Category: Scotland

Budgeting for the Scottish Welfare Fund

The Scottish Welfare Fund, for those who hail from other pairts, is the national scheme that replaced the Social Fund when England moved to local welfare assistance.  The headline figures for the Fund look, at first, as if the process of budgeting has been almost ideal.  26% of the budget for 2016-17 was spent in the three months April-June.  That could give the impression either that the system is being controlled with a rod of iron, or that it’s being run by Scotland’s most proficient clairvoyants.

Looking at the figures in more detail, however, the neat precision disappears.  There are 32 local authorities, each administering both Crisis Grants and Community Care Grants on the basis of national guidance.  The total budget is an amalgam of all of those elements.  That makes for a grand total of 65 moving parts.  And while there are some general trends, not all of those parts behave predictably. The numbers of Crisis Grant claims have fallen off, but there is still a wide variation in acceptance rates – 49% in West Lothian, 94% in East Renfrewshire.  While the general picture for Community Care Grants is more stable, A few local authorities have made substantial adjustments in the rate at which they distribute CCGs.  An underspend has been carried forward which smooths out some of the aggregate differences.  I don’t see any reason to question the figures as they’re presented, but by the same token I am far from convinced that there is any underlying pattern or consistency which will guarantee conformity with central budget limits in time to come.

A draft response to the consultation on Social Security in Scotland

I’ve drafted a response to the consultation: here is a link to  the document.  I’m aiming to submit the response in the next couple of weeks, but I’d be grateful for comments before I do that.  The main points I’ve made are these:

  • The aims of benefit systems are complex.  Oversimplification threatens to compromise important principles. (paras 5-7)
  • Terminology can be tested to see if it has unexpected implications. (para 11)
  • Benefits are only one form of support; sometimes direct provision is preferable. (para 13)
  • If benefits are to get to the right people, entitlement needs to be clearer and the terms on which benefits are delivered need to be less sensitive to personal differences.  (para 22).
  • It should not be assumed that citizens must register claims before they can receive benefits. (paras 3, 21)
  • Aspects of administration can be delegated to third sector agencies (paras 14, 15)
  • There have to be systems for independent scrutiny, rapid review and redress. (paras 17, 18, 23, 24)
  • Interactions with other benefits should be avoided. (paras 7, 8, 25, 26)
  • Transitional arrangements create complexities.  They can be avoided by buying out rights. (paras 19, 20)

It’s not helpful to go on too long in a consultation response, and what I’ve sacrificed are comments on particular benefits – I’ve already been at sessions discussing disability benefits, maternity and funerals,  and no doubt there’ll be others.

Further note:  Responses to the consultation are all now online; this response is number 500312666 and available here.

I’ve blogged less this month, partly because there’s not been much news, but because I’ve had a load of other things on, including caring responsibilities, painting windows, this submission and book contracts.  I’m also finishing off two short books to meet deadlines:  Arguments for welfare will be published by Rowman and Littlefield, What’s wrong with social security benefits?  by Policy Press.  Both should be out in 2017.


The Scottish Government is consulting on the future of social security

The Scottish Government has released a consultation on the use of its new social security powers.  I’ll be looking to respond in due course but it’s a lengthy document and I thought people would appreciate having the link before I started to work on it.

In the meantime, I have previously discussed the kinds of things that the Scottish Government might be doing in a paper for the Common Weal,  What can the Scottish Parliament do with new social security powers?

Reforming defamation law in Scotland

The Scottish Law Commission has issued a lengthy consultation paper on the reform of defamation law in Scotland, but I’ve only just seen it and the deadline for responses is set for tomorrow.  This is not my expertise (it’s forty years since I studied torts as part of English law, and I never used it)  and I’m not proposing to make a submission, but there  are issues of concern.  I don’t share the view of the Libel Reform Campaign that “Corporate bodies do not have a private life, personal identity or psychological integrity.” Clubs, societies and charities do have identity and integrity and may well depend very heavily on their reputations.  The law privileges  financial damage over other kinds of reputational damage, and that by comparison with the protection given to commercial traders there is a relative lack of protection for smaller, non-commercial groups, such as a mosque.

The main issue affecting the academic community is the potential suppression of scientific debate or criticism, most notoriously in the action taken against Simon Singh by the British Chiropractic Association.   There is an exemption made in the 2013 Defamation Act, but it only allows for material in peer-reviewed academic journals or conference proceedings.  (For those who don’t know it, academic books are peer-reviewed too – 13 of my books have been peer reviewed anonymously, 2 others were subject to an editorial board.)  The restrictions mean that academics have to rely substantially on defences of public interest and fair comment, and they are likely to be forced to fold long before they get that far.

