 Ysbgodol fawr i ddylai, iawn. Aidi i gyd, mae'n meddwl i chi. Mae'n meddwl i ddechrau ei bla fawr yn y fawr iawn. Fawr i storio'n fawr i ddechrau ei fawr i ddechrau ei fawr i ddechrau ei fawr yn y fawr, ac i'n meddwl i gyd yn ei fawr i ddechrau ei fawr i ddechrau ei fawr. Mae gyd yn ei wneud i gyd yn eu gyd yn eich gwbl. Mae'n meddwl i ddillogol â'r byw aeth ar gyfer gwybodol. young Sir Wilmae Mwan yn adnod o ran gwrs oes. lleolio adcontaidd gyd causellolion yn gwirio cymdeinfast i ddign그�au Gônini. Having two panels this morning and items I's panel I that welcome Jeremy F Survey gol 000 member for the Administrative Justice Committee. He was the European Socialist Party of Scotland the former Black Lives numéro 9. David Sempol lodge a CEO of PCS, small görev di koottel committee 굵意oします Newseng Nicaola Dimhuy Zethfyrd ac Nicola Dickie, o'r prinsiebol a'r troyn i chi'n rhoi fe i hyn ar gweith月au hynny, oedd hynny'n gweithio cysylltu'r troyn i chi? Roedd hynny'n gweithio o'r troyn i chi, oedd hynny'n gweith月au a'r troyn i chi, oedd hynny'n gweithio'r troyn i chi a'r troyn i chi? Paul Smith. Mdoeddwch. Good morning. The law society warmly welcomed the fact that the principles surrounding the new social security arrangements in Scotland had been placed on the face of the bill. Supplemented by the further information in the charter, we feel that this will lead to a fairer, more just social security system than currently exists. We would have liked to have seen also in the principles the additional point about preserving the integrity of social security in the new system in Scotland, but other than that we warmly welcomed them. We also think that they will probably help foster a better, more mutually respective relationship between agency staff and the customers that they will deal with on a day-to-day basis. I mean, COSLA remains supportive of the principles and the approach that's been taken around about devolved social security today. So the principle of social security as a human right is one which local government recognises is important and we know the Scottish human rights commission's narrative around the key elements. So things around about things like availability, adequacy, accessibility and affordability of social security will all have to be determined and evaluated so that social security as a human right is genuinely borne out of that. We're also supportive of Scottish ministers ensuring that individuals are given what they are eligible for, and we think that that's really positive that that is on the face of the bill. It will go some way to assisting individuals to claim their full entitlement, which is something that local government is actively involved in making sure that everyone claims what they're entitled to from the various elements of social security. From our perspective, our membership were pointing to the fact that that could be strengthened perhaps by making the principle a bit stronger around about access to independent advice and support to do that. So what we know from our work with the most vulnerable in our communities on the ground is that those who need the most help are the ones who are the least likely to claim what they're eligible for, so I think that that's one of the things that moving forward local government would be interested in. That's what we're going to be doing. Thank you. A bit like my colleagues, PCS very much welcomed the inclusion of the principles into the face of the bill. I think that for us, the key issue is not so much the principles where there doesn't seem to be a huge amount of disagreement between ourselves and the ministers. That's how things are actually implemented. So, whilst we welcome many of the things about the bill, the commitment to a face-to-face service and the dignity and respect that can provide the plans for the determination without application, which goes back to the good old days, if you like, from the perspective of colleagues who work in DWP of the pensions local service and benefit uptake work, the positive face of social security, and the open-handed way that the minister and social security agency colleagues have worked with the union to bring forward implementation. I think that there are a range of ways throughout the bill that we could have given better impact to those principles, and I'll just mention a couple of them. To commit in the bill to the exclusion of private providers is one of the key issues. I don't think that I need to tell committee members about the impact private providers have had in reserved benefits and in the destruction of the reputation of the Department for Work and Pensions. The commitment to annual operating of benefits was included in the bill. It has been a significant move by the Westminster Government in decoupling that and stopping the annual operating in line with RPI and otherwise inflation. The other things that we would call for would include the commitment to mitigate sanctions using the short-term assistance that is included in the bill, the commitment to vigorous scrutiny, and I know having spoken to the minister that she is far from opposed to that, and I suppose it's for committee members to decide how best to give force to that kind of scrutiny. Lastly, to commit to all devolved benefits having a payment pending appeal process, which is a step beyond what the bill includes at the minute. At the minute the bill allows for short-term assistance, we would argue that it should go back to pre-2012, pre-welfare reform act of there being a system of claimants continuing to receive the benefit until they have their appeal if there is a decision made against them. All of those would give much greater force, we argue, to the principles that we do broadly welcome. Thank you very much, and we're certainly investigating that with other members who will be asking various questions. I was interested in Mr Smith in your regard in the charter, which would foster a better relationship between the clients and customers. Obviously, we know that there are charters in other public service bodies, such as the health board, etc. I'm not sure if there is any in the DWP. Can you elaborate on what you meant by fostering better relationships? Is the charter better than charters that we have just now in other public bodies? Perhaps the other witnesses might like to say something about that. I think that the basis for the point that I made was that, over time, as the administration of benefits has become more centralised and taken out of the local area, face-to-face relationship between the DWP staff and the clients that they deal with has become ever wider. The gap has grown over the years with the result that the relationship between them is largely now dealt with by post, by telephone, by email. That has led, I think, as David suggested in his response, to a breakdown in the relationship between staff and clientele. I think that that's something that needs to be fixed. At the moment, I think that it wouldn't be overstating the position to suggest that there is a sort of relationship based on mutual distrust, whereas you want to turn that round so that there is a mutually trusting relationship between the staff and the clients that they deal with. There will be a good deal of work needed to bring that situation about by way of customer service training, as well as the other training that staff will need. Did you want to come in, Mr Sample, on that or Nicola? I absolutely agree with what Paul Gisd said. If we want to talk about distrust, we can't have that conversation without talking about sanctions and the fact that they were the thing that began that distrust between claimants and the staff who have always been there and believed at their job to support those claimants. Nicola Dickies, did you want to come in? I don't disagree with anything that anyone has already said. I mean, COSLA welcomes the intention around about the charter. Anything that can foster a good relationship between the most vulnerable in our society and those charged with helping them claim social security seems like a good thing. Asposing conversations with local government officers, they have been clear that the charter should be a two-way process, so it should have rights and responsibilities, and that is the way to perhaps breathe life into that. Staff of the agency do not see it as something to beat them over the head with. It is the opposite. It is a contract between them and the people that they are serving. It is something that has lots of plain English language in it. It is something that is actually usable, something that we can display and that people can buy into the ethos on both sides of the table, if you like, claiming the assistance and helping with the assistance. I think that there is a real opportunity for us to do that. I think that it is helpful that the bill commits the ministers to developing that charter and co-production with those who will be using the charter. I suppose that we would emphasise that there is an awful lot of experience across the public sector landscape in Scotland, and not only those claiming the benefits or those charged with giving out the benefits should be involved in that conversation. All of the public sector landscape should be bringing what they know about relationships with customers to the forefront on that. We are absolutely in agreement and we stand ready to help from a local government perspective. Thank you very much. That is what I got when I was speaking to staff and, obviously, claimants as well in job centres, etc. They do not tightly call them job centres now, but you get the drift of that anyway. Ben Macpherson, do you want to come in and supplement you on that one? Yes, please. Thank you. It is just a supplementary for Paul Smith. Just for clarity and transparency, convener, I am no longer a non-practising member of the Lost Society of Scotland, but I am still on the role of Scottish listeners. I thought that it was really interesting the point that you made about the principles about general acceptance and agreement. Your proposal for ensuring the integrity of the system is a suggestion that has not been made elsewhere, and I just wondered if you would like to elaborate on what exactly you mean by that and why you think it is important. I think that it goes back to the rights and responsibilities question again. As