Chamber and committees

I would not suggest provision in the bill. As I said, on those issues, it is important that we are able to be much more flexible than we would be able to be under primary legislation. Social Security Scotland, of course, follows strict guidance. Yes, we need the culture and the ethos but, more importantly, we must have the guidance.

On the concern about not having scrutiny, the committee can call the chief executive and others from Social Security Scotland to come to discuss anything that the committee wishes or has concerns about. Of course, the Parliament also has the power to ask the Scottish Commission on Social Security to report on any matter relevant to social security if there is a concern.

I absolutely recognise that, as I have said on many issues, Social Security Scotland is still new. The agency is learning, open to learning and open to adaptations. That is the way to address the matter in conjunction with stakeholders, knowing that we have the ability for the Parliament or SCOSS to scrutinise and investigate should they wish to do so. Therefore, I still ask Mr Balfour not to move amendment 9.

Amendment 52 agreed to.

Amendment 53 moved—[Shirley-Anne Somerville]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Liability of appointees under sections 85A and 85B of the 2018 Act

Amendments 54 to 56 moved—[Shirley-Anne Somerville]—and agreed to.

Section 15, as amended, agreed to.

After section 15

Amendment 126 moved—[Jeremy Balfour].

I hear where Mr Balfour is coming from. Can he perhaps try to persuade me that we can audit Social Security Scotland and the way in which it does things without auditing the decisions that it makes and, therefore, its case load? I simply do not see how to do that. The entire purpose of Social Security Scotland is to deliver the right decisions at the right time; therefore, we must examine the decisions.

I thank members for all their thoughts. Again, I put on the record that I very much appreciate where Jeremy Balfour’s and Maggie Chapman’s amendments are coming from and their concerns.

The Government has met stakeholders since stage 1 on this process, particularly because of the evidence that was given to the committee on it. They were specifically asked whether amendments should be lodged and no stakeholder asked the Government to lodge amendments. I believe that there are ways in which we can continue to reassure those stakeholders about safeguarding without the amendments that are being proposed today.

I go back to the point that I made to Mr Balfour. I simply cannot see a way in which we can audit Social Security Scotland without examining the case load and therefore asking for information from it. Everyone on the committee agrees that there needs to be an audit. This is about how we do the audit and how we ensure that it is robust. Again, I simply cannot see how we can have a robust audit if the process is self-selecting—you will have an audit, but it will not be robust.

Maggie Chapman is right to point out that benefit fraud is low. We know that it is low because there has been an audit, and the purpose of audit is to reassure us and to ensure that we can respond to those who might wish to use misinformation about the level of benefit fraud, or to attack people who come forward for benefits, with evidence to say that that is not a major issue in our area of benefits. However, benefit fraud clearly exists and, where it happens, we must take it seriously.

If Mr Balfour will allow me to, I will take that away and reflect on it. I think that it was Maggie Chapman who made the point that there needs to be more consultation on this, and the whole point about not putting this in the bill itself was to allow that public consultation to take place. I can see where the member is coming from, but I am a bit hesitant because I have committed to having a consultation on this, which people would obviously be able to take part in. However, I will reflect on whether more can be done.

I thank Mr Doris for his kind remarks to my officials. I absolutely concur that the job that they did on section 17 and, indeed, on other aspects of the bill is remarkable, so I thank him for putting that on the record.

With respect to Mr Balfour’s points, we have had many discussions about tribunals over the years, and I am afraid that that is one of those areas in which we disagree on the best way of proceeding. I see where he is coming from, but I made the points that I wished to make during my remarks on the Delegated Powers and Law Reform Committee’s queries on this area, when I explained the reasons for our decisions. Given the length of my opening remarks, I will leave it there.

Amendment 59 agreed to.

Amendments 60 to 72 moved—[Shirley-Anne Somerville]—and agreed to.

Amendment 73 moved—[Shirley-Anne Somerville].

The Scottish Government cannot support amendments 118 to 125, in the name of Jeremy Balfour. The amendments relate to process appeals at the First-tier Tribunal. That is where clients can challenge process decisions such as if Social Security Scotland rejects an application or a redetermination request as invalid if it was not submitted in the correct form or was incomplete.

The First-tier Tribunal can decide whether a process decision made by Social Security Scotland was right. In addition, it can decide that more information is needed to make an application or a redetermination request valid, and it can instruct Social Security Scotland to seek that information from the client.

