Chamber and committees

The cabinet secretary has raised quite a number of issues. At a high philosophical level, the issue—which I think that the cabinet secretary and others will come back to time and again—is about the divergence were we to do things differently in Scotland to the rest of the United Kingdom, and how the DWP would respond to it. However, at some point, we will have to see how that challenge works in practice.

I see no point in having a devolved social security system that simply mirrors what happens in the DWP all the way through—that seems to me an administrative cost for Scotland to be carrying. I accept that, because of Social Security Scotland, we can introduce new benefits, which we will come to in a moment. However, if we are not going to, at some point, change our approach from what happens in the DWP, why do we have Social Security Scotland here, as it is set up at the moment? At some point, this or a future Government will have to see how the DWP reacts to it.

I am pressing it hard, convener.

These are technical but important amendments in regard to how cases are determined. Proposed new sections 61A(2) and 61A(4) of the Social Security (Scotland) Act 2018, as drafted, will mean that, if the First-tier Tribunal decides that further information is required before an application or a redetermination request can be deemed to have been made correctly, Social Security Scotland must first try to obtain that information, and, if the information is not obtained, it must make a decision to reject the application or redetermination request and notify the individual of their right to lodge a process appeal to the First-tier Tribunal again. My amendments would mean that, if the First-tier Tribunal decided that further information was required before the application or redetermination request could be deemed to have been made correctly, Social Security Scotland may seek that information and, whether or not the information is obtained, it must make a decision on entitlement based on the information that it has.

I will give an example. An individual claimed adult disability payment and submitted parts 1 and 2 of the form, but Social Security Scotland could not verify the identification. The First-tier Tribunal decided that more information was required before his ID could be verified. The individual was unable to provide the information that was required, so Social Security Scotland rejected his claim again and advised him of his right to make a process appeal again. The amendments would introduce a right of appeal to the Upper Tribunal for Scotland in process appeals, which would allow the development of case law in this area. Case law develops precedents about how legislation should be interpreted and applied. Developing case law on process appeals could contribute to the continuous improvement of the social security system, which is one of the principles that is set out in the 2018 act.

Section 8 of the bill provides further clarity for the First-tier Tribunal on how to respond to process appeals, which suggests that the current legislation is not clear. Further clarity might be required, which would not become evident until more process appeals were requested. The Upper Tribunal could consider issues of ambiguity and develop legally binding case law, preventing the need for further amendment to the primary legislation before this can be addressed.

I move amendment 116.

I am delighted that we have had nearly half an hour of consensus, although that might not continue.

I welcome what the Government has proposed, but it leaves a bit of concern about third-party representation. It is often very hard for people to find somebody who will represent them, and much representation is done on a voluntary basis. I am still concerned that the provisions will put people off giving assistance. When CPAG provided evidence to the committee, it said:

“We would not want to discourage people from being representatives”.

I appreciate that the Government is proposing to amend the bill, but I do not think that it has gone far enough.

Glasgow City Council and CPAG pointed out that it might be difficult in practice to disentangle how much liability rests with the individual and how much with the representative. Although there has been movement in that regard, the issue still arises. When will the representative get the benefit and when will the person who is making the claim get it? I am unable to support amendment 29. I ask the Government to think about the matter again and provide greater protection to third-party representatives, otherwise I fear that we will see people who volunteer not being willing to give their time.

For that reason, although amendment 30 is not perfect, we will vote for it in order to allow the Government to reflect again on the issues. I have some concerns about amendment 33 on the liability of a person’s estate.

Perhaps it is my lack of understanding, but I am interested to know for how long a period a claim could be made against someone’s estate. We could end up with families who want to distribute assets to other family members being unable to do so because the assets are held up in some kind of claim from Social Security Scotland. If we are going to include that in the bill, will the Government reflect on having some kind of timescale for it? What protection would be given to residue benefits?

Will the cabinet secretary also clarify that representatives will have a right to review, as individuals have? Amendment 39 removes that right. I think that that is covered by amendment 29, but it would be good to get that on the record.

We all have the same intention, which is that we want people to be represented in a way that we feel would be best for them. There is often representation by a third party who, in practice, is often a volunteer. I am concerned that, as the bill is drafted, people will be put off doing that. I think that there is an opportunity for us to reflect and see whether we can give greater protection to third parties.

With due respect to the cabinet secretary, I disagree with her reasoning. I accept that the First-tier Tribunal can seek guidance in that regard, but that guidance is not binding. It would be helpful if we in Scotland could build up case law that would give certainty to the First-tier Tribunal in making decisions.

I also come to a different view on amendments 118 to 125. I press amendment 116.

