Social Security Administration and Tribunal Membership (Scotland) Bill: Stage 1

– in the Scottish Parliament on 24th June 2020.

Alert me about debates like this

Photo of Christine Grahame Christine Grahame Scottish National Party

As no members appear to want to sit on the front benches, apart from the Government front benches, I will proceed.

The next item of business is a stage 1 debate on motion S5M-22121, in the name of Shirley-Anne Somerville, on the Social Security Administration and Tribunal Membership (Scotland) Bill. I ask members who wish to take part in the debate to press their request-to-speak buttons now. I call the cabinet secretary to speak to and move the motion.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I will begin by thanking the stakeholders who have engaged constructively with both the Government and the Social Security Committee to inform and scrutinise the provisions in the bill. I know that times are challenging, so their time is appreciated now more than ever. I also thank members and clerks of the Social Security Committee for their continued scrutiny of the bill and their forbearance with the virtual sessions. I am, of course, delighted that the committee has confirmed its support for the bill’s general principles in its stage 1 report

The bill started before we knew what 2020 was going to bring us. We knew that the bill was needed to make statutory offences in primary legislation for the Scottish child payment and we took the opportunity to address other areas where we needed primary legislation. That is now even more important, as we know that families are under pressure and that Scotland will feel the economic impacts of Covid-19. The Scottish child payment will therefore be a lifeline for many and have a significant positive impact on our efforts to tackle child poverty.

That is why, when we knew that we had to make changes to the social security delivery programme because we were focusing on our response to the pandemic, it was clear that the Scottish child payment would remain a priority area, and we are working hard to introduce it as soon as possible. To do that, we need to have the statutory offences in place. Although we start from the premise that everyone may be entitled to support, we know that there may be attempts to defraud the Scottish social security system. That is the case for the Scottish child payment as it is for other benefits and, although the overall sum that is lost to benefit fraud is not as large as some would have us believe, we must take action to protect the public purse and benefits, where appropriate.

I will now turn to the provisions of the bill. I will start with one of the committee’s recommendations. Section 53 of the Social Security (Scotland) Act 2018 places a duty on the Scottish ministers to notify individuals of their possible eligibility for other benefits payable by Social Security Scotland under part 2 of the 2018 act if, in the course of making a determination, it appears that the individual may be eligible for other assistance.

The Social Security Committee’s stage 1 report notes that the duty should extend to forms of devolved top-up assistance. I welcome the committee’s recommendation, and I confirm that I will lodge an amendment on that at stage 2.

The bill also includes provisions on appointees to ensure that a suitable mechanism for support is in place for some of our most vulnerable clients. The provisions set out a statutory framework for appointees, supported by guidance for Social Security Scotland staff.

We have sought to strike a balance between prescriptive statutory safeguards and safeguards set out in decision-making processes and guidance. For example, the statutory safeguards for adults with capacity include the requirement for the client to consent to an appointment and the ability to withdraw consent. For children, we will take into account, so far as is practical, the views of the child and the views of others in the child’s life, including their parents, and the duty to review an appointment on request by a person of legal authority to act on behalf of the child.

I have listened to stakeholders on the issue of the guidance in that area, and I have asked the disability and carers benefits expert advisory group and the ill-health and disability benefits stakeholder reference group to provide advice on our proposals. We will also engage with our experience panels during the summer.

The Social Security Committee has asked me to make the guidance statutory, and I will consider that ahead of stage 2. Of course, our guidance will be published and accessible to clients, appointees, prospective appointees and professional advisers. That will ensure transparency and offer confidence that we have an appropriate, rights-based system for dealing with difficult situations.

The bill provides powers to withhold information about an individual’s health, where that would be likely to cause serious harm to the recipient’s physical or mental health, and it is important that Social Security Scotland can do so. I stress that we expect that power to be used rarely, and it will happen only when a medical professional has determined that the information should be withheld.

In cases where information is withheld from a client, we will offer them the opportunity to have an appointee. Offering clients an appointee simply provides another opportunity to safeguard their rights.

The ability to withhold information where that information would be likely to cause serious harm to the recipient demonstrates our commitment to delivering a service with a person-centred approach at its core and in which our overriding aim is to work in the best interests of the client.

The Social Security (Scotland) Act 2018 allows a “registered medical practitioner” to clinically determine whether an individual is terminally ill for the purposes of disability assistance. Since then, the chief medical officer’s guidance has been developed and it has undergone consultation with healthcare professionals and stakeholders. During the consultation, it became clear that people want registered nurses with the appropriate skills and interactions with a patient to provide that clinical judgment, too. I have listened, and the bill extends the responsibility to certify a person is terminally ill to registered nurses. We will establish clear criteria that a registered medical practitioner, or a registered nurse, must meet in order to make the judgment. Those will be provided for in a combination of regulations and guidance.

The bill changes the Tribunals (Scotland) Act 2014 to allow for other types of judges to be temporarily authorised to sit on the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. That is needed because, as we continue to introduce new social security benefits, the business of the social security chamber of the Scottish tribunals will also increase.

Currently, the judicial capacity of the Scottish tribunals is insufficient to deal with the projected increase in business arising from devolved social security, so the bill widens the list to allow more types of judges to be temporarily authorised to sit in both the tribunals. The president of the Scottish tribunals and the senior president of tribunals of the reserved tribunal system are fully supportive of the provisions in the bill, and I anticipate that they will seek authorisation of reserve tribunal members who have experience of dealing with social security appeals.

We have always viewed Scotland’s social security system as an investment in people. It has been designed to meet the needs of people, and we want to ensure that it works for them. Therefore, I have also listened closely to the views of the Scottish Commission on Social Security, and others, which have recommended that the bill should include the power to suspend payments of assistance. As the Social Security Committee knows, I have agreed to lodge amendments to include such a power in the amended 2018 act, subject to there being broad stakeholder support for the action. That would help to ensure that clients are protected from overpayments and resultant overpayment deductions from their assistance. It will also simplify stopping and restarting the payment of assistance where clients enter certain accommodation, such as residential care.