The Named Person: not exactly a new idea

The Scottish Government’s proposals for appointing a ‘named person’ for children have come under heavy criticism.  I was puzzled at the discussion on Question Time last night, which seemed to treat the idea as a strange invasion of alien ideas. (One of the discussants compared to the intrusive behaviour of Italian police.  Imagine – foreigners, and European foreigners at that!)

The idea of the named person comes from the 1978 Warnock Report on special educational needs, later prominently supported by Margaret Thatcher (who had set up the Warnock Commission while education minister).   Warnock wrote:

We believe that there is a clear need for one person to whom the parents of children with disabilities or incipient special needs can turn for advice on the different services available to meet their child’s needs. This should be someone who is well known to and accepted by them. The principle holds whether the children are under five, of school age or making the transition from school to adult life. We therefore recommend that one person should be designated as Named Person to provide a point of contact for the parents of every child who has been discovered to have a disability or who is showing signs of special needs or problems.

The Named Person was supposed to offer continuity throughout a child’s lifetime.  As the Warnock report argued, however, needs can occur at many points in a child’s lifetime and there is no clear, constant distinction to be made between children who have special needs and others.  Extending the principle to other children is unsurprising.

It’s not a bad principle, but after more than 35 years we can say something about how the idea actually works.  The system of the Named Person doesn’t, in practice, provide continuity through childhood.  Some professionals, such as Health Visitors, may have a prominent early role which reduces in importance later; others, such as teachers, may take on responsibilities for a few years before the child moves on.  So from an early point, the practice has been to nominate a generic official, such as the Director of Social Work or Director of Education, and any idea of continuing personal contact becomes meaningless.  This is a pleasing idea that was tried and didn’t really work.


Revising the role of committees in the Scottish Parliament

Tricia Marwick, the retiring Presiding Officer, has been making again a case for a review of the structure of committees in the Scottish Parliament.  Because there is no second chamber (unless we count the UK parliament in Westminster as one), the scope for initiating, revising and monitoring legislation is limited.   In principle, the Committees have that role.  Marwick argues that there are too many committees for the number of members,  committees have been dominated by supporters of the government and the role of committees has often been reactive.

There is a real problem here, but her proposed solutions have not attracted much support.  Reducing the numbers of committees leads to some topics eating time from the scrutiny of others – Health and Sport, Education and Culture, Rural Affairs and Climate Change.  Besides, extra committees are still needed in Parliament for the scrutiny of particular legislation, so there is no way of ensuring that MSPs only serve on one committee.  There just aren’t enough of them to go round.

There are several alternatives which might be considered.  One might be to appoint a body, like the French Conseil d’Etat, to consider the technicalities of legislation.  (The French model combines that function with the judicial branch, which is not wise – it violates the separation of powers, and it gives too little attention to the substance of policy. The principle to take away is that legislation can sensibly be reviewed by an appointed external body, reporting back to elected officials.)

Another option would be to create an external support structure for the committees, allowing committees to delegate the process of evidence gathering, monitoring and expert judgment to appointed sub-committees, whose reports and work would then be scrutinised by the elected politicians.  At present, that kind of scrutiny and support is not available to the Committees; it is only available to the Scottish Government through the civil service.

A new Scottish Politics, or a bit more of the old?

The results of the parliamentary elections on Thursday have confirmed the position of the SNP.  SNP, Liberal Democrats and Greens were largely happy to hold their own; the biggest change is the reduction of the number of representatives from Labour, and the increase in the representation of Conservatives.  Both Conservatives and Liberal Democrats put a lot of emphasis on the show-business end of politics, including performances with children and animals.  That may, I fear, mislead future campaigners into believing that what matters is the razzmatazz.

What the SNP and the Conservatives had, and what Labour notably lacked, was a broader narrative.  For the SNP, the principal points were about self-government and competence; for the Conservatives, it was about the strength of the union and mounting effective opposition.  Labour, by contrast, tried to emphasise a series of policies.  None of the parties was short of policy.  Nor was this, as John McTernan would have it, about right and left: all the parties in Scotland are to the left of the UK government.  The simple truth is that offering people a shopping list is just not enough to counter a good story.   If Labour wants to appeal, it needs to restate its own narrative.  It can do that by focusing on its principles – equality, empowerment, solidarity and the common weal.

Making pensions more universal: a few wild guesses about costs

Following discussions about the potential for extending universal pensions in Scotland, I’ve been putting together a few back-of-the-envelope calculations about costs.  The figures I’m drawing on aren’t reliable, for all sorts of reasons: the sample surveys can mislead when the numbers are very low, the figures aren’t consistent, it’s not clear how many people would actually receive their entitlements and we’d still need to consider the implications for Pension Credit.

