Seòmar agus comataidhean

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.

You took the words right out of my mouth, cabinet secretary—here is my persuasive argument. Can you imagine the Royal Bank of Scotland, the Bank of Scotland or any of the other big banks being audited in such a way? The banks are audited on an annual basis, and rightly so, but can you imagine them coming to account holders and saying, “We want to audit how you are managing your account as an individual. If you don’t give us that information, we will close down your bank account”? That is what we are doing here. We are saying that we will go beyond auditing the organisation and look at the people who benefit from social security. That does not seem to me to be what auditing is.

There should be a power for Social Security Scotland to go to a claimant and say, “Will you share that information with us?” However, if the claimant, for whatever reason, does not want to do that, I do not think that they should be penalised.

I will develop that further. Section 52 of the 2018 act allows for unscheduled review of entitlement. Therefore, Social Security Scotland can already review anybody—it has that power. What it does not have is the power to take away an award without doing a review. That is a very significant difference.

In its submission to the committee, the Law Society of Scotland says that the provisions “conflate audit and fraud”. It also says:

“It is not clear why individuals should need to be involved in auditing the system in this way, or indeed, why Ministers could not obtain the information they need through other channels.”

For once, I agree with the Law Society of Scotland—it is absolutely right. We are trying to use audit as a way of bringing about fraud claims. With due respect to the Government, I think that we have stepped over the line of treating a claimant with dignity, fairness and respect.

Beyond that—and it does not matter what terminology you use—we are now introducing sanctions to deal with people. We have been having debates about sanctions for a long time now. Marie McNair has said that benefit sanctions are

“a vehicle for penalising those who are in need of benefits”,

while Ben Macpherson, the previous social security minister, said:

“we have shown ... that people respond much better to support and encouragement than they do to threat and fear.”—[Official Report, 31 March 2022; c 32, 46.]

However, if we support the bill as it stands, we as a committee will be voting for sanctions. We will be voting to say to somebody, “If you do not give Social Security Scotland some kind of response, we will take away or hold back your benefit.” They might get it back later, but that does not help them in the immediate period.

It does not seem to me that we would be treating those people with dignity, fairness and respect, because those individuals have done nothing wrong. Their circumstances have not changed; the claim that they were entitled to is still the same; all that they are saying is, “We do not want to be involved in this audit process.” Therefore, what is proposed seems unfair to me.

I was interested to see that, in the Scottish Government’s response to our stage 1 report, we seem to move from talking about audit to talking about “fraudulent”. As the cabinet secretary said in that response,

“If there is no such power to suspend,”—

in other words, no power to sanction—

“there is no incentive for anyone who is claiming assistance fraudulently ... to participate in the process.”

That is true, but my point is that the Scottish Government already has the power to do that under section 52 of the 2018 act. However, what it wants is the power to sanction someone without reviewing their claim, and I believe that that goes too far. I am not arguing against an audit of Social Security Scotland—that is where I probably disagree with Maggie Chapman—but I am totally against auditing vulnerable individuals with regard to decisions that they have no power over.

On the presumption that I might not be successful in the next few minutes, I will support the Scottish Government’s amendment 57, which I think at least gives organisations and individuals a further bite at the cherry. However, I genuinely urge members to think about what they are voting for and whether they are going too far with regard to getting information from vulnerable individuals who have—I repeat—done nothing wrong. Their circumstances have not changed; all they have been unwilling to do is to respond to what is, in fact, an audit of an organisation, not an individual.

I have sympathy with what the cabinet secretary says, but I still have concerns about the sanctions on an individual if they do not respond. I know that you are trying to address that through amendment 57, but I want to seek a consensus. Is there any possibility, to pick up Mr Doris’s point, that, before stage 3, we could have a fuller list in the bill itself of who would not be sanctioned if they did not respond? Is there an opportunity for the Government to outline at least some categories of individuals? You might want to add to that after the consultation, but could the bill itself say that, if someone is in category X, Y or Z, they will not be sanctioned if they do not respond?

I will be brief, as always, convener.

I thank the cabinet secretary for her remarks, but I still do not agree that the information is coming forward quickly enough. There is frustration that we do not know some of the timescales that are involved in the process. I welcome the meeting that has been arranged, which the cabinet secretary mentioned a moment ago.