well as ensuring that everybody who is entitled to benefit actually goes on to receive it, it is also important to recognise the inherent risk through fraud and overpayments that, over the years, has led the Auditor General to refuse to sign off the DWP's accounts because of the unacceptable high level of fraud that is in the system. I think that the majority of the principles on the face of the bill were all relating to how we make the system better for the user. The Lost Society felt that there was also a need to recognise the risk to expenditure in the taxpayer. Is it not the case though that fraud makes up a tiny, tiny percentage of the mistakes that the bigger amount of that is administrative errors? I just wouldn't want to give the impression that— Yes, absolutely. The figure is around 3 per cent of overall expenditure, which, as you say, is a very small amount, but it is concerning that the Auditor General won't sign off the accounts because of that. David Sample. Just to add to the point that Ms McGuire was making there, we also have to take into account the amount of benefit underpayment in the system at the minute, which runs to billions of pounds as well. Thank you very much for that. Adam Tomkins. Thank you, convener. I want to ask the panel two different questions, but before I do, can I just pick up on something that Mr Sample said in his earlier remark? I saw in the PCS's written evidence that you are very strongly opposed to the involvement of the private sector in processing the LA pip. Is the union equally opposed to the use of the private sector in the delivery of devolved employability services? Yes, I think we are. We have spoken about this with the Minister and with the implementation colleagues involved in the employability work. To give some context to that, I want to be clear that our opposition is not what you might argue is purely ideological. It's based on performance. In terms of employability, all of the privatised employability contracts have never had the delivery outcomes that we've seen from the previous state-run programmes. If you use things like the New Deal going back a little way to the previous, well, two previous Governments ago, its outcomes in terms of finding people employment were, I think, 0.5 per cent higher than the equivalent in the private sector. Thank you for that clarification. I appreciate that. The first question that I want to ask the whole of the panel is about the structure of the bill, really, and in particular about the relationship in the bill between what's proposed to be in primary legislation in the bill itself and what's proposed to be made by regulations thereafter. Last week, this committee heard from, I think, eight witnesses, and the note that we've got from the clerk says that there was amongst those groups a universal view, that the balance in the bill between primary and secondary legislation is not right. Do you agree with that? If you do agree with it, what do you think should be in the bill that isn't in the bill? As you'll see from the Law Society's response, we didn't have any particular strong issue around this area, but having seen the responses from people who have submitted to the committee, I think the key issue for me would relate to the need for some sort of independent oversight of the system. Many people advocate on the face of the bill a body such as the Social Security Advisory Committee, and I think that that is indeed a good idea, whether it be a body that looks like SAC or a better body, as Scottish ministers decide. I think that the general view is that anything that is on the face of the bill thereafter becomes difficult to change, whereas anything that is in secondary legislation can be changed. At the same time, I recognise other concerns around the scrutiny of secondary legislation, and maybe that is an issue that needs to be considered further. I'm sure that we'll come to questions of advice and scrutiny in due course, but what I'm interested in in particular is whether the rules for eligibility and operation of devolved benefits are appropriately left to secondary legislation as the bill currently proposes, or whether we should replicate existing UK legislation and have much more by way of detail eligibility and operation of the particular benefits in the legislation itself so that we can scrutinise it as the bill goes forward. I should probably have made that clear. All I'd like to respond to that is that I would need to stick by what the Law Society has said in its response that the current level of detail in the bill, in our view, is more or less right. Broadly speaking, the balance between the two is right. I mean, that's not to say that there aren't other things that we think should be included in the face of the bill. I think I mentioned already the idea of operating of benefits, which I presume would be included in the secondary legislation whenever the regulations are actually devised to look at that. I would prefer, obviously, that it to be stated up front in the primary legislation. There are a number of other things that we would also want to be included. The process for mandatory redetermination is obviously a controversial one, and we would argue that it too closely replicates what's included in the Westminster, the reserved benefits, and that there should be changes to that made to the bill as it currently stands. But in general, as I say, the balance between the two is fine. Nicola Dickie? I mean, I suppose, from a local government perspective, we cannot understand the rationale for much of the nuts and bolts, if you like, coming in the secondary legislation. That said, I agree with David, there are some things that, if they are consistently going to be applied across the whole of devolved social security. Things like operating, things like residency requirements. These were things that we were quite surprised weren't on the face of the bill, and I suppose another one for me is backdating. So we know that when Universal Credit was introduced, full-sweep backdating effectively went from something that was quite long to a month. So I suppose it's things like that we would see some benefit in putting on to the primary legislation. That's not to say that we don't understand the reasoning behind putting some stuff in secondary, but the other thing for us is if the parliamentary process takes three or four years to scrutinise this, you may well end up with backdating in one benefit, being entirely different to backdating in another benefit, just by the way the parliamentary process works. The Scottish Government has been clear that devolved social security is an opportunity to simplify the system. That might look a lot less like simplification if that's the way that was to pan out. I think that those are the things moving forward that are worth another pass at, I suppose. My second question is about the power to create new benefits. We know that the bill includes in section 45 a provision for the top-up power, but there is no section in the bill that enables the Scottish ministers to create new benefits. Does that mean that the commission in your view should be rectified or is that okay? Who wants to come in on that particular one? Paul Smith? I personally, and I don't think that the law society has a strong view on that, I'm afraid. That's fine. David Simpson. We undertook a huge degree of consultation with members in the Department for Work and Pensions to discuss precisely those kinds of issues. A lot of our members hark back to different benefits to the ones that currently exist, and I think that some of them have argued that there have been benefits to those benefits, I suppose, advantages, I should say, to those benefits, to have I repeated myself. Arguably, any area that's not covered, you could say, yes, there should be a space for the Scottish ministers to enact a new benefit, but that's surely something that would need to come back to the Parliament for further discussion, scrutiny, public consultation and so forth. Nicola Dickie. I don't disagree with what David Simpson said there. It's not there, but in the grand scheme of things, I think, moving forward, it may be something that is worth another look. But safe and secure transfer is what we're hearing is far more important than having a conversation in and around new benefits. It's more about how can we land, what we're getting, certainly from those supporting vulnerable customers on the ground. That's what's exercising their mind on it. Paul Smith. Sorry, I've had a further thought at listening to colleagues here. Obviously, we're talking today about a system which hasn't yet fully been devolved. And I assume that, in the fullness of time, with greater devolution powers being passed from the UK to the Scottish Government, it's not too difficult to envisage a time in hopefully the near future that social security is devolved entirely to the Scottish Parliament, which makes me think that it might be helpful to include on the face of the bill a power to create new benefits that suit the needs of Scottish people. Thank you, but certainly we hear on the ground in the committee from the evidence that they want the transition at the moment, you know, as long as it goes smoothly for the people who are actually accessing it. That is very important. Jeremy Balford, did you wish to hear? I did, thank you. I would like to go to two points, if that's okay. We've had quite a lot of submissions and discussions on independent advice and how that should work and what it should do. Should that be in the bill and, if so, what kind of provision should be made? I wonder what your views on that are. How should it be funded? Should there be a special Government grant? Should it be similar to the legal aid system that we have at the moment? I wonder whether you had any views on that. The second question is really kind of probably aimed specifically at David. Just going back to the use of public-private sector organisations, presuming that we all agree that what we want is the best service for the claimant that is possible. There may well be debate whether that is happening or not happening at the moment, but, in principle, why could a private company, if they trained themselves properly and had the proper accountability, not be able to do that, as well as somebody from a public sector? Is it