Briefing Paper: Social Security (Scotland) Bill 6 December 2017

Our position

The Scottish Government’s aspirations to take a rights based approach to social security has been welcomed by SCVO, our members, and the wider third sector who recognise that a rights-based approach can create a system that respects, protects, and fulfils everyone’s right to social security.

To achieve this and to ensure that human rights are fully embedded in the new system SCVO, and many of our members, believe that the primary legislation must be strengthened to:

  • Clearly detail the rights of claimants, the duties of the state to claimants, and what a rights-based approach means in practice
  • Include a legal right to independent advice
  • Include a legal right to an independent advocate
  • Protect the right to cash entitlements
  • Detail a clear process for complaints and redress
  • Amend the criminalisation of genuine error
  • State that overpayment resulting from department error will not be recovered
  • State that parts of the new system will not be passed to for profit organisations
  • Set a date for rules in regulations to be integrated into the main Bill
  • Ensure balance between primary and secondary legislation
  • Commit to a statutory independent expert scrutiny body
  • Commit to a continuing role for ‘User Panels’
  • Commit to effective data collection and monitoring.

Achieving a rights-based Social Security System

A human rights-based approach is a conceptual framework based on international human rights standards. The ultimate aim of organisations that adopt a human rights-based approach is to ensure the realisation of the rights of the individuals they support. The PANEL principles are one way of breaking down what a human rights based approach means in practice and include; Participation, Accountability, Non-discrimination & equality, Empowerment, and Legality. SCVO stress that a rights based approach to social security should ensure maximum use of available resources in order to progressively realise the right to social security.

SCVO and many of our members, are concerned that the Bill fails to fulfil the human rights principles it outlines as very few rights for claimants are enshrined in the bill, and few duties are placed on Ministers to protect rights. For the sake of reassurance to the people affected and the organisations supporting them, we insist that this needs to be reflected in primary legislation, not delegated to secondary regulations.

Specific requests

Universal rights to access both independent advice and independent advocacy are essential to a rights based approach but absent from the Bill.

  • The ALLIANCE, Citizens Advice Scotland, Disability Agenda Scotland (DAS), the Scottish Independent Advocacy Alliance (SIAA), and others, highlight that both the tailored exchange of information (advice) and the support and reassurance of an independent advocate (advocacy) removes barriers and empowers claimants. Accountability is a central pillar of a rights-based approach yet the processes for complaints and redress are absent from the Bill.
  • SCVO, the Alliance, Camphill Scotland, Carers Scotland, Citizens Advice Scotland (CAS), Engender, the Poverty Alliance, Scottish Independent Advocacy Alliance (SIAA), and many of our members, recommend that the Bill include more detail on what claimants can expect from duty holders when things go wrong with social security assessments, payments and appeals.
  • SCVO and many of our members, including the Child Poverty Action Group in Scotland (CPAG), stress that this should include provisions for claimants to solely challenge the elements of a decision that they are unhappy with when appealing, as is the case at a UK level.
  • SCVO and many of our members including, Engender, CPAG, and the Poverty Alliance, are also concerned that the Bill creates new offences by criminalising claimants who ‘ought to have known’ that a change in their circumstances would affect their entitlements. The criminalisation of genuine error is inappropriate, likely to disproportionately affect the vulnerable, and is harsher than the current system, it is therefore at odds with a rights-based approach and must be amended.

Private for-profit companies should not have a role in assessments.

SCVO and many of our members including the Alliance, Carers Scotland, Citizens Advice Scotland, Inclusion Scotland, the Poverty Alliance, SIAA and others, are also concerned that despite the Scottish Government’s policy intention, there is no legislative provision to prevent the use of private for-profit motivated companies in benefit assessments or more widely. Services delivered by private sector companies have made the current system less transparent and decision makers less accountable, this is not consistent with a rights based approach. SCVO strongly believes that the Scottish Government must avoid the use of profit-driven private sector organisations to deliver benefits and services. To future proof the assurances of the Cabinet Secretary the legislation should clearly state which parts of the new system will be available to private for-profit organisations, including digital infrastructure. If the Scottish Government is committed to realising a rights-based approach, rights must be better articulated in the primary legislation. SCVO stress that failure to do so, makes it easier for future governments to ignore the principles outlined by the Scottish Government and their aspiration for a rights-based approach to social security.

Balance between Primary and Secondary Legislation

SCVO and many of our members are also concerned about the balance between primary and secondary legislation. Primary legislation provides opportunities for the third sector and others to reflect on and share their expertise on legislation, this ensures policy proposals are effectively securitised. If most of the rules about the new benefits are to be set out in regulations, this opportunity will be lost. While it may be appropriate for some issues to be further defined in regulation, it is our view that essential elements, such as commitments on access to independent advice, access to independent advocacy, and access to redress, are central to a rights-based approach and must feature in the primary legislation.

Scrutiny

Currently there is no Scottish equivalent of the Social Security Advisory Committee (SSAC) to provide independent expert scrutiny. The initial consultation suggested the creation of an independent body to scrutinise Scottish social security arrangements. SCVO, AdvoCard, the Alliance, Citizens Advice Scotland (CAS), Camphill Scotland, Carers Scotland, Disability Agenda Scotland (DAS), Engender, the Poverty Alliance, the Scottish Independent Advocacy Alliance (SIAA), and others in the third sector, believe that an independent statutory advisory committee is essential to ensure that voices from outside government with expertise in social security are involved in the development of the social security system in the long-term. This body should be statutory to oversee decision making standards and provide an extra level of accountability. SCVO believe that the selection process should ensure that a broad range of civil society organisations are represented. This body should continue to work with civic society groups, utilise public consultation, and engage with the Social Security Citizen Panels (‘User Panels’) to ensure those with experience of the system continue to have a central role in its development. A formal statutory requirement for this level of engagement should also be included in the legislation.

SCVO believe independent expert advice and scrutiny body that draws on expertise from those with lived experience is essential to the continuing development of this legislation and to ensure transparency and continuing engagement going forward.

Measuring Progress

The devolution of these powers is a real opportunity to create a cultural shift around entitlements and create an asset based system that offers a connected streamlined process that facilitates access to full entitlements. This change will be measured through the experience of claimants. To measure progress the role of technical expertise and expert panels must not be underestimated and annual reporting must be utilised to ensure continual feedback on both the design of the system and how it operates. As part of the annual reporting process SCVO, the Coalition for Racial Equality and Rights, SIAA, and others believe data collection and monitoring must be built in from the outset. The implementation of these robust reporting mechanisms is essential to ensure transparency on the extent to which the new system fulfils its ambitions. These measures would also ensure policy coherence between the new social security legislation and the Scottish Government’s commitments to human rights and the Sustainable Development Goals (SDGs) as part of the Open Government National Action Plan.

Conclusion

SCVO and our members, recognise that ensuring a smooth transition of powers to Holyrood is a challenge, however, if we are to realise our ambitions of a compassionate, effective and dignified social security system for Scotland it is essential that the new powers are transitioned and human rights embedded in the legislation in parallel. We believe that to ensure the Bill realises its potential the Scottish Government must fully consider both these changes and the other proposals made by our third sector colleagues. Together we can create a social security system that is truly rights based and that delivers a fairer Scotland with improved outcomes for all.

Contact

Sheghley Ogilvie Public Affairs Officer (Engagement) Scottish Council for Voluntary Organisations,

Mansfield Traquair Centre, 15 Mansfield Place, Edinburgh EH3 6BB Email: sheghley.ogilvie@scvo.org.uk Tel: 0131 474 8000 Web: www.scvo.org.uk