Good morning, cabinet secretary and colleagues. I confirm that we will support all the amendments in the name of the cabinet secretary in this group.

I thank the cabinet secretary for her engagement on my amendment 7 and for her helpful letter of 16 September. She has said that we all wish to make sure that the money follows the child and that those who are responsible for the child get the money. I welcome the information in the letter, but that information might not be broadly understood by the wider third sector. It would be helpful if the Government and Social Security Scotland could make that information better known so that parents and third sector organisations that advise parents are aware of it. The feedback that I have had from organisations is that they are not aware of it.

My understanding is that this is guidance rather than regulation, so perhaps the cabinet secretary could also deal with that point when closing the debate on this group. My only concern is that guidance can be changed by Social Security Scotland or the Scottish Government without the Parliament knowing that that is happening. We are trying to proof the bill not just for now but for future years and generations, so I wonder whether the committee and the Parliament could be kept up to date on any changes in that regard.

In the light of what the cabinet secretary has said, I will not move amendment 7.

This is a fairly technical group of amendments, and I am grateful to CPAG and Citizens Advice Scotland for the discussions about the issues. Currently, Social Security Scotland does not have the power to make a new determination while waiting for an appeal to be heard. For example, if a client is waiting for a Scottish child payment appeal but the Social Security Scotland appeals officer has conceded that the decision is incorrect and should have been changed at redetermination, Social Security Scotland does not have the power to make a new determination and stop the appeal. Instead, it can only invite the tribunal to award the Scottish child payment.

That causes unnecessary stress relating to the appeal for the individual and unnecessary administration for Social Security Scotland and the tribunals service. That happens more frequently than we might expect. As I said in my declaration of interests, I previously sat on tribunals. Fairly frequently, a representative of the DWP would come along and say, “I’ve looked at the papers afresh and disagree with the original decision,” and would then ask the tribunal to make the decision that the claimant had wanted in the first place. Obviously, that wastes time, energy and money, and, most important, causes stress for the claimant.

Section 7 introduces a duty for Social Security Scotland to make a new determination but only under three categories: where the First-tier Tribunal for Scotland has not yet decided the appeal; where it has been identified that the original determination is less generous than it should have been due to an error; and where the individual has consented to a new determination being made. I welcome those provisions, as they will allow individuals to access their full entitlement without having to wait for an appeal and will reduce unnecessary stress and administration. However, the bill would benefit from some modification, and my amendments seek to do that.

Proposed new section 49A(1)(b) of the Social Security (Scotland) Act 2018 specifies that there has to have been an “error” in the original determination. The requirement for an error to be identified requires the decision maker to look for something that is legally wrong with the previous determination, whereas there could simply be a different view of the same facts. There are already examples of that in case law. For example, in NB v Social Security Scotland, the same points were awarded at the determination and redetermination stages, and those points were insufficient to award adult disability payment. Even though there did not appear to be any new evidence available to Social Security Scotland, its written submission to the tribunal departed from the previous two decisions, recommending that additional points be awarded that were sufficient for ADP to be awarded at the enhanced rate. That submission did not identify an error in law with the previous decision; it simply identified a different interpretation of the evidence that had been presented.

The policy intent is to allow decision makers to make a more favourable determination. I suggest that the requirement to identify an error inserts an unnecessary and additional test that could be applied in quite a restrictive way, despite the intention that the definition of “error” is quite broad. To remove that would be helpful.

I move amendment 106.

Perhaps the cabinet secretary has intervened slightly too early. I did not talk about culture or process; I talked about eligibility, and the eligibility rules, except for those on terminal illness, are identical in the two systems. It is important to get that on the record.

Can I have a point of order before I close?

When I lodged my amendments, I confess that I did not expect great success with many of them, but I expected cross-party support for this amendment because the Scottish Government has been uprating assistance for inflation since it has had powers over the benefits that are run here in Scotland. It has uprated benefits for inflation appropriately.

The reason for amendment 6 is to future proof the bill for future Governments. There would be mass outcry from this Parliament if the UK Government did not uprate for inflation benefits that it has control of every year. The disability community and many others in society would be outraged, so the same thing should be done in Scotland. The benefits that are run in Scotland should go up with inflation—that seems a fair and appropriate thing to do.

I appreciate that that comes with a cost, but if assistance is not uprated for inflation, surely that cost will be met by the disabled and the most vulnerable in our society. When I lodged the amendment, I felt that it was more of a technical amendment, because it allows the Scottish Government to do something that it has done previously and which I hope it will do again in the next 14 to 15 months. The amendment future proofs the uprating by future Governments that might have a different view.

The amendment is reasonable and proportionate, and I hope that the committee will support it.

I move amendment 6.