers-benefits-expert-advisory-group-employment-injury-assistance-response-from-ministers/" target="_blank">https://www.gov.scot/publications/disability-and-carers-benefits-expert-advisory-group-employment-injury-assistance-response-from-ministers/</a> [accessed 27 September 2023]

The consultation responses were overwhelmingly in favour of the Bill.

Mark Griffin MSP held a consultation on his Bill, attracting 42 responses¹Griffin, M. (2022). Consultation responses: Scottish Employment Injuries Advisory Council Bill. Retrieved from <a href="http://www.markgriffinmsp.org.uk/content/seiac/" target="_blank">http://www.markgriffinmsp.org.uk/content/seiac/</a> [accessed 27 September 2023] (of which 18 were organisations). The Social Justice and Social Security Committee received 34 responses²Social Justice and Social Security Comitttee . (2023). Call for Views. Scottish Employment Injury Advisory Council Bill. Retrieved from <a href="https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/" target="_blank">https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/</a> [accessed 27 September 2023] (of which 25 were organisations). Across the two consultations, responses were received from 30 different organisations.

There was a great deal of consistency in the responses, making three main arguments:

• This was an opportunity to reform and modernise the benefit.

• IIAC cannot advise the Scottish Government, so without SEIAC they would not have access to technical advice on this issue.

• SCoSS has a different role and does not have the required expertise.

The majority of consultation responses to Mark Griffin and to the Social Justice and Social Security Committee focused on the opportunity for reform.

In general, these echo very long-standing concerns. Suggestions for reform made in the 2016 consultation on Social Security in Scotland included:

• changes to the list of diseases

• better recognition of gender

• extension to self-employed people.

Eight years later, the views in response to the Bill were similar. Most referred to the need to reform IIDB. For example, NAS/UWTstated that“IIDB was designed for a different era”. Scottish Hazards consider IIDB “is no longer fit for purpose” and that “transferring a broken and outdated benefit serves no useful purpose.”

A focus on traditionally ‘male’ occupations and the failure to list long Covid were mentioned in many submissions. Several said that investigation of long Covid should be a priority within the first year of the Council (eg NASUWT, SHWC, Unite, FBU.)¹Social Justice and Social Security Comitttee . (2023). Call for Views. Scottish Employment Injury Advisory Council Bill. Retrieved from <a href="https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/" target="_blank">https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/</a> [accessed 27 September 2023] This was often discussed in conjunction with the need to modernise IIDB generally and the gender and ethnicity bias in the current lists of prescribed diseases and occupations.

Almost all respondents agreed that the SEIAC should be established in advance of EIA starting, so that it could influence the design of EIA from the start. For example, the 'Injury Time Campaign' said:

It is vital that the Advisory Council is established in advance of the Scottish Government legislating for Employment Injury Assistance. Failure to do so will see the benefit launch already hamstrung, unable to respond to new and developing claims of industrial injury.

Social Justice and Social Security Comitttee . (2023). Call for Views. Scottish Employment Injury Advisory Council Bill. Retrieved from https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/ [accessed 27 September 2023]

Given the Scottish Government’s prioritisation of safe and secure transfer, it is not at all clear whether significant reform would be attempted ahead of launching EIA.

A key argument in favour of a separate body is that IIAC cannot advise Scottish Ministers (examples of those who made this argument are Clydebank Asbestos Group, Close the Gap, Fair Work Convention, USDAW¹Social Justice and Social Security Comitttee . (2023). Call for Views. Scottish Employment Injury Advisory Council Bill. Retrieved from <a href="https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/" target="_blank">https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/</a> [accessed 27 September 2023]).

The remit of the IIAC is set out in section 170 of the Social Security Administration Act 1992. It is:

(a)to give advice and assistance to the Secretary of State

(b)to give advice and assistance to the Northern Ireland Department; and

(c)to perform such other duties as may be assigned to the Committee under any enactment.

Often, when a function is devolved, relevant legislation referring to the Secretary of State can be taken to be read as referring to Scottish Ministers (section 53 of the Scotland Act 1998). However, section 33 of the Scotland Act 2016 specifically prevents this in the case of IIAC.

