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
(b) 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.