 Good morning and welcome to the seventh meeting of the Social Justice and Social Security Committee. We have no apologies today. Our first item of business for today is a decision to take agenda items 3 and 4 in private. Are we all agreed? Yes. Thank you. Our next agenda item is an evidence session on the Social Security Amendment Scotland bill. The bill was introduced to the Scottish Parliament on 31 October 2023 and is currently at stage 1. It amends the Social Security Scotland Act 2018 to make changes to the Scottish social security system. Its general aims are to enhance the Scottish system of social security, including to improve the experience of people using the service provided by Social Security Scotland. Deliver increased efficiency and value for money. Implement the findings of an independent review into the remit and operation of the Scottish commission on social security. And revoke emergency provision inserted into the 2018 act in 2020 at the height of the Covid-19 pandemic. Our first evidence session will provide general context and a good overview of all the substantial parts of the bill. With a panel of witnesses with expert knowledge of how the social security system works. I welcome to the meeting John Shaw, welfare rights worker, child poverty action group and Erica Young, policy officer for social justice citizens advice Scotland. We are joining us in the room. We have Michael Clancy, OBE, WS, director of law reform, the law society of Scotland. Diane Connick, advice services and welfare reform team leader, Stirling council. Richard Gass, welfare rights and money advice manager, Glasgow city council. They are joining us remotely. Thank you very much for accepting our invitation. Just a few points to mention about the format of the meeting before we start. If you could please wait until I or a member ask him a question, say your name before speaking. And don't feel that you have to answer every single question. If you have nothing new to add to what's being said by others then that's perfectly okay as well. For witnesses online please allow our broadcasting colleagues a few seconds to turn your microphone on before you start to speak. You can indicate with an hour in the chat box in Zoom if you wish to come in on a question as well. Can I ask everyone to keep questions and answers as concise as possible? I hope that we'll probably start now with the questions and try and finish for about 10.30 as well. I'm going to invite Ross first. Thank you convener and welcome everybody either online and in the room. My questions are on the new forms of benefits and I'm going to start with the online if I can. So to Ms Connick please. This question to you first of all but I'd like to let it come into the room. The bill would give the Scottish Government more flexibility over rules for the Scottish child payment. I'm very happy that you're here because you represent a rural environment that we don't often have in the room. Can you give me an idea of what changes should be prioritised from your perspective please? Yes certainly we're more than happy with the changes that are being put forward within the bill at the moment. As you've touched on sterling comprises of an urban and a very rural area as well. We do know that people within rural areas tend to have to have a more substantial income to start with in order not to be in poverty. So certainly anything that comes in that's going to help that can only be beneficial round about that as well. Anything that's transparent in order to do that. But I think it very much is taking the services out into the communities as well. And certainly that's through the local delivery team and through local services as well within that. Thank you that's very helpful. Can I ask the same question please of Mr Shaw? Thank you for the opportunity. So generally we think that priority should be given both to increasing the value of Scottish child payment and also to fix those specific issues which come from its current legal status as a top up benefit to other entitlements. So the obvious one of those would be whether there is a gap even a short one in entitlement to a qualifying benefit Scottish child payment simply cannot continue. And then we have other groups who cannot get a qualifying benefit even though their income level is in a similar place to people who can. So that might be due to somebody's housing tenure or perhaps because they're getting maternity allowance rather than statutory maternity pay because of their different treatment than universal credit. And then some people from abroad as well who are excluded from reserved benefits. And other than that we think that there should be priority given to back dating new claims for a Scottish child payment which currently can't happen unless somebody already gets Scottish child payment for another child. And addressing the issue of the cliff edge where a small increase in income can result in a drop in Scottish child payment because universal credit stops and leaves someone worse off overall. And finally my list of demands continues. The issue of qualifying young people as well because increasingly it's expected that people beyond the age of 16 will remain dependent on their parents in school. But at present 16 is a cut off point for the additional support provided by the Scottish child payment. OK, thank you very much indeed Mr Shaw. That's by my reckoning about seven priorities but anyway that's lovely. Thank you very much. I don't know if there was any supplementary. I believe that Bob would like to come in on a supplementary. Yeah, thanks. I suppose given Mr Shaw's set out priorities for using that greater flexibility by the legislation making the provision for a standalone benefit if you like. I'll come with Mr Shaw with the supplementary. Of course this is not about more money in relation to the Scottish child payment. It's about greater flexibilities which may require more money. Can you say a little bit more about the cliff edge? Not just in terms of universal credit but in terms of better off calculations for people as they may lose universal credit because the increased hours of work are going to full time employment. Is that a hard landing for some families? Is there a disincentive for some people to go into work because there's not a taper in relation to continuing to a roll on or a taper in relation to the Scottish child payment levels as folk get more employment or go into full time employment? Yeah, it's certainly something we see. We get asked about this where the effect of a couple of hours increased work is that that just lifts somebody off universal credit entitlement and right now Scottish child payment isn't the only entitlement that's lost. You also lose access to best start foods at exactly the same income point. You can no longer get a best start grant. As to how that's addressed, one option would be to allow Scottish child payment to taper away in a similar way to universal credit but above the point at which universal credit stopped or a run on would be another option which might be more administratively simple. But also where there's a sustained increase in income wouldn't continue to provide support in the longer term. Both of those should be considered as options and we're happy that the translation of Scottish child payment into childhood assistance will give the option to do either of those things and look forward to seeing concrete improvements made. Because the other side of this is that there's no compulsion to do any of those things at the moment. All this does is change the legislative basis and there's nothing in the bill itself which would force either of those things to happen. Of course that's helpful. It's the legislative basis that's scrutinising rather than the policy positions once that legislative basis has been changed but that's very helpful Mr Shaw. I believe that Diane Connick wants to come in. Yes, thank you. I just wanted to come back in on one of the points that was raised there. I think that definitely one of the priorities has to be separating that out from the DWP benefits like universal credit because what we are seeing in practice is some people aren't actually applying for the Scottish child payment because with universal credit they're going in and out of eligibility. That greatly impacts that so I think that in order for people to actually apply for this much needed benefit it does I think need to very much have that standalone nature. Okay, thanks Diane. I'm going to bring in Richard Gass. Thank you. Just to continue on the John's point about a run on and I think a run on is an immediate necessity. We have many employees across Scotland who get paid either four weekly or they perhaps get extra bonus at Christmas or they get a pay award that's not settled but paid in a lump sum. At a later stage and often where there's the double payment or the extra payment that can be sufficient to take somebody out of universal credit for that period and if they come out of universal credit then that could prevent them from qualifying for the Scottish child payment. So there's an unintended consequence. The person might not necessarily feel any better off particularly if it's a four-weekly pay cycle they're on to then also lose the Scottish child payment would be a double dent. Just an obvious omission is that there's only one means tested benefit that doesn't have a two child policy and that's the council tax reduction which is under the control of the Scottish Government so we would like to think that we would like our own benefit as a qualifying route to entitlement. Thanks Richard. I'm now going to bring in Jeremy. Thank you and good morning everybody. I wonder if I could maybe start with Erika for this question. Just broadening out slightly, this is an opportunity if a Parliament wants to introduce any new benefit around social security. From what you do, if you had a magic wand and could introduce a new benefit what would that be and who would you target at that? Our significant concerns at the moment is around the energy costs being faced by those with health conditions so we would like to see the extension of support for energy costs to working age disabled people. At the moment it is possible to get that additional support if you have a disabled child within the household but not if you're a working age disabled adult so that would be one thing I would prioritise. Following on from what others have said in relation to Scottish child payment and introducing that on a different legislative footing I think what's really the crux of the matter here is developing a needs-based criteria around that new version of Scottish child benefit when it's introduced and we have particular concerns around maternity allowance and the impact of how that's treated as a benefit in terms of universal credit which means people fall out of universal credit qualification and Scottish child payment qualification simultaneously. We would also be seeking an alignment of Scottish child payment with best art foods to facilitate those who have no recourse to public funds to access the support. At the moment it's quite clearly done for best art foods but that's the only benefit delivered within Scotland that currently enables you to access it if you have no recourse to