What's New?

The Social Security (Amendment) (Scotland) Bill, a Scottish Government Bill, was introduced on 31 October 2023. It has eight substantive parts, each dealing with a different aspect of social security administration. All the changes are by amendment to the framework legislation – the Social Security (Scotland) Act 2018. The overarching aim is:

To create efficiencies and enhance the administration of the Scottish social security system, with a focus on measures to improve the client experience and to deliver value for money.

Scottish Government. (2023). Social Security (Amendment)(Scotland) Bill: Business and Regulatory Impact Assessment. Retrieved from https://www.gov.scot/publications/social-security-amendment-scotland-bill-business-regulatory-impact-assessment/pages/2/ [accessed 29 January 2024]

New benefits. Part 1, sections 1 and 2 are regulation-making powers that would allow new benefits for people with care experience (for example, young people who were in foster care), and new benefits for families with children to be introduced in future. Examples of how these powers could be used are the proposed ?Care Leaver Payment? and changing the legislative footing of the Scottish Child Payment.

Late applications. Part 2, section 3 repeals COVID-19 measures that allowed late applications for benefits.

Challenging decisions. Part 3, sections 4 to 8 make changes to the processes for re-determination and appeal including:

• Allowing requests for re-determination and applications for appeal to be made more than a year late in exceptional circumstances (section 4).

• Allowing requests for re-determination to be withdrawn (section 5).

• Requiring Ministers (in practice, Social Security Scotland) to complete a re-determination even if they have missed the deadline for doing so (section 6).

• Allowing Social Security Scotland to offer a better award to a claimant who has lodged an appeal. This would end the appeal. This is known as a ?lapsed appeal? (section 7).

• Clarifying the powers of a Tribunal in a process appeal and Ministers? duties following their decision. The changes reflect existing practice (section 8).

Overpayments. Part 4, sections 9 to 13 make changes to the rules on ?assistance provided in error?:

• Some people have a formally appointed representative, such as an appointee or guardian, who manages benefits for them. Sections 9 and 10 would make such representatives liable for overpayments, but only where they act in breach of their duties, such as using the money for themselves. Section 9 would extend the individual’s liability for their representative’s errors.

• As with other Scottish social security overpayments, Ministers would have up to five years to start to recover overpayments (Section 11). Section 12 clarifies that overpayments can be recovered from an individual’s or their representative’s estate after they have died.

• Section 13 would introduce review and appeal rights against the decision that an individual or their representative is liable to repay an overpayment.

Appointees. Part 5, sections 14, 15

• An individual appointed to manage a person?s Department for Work and Pensions (DWP) benefits would also manage their Social Security Scotland benefits until Social Security Scotland completes its own checks (section 14).

• Where an appointee uses any funds outwith their common law or statutory duties, and does so in bad faith, they would be liable to repay those funds to the individual they represent (section 15).

Providing information. Part 6, section 16 would require individuals to provide information to Social Security Scotland in order to estimate the amount of fraud or error in the system as a whole. Ultimately, if information was not provided, an individual?s benefit could be suspended. Eligibility could then be reviewed, which would either confirm eligibility or end payments.

Compensation recovery. Part 7, section 17 would apply where a person who gets social security payments as a result of injury, accident or disease, is awarded compensation for the same incident. The person making the compensation payment must deduct the value of relevant social security payments from the compensation due to the individual and pay it instead to Scottish Ministers. The provisions mirror those of the current DWP scheme, with the intention that Social Security Scotland benefits will be treated in the same way.

Scottish Commission on Social Security (SCoSS). Part 8, sections 18 to 21 would bring additional regulations into the scope of SCoSS scrutiny and make changes to governance arrangements following recommendations from an independent review.

Financial Memorandum

Total implementation costs are estimated at between ?10.2 million and ?27.8 million. The Bill may then generate net savings of ?1.1 million to ?4.5 million per year (ignoring money paid out in benefits) (Table 5, Financial Memorandum). Most of the estimated savings arise from compensation recovery.²

Consultation

The Scottish Government consulted on most measures in the Bill in 2022, receiving 34 responses. Most of the proposals received a generally positive response. Not all the consultation proposals were taken forward in the Bill. Despite being supported, the proposal to allow late applications and the proposal for alternatives to prosecution for low value fraud were not taken forward.

Not all the proposals in the Bill were consulted on ? notably the proposal in Part 6 to require people to provide information for audit. These proposals raised some concerns in responses to the Social Justice and Social Security Committee Call for Views. The Call for Views received 27 responses, 10 of whom also responded to the Scottish Government consultation. Again, there was a generally positive response albeit with some detailed suggestions for amendments and some concern to ensure that vulnerable clients would always be supported.