The universal pension for people over 80, Category D of the State Pension, goes to people whose pension entitlement is less than the level of the pension, currently £69.50 a week.  I’m going to call that 50% of the basic pension, though actually it’s a bit more than that.   At present there are 2,700 recipients of Category D Pensions in Scotland (though if you look at the breakdowns you’ll get an inconsistent count  which suggests that there might be more than 3,200 claims).   If we wanted to increase Category D Pensions for people over 80, more people would be entitled;  I reckon that topping up the existing Category D pension to 75% of the basic state pension could cost the Scottish Government about £44m, topping up to a full pension might cost up to £78m.  It should cost much less if we got back the savings to Pension Credit under the ‘no detriment’ principle, but I’m not sure I believe that the DWP and the Treasury will honour that principle.

Beyond that, there’s the option of extending the universal pension to people who are younger than 80.  Extending the existing category pension to people aged 75-79 wouldn’t cost much – in Scotland there are only about 500 people in that age group who get less than 50% of the state pension, and the top up should cost less than £2m.  Bringing them in to a more extended scheme  at 75% of the basic pension would cost  a lot more, probably £47m, because there are nearly 40,000 people in that income bracket, and taking it up to a full pension would cost up to £87m.

The point of all this is, of course, to say that Scotland now has the chance to do things with benefits that are about much more than transferring administrative responsibility.  I’m hopeful that they will.

The Scotland Act has passed. Now we can do something about sanctions.

The Scotland Act 2016 has received royal assent.  I’ve been critical of the aspects that deal with benefits.  The first draft bill was sloppily drafted, the purpose of the clauses was misinterpreted, and the resistance of the Scotland Office to most amendments meant that improvements were slow and difficult.  There are still parts of the Act that are badly thought through  – for example, the disability clauses, which I’ve written about before, the assumption that Winter Fuel Payment would be covered by rules about cold weather, or the removal of the Scottish Parliament’s existing power to authorise crisis loans. But there is also a significant loophole which the Scottish Government could, if it wanted, use to challenge the system of sanctions.   Now the Act has passed,  the loophole could only be removed by a further Act of Parliament.

Three clauses contain the same wording, apparently intended to stop interference with the sanctions régime.  Clauses 24, 25 and 26 deal with top ups to reserved benefits, discretionary housing payments and discretionary benefits. They all include the same qualification about sanctions.  Clause 26 reads:

This … does not except providing financial assistance where the requirement for it arises from reduction, non-payability or suspension of a reserved benefit as a result of an individual’s conduct (for example, non-compliance with work-related requirements relating to the benefit) unless—

(a) the requirement for it also arises from some exceptional event or exceptional circumstances, and
the requirement for it is immediate.

The key phrase here is that the requirement for financial assistance “arises from some exceptional event or exceptional circumstances”.   Now, it might be that someone thought that “short term” means one off, that “discretionary” means “only do it once” and “exceptional” should be taken to mean “very rare and unusual”.  That is not what those terms mean in social security law or practice.

  • The “short term” benefits introduced after 1948 were intended to cover unemployment, sickness and maternity, while the “long term” benefits covered pensions, bereavement and death.  This distinction lasted till the mid-1990s.
  • “Discretion” covered all benefits not paid as a right: the discretion of the Supplementary Benefits Commission (1966-1980) included elaborate rules for extra payments, including provision for Urgent Needs Payments, Exceptional Needs Payments and Exceptional Circumstances Additions.  The rules were largely covered in the “A Code”, but a summary of the rules were laid out annually in the Supplementary Benefits Handbook.  There is no incompatibility between discretion and rules.
  • The term “exceptional” was taken by the SBC to mean anything that lay out of the ‘normal’ provision of benefits.  So, for example, there was an Exceptional Circumstances Addition of 30p per bath for anyone who needed more than one bath a week for medical reasons.

The Scottish Government does not have the same discretion as the SBC – it is not possible to argue that discretion must always be used the same way.  But the principles guiding discretion share an important common element: it has been clearly established that discretion can be interpreted and expressed in terms of rules.  It follows that the Scottish Government can use their discretion to issue guidance under these provisions, defining the rules applying to provision and the circumstances which should be treated as exceptional.  Such rules may reasonably extend provision,  for example, to families under pressure, cases of special hardship and circumstances where the personal circumstances of the claimant, such as mental illness or conflicting duties, have led to sanctions being imposed.

This would have the effect of removing some sanctions; it would not remove most of them.  There is a tenable argument for adding a further rule defining an exceptional circumstance, which could have a much more profound impact.  Professor Michael Adler has argued that in several respects it is questionable whether the  current sanctions regime is consistent with the established principles of the rule of law.  Of the many points he makes, one seems to me to stand out: it is that people who are affected must have a hearing.  The current practice lies in breach of an ancient principle of administrative law:  audi alteram partem, which is one of the elements of natural justice.  If decisions are being taken about claimants, they must have an opportunity to put their case.  (It has now  been decided, for example, that the bedroom tax cannot be imposed without a hearing in cases where bedroom size and use is disputed).  In the current sanctions régime, claimants can only be heard after the punishment has been imposed – and indeed they may not know that a sanction has been imposed until after  the punishment has taken effect.