public funds. Thank you. Can I open up to others whether anyone else wants to answer the question in mind if we could introduce a new benefit or what it would be? I think specifically in relation to Scottish child payment I'm not sure if this will quite be a new benefit but right now we can only have one person responsible for a child so I think that something that should be looked at is the situation where you have equally shared care between two separated parents and particularly if universal credit continues to be the trump card for deciding responsibility for a child, the universal credit rules seem to actually prevent the Scottish Government from paying Scottish child payment for one child to one parent and the other child to the other parent which seems like a perfectly logical approach. Okay, thank you very much. Can I just remind the witnesses that are here in person that you don't have to work your console, it will come on automatically when we invite you in? Thank you very much. I believe that Michael Clancy would like to come in. Thank you very much, convener. Can I just draw attention to something that John Shaw said about the upper limit for Scottish child payment being 16? As members and everyone in the room will be aware, the UNCRC Act ensures that the age of a child is 18 in Scotland. I think that I would like to draw attention to article 26 of the convention which states that states parties shall recognise for every child the right to benefit from social security. You can see where I'm going with this. If the upper limit at the moment is 16, yet the convention, which is going to be enforced in the very near future, has a definition of child as being a person under the age of 18, there's a gap there. It might be something that the Scottish Government already have a plan for or one of the panel might be able to inform me that, I don't worry, Michael, this is all taken care of, but I think it's something that we should at least acknowledge in all of this discussion. Thank you, Michael. That is helpful. That's noted. Thank you very much. I'm now going to invite Rossin. My second question is on the proposed care leavers payment. This is something that's a bit of a passion of mine. I'm slightly concerned that we're maybe looking at this from an angle where we don't have a lot of the detail behind this yet. We're still not 100 per cent sure what the definition of a care leaver is. We're still not 100 per cent sure what process this is going to take, whether it's £2,000 upfront, whether it's going to be a split payment. There's a whole raft of information that maybe we don't have behind this question, but I'm going to ask the question anyway because it's on the social security side of things. The CPAG suggests that the care leavers payment should be delivered by Social Security Scotland unless there's a very good reason to use a different agency. So why is that and why would delivery by Social Security Scotland be your first choice if it is your first choice? Erika, can I start with yourself please and then to John? On the last point, I think the key here is consistency and predictability for those accessing the right to social security, everything being within the one agency. I think it's fairly critical here, given that we already have a number of agencies operating in this space, namely local authorities, for example, council tax reduction, the department of work and pensions for reserve benefits, to then ask someone to engage with a fourth agency, potentially. They may also be involved with other support services as well, I think would be quite overwhelming for the sake of consistency, and also the learned agency experience that has been built up with Social Security Scotland also makes them an appropriate agency to deliver the new benefit. Absolutely agree with all the points that Erika has made there. I think the reason we think Social Security Scotland feels like the logical first choice is, clues in the name I guess, in terms of if you can have a single body delivering the new payment across Scotland, the principle is that delivery of Social Security is a public service on the face of the act. I think we'd possibly go further and say that we think it should be assistance within part two of the act, because what that does is it gives consistency, as Erika said, with mechanisms of challenge. I know the policy memorandum cites best start foods as a reason that payments delivered by Social Security Scotland don't have to be within part two of the act, but that does have an issue. There is no right to appeal to an independent tribunal if you refuse best start foods, because it doesn't come within the framework of the act and the same applies to the job start payments. I suppose the other logical option might be delivery by local authorities, but as Erika touched upon, I think there is an advantage to central delivery where there is a single set of straightforward eligibility criteria, which are the same across Scotland, simply because local authorities, by the sound of the consultation proposals, are not going to have any discretion about who they award it to and how much they award, and also there's a question of children who've been looked after in England. Which local authority would be administering a claim made by a child who wasn't actually looked after by that Scottish local authority? Thank you very much. That's very informative. Based on the answers that I accept wholeheartedly and the evidence that we're bringing, but equally I think we should know a little bit more about what it is we're actually trying to do considering the consultation is now over. Is it possible to ask if we could write to the cabinet secretary on a little bit of background information, which I know is not pertinent necessarily to this evidence session, but I think it would be nice for the committee to know. I'm happy to do that as well. We'll write to the cabinet secretary in relation to that. The clerks will note that in the report as well. I'm now going to move on to scene 2, which is applications for assistance, and I'm going to invite John Mason in. I understand part 2 of the bill is to do with late applications. In fact, it's just going to remove some options, but I'm interested to know what witnesses today think if it's okay to leave the other applications as they are with the rules, or if people feel that they need to be relaxed more or tightened up more. Maybe if I could start with Mr Gass and then I was going to come to Mr Clancy. The intended rules for appeals and for redeterminations, that's welcome, but you're right, there's a gap when it comes to claims for benefit. Claims for benefit under Covid would recognise that there was an exceptional circumstance, so let's allow those circumstances a backdated claim. The fact that not many folk took up that option should not be a reason not to have a provision going forward. In fact, if not too many folk take up the option then there's a financial security that's not going to burn an expenditure that's unpredictable. But there are circumstances, somebody who's perhaps involved in a car crash in a coma or some with severe mental health problems. Why should, as a consequence of their inability to make a claim, mean that they lose out on entitlement? So not seeing making an open door, but look for exceptional circumstances and where these can be evidenced, then it would only seem proper that payments could be backdated. I mean can I just press you on that as to what is the logic for backdated payments? Because if it's something like say a funeral payment, well that was a one-off payment and you can see why it needs to be backdated. But if it's food or heating or something, in a sense that's already gone, they've already gone with a cold house or lack of food. So what is the logic of a back payment in such circumstances? Well, they may have gone with a cold house or they may have gone with a house that was heated and the bill has not yet been received so that the costs could still be there. Someone who is perhaps in hospital with mental health or with a physical disability, yes, they're maybe not living in their house but they're ongoing costs outside the hospital ward do still continue. OK, thank you. Mr Glancy, from a legal point of view, should people always be entitled to let payments and should there be a limit as to how far back people can go? I would hesitate to say that my view would be a legal point of view, Mr Mason, but I'll try my best. There is always, I think, an interest in having latitude because sometimes the hard cases make bad law and we all know that maxim. Our view on the issues which you raised generally was that laws which make the situation for people who are in a vulnerable position more complex or less accessible are not really good laws and that we should be wary about introducing additional complexity. I think that that comes out in terms of the time limits for appeal and the way in which 31 days can be extended to a year essentially. It's also this difference between having a good reason for delay in making the application and transforming it when it comes to the appeal stage to being exceptional circumstances. Sometimes the difference between a good reason and exceptional circumstances might be difficult to get a grasp off. I know that I struggled a little with it myself when looking at the bill, but that's what our committee has been thinking about is that we should make things as easy as possible for applicants and make sure that the routes to redetermination and appeal are clear and that we shouldn't introduce unnecessary complications to the system. Miss Young, if we just throw in good reason and exceptional circumstances all over the place, does that cover all eventualities or does it just make it all very vague? I think that what is important here is that there is a structure in terms of the guide. At the moment, for example, with adult disability payment, which is an extremely complex benefit, can be very daunting. It can be psychologically exhausting to go through that application process. Advice can be essential in many circumstances but it can take time to organise. It can even take time for a client to psychologically prepare to ask for the help. We therefore think that there needs to be consistency in the benefit journey in complex benefits such as adult disability and child disability benefits. If we're going to introduce good reason and exceptional circumstances in respect of redeterminations and appeals, I think that it's vital that we also introduce that for completing the initial application and also for submitting review forms. At the moment, if a review form, you only have 28 days to do it regardless of whether it's scheduled by Social Security Scotland or triggered by a change in circumstances. To alleviate distress, we think that those two concepts need to be there across the benefit journey. But there also needs to be some structural guidance around them to understand some of the complex differences that we've just been hearing about from a legal perspective. There'll also be some differences in the way the tribunal might view it as opposed to the way Social Security Scotland might view it for redeterminations because they're independent entities. So guidance that helps both bodies apply