Giving the IIAC a formal role to advise Scottish Ministers would therefore require legislation at Westminster to amend the Scotland Act 2016.

An alternative, discussed by DACBEAG, is an informal role whereby Scottish Ministers make use of IIAC reports and recommendations. They gave the example of the Joint Committee of Vaccination and Immunisation, saying;

Our understanding is that the [JCVI] has no statutory basis for providing advice to Ministers in Scotland or Northern Ireland and that there is no specific Scottish equivalent. However, it is clearly agreed between the UK administrations that health departments from Scotland and Northern Ireland are provided with and may choose to accept the Committee’s advice or recommendations.

Disability Benefit and Carers Benefits Advisory Group. (2022, December). Employment Injury Assistance - advice. Retrieved from https://www.gov.scot/publications/disability-and-carers-benefits-expert-advisory-group-employment-injury-assistance-advice/ [accessed 27 September 2023]

In the Policy Memorandum, the Member rejects this informal option referring to the advice from DACBEAG that using IIAC recommendations without a statutory advisory role would mean the Scottish Government would be unable:

• to refer regulations directly to the IIAC for scrutiny.

• to proactively drive forward policy development.

The role of SCoSS is to:

• provide detailed analysis of draft regulations on Scottish social security benefits

• report on the Scottish Government’s delivery of the Social Security Charter

• report on any matter related to social security as requested by Scottish Ministers or Scottish Parliament.

It does not have an explicit role to develop or advise on policy before regulations are drafted or to conduct research. To date, SCoSS has focused almost entirely on scrutinising regulations.

Most respondents to the Social Justice and Social Security Committee’s Call for Views considered that SCoSS does not have particular expertise in industrial disease or occupation (examples of such respondents are Action on Asbestos, APIL, Fair Work Convention and others¹Social Justice and Social Security Comitttee . (2023). Call for Views. Scottish Employment Injury Advisory Council Bill. Retrieved from <a href="https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/" target="_blank">https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/</a> [accessed 27 September 2023]).

The 2022 independent review of SCoSS was clear that it should not take on this wider policy advice role:

Interviewees were very keen to explain that the skills and expertise of members of the IIAC were very different to those of SSAC [Social Security Advisory Committee] or SCoSS, and that although SCoSS does scrutinise regulations relating to benefits for those with industrial injuries, it could not take on a wider role in relation to advice on the industrial injuries scheme, such as whether prescribed diseases for which benefit can be paid should be added to or amended. As far as we are aware no such role is envisaged for SCoSS, and it appears very clear that it would not be appropriate.

Scottish Government. (2023, August 18). Letter from Cabinet Secretary Social Justice to Social Justice and Social Security Committee. Retrieved from https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf [accessed 27 September 2023]

Several respondents (CPAG, Scottish Hazards, Thompsons Solicitors, FBU¹Social Justice and Social Security Comitttee . (2023). Call for Views. Scottish Employment Injury Advisory Council Bill. Retrieved from <a href="https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/" target="_blank">https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/</a> [accessed 27 September 2023]) distinguished between the role of advising on policy formation and scrutinising the draft regulations once policy has been decided.

The Bill prevents SCoSS from scrutinising any regulations on EIA (Schedule 2). Although SCoSS does not have expertise in prescribed diseases, there are other aspects of EIA where SCoSS does have expertise – such as provisions around applications, decision-making, redeterminations, appeals and how it fits in with other social security. In the Call for Views, CPAG said:

Separating the function of independent advice on policy options before the law is drafted (from the Advisory Council) from scrutiny of draft regulations (by SCoSS) would be an option which would utilise expertise appropriately and avoid any conflict that might arise from the same body scrutinising policy choices that have already been informed by its advice.

