Hansard

As convener of the Social Security Committee, I am pleased to speak in this afternoon’s debate on the Social Security Administration and Tribunal Membership (Scotland) Bill. I thank the cabinet secretary for her written response to the committee’s stage 1 report, and I am grateful to my fellow committee members for their constructive approach during the shortened scrutiny process, particularly given that the bill was introduced at the end of March as the nation was entering lockdown during the early days of Covid-19.

Likewise, I send my gratitude to our key stakeholders who were still able to respond to the committee’s call for views during such difficult times.

As we have heard, the bill will extend the fraud provisions in the Social Security (Scotland) Act 2018 to top-up benefits. The Scottish child payment will be a new top-up benefit given to those who are in receipt of universal credit. It will be paid for by the Scottish Government and delivered by Social Security Scotland. It will mean that eligible households receive £10 per week per child, and it is estimated that it will deliver £180 million to the families of 410,000 children each year once fully rolled out. I note that that estimate was made before the significant increase in the number of universal credit claims, which is something that the committee will, no doubt, monitor when it is conducting future budget scrutiny.

For the sums of public money that are involved, I am confident that the Parliament will agree that it is important that the bill ensures that appropriate forward protections are in place before the Scottish child payment commences. The committee is content with that, and none of our respondents raised any objections.

I note that the first payments are now anticipated for early 2021, as opposed to Christmas 2020, because of the impact of Covid-19. If there is any prospect of delivering payments sooner than early 2021, the committee would very much welcome that.

In line with all other benefits, a claimant must report any change of circumstances that could affect their claim. A claimant might be confused about whether to notify the Department for Work and Pensions or Social Security Scotland about their changing circumstances. The committee would therefore be grateful for clarification that it is sufficient to notify Social Security Scotland.

The bill contains changes to the system of appointees to collect social security benefits on behalf of a child or any adult who consents to that. Most children will already have someone with the right to collect any benefits on their behalf and that is usually, but not always, a parent. However, some children have no one with formal parental rights. The bill puts in place foundations for the system of appointees.

For adults, there are already provisions in the 2018 act for appointees where an adult lacks capacity. The bill, however, introduces the ability for an adult with capacity to consent to having an appointee for whatever reason. That is a fundamentally new provision, which has been described as “novel” by the Child Poverty Action Group.

CPAG and the Law Society of Scotland told the committee that the provisions lacked clarity, and pointed to an absence of any provision for challenging decisions on appointees or for resolving disputes. There is nothing in the bill about how appointments will be made or about how to ensure that consent obtained from an adult is explicit, informed and freely given. The Law Society of Scotland and the Equality and Human Rights Commission are concerned that the provisions, as they stand, do not comply with human rights requirements. That is something to reflect on.

The bill’s policy memorandum explains that being able to have someone else make a claim and receive benefits could be useful for claimants who have a diagnosis of terminal illness. However, some stakeholders were concerned that putting an appointee in place could lead to delays in receiving benefits or force a discussion about a claimant’s situation and risk abuse without a process to establish free consent from an individual. In her evidence to the committee, the cabinet secretary acknowledged some of those concerns and sought to reassure and confirm that the operational detail of the appointee system would be brought forward in guidance after consultation with stakeholders.

The committee agrees that operational detail sits best in guidance. However, we want the bill to set out the general safeguarding principles that will underpin that guidance, perhaps providing for mechanisms to challenge appointee decisions, to ensure that periodic reviews are undertaken and to resolve disputes. As the cabinet secretary said, we also recommend that that guidance should be statutory. We welcome the fact that the Scottish Government is open to those suggestions and will give them consideration.

Linked to the provision of appointees is the proposal to allow information about a person’s health to be withheld where disclosure

“would be likely to cause serious harm to the physical or mental health of the recipient.”

The policy memorandum discusses that provision in the context of providing appointees for people who are terminally ill, and Macmillan Cancer Support’s submission refers to

“some cases early on in Universal Credit rollout of people finding out they may have had less than 6 months to live through their UC journal”.

It is clear that we would not want that to happen with Social Security Scotland. However, the bill’s provisions are not limited to cases of terminal illness. Health information should be withheld in any circumstance where disclosing it would cause serious harm to a person’s physical or mental health. The Scottish Association for Mental Health would like to see a definition in the bill of

“serious harm to physical or mental health.”

The committee understands the rationale for withholding information from a claimant in some cases where there has been a diagnosis of terminal illness. However, we will be interested to hear about the different circumstances in which information might be withheld, what the definition of serious harm to physical or mental health would be and how it will be applied consistently across the country.

I will briefly note some other provisions in the bill that the committee broadly welcomes. It will allow health professionals other than doctors to verify that a person is terminally ill for the purpose of fast-tracking their claim for disability payments. The professionals to be included will be set out in regulations and must include registered nurses. That was strongly supported. Some organisations, including Parkinson’s UK, Marie Curie and MND Scotland, supported extending that further, potentially to some allied health professionals.

The committee agrees with the cabinet secretary that the terminology that we commit to in primary legislation must retain sufficient flexibility to respond to any future changes in the health professions. However, there are still discussions to be had on the detail that will be brought forward in draft regulations, and the committee looks forward to being involved in those discussions in due course.

Finally, the bill will allow the temporary appointment of judges and former judges from other jurisdictions to the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. The committee was content with those provisions, but we asked the cabinet secretary whether bringing judicial office-holders over from the reserved system would be a temporary measure. We have received those assurances today. After all, the Scottish social security system is being built on very different principles, underpinned by the charter. The creation of a devolved social security system presents an opportunity to do things differently.

Notwithstanding the committee’s strong views on appointees and safeguarding measures, I conclude by saying on behalf of the committee that we are content to support the general principles of the bill and look forward to engaging positively with the Scottish Government at stage 2.