consistently will be important. At the moment, for example, if you apply for adult disability payment and you do submit it late, there is a possibility to use good reason. Again, that's not elaborated on or defined in either decision makers guidance or within the legislation itself. So we do need to have a think about that. What is at stake here is the finances of the claimant because if an application has to be done afresh or if it has to be treated as made from a later date than it otherwise would, that has a financial implication for the claimant. But it also has a financial implication for their network around them. For example, someone waiting for the outcome of an adult disability payment in order to access carers allowance will also be waiting for additional finance when they may have just given up work to care for that person. So there's a lot of complexities in here that I think indicate the need for a consistent approach. Okay. Mr Shaw, did you want to come in? Yes, I could. So I'll try to explain this simply and quickly. So late applications to me looks at two things. So I think the other witnesses have made some excellent points about what happens if it takes you some time after initial contact to complete your application and there is existing flexibility. So the other kind of late application is entitlement beginning before you contact Social Security Scotland. So care of support payment is an excellent example. All you need to do is apply for care of support payment and say, I met the conditions up to 13 weeks before the date of my application being started and Social Security Scotland can award the payment if you met the conditions. No need for good reason. That's a policy choice to allow what we would call backdating of up to three months. So Scottish child payment is another example where the qualifying benefit can be backdated. But at present there is no provision in the rules for an application for Scottish child payment to be treated as made before the date it's submitted to Social Security Scotland. Richard Gass made some excellent points about the fact that you might still be accruing bills which you are unable to pay. You might have borrowed money in order to manage your circumstances until your universal credit is sorted out. So would you argue that it should be 13 weeks for everything with no reason necessary or as Miss Young suggested, some are more complicated than others so therefore there should be more flexibility? Yeah, I think case by case I think we being who we are would obviously argue Scottish child payment should be a priority. One slight mitigating factor for the disability benefits is you have the 13 week qualifying period because you're never going to get paid until you've had the needs for 13 weeks unless you're terminally ill. So that provides some mitigation in relation to the disability benefits but the approach taken by a lot of the reserve benefits was a kind of halfway house where there was provision for a claim to be treated as made earlier than the date of first contact with good reason. Now none of the current Scottish benefits do that and we think it's more administratively simple if the only decision Social Security Scotland have to make is that somebody met the entitlement conditions rather than also going into why it was that they weren't able to get in contact sooner because that simply creates more of a burden for the decision maker. So I think certainly if you look at care support payment the decision has been taken that there will be back dating of care support payments to before those regulations were introduced simply because it can take so long for somebody's disability benefit to be awarded. So I think certainly we need to look again at all of the Scottish benefits and most of the other ones are one off payments which again if you have an application window should you be able to play outside that window if you would have met the conditions had you applied in time. The take up strategy is absolutely a laudable aim but it's never going to have 100% success and to me the other side of that coin is if we acknowledge that it's not going to be 100% take up on the first day entitlement could have started then a way of mitigating the impossibility of reaching everybody in all circumstances is to allow decision makers to look at whether someone would have been entitled to this payment had they been in touch sooner. Thank you very much and I believe Jeremy, did you want to come in on a supplementary? Again I'm happy to thank you for that. Just around the issue on regard to first tier tribunals my understanding obviously during Covid they went either online or on telephone. I was approached by a number of people who were saying they're still happening on telephone and I'm just wondering from your experience whether that's the best way to do it or whether we should go back to being face to face as we were pre-Covid. Thank you Jeremy. This is a significant issue that the network is experiencing. There is supposed to be an approach by which if there is a good reason for requesting a face to face hearing that should be accommodated but the experience of our network is that that is not being accommodated and telephone hearings are the default position. That's problematic for a number of reasons. Most importantly consultations as a last resort is an incredibly laudable aim. It's impossible to overstate the progress that has been made in relation to that but what that does mean is that by the time it reaches the appeal stage face to face contact with the person has not actually happened at any stage of that claim and that person may be desperate to actually speak to someone to demonstrate their circumstances and to actually present their circumstances in the most powerful way. It's also an important part of the function of the tribunal to be able to tease out that evidence and it's often cogent oral evidence that really makes the difference in terms of a tribunal's decision. It's also the case that people with certain mental health conditions or neurodivergence will find it very difficult to communicate by the telephone and to fully express their circumstances. I think that face to face is a vital part of the tribunal service and at the moment there seems to have been a very significant shift away from it. Richard, I don't know if you have experience from Glasgow as well. Yes, we would favour face to face appeals where that is the appellant's choice and we've tried to exercise that right to have a face to face appeal. The appeal letter itself doesn't give the option to tick do you want a face to face appeal and we have queried why we're being refused face to face appeals and we've been advised that it will only be in exceptional circumstances. The disadvantage to that is that speaking to somebody over the telephone they could tell you that they're able to do something but the tribunal then denied the opportunity to see with their own eyes the difficulty with which someone might be entered the room, how they rose from their seat to leave the room, how they conducted themselves during the hearing. Simply relying on the person's verbal expression really misses too much of the evidence available and I'll stop there, I was going to say something else but I'll stop there, that's fine, thanks. I think just for the record the community I should point out that I was a previously a member of the first year tribunals just for the record for that, thank you. Okay, thanks Jeremy for making us aware of that. Now we're going to move on to theme 3 which is challenge in decisions and I'm going to invite Marie McNair in, thank you. Thank you, convener and good morning panel, it's good to see you all this morning, thanks for your time. The bill makes changes to revisions for late requests, for redeterminations and appeals and will these changes improve the client experience and what other changes to redetermination and appeals, timescales are needed? I'll go to Erika first if that's okay. Sure, absolutely yes, we do anticipate that this will improve the claimant experience quite dramatically. Our advisers see people for whom picking up the phone to ask for help can take over two weeks of psychological preparation, others who are consumed by, for example, on-going intensive treatment or court processes involving abusive former partners. Those kinds of circumstances are not currently that well accommodated by the existing system, so we think that those changes will improve that. We would support robust guidance, co-designed, to ensure the effective implementation of those changes, even under the existing provisions. What we're seeing is quite wide-ranging reports of inaccurate information being given by call-handling staff informing people that the six-week timeframe to request a redetermination is an absolute limit, and that, of course, can cause drop-out. People assume that information to be correct and they decide that they can't face any further challenges, but in summary, yes, we do think that there will be significant improvements happen as a result of these changes. Does anyone else want to come in before I move on to the next question? In relation to the second part, the background paper helpfully sets out the different timescales. Coming back to Erica's point on people understanding and simplicity and consistency, we think that the deadline to request a redetermination without needing good reasons should be equalised across the different benefits and also extended. Come back to my previous point, people struggle to provide that good reason and articulate it. Just on the timescales for Social Security Scotland to carry out a redetermination, even if there is a justification for different timescales depending on the complexity of the benefit, the justification for sometimes using working days and sometimes using calendar days, it just feels like a needless complexity. I think that there is also an argument for aligning appealed headlines, but that would require changes to the primary legislation as well. Thank you for that. I believe that Richard Gass would like to come in. Thank you. I would agree that the proposed changes won't make things better. However, I think that a bigger change that would make things even better would be to do away with mandatory reconsiderations. It's just adding an extra hurdle to go through. We know that the changes are going to allow when appeals being lodged for Social Security Scotland to make another decision. Why have the mandatory reconsideration? Somebody should simply be able to say, if you've made a decision, I'm not happy with that. I'd like to pursue that further, and the ultimate pursuit of that would be to a tribunal. If the opportunity arises to improve the benefits of their satisfaction prior to getting their grade, it's unnecessary for an mandatory reconsideration. Thank you. What measures are needed to ensure that individuals are not pressurised into either lapsing appeals or withdrawing redetermination requests? Obviously, you're raising your written submission, and we know from 22 to 23 that 22 per cent of PIP appeals were lapsed. Can you give us some insight into the current practice by the DWP in any lessons for the Scottish benefits? What's the DWP system? What's happening is that when somebody has their