Chamber and committees

Amendments 24 and 28 amend the 2018 act in order to allow late applications for social security assistance. Stakeholders, including Scottish Action for Mental Health, One Parent Families Scotland and Stirling Council, called for that change, while noting that flexibility is already allowed for some benefits. Our public consultation and our work with our client and research panels showed strong support for late application in exceptional circumstances.

Amendments 24 and 28 will ensure a fairer system that will allow more people to access benefits, even if they sometimes miss deadlines. The committee might remember that, when I appeared before you at stage 1, I said that

“We absolutely agree that social security should be as accessible and accommodating as possible”

and that the Government considers it

“worth while, even if it helps only a handful of cases. After all, that handful of cases will involve people who are, potentially, exceptionally vulnerable and are in the most difficult of circumstances.”—[Official Report, Social Justice and Social Security Committee, 18 April 2024; c 7.]

The bill repeals section 52B of the 2018 act, which allowed for the relaxation of deadlines where Covid was the reason for a late application for assistance.

The Government considered whether to make a global provision in the bill, similar to section 52B, as Paul O’Kane has proposed in amendment 105, which would replace reference to reasons relating to Covid with a more general good reasons or exceptional circumstances test.

Section 52B, which was inserted into the 2018 act by the emergency bill that was delivered at the height of the global pandemic, takes an overarching approach to accepting late applications for assistance. In those unprecedented circumstances, where there were legal restrictions in place on everyday life, the provision was a suitable temporary solution to ensure that people were not penalised for missing application deadlines.

Thankfully, time has moved on and those restrictions have been lifted. The Scottish Government delivers 14 forms of assistance, all of which have different eligibility criteria and, crucially, different application deadlines.

Our view is that the approach in amendments 24 and 28 is, therefore, the best one. The drafting is framed broadly to allow the regulations for each kind of assistance to make provision about the circumstances in which a late application is allowed, which gives the amendments three distinct advantages over the approach proposed in amendment 105.

First, I emphasise that it creates a very wide power to make provision in regulations about the entire circumstances for late applications generally. It does not limit the provision to a single principle, such as allowing for good reasons or exceptional circumstances for late applications, as amendment 105 would do. Instead, our approach would allow a tailored and potentially different provision to be made for each kind of assistance, in response to the agency’s practical experience on the ground of delivering that assistance.

Secondly, as well as being more flexible, that way of doing it has the advantage that it should result in a more beneficial, responsive approach for individuals.

Thirdly, our approach will also ensure that all rules relating to a form of assistance will be in the same place.

A cross-cutting approach across the full range of payments would work less effectively, as it would require readers of the legislation to effectively superimpose the provision on top of various sets of rules that are contained in a number of different sets of regulations.

The application processes and deadlines for each form of assistance are set out in regulations, and it is appropriate that any relaxation of those deadlines be set out in those regulations, too, rather than in the bill. For those reasons, I ask Paul O’Kane not to move amendment 105.

I move amendment 24.

I do not think that the commission actually meant that we were going to take that money away entirely. I do not want to speak for the commission, but when I read the report, I took from it that, if we are looking at means testing, the commission may wish us to use that money in another way to provide support for other pensioners; it is not for the money to be whipped away by the UK Government so that it is not available for anything at all.

The commission raised a point around targeting, but I think that that was for better use of the entire pot, not for most of the pot to be completely disappeared and not available to anyone.

As has been mentioned, Mr Balfour’s amendments do not include disabled people who might receive other disability benefits. Even if his intent was to assist, therefore, he has missed some individuals out. I will come back to that point when we come to cost.

Before winter heating assistance was introduced in 2023, the Scottish Government listened to our experience panels and carried out public consultation. We decided to provide a stable £50 payment, which will be increased to £58.75 this winter, to replace the previous complex and weather-dependent system.

Making further changes to eligibility at this time is not the correct approach, because that would present financial, legal and operational challenges, including, but not limited to, the negotiation of a new set of data-sharing agreements with the DWP. Depending on a number of factors, Mr Balfour’s proposals are also likely to add around £6 million to the money spent on the winter heating payment for 2025-26. If others were to be included—I have already mentioned that there are other people on disability payments that this payment misses—that cost would increase. That is additional money that is not covered by the Scottish block grant and would have to be found from somewhere else.

However, I have already committed to continuing to review eligibility, as we continue to deliver this important payment, and that review should be informed by analysis and an impact assessment that capture a wider group of people than the groups that Mr Balfour’s amendments identify.

For those reasons, the Government does not support amendment 5, and I ask Mr Balfour not to press it. I have no doubt that we will have further discussions on the UK Government’s decision to take away the universality of the winter fuel payment. We will come back to what happens to support people who are living in fuel poverty. However, with the greatest respect, Mr Balfour, all that must be done in the financial context in which we live. I point to comments that Liz Smith made in the chamber. She said:

“The Scottish Fiscal Commission has made it abundantly clear that much of the pressure that is faced by the country’s finances is down to the Scottish Government’s own decisions. For example ... the extent of the gap between the spending on devolved social security and the associated block grant adjustment”.—[Official Report, 3 September 2024; c32.]