In conclusion, I would like to reiterate a few key points. The bill is necessary to continue the successful implementation of the 2018 act and, importantly, to ensure that we have in legislation the statutory offences for the Scottish child payment. I intend to lodge stage 2 amendments on the suspension of payments and the duty to inform individuals about possible eligibility for other forms of devolved assistance, as long as broader stakeholder support is in place.

I thank the Social Security Committee again for supporting the general principles of the bill, and I look forward to its continued scrutiny. I commend the general principles of the bill to Parliament.

I move,

That the Parliament agrees to the general principles of the Social Security Administration and Tribunal Membership (Scotland) Bill.

The Deputy Presiding Officer:

Before I call Bob Doris, I apologise to members. I clean forgot that members have to stay in the seats to which they are allocated so that they do not spread infection—silly me!

I call Bob Doris to speak on behalf of the Social Security Committee.

Photo of Bob Doris Bob Doris Scottish National Party

As convener of the Social Security Committee, I am pleased to speak in this afternoon’s debate on the Social Security Administration and Tribunal Membership (Scotland) Bill. I thank the cabinet secretary for her written response to the committee’s stage 1 report, and I am grateful to my fellow committee members for their constructive approach during the shortened scrutiny process, particularly given that the bill was introduced at the end of March as the nation was entering lockdown during the early days of Covid-19.

Likewise, I send my gratitude to our key stakeholders who were still able to respond to the committee’s call for views during such difficult times.

As we have heard, the bill will extend the fraud provisions in the Social Security (Scotland) Act 2018 to top-up benefits. The Scottish child payment will be a new top-up benefit given to those who are in receipt of universal credit. It will be paid for by the Scottish Government and delivered by Social Security Scotland. It will mean that eligible households receive £10 per week per child, and it is estimated that it will deliver £180 million to the families of 410,000 children each year once fully rolled out. I note that that estimate was made before the significant increase in the number of universal credit claims, which is something that the committee will, no doubt, monitor when it is conducting future budget scrutiny.

For the sums of public money that are involved, I am confident that the Parliament will agree that it is important that the bill ensures that appropriate forward protections are in place before the Scottish child payment commences. The committee is content with that, and none of our respondents raised any objections.

I note that the first payments are now anticipated for early 2021, as opposed to Christmas 2020, because of the impact of Covid-19. If there is any prospect of delivering payments sooner than early 2021, the committee would very much welcome that.

In line with all other benefits, a claimant must report any change of circumstances that could affect their claim. A claimant might be confused about whether to notify the Department for Work and Pensions or Social Security Scotland about their changing circumstances. The committee would therefore be grateful for clarification that it is sufficient to notify Social Security Scotland.

The bill contains changes to the system of appointees to collect social security benefits on behalf of a child or any adult who consents to that. Most children will already have someone with the right to collect any benefits on their behalf and that is usually, but not always, a parent. However, some children have no one with formal parental rights. The bill puts in place foundations for the system of appointees.

For adults, there are already provisions in the 2018 act for appointees where an adult lacks capacity. The bill, however, introduces the ability for an adult with capacity to consent to having an appointee for whatever reason. That is a fundamentally new provision, which has been described as “novel” by the Child Poverty Action Group.

CPAG and the Law Society of Scotland told the committee that the provisions lacked clarity, and pointed to an absence of any provision for challenging decisions on appointees or for resolving disputes. There is nothing in the bill about how appointments will be made or about how to ensure that consent obtained from an adult is explicit, informed and freely given. The Law Society of Scotland and the Equality and Human Rights Commission are concerned that the provisions, as they stand, do not comply with human rights requirements. That is something to reflect on.

The bill’s policy memorandum explains that being able to have someone else make a claim and receive benefits could be useful for claimants who have a diagnosis of terminal illness. However, some stakeholders were concerned that putting an appointee in place could lead to delays in receiving benefits or force a discussion about a claimant’s situation and risk abuse without a process to establish free consent from an individual. In her evidence to the committee, the cabinet secretary acknowledged some of those concerns and sought to reassure and confirm that the operational detail of the appointee system would be brought forward in guidance after consultation with stakeholders.

The committee agrees that operational detail sits best in guidance. However, we want the bill to set out the general safeguarding principles that will underpin that guidance, perhaps providing for mechanisms to challenge appointee decisions, to ensure that periodic reviews are undertaken and to resolve disputes. As the cabinet secretary said, we also recommend that that guidance should be statutory. We welcome the fact that the Scottish Government is open to those suggestions and will give them consideration.

Linked to the provision of appointees is the proposal to allow information about a person’s health to be withheld where disclosure

“would be likely to cause serious harm to the physical or mental health of the recipient.”

The policy memorandum discusses that provision in the context of providing appointees for people who are terminally ill, and Macmillan Cancer Support’s submission refers to

“some cases early on in Universal Credit rollout of people finding out they may have had less than 6 months to live through their UC journal”.

It is clear that we would not want that to happen with Social Security Scotland. However, the bill’s provisions are not limited to cases of terminal illness. Health information should be withheld in any circumstance where disclosing it would cause serious harm to a person’s physical or mental health. The Scottish Association for Mental Health would like to see a definition in the bill of

“serious harm to physical or mental health.”

The committee understands the rationale for withholding information from a claimant in some cases where there has been a diagnosis of terminal illness. However, we will be interested to hear about the different circumstances in which information might be withheld, what the definition of serious harm to physical or mental health would be and how it will be applied consistently across the country.

I will briefly note some other provisions in the bill that the committee broadly welcomes. It will allow health professionals other than doctors to verify that a person is terminally ill for the purpose of fast-tracking their claim for disability payments. The professionals to be included will be set out in regulations and must include registered nurses. That was strongly supported. Some organisations, including Parkinson’s UK, Marie Curie and MND Scotland, supported extending that further, potentially to some allied health professionals.

