The second stage of the Scottish Social Security Bill is complete. Unusually, most of the issues raised as amendments have been incorporated, a clear sign that the legislators have taken comments seriously; there will be a Scottish Social Security Commission to review legislation and regulations, the rules on overpayments have been considerably qualified, and I was particularly gratified to see two new clauses on alienability (48A and 48B). Mandatory reconsideration is still there before a claimant can appeal, in a piece of macho drafting depending on multiple cross-references to determine what can be appealed and what can’t. The Bill is not perfect, then, but it is much better for the amendments.
A large number of amendments to the Social Security Bill have been tabled by the Scottish Government, along with a smaller number from opposition parties. The Scottish Government amendments, which are more likely to pass, include:
- a duty to promote takeup
- provisions relating to aid and advocacy
- the constitution and operation of an independent Scottish Social Security Commission, which will scrutinise proposed regulations
- qualification of the provision to allow some benefits to be paid in kind, so that it will be dependent on the consent of the recipient
- clarification of rules for reconsideration (but not, regrettably, the two-stage mandatory reconsideration)
- not reclaiming overpayments from people innocently receiving them,
- rules about appeals, and
- uprating for inflation.
Other constructive amendments from opposition parties are less likely to pass, but they are constructive: they include, amongst other things:
- extension of the general principles to cover the relief of poverty and the protection of rights
- definition of the functions of the Scottish Social Security Agency
- reporting issues
- the power to create new benefits, and
- a duty to inform people about their entitlements.
This doesn’t deal with all the issues I’ve previously raised; I am still concerned about the adoption of the Mandatory Reconsideration, and the lack of reference to alienability or diversion of benefits – but the overpayments rules and the provision for detailed scrutiny are much better. It speaks well of the government that they have listened to many concerns, and of the opposition that the amendments are considered and show an evident desire to make the Bill better.
The Scottish Government has published draft regulations relating to ‘Funeral Expense Assistance’. They are a disappointment; the Government seems to see the purpose as being to replicate, to the greatest extent possible, the existing scheme of funeral payments, and that scheme largely fails in its objectives. Funeral payments fail to reach probably half of the people who should get them.
The core problem is that the benefit is simply too complex. The draft regulations have these objectives:
3 (2) Regulations 5 and 6 describe eligibility conditions relating to the applicant’s relationship to the
deceased person and multiple applications.
(3) Regulation 7 describes eligibility conditions relating to the applicant’s residence, the last
residence of the deceased person and the place where the funeral takes place.
(4) Regulations 8 and 9 describe eligibility conditions relating to the financial means of the applicant,
based on receipt of income related benefits, and of the estate of the deceased person.
There are too many moving parts for this ever to work. Look at this regulation:
5.—(1) To qualify for funeral expense assistance the applicant, or the partner of the applicant, must
have accepted responsibility for the expenses of the funeral, and the Scottish Ministers must
consider it to be reasonable for that responsibility to have been accepted.
(2) In determining whether it was reasonable to accept responsibility, the Scottish Ministers must
(a) whether someone other than the applicant, or the partner of the applicant, would be the
nearest relative of the deceased person in terms of section 65(3) to (6) (arrangements on
death of adult) of the Burial and Cremation (Scotland) Act 2016; and
(b) any other relevant circumstances that the applicant brings to their attention.
There are five elements in this process: the circumstances and resources of a claimant, the circumstances and resources of the deceased, the arrangements made for a funeral, the relationship between the claimant and the deceased and the situation of other relatives who might potentially pay instead. Of course it can’t work.
What else could the government have done? We already have public funerals for isolated cases where people have no resources. We could go for a much simpler, universal approach: remove local authority fees for lairs and cremations. The cost is certain and relatively predictable, and I don’t think we need to worry about abuse, fraud, incentives to die or stimulating take-up from undeserving cases.
There is a general point to consider, too. The Government is beginning with funerals because they’re relatively straightforward, but their approach has been to take the existing scheme and “drag and drop” the regulations with a few tweaks. Far better to rethink.
The Social Security Committee’s first stage report on the Social Security Bill says a lot of the right things about the draft:
- the status of the principles needs to be clarified
- the balance between the framework and secondary legislation needs to be redressed
- there has to be a mechanism to review regulations – the committee recommends an independent Scottish Social Security Advisory Committee.
They have an accessible summary here.
Additional note, 15th December: The Scottish Government’s Response has also been published; in general, the response seems to be made of warm words rather than a commitment to do anything differently.