Child Poverty Action Group. (2023). Response to Call for Views on Scottish Employment Injury Advisory Council Bill. Retrieved from https://yourviews.parliament.scot/sjssc/scottish-employment-injuries-advisory-council-bill/consultation/view_respondent?show_all_questions=0&sort=submitted&order=ascending&_q__text=child+poverty&uuId=383307929 [accessed 27 September 2023]

The Scottish Government does not support the Bill. In 2021, they explained that, as there will be public consultation ahead of introduction of EIA, the Bill:

is unnecessary when its basic principles will be part of the overall work this government carries out as part of the delivery of EIA.¹Scottish Government. (2021, October 15). Letter from Ben Macpherson, MSP, Minister for Social Security and Local Government to Neil Gray, MSP, Convener, Social Justice and Social Security Committee. Retrieved from <a href="https://www.parliament.scot/~/media/committ/1361" target="_blank">https://www.parliament.scot/~/media/committ/1361</a> [accessed 27 September 2023]

They have not given a view on whether or not an advisory council should be created at some point. Rather the objection appears to be that creating it now, through this Bill, would pre-judge planned consultation. In a memorandum issued to the Social Justice and Social Security Committee in September 2023, the Scottish Government said:

Devoting financial resource to legislate for a statutory advisory body would not be an appropriate use of the resources available to us when we are still some years from delivering EIA.

Scottish Government. (2023). Memorandum, Scottish Employment Injuries Advisory Council. Retrieved from https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-social-justice-and-social-security-committee/correspondence/2023/scottish-government-memorandum-scottish-employment-injuries-advisory-council-bill [accessed 6 October 2023]

If the Bill passed, the Member in Charge assumes it would be established during 2025-26.³Griffin, M. (2023, October 11). Letter from Mark Griffin, MSP to Finance and Public Administration Committee, dated 20 September 2023. Retrieved from <a href="https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-finance-and-public-administration-committee/correspondence/2023/scottish-employment-injury-advisory-council-bill-financial-memorandum" target="_blank">https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-finance-and-public-administration-committee/correspondence/2023/scottish-employment-injury-advisory-council-bill-financial-memorandum</a> [accessed 23 October 2023] That is shortly before the current agency agreement ends in March 2026. Agency agreements have been extended before and the Scottish Government has yet to confirm a start date for EIA.

The Scottish Government position hinges on their plans to consult on proposals for EIA. A consultation is expected "this year".¹Scottish Parliament. (2023, September). Social Justice and Social Security Committee, Official Report . Retrieved from <a href="https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=15439" target="_blank">https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=15439</a> [accessed 27 September 2023]

A commitment to consult on EIA was made in 2019.²Scottish Government. (2019, February). Industrial injuries disabled benefit: policy position paper. Retrieved from <a href="https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/" target="_blank">https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/</a> [accessed 16 April 2019]In their letter to the Social Justice and Social Security Committee in 2021 the Scottish Government said:

The public consultation will consider a range of issues relating to the delivery and administration of EIA including what role a Scottish Advisory Council should play and how this would interact with EIA.

Scottish Government. (2021, October 15). Letter from Ben Macpherson, MSP, Minister for Social Security and Local Government to Neil Gray, MSP, Convener, Social Justice and Social Security Committee. Retrieved from https://www.parliament.scot/~/media/committ/1361 [accessed 27 September 2023]

The Scottish Government will also consider how such a body would function in the current landscape in which there is an existing statutory advisory body in the Scottish Commission on Social Security (SCoSS) and many relevant policy areas are reserved:

Further, key related policy areas such as employment, insurance, and occupational health and safety which are currently reserved, also need to be carefully considered. We firmly believe that the connection between an advisory body and the benefit itself is fundamental to their interaction and how the body would be established and its remit.

Scottish Government. (2021, October 15). Letter from Ben Macpherson, MSP, Minister for Social Security and Local Government to Neil Gray, MSP, Convener, Social Justice and Social Security Committee. Retrieved from https://www.parliament.scot/~/media/committ/1361 [accessed 27 September 2023]

The letter also said they would re-establish a stakeholder advisory group on industrial injuries.