The committee agrees with the cabinet secretary that the terminology that we commit to in primary legislation must retain sufficient flexibility to respond to any future changes in the health professions. However, there are still discussions to be had on the detail that will be brought forward in draft regulations, and the committee looks forward to being involved in those discussions in due course.

Finally, the bill will allow the temporary appointment of judges and former judges from other jurisdictions to the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. The committee was content with those provisions, but we asked the cabinet secretary whether bringing judicial office-holders over from the reserved system would be a temporary measure. We have received those assurances today. After all, the Scottish social security system is being built on very different principles, underpinned by the charter. The creation of a devolved social security system presents an opportunity to do things differently.

Notwithstanding the committee’s strong views on appointees and safeguarding measures, I conclude by saying on behalf of the committee that we are content to support the general principles of the bill and look forward to engaging positively with the Scottish Government at stage 2.

Photo of Graham Simpson Graham Simpson Conservative

This is a largely technical bill, and I imagine that what we will hear today is a series of similar speeches. I expect that Parliament will support the general principles of the bill and that there will be not a single line in the press about it tomorrow. We could, in fact, just jump to the vote and be done with it, but that would be far too simple.

What is the bill for, exactly? It has four main themes: appointees, top-up benefits, terminal illness and tribunals.

On appointees, the bill will allow ministers to appoint a person to receive benefit payments on someone else’s behalf, if the claimant is a child, or if they are an adult and agree to the appointment.

The bill will allow regulations that create top-up benefits to include provisions on offences and investigations. Such provisions will apply to the Scottish child payment, which is due to start early next year.

On terminal illness, the bill will 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 that will apply will be the child disability payment. We will want to look again at that area at stage 2.

On tribunals, the bill will allow the temporary appointment of judges from other jurisdictions to sit on Scottish tribunals, including those dealing with Social Security Scotland benefits.

The committee did its stage 1 work at some speed and held only one—virtual—evidence session. That is not ideal and is no way to legislate. I hope that we sort that out for stage 2.

The Scottish Government had intended to launch two new benefits this year. The child disability payment had been due to start this summer, replacing child disability living allowance. The Scottish child payment had been due to start before Christmas, giving universal credit claimants an additional £10 a week, initially for each child in their family aged under six. However, those benefits can start only if changes are made to the Social Security (Scotland) Act 2018. Without the measures in the bill, it would not be possible to create an offence of fraud in relation to the Scottish child payment, unless that benefit was created using primary legislation. One could therefore easily argue that the bill has been introduced to fix deficiencies in the Social Security (Scotland) Act 2018 and that if the 2018 act had been done properly, the bill would not be required.

When the cabinet secretary first told us of the need for the bill, she said that all stages would need to be completed before the end of this week—but that was pre-Covid. On April 1, she told Parliament that the Scottish child payment would come in sometime early in 2021. However, she was not more specific than that, and she will have to be at some point. She also said that she hoped to introduce a payment for winter heating for families with a disabled child in winter 2020, but she was not able to give a timetable for the start of other benefits, including the child disability payment. There is a bit of a pattern here.

I will focus specifically on the introduction of appointees and those permitted to verify a terminal illness. The Equalities and Human Rights Commission was scathing in its criticism of the appointee proposals. It said:

“We welcome the recognition that individuals with capacity may wish to have another person appointed to deal with their social security on their behalf. Also, that the position of young people requires to be addressed. However, the appointment of a person to act on behalf of an individual has very significant consequences for the individual. We are concerned about the apparent lack of appropriate procedures and necessary safeguards”.

The EHRC had more to say, of course, and the Law Society of Scotland was also critical. That area therefore has to be considered at stage 2.

The other area in relation to which I think that amendments may be required is section 7, on who can verify that a person has a terminal illness. Jeremy Balfour will have more to say on that, so I will keep my comments brief so as not to steal his thunder.

Under the 2018 act, only a doctor can decide whether somebody is terminally ill. The bill will extend that to other health professionals with particular training and experience. The skills and training that are required and the definition of an appropriate healthcare professional will be set out in the regulations that create the disability benefits. The regulations must include a registered nurse but could also include other health professionals. It is worth considering whether we should be more specific in the bill. Although the proposal has received overwhelming support, that should not prevent us from trying to improve it and, for me, it lacks clarity.

There is a little way to go on the bill. However, although it can be improved, we are happy to agree to its general principles at stage 1.

Photo of Mark Griffin Mark Griffin Labour

Like my colleagues on the committee, Labour will, of course, support the bill. It is a short, technical bill that makes sensible adjustments to the framework of the 2018 act to enhance the smooth running of the devolved benefits, particularly disability benefits and the top-up power in relation to the Scottish child payment, when those are introduced—which will, I hope, be sooner rather than later.

I thank those who were able to give evidence to the committee, including DeafScotland, the Health and Social Care Alliance Scotland and Citizens Advice Scotland, among others. SAMH and CPAG also gave evidence virtually, and we have had helpful briefings in the past couple of days from Marie Curie and Macmillan Cancer Support. Although it is fair to say that scrutinising a bill in lockdown is more challenging, all those organisations gave helpful input. The clerks and Government officials who made that happen, adjusting their timetables and processes amidst the pandemic, likewise deserve our thanks.

The committee’s report reflects the evidence that we heard and shows that the committee agrees with the principles of the bill. As our report says, except in relation to the issue of appointees, those who gave evidence did not object to the measures in the bill.

The cabinet secretary was open and forthcoming, both in her responses at committee and in her response to the report that we issued this week. In most areas, she has further explained how the powers that the Government is seeking might be used and where guidance will regulate those powers.

Proposals to allow nurses and some allied health professionals to complete the benefits assessment under special rules in Scotland—BASRiS—form for fast-tracked terminal illness applications have been widely welcomed by bodies such as Marie Curie, MND Scotland and Macmillan Cancer Support, which have been instrumental in the work on the new terminal illness system.