mandatory reconsideration—get my terminology right there— they may have uttered the words, I want to appeal the decision, but the next step is the mandatory reconsideration. They then get awarded something at that. They feel they've had a bite at the cherry, and therefore, to go to a tribunal after that, they may feel that there's no point. I'm not going to get anything more. So we're concerned that when Fokker offered a wee bit more, they then accept that, thinking, well, that's the best it's going to be. At a tribunal, they're then reaching for something that is out of reach whereby it should be a case of it can progress to a tribunal because you've not been awarded everything you've asked for, but the option is for you to now withdraw your appeal, not to be in a situation where you have to then initiate the next step. Oh, that makes sense. No, it does. Thank you very much. Sorry, I believe that Michael would like to come in and then Diane, thank you. Thank you, convener. It's a very interesting question to pose, and I'm thinking of the one about mandatory redetermination stages. Now some, of course, and we've heard the argument this morning, oppose mandatory redetermination because it places an obstacle in the way of appeal rights. And we think that having an immediate right of appeal would not preclude Social Security Scotland from undertaking a redetermination review to ensure that a decision is correct and can be defended before an appeal. That would be one distinct possibility. But even if we look across to what happens at UK level, mandatory reconsideration accounts for about 70 per cent of UK DLA and PIP appeals, which are still successful. So we suggest that it's not necessarily getting to the correct position here, and we've got to think carefully about this. On the question of lapsed appeals, I think one of the ways in which we are suggesting that lapsed appeals could be properly evidenced is, of course, to have the individuals concerned, confirm it in writing that they are content for their appeal to be lapsed and their redetermination request to be withdrawn. I think we've got to have informed consent to these exercises, and it's something which is quite important, particularly when we think in terms of the Social Security principles in respecting the dignity of the individuals concerned. I just wanted to come in on a couple of the points. The first one about the mandatory reconsiderations process within that. I think that to go straight to an appeal would potentially put a lot of our vulnerable clients off of the appeals process, because I think the whole prospect of having to go to an appeal can sometimes be too much for people, and I would be worried then that people weren't potentially challenging a decision within that as well. There's also, with the mandatory reconsiderations being dealt with that bit quicker as well, the payments potentially should come through that bit quicker than waiting for payments to be made and backdated after the appeals being heard. I think that it is more cost-effective for it to be done through the mandatory reconsideration process within that. I think that we would be in favour of there being a process, whether Social Security Scotland can go back and do that as part of the appeal process. There's not that sort of stage as such, but I would be worried about it disappearing completely. The other thing with regard to withdrawing a mandatory reconsideration or an appeal, I think that it does all come down to claimant choice, but I think that the claimants, if they're looking to withdraw, should be asked if they've sought advice at all and they should be encouraged to do so, because it may well be that they lodge a mandatory reconsideration and then they maybe get advice from an advice service and find out that really they have got the benefits that they feel they're eligible for and then they might want to withdraw that or likewise they might decide then that they want to put a mandatory reconsideration in at that stage. I think that there definitely needs to be that, the same with when they're withdrawn as well. I like the idea of a pulling off period for that to be reinstated, because again I would be concerned that somebody withdrew their application and then they maybe sought advice after that and found out that yes, they do have grounds for appealing that. I think that there definitely needs to be that. Diane, sorry, can I just stop you there, because I believe that further down in the session we've got that line of questioning, so I'll stop you there and I'll bring Marie back in. Okay, thanks. Can obviously CPAC suggest that the redetermination request that have been withdrawn should be able to be reinstated, if the client changes their mind, obviously just discussed, and how would that work in practice? I think that a good model for that is the ability to reinstate a withdrawn appeal, which Diane mentioned. The issue here is that there's no secondary legislation around redetermination, so it has to come in via an amendment to the act. We would argue that it should simply be enough for someone to change their mind. The issue is that if you have to make a further redetermination it might be late. That places a burden on the applicant to justify lateness and explain why they've changed their mind and a decision making burden on Social Security Scotland. So we would say a simple amendment to say that somebody who has withdrawn a request has a fixed time period to reinstate that request and doesn't need to give any reasons for doing so. Diane, do you want to come back in again and just expand on that? Yes, thank you. Not really, no. I mean, I think John's just covered that there. I think it really, there does have to be something written in that people are able to withdraw, but I think there does need to be that time period then given to people. And it has to be a reasonable time period as well, because it might well be that people want to seek advice, which can take a bit of time as well within that. In general, I'm also interested in how the first tier tribunals are operating in relation to the Scottish benefits. Will we have you here? Is there any concerns you want to highlight to us? Anything you want? Not at this stage. I think it's too early really within the process to be highlighting a lot of that, because really with the time it's taken for things like adult disability payments to be processed, we are just starting to see a lot of those challenges coming in at the moment. So I think that that might be something that we can answer at a later stage. But again, just to say that there have been a couple of occasions where we've ticked the box as well for face-to-face and that that's not being offered. So I think there just needs to be a wee bit more around that. But I think that it's timescales as well, because I know it's quicker to do that the tribunals over the phone and there can be a quicker appointment than potentially waiting for that face-to-face. But there are situations where face-to-face is preferable for the clients. I believe that Richard Gass would like to come in. Hello. I saw in the Spice paper that one of the suggested questions was about whether any current practices that we could recommend a change would necessarily require legislation. I think your question there pointed towards that. If not, then I'll hold my fire and come back. If that was part of the question then I've got something to say. Richard, I'll stop you there and I'm going to invite Paul O'Kane in who I believe will draw up on that question. OK, thank you very much, convener, and good morning to the panel. So what we'll maybe do is there's a specific question around one of Citizens Advice asks in this space, and then we'll come back into the generic issue if that's all right. So obviously the bill doesn't change the requirement to have redetermination before an appeal, but Citizens Advice have said quite clearly that they want to see that change. So I wonder if I can just ask you to explain a bit more about that, asking the advantages and disadvantages that you would see in that space. Absolutely, thank you. We believe that the focus of all of these reforms should be on breaking down barriers to realising the right to social security, simpler, more accessible mechanisms that just improve accountability and the engender trust. Being refused adult disability payment, for example, it triggers very complex responses and mixed emotions. It's a difficult thing. A system that delivers on dignity, fairness and respect should not expect people to wait a minimum of two months for Social Security Scotland to ineffect market's own homework and to then have to go through a further administrative process to raise an appeal. The entire journey process from applying for adult disability payment to having an appeal heard can take over a year, and we just don't think that that can be acceptable. Our advisors can struggle to support people to remember what their circumstances were at the date of the claim, because so much time has passed. Again, we don't think that that can be acceptable. A simpler process that allows a client to simply submit an appeal, at which point the appeal lapsing process can be used to reduce unnecessary hearings. We believe that that will offset any additional pressure that it might be placed on the tribunal service. We also think that the emphasis on the appeal being lodged to an independent body without necessarily an appeal hearing always going to go ahead will alleviate some of the anxiety that has been highlighted before that some clients might have about going to an appeal. It's not necessarily going to happen. I would also highlight that the data is suggesting that the success rate, as in awards in favour of the person, is about 52 per cent for redeterminations and 54 per cent for appeals. It's roughly equivalent, so we think that it's just an additional process in effect. I think that it's always important to be in mind as well that pressure is frequently also dealt by the friends and family members upon which the person is becoming increasingly reliant for support. It's impossible to overstate just how significant these awards are in terms of helping people manage their day-to-day lives to access the kind of support that's essential for them. We know that a lot of that is diverted into the really fundamental, such as nutrition and energy costs. People cannot afford to wait these lengths of time. The mandatory reconsideration process is simply an additional step. Our network is currently having to advise people to go through, for example, bowel cancer treatment, complex court processes and release into domestic abuse. At the same time being told when they present with an unsuccessful redetermination, we're really sorry, but what we have to advise you is that the next step is to raise an appeal. It's exhausting and overwhelming for people. I think John might want to comment if that's possible. Absolutely. What's been described here is very similar to the pre-2013 DWP appeal process. You only have to make one challenge and if the decision is changed it can only increase your award, so that's similar to the protection which we're looking at introducing here. I think we haven't really seen a lot in the redetermination process which we opposed