The Social Security Committee of the Scottish Parliament has asked for views about the Bill that is about to be considered. Submissions have to be made by 23rd August: details can be found here.
My submission is here. Submissions are limited to four pages, which means I’ve had to be ruthlessly selective: I’ve said nothing, for example, about Carer’s Allowance, winter heating allowance or the awful mess that’s being threatened about funeral assistance. What I have covered is this:
- The reference in the principles to “efficiency” should refer instead to “cost- effectiveness” – the terms are not equivalent. It may be efficient, for example, to limit the number of home visits; to put the onus of clarification on claimants rather than paid officials; or to reduce services to claimants who are particularly expensive or difficult to deal with, a process which has been a major concern in employment programmes. This is not how the Scottish social security system should be trying to operate.
- The two stage-process of review and denial of direct access to appeal, based on Mandatory Reconsideration, is undesirable and arguably unlawful.
- The provision for recovery of overpayments, regardless of the reason for overpayment, whether the claimant could have known there was an overpayment, or whether the claimant could have expected to make provision to repay, is oppressive.
- Much has been left to subsequent regulations. In a framework bill, it should be considered how those regulations will be scrutinised and reviewed in future.
- There is insufficient protection for the rights of claimants in the event that the Agency mistakes the law.
- Short-term assistance should be more generally available than envisaged, and should be extended to cover problems with reserved benefits.
Additional note, 10th August. An article in Third Force News has covered one of the points in this submission in somewhat heated style. It’s suggested that I have ‘slammed’ the system and ‘hit back’ at the minister Jeanne Freeman. I don’t for a moment question the Scottish Government’s good faith or our shared intention to get the new system to work in the best way; we are trying to achieve the same objectives. The point of my submission is to draw attention to a series of technical issues that might otherwise be overlooked. More specifically, I do think that the Bill has on occasion accepted that the current practice of the DWP can be taking as the starting point for a new law – mandatory reconsideration is one example, the management of overpayments is another. If the points I have made are taken into account, it will be a better Bill.
For diehards only: I gave a talk last week to a meeting of Common Weal and the Scottish Unemployed Workers’ Network, in Dundee. It was filmed, and the film has been put up on Youtube. The stuff I was covering will have a short shelf life. It’s conceivable that you may have something more exciting to do with your day.
Further note, 25th July. In the course of this talk, I refer to the Irish problem – that Northern Ireland, despite having full devolution of powers relating to social security for the best part of a century, was still being subject to direction from the Treasury and the DWP. It’s just been reported that the UK government proposes to introduce the two-child limit in Universal Credit to Northern Ireland, along with the ‘rape clause’. The principle at work seems to be that if there is no operative government in Northern Ireland, the UK government is free to do as it thinks fit. The government really doesn’t understand devolution at all, and this is another illustration.
The Scottish Government has published the new Social Security (Scotland) Bill, intended to lay the foundations for the delivery of a range of new benefits. The benefits specifically mentioned in the Bill include
- Carer’s assistance
- Cold-spell heating assistance
- Winter heating assistance
- Disability assistance
- Early years assistance
- Employment-injury assistance
- Funeral expense assistance
- Short Term assistance
as well as the specific top up for carers, and the addition of Discretionary Housing Payments.
Most of these clauses are a shell: they are creating powers to introduce specific benefits rather than specifying how the benefits will operate. We already know in relation to one category, Early Years assistance, that the name of one planned benefit in the general category (“Best Start” Grants) will be different. That leaves me some hope that they will also sub-divide “Disability assistance”, because mobility needs to be dealt with differently.
Probably more important at this stage are other aspects of the framework. Three points are worth noting. First, although there is an assumption that people will have to apply for benefits, there is provision to make regulations to allow claims to be registered without a claim. Claiming is normal in the UK benefit system, but things don’t have to be done that way – it’s perfectly possible to issue certain benefits without an application (a baby box is an example, and some grants for serious disability could be made via hospitals in the same way. ) It may be possible to develop systems that deal with claimants in a new way. (I have altered this part of the entry from my first posting on this; I’m grateful to the parliamentary counsel who corrected me.)