The press reports on the Racial Equality Plan made me apprehensive. They’ve been talking about ‘targets’ for minority ethnic employment in Scotland. In the limited work I’ve done on minority groups, what came over was the diversity – the position, for example, of Filipinos, gypsy travellers and and people from South-East Asia – and their relative isolation. There are too many small, dispersed minorities in a society to make intervention by numbers effective. I needn’t have worried. The plan, advised by Kaliani Lyle, is exemplary, recognising the special pressures on particular groups (notably Gypsy Travellers) but with the emphasis strongly falling on dialogue, consultation and engagement. Things done well are never as satisfying to a blogger as things done badly, so I’ve not much to add.
I was told yesterday, rightly or wrongly, that the Scottish Government is planning to stick to their proposed system of mandatory reconsideration – the requirement to submit issues for review before an access to appeal can be allowed. The government’s justification is, apparently, that there will be an important difference between their approach and the current practice of the DWP: benefits will continue in payment until the issue is resolved.
There are three sorts of misapprehension here. The first is about what happens when people’s benefits are stopped. There is a problem, but this measure is not going to resolve it. Benefits are often stopped first – that’s why people have to challenge the decision. If it proves that someone is not entitled, any benefits paid under this arrangement can be recovered. So, under these proposals, the benefits will stop, restart, stop again after review, restart after appeal, and possibly stop again – with repayment demanded every time.
The second misapprehension is that a formal review process is useful or necessary. Under the previous system, all grounds for appeal were scrutinised and acted on by the Department for Work and Pensions before the introduction of MR; so MR adds nothing to the actions of the agency. What the introduction of MR did was to create an extra hurdle for claimants – a barrier to access to justice.
That leads to the third point: that the operation of MR is unlawful. The Policy Memorandum issued by the Scottish Government argued that
“Without a re-determination stage, it would mean that all decisions being challenged would go to a tribunal. This could lead to the tribunal being inundated with large volumes of appeals, which will increase the likely waiting times for individuals to have their cases heard, resulting in a frustrating experience.”
It’s not so frustrating as bening denied access to justice. In Unison v Lord
Chancellor, the Supreme Court stated in terms that the creation of administrative barriers with the intention of preventing people reaching court is unlawful. Appeals are not just there for the appellant. They are there to make sure that the system is done right for everyone else. If the Social Security Bill is passed in this form, expect it to be challenged.
The Scottish Government has released a series of ‘position papers’ outlining its approach to social security provision. Some of these papers are very thin, but in the hope that people will find the reference useful, here’s the list:
- Social Security Charter and independent scrutiny
- Social Security Principles and a rights based approach
- Social Security Fraud and Offence Provisions
- Social Security ICT implementation
- Social Security Agency implementation
- Re-determinations and Appeals
- Disability Assistance and Employment-Injury Assistance
- Support for Carers
I’ve previously commented on most of these issues. I’d like to see a system that is less geared to replicating the DWP’s adversarial approach and more to a ‘learning organisation’, that takes the responsibility itself for correcting mistakes and learning from them.
The Scottish Government has said that the new social security benefits will be bound by principles of dignity and respect, so the publication of a commissioned report on Social security systems based on dignity and respect ought to have been very welcome. Unfortunately, the report fails signally to come to terms with its brief, choosing instead to emphasise either human rights issues or the substantive failures of social security policy. Both sets of issues are important – they are necessary for dignity – but they are not sufficient. There is nothing in human rights legislation which says that people will be addressed politely, that they will be believed when they say things, or that officials will be considerate.
There is very little in this report about those issues. The report acknowledges, in the Executive Summary, that “The feeling of being treated unfairly or viewed with suspicion by case workers on permanent alert for fraud is reported as particularly demoralising” – there is some further material on these problems on pp 33-35 – but the authors don’t go on to say what needs to be done about them. A chapter on “Ensuring dignity and respect in the claimant experience” really says nothing about the claimant experience, let alone about dignity and respect.
The central issue is how people are treated. The report ought to have considered process at length – access, application, communication, assessment, handling changes of circumstance and so on. There is some (admittedly dated) empirical evidence that many of the processes used for verification are unnecessary, that insisting on claimant declarations colours the process, that security is disproportionate and ineffective in dealing with errors. The system is not geared to deal with complaints or to correct mistakes. The nearest the report gets to most of this is to call for greater personalisation, which risks increasing the scope to get things wrong and exacerbates the problems of judgmental administration.
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.