I am grateful that the cabinet secretary has said that she is minded to include in the bill provision making it a statutory requirement to publish safeguarding guidance as a result of concerns that the appointee system could be open to abuse. Her offer could be improved if she included a requirement that the guidance be approved by the Parliament, as happens with the advocacy standards.

There remains some desire for clarity on the provisions to withhold information. That is a complicated aspect of the bill. The committee has carefully considered the logic of the approach. If an adult is capable, in that they can manage their own affairs, why might it be appropriate to withhold their own health information from them? If they are capable, in what way would disclosure lead to the serious harm that is claimed? SAMH has rightly sought further definition and the Law Society of Scotland has questioned whether that is consistent with a human rights-based approach.

Pending broad stakeholder support, there will be mechanisms to suspend, rather than stop, carer or disability benefits, and there will be an extension of the duty to inform people about their possible eligibility for top-up benefits.

Since the Scottish child payment was announced and the supporting analysis was published, a lot has changed. As a result of the pandemic and the economic consequences of lockdown, the number of people claiming universal credit has leapt substantially. For that reason, I have today written to the cabinet secretary to ask her to consider further provisions at stage 2 that would lock in provisions to maximise take-up of the child payment.

Figures that I obtained today show that almost half of the new applications for universal credit—57,000—were made by claimants with children. Worse still, 3,500 of those applications were from families who had three or more children, and almost all those applications will be subject to the two-child limit.

Although the bill is an administrative one and is intended to be light on policy content, I hope that provisions to set targets for the take-up of top-up benefits, and for the triggering of a review should any target not be met, might be considered.

I appreciate that my letter was sent only today and that the cabinet secretary may not have had a chance to read it, but I would be grateful to have a discussion with her over the summer, ahead of stage 2.

I am in no doubt not only that the number of families who are eligible for the child payment has grown but that more families than ever are taking up the benefits that they so desperately need. That makes the success of the Scottish child payment more important than ever. Those families will be desperately stretched right now. Although we do not have a clear picture of the number who are being pushed into poverty, many are already suffering. Families across Scotland will have claimed universal credit, but they will still have to apply for the child payment, when applications open, if they want to boost their incomes.

Scottish Labour will support amendments that ensure that the committee’s recommendations are achieved. If we can, in the current circumstances, do a little more to reaffirm the importance of securing widespread take-up of the Scottish child payment, we should take that opportunity.

Photo of Alison Johnstone Alison Johnstone Green

I, too, thank all those who gave evidence to the committee and helped us in our deliberations. It does not seem so long ago that we passed the historic legislation to set up our new Scottish social security system, which—in stark contrast to the system that it has partly replaced—explicitly recognises the role that it can play in fostering the dignity and respect of everyone who needs help with their income.

I welcome the fact that, in the past two years, we have paid the best start grant and provided the best start foods card to almost 100,000 Scots families, and that we have done so without capping the number of children that those schemes can support. Having stood on a manifesto pledge to introduce better financial support for young carers, I am particularly proud that almost 1,200 of them are now receiving the young carer grant.

I note that one of the founding principles of the Social Security (Scotland) Act 2018 was that the Scottish Government should

“continuously improve the Scottish social security system”,

and the bill before us today seeks to do that.

During the passage of the 2018 act, we dealt with the particularly difficult issue of terminal illness. Some of the devolved benefits will often be paid to those who are terminally ill. For such people, every day is even more precious, so we should do everything possible to ensure that they get access to the social security help that they need as soon as possible. That being so, I very much welcome the proposal to allow a greater array of health professionals, including nurses, at least, to certify terminal illness for the purposes of applying for devolved social security payments. As Hospice UK noted in its response to the committee’s consultation on the bill, nurses

“are often the ones who know their patients best”,

so allowing them to confirm that someone has a terminal illness will allow that person to access the special rules more easily.

As we have heard, the bill extends the system of appointees from people without capacity to people with capacity and to children. In some cases, it will clearly be appropriate for someone to apply for a social security payment and have it paid to them on someone else’s behalf. However, I note the concerns that were expressed to the committee about safeguarding in respect of the process. In the past, the system of appointees that operates at the UK level has proven to be flawed. In 2018, a first-tier tribunal judge criticised the DWP for making Birmingham City Council an appointee of an attendance allowance recipient because the application had several very serious errors and omissions that had not been detected.

Citizens Advice Scotland brought to the committee’s attention the case of a recipient of the personal independence payment with mental health conditions who was living in the south of Scotland. They were asked to leave the family home by their mother, who was also their appointee, and the DWP refused to stop paying PIP to the person’s mother. A number of organisations have drawn attention to the need for a mechanism to allow the recipient to challenge the Scottish ministers’ decision to create an appointee for them; the need for periodic reviews; and the need for a system of adjudicating between competing appointee claims. I encourage the cabinet secretary to consider those suggestions carefully.

The bill empowers ministers to create offences in respect of fraudulently claimed Scottish benefit top-ups. In the absence of such provision, it would not be possible to recover payments that are made as a result of fraud, so in that respect it is welcome. However, as I have said previously in the chamber, I hope that the Scottish Government will tread carefully in its approach to tackling benefit fraud. Although social security fraud is a very serious offence and should be dealt with accordingly, it is clear that there is scope for genuine error. The benefits system can be incredibly complicated, and issues that arise from that complexity should never be confused with fraud. As Scottish top-ups are a new area of the benefit system, with two levels of Government involved, there is perhaps even more scope for honest mistakes by applicants and recipients.

The Greens support calls to use the legislation to provide a way of temporarily suspending someone’s benefit payments while maintaining their eligibility. That would, for example, allow payments to be stopped temporarily if someone who was claiming disability benefit with a care component was being looked after in a care home, and the payments could be restarted when the person returned to their own home. That would preserve their eligibility and ensure that passported benefits were not lost, and it would prevent any unwelcome delay.