simply because they are private that you oppose to it? I appreciate not seeing what the scheme at the moment is working, but what I'm saying is that, if it could be so much a private company could do it, as well as a public sector organisation, why would you be opposed to that, if that makes sense? My main question is more around advocacy, which I'm interested in to hear a bit more about. The answer to the second question first, just to get the specifics out of the way, I suppose, I don't believe and no evidence has ever shown me or any of my colleagues across the union that private sector can deliver what the public sector can deliver, and I suppose I would argue that it's down to motivation. The motivation of the private sector is to extract the maximum amount of money from their contract as profit, whereas the motivation of the public sector is always to deliver the quality service. Now, whether you look at the delivery of telephone services within DWP, some of which are privatised, for example we have GSA telephone lines which are privatised to capital, whether you look at employability contracts, whether you look at the health care providers, the health, the HCPs when they claim for pips and so on and so forth, the quality continually comes back as an issue, and it's continually about staffing, the investment in staff training and so on and so forth. It's never to the same standard as DWP, which is why, repeatedly and routinely, on all private contracts, DWP staff wind up having to be moved across to the private sector providers to support their delivery because they can't do it themselves, and I think that that is down to their profit motive as opposed to their public service motives. To respond to the more general point in terms of independent advice, I don't think that we have particularly strong views. I think that what we would say, and without in any way denigrating the excellent work that many of our colleagues do in the independent advice and guidance sector, is that the reason that that is required these days is because of sanctions and the distrust between DWP staff and claimants. If there was no sanctions regime, they could get that advice from us, they could get it from DWP staff, and so we would argue that, bearing in mind, I think that there should be a purely public delivery of a lot of these services, that that would be the ideal way to go forward in the fullness of time where all of these services are delivered at one point by a public sector service. If I can just go back, I mean, if you go back 20 years ago to when DLA was introduced as a new benefit, there was still as much representation at tribunals from under the old DLA as there was in PIP, in fact, probably more. So are you saying that people don't need independent advice under this new system if we get it right? David Semple. No, sir. Obviously, we would want people to have every opportunity for as much advice as possible, and there is definitely a role in that for the independent sector, but for many of the smaller things, I think you would find that they wouldn't need to go to ask about eligibility roles and how to actually claim a benefit and things like that, because they wouldn't be afraid to walk into whatever the Scottish equivalent of a job centre would be and get exactly that advice. If I can go back a few years ago, it used to be the case that claimants would come in with no idea about what they were eligible for or what to claim, and a member of staff would sit with them and fill in the claim form. Now, that was 40,000 job cuts ago. If we could get back to a properly staffed public service, it's that level of support that people could get from it. That's not to take away from the role of an independent sector in terms of tribunal representation and so forth, because obviously they're appealing against decisions made by our staff in those circumstances. John Adam, do you want to come in as a supplement before the other witnesses come in? John, is this not back to what we were discussing earlier on—sorry, I've got to say more—the fact that Paul Smith said that there is currently a culture of mistrust between claiming and DWP. The Bill, as it is, and what is trying to be achieved, is to create the type of atmosphere that David Simpson is talking about, where the claimant will get the opportunity at that level to sort things out and also can add with that as well, with advice as well. Local authorities currently have a duty to ensure that people have access to that type of advice and it would not be the case that if it was on the face of the bill then you would almost be centralising that and then you come back, centralising an independent advice to a certain degree and you have a situation where you have the all, how do local communities, the rural, urban idea, how do you deliver it and is local government not in the best place to continue with these types of advice services that it has. So I have two sides to the question but it's the same thing about the whole independent advice. Nicola Dickies, you want to come in on that one because I know they mentioned local government there. I mean, I think from a local government perspective, regardless of how well we do in making the system much better for people to navigate, our belief would be that around about ensuring access to social security as a human right people have to be able to access independent advice. With the best bill in the world, and I agree with what David said, if we design good processes people will not necessarily have to seek out the help of advice agencies to fill in a form perhaps that they do at the moment. People may be able to, through whatever means they find accessible to them, navigate the system themselves but there will become a point regardless of the way we set up the agency where people have to be told no I'm sorry you're not entitled or you don't qualify and at that point that person surely has the right to step outside and be given independent access to advice and support and the point that Mr Adam makes is right. Local government does have internal welfare rights teams. In recent years we've moved those teams probably in the vast majority of local authorities more into the social work realm in terms of being advocates for the customer on their own behalf. I think from our perspective how we do it in terms of should should Scottish ministers allow local government to commission that support locally that's a different conversation about how we go about it but I suppose our principle would be that if the agency is coming in and they expect that people will require advice and advocacy then somebody has to be paying for that and the advice and advocacy projects that are running on the ground in Scotland I'm sure some of you have visited them are not without cues of people accessing them so I think we just have to be aware that there's two things at play here in principle do we think people access and devolve social security will need independent advice and support I think local government would say yes they do then there's a conversation about what's the best way to deliver that and local governments take on that should be that it would be those who are closest to the communities who are in the best place to decide how and when that advice and support should be provided. Paul Smith, do you want to come in on both questions? Yes, yes, first of all I agree entirely with everything that Nicola and David have said over the years and especially probably in the last 20 years the the local advice sector has been squeezed year on year with the result that they probably are struggling to meet the demand that is being placed on their services however it is heartening to see the minister's announcement about providing better face-to-face contact with clientele right at the very beginning of the claim because I think if you get things right from the beginning then you're left with fewer cases at the end that still need problems to be resolved and we already have a fairly well established network of advice givers across Scotland perhaps we need to look at how better they might be they might be coordinated we also need to look at how their services are funded and think about what kind of demand is likely to continue to be coming to their doors once the new arrangements are fully in place. On the question of independent advice Mr Balfour also mentioned the question of lead light well as the committee probably already knows there is currently no provision for legal aid to take an appeal to the first tier tribunal or indeed the upper tribunal unless a cases of such particular complexity that the upper tribunal judge suggests that legal aid should be provided but that is the exception to the rule tribunals were never intended to be overly formal forums for decisions they were meant to be informal they were meant to be quick they were meant to be relatively cheap compared to the courts but as we all know over the years law law becomes more complicated and in reality people do need legal advice. David Seymour did you want to come in and I know that Ruth Biel and I want to come in the stuff on that one. Just in response to Mr Adams point and I don't disagree that colleagues in welfare rights organizations across local authorities have an important role to play in the system in terms of delivering to both rural and urban communities I think we welcome the commitment expressed by the minister to have a presence across communities in Scotland and face-to-face service that the new social security agency will be able to interact with claimants like that whether that involves having their own premises being co-located in local authority premises and so on that's really for that that's a discussion about resources rather than about the principle which we support. Thank you. I just wanted to tease out a little bit quite often when we say independent advice and advocacy I think what's brought to mind is a organisation elsewhere that comes in but we heard last week that advocacy that's kind of informal and sought out by the person who's entitled to the benefits is actually equally as powerful and is it maybe the case that if we I think David touched on it if we change the the relationship that the agency has with people who are entitled to the benefits that actually we can be just as effective and if we get it