Process appeals only look at process decisions. They do not cover the level of an award or overall entitlement, which are covered as part of redeterminations and appeals.

Amendments 118 to 125 would mean that, following a process appeal, Social Security Scotland would have to make a determination of entitlement in scenarios in which the tribunal has said that more information is needed, regardless of whether that additional information is provided by the client. That is unfair, as clients who have made a process appeal would be treated differently from clients who have also submitted an invalid application but who did not seek a process appeal. It could also disadvantage anyone who received a decision from the tribunal during a process appeal that Social Security Scotland was correct to reject their application or redetermination request.

In practical terms, if Scottish ministers do not have the required information, as set out in the 2018 act, they are not in a position to make a determination of entitlement. An example of that would be a client not submitting part 2 of an application for a disability benefit, because part 2 of the application contains information about a client’s needs and eligibility for that disability benefit.

The Government does not, therefore, support amendments 118 to 125, and I ask Mr Balfour not to press them.

The Scottish Government does not support amendments 116 and 117, which would allow people to appeal a decision of the First-tier Tribunal in the Upper Tribunal. We do not consider the amendments necessary. Most process appeals are based on the facts of the appeal—for example, whether a client has completed a benefit application correctly or submitted a redetermination request on time—while Upper Tribunal appeals can be brought only on a point of law. The number of process appeals received to date is very small, and my understanding is that, if required and where appropriate, the First-tier Tribunal may seek guidance from the Upper Tribunal in circumstances in which a First-tier Tribunal has to consider whether the appellant had a good reason for requesting a redetermination late.

As such, the Government does not support amendments 116 and 117. I ask Mr Balfour not to press amendment 116 and not to move amendment 117.

This group contains a total of 26 Scottish Government amendments, all about liability for assistance paid in error. During stage 1, we heard concerns from stakeholders and members that, although the provisions in the bill are welcome in principle, they are quite confusing. I have listened to those concerns and we have, accordingly, redrafted the provisions on overpayment liability in their entirety to set out more clearly our approach to that.

Before I turn to the substantive change, amendments 25, 26 and 51 in my name close a gap in the 2018 act in relation to assistance paid in error. As the committee is aware, liability for overpayments arises from section 63 of the 2018 act or, in the case of the Scottish child payment, the corresponding regulations made under section 79. Currently the provisions for deductions in the schedules for assistance paid under chapter 2 of part 2 of the 2018 act allow the Scottish ministers to make a deduction only in respect of overpayment of assistance paid under the 2018 act, whereas the Scottish child payment regulations provide for deduction for overpayments of assistance either under the 2018 act or under the Scottish child payment regulations.

In practice, that means that an overpayment of Scottish child payment or any other form of assistance that is created using top-up powers in the future, cannot be repaid by deduction from any other on-going benefit. If a person has an overpayment in their adult disability payment, that can be repaid by deduction from the Scottish child payment, but not the other way around.

Deductions are often a preferred and simple method for someone to repay an overpayment, as they are set at a manageable level. As, I am sure, the committee is aware, deductions may only be made at a reasonable level that takes into account individual financial circumstances and in order to prevent hardship, and there are challenge rights.

Amendment 51 therefore closes a gap and ensures that individuals have the convenience of knowing that deductions for overpayments from any form of on-going assistance can be recovered from another in accordance with our long-standing policy position. It does that by inserting a new provision into the deduction provisions in the schedules of the 2018 act to include any liabilities arising from any top-up assistance regulations.

Amendments 25 and 26 also future proof the 2018 act by mirroring the deduction provisions in the new schedule for childhood assistance and, if approved, they will ensure that the recovery of overpayments of Scottish child payment or any future top-up payment is in line with all other forms of devolved assistance.

The Scottish Government’s amendments 29 to 34 have one overarching purpose, which is to provide greater clarity around the liability for any assistance paid in error for individuals and for representatives who act on their behalf. When the bill was introduced, it had separate sections for the liability of individuals and for the liability of their representatives. As I noted at stage 1 of the bill, it became clear that some stakeholders were confused about what was being proposed and we have reflected on what we can do to make things easier and clearer.

The amended text in the proposed new sections 63, 63A and 63B of the 2018 act deals with the liability of individuals and their representatives and they simplify and clarify the provisions.