In January 2023, the then Minister for Social Security and Local Government, Ben MacPherson MSP, referred to a: “a public consultation to launch in spring 2023.”⁵Scottish Government. (2023, January). Minutes of the Joint Ministerial Working Group on Welfare. Retrieved from <a href="https://www.gov.scot/publications/joint-ministerial-working-group-on-welfare-january-2023/" target="_blank">https://www.gov.scot/publications/joint-ministerial-working-group-on-welfare-january-2023/</a> [accessed 27 September 2023] The memorandum, dated 11 September 2023, stated that the consultation would take place "this year."

The Scottish Government has committed to undertake a public consultation on its approach to replacing IIS in Scotland, to take place this year, in which the issue of a statutory advisory body would be considered alongside other fundamental questions related to the scheme. Due to complexity and range of views on the scheme, it would be more appropriate to consider these issues in the round, rather than in isolation.

Scottish Government. (2023). Memorandum, Scottish Employment Injuries Advisory Council. Retrieved from https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-social-justice-and-social-security-committee/correspondence/2023/scottish-government-memorandum-scottish-employment-injuries-advisory-council-bill [accessed 6 October 2023]

On 14 September, the Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, told the Social Justice and Social Security Committee that: “I am unable to provide the committee with a date when any consultation would go live.”¹Scottish Parliament. (2023, September). Social Justice and Social Security Committee, Official Report . Retrieved from <a href="https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=15439" target="_blank">https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=15439</a> [accessed 27 September 2023]

In 2019, the Scottish Government had explained that one of the challenges in establishing a separate advisory body would be finding the required expertise:

In advance of transferring the scheme the Scottish Government will have to decide whether, and how, to provide a Scottish equivalent of IIAC. Securing the necessary expertise could be challenging. In the UK as a whole there are relatively few research active scientists, professors and academic departments in occupational health, and numbers have trended downwards over time. There are similar recruitment shortages in occupational hygiene, occupational toxicology and ergonomics.

Scottish Government. (2019). Industrial Injuries Disablement Benefit Policy Position Paper. Retrieved from https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/ [accessed 27 September 2023]

Arguments in favour of SEIAC focus on the need to create reformed industrial injuries benefits from the start of EIA. This would be a departure from the approach to the other benefits being devolved.

For example, although there have been calls for many years to change certain rules in the main working age disability benefit (Personal Independence Payment), Adult Disability Payment was introduced in 2022 without making many of these changes. Instead, anindependent review is due to start later this year to consider further changes once everyone has been transferred from DWP. A consultation in January 2023 emphasised the tight financial context in which changes must be considered.

The status and structure of SEIAC appears, in large part, to be based on SCoSS (Schedule 1, Social Security (Scotland) Act 2018). The findings of the recent review of SCoSS¹Scottish Government. (2023, August 18). Letter from Cabinet Secretary Social Justice to Social Justice and Social Security Committee. Retrieved from <a href="https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf" target="_blank">https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf</a> [accessed 27 September 2023] may therefore provide useful background for consideration of SEIAC.

Like SCoSS, the SEIAC would be established as a body corporate with a requirement to prepare its own accounts. The SCoSS review noted that this is normally associated with an executive NDPB rather than an advisory NDPB, saying:

The accounting and audit requirements place a heavy burden on a very small body with expenditure in 2020-21 of only £172.4k. We believe that SCoSS is the only advisory NDPB in Scotland which is currently required to produce its own accounts. There was a clear consensus from interviews that the effort involved in the production of SCoSS accounts is disproportionate and does not contribute to meaningful scrutiny.

Scottish Government. (2023, August 18). Letter from Cabinet Secretary Social Justice to Social Justice and Social Security Committee. Retrieved from https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf [accessed 27 September 2023]

The review recommended that primary legislation should be changed at the first opportunity to remove the requirement on SCoSS to prepare accounts and to submit these for external audit (currently paragraph 12 of Schedule 1 of the 2018 Act).¹Scottish Government. (2023, August 18). Letter from Cabinet Secretary Social Justice to Social Justice and Social Security Committee. Retrieved from <a href="https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf" target="_blank">https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf</a> [accessed 27 September 2023]