The bill is a genuine and well-meaning attempt to improve our new social security system, and it is therefore welcome. However, for any such system to work properly, as well as being efficient, it must deliver an adequate income to recipients. As colleagues have agreed, there is still scope to amend the bill to address some of the concerns that stakeholders have raised.

The Greens will support the general principles of the bill at decision time, and we look forward to making improvements at stages 2 and 3.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

We move to the open debate. Speeches should be four minutes, please.

Photo of Keith Brown Keith Brown Scottish National Party

I am grateful for the opportunity to speak in support of the bill.

My colleagues on the committee will be aware of my strong beliefs that we should always work to improve access to entitlements, that the process of accessing support should be made easier and not harder, and that social security is a fundamental building block of any civilised society. We know that, all too often, an entitlement is the only thing that stops a family going hungry, a home becoming cold or the lights going out. That social security is recognised as a human right in Scotland is not only welcome; it is right and just.

Providing for the social security of its people must be the first and overriding priority of any Government. As the cabinet secretary said in her opening remarks, social security should rightly be seen as an investment, not a burden.

Entitlements are instrumental in delivering on the principles of fairness and respect, and in protecting the dignity of everyone in Scotland. We must be unwavering in our defence of them as a protection against poverty and as a transformative tool.

At various points, the committee has discussed the idea of a universal basic income. That really is a wraparound social security system that, crucially, has a huge economic impact. If people are given enough money so that they can support themselves, they can feed themselves, heat their houses and pay their rent. That would provide a level of security and demand in the economy that would help us with the people-led recovery that we would like to see coming out of the Covid crisis.

For too long, there has been a concerted effort by many to stigmatise those who are vulnerable and in need of our support. Many of us have stood in the chamber to highlight how universal credit fundamentally fails our constituents; how the system is designed to be complicated or impenetrable to those who need it most; and how it punishes claimants, pushes them into spirals of debt and rent arrears, and forces them to food banks. It seems to me that the system is designed to see the most vulnerable in our communities as undeserving and to put up barriers in the way of accessing the meagre support that it offers.

I welcome the bill, which seeks to make accessing entitlements easier, among a number of other measures. I will consider some of those. It is clear that gaps remain in the existing legislation that would result in some children who are entitled to support missing out. Allowing appointees to act on behalf of children if they have no adult with legal authority is reasonable, legitimate and right.

Similarly, there are circumstances in which it is appropriate for adults with capacity, where they agree, to have somebody act on their behalf. The creation of that process in circumstances in which a person is terminally ill will provide support at an undeniably extremely difficult time. As we have heard, support for people who are terminally ill is a complex and sensitive matter. There are many competing pressures and a multitude of decisions that those who are ill and their loved ones must navigate.

I have concerns about the current lack of a review mechanism for the appointees. That issue was raised in our stage 1 report. Although it is right that we work to improve the ease of access to support, we must not sacrifice safeguarding for vulnerable people at the same time. I am reminded of a case that I raised in the committee. A young woman in the west of Scotland was murdered by two adults who then claimed her benefits for around 20 years, I think—forgive me if those details are not exactly right. It is crucial that we avoid the repetition of such a situation.

It seems reasonable to me that we should introduce a periodic review of appointees in order to ensure that the system has not been taken advantage of. I realise, of course, that such instances may be very few, but the impact on those affected is huge.

I note that the Scottish Government has responded on that point, that it was grateful for it, and that it will introduce a statutory duty to publish guidance following a consultative period. I appreciate that there may be a number of ways of achieving that aim, but the Government will understand that there is a difference between setting guidance and setting out a review procedure, and having a statutory duty to review appointments regularly. Apart from anything else, that will send out a very powerful message that such corruption of the system will not be tolerated. That is an issue of importance, and I will continue to seek assurances on it from the Government to ensure that rights are properly safeguarded.

I am pleased to support the bill, which makes necessary and positive changes to our social security system.

Photo of Brian Whittle Brian Whittle Conservative

I am pleased to be able to speak in this stage 1 debate.

As members have pointed out, the bill is quite technical; as such, it will probably not get the attention that it may deserve. However, it is always worth mentioning as we make changes to such laws that we are dealing with significant changes to people’s lives.

In the short time that I have, I want to focus on section 1 of the bill, on appointees, which is pertinent to a young man whom I know, who is a coach. That young man’s foster parents, who have looked after him for nine years, are truly remarkable. I have nothing but admiration for the job that they have done in bringing up him and his sister. They introduced him to athletics and he has become an excellent athlete, winning a bronze medal at the European championships and qualifying for the world championships, with the goal of going next year to the Paralympics.

That young man and his sister have foetal alcohol spectrum disorder. If anyone met him, however, they would probably decide that he was an enthusiastic young man, always smiling—and always complaining, as it happens, about training. Sport is important to someone with that kind of condition, because it introduces a sense of order and commitment.

During the past nine years, his foster parents have done an incredible job—so much so that he is now studying at college and is doing exceptionally well. He has moved out of the family home, is living in a shared flat, and can cook and clean and do all the types of household chore at which I am particularly bad.

I can see how an assessment for benefits would be particularly problematic. However, his ability to handle money is in question. When he asked for his foster mother to be able to collect and look after his finances, that was turned down. He is smart enough to recognise that he has a weakness, but the system could not accommodate his request. The net result has been that, not having previously had to deal with that level of finance, he has struggled. For example, one of the first things that he did was to go out and buy himself a pair of £200 trainers—that certainly does not constitute good financial planning.

That highlights to me the need for the law to adapt to people in such circumstances. In giving people as much freedom as possible to live their lives, we must also be able to recognise that, in certain circumstances, there may be limitations that have to be taken into account.