Despite the large number of amendments in the group, I reassure the committee that the two key principles at introduction remain unchanged. First, an individual’s representative will be liable for overpaid assistance only where they have benefited from the overpayment. Secondly, liability for both individuals and representatives will arise from a decision of the Scottish ministers rather than automatically. That will allow us to create a system of reviews and appeals rather than people having to challenge liability in the sheriff court.

The amended section 63 will set out the circumstances in which Scottish ministers may decide where an individual or their representative is liable for an overpayment. Some stakeholders were concerned that the provisions did not make clear enough how liability would be decided between an individual and their representative, so we have clarified that. The new provisions retain key concepts from the 2018 act, such as definitions of error and fault and what should be considered in deciding whether an error is the sort of error that a person could reasonably have been expected to notice. I want to be crystal clear that the protections of the 2018 act will remain in place.

The proposed new section frames the questions around liability in a more straightforward manner, but the underlying concepts, the policy intent and the implementation remain the same. Whereas the 2018 act contains exclusions from liability, the provisions have been simplified and they now focus on establishing when someone is liable for an overpayment, rather than when they are not. I trust that the committee agrees that that is a clearer way to set out how liability applies.

Amendments 30, 31 and 32 will remove the sections of the bill that are replaced by the text in proposed new sections 63A and 63B.

Amendments 33 and 34 relate to section 69 of the 2018 act, which focuses on the liability for assistance that is given for a period after death. Sections 12(2) and 12(3) of the bill as introduced would amend section 69 of the 2018 act, renaming and modifying it to specify that, if a decision was made on liability after a person had died, their estate would become liable to repay the sums that the person would have been liable for had they not died. We reflected on that following stage 1, and we have instead made provision for that in subsections (10) and (11) of the modified section 63 that is set out in amendment 29. That will make the drafting clearer by covering all liability decisions in the same place. Amendments 33 and 34 therefore delete the changes that the bill proposes to section 69 of the 2018 act.

Amendment 33 will also allow the Scottish ministers to recover any assistance that was paid in the period after an eligible person has died, whether that was a result of a determination or some other error, such as a systems error.

The remaining amendments in the group—amendments 35 to 50—are minor technical amendments that make consequential changes to the bill to ensure that the section numbers and references to individuals or their representatives are consistent with the newly inserted provisions.

I move amendment 25.

I thank Mr Balfour for lodging his amendments and for his and other members’ continued support for carers across the country. Mr Balfour is right to state once again the important role that carers play.

However, the Government cannot support Mr Balfour’s amendments 3 and 4. The Scottish Government is transforming financial support for unpaid carers in Scotland, by recognising the value of unpaid care and providing greater stability and support. Carer support payment, which is available in 13 local authority areas and will launch nationally from November, is already extending support to more carers and providing an improved service, with further key changes planned. The committee will also be well aware that, when social security powers were devolved, one of the first actions was to make additional payments to carers.

Mr Doris is quite right to point out that the Government is already committed to extending, from eight to 12 weeks, support for carers after the loss of a cared-for person. My officials are already working to deliver that, including engaging with the Department for Work and Pensions to ensure that the necessary arrangements are made to protect carers’ wider support. To ensure that carers who are already getting carers allowance are not disadvantaged, we will make that change once the process of case transfer is complete.

Amendment 3 seeks to extend that run-on to 24 weeks. It would be best if we looked at that in the future, once we have delivered the extension to 12 weeks, to allow more detailed consideration of implications for budgets.

Mr Balfour will agree that any change to entitlement that would result in increased costs for the Scottish Government, which are not covered through the block grant adjustment, needs to be carefully considered. Indeed, many of his colleagues remind me of that responsibility in the chamber and point out that the Scottish Government already invests £1.1 billion in social security, on top of the block grant adjustment. His colleagues raise that as a concern, rather than something that the Government should be proud of. However, I am proud of it.

Further consideration and discussions with the DWP would be needed on any extension to 24 weeks. As we have discussed before in the committee, that is important, because we do not want to adversely affect any other support that carers rely on. Many carers receive extra support and other benefits, such as universal credit, because of their entitlement to the carer support payment, in the same way as carers who get carers allowance. The more carer support payment diverges from carers allowance, the greater the risk to carers’ continued eligibility for that extra support. I urge members not to pass anything into legislation that would put other payments in jeopardy, no matter how good the intent behind those amendments.