I think it can plausibly be  argued that any punishment or variation in the rights of a citizen must be lawfully done, and that circumstances where they are not lawfully done should always be considered exceptional.   In any case where people have been sanctioned without a hearing, the Scottish Government could exercise its discretion to make payments to mitigate the sanction.   If the DWP doesn’t agree, they are welcome to test that proposition in the courts.

The disability clauses in the Scotland Bill

The Devolution Committee of the Scottish Parliament has published a lengthy report reviewing the provisions of the Scotland Bill.  I get a brief mention, because I was asked to submit evidence about the fiscal framework, but I want in this entry to address a different issue, concerning the clauses about disability.  As it stands, the Bill has five distinct definitions of disability:

  • two definitions deriving from the definition of a disabled person as someone receiving a disability benefit, which is

a benefit which is normally payable in respect of—

(a) a significant adverse effect that impairment to a person’s physical or mental condition has on his or her ability to carry out day-to-day activities (for example, looking after yourself, moving around or communicating), or

(b) a significant need (for example, for attention or for supervision to avoid substantial danger to anyone) arising from impairment to a person’s physical or mental condition

  • a recipient of Severe Disablement Allowance,

a benefit which is normally payable in respect of—

(a) a person’s being incapable of work for a period of at least 28 weeks beginning not later than the person’s 20th birthday,
or  (b)
a person’s being incapable of work and disabled for a period of at least 28 weeks

  • a reference in the provision for carers, which is to a disabled person as

a person to whom a disability benefit is normally payable

  • and a completely different reference in clause 31 on employment support, where

“disabled person” has the same meaning as it has in the Equality Act 2010

I put it to the Devolution Committee last year that these definitions were not adequate.  I wrote then:

“The Smith Commission proposed the devolution of powers relating not only to disability but to those who are ill.   The use of a more restrictive definition is a matter of concern to some agencies working with disability, such as the Multiple Sclerosis Society and the Scottish Association for Mental Health. The use of the Equality Act definition of disability would have automatically brought in some classes of illness, such as people with multiple sclerosis or HIV/AIDS; the new definition does not.”

Subsequently the Committee received assurances from the Secretary of State, and those assurances are the ones included in their final report.

“344.  He explained that the reason that there is a variation in definitions used for disability between clause 19 and the clause relating to employment provisions is to accommodate different devolution issues. The UK Government’s view is that the Equality Act 2010 definition would not be appropriate for clause 19 and, indeed, could put limits on the Scottish Parliament’s ability to decide who is, and who is not, covered by their provisions relating to disability benefits. The definition used in clause 19 is designed, in the UK Government’s view, to cover the adverse effects or needs arising from an individual’s health condition or disability, with the proviso that these effects or needs must not be short-term.

345.  The Secretary of State concluded by noting that the inclusion of the phrase “normally payable” gives the Scottish Parliament the necessary flexibility to create exclusions or to create special categories, for example to enable provision for people who are terminally ill. The phrase “normally payable” was explained in more detail by the UK Government. It said, “The phrase “normally payable” is designed to provide sufficient flexibility to enable provision for exceptional cases – for example it would enable provision to be made to prevent the payment of benefit in situations where a person is temporarily accommodated at public or local expense in a care home or is receiving free in-patient treatment from the NHS or to enable the payment of benefit in situations where a person is terminally ill.

Only the courts could ultimately decide whether or not these statements are true, but while there is some force in the first paragraph, the second has to be wrong.  The disability clauses are not defining the scope of Scottish benefits; they are defining the powers of the Scottish Parliament to legislate in this field.  All the clauses on social security start from the principle that the Scottish Parliament has no powers relating to social security unless and until those powers are explicitly granted.  The Scottish Government  has no right to assume that if a benefit is ‘normally payable’ under one set of circumstances then that carries the implication it  might also be treated as payable in different circumstances.  A person might be terminally ill without meeting either of the key criteria in s 19, and if that was true,  the Scottish Parliament would have no right under these clauses to create a benefit.

In the absence of opposition from central government, it is unlikely that this would ever get to court.  The main stumbling block is likely to be the Scottish Parliament’s own lawyers, who are quite properly concerned to work strictly within the rule of law, and have blocked legislation that is outwith the Parliament’s competence before.   It may still be possible to use the other powers in the Bill – the power to create new benefits or to top up reserved benefits – to cover the contingencies that have been left out.  (This was not an option when I made my submissions a year ago, but it is now.)  It would have been so much clearer, and so much easier, if we were not dealing with such restricted and muddled definitions of disability.