right the need for people coming in and that one thing I was struck by was a local authority worker who said to me that we used to do income maximisation now it's income defence work we're doing that actually if we get that the agency relationship right and we have the people in there who are empowered to maximise people's what they're entitled to that the need for the formal bit of that will reduce. David Semper, do you want to come back? I absolutely agree with that. I mean I think that's that we discussed earlier getting the culture of the organisation right and I think that has to be that that is absolutely crucial what I would say about culture is that with the best will in the world I mean new staff into DWP are inducted in the idea of eradicating poverty and so forth it's all very well with words if you don't have the resources to actually deliver those outcomes when it comes to things like staffing once so that you are not running around doing 15 cases when actually you should be doing three because that's the appropriate number and giving full support to the people involved because they are people they're not just numbers on a page for a lot of our staff so I absolutely agree with what you just said. Did you want to come in Polsmith and I think that it's a culture it's a mindset and at the moment the emphasis appears to be on quantity rather than quality and I think that that emphasis needs to change. Any other two colleagues? I suppose for me I'm going back to the principle of social security as a human right and if the principle is that social security is a human right and we know people need help to access and therefore get their human right of social security there's something for me around about the principle of providing access to independent advice. I absolutely take on board if we design good processes and we have a culture and we have an ethos around about doing things the way that Scotland wants them done that will go some way to dealing with a kind of lower level form filling in etc and I think you're absolutely right the point about local government has it's a long time since local government was able to prioritise what we wanted to do in terms of income maximisation because we have dealt a long time with what is potentially service failure elsewhere in the public sector but I think for me it's the two items as it do we agree with the principle that to access people's human rights they are going to need support to do that and then the second part is if we agree that principle then there are a number of ways that we could make that go forward and I think all of those things will be relevant definitely. Thank you. Mark Griffin if you want to come in this supplementary but you wanted to come in on another question as well. Yes, thanks. It was on this issue of independent advocacy and advice and whether if we can get the culture right that people coming through that organisation wouldn't have as great a need for that but if the culture is right at the beginning that doesn't mean the culture will be right in perpetuity. We've spoken about the system at the DWP where a political change has then led to a greater need for independent advocacy and advice and it may be that regardless of how well the agency is set up initially that a changing Government, a changing minister who sets a direction to reduce a benefits bill who then charges the chief executive of the agency with altering the culture of his or her organisation that there then does become a bigger need for independent advice and advocacy and whether to safeguard that right as you put it that if we are safeguarding social security as a human right that we should be seeing at the outset regardless of what the culture of that organisation is going to be that people have a right to independent advocacy to make sure there is no abusive state power that the right of the individual is always protected and that we should be looking for that on the face of the bill. Does Emdy want to come back on that particular one? I agree that a change of Government, a change of priority can always change the culture of any organisation but that is not just specific to the potential social security agency. It's also true of the organisations that have to deliver welfare rights. They have also been subject to cuts. The legal aid budget cuts were cuts to local authorities and so on and have also driven changes to those organisations where they don't have the resources to deal with the claimants as they would like. The key priority is that everybody in the room is committed to properly funding the organisation as well as funding independent advice and guidance. I don't have a horse in the race about should it be enshrined into the face of the bill but I think that the idea that the culture might change we should be absolutely sitting everything in place at the start to make sure that the culture doesn't change and that should be a key focus of the bill. Nicola Sturgeon, you spoke about a future, how things may change in the future. The bill as drafted at the moment includes a redetermination process. I'm sure that if you spoke to independent or local government welfare rights teams and advice teams they'll tell you they spend an awful lot of their time helping people navigate the current mandatory consideration process. We recognise and we are totally on board with the cultural change and the organisation. The bill as drafted at the moment does not do away with the fact that people may well still have to have an internal review by the Scottish Government or the agency and then move to another stage. Right away we've already designed in part of the issues that we are already seeing significant spikes in the services that we provide. It's just kind of marrying up the two for us is what's important as we move forward. There is a balance to be struck around about making the processes good and usable and people getting the right outcomes but there is also that requirement that people will want to step away in the same way that they do very often from local government. People might not want to come to local government's welfare rights teams, they want to go independently and that's why local government does a bit of both. We do what we do internally, but we also fund external because we recognise that people will want to at some stage step away from services that are provided by local government. About choice to an extent really. Did you want to come back in that post, Ruth? I didn't follow that at all. Jenny, do you want to come in a supplement and then Mark Griffin will make it? I've really kind of picked up Nickle's point. I think there's a danger here that we're getting ourselves to paint a picture that if we change the culture, if we change that, everybody's going to be really happy with it. My presumption is that even whatever system you design and however friendly it is, some people will get an award and some people won't get an award. I suppose my fear around this is unless we design the system that protects those that get turned down but maybe still deserve it. I suppose that going back to David is is that not the role for independent advice? There must be a difference between advice and representation, and I think that we often use the words the same. There is a difference between getting advice when you go in early and then getting representation at whatever level you need that. I'm just slightly concerned that if we redesign everything, everybody's going to get an award and clearly that's not going to be the case. There are going to be people who don't get it and it's how we look after voyage individuals. Does any of the panel want to come back on that particular one, Paul Smith? I think part of the problem at the moment stems from the kind of toxic relationship that currently exists between claimants and DWP staff. Another factor I think is that the current success rate, if you take a decision to an appeal tribunal, is running at 63 per cent for ESA and PIP appeals. As long as that is the success rate, people will be distrustful of the decisions that are made within the DWP. There is also an issue around how do you improve decision making? Given that mandatory reconsideration was meant to enable the DWP to get their decisions right or correct them at the earliest opportunity, why then is the appeal success rate not reducing? Also, why is the percentage of mandatory reconsiderations that are successful in the claimants favour? Why is that only running at 13 per cent? Those are all issues that are relative. Does any of the panel want to come back on that particular one? Mark Griffin wants to come back. I wanted to ask about the new offences that are created in the bill around offences on information and applicant. If that information is wrong, the current DWP system is that the prosecution has to prove dishonesty in the application to prosecute, whereas the system proposed here in Scotland from the evidence that we have received is that there would be no, there is no bar, there is no requirement for a prosecution to prove dishonesty. An honest mistake made by an applicant could result in a criminal prosecution. Just to ask what the panel's view of the legislation has drafted, whether they agree with the evidence that we have received on the new offences regime and if you think that any changes should be made. Paul Smith? I think that's quite, I'm healthy position to be proposing that people are prosecuted for accidentally providing incorrect information. I think there has to be some evidence of intention to defraud and I think that would need to be the basis for any decision on which it's taken to prosecute someone. Anyone else in the panel want to convene that one? David Semple? I completely agree with what Paul just said. If, as Mr Griffin has just outlined, that is the situation in the bill that you have removed the obligation on the department to prove that there's dishonesty at the outset, then that's an unhelpful position. I work with fraud officers and compliance officers and they are very serious and specific about exactly that issue, about making sure that they can prove before referring to courts this issue of dishonesty. Off the back of that, many things are settled informally, that was much more the way that things should go in our view. My understanding of reading the bill is that