Category: Scotland

Why the Scottish Government should not be using Mandatory Reconsideration

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 edges towards a social security policy

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:

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.

For dignity and respect, it matters how people are treated

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.

The Social Security (Scotland) Bill – response to the call for views

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.

 

Scottish social security benefits – a talk on video

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 Social Security (Scotland) Bill has been tabled

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.

A ministerial announcement on the next devolved benefits

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 manifesto is out (at last)

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 new Scottish Social Security Agency

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.

The no detriment principle rears its head again

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.