Chamber and committees

I will bring in one of my officials on that.

One of the reasons for having the regulations is to make sure that we are not working under the interim measures that I spoke about and that we are transparent about what is in place. There are data protection and privacy notice statements on the gov.scot website and they make it clear that we will share information. The website also includes mention of safeguarding, which clearly states that information will be shared in very specific circumstances when there are safeguarding concerns.

As all committee members will be aware, the sharing of information is an exceptionally sensitive matter, and a great deal of care must be taken to ensure that it is done lawfully. That is why those statements are made as people go through application processes. When it is not possible to ask a client for their consent for their information to be shared, the regulations still allow for that to happen. That is important because, as was mentioned in the discussion with Mr Doris, there may be coercion or other reasons why a client cannot give their consent at that time. We are still obliged to ensure that we share the information with all the care and sensitivity that the committee would expect the agency to show at that point.

Consent is not required where a person lacks capacity to act. An example that might be helpful is referrals to the Office of the Public Guardian where people are covered by the Adults with Incapacity (Scotland) Act 2000. As I mentioned, they cannot give consent.

I have probably touched on the other areas in previous answers. As I said, the regulations provide exemptions to allow for the sharing of information specifically where it is felt that there is “reasonable cause” to suspect that the individual is at risk of harm. That is the important aspect that we always come back to in this respect. I hope that that provides another example of how such a matter would be dealt with.

At present, as I mentioned in my opening remarks, concerns about risk of harm are referred to local authorities under the National Health Service (Scotland) Act 1978. However, as I mentioned, that does not cover scenarios of financial harm or financial abuse, which is an important aspect of the system that we develop in the regulations. As well as filling those gaps, the regulations absolutely maintain our commitment to supporting some of the most vulnerable people we engage with. Although we have had an interim process in place, it is important that we set out our approach in a clear and transparent fashion.

Monitoring is extremely important, given the sensitivity of the information and the importance that the agency and the Government overall attach to ensuring that we deal with it sensitively, appropriately and thoroughly. A new system of records is being developed to record statistics. Given the sensitive nature of the information in question, it is not held in the main system for all staff to see; it is held in a sensitive way such that only the staff who are dealing with the issues in question will be able to see it. They will be able to monitor that and report up to the executive team as required.

It might be best if I give an example. In a situation in which an application is being made for child disability payment, contact will clearly have been made with a parent or carer, and a member of our local delivery team might have genuine concerns not necessarily about the child but about the parent or carer. There might be, say, mental health concerns of whatever kind, or a fear that there is domestic abuse. It is very important that, when we talk about dignity, fairness and respect, we apply those things not just to the client but to everybody whom the agency comes into contact with. In that example, the local delivery staff member will be able to come back and go through the processes that we have talked about in order to assist the carer or parent who might be in difficulty, even though they are not technically the client. Perhaps such examples help to bring out the importance of looking at the situation that presents itself to a member of staff as they are going through a case.

All staff have mandatory data protection training, which is refreshed annually. Staff training on identifying vulnerable people who are at risk of harm has been delivered alongside guidance and a process that ensures that staff can raise concerns quickly and effectively. All concerns that are identified are discussed with a line manager and then forwarded to the safeguarding team that I mentioned in my opening remarks. As I said, that dedicated safeguarding team comprises experienced professionals who are responsible for considering referrals and reporting to the appropriate authority. The team is overseen by the deputy director for health and social care and the chief medical adviser. That experience and knowledge inform the proportionality of the information sharing.

The process has many levels and it involves many checks and balances with a view to ensuring that all staff are trained and that information is shared sensitively within the agency and, in particular, the safeguarding team, which has a great deal of experience.

The primary focus of Social Security Scotland is to ensure that people receive the assistance that they are entitled to, putting the person first and treating them with fairness, dignity and respect, in line with the key principles of the Social Security Scotland charter. However, the Scottish Government recognises that, in undertaking that role, Social Security Scotland engages with some of the most vulnerable people in Scotland. Inevitably, that will lead to instances in which it becomes apparent that a person might be at risk of harm. To adequately support people in that situation, we must have a clear and robust process in place.

As such, and in keeping with our commitment to support the wellbeing of the people whom we engage with, in March 2022 a public consultation was launched seeking views on creating a specific legal gateway for Social Security Scotland to make to the relevant authorities referrals concerning risk of harm. The consultation responses demonstrated overall support for the proposal.

It is important to make a distinction between cases in which a person might be at risk of harm and those in which there is an immediate threat or risk to life. Situations in which immediate threat or endangerment to life are observed are reported to Police Scotland under the common law duty of care. The regulations that we are considering today cover sharing of information when a person is at risk of harm, with harm variously being defined, depending on the sharing, to include significant neglect; physical, mental or emotional harm; or the likelihood of their causing self-harm.

Child and adult protection services in local authorities are governed by legislation that is underpinned by Scottish Government national guidance on child protection and by a code of practice for adult support and protection. Those allow referrals to be made by Government agencies and third sector organisations that engage with vulnerable people and which may have cause to refer concerns of harm. In July 2022, the code of practice was updated to include Social Security Scotland as one of the agencies, in recognition that the agency is a key partner with a role to play in supporting vulnerable people.