you have to prove dishonesty. That's my understanding of reading it, but I presume it's whoever reads the bill, the way that it's projected from there. Certainly that's my understanding of it anyway. Mark Griffin, do you want to come back in again? No, I would just reflect on the evidence that we have received. Any other panel want to, committee members want to come in? Just on the redetermination point, I understand the pain that folk are going through with the current system, but would it not usually be the case that the agency would be able to set something right quicker than if the person has to go to tribunal? Even if it goes directly to tribunal, even for simple cases, is it not just going to slow things right down? I guess what I care about is my constituents getting the money that they are entitled to, and the quickest way to do that feels like the agency should have an opportunity to put something right if they haven't got a right the first time. Just to be clear, I'm not advocating that the agency don't get the opportunity to do an internal review. What I'm advocating is that if they do that internal review and they do not change decisions to the customer's benefit that the case then proceeds through to tribunal, that's the system that we've had for a number of years, going back beyond the welfare reform act that we have at the moment. Just to be clear, absolutely local government subscribes to the notion that decisions that are incorrect or decisions that perhaps need revisited are done at the lowest possible level, that's what we're signed up to do as a public sector. We're not advocating the fact that the agency don't get the opportunity to do an internal review. What we're suggesting is some of the barriers that people find with the mandatory reconsideration process around feeling disempowered, having to put in a second request to go to actual tribunal, customers feeling that they have to provide additional information. Those types of barriers perceived or otherwise will be the ones that will still be retained within the system. I guess that the obvious fall-up to that would be then. Can we remove some of those barriers rather than say that redetermination is not the right way to go? If I can maybe just invoke a wee bit of how things used to be done, I'm sure colleagues around the table with their constituency work will remember form GL24, which was the form that claimants would have filled in whenever they were appealing any decision. That form ultimately winds up with the tribunal, but before that it would have been gone through the internal review process. When the process was changed, the purpose of changing the process was to remove benefit pending appeal. Once you had the decision that you were being disallowed benefit, benefit stopped, then you had to put in your request for mandatory reconsideration, then you had to wait for that to come back to you, then once that came back to you you could put in your request for the appeal and benefit payment would resume. The whole purpose of MR was to remove benefit entitlement. Mandatory redetermination does not restore, does not allow for the continuation of benefit entitlement, and that's the problem. What it allows for is for the short term assistance to be applied. It doesn't say in the bill how much that's going to be, it doesn't say if that's at the same rate as benefit entitlement, so the problem that we have here is exactly the, I suppose, the worry that you raise is supporting your constituents who are going through this process. What we would like to see is that there would be a full payment pending appeal allowance, that is, the existing benefit entitlement rate paid all the way through any kind of redetermination or re-look at the case all the way through to the tribunal itself. That has to be key. What you call or what you do in between times will matter less to the claimant if they are not struggling for how to pay for what to eat. What I would say in terms of terminology, however, is that having the MR term, there would be a lot of claimants who will be coming through from reserved benefits, who will be familiar with that, who will be hostile to that. I think that it's absolutely right that we should re-look at everything when it comes back to us by way of going towards an appeal, and I think that that's the most helpful thing for the claimants, but I think that in terms of terminology we should definitely look at changing that as well as making sure that benefit entitlement is not challenged by the redetermination process. Thank you. Paul Smith, do you want to come back? I would just add to what David said. When mandatory reconsideration was brought in through the welfare reform act 2012, all it really did was put another barrier in front of people before they got to a tribunal, the system that was in place beforehand was that a claimant had an immediate right of appeal, but the agency undertook a review, and if they changed the decision in the person's favour, the appeal was cancelled. MR was almost an acknowledgement by the Department of Work and Pensions that, oh, we might get our decision wrong, so we reserved the right to have another bite of the cherry, and, by the way, until we do have that other bite, you don't have access to a tribunal. The other problem was that there was no time limit for mandatory reconsideration to be carried out, benefits stopped, and people were left in perilous situations. There is going to be a time limit on the redetermination process, and there is short-term assistance proposed. I hear what you are saying about benefits pending, appeal. The challenge that springs to mind is what do we do with overpayments if the appeal is not successful? If an appeal was not successful, the date of disallowns would be the date of the appeal under the old system, so there would have been no overpayment, and that is what we would want to see. I am just being reminded that the Government has published a paper on redetermination, and I presume that the panel has seen it. I will not ask you for your comments, so I am just checking to see if you have seen it or not. Adam Tomkins, do you want to comment on a supplementary issue on that? A different issue. While we have COSLAW in front of us, convener, I thought that it would be important to get on the record COSLAW's views about discretionary housing payments, because there are some quite powerful remarks in the written evidence that COSLAW has given us. If I can quote from it, it is paragraph 11.4 of the written evidence. It is imperative that there is clarity over the future of DHP's discretionary housing payments as early as possible. COSLAW says that their reading of the bill suggests that there is no duty on Scottish ministers to provide funding more widely for DHPs going forward. Without that clarity, there is a risk that councils continuing to provide DHPs will find that the funding is not available in the future for this. I just wondered if I could invite Nicola Dickey while she is in front of us to expand on that, because it seems to be a very important point. Nicola Dickey, on my member's point of view, we have long been calling for a whole system review of discretionary housing payments. We welcome the fact that bedroom tax will be taken care of at source. That said, that does not get us away from the traditional discretionary housing payment. Going back to the way that discretionary housing payments were before bedroom tax became the main state of what was going on there. From our perspective, the bill points to local authorities not having to have discretionary housing payments. I am not aware of any local authority planning that, to be honest. Our membership came back and said that the other thing that it does not do is require Scottish ministers to provide funding for discretionary housing payments. If you look at the Scottish welfare fund, which is a similar fund doing something slightly different, there is a statutory requirement on local authorities to provide welfare fund as long as there are monies paid in by Scottish ministers. That is the point that our members are pointing to. It is imperative that we get clarity. If Scottish ministers are taking care of their commitment around bedroom tax at source, where does that leave us with the traditional side of discretionary housing payments, and increasingly cases that are being used through discretionary housing payments around about benefits cap? Those things will not be sorted at source and there will still be a requirement for those to be dealt with in the local authorities. I think that that is where our members are coming from on that perspective. Thank you. Anyone else? Anyone else wants to come in on that particular one? Thank you, convener. Again, a question for Nicola Dickie, if you don't mind. I noticed in your evidence at 12.2 that you touch on the matter of no recourse to public funds, which is something that I have been doing some work on with Shack to Women's Aid in my constituency. I just wondered if you could just clearly articulate why you think that it is important to be considered within the framework of this new system, given that principally it is an immigration issue or a reserved issue, but it is a very complex area to navigate as things stand. I think that it is right that you have raised it as an issue. What we are looking for there is consistency. The way the regulations are going to be developed across the various benefits streams, you may well come up with some quite odd connotations if you like moving forward. What we expected to see on the face of the bill was something about whether access to devolved social security would or would not be on the prescribed list of things that people with no recourse to public funds can access. I suppose that, for us, we are not looking for all of the answers to be put on to the face of the bill. What we are looking for there is the principle. From the Scottish Minister's principle perspective, should those with no recourse to public funds be accessing devolved social security, that is the clarity that we are looking for. If that has to be distilled between on-going benefits and access to win-off payments, that is something that we should have a conversation about. However, we were pointing to the fact that there has been no conversation as far as we are aware about that