during the passage of the Social Security Scotland Act to show that it's meaningfully different from mandatory reconsiderations at the UK level. The advantage of the direct appeal is simply that it never has to get to the tribunal service. If somebody identifies a more favourable decision to the person then they can make it and the tribunal service never has to be involved. For that reason that's why we argue that we don't think consent should be required to lapse an appeal because that simply adds a bit more confusion and debate. I realise I'm not saying the same as the other witnesses here but because there is that protection that it must be more favourable it makes it more administratively simple and it would fit well with removing redeterminations entirely because one of the things that we are worried might become a chilling effect on people challenging decisions is that redeterminations can't make the award go down as well as up. So if someone thinks they haven't been awarded enough but have been awarded some benefit then obviously that becomes a barrier to challenging that decision. Whereas if you go straight to an appeal and the decision maker can only lapse that appeal if they make you a more favourable award then that will remove that disincentive to challenge and as Erika says the justification for two steps is difficult to see. I don't have any further comments just on that point before we move on to a subsequent point. There's no indication. No. Okay, thank you for that. I think that that's helpful in terms of our consideration. The bill would also clarify the actions a tribunal and ministers can take in a process appeal. I think that Cyneti is keen to understand the advantages and disadvantages of having different procedures for challenging process decisions compared to other kinds of decisions to do it if Richard or Diane might have a view on that. I think that process appeals and the one determining the facts should be the same process. I don't see a justification for them being different. Sorry that's maybe not a very well stated answer but that's my answer. Thank you. Would anyone else want to comment? I think John can do that. I absolutely agree with Richard. I think it's worth saying we may come back on to this with the overpayment liabilities but that's going to be a separate challenge process. We're going to have reviews of appointeeships which looks like it might be a further different challenge process. There's an obvious advantage to a simple and straightforward and unified process to get from not liking what has happened to an appeal tribunal. The only advantage of the current process appeal process that I can see is that otherwise there would simply be no challenge to the failure to accept an application or a redetermination request. It's better than nothing and certainly it felt like it was introduced as a kind of way of ensuring that there was some oversight and ability to get to an independent challenge but we would certainly agree that unifying all of those processes would be a positive step. Thanks very much. I'm now going to invite Jeremy in, thank you. I have no question, Ms Covina. No, okay. We're moving on to theme 4 in terms of overpayments and I'm now going to invite Bob Doris in, thank you. The section is about overpayments where the liability sits for those overpayments and I'll bring in liability potential and client representatives as well for the first time. The intention of the provision of liability is that the person who benefits from overpayment is liable for that irrespective of whether that's the representative or whether it's the individual who has the right to underline claim in the first place. Has the Government got that balance right in how this is framed or are there alternatives that some might want to suggest? I'm not sure who would want to come in on that only because Erica is twitching her head. I'm happy to kick off the discussion on this one. We're broadly supportive of the policy intent here which is obviously to make sure that the beneficiary of an overpayment should be the person potentially liable to repay it where it's lawfully recoverable. Our difficulty with it is however the seeming conflation of different types of advice and third party representation. So advice workers and agencies who take instructions and apply the regulations rather than managing a client's affairs or acting as a conduit in the manner of an advocacy worker, they might be deterred from acting. Those are different types of third party involvement. Where third party involvement is from a person with a financial stake, any overpaid funds are likely to go into a household pot. So it may be very difficult to delineate exactly who's had the benefit of any overpayment. So effettively that's our fundamental concern. In some instances there might be more than one type of advice work involved. So there might be a formal advice agency, a welfare rights worker, but there might also be a friend or family member who's perhaps filled in the initial application and it's then gone to an advice agency for a redetermination. There might also be an advocacy involved at some stage along the lines of the process. So at the moment the provisions don't seem to make any distinction between the different forms of third party involvement that I claim may have had at different stages in the process. So just before I bring others in, Ms Young, you said that the general principle is correct, but there has to be clarity between what we mean about where liability sits, where that may be the advice sector offering advice and then acting on the instructions of clients irrespective of whether they follow the advice offered or not and whether there's a direct financial benefit to the individual or organisation after that overpayment. That all has to be clarity. So the underlying principle is okay, but that has to be set out more clearly and clarified. I don't have words into your mouth, but we're obviously looking at how this legislation has to be beefed up or made more clear. Is that what you're saying? That's precisely what I'm saying. Yes, exactly. It is that clarity. The overall policy intent is not something we oppose. It is about that clarity between the different types of third party involvement. Is there a general consensus amongst witnesses that that's the case or that others want to come in and say something contrary to that or to add to it? We don't quite see how it's going to be implemented. It's going to be really difficult to work out who's benefited. There may be situations in which both people have benefited. What's the proportion here? In terms of alternative suggestions, I suppose it's worth remembering that there are more situations in which devolved social security assistance can be recovered than there are for the benefits replaced like DLA and PIP. If you had more restricted situations in which someone was liable, for example if it was only because there was a failure to disclose or a misrepresentation of something that Social Security Scotland could take the money back, then it would be much easier to decide who it was who failed to disclose or who misrepresented, and that would be your starting point for who the money was recoverable from. Potentially, if we're looking for more clarity about liability and who should be responsible for meeting that, if we got back to the previous DLA and PIP system, unless there was a specific failure by somebody, the overpayment is not recoverable, then that would certainly make it easier to identify who that person should be. I can see nothing heads in the room anyway. I'm not sure no-one only wants to come in on that. I think I heard in your question Mr Doris that the role of advice agencies, and I just want to make clear that we would not support the idea that advice agencies would be covered by a representative in this situation. Advice agencies enable folk to make claims for benefit. We take at face value what people tell us, and it should never be the case that a representative from the advice sector is held to account for that unless there were some ruled charlatan and it was fraudulent, but let's assume that that's not the case. At the end of the day, we help folk to fill in a form, and they then sign the form to say that they are happy with what's on that form. Just to clarify that advice agencies are not representatives in this definition. My second point is that there is confusion and complication, and it's already been alluded to that the appointee, the money, might go to the household. We could be further complicated if the appointee is managing a DWP benefit for pension credit and also the Scottish Government. I don't disability payment at the moment, but the older person payment in the month to come. If there's been some mispending of money, how do you then determine which money was spent and who benefited from the Scottish benefit and not the UK benefit? I think it's helpful to take some real life examples of how this is going to have to be applied in practice, so I appreciate that. Can we move on to this? I feel that we're turning the clock back slightly. It looks like we're talking about re-determinations and appeals, but in particular I suppose this would be for John Shaw because this was raised in evidence by the Gel Poverty Action Group. The bill will allow for a review of a decision over payment liability, but I think that Mr Shaw's position is that the Gel Poverty Action Group's position is that the legislation talks about a review. Mr Shaw, I think that your organisation is talking about a re-determination. Is it just different words for the same thing? No, it's not because it's different processes. It's what I'm going to describe as a copy and paste job. If you look at the new sections which have been put in, they are very clearly identical to the re-determination and appeal provisions in relation to a determination of entitlement. I think what we risk here is replicating the confusion in reserved benefits where you have to challenge the decision that you've been overpaid and the decision that the overpayment is recoverable separately. Now in the reserved system, because there's a unified tribunal system, which we don't know if that's the Scottish Government's intention here, you can end up at an appeal which could deal with both decisions, but you have to challenge both of them for the tribunal to be able to have that jurisdiction. So I suppose what we were expecting the policy solution might be when we were arguing that there should be a right to challenge liability is that it would be added, for example, as a decision under section 50. So as part of your determination of entitlement, you would get, is there reliability? Who is liable to repay that liability? And that would then create the possibility to use the redetermination and appeals process that already exists elsewhere in the act to get to a single hearing, which would then look at was the person overpaid. And if you've decided that there's no overpayment, you then don't need to get into the question is, is there reliability to repay that overpayment at all? Okay, again, just for my clarity, that's very helpful for myself, and I realise there's a very clear difference between reviews and redeterminations, and that's something I wasn't aware