Second, reflecting some of the worst excesses of the system in recent years, there is a harsh rule covering overpayments: individual recipients are liable for the mistakes made by officials (s.36), regardless of whether or not they could have been expected to know that a mistake had been made.
Third, and most positively, all the benefits being introduced will be open to appeal to the First-Tier tribunal.
Angela Constance, the Cabinet Secretary for Communities, Social Security and Equalities, made a statement yesterday about the first changes to benefits reflecting the shift in powers in the Scotland Act. The new schemes for maternity (the “Best Start” scheme) and for funeral payments will come on line in 2019; although the application process will be “simplified”, they will continue to be one-off, means-tested payments.
Carers Allowance will be the first new benefit to come on line, starting in Summer 2018. The purpose of the benefit is to bring up the rate of Carers Allowance (currently £62.70 pw) to equal the rate of Jobseekers’ Allowance (£73.10 pw for those over 25). Rather than taking over Carers Allowance, the Scottish Government has opted to pay a supplement to the DWP-administered benefit. It will be done by making two payments a year, and while the payment will be made by the new Scottish Social Security Agency, it depends on information drawn from the systems and processes of the DWP.
Transferring responsibility from the DWP to the new agency would have been complex task; that has been avoided. Paying a supplement weekly or monthly would involve constantly passing information back and forth; that has been avoided, too. However, the decision will have some substantive implications. Currently Carers Allowance is not actually paid to many people who are nominally entitled; that will still be true. Claiming Carers Allowance may have negative effects on a disabled person’s entitlement to the severe disability premium; that will still be true. There had been talk of extending the benefit to younger people or those in full time education; it looks like that is not going to happen. So, for the while at least, the decision is going to lock the basis of payment a little more firmly to the status quo.
The SNP have published their manifesto today. They don’t pretend that they’re going to be the next government, but they do represent themselves as an active opposition – more, they suggest with some justice, than might be said for some other parties in Parliament. The principles are clear and strong: they’re opposed to austerity, they want to take action on poverty and inequality, they want to safeguard Britain’s position in the single market and they want to support public services. They’re unusual in treating social security as a major issue – sanctions, the rape clause, pensions, the bedroom tax and the benefits freeze. And, despite the hollow accusations from opposing parties in Scotland about the SNP’s supposed ‘obsession’, there’s nothing here about independence.
The main point of criticism is a matter of style rather than substance: there’s nothing here that couldn’t have been said within three days of the election announcement. Waiting so long to put out the manifesto tends to imply that it wasn’t seen as much of a priority, and that is a misjudgment. People need something positive to vote for, and this manifesto has something to offer.
The Scottish Government has published an Outline Business Case for its new Social Security Agency. They are opting for
a central agency with enhanced phone and online support, which incorporates face-to-face pre-claims and support services locally in existing public sector locations and with assessments undertaken in a manner that is appropriate for policy choices that will be made as the final business case is progressed.
This is not a great surprise, because the Scottish Government has had a long-established preference for working through centralised agencies, and the case for doing this in a rights-based social security system is stronger than it is in fields which depend more heavily on professional judgment or local adaptation. The Business Case says something about the kind of system they want Scottish social security to be, but the document is still vague about many of the specifics: who the agency will be run by, what the new benefits will be, or how the rules will be decided.
In several pieces and presentations last year I pointed to the implications of the ‘no detriment’ principle agreed by the Smith Commission, which means that the Scottish Government will bear the costs of changing policies that otherwise would be suffered by the UK government. In January I gave an example of this: HMRC has charged the Scottish Government for the cost of not doing anything about stamp duty. Now I read this, in a report published by Audit Scotland today:
56. DWP has adjusted its systems and guidance to accommodate the introduction of the SRIT (Scottish Rate of Income Tax). It estimates this will cost £1.7 million. DWP charged the Scottish Government £870,000 for this work in 2015/16, and expects further costs in 2016/17.