type of thing. It is not contained within the individual schedules for the second legislation. I do not think that we have the answers. What we are saying is that we need to have the conversation given the number of people that we have in that situation in Scotland already. Local government very often finds themselves picking up those people if they become destitute. Anyone else wants to come back on that particular one? The point that has not been emphasised thus far, so thank you for bringing it forward. I thank the witnesses very much. It is very interesting and certainly the committee will look at the evidence that you have given. I can suspend the meeting for a bit of a minute to change over witnesses and thank you very much for that. I will resume the meeting. I welcome the second panel of witnesses, Simon Hodge, the Scottish Association of Law Centres, Rob Gowens, the Policy Officer, Citizens Advice Scotland and Richard Gass, Chair of Rights Advice Scotland. I will start with a similar question that I asked to previous witnesses. I know that you have been here, so you have probably heard their answers in regard to previous sessions that we have asked the witnesses for their views on the principles and the proposed charter. Can you tell us your views and in what way, if any, the principles or the proposed charter would have an influence on the workings of the new benefits agency? Rob Gowens, I will start with you. I think we welcome the principles generally, particularly in the round. The government has a role in ensuring that people receive all the income that they are entitled to. It is very important around the principle that social security is a human right. We have suggested a couple of other principles that might be included, that the system should be accessible and fair and that procedures, decision making and review should be handled quickly and effectively. In terms of some of the other things that have been suggested that could be included as principles, particularly the right to independent advice, we agree that that should be in the face of the bill, whether that is necessarily a principle. We would not be sure that that would sit better in another part of the bill. In terms of the charter, it is something that has the potential to allow individuals to secure their rights. Where we are not especially clear is quite what status the charter would have in terms of conveying individual rights. Our understanding from the Government's consultation last year was that it was almost going to be a bill of rights if you set out people's rights and responsibilities, which would allow them to be achieved and seek for address. From the bill it is not clear that that is the purpose of the charter. There should potentially be some clarity around that, as well as the right to various feedback and complaints to achieve redress if it falls short of the principles and people's rights under the system. We are pleased to see that the principles laid out at the very start of the bill, making it clear up-front that the social security system in Scotland is going to be that bit different to the rest of the UK. The list of principles could perhaps go slightly further to include what to do for dissatisfied with the treatment that you get from the social security system and a commitment that the level of benefits that is paid within Scotland's social security will be protected in real terms with regard to inflation. The fact that there is going to also be a charter is welcome. It is not one or other, it is both. I think that the charter is very valuable. It will be a more readily accessible document. A paragraph of an act of Parliament will be somewhat distant, but a charter could be, as long as it is not too long, it could be up on the walls in social security offices, so for folk waiting to be seen they can see the charter. It might be the first time that they have read it, but they will get an understanding that it is a bit different. Furthermore, the charter could be something that is incorporated into the personal development plans for the members of staff working within the agency. Thank you very much. That was one of the follow-up questions that I was going to ask about what you thought of it and I will come back on that. Simon Hodge. Again, we are in a very similar place. We are very pleased to see that the principles are being provided and that there is a starting point to make a real effort to make this a very different system than has existed before. I would also reiterate that it is important to have a right for independent advice in terms of one of the principles. In terms of independent advice, there are a whole variety of reasons that you can come on to if you wish me to elaborate on that as to why I think that it is very important to have advice that is independent provided for people. On how that is provided, I would also reiterate to some degree what was said at an early assessment in terms of private providers. Our experience, certainly in working in this field for many years, has not been a happy one, but it has been private providers for the medical assessors and the system that has been put forward there and something in there to protect against that type of system coming back into place and probably in terms of not having private providers would be helpful. In terms of the charter, I agree with Richard, but it has to be clear language. That is one thing that I would say. If this is something that is intended to be there and as a guide for people coming into social security benefit offices, it really does have to be in clear language and very straightforward. I would also agree that some form of complaints procedure would also be necessary in there. I think that that would be very helpful. That also has to go right across a board and not just for the general members of staff, but also going back to the medical assessors as well. I think that there has to be some complaints procedure put into the charter in terms of the treatment that has been provided and by claimants at least how they have perceived to been treated by the medical assessors. Thank you. It would not be a question but just a comment on what Richard Gass has said that many people have said that the charter should be there visible so that people know what their rights are. Obviously, it is important that you get this charter correct for the benefit of the people who are accessing social security. I just wanted to make that comment. It would be good if it was up in every office and people had access to it as well. Adam Tomkins, you wanted to come in. Thank you, convener. Good morning. I wanted to pick up the point that was made very strongly in Gass's written evidence for which many thanks indeed. It is Gass's view, quite strong view, that the balance between primary and secondary legislation in this bill is not quite right and that there are a number of issues that are not in the bill, which in Gass's view should be in the bill. I want to just, for the record, Mr Gawnt, if you would like to specify that and expand on that. I would like to invite the other members of the panel to reflect on the extent to which they agree, if I may. I think that our view is particularly if there are things which would be common across the social security benefits that they would be on the face of the bill and things that would be essential to the system. I already mentioned provision for complaints and redress and people to give feedback. We think that could work in a similar way to section 14 and 15 of the Patients' Rights Act, for instance, would provide a good model for that. I think to make provision for independent scrutiny or independent scrutiny bodies, such as playing a similar role to the current social security advisory committee, does UK-level, although there are perhaps some slight differences in how that could be designed. For instance, part of it could potentially report to the Scottish Parliament, to committees to aid their scrutiny, as well as to help the Scottish Government to design the regulations. I think that there should be provision for uprating on the face of the bill, that benefits should be uprated on an annual basis in line with RPI. There are some additional things that we think might be taken into account, such as energy costs and transport costs, to make sure that the benefits have the same value each year. If there are things that they intend to pay for, funeral costs are a great example in that we see rising issues of funeral poverty, and funeral payments, for instance, will be kept in line with our funeral costs. Can I just come in slightly, just previously, when you were talking about funeral costs? You said, obviously, that benefits should be on the face of the bill that should be upgraded if certain things happen, such as energy costs, which is obviously reserved to Westminster, where the Scottish Parliament doesn't have control over that. Are you saying that if the energy companies, as unfortunately has happened just now, put the cost of electricity and gas up by a great deal of percentage that should be on the face of the bill, that if that happens, the benefits that are devolved to the Scottish Parliament should be raised? What happens to the benefits from the Westminster Parliament? Is that what you are saying? In terms of what we suggest is that, on an annual basis, the devolved benefits are uprated by RPI. What I think will be helpful is to ministers the power or the responsibility to consider things like energy costs to make sure that they are not necessarily a formal lock into the process, if you will, but to make sure that benefits would always have the they wouldn't lose value over the years that they would pay for the same things that they would in the previous year. In terms of how that would break with reserved benefits, it might well be the case that the value of benefits in Scotland is higher than that in the equivalent UK benefits, but that is potentially a feature of devolution and something that certainly in the Scottish context we welcome benefits being adequate and keeping the value as the years go on. If it is in regard to energy costs that go up, then perhaps Westminster should give more money to the Scottish Government then, if it is going to make the benefits to that extent? I think that we would always be keen that actions are