That is why I think that section 1 is on the right lines, in its provision for appointing a person to receive benefits on someone else’s behalf, if the claimant agrees to that appointment; and in the enabling of an adult who does not have parental rights—which applied in the instance that I have mentioned—to manage a child’s benefits in those circumstances.

However, the bill would allow ministers to

“terminate an appointment at any time”,

and says that they “must” do so if the consent is withdrawn. That needs more careful consideration. Decisions that are made in a fit of pique are not always or necessarily in the best interests of the benefit recipient. That thought is probably for the next stage of the bill.

I do not quite understand the bill’s provision to allow “Ministers” to appoint. I am not sure that that is the right terminology.

There is much to consider about putting in place the correct checks and balances—a few members have mentioned that—but, for me, the bill takes the right direction of travel. As I have said, Conservative members will support the bill at decision time.

Photo of Clare Adamson Clare Adamson Scottish National Party

I am not a member of the Social Security Committee but, as a former convener, I take an interest in its continuing work. I thank the convener and members for their work on the stage 1 report. As has been mentioned, that happened during the Covid crisis, as we were all getting used to a new way of working, and it was not without its challenges, but the committee has come to a very good conclusion in its stage 1 report.

That had an impact on me too, because, not being a committee member, my first port of call was to look back at the evidence session. I found that it was not available because of technical difficulties, so I had to resort to the

Official Report

. It is therefore an absolute pleasure today to see so many committee members speak, both virtually and in the chamber.

In my time as convener of the committee, fairness, dignity and respect were at the heart of what we were doing in developing a social security system in Scotland. It is good to see some positive additional work in that area, still with those principles at heart.

We have heard a few concerns about how the issue of appointees, and the permanency of such arrangements, might be handled, and that it should be done with diligence. That is an important area. It is unfortunate that wicked people might intend to abuse the situation, but it is absolutely right that we give adults who have capacity the choice to appoint someone to receive their benefits on their behalf.

The dignity of people for whom revealing a diagnosis may have a detrimental health impact has been very much considered under the bill. That is a delicate issue but, judging from the speeches that I have heard this afternoon, I think that everyone on the committee appreciates just how delicate that situation can be. We should be able to build safeguards into the system to ensure that, when it is in the minds of clinicians that that is the right thing to do, something is not revealed that could be detrimental to someone.

I am mindful of the sensitivities of the issues around terminal diagnosis. When we were developing the social security system, that probably caused most of my concern about getting things right for people. We were presented with a UK system that depended on six-month accuracy for a diagnosis of life expectancy. That is totally unrealistic and cruel, and it would have been devastating to claimants who, in the last months or weeks of their lives, could have had their benefits cut because of that restrictive rule. I am very happy that we did not embed that into our system. The bill goes further, ensuring that any terminal diagnosis is available as early as possible, so that the right support is there for people at the most difficult point in their lives.

I know that many multiple sclerosis and motor neurone disease nurses and Macmillan Cancer Support nurses will know much more about their patients than a doctor might know, and that they will be the best people to take the decision to switch and let the patients know, to ensure that the fast-track benefits get to people at the most difficult time in their lives.

I thank the committee for its work. I think that the five proposals will strengthen our social security system in future, and I look forward to seeing developments at stage 2.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

The bill would appear to significantly increase the workload for the Scottish Courts and Tribunals Service—or at least it has the potential to do so—in dealing with devolved social security. I welcome the measures to make the scrutiny and justice mechanisms for those devolved benefits more robust, for example through the creation of statutory fraud offences in relation to section 79 of the 2018 act, in addition to allowing ministers to make provision in regulations for the investigation of allegations.

As I have said, however, the upshot of those measures is likely to be a volume of additional cases, and it is vital, as the Law Society of Scotland noted in its written evidence, that the temporary appointment of other types of judge to sit on the tribunals should be just that: temporary only. The only realistic and long-term solution is permanent provision, support and resourcing for those at tribunal level with expertise in social security matters. Otherwise, we are liable to end up with the consequences of potentially bad decisions doing the system down. The current proposals should perhaps even be time limited, and it might even be appropriate for something of that nature to be included in the bill through amendment at stage 2.

The provisions made for the recognition of individuals capable of diagnosing a terminal illness, as outlined in section 7, are welcome. That measure is likely to be the correct decision to expand the definition to an “appropriate healthcare professional” in order to speed up the process for disability assistance claims, for instance.

After the passing of the 2018 act, the consultation that was carried out to develop guidance by the chief medical officer to complement the act found that the majority of DS1500s—being the form used by the DWP to certify terminal illness—were in fact completed by nurses. As a way to bring oversight of the existing act into line with UK practice at the DWP level, the measures are therefore welcomed.

In conclusion, the regulations that will follow from the legislation and set out the professional criteria for appropriate healthcare professionals need to be specific, rigorous and of a high quality, despite the Government’s apparent reluctance to clarify in primary legislation which particular job titles would qualify. I look forward with anticipation to the stage 2 proceedings and greater clarification in those areas. The Scottish Government’s responsibility for social security payments as part of the devolution settlement is significant and must be carried out in a thoroughly careful and cautious fashion.

Photo of Pauline McNeill Pauline McNeill Labour

When I received a call from the cabinet secretary’s office for an urgent meeting on the Social Security Administration and Tribunal Membership (Scotland) Bill, I was at first surprised that there were so many omissions from the Social Security (Scotland) Act 2018. The Social Security Committee and Bob Doris, who also attended the meeting, were only too willing to get on with the job that the committee is set up to do, which is to make sure that the provisions in the 2018 act are as they should be and fit for purpose.

As has been said, this short bill has five specific provisions. As other members have done, I thank the many organisations that gave evidence and made observations, and all the officials who worked on the bill.

However, the bill needs further amendment. It is an administrative bill. Mark Griffin and Bob Doris have said clearly that there is much work to be done—particularly on urging the Scottish Government to bring forward, whenever practically possible, the child payment that is so needed.