Yes: that’s a bill for changing its guidance. Presumably based on average cost rather than marginal cost, because there’s no marginal cost in adding detail to routine updates of guidance. The principle is important, because when it comes to big changes – such as introducing new disability benefits – the DWP is going to follow through with billing for changes throughout the system, and the costs are likely to be prohibitive. How would the British government respond if they get a bundle of equivalent bills from the EU – the cost of removing references to 28 countries from leaflets, or changing address books? They really need to start rethinking their approach to transferring responsibilities.
Theresa May has described the request for a referendum on Scotland before a final decision about Brexit as a ‘game’. There’s rather more to it than that. If Scotland votes for independence before the exit agreement is concluded it will materially affect the terms on which Scotland could become a member of the European Union. It would make it possible for Scotland’s status to be negotiated as part of the exit agreement; the precedent is the division of Denmark from Greenland, where part of a country left and part continued within the EU. That would also mean, under the terms of Article 50, that Scotland’s status was subject to majority voting rather than unanimous agreement within the Council. (We’ve been hearing a lot about the need for the EU to get the consent of all member states to agreement on the UK’s departure; that’s not actually required by the Article 50 process.) Delaying the timing of the referendum would have the effect of closing down both of those options, and while the situation could be resolved in other ways, a delay now could obstruct Scotland’s consideration for membership for several years.
The date is however a matter of politics, and if May wanted to scuttle Scottish independence, she has another option: which is, to offer an immediate referendum within the next two months, rather than one in 18 months to two years. The precedent is the short period permitted for the Brexit referendum; the Government’s rationale would be that this would clear the ground before the exit negotiations, Brexit in 2019 and the 2020 General Election; but the political calculation would be that a short time span would make it very difficult for the Nationalists to build enough support to win. The longer the delay, the more likely it becomes that the vote will be for independence.
Nicola Sturgeon has announced that there will be a further referendum on Scottish independence. I thought the arguments were finely balanced in 2014, and I did not vote in favour. The main positive arguments for independence seemed to me to be about
- responsiveness to need
- self-determination, and
The main positive arguments for the union were
- social protection and security,
- the increased capacity to act with common resources and
The last of those arguments has been exploded by recent events: sticking with the UK while it prepares to jump off a cliff is hardly a pragmatic choice. The other arguments for the union are still valid, though the first has been undermined to some extent by the erosion of public services and social protection under the mantle of ‘austerity’; and all of the arguments for union are as much arguments for union with Europe as they are for union with the UK. The scales have tipped, and as they stand now I will vote in favour this time.
If Scotland is going to be serious about independence, however, some of the holes in the Scottish Government’s proposals have to be filled. Their initial attempts to outline a constitutional settlement were led astray by the inclusion of specific policies (such as policies on defence) rather than constitutional powers. I hope we won’t have a repetition of the disastrous White Paper, which presented a policy manifesto instead of an agenda for independence. We do need to embark on a constitutional debate.
The responses to the Scottish consultation on social security have been available online for about a month, but I’ve just got round to sifting through them. I’ve not looked at most, because there are 460 of them, but what I have read reflects a great deal of thoughtful engagement, from individuals, professional groups, local authorities and the third sector. (There are also some things to disagree with, but I’ll leave people to find those for themselves.)
Here are some links to get you started:
It’s difficult to make sense of the submissions by reading them one by one – which is all that was possible at first. The web page has been redesigned in a way that pretty much invites readers to enter a key term – “cold weather”, “funerals”, “maternity”, “hearings” and so on – to see what people are saying about the topic. However, that doesn’t work for every topic – there are 196 submissions with bits relating to assessments. It also doesn’t show material from entries that have referred to evidence in PDF documents. So, for example, the fullest discussion of Industrial Injuries benefits I’ve found so far is made by Thompsons Solicitors, but it doesn’t come up on a search.