The Social Security Act (Scotland) 2018

Issue 264 (June 2018)

Kirsty McKechnie describes the provisions in the first legislation passed establishing the Scottish social security system.

Introduction

On 25 April 2018, the Scottish Parliament voted unanimously to pass the Social Security (Scotland) Bill establishing the legislative framework for the Scottish Government to deliver benefits devolved by the Scotland Act 2016 and to introduce new forms of assistance. The Social Security (Scotland) Act 2018 received Royal Assent on 1 June 2018. Detailed rules about each type of assistance will be contained in regulations.

Which benefits does the Act include?

The Act includes basic information about entitlement for the following.

Devolved benefits

  • Carer’s assistance (replacing carer’s allowance (CA)).
  • Cold-spell heating assistance (replacing cold weather payments).
  • Winter heating assistance (replacing winter fuel payments).
  • Disability assistance (replacing disability living allowance, personal independence allowance, attendance allowance and severe disablement allowance).
  • Early years assistance (replacing Sure Start maternity grants).
  • Employment-injury assistance (replacing industrial injuries benefits).
  • Funeral expense assistance (replacing funeral payments).

Note: the Act does not actually bring the Scottish benefits (or ‘assistance’) into existence. For what is known about this so far, see ‘What next?’

New forms of assistance

  • Carer’s allowance supplement – a twice-yearly lump sum payment to bring the amount paid through CA up to the same level as jobseeker’s allowance. It is intended to be an interim measure until carer’s assistance is implemented.
  • Housing assistance – to be paid to people who are entitled to universal credit (UC) who, when the bedroom tax is ‘abolished’1 by the Scottish Government, are then affected by the benefit cap, or to 18–21- year-olds who are not entitled to the housing element in UC.2 Housing assistance may be delivered by local authorities rather than the Scottish social security agency.
  • Short-term assistance – to be paid to individuals whose assistance has been stopped or reduced pending a reconsideration or appeal.
  • Power to provide top-up – the Act provides the Scottish Government with the power to top-up reserved UK benefits. The Scottish Government has committed to introducing a new income supplement for low-income families in its Tackling Child Poverty Delivery Plan.3

Changes to existing benefits

The Scottish Government already has the power to bring forward regulations about splitting payments of UC between two partners. But the Act now requires that Scottish Ministers consult the Secretary of State about the practicalities of implementing this, and lay regulations before the Scottish Parliament that will require payments of UC to be split between couples living in Scotland in a proportion to be decided by Scottish Ministers, unless the couple nominate a single bank account for the money to be paid into.

The Act also brings already devolved discretionary housing payments under the new Scottish social security system. The Act places the rules about discretionary housing payments in primary legislation rather than in regulations, making the process for changing the rules in future subject to a more stringent process.

A new ethos for social security

The Act includes eight overarching principles which include:

  • social security is a human right;
  • respect for dignity of individuals is to be at the heart of the system;
  • the Scottish social security system is to contribute to reducing poverty in Scotland; and
  • opportunities are to be continuously sought to improve the system.

The principles will be reflected in a charter setting out what is expected from the government and from individuals applying for and receiving assistance. The charter must be developed in consultation with individuals, and people who work with individuals, who are in receipt of the benefits being devolved or child benefit. However, there is no requirement to consult with individuals who have applied for and been refused these benefits.The Act also includes duties in relation to:

  • promotingthe take-up of social security and taking appropriate steps to ensure people are advised of what they are entitled to;
  • communicating in formats that are accessible to individuals, including those who have sensory, physical or mental disabilities, or communication difficulties;
  • ensuring the availability of independent information, advice and advocacy. Advocacy should be available to anyone making an application for assistance who has a disability and will be subject to standards set in regulations;
  • preparing an annual report on the performance of the Scottish social security system to be laid before the Scottish parliament and made publicly available.

A Scottish Commission on Social Security will be established to scrutinise regulations on entitlement but not regulations on process. The Commission will consist of a chair and two to four other members to be appointed by the Scottish Government. It will be able to establish committees and sub-committees which may include non-members of the Commission to assist them with their duties.

Administration

Part 2 of the Act establishes the framework for processing benefits through the new Scottish social security system, with a language that is distinct from that of the reserved (ie, non-devolved) social security system. Benefits are ‘assistance’, claims are ‘applications’, decisions are ‘determinations’ and reconsiderations are ‘redeterminations’.

Determinations must be provided in a way that can be shown to, and shared, with others. If an applicant is unhappy with a decision s/he must request a redetermination before s/he can appeal to the First-tier Tribunal. Timescales for submitting and processing redeterminations will be prescribed in regulations. The draft funeral expense regulations propose 31 days for requesting a redetermination and 15 days for the Agency to respond.4 Late requests for redeterminations may be consid- ered if there is a good reason. A report must be prepared annually about the number of individuals who obtained the right to appeal and the number of individuals went on to exercise that right.

The right to appeal covers determinations about entitlement and some process decisions, but the latter are limited to a decision to reject an application or redetermination request as not properly made, or a decision to refuse a late request for a redetermination.

Individuals will be required to repay overpayments if they are deemed to be at fault (eg, they did not report a change of circumstances that they were required to) or if it is deemed reasonable to expect them to notice the error. The comparison is with what it would have been reasonable to expect ‘an’ individual to notice, rather than the individual concerned. There is a right of appeal against the determination that decided the amount of overpayment, but unlike for UK benefits, there is no right to appeal at the point the question of fault is decided. Instead, this would have to be challenged during debt recovery proceedings.

Overpayments may be recovered from any ongoing awards of Scottish benefits, by repayments agreement or through the Scottish courts. The Act allows for debt recovery to be transferred from the sheriff court to the First-tier Tribunal.

Individuals need not have knowingly or dishonestly misled or failed to notify the agency in order to become liable for prosecution.

Medical assessments

Medical assessments should only be carried out if they are the only practicable way to obtain information required to determine entitlement to assistance.

Anyone carrying out physical or medical assessments in connection with Scottish social security assistance must be acting in the course ofemploymentby a publicbody. They must also be suitably qualified in relation to the subject that the assessment is about. Consideration must be given to any preferences an individual has expressed about how and where an assessment should be carried out. Individuals will have the right to have a supporter present during assessments or any discussions about entitlement.

There will be an automatic right to the maximum disability assistance for individuals who have been diagnosed with a terminal illness with no time frame as to when the individual may be expected to die.

What next?

The Scottish Government is currently consulting on draft funeral expense regulations.5 The consultations closes in August. The consultation on draft best start grant regulations closed on 15 June. It is expected that both types of assistance will be payable by summer 2019.

The first payments of carer's allowance supplement will be paid in summer 2018, with payments backdated to April.

The Scottish Government has six months from the relevant section of the Act coming into force to prepare the charter and one year to prepare the strategy to promote take-up.

In the meantime, the Scottish Government is setting up the new Scottish social security agency headquarters in Dundee, a second base in Glasgow, recruiting the first wave of staff6 and building the new IT system to deliver the new benefits. It will also be establishing a local presence to assist with applications, follow up, home visits and cover prison services.


Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.