of, so thank you, Mr Shaw. Is it unclear about whether, if there's a review, that that will still progress to an appeal if that review is not successful for the individual? Is that one of the more substantive issues in relation to my redeterminations and reviews are different, just so the committee can be clear? I'm sorry if I haven't understood correctly, Mr Shaw, but I just want to tease out the importance of a redetermination as opposed to a review. No, sorry, I think my answer possibly wasn't clear too. So the review provisions mirror the redetermination provisions, and then there is provision to appeal against a review, which mirrors the appeal provisions against the determination of entitlement that has been placed in a separate section of the act. So essentially a legal process, which is identically worded to the existing provisions, has been created by this piece of legislation to sit alongside. So what we're not really getting, having looked at the policy memorandum, it's suggested that the options were do nothing or create this new process, but there was nothing about the possibility of ensuring that the existing redetermination and appeal process could be utilised in relation to liability. So there is 100% a right of appeal. It's worded identically to the existing rights of appeal, but it sits in a different place within the legislation. OK, I think I'll be looking back over the official report and digesting that, and see what the Government obviously says in response to who she is listening in response to that as well, but I'll move on. Ms Young, it was your organisation that spoke about suggesting that there should be an income threshold in place in terms of where debt is sought to be covered. I know that there's provisions within the legislation about the social security sector that should be looking at the financial circumstances of each and any individual. Where there has been an overpayment, liability has been determined, any appeals process has been exhausted, and it's clear that there's been that overpayment. Why do you think that there should be that income threshold? We feel that that would be the fairest, most sustainable, most efficient way of recovering lawfully due overpayments. Reason we argue that is that at the moment there is no structure either in legislation or guidance as to what constitutes hardship. Although we will not knowingly place someone into hardship, that's a very vague concept that isn't actually defined. Although, for example, with the adult disability payment regulations, for instance, deductions to be taken at a reasonable level having regard to the circumstances of the individual, that's not further defined. There's no guidance on it, so there's no, for example, guidance threshold on what the percentage deduction from someone's on-going benefit would be. To give you an illustrative example of the kind of problems that this causes on the ground, we had a person who had recently been released from prison, had been on remand for five months. I've created an overpayment during that time due to practical difficulties in reporting changes in circumstances, et cetera. The suggested rate of recovery that the social security agency suggested was £195 a month. The debt was only £670. Given the circumstances of this gentleman just come out of prison, dependent upon universal credit, already subject to deductions from his universal credit for an advance payment, for remand, for remand. The rent arrears and council tax arrears that were also accrued during his time on remand, £195 is an entirely unfeasible level. Those kinds of things are happening, those kinds of suggestions are being made because there isn't a structure. An income threshold working much in the same way as student loans, for example, are recovered would be a much fairer basis and a more sustainable basis for recovery of lawfully due overpayment. It's always helpful for me to get a real-life example. It makes it real rather than just a dusty legislation. Was that under social security Scotland, that repayment figure? That's correct, with an adult disability payment over payment that had accrued. I appreciate the concerns. I think that there's no real fleshed-out criteria by which that ability to pay or what a reasonable rate would look like is determined. One option could of course be some decent guidance in relation to this rather than an income threshold. I suspect that I still want the income threshold, but the reason why I'm asking for that is because income thresholds could change over time. Whether that would be in the face of the bill or whether it would be for the bill to take the power to set an income threshold at a later date on the basis that secondary legislation could then amend that income threshold as appropriate. I'm just conscious that income thresholds are also about an arbitrary figure as well. There's other things happening in an individual's life that has been taken into account. It's whether you're wed to that income threshold, whether that should be in the face of the bill and whether more meaningful guidance might be a way around this to be more meaningful also. I think that guidance would certainly be helpful in terms of the minimum income threshold. I think that what we would be seeking is the development of a mechanism for setting that as opposed to it being prescriptive. It would be the mechanism by which that would be determined, similar to the manner of student loans. We've been, for example, looking at the minimum income standard and the minimum income guarantee and how that might work in practice as a tool to determine what the threshold would be. Obviously, that's still a work in development, but that's the kind of thinking that we have behind this, which would be more around the mechanism by which we determine what that threshold should be as opposed to prescribing what the threshold should be. That's really helpful. Thank you very much. I'm moving on to team 5 now on appointees. I'm going to invite Paul In. I just wondered if witnesses had any comment on the extent to which DWP appointees are already recognised within the Scottish social security system and the time it takes to be authorised under the Scottish social security rules. The existing provisions transferring people from disability living allowance and personal independence payment, the new disability payments do allow for recognition of DWP appointees. It simply looks like it's mirroring that. For example, where somebody's got an appointee for universal credit and claims Scottish child payment, it looks like the intention is to allow a temporary treatment of someone as being appointed under Scottish legislation. I think there is a slight concern with the drafting of it. As far as I can see, it doesn't prescribe that somebody must either be transferred into the mainstream appointment under the act or the deemed appointment terminated. It'll be interesting to see what the regulations say. That's simply because the Scottish legislation allows somebody to raise concerns about an appointee, but there's nothing on the face of the bill that indicates there will be the ability to raise concerns if someone isn't transferred into the Scottish system. We don't have a lot of evidence on the time it takes to appoint people, but certainly of delays where there is no appointee. One of the distinct features of the Scottish system is that if there is a parent with parental responsibilities for a child who lives with a child and is willing to act, there is no power to make an appointment. One issue that can cause is where parents separate, and they both still have parental rights. One of them is acting for the child in relation to child disability payment. There's been long delays where the other parent is saying, I want to take over. This parent has left and difficulties with interacting with Social Security Scotland there. I'm afraid that's not an answer to the direct question, but it's the best we've got of a difficulty which is caused by changes of responsibility. I think this is another area where very clear guidance publicly available so that advisers can support people to make their case and get a resolution to it would be helpful. Before I move on to theme 6, I apologise to Diane, because I believe that you wanted to come in and bobsline a question. Do you still want to come in, Diane? No, that's fine. I'm aware of the time pressure, so I'm happy for you to move on. Thank you very much. I'm now going to invite John Mason in. Thanks very much, convener, and it's concerning part 6 of the bill providing information. I'm going to come to Mr Clancy, not obviously for a legal point of view, but anyway. Do witnesses of any comment and the balance in these provisions between the right to Social Security on the one hand, but the principle that Social Security must ensure they get value for money and they're not paying out to people who shouldn't be entitled to benefits? Mr Clancy? Indeed. Am I on? Yes, I am. Thanks very much indeed for that interesting question, Mr Mason. Of course, we recognise that there is a balance between the country getting value for money in terms of payments made, but we would also like to highlight the other element of the Social Security principles, which is respect for the dignity of individuals who are at the heart of the Social Security system. It is getting the right balance there that has certainly peaked the interest of our committee when looking at the provisions in the bill. When one takes a look at the new section 87b, obtaining information for audit, which is inserted by section 16 of the bill into the 2018 act, you see there that Scottish ministers may request an individual who is entitled to assistance to provide within such provisions. In that period, those ministers specify information about the individual's entitlement to assistance and the payment of assistance to the individual. A request may only be made for the purposes of auditing the monetary value of error and fraud in the Scottish Social Security system and carrying out corrections of apparent errors and investigations into potential fraud. I took a dim view of this linkage between an error and fraud, as stated in the bill. It strikes us as being a rather harsh approach, particularly when under section 87b, where Scottish ministers issue a decision to suspend assistance under section 6, which is what they can do if the person fails to provide the requested information by the end of the period that the ministers have specified. The crux of the issue is that, for an error or a fraud investigation, if someone cannot come up with the information that is being sought within the time limit allowed, the person can end up with their assistance being suspended. It seems a rather harsh penalty, even if there are ways to have that looked at later on in the succeeding sections of the bill, but it seems strange to intermingle error and fraud in this way. It almost seems the opposite of what we normally do in the courts that you assume innocence until guilt is proven. It seems we're assuming guilt until innocence is proven. Is that fair? I'm toyed with that idea myself, but of course it's auditing the monetary value of error and fraud. It's not about saying that an individual has committed fraud, it's about looking for