taken to make sure that energy costs are a low anyway. I think that social security has a vital role in tackling poverty and is one of the best ways of doing that. It does not mean that there is not other action that can and should be taken and energy costs are a good example of that. I can get back to the bill and the structure of the bill and the relationship between primary and secondary legislation. In your evidence, Mr Ghan, you go even further than you have just shared with the committee and you say that details of eligibility and operation of many of the reserved benefits are in primary legislation, that does not appear to be the case in this bill. Would you be looking for amendments at stage 2? We are still on stage 1, but would you be looking for amendments at stage 2 to put some of those details on the face of the bill? Possibly, although my understanding is that the eligibility criteria is still to be developed for the benefits, if there is maintenance that is available at least at least the basics, then I think from watching the previous evidence session that the child poverty action group suggested the best start grant, for instance, where that is a bit more, the rules for that are a bit more developed, then that might be something that could be bought in or potentially at a later date when, if it is up and running, they could be brought into the act at a future point to set out the eligibility in the process up front in the face of primary legislation. I think that it probably can operate without that being there at this point, but I think in terms of the, I think it would potentially come back to the point I made earlier around the independent scrutiny of regulations that are sort of massively important, if a lot of the system is to be developed through regulations, which there are sort of good arguments for some of it is quite detailed and possibly wouldn't be appropriate for primary legislation that that's effectively scrutinised and has sort of independent expert input. So you'd rather have that level of detail scrutinised by independent experts than by Parliament? You think independent scrutiny is more important than parliamentary scrutiny? I think that either could work with the bill. I think that the level of scrutiny of whoever would scrutinise it is very important. Mr Gass, do you want to come into that particular part or? Yes. The act lays out very broadly what the social security system is going to look like and leaves a lot of the detail to the regulations that we've yet to see. I think that it's correct that regulations are the place where the detail will be expanded upon. However, what we're creating here is a new system and we're only going to have one chance at creating it for the first time, which I think is something that we've heard coming to ourselves from Scottish Government ministers. So in order to have it correct for the first time, we might be needed to ensure that there's maybe some extra scrutiny available for the first iteration of the regulations. The way that the processes are for the negative or affirmative procedures would be insufficient because it's all or nothing. However, the Parliament is not constrained to have something as crude as the negative or positive. It could introduce into the bill a requirement that the first iteration of the regulations are given to external organisations for scrutiny. However, the draft regulations could then come back to the elected members to consider if there are further amendments. I would recommend that some super-affirmative or greater process is introduced for the first draft of the regulations. That's an interesting point. Mr Hoys, do you want to come in on that? I'd reiterate that, certainly in terms of the existing systems as they are, what they usually do with the DLA system and the PIP system in terms of the Administration Act and the welfare reform act, is to set down the basic framework of the primary conditions on which the system is going to be operated on, and then, obviously, the regulations end up in some of the details. There's actually some good arguments to say that that should be put forward to Parliament, so that we've got a good idea and that it's been properly scrutinised by the basic. If you like the pillars of the system, there's also arguments, obviously, that it has to be dealt with under the regulations. I can see a good argument for, along the similar lines as the existing system is already in play, that pillars are put into the bill itself. There is a caveat here, which is that working within the system, the detail is where the devil resides, and the real problems in terms of how the benefits that can be designed in a particular method are then subverted are quite often done by regulation. Unfortunately, even putting the primary conditions in the bill is not necessarily going to safeguard the bill that they will operate along the lines that they were first intended as. Other than that, I would also reiterate what I'd heard earlier in terms of whether there are areas that would be useful to be in the bill, and operating, backdating and residency as well. I think that residency is an important one in this particular climate to be in the bill, too. Thank you very much. Did you want to come in again, Mr Duncan? I can come in later. Thank you, convener. Good morning. I wonder if there are two questions that are interesting to pick up on residency. We had quite a long discussion last week or the week before, perhaps, in regard to cross-border residency, if people move around if they are on benefit and when they move to England or Wales, what happens to that benefit. I wonder if you have any views around that area and how we define that in the bill. My second issue to fill up on is that three of your organisations do a lot of representation. How do you see the difference between advice and representation? Do you see that as two different things? Should they be defined differently or can they be defined collectively? If so, the same question I asked to the previous panel in regard to should there be a statutory funding for that and how do you access that? Obviously, to some degree, you wouldn't want to say this, but you are in slight competition with each other as to who you are representing, and how do you identify the money up to make sure that the right people are representing the right individuals? There are lots there, sorry for the long question. Clearly, in relation to residents, the Scottish social security system is for folk who are resident in Scotland. If someone were to relocate to south of the border, then the entitlement would no longer be to the Scottish benefits. However, there might be some period whereby, I don't know, three months or whatever, a figure could be arrived at that you could continue your entitlement while establishing your entitlement to the UK benefits. Something might be similar for folk coming into Scotland. We have habitual residence rules in the DWP regulations. They are quite cumbersome, but in them there will be some examples of when it would be appropriate to commence a benefit for someone. Effectively, when someone has shown beyond doubt that this is the place of their new address. In relation to advice versus representation, the agency itself can provide advice on the benefits, but they cannot advocate for someone. They can only give advice in the constraints of how their organisation perceives entitlement. Representation can push the boundaries of entitlement by taking matters to the tribunals to courts, establishing case law. I think that advice and representation are very different. There is a third category in that advocacy. Advocacy would be ensuring that a person's voice was heard and that we stand aside from the advice and representation. Finally, should there be a pot of money that we all bid for, that is a loaded question. There should be adequate funding for advice services, but it is not simply a Scottish Government duty to fund advice local authorities themselves. I have a vested interest in the population in their area of receiving advice. Depending on the different areas of Scotland, it may be that a local authority chooses to invest in a greater manner. There should be certainly no hindrance to that. It would be nice if there was a guaranteed sum of money for the future, but the danger with that could be that other funding providers step back saying that the money is now allocated by a Scottish Government, so they may not need to come forward. That is a very good point. Rob Jones, do you want to come in on that one? Yes. First, on the cross-border, it is slightly complicated. We would also like to see residency on the face of the bill. In terms of the situation that it is describing, we had a bit of around how some of the cross-border issues might work and there could be criteria set. For instance, if someone worked in England but lived in Scotland, there could be things around where they spend most of their time. If somebody moved to England, they would then fall under the remit of the UK system, but that is probably something that the Scottish Government and the UK Government to work together on to find a reciprocal arrangement system. In terms of the role of independent advice, we would consider it an essential part of a well-functioning social security system, regardless of how good the agency was and what services we provide. We particularly welcome the commitment to have a face-to-face element on the agency staff and think that that is important. In any event, the independent advice would always be needed. Last year, for instance, we provided advice on over 94,000 issues related to the benefits that are due to be devolved, whilst it might be the case that that may reduce over time if the system is well designed, but there would always be a need for that. Certainly, from our experience, when changes are made, there is always a bit of an increase in demand, particularly if people are coming in for information about how changes might affect them. In terms of what would be reflected in the bill, we would support a duty on the Scottish ministers to make provision for access to independent advice. It should be required to make sure that that would be adequately resourced. Currently, advice would largely be funded through from local authorities. There would be an assumption made that