Referrals in which a risk of harm has been identified are currently being made by Social Security Scotland under an interim process while the regulations are being considered. The agency has a safeguarding team that is staffed by qualified health and social care professionals, who review all concerns that are raised and, where appropriate, make referrals using a gateway in health legislation.

However, that legislation covers sharing of information that is related only to physical and mental harm and does not cover financial abuse. The regulations will enable the sharing of information relating to harm that is caused by financial abuse.

Furthermore, for the purposes of transparency, I consider it appropriate to create a bespoke and explicit legal gateway to cover safeguarding referrals from the agency. Additionally, in drafting the regulations, officials identified that, where a person is an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000 and has a power of attorney, a legal guardian or is subject to an appropriate order, the public guardian has authority to investigate concerns of financial or property abuse. The drafting therefore includes referrals to the Office of the Public Guardian when that is suspected.

The process of preparing the regulations has involved significant engagement with relevant parties, including the Information Commissioner’s Office, local authorities, health and social care officials, information governance policy leads, social work leads and data protection officials.

The regulations make provision for Social Security Scotland to make referrals only where there is concern about risk of harm. That is to ensure that there is no interference with the investigating powers or decision-making processes of local authorities. It remains for local authorities to make risk assessments and to evaluate additional help that is required by the individual.

For the avoidance of doubt, the sharing for which the regulations provide will ensure that such a referral will have no impact on the assessment of a person’s application for assistance; that only information that is relevant to the risk of harm that has been observed will be shared; that consent from the individual who is being referred will be sought in most instances—although I have included provisions for cases to be referred in which consent cannot reasonably be obtained; that no information concerning a referral of concern of a risk of harm will be held on a person’s file relating to their application for assistance; and that such a referral will be stored in a separate restricted access file, in line with data protection laws.

The aim of the regulations is to support vulnerable people who are identified as being at risk of harm by referring them to the appropriate authority for help and support, which—as I am sure the committee will agree—is a positive action for the people who need it most.

I thought that I had lost you halfway through my answer, Mr Doris, but that is fine. I have met and visited the offices of the project that you mentioned. I noticed that you had that event and I had hoped to come down to meet them again. I was impressed by the work that the project does and I am pleased to see it recognised in the Parliament.

While I was on that visit, we spoke in great detail about the real concern that we should all have to ensure that abuse is seen in the widest sense, including financial abuse. That is why I was clear in my opening remarks about the need for us to recognise all abuse, including financial abuse. It is a clear concern for many different demographics. The committee will be aware that particular concerns have been raised about older clients and financial abuse towards them. Mr Doris rightly mentioned aspects around domestic abuse and financial control being part of that. I hope that the regulations will be able to assist those women in those types of situations, if agency staff come across that.

The timetable for the bill is up to the Parliament but, if it is passed by the end of the year, it will commence by mid-2024. By then, public authorities will have had an extra two and a half years to get ready for the compatibility duty, during which time they will have had access to a growing range of national training and support.

I hope that the six-month commencement date is not unreasonable, but it is important that we continue to work with public bodies to ensure that we support them in the process and that we look carefully at their concerns and any implications that there might be.

When the bill was introduced, it did not have a commencement date but, if my memory serves me correctly, I think that it was included at stage 2. It is unlikely that we will be able to amend the commencement date at reconsideration stage, as it is not something directly to do with the Supreme Court judgment, which is what the amendments are all about.

Again, it is up to the Presiding Officer to decide the issue. However, the date is already in the bill, and the parts of the legislation that we are not seeking to amend as a result of the Supreme Court judgment will stand.

Looking into the matter has been a complex process. One of the reasons for that—as I also said in my opening remarks—was very much our wish and desire to ensure that we still had the maximum coverage possible.

That is why we looked at a number of avenues to see the different ways in which the bill could be amended. Those provided, for example, further coverage, but increased the level of complexity in the bill, which—as the committee heard—was a concern. We tried very much to hold to the intentions of the original bill that was passed in order to seek as much coverage as possible.

During the intervening period, there has been careful line-by-line scrutiny in the Scottish Government of the Supreme Court judgment. There has been a great deal of engagement with the UK Government, which initially included engagement with the Secretary of State for Scotland, to see whether there was any willingness to do this in another way—for example, to change the devolution settlement to allow the bill to remain as it was originally passed—but the Secretary of State was not willing to consider that.

We have had a number of periods of stakeholder engagement in which we went through the options that we could provide. The drafting element then came in. There has been very close working about the specifics at lawyer-to-lawyer level, with the Office of the Advocate General, because we were keen to get as much assurance as possible that what we were doing would provide the maximum coverage but would not carry the risk of another Supreme Court referral.

Once I had taken a policy decision on where we wanted to go with the different options that were available, those were tested with stakeholders, and the detailed amendments were shared with the Office of the Advocate General. The two Governments were doing that important work at lawyer-to-lawyer level, because I wanted the bill to have the maximum impact while also reducing the risk of another Supreme Court referral.

I hope that I have talked the committee through the process, but I am happy to go into further detail on any of the steps, if the committee would find that useful.