I turn to amendment 4, which seeks to amend provisions in the 2018 act so that carers assistance regulations can provide for assistance to be tapered when carers’ earnings increase. We recognise the concerns that carers and support organisations raised about the impact that earnings rules can have on carers’ ability to take on paid work.

We have made improvements to earnings processes in carer support payment, working with carers and support organisations to provide clearer information for clients, and calculating carers’ average earnings to help to provide more stable support where earnings vary. We also took feedback through our public consultation on changes that we could make in the future once case transfer for carers allowance was complete.

An earnings taper, with carer support payment being gradually reduced as earnings increased—that is, as I understand it, the aim of amendment 4—would be one approach to changing the earnings rules. The idea was considered ahead of the consultation as part of a multicriteria appraisal process undertaken with stakeholders, and it found that a taper would add significant complexity to the benefit with regard to build, operational delivery, clients’ understanding of eligibility and how the benefit would interact with wider support, such as universal credit. The fact that carer support payment affects the amounts of universal credit that carers receive and that universal credit itself has an earnings taper would add significant complexity, in addition to the fact that the divergence from carers allowance could again put at risk the extra support—the carer element—that is currently available under universal credit for those who get carer support payment.

We explored other, potentially more effective, ways of improving the earnings rules in our consultation, such as a run-on of support when carers earn over the threshold and increasing the overall threshold. We are continuing to consider the responses to the consultation, as well as further considering the potential input on carers’ wider support and affordability and sustainability in the wider Scottish budget.

Finally, I highlight that, even if a decision were taken in the future to introduce an earnings taper for carers assistance, it is already possible to do so under existing enabling powers in the 2018 act. The proposed amendment is therefore unnecessary.

For all those reasons, I urge the committee to reject amendments 3 and 4, should Mr Balfour choose to press them.

Good morning. The Scottish Government’s amendments in this group would simplify our approach to providing income-based benefits for children and young people by broadening the scope of the childhood assistance provisions in section 1 and by repealing the associated existing provisions on early years assistance in the Social Security (Scotland) Act 2018.

The primary reason for taking the new childhood assistance powers is to allow the Scottish child payment to be put on a new legislative footing. I believe that we should progress with providing for eligibility to be the same for all our five family payments while we have the opportunity that is provided by the bill.

The changes will give the Scottish ministers more flexibility in how they develop regulations to support children in low-income families in the future and will allow for longer-term improvements to the experience of clients who access the range of support that is currently offered by the five family payments.

I will turn to some specific aspects of the amendments. Amendments 19 and 17 will add additional primary eligibility criteria to the childhood assistance provisions, broadly mirroring the existing early years provisions in the Social Security (Scotland) Act 2018, with some adjustments to the criteria in relation to the definition of pregnant women and persons with a relationship to them, and of persons who are to, or have,

“become responsible for a child”

and persons with a relationship to them.

Amendment 20 widens the scope for giving assistance in relation to a specific event in a child’s life. Amendment 18 allows for ministers to create regulations that support families that were receiving childhood assistance in cases when the child to whom the claim related passed away during the course of that claim.

Amendment 15 provides for the repeal of the existing early years provisions in the 2018 act, with amendment 18 making transitional provisions for best start grants.

Amendment 7, in the name of Jeremy Balfour, seeks to impose a duty on the Scottish ministers to define through regulations what being responsible for a child means for the purpose of receiving assistance. It would also require them to provide assistance in relation to a child to the individual who was responsible for them at any point. I absolutely share Mr Balfour’s concern about making sure that we pay the money to the right person, and I am grateful for his continued interest in that issue and for our recent discussion on the topic. However, his amendment is unnecessary. The regulations under the 2018 act for our current low-income benefits for children already set out a child responsibility test and contain a competing claims process that can be used when child responsibility is disputed.

Amendment 7 is based on the assumption that there can be only one parent responsible for a child at any given time, which is often not the case. That approach could unintentionally undermine amicable shared care arrangements. Social Security Scotland has existing processes in place to resolve disputes between parents and to act promptly on any change in circumstances, and it is able to make a change in whom payments are made to if required. I have set out more information on that to Mr Balfour in recent correspondence, and I trust that he has had the opportunity to consider that.