The circumstances of terminally ill patients are a campaign issue for organisations such as MND Scotland and Marie Curie, which never gave up on finding a solution to fast-tracking benefits for terminally ill patients. The bill seeks to expand the scope for health professionals, other than doctors, to be able to sign off on a terminally ill patient to allow quicker decisions. Between 2013 and 2018, nearly 8,000 people had claims for PIP refused by the DWP and died within six months of their claim. That illustrates how necessary the bill’s provisions are.

The cabinet secretary said that she will lodge amendments at stage 2 on the duty to inform, and I welcome that commitment. Mark Griffin has also spoken to that. The duty to maximise uptake is critical to the ethos behind the Social Security (Scotland) Act 2018, which we all agreed, and if amendments are lodged on that at stage 2, they will be whole-heartedly welcomed, certainly by the Labour Party. I still want to see progress on other ways to increase the uptake of benefits, such as automation, which I know that the cabinet secretary has been in discussions about.

We need to get the Scottish child payment cash into the pockets of families and many anti-poverty organisations have already set out to the Social Security Committee other ways of bringing forward perhaps a lump sum payment equivalent to the proposed child payment. I hope to see an uptake around the suggested target of 85 per cent when we can undertake that work. As I think almost every other member mentioned, one of the most significant areas that requires amendment is the part 1 provisions on challenging an appointee in order to prevent deception and exploitation. Brian Whittle, Keith Brown and Alison Johnstone mentioned cases. If anyone needs convincing, listening to those speeches makes it clear that we need to get those provisions right.

I will conclude with two major points. First, I agree with Gordon Lindhurst on the question of the temporary appointment of judges. Throughout the passage of the bill I have raised the need for all judges in the system to have clear training on the ethos behind the Social Security (Scotland) Act 2018. Similarly, while extending the franchise means that the workload can be dealt with, and I totally accept that the judges must have expertise, they have expertise in a UK-wide system that has a different ethos. My concern is that at some point there need to be proposals to ensure that all the judges making decisions on social security are making them from the standpoint of the ethos behind our 2018 act, which we all agree should produce something different.

Gordon Lindhurst might have been referring to a case that I think is quite old now. The temporary appointment of judges is always risky, and it has led to problems in the past in situations in which the appointment goes on for so long that it is not really temporary any longer and the appointee might not be seen as independent.

Lastly, I want to use the opportunity to say that, in the future, we need to keep an eye on social security reform. The need for anti-poverty measures has probably never been greater. The Joseph Rowntree Foundation and Save the Children, in their briefing, mentioned that 70 per cent of the families that they have surveyed have taken out some loan or other in order to get themselves through the pandemic and the crisis that we face.

It is important to finish the work on the bill and to take it through to the end of its passage and ensure that it is signed by the end of the parliamentary session, but we must also think ahead to how we can ensure that our social security system is fit for purpose, given the fact that the past three months have changed people’s lives a little bit. We support solid commitments such as the child payment and many of the other things that the Scottish Government has done, but we must also be flexible and assess what the nation needs from its social security system.

Photo of Jeremy Balfour Jeremy Balfour Conservative

I thank all members for their contributions to the debate, which has been helpful. As has been said, the bill is quite technical, but it contains welcome policy changes, too.

None of us wants to be in a place where, as Graham Simpson pointed out, we have seen a delay in the delivery of benefits. Some of that delay is due to the crisis that we are going through at present, but it is also true to say that the Scottish Government’s timetable has lapsed and, if it was not for the DWP picking up the responsibility, many people in Scotland would not be getting the benefits that they deserve.

I will focus on two areas, which most members have picked up on already. First, I agree with what all the speakers have said about the need to think about appointees and ensure that the appropriate safeguards are put in place. Having spoken to Epilepsy Scotland, I know that it is not just people who have a severe health condition or mental health condition who are affected; it can be a much more nuanced area. I am slightly concerned that the Scottish Government wants to put a lot into guidance. As Bob Doris pointed out at the Justice Committee meeting yesterday, guidance is guidance; it is not law. I think that we need to look again at what is in the bill in order to ensure that people are not manipulated and are not being used by third parties in a way that would not be acceptable.

The second area that I want to cover regards the provisions around terminal illness. As someone who campaigned on that during the passage of the 2018 act, I think that we have made great progress and I welcome the direction that the Government is going in with regard to opening up who can fill out the forms. We have had helpful submissions from Macmillan Cancer Support, Marie Curie and MND Scotland. One of the things that the briefing paper from Marie Curie and MND Scotland stressed was the need for mandatory training to ensure that people can complete the form. That is an important point to make. It probably would not be appropriate for every nurse in Scotland to complete the form. I have already heard that some nurses are concerned that they would be expected to fill out the form as part of their day-to-day working. I think that, during the passage of the bill, we will have to think about ensuring that nurses are protected and that those who fill out the form will be able to do it in an appropriate way. As Graham Simpson said, we might need to come back to that at stage 2.

My colleague Gordon Lindhurst made some interesting points about tribunal judges and their temporary appointment.

As a former tribunal member, who worked with the DWP, I am aware of the benefits of that but I am also aware that training will be required on how to apply the Social Security (Scotland) Act 2018.

I thank the committee clerks for all the work that they did in difficult circumstances. The bill will tidy things up and take us forward to the next stage but it will need amendments at stages 2 and 3 to make sure that the people of Scotland get the best social security system that they can expect.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I thank members for their constructive contributions today. I have listened carefully to their critique and their suggestions for how the bill can be improved, and I look forward to working with them in committee and bilaterally to improve what we have before us today.

As members have pointed out, it is a technical but important bill. The obvious example of that is that we cannot move forward with delivery of the Scottish child payment—a key component of our efforts to tackle child poverty that we want to implement as soon as possible—without having in place the appropriate tools to address instances of fraud. I am pleased that Parliament recognises that and seems to support that principle.