evidence that there has been a fraud committed. Those are two different things. On what basis is the audit being made? The explanatory notes say that Scottish ministers thought that having a sanction such as suspension of assistance was important because there was no way to get this information voluntarily. I'm not well versed in extracting information from people, but I suspect that there are agencies that can give the Scottish ministers advice on getting information without going to the extent of imposing sanctions like this. There might be more softer ways of encouraging people to provide information on the error side. I accept that if a person has committed fraud then they're not going to be happy about being investigated on the basis that there is a suspicion of fraud and that's a different category of issue. But even that is not necessarily a derogation from the right presumption of innocence. I think that that's quite clear in my mind that investigating a fraud is not undermining the presumption of innocence, it is simply an investigation. Error and fraud should not be intermingled. That's an extremely helpful answer, thank you very much for that. I could move to Ms Connick now. I'm just going to widen this out because we said is the balance right between value for money on the one hand and human rights on the other. Mr Clancy raised that if the system is entirely voluntary, nobody is going to tell you anything. Are there enough safeguards in place? Anything around that, Ms Connick? If it is voluntary then yes, you may struggle to get enough of that information back. However, it is getting that balance and I think it very much is around safeguarding as well because my concern would certainly be that people who are really vulnerable aren't sufficiently supported to participate when required to do so. I think that it is about ensuring that people are clear on what is being looked for and there is contact around not just one-off contact or a letter, it is about looking at trying to obtain that information on multiple occasions through multiple channels. However, I would be concerned about benefits being stopped as well for people, especially our most vulnerable claimants. Do any of the other three want to come in? Absolutely agree with the points raised so far. I suppose the other thing here is that there doesn't need to be a suspicion of fraud here for people to end up losing their money. There does not need to be any indication that there is anything wrong with the persons at war, which makes it vital that there are those safeguards of vulnerable individuals. I think if we're piling in on the principles which it doesn't sit particularly well with, it's not being designed for the people of Scotland on the basis of evidence and it's not putting the needs of those who require assistance first. I think ways to safeguarding aspect could be improved, could be if SCOSS were scrutinising the regulations which are made under this power, which isn't currently in the bill. So there's not going to be any independent oversight of that. I think it's important that people can challenge the good reason provision and it's also worth just looking at the drafting of subsection 4 of 87B. When we think about the care that's been taken around inclusive communication and making the system accessible to people, we've got a completely different style of drafting with interviewing person, which is going to feel to somebody like you being interviewed under caution because someone suspects you are fraud. I realise this could potentially partially be mitigated by the way in which it's implemented, but I guess coming back to the comment that we couldn't do this without making it compulsory and using the threat of suspension of benefits, I suppose I forget what the phrasing was, forgive me, it wouldn't be possible to get a statistically robust sample without doing this. So what approaches have been tried? What else are we looking at? We're going to have evidence of determinations and to what extent they're overturned at redetermination and appeal coming through the system anyway. We are also dealing with disability benefits, the criteria for which are essentially very subjective and the fact that two different decision makers could reach a different decision about the same person is not an indication of error in the legal sense of fraud. So I think there's a lot of issues with this and particularly the lack of consultation before. No, that's helpful. The way I use the word audit certainly, there's a lot of ways of auditing a figure in accounts for example and it certainly wouldn't always include cross-examining somebody unless either of the other two want to come in. I'm happy to leave it there, Ms Young I think does. I think we're in danger of exaggerating a problem that is actually quite well and easily dealt with by the current law around fraud and official error. Just to put this in context, a recent freedom of information request answered in January of this year indicated that in 2023 there were 3,509 allegations of fraud. Now, in October 2023 alone, there were 10,145 ADP applications, which is just one Scottish benefit in one month. So that gives you a sense of the scale here, it's very tiny and this critical point about the mix-up here between error and fraud, I think that simply has to be addressed in these provisions as they are at the moment. I think that the provisions also highlight the need for a safeguarding structure within Social Security Scotland, which doesn't currently exist in the same way as it does for certain other reserved benefits and I think that's a concern that these provisions have highlighted the gap there and that it does need to be addressed. Adult disability payment, for example, the claims process can have an enormous impact on people and safeguarding mechanisms that are required to keep people safe, ultimately. Similarly, with the use of adult disability payment, it is used for really effectively lifeline things, whether that's additional energy costs, whether it's travel that prevents social isolation, whether it's other forms of managing a condition. So, again, it's a benefit that naturally needs some kind of a safeguarding process. In a situation like this, with the provisions that we have, if you turn that around into a deed department of work and pensions scenario, they were forced to implement an entire system around advanced customer support leads to precisely to try and go in when someone was about to lose a benefit as a result of some of these provisions in order to prevent to be absolutely blunt suicide and serious self-harm. Now, we do not want Social Security Scotland to end up in a situation where they are forced retrospectively to implement such a system because really horrific things have happened. Would the counter to that not be that the whole system with Social Security Scotland is built on different foundations? If it's meant to be more caring, does it have to be checked so much? I absolutely appreciate that, but I think simply by the nature of the type of service it's delivering, you are going to be dealing with some of the most acutely vulnerable people within our society. That's not to make any sweeping generalisations about who is accessing this benefit. Absolutely not. But it is factually correct to say that it will incorporate some of the most vulnerable in our society. If we are looking at these kinds of systems, it's very important that we have the right processes in place to capture people who are at risk. Richard Gass would like to come in and then Michael Clancy, thank you. Just discussing the safeguards and it was 87B paragraph 5, they may make regulations, not shall make regulations to create exemption categories, but I think that that should be tighter. That should be a requirement to make regulations to define who would be exempt. I would hope that an exempt category would be anybody who has been to an appeal tribe because to reexamine what's been in front of an appeal tribe will be, well, it's been adjudicated on at a higher level. Sorry, Mr Gass, could circumstances not have changed after the appeal? Yes, there could be a change in circumstances depending on the time frame that we are auditing people in this respect. If somebody has recently been to an appeal tribe then I don't think it would be fair if someone who has had a difficult route to get their entitlement finds that they are subject to another process. I think folk would feel that they were being picked on and I think we can probably avoid those and take an assumption that stuff that's recently been at a tribe ought to be correct. There's a right to withdraw for good reason and I would hope that one of the good reasons would be adverse effect to health. I recognise that there's a duty to do the audit but let's not, in the process of doing the audit, make vulnerable folk more vulnerable than lose their entitlement. OK, that's helpful to me. Mr Glancy, did you want a final word? Yes, if I may. It would have been remiss of me not to point out to the committee the existence of the code of practice investigations by Social Security Scotland, which tells us in Chapter 3 what to expect if you are being investigated. One of the things you have to expect is to be interviewed under caution. This is in a fraud investigation. Now, looking closely at Section 87B, I don't think there is a reference there to any kind of caution in the highlighted subsection, which has already been spoken about, subsection 4, requiring the interview in person, telephone call, blah, blah, blah. But there's nothing there about the statement of rights that someone should expect to have because we don't want to impun, and I'm sure that Scottish ministers have no intention of impuning the presumption of innocence at all, so people ought to be put on their guard. To a certain extent, the recognition that Scottish ministers are trading cautiously here is to draw attention to 87D and 87E, which relate to, respectively, a right to support for response to request and a right to advocacy. Now, I think it's important that we understand that these things are easy to say on a statute, but less easy to make sure in terms of practical experience of people on the ground. That's helpful. I think that we'll explore that further in the future. Thanks, convener. Okay, thanks very much. I'm very conscious of time now, and I'm moving on to part 7 of the bill. Do witnesses agree with the principle of compensation recovery? Is it consistent with the social security principles? I think that there is a responsibility to manage public funds, and certainly that's the way things operate within the DWP benefits at the moment. I think that it needs to be clearly explained to claimants by solicitors and their advocates, because certainly people could be expecting the money and have spent that, or whatever they're getting through, not realising that that money has to be paid back at that stage. So, I definitely think that there could be that clear expectation that it's clearly explained, but certainly I do agree that within the principles of social security it should need to be paid back. Okay, Diane, thanks very much. Richard, would you like to come in? Yes, quickly, yes. We'd agree that there should be some compensation recovery, but that should