Chamber and committees

Convener, I should have said at the start of the meeting, as I did at the start of our previous one, that I am in receipt of personal independence payment and hope to be transferred to the adult disability payment at some point. I am also a former member of the First-tier Tribunal for Scotland.

In the distant past—about eight or nine years ago—the deputy convener and I had a pleasant day out at Victoria Quay. We were taken down there and saw a really interesting presentation on how the new social security system would work, the Scottish Government’s input to it, and how it would be an all-singing, all-dancing system. I and other members of the committee at that point had quite an interesting day out. I came away from the visit thinking that we would be able to look at the new system and say how well it was doing and how different it was from the DWP one.

Now, X years on from that point, I do not think that we have got things right yet. There is a lot of information that we would like to know from Social Security Scotland with regard to how it is doing. For example, I recently wrote to the agency and, in response, it said:

“We are currently unable to measure or report on the time taken between the receipt of all the supporting information and the decision being made in a case.”

That seems to me to be quite a fundamental issue if the committee is to scrutinise how well Social Security Scotland is doing and to see whether it is meeting its aims. That is why, through amendment 12, I seek to introduce key performance indicators for Social Security Scotland.

Not all the fault lies with Social Security Scotland—nor with the cabinet secretary, who was not, I presume, in post at that time. The Scottish Government designed the system that Social Security Scotland is using, yet that system is unable to provide basic information, so we cannot judge how well the agency is doing against certain criteria.

My amendment 12 therefore seeks to bring in KPIs for Social Security Scotland. Having listened to the cabinet secretary on many occasions, I appreciate that it might be not appropriate to do that in primary legislation. My aim is to get the Scottish Government to consult on the matter, as it does very well with this committee, stakeholders and other interested parties, and to bring in KPIs so that we can measure how Social Security Scotland is doing. That seems to me to be a reasonable thing to happen, and it would allow us to go forward with greater assurance. Clearly, some information that is not currently there will still be missing, which will always be disappointing. However, I think that we can rectify the situation to some degree.

I would use the same arguments with regard to the work of the First-tier Tribunal, which I will address later. The committee and the Parliament need to have confidence that the policy and principles that we set will happen in practice, but my fear is that that is not happening from day to day. I acknowledge that we do not necessarily want to set KPIs for the First-tier Tribunal in primary legislation, so amendment 13 aims to have the Government consider those and introduce appropriate secondary legislation.

We all want Social Security Scotland to work—not only in principle, but because it exists to serve the most vulnerable people in our society. If we cannot know whether it is doing that, we as a committee are failing. The KPIs that amendment 12 would introduce could make a massive difference.

I move amendment 12.

That information is simply not available. I have given an example of my having written to Social Security Scotland to ask for that information, but it is not producing it. We can have the chief executive in front of the committee as often as we want, but if the agency is not producing that information how can we scrutinise it?

Convener, you will pleased to hear that I think this will be my last contribution of the morning, so I just want to take this opportunity to thank the cabinet secretary and her officials for their positive engagement. We might disagree, but at least we do so nicely. I also thank officials for the time that they have given, both in one-to-one meetings and in writing to me, with regard to this matter.

Amendment 14 seeks to meet the principles that we all agree on of dignity, fairness and respect. The First-tier Tribunal is important as a place where people’s cases can be looked at with a fresh pair of eyes and different decisions made. Statistically speaking, people who go to the tribunal are more likely to succeed in their appeals. For some, going to a tribunal in person is not what they would want, and that view should be absolutely respected. Whether their preference is for an online hearing or for the tribunal to review their case on paper, that should be their choice. However, people should also be allowed to go to the First-tier Tribunal for a face-to-face hearing, if that is what they want.

Things have changed since Covid. As I have said previously, eight or nine years ago, I was a member of the DWP tribunal when it was still run by the Scottish Courts and Tribunals Service. Across the country, from Aberdeen to Stornoway and from Gala to Dumfries, tribunals would sit on a daily basis, particularly in the central belt, and cases would be heard. We have discovered through a freedom of information request that between January 2023 and January 2024 one in-person hearing was held, while over the same period 343 hearings were held over the telephone.

I am sure that all members have been spending their evenings reading the “Scottish Tribunals Annual Report 2022-2023”. It contains a really interesting sentence that is the reason for my having lodged amendment 14. It says that

“on cause shown the Chamber President can”—

and I emphasise the word “can”—

“authorise in-person hearings.”

That means that the chamber president can choose whether or not to hold an in-person tribunal hearing, but it does not mean that the individual will automatically be given an in-person hearing if he or she wants it. That is why amendment 14 is really important.

I have heard from various organisations that are involved with the First-tier Tribunal that they would want hearings to be held in person if that was what the claimant wanted, but they have been put off by the tribunals service in that regard. For that reason, I think that there should be a presumption of an in-person First-tier Tribunal hearing; however, if the claimant does not want that and instead wants a telephone or online hearing, or wants their case to be reviewed on paper, that should absolutely be their choice. I simply think that the chamber president having the power to authorise such hearings seems to me to move away from the principle of treating the individual with dignity, fairness and respect.

