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.