Staff capacity has been the single biggest challenge for SCoSS. The initial allocation of three full-time posts is being increased to six. Attempts to recruit additional people to increase the board to five have proved difficult. The review noted that: “the pool of people with a deep understanding of the social security system is very small.”¹Scottish Government. (2023, August 18). Letter from Cabinet Secretary Social Justice to Social Justice and Social Security Committee. Retrieved from <a href="https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf" target="_blank">https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf</a> [accessed 27 September 2023]

As noted, the availability of expertise on industrial diseases has also been raised as an issue for SEIAC.⁵Scottish Government. (2019, February). Industrial injuries disabled benefit: policy position paper. Retrieved from <a href="https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/" target="_blank">https://www.gov.scot/publications/industrial-injuries-disabled-benefit-policy-position-paper/</a> [accessed 16 April 2019]

The Financial Memorandum estimates:

• set up costs of £149,000

• annual running costs of £372,500, which includes a research budget of £30,000 and remuneration to members of £40,000.

This assumes a Chair and 12 members together with four staff.

This is substantially more expensive than the UK equivalent body, IIAC, although the Disability and Carer Expert Advisory Group has observed that IIAC is under-resourced:

we note here our view that the IIAC is under-resourced for the evidence it has to sift before recommending prescription. There is also a long-term under-resourcing of investment in occupational epidemiology research in the UK in general as well as in Scotland.

Disability Benefit and Carers Benefits Advisory Group. (2022, December). Employment Injury Assistance - advice. Retrieved from https://www.gov.scot/publications/disability-and-carers-benefits-expert-advisory-group-employment-injury-assistance-advice/ [accessed 27 September 2023]

IIAC has up to 17 members and access to £50,000 budget from DWP. Secretariat costs are funded from DWP central budgets. The estimates for the SEIAC include secretariat costs. In 2022-23,IIAC published three command papers and an information note. No regulations were submitted for scrutiny. The majority of time was taken up with evaluation of the occupational impact of COVID-19.²Industrial Injuries Advisory Council. (2023). Annual Report 2021-22. Retrieved from <a href="https://www.gov.uk/government/publications/iiac-annual-report-2021-to-2022" target="_blank">https://www.gov.uk/government/publications/iiac-annual-report-2021-to-2022</a> [accessed 27 September 2023]

SCoSS has a much smaller board,with 2 to 4 members in addition to the Chair and, in 2022,employed four staff (FTE). It spent £255,000 in 2021-22³Scottish Commission for Social Security. (2022). Annual Report 2021-22. Retrieved from <a href="https://socialsecuritycommission.scot/wp-content/uploads/2022/12/SCoSS_2021-22_Annual_Report_and_Accounts.pdf" target="_blank">https://socialsecuritycommission.scot/wp-content/uploads/2022/12/SCoSS_2021-22_Annual_Report_and_Accounts.pdf</a> [accessed 27 September 2023], of which:

• £73,000 was staff costs for four FTE staff (since increased to six)

• £60,000 was board member fees, for 11 meetings.

As noted, the review of SCoSS, which reported to Ministers in January 2023, found that it was too small for its remit, commenting that:

Getting the right people in place to help replace the expertise on the Board and to increase the overall capacity is the single most important issue now for SCoSS’s future.

Scottish Government. (2023, August 18). Letter from Cabinet Secretary Social Justice to Social Justice and Social Security Committee. Retrieved from https://www.parliament.scot/-/media/files/committees/social-justice-and-social-security-committee/correspondence/2023/letter-from-cab-sec-sj-to-sjss-committee-regarding-independent-review-into-scoss.pdf [accessed 27 September 2023]

The Social Security Advisory Council (SSAC) is the UK equivalent of SCoSS and had a budget in 2020-21 of £350,000. It employs four full-time staff and has a committee of between 10 and 13 members.⁵Social Security Advisory Committee. (2021). Annual Report 2020-21. Retrieved from <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1023107/ssac-annual-report-2020-2021.pdf" target="_blank">https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1023107/ssac-annual-report-2020-2021.pdf</a> [accessed 27 September 2023]

All these bodies have different functions and remits so none of them would provide an exact model for SEIAC. However they do provide some context for different arrangements for providing technical advice to government on social security.