I should also note that amendment 7, as drafted, might affect young people aged 16 and above who wish to manage their own assistance and have the capacity to do so, as is currently possible with child disability payment. The Government therefore does not support amendment 7, and I ask Mr Balfour not to move it.

I urge members to support my amendments in this group, which allow us to set the groundwork for improvements to the five family payments in the future, but to reject amendment 7.

I move amendment 15.

I thank Mr Balfour for lodging his amendments and for his and other members’ continued support for carers across the country. Mr Balfour is right to state once again the important role that carers play.

However, the Government cannot support Mr Balfour’s amendments 3 and 4. The Scottish Government is transforming financial support for unpaid carers in Scotland, by recognising the value of unpaid care and providing greater stability and support. Carer support payment, which is available in 13 local authority areas and will launch nationally from November, is already extending support to more carers and providing an improved service, with further key changes planned. The committee will also be well aware that, when social security powers were devolved, one of the first actions was to make additional payments to carers.

Mr Doris is quite right to point out that the Government is already committed to extending, from eight to 12 weeks, support for carers after the loss of a cared-for person. My officials are already working to deliver that, including by engaging with the Department for Work and Pensions to ensure that the necessary arrangements are made to protect carers’ wider support. To ensure that carers who are already getting carers allowance are not disadvantaged, we will make that change once the process of case transfer is complete.

Amendment 3 seeks to extend that run-on to 24 weeks. It would be best if we looked at that in the future, once we have delivered the extension to 12 weeks, to allow more detailed consideration of implications for budgets.

Mr Balfour will agree that any change to entitlement that would result in increased costs for the Scottish Government, which are not covered through the block grant adjustment, needs to be carefully considered. Indeed, many of his colleagues remind me of that responsibility in the chamber and point out that the Scottish Government already invests £1.1 billion in social security, on top of the block grant adjustment. His colleagues raise that as a concern, rather than something that the Government should be proud of. However, I am proud of it.

Further consideration and discussions with the DWP would be needed on any extension to 24 weeks. As we have discussed before in the committee, that is important, because we do not want to adversely affect any other support that carers rely on. Many carers receive extra support and other benefits, such as universal credit, because of their entitlement to the carer support payment, in the same way as carers who get carers allowance. The more carer support payment diverges from carers allowance, the greater the risk to carers’ continued eligibility for that extra support. I urge members not to pass anything into legislation that would put other payments in jeopardy, no matter how good the intent behind those amendments.

I turn to amendment 4, which seeks to amend provisions in the 2018 act so that carers assistance regulations can provide for assistance to be tapered when carers’ earnings increase. We recognise the concerns that carers and support organisations raised about the impact that earnings rules can have on carers’ ability to take on paid work.

We have made improvements to earnings processes in carer support payment, working with carers and support organisations to provide clearer information for clients, and calculating carers’ average earnings to help to provide more stable support where earnings vary. We also took feedback through our public consultation on changes that we could make in the future once case transfer for carers allowance was complete.

An earnings taper, with carer support payment being gradually reduced as earnings increased—that is, as I understand it, the aim of amendment 4—would be one approach to changing the earnings rules. The idea was considered ahead of the consultation as part of a multicriteria appraisal process undertaken with stakeholders, and it found that a taper would add significant complexity to the benefit with regard to build, operational delivery, clients’ understanding of eligibility and how the benefit would interact with wider support, such as universal credit. The fact that carer support payment affects the amounts of universal credit that carers receive and that universal credit itself has an earnings taper would add significant complexity, in addition to the fact that the divergence from carers allowance could again put at risk the extra support—the carer element—that is currently available under universal credit for those who get carer support payment.

We explored other, potentially more effective, ways of improving the earnings rules in our consultation, such as a run-on of support when carers earn over the threshold and increasing the overall threshold. We are continuing to consider the responses to the consultation, as well as further considering the potential input on carers’ wider support and affordability and sustainability in the wider Scottish budget.

Finally, I highlight that, even if a decision were taken in the future to introduce an earnings taper for carers assistance, it is already possible to do so under existing enabling powers in the 2018 act. The proposed amendment is therefore unnecessary.

For all those reasons, I urge the committee to reject amendments 3 and 4, should Mr Balfour choose to press them.