A number of committee members have previously been critical of the DWP’s processes. To be fair to the DWP, at least its processes were there to be scrutinised. I still do not think that Social Security Scotland is being properly scrutinised, because we simply do not have the information. KPIs are a way forward that can be flexible because they are in secondary legislation. On that basis, I will press amendment 12.

I will be pressing the amendment, convener.

The cabinet secretary and I do not disagree on this—I totally accept that online or telephone hearings are the way forward for some people, and amendment 14 in no way takes that away. I do not accept that it will have unforeseen consequences.

We have to look at the evidence of what is happening on the ground, and we have to consider that sentence in the “Scottish Tribunals Annual Report 2022-2023” about the chamber president having this particular power. I believe that, as many third-party organisations have said to me, many people want to go along to a tribunal hearing. From my purely practical experience of sitting on the tribunal, I can tell you that, when the claimant walked in, you could see them face to face, you immediately understood why they were making the claim and the decision was far more likely to go their way than if the hearing had been on a telephone.

Does Social Security Scotland not already have that power under section 52 of the 2018 act? Why do we need an additional power?

I welcome the cabinet secretary’s comments, and I look forward to that consultation taking place. I am grateful that she will include all stakeholders in it. I absolutely acknowledge that my amendment leaves out other potential groups who might be affected by the issue, but it was important to have the debate here so that Poppyscotland and other organisations are assured that the process will happen in a timely manner. I look forward to the new guidance reflecting where we are today and, I hope, protecting those who have served our country and others who have had compensation given to them.

On that basis, I seek to withdraw my amendment.

Amendment 8, by agreement, withdrawn.

Section 3—Repeal of section 52B of the 2018 Act

Amendment 105 not moved.

Section 3 agreed to.

After section 3

Amendment 28 moved—[Shirley-Anne Somerville]—and agreed to.

Sections 4 to 6 agreed to.

Section 7—New determination of entitlement after error

The next few proposed sections all relate to increasing the amount of money that the Scottish Government pays to the most vulnerable in society. As we all know, we are in a difficult financial situation, which is likely to continue for the foreseeable future. However, I do not think that that means that we stop looking after the most vulnerable in our society. As the deputy convener likes to say on numerous occasions at this committee, we all have political choices to make, and these are political choices that we must now make as a committee and, ultimately, as a Parliament.

We all recognise that carers in our society do an immense amount of work—work that goes unseen and which saves the taxpayer billions of pounds a year. The sacrifices made by those who care for loved ones, whether they be a husband or a wife, a child or another relative, are immense. Many of them have to change or give up their jobs, and many have to change their social life. Sadly, towards the end of the individual’s life, carers often see the pain that they are going through and the lack of fulfilment in their life. Many carers make that sacrifice because they love the person whom they are caring for, but that comes at a cost.

I am pleased that the Government has moved to some extent in that regard by extending the carer support payment post death. However, I think that we can go further. My amendment 3 seeks to extend the payment for six months, so that the person who has given so much can readjust to a whole new life—emotionally and physically—as well as readjust their financial situation with regard to what they want to do next. Many will have to seek training or upskill to get a job; some will have to do CVs and go for job interviews; others will simply need the time and space to grieve the loss of someone whom they have poured so much into.

I do not think it unreasonable for us as a society to acknowledge that and to extend the payment to six months; indeed, I have spoken to many carers organisations, and they say that one big change that they would look to make is for such an extension to be brought in. I appreciate that the cabinet secretary will say, rightly, that that will come at a cost, but I ask members to think of the cost to those people of what they have given the rest of us in society.

As for my amendment 4, the issue of the hard cliff edge has come up again and again. If a person simply steps over the line, they lose everything. That is true for the carer support payment and for other payments. I am not suggesting that this is an easy issue for us to deal with—I know that greater minds than mine have tried to look at it.

However, I think that, with the right wind and the right engagement with the sector, Government and lawyers, we can identify a tapering system that means that, if somebody’s financial situation changes only slightly, they get less of a payment but do not lose all of it. I think that that can be done fairly quickly through regulation. I would like the Government to commit to looking at a tapering process that would give a bit of flexibility to individuals who are caring for someone, so that they do not lose the whole benefit, just because of a small change in their circumstances.

I believe that, together, amendments 3 and 4 readdress where carers are at the moment. They will not address all the issues, but they would be a massive step forward. If we, as a Parliament, were to agree to them, it would send a very positive message to the many hundreds who care for people across Scotland.

I move amendment 3.

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) to 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.