The decision by the Scottish Government to invest more than the block grant adjustment is a political choice, but, with the greatest respect to all members, the ability to come forward with amendments to place additional pressures on the block grant adjustment, with regard to not only benefits expenditure but the costs of implementation, is something that I strongly suggest needs to be discussed in the round, not in relation to a stage 2 amendment.

I appreciate that the convener might wish to move things on but, on a point of clarity, of the £1.1 billion that we invest in addition to the block grant adjustment, £500 million is spent on the Scottish child payment. It is true that some of it is spent on additional payments, but additional money also goes into adult disability payment because of the way in which we are running the system.

I am afraid that Mr Balfour is not correct in saying that we have the same system, either in terms of culture or in terms of delivery. Quite frankly, Mr Balfour, we would not be spending £1.1 billion more if I was just doing a cut and paste of the DWP system.

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.

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, I note that 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.

Amendment 5, from Jeremy Balfour, is focused on expanding eligibility to provide winter heating assistance via the winter heating payment to people who are on the higher rates of the pension age disability payment and attendance allowance.

From the outset, I say that the way to protect people of pensionable age is for the UK Government to reverse the decision to means test the winter fuel payment, and to reinstate the payment for all pensioners. To pick up on one aspect of what Mr O’Kane said, the Scottish Government does not agree to the change—we are reluctantly being forced into a position, given the aforementioned £160 million cut from the UK Government.

We are doing so, therefore, very much against our wishes on the issue. It is not too late for the UK Government to reconsider its position on the matter, and we would all be in a better place for it.

Mr Balfour is quite right to say that third party representation is exceptionally important for people and I understand his position. There is no disagreement between us on the policy intent. I thank him for bringing the issue to the committee and to my attention. I recognise that it is still a concern, and I am more than happy to continue discussions with him and with stakeholders directly in order to see whether there is more that can be done to reassure them between stages 2 and 3 of the bill, because we do not want to do anything that puts people off, as volunteers are an exceptionally important part of the process. I am not entirely sure that an amendment is required at this stage, so Mr Balfour will forgive me if I do not put that reassurance to him today.

My understanding is that any claim on the estate would be part of the usual executory practice. The deadlines and timeframes for that are set out in regulations that are outwith social security, but there would be no delay because of social security. There would also be a right to review. I hope that I have been able to provide some reassurance on those points. As I said in my opening remarks, many of the amendments are technical in nature. Mr Balfour has raised a particular point on third-party representation, which I am happy to further consider with him and others, should they so wish.

Amendment 25 agreed to.

Amendment 26 moved—[Shirley-Anne Somerville]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Care experience assistance

I see where the member is coming from. However, the way to test out what the DWP will do is not by putting provisions in primary legislation, which is exceptionally difficult to unpick. We do not want to find out what the DWP will do if what it does will adversely affect clients, because undoing primary legislation is exceptionally challenging. Although I understand the member’s point, I strongly urge him not to use primary legislation to attempt to force the DWP’s hand or to find out what it thinks.

The Scottish Government does not support amendment 8, which seeks to make local authorities disregard military compensation as income when deciding whether to provide a discretionary housing payment. That is not because we think that military compensation should be counted as income in those circumstances, but because there are potential issues with Mr Balfour’s amendment and, in any case, we do not consider the bill to be an appropriate place for the policy.

Although the Government is keen to encourage consistency across different parts of the country, it is important to retain a level of discretion that allows for applications to be assessed on a case-by-case basis. Discretion is baked into that design. That said, my officials will soon be undertaking a review. Given that, in the debates on other groups of amendments, Mr Balfour has expressed concerns about timeframes, I reassure him that that review is due next month, so there is not too long to wait. Officials will undertake a review of the statutory discretionary housing payment guidance, which we consider to be a more appropriate place for the policy than primary legislation.

We have concerns that the amendment would leave out recipients of other forms of compensation, which we may, when we undertake the review, also wish to include in addition to military compensation. We are more than happy to work broadly with all stakeholders, including, of course, Poppyscotland and Mr Balfour directly, to ensure that the intent behind the amendment is integral to the work that is undertaken as part of that review.

I recommend that the committee does not support the amendment if Mr Balfour presses it, not because it is wrong in principle but because the policy does not belong in primary legislation and because we want to ensure that any approach does not leave out other people who may be awarded other types of compensation.

I will do so very briefly. Again, I thank Jeremy Balfour for our discussions on those issues, because an important point has been raised. As he pointed out, his conversations with stakeholders have suggested that the third sector does not understand that area. It is the responsibility of the agency, not the third sector, to make sure that we do something about that. I confirm to Mr Balfour that I will speak to the agency and ask it to carry out further work with the third sector and engage with wider stakeholders to ensure that the guidance is understood.

Mr Balfour asked for further reassurances about changes in guidance. Again, that is an important point, not just on this issue but on others. If the agency makes significant changes to guidance, there should be a process to alert stakeholders and the committee to that. I will take his point away and reflect with the agency’s senior team on how best to do that. I give my assurances that we will work to provide reassurance on the future proofing of that process.

Amendment 15 agreed to.

Amendments 16 to 23 moved—[Shirley-Anne Somerville]—and agreed to.