be something that's done at the point of settlement, so that the person's lawyer who's seeking the compensation on behalf of the appellant, or the claimant rather, that there's an amount built in to the award on the basis that that will be recovered to Social Security Scotland, and that any on-going benefits are not affected. It's a one-off thing that happens almost invisible to the claimant, and on that basis it would replicate what DWP do, and that would be reasonable. Okay, thanks, Richard. Now, moving on to part eight of the bill. What further regulations should be added to SCOSS's remit, and why? And I'm going to pose that question to John, thank you. We think basically, in principle, anything that affects an individual's rights or the processes of making decisions should be within SCOSS's remit. On the rights point, that would include the information for audit provisions. I suppose compensation recovery is a slightly different case, given it doesn't look like it would affect the individual, but essentially in the reserve system that is so scrutinised by the Social Security Advisory Committee, so we're not sure what the argument would be for not including regulations about compensation recovery. Basically, it should be a very good reason for it not to be, and nothing to do with an individual's rights or the processes involved in decision making should be excluded. Okay, now moving on to part nine, in terms of the actual principles of Social Security. I'm now going to invite Katie Clark in, thank you. We've already had some reference in relation to the principles regarding compensation recovery, but there have been a number of examples given of aspects of those proposals, which don't seem to adhere to the statutory principles and seem to simply mirror the approach taken by the Department of Work and Pensions. So maybe could I ask John Shaw, in the first instance, to what extent does he think the bill as a whole aligns with the social security principles? I think that's a difficult question. I think there's definite potential for the changing of the basis for Scottish child payment to contribute to reducing poverty and promoting equality. But, as discussed, that depends on how many of my laundry lists of asks are actually implemented in the regulations themselves. I think we've covered very well the specific sections which appear to counter some of the other principles in the way in which they've been consulted on and implemented. So I think it is hard to come to a view on the bill as a whole. I think you'd probably say it's a mixed bag and some sections are undoubtedly positive whilst others are very concerned. So it's fair to say that the individuals getting more money is clearly an improvement, but do you think that, if we put that to one side, clearly is a massive step forward? But in terms of the client experience and the way that the process is, do you think that the bill improves the client experience for claimants compared with previous ways that these matters have been dealt with? I think on some of the technical ones it definitely does. So section 4 and section 6 uncomplicatedly improvements to the system. I'm slightly cheekily conscious that something a little bit technical I should have said about section 7, which was something that we called for. If the convener will indulge me with 30 seconds, we think that the drafting could be improved in order to improve the client experience and in particular the requirement that there is an error before an appeal can be lapsed and that's using the word error in the legal sense. And what we see is actually lots of decisions are changed just because two decision makers can come to a different view on the facts. So by introducing a requirement for an error what you're doing is you're creating a barrier to the decision maker and then they will put that to the individual and say, well can you explain to me why is this an error? And given we're using this in a legal sense it's going to be difficult. And the other thing which will obviously be detrimental to client experiences even once that appeal has ended, if somebody decides that they want to try and get a amount of further challenge having taken advice they'll need to go back to the redetermination stage before they can get back to appeal. And we've now seen a determination looked at three times and we're suggesting a four-three determination before you can get back to appeal again. So things like that could improve the client experience but I certainly think that some of the technical changes will be uncontroversially positive for individuals. Thank you for that and we'll no doubt look at that carefully later. But are there any other provisions that haven't been mentioned up to now that any of the witnesses would want to flag up as making the experience worse? Any aspects that you think the committee need to look at in terms of improving the legislation? Perhaps one area that's missing from the bill is a kind of review of the short-term assistance. And this is something that I'm sure CPAG have already highlighted to Social Security Scotland and maybe even to the committee in that sphere. Someone claimed short-term assistance while pending an appeal. And it's to their detriment because short-term assistance is something that we need to look at. Short-term assistance doesn't count as a qualifying benefit for the premiums that they would get on their DWP benefits. So they win their appeal but they don't get the backdated DWP money. And the easiest correction there would be that what happens is the short-term assistance is recovered and then replaced by the benefit that was under the subject of the appeal. John might want to see more on that. I think Richard summarised the issue very well. To be perfectly honest we're struggling to be clear what the officials think the situation is with short-term assistance. I mean it is clear that it's not a qualifying benefit for either devolved or reserved entitlements in terms of the law. We could certainly write to the committee with more detail on that if you wanted to. Thank you. I don't know of any other witness who has indicated what to come in. No, I believe that Richard Oda would like to come in. I think that Michael Glancy would like to come in on that. Thank you, convener. I was wondering about that balancing act that needs to be carried out in terms of compliance with the social security principles and all that we've talked about in this bill already. Of course, one feature of the social security principles is the declaration that social security is in itself a human right and essential to the realisation of other human rights. As we're going to be entering an epoch in Scotland soon where human rights are pushed higher and higher up the agenda with the prospect of a Scottish human rights bill coming into the Parliament later this year, I think it's important that we get this right, no pun intended, because it's going to be something that will become far more visible in terms of the use of legislation, the use of the Social Security Act, et cetera. I think it's important to remind ourselves what is involved in this connection between social security and human rights. The UN Human Rights High Commissioner has set out the key elements about availability, adequacy, affordability and accessibility. If the committee is going to use that as a test for the extent to which this bill complies with the idea of the social security as a human right, then that could be a route forward for you. That's very helpful. Jeremy, you wanted to come in. Just a couple of technical questions and maybe start with you, Mr Clancy. Unfortunately, due to timing, the delegated powers committee haven't looked fully at the delegated powers within this bill, but we are quite far reaching and quite wide. I'm just wondering, from a legal perspective, are you satisfied that the balance is about right in regard to the powers that have been delegated to the Scottish Government or that something we should take a bit more evidence on? It's an interesting question you raise. I have not, myself, specifically looked at the delegated powers provisions with that level of scrutiny, but what I can do is I can undertake that we'll remit that to our Administrative Justice Subcommittee and see if we can write to the committee in the not too distant future. For personal reasons, I won't be particularly involved in that, but I'm sure that the committee will be able to do that very successfully soon. I'm grateful for that. The second issue is one of the issues that we debated long and hard when the original act was going through was the charter. I'm just wondering, in regard to how it has worked in practice, had the charter made any significant difference to the client's experience? One of the other things we debated was whether it should have any legal basis for charter. I'm just wondering, four or five years on from the act being passed, should it have a legal status or is it sitting in about the right place? If you want to take it away and write back to the committee, I'm happy if you don't have a new mat today. That's a question addressed to me, yes. Do you want me to can't say I'm open and wide? Very good. Excellent. I'll leave it to other people to reply. I believe that Marie would like to come in and then we'll conclude our business. I just wanted to go back to Richard Gass. You seemed to want to say something earlier on about the first tier tribunals and how they're operating in relation to the Scottish benefits. I believe that you were cut off, but if not, I mean, come in quite briefly on that, if you don't mind. Yes, thank you. I thought that I'd kind of missed a slot on that, but we do have some practical problems with the Scottish first tier tribunal, or not so much the tribunal itself, but getting to the first tier tribunal. That is the insistence from Social Security Scotland that our mandatory reconsideration or redetermination rather is done on the correct form and that an appeal is done on the correct form. We have standard letters that we use in these situations, which has our contact name, our details. It lays out a lot of stuff, and it speeds up the whole process. What we're finding is that the MR letters that we send in are being returned and the requirement for it to be on a specific form, and the appeal letters are not being actioned. The legislation, as far as I can make out, doesn't require them to be on prescribed forms, so it was really in relation to a question in the spice paper about what changes could be made that didn't require legislative change, and there's one that allows folk to voice their reconsideration or their appeal in the form they prefer. That is very helpful, and apologies, Richard, for earlier. We missed that question, so apologies for that. That concludes this evidence session, and I know that it's been particularly long, so thank you to all our witnesses. You've given us a really useful content to support the scrutiny of the bill as well. Next week, we will continue to take evidence on the bill with a panel focusing on concerns of specific groups of potentially vulnerable clients who would need support to navigate around the system. That concludes our public business. We will now move into private to consider the remaining items on the agenda.