However, I concur with Alison Johnstone’s point about the importance of recognising the difference between an honest mistake or genuine error, and fraud. They are exceptionally different. The agency treats them as different by having different teams that look into them. We should never treat a person who has made an honest mistake as though they have been fraudulent.

I am pleased to say that we will, as members have discussed, lodge an amendment at stage 2 to ensure that the duty under section 53 of the 2018 act is extended to include forms of devolved top-up assistance.

This afternoon, members have spent most time on the issue of appointees. Few speeches did not bring it up, and many members spoke about issues that were raised at committee in written and oral evidence. I reaffirm my commitment to delivering an appointee process that is fit for purpose, informed by stakeholder engagement and consistent with our rights-based approach.

I acknowledge the desire for more detail being placed in statute—particularly around mechanisms to challenge or review the need for an appointee—rather than leaving that to guidance. However, I believe that guidance allows us to be more responsive to the needs of clients; for example, we can readily incorporate best practice that way and can improve the process as required, in a way that statutory provisions would not allow. However, I have listened carefully to what has been said today and in evidence to the committee, with an eye to how we can improve the balance as we move forward. I look forward to working with committee members on that; our aim is the same.

The guidance will ensure that, where an appointment needs to be reviewed or there is a dispute, Social Security Scotland staff will act fairly, sensitively and in a way that takes into account the views of the client and, for children, the views of their parents or others who are responsible for the care of the child. In developing the guidance, we will engage with stakeholders to ensure that the process works for clients and appointees, and that appropriate safeguarding is built in to every step of the process. The tragic case that Keith Brown brought up and members’ other examples demonstrate why we need to get that right.

I again give the reassurance that we will continue the work over the summer with the disability and carers benefit expert advisory group, our experience panels and stakeholders to understand how we can strike a balance between prescriptive statutory safeguards and safeguards that will be set out in decision-making processes and guidance.

Graham Simpson and Jeremy Balfour discussed the timetable for passing the bill and how we hope to move forward with other benefit payments this year. Graham Simpson is quite right that we had hoped, and we were on track, to deliver the child disability payments this summer, and that we were on track to open up the Scottish child payment earlier than we had said in our public announcements. That has not been possible because of Covid-19; changes to the timetable have been made strictly because of Covid-19. However, we still need to pass the bill as soon as possible to allow us to deliver the Scottish child payment as quickly as possible.

Graham Simpson asked about the timings for the Scottish child payment, which are very much dependent on when the agency can recruit staff. I am afraid that I do not have a crystal ball that will tell me what will happen over the next couple of months, but he has my absolute reassurance that the agency and I are very keen for the agency to get going on that work as soon as it is safe, and within the guidance, for it to take place.

Graham Simpson will also be interested to know that, only this morning, I had a very constructive joint ministerial working group meeting with Scotland Office and DWP ministers. We discussed the joint programme of devolution of social security to Scotland, including the child winter heating allowance. We are considering replanning of on-going work between the DWP and the Scottish Government, because both are working under the pressure and circumstances of Covid-19. That constructive work is going on between the Governments.

Photo of Graham Simpson Graham Simpson Conservative

I thank the cabinet secretary for taking an intervention. I am trying to help her to spin this out a little bit. I appreciate the staffing difficulties at Social Security Scotland, but from what I have heard, I believe that staff have been doing an excellent job and that the Government has done really well to recruit so many people under the current circumstances.

I make a general plea that, over the summer, the cabinet secretary engages with me and others on potential amendments. That would really help to smooth the way for stage 2, especially if we have to do it virtually.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I am grateful to Graham Simpson for recognising the hard work of Social Security Scotland staff, including the new recruits who have been working remotely. I commit to working with him and members from across the chamber over the short summer recess.

That brings me nicely to the letter that Mark Griffin mentioned. He will forgive me—it came in not long before I came down to the chamber for the debate, but I have had a chance to look at it. We share the wish to improve the take-up of devolved benefits. The question is, “How?”. Social Security Scotland will ensure that everyone, including people who are new to universal credit, will be invited to apply for devolved benefits. I suggest that that is a direct way of encouraging people to sign up to the benefits for which Social Security Scotland is responsible.

Pauline McNeill mentioned automated payments. She will know that I am very keen to develop work on that. It is not possible for the first Scottish child payments to be automated, because of the speed with which we are introducing the payments, but I have already said that we will consider what we can do in that area. I am personally committed to doing that.

Several members, including Pauline McNeill, talked about training of judges. I stress that that is not a matter for the Scottish Government, because the independence of the judiciary is exceptionally important. The matter is for the judicial institutes, but committee members might want to take up the issue through the committee’s work. The Government will definitely not give instructions to the judiciary, although I acknowledge Pauline McNeill’s long-standing concerns on the issue and the importance of the ethos of Social Security Scotland.

Bob Doris and others spoke about disclosure of harmful information, which is a very difficult issue. I am clear that it is justifiable to withhold information that a medical professional has already determined should be withheld because that is deemed to be necessary to prevent serious harm to an individual. In doing that we must ensure that clients are not disadvantaged in respect of accessing disability assistance. However, it is for medical professionals, not the agency, to decide on that. I would never want us to get to a place where the agency second guesses what is happening and the decisions of medical professionals.

Other members spoke about the importance of diagnosing terminal illnesses correctly for disability assistance purposes. As he suggested, Graham Simpson is not yet entirely convinced by my argument that we have the balance right on that. I have already noted that that will be a discussion for during the summer. He shall certainly hear from me on that.

It is a technical bill, but it is, as I said, an important bill. We have actively engaged with stakeholders and will continue to do so during the summer, because I accept that we have improvements to make.

I thank the Social Security Committee for its support of the general principles of the bill, and I hope that Parliament can unite in passing it at stage 1.

The Presiding Officer:

That concludes the stage 1 debate on the Social Security Administration and Tribunal Membership (Scotland) Bill.