I move amendment 14.

Absolutely.

I am fully supportive of the Government’s amendments and will vote for them.

I think that there has been some confusion around amendment 9, from some of the feedback that I have had from third sector organisations. I am also slightly concerned that we are relying on practice notes and things that happen within Social Security Scotland, because those can change without any scrutiny by Parliament or this committee. On certain issues, we need to have things either in primary legislation or within regulations so that if changes are made by Social Security Scotland, or if a different Government comes in and changes practice, we have at least some role in scrutinising that. There has been mixed feedback on how Social Security Scotland has dealt with those issues in the past four years.

My amendment 9 seeks to make it the case that, where a person wants to have the same representative all the way through, they are able to say, at the start: “I want that individual to have the papers all the way through to the end of a First-tier Tribunal, if it goes that far.” That would safeguard the individual. For example, somebody may have early dementia or some other condition, or they might live in a very chaotic household—papers will come in and go out, and they will often not know when they have to be responded to.

I would be happy if the cabinet secretary could pick up on this point. There seems to be a presumption that a person gives a six-month notice of representation; then, after that six months, they have to go back to Social Security Scotland and ask for that individual to continue to represent them. My fear is that, if people forget at that six-month point, their representative no longer gets the papers, and the claim could go off track.

That does not stop the individual from saying at any point, “I do not want that person to represent me”, but it puts that person in charge. I think that that is the way forward, and that it gives the claimant the assurance that the representative gets all the documentation that is required from Social Security Scotland.

On amendment 126, in relation to children, I accept what the cabinet secretary said; however, again, we are being asked, as a Parliament, to rely on Social Security Scotland acting in a certain way.

I have read the correspondence, for which I am grateful to the cabinet secretary, but I am still not absolutely sure of the legal basis for Social Security Scotland being able to do all that. Who gives it the power to make those notices and to make all those things? Where is the legislation allowing it to do that? I would be interested to hear the cabinet secretary deal with that issue in her closing remarks.

At the moment, I am still minded to move my two amendments, but I look forward to hearing what the cabinet secretary has to say in her closing remarks.

It would be fair to say that, of all the areas that we looked at during stage 1, this was probably the most controversial and perhaps the hardest for us to come to a view on. In some ways, it is unfortunate that Mr Mason is no longer with us, as he was a bit of a Rottweiler on this particular issue.

With your permission, convener, I will take a wee bit of time to explain where I am coming from. Let me be absolutely clear: I believe in audit. That is why I think, at this moment, that I will not support Maggie Chapman’s amendment 58, which would get rid of the audit completely, although I look forward to her trying to persuade me otherwise.

I believe in audit, but the issue is who is being audited. The point of having an audit, as set out in the original purpose of the bill, was to audit Social Security Scotland. I feel that we have taken it a step further and are saying that we want to audit people who have been given an entitlement to an award even though nothing has changed. Nothing in their circumstances has changed, but we are now going to take away that entitlement.

The Scottish Government has moved quite cleverly, through a back door, from saying that it wants to audit Social Security Scotland to saying that the audit is actually about fraud and has nothing to do with how Social Security Scotland is doing.

You will be glad to hear that I will not speak for long, convener. We support the overwhelming majority of the amendments but cannot support amendments 73, 74 and 76.

Again, it comes down to a different view in relation to legislation. Although I appreciate what the cabinet secretary has said, in that the provisions are already in the tribunal rules and regulations, I come back to the point that those rules are not scrutinised by Parliament, so if they happen to change one day, a very different system could be working and Parliament—although it could clearly call in the chamber president—would have no power to keep the provisions. I believe that the provisions should stay in primary legislation and that the tribunal rules should flow from them, rather than the other way round. I cannot support those three amendments, but I absolutely agree with all the others.

I say, with due respect to the cabinet secretary, that we do not know because we are not having any in-person tribunal hearings here in Scotland. We debated this point previously—when, as happened under the DWP, a person goes to a tribunal and their case is looked at afresh, the tribunal can often come to a different view.

My policy intent is that there should be a face-to-face hearing unless the claimant does not want that to happen. That puts choice—what the claimant wants—right at the heart of things. That is why I lodged amendment 14. The evidence on paper and in practice shows that the tribunals service is not doing that. That is why we need the amendment. I do not think that it would have any unforeseen consequences. It would bring back dignity, fairness and respect, which, this morning, the committee seems to have decided that it no longer believes in.

Are you comfortable with someone who has been awarded a benefit and whose circumstances have not changed being sanctioned simply because they have not returned a piece of paper to Social Security Scotland? Do you think that that is treating people with fairness, dignity and respect?