Seòmar agus comataidhean

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.

In that case, I press my amendment.

Thank you—that is helpful. The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

I welcome the cabinet secretary’s commitment to lodge an amendment at stage 3. I look forward to seeing it and I hope that it will be as she has set out.

If I may, I will make one quick remark. Rightly, Mr Stewart and the cabinet secretary have talked about the cost—and there is a cost. However, we must also think of it as an investment in some of our most vulnerable people. I would find it very hard to imagine any Government not wanting to invest in the most vulnerable in our society by uprating assistance for inflation.

No.

I think that there is a moral duty on a Government to do that. I acknowledge that the cabinet secretary and her predecessors have done so, but I am seeking to ensure that that practice continues into the future—and I think that the Scottish Government is seeking to do that, too.

I welcome the Scottish Government’s move and I look forward to seeing the amendment that it will lodge. On that basis, I will not press amendment 6.

Amendment 6, by agreement, withdrawn.

Amendment 7 not moved.

Just for the avoidance of doubt, I remind members that I am in receipt of a higher rate of personal independence payment. I am also a former member of the tribunals service.

I accept the cabinet secretary’s point. However, we are at stage 2. If the amendment were to be agreed to today, I am sure that she could pick up a telephone or send an email to the new cabinet secretary down south to find out how they would react and, at stage 3, we could have the debate again.

Mr Doris and the cabinet secretary have picked up on the challenges of doing this through primary legislation rather than by regulations. As the deputy convener will know, however, the trouble with regulations is that you cannot vote against just one bit of them—you have to either accept them all or reject them all. Regulations might come forward from the Government in which 99 per cent is right, but 1 per cent is the key financial thing. I would not want to vote against somebody getting something except by amendment, which is why primary legislation is a better way of doing this.

I accept the cabinet secretary’s comments about budget, but that is about political choices. She often makes the point to me in the chamber that we have political choices. The money that the Scottish Government has would be much better spent on supporting carers than on some of the other projects that the Government seems to be pushing forward. For that reason, I will be moving amendment 3.

As for amendment 4, I accept what the cabinet secretary has said, and I will go away and reflect on it. For that reason, I will not be moving that amendment, but I reserve the right to see what happens at stage 3.