advice would always be there, that there would always be a CAB, but I think that that does require funding. I think that that would be helpful to guarantee that independent advocacy would also support that in the bill, which is something that is quite different from independent advice. Ben Macpherson, do you want to come in and supplement you there before I bring in Mr Hodge? Yes, just very briefly. For clarity, Mr Gowans, any right to independent advice or advocacy you would only be putting that forward strictly with relation to devolved benefits if you were going to contain such a principle or clause otherwise within that piece of legislation? One of the things that I think is particularly helpful about independent advice is that certainly to speak in terms of the citizens advice services that are holistic, for instance, if— To reword my question, this is a social security bill about the devolved social security benefits to this Parliament, to this country. Surely it would only be appropriate for any advice that was attached to this bill to only be applicable to those powers that are applicable to this Parliament? I think that what you would find is that if funding was provided or advice was provided that it would sit within the wider landscape. For instance, if somebody was to come in for advice about devolved benefits, that would be in addition to the service that would be provided, so that they would be able to get advice about reserve benefits, for instance, employment support allowance, housing or problems at work, then they could get advice about that as well. I appreciate that citizens advice Scotland and the bureaus in my constituency do remarkable work in terms of advice across the whole spectrum of social security, but if such a duty was going to be placed within the bill, a duty placed on the Scottish ministers, on the Scottish Government, on the budgets of the Government of this country, it would be unfair and unreasonable for such resources to be—I am asking this as a question, not as a proposition—but would it be unreasonable for those resources to be utilised to advise on complications with the reserved system? I think that there is a nuance there and there is an important distinction about what advice is provided and maybe actually provision of specialised advice and particular advice to do with the devolved benefits would be a more meaningful way to move forward if an advice provision was going to be included. I take your point and I think that it would depend on how such provision would be drafted. Thank you very much. Thank you, convener. Thank you. Mr Hodge, do you want to come in on that? Just to pick up on that point, there is a problem of practicality here because you get one person coming in and they have a raft of problems that they have to be dealt with. If you are funded simply to give advice on the devolved benefits, it really would create a very odd position where you can give advice on a particular area and not then expand it to go into the reserved matters as well. I can see from the perspective that this is looking at a social security bill and looking at the areas that are contained within the bill and therefore the funding should only really be given. There is an alternative approach, which is that there are Scottish subjects and as a Scottish Government, to look at making sure that the Scottish subjects have the best possible independent advice that they can have. If that is across the board, as it quite often necessarily has to be, then that is a matter of practicality. I absolutely appreciate that practicality on the ground. I guess that the intention that I am getting from ministers and from the content of the bill so far and that was touched upon in the evidence this morning is that there is an ambition within this piece of legislation and within the creation of the new agency and within the creation of a new culture to reduce the demand on advice services. It is just a practical issue on the other side of the argument about if a right to advocacy or advice representation is not going to be included in the bill. I think that we need to be quite careful and specific about it because, as Mr Balfour raised, there is an issue of resource and funding within all of this about making sure that such a principle or other requirement within the drafting of the bill was deliverable with reference to the fact that it is a bill about the devolved benefits only. It is a complication that is borne out of the fact that this is not a social security bill for the whole social security system and I think that it is quite demonstrative of the complexities because of that point. There is not necessarily a clear question there but I think that it is more of a discussion on that. Did you want to come back on that particular one, Mr Hodg? No, I have made my position. I think that what we are getting is an indication of Mr McPherson's worrying and concerns. I do. There is a finite pot of money and that is where the stress lines cross over. I was simply making the point that it is a practical matter. It can be difficult to put what might be a very good policy in terms of the social security bill in practical terms. It might be quite difficult to achieve that. There is one point that I wanted to make about the residents and one thing that you might want to consider is that I agree with them that when somebody moves from Scotland and is habitually resident down south, they should not have access to the benefits that are contained within the bill. You might want to consider a temporary period of overlap. We have that already with the carers allowance when a person dies and the carers allowance goes on for a period of time thereafter. People by necessity might have to move for any number of reasons and there might be a period where the benefits contained within the bill simply stop and a period of time where they actually take to actually catch up. That could mean a period of time without funds that they could well do with and to maybe have a look at having some sort of on-going entitlement to allow them to get up to speed with what they need to apply for down south. I just want to pick up the point that I will bring with Maguire in about the practicalities of the previous discussion. At the moment in time, we as MSPs cannot do work about social security that is reserved because it has not devolved. That is a problem in itself and the other problem in itself is that people come for advice and we have the charter depending if it is on the face of the bill, whether it is legislation, affirmative or negative, that is there. If you had to recourse to go to court, there is a bit of a problem there. If they go for advice and they do not get the social security mullies, they could perhaps think that they can take this to court, as has been suggested by some, but it may be on the reserved side. I think that it is something that we will perhaps talk to our counterparts in Westminster. I think that it is something that really needs to benefit first of all, and that we will end with Maguire. Clearly, to try and bring things together, I am really supportive of the advice sector and I am just looking for a way that we can, if there is room in the bill in a realistic way, to bring in support for the advice sector. I would be really interested in any clear propositions on how we do that, given the complexity of what we are handling. Clearly, the agency itself can only give advice or information on the devolved matter. However, staff should be trained to be aware that there are UK benefits and that there are interactions and the role for the agency would then be to signpost and they would signpost to what we might be referred to as the advice sector. If there were funds available for the advice sector to expand the advice, they could bid for that funding, but they would provide that advice alongside the other advice that they provide. If someone signedposted by the agency to local authority or to CAB, they could then get advice on how the Scottish benefits now interact with the UK benefits. I think that something needs to be looked at in that particular one. Ruth Maguire? I think that Ben has made some interesting points. I do not think that any of us would deny the complexity of people's lives and the assistance that we have to give them. I suppose that it is just that thing about how we put that bit about advice on the bill. However, that was not a question. My questions are actually about overpayment. The Scottish Government suggested that there should be a minimum income floor to try and protect people from being driven into poverty. Do you think that that will help and how would you see it working? Mr Gass? I will speak while the audience arrives for the important question. On overpayments, taking into consideration someone's financial circumstances before seeking recovery is a very welcome proposal. Exactly how you set that level is maybe a more challenging task, but there are other aspects of overpayments. Although the policy memorandum makes reference to the bill, the bill, as it stands, suggests that official error overpayment could be within the scope of recovery. The policy memorandum suggests that it would be out of scope. I think that the bill therefore needs to be amended to make that crystal clear that agency errors will not be recovered unless there are exceptional circumstances and perhaps spell-out what those exceptional circumstances might be. We would welcome the commitment to the minimum income floor. I think that that could be done such as the use of a common financial statement limiting the amount of direct deductions that can be removed from someone's benefit to repay an overpayment to make sure that people aren't experiencing hardship. I would also share Richard's concerns about the drafting of the bills that stand in relation to overpayments because of agency error. From the policy memorandum is that the Scottish Government does not intend to pursue it unless, in cases where there has been a large overpayment made, we would prefer that the bill would set out that the overpayments that are made because of an agency error are not recoverable at all, even if they are large. I think that that would reflect the situation in most UK benefits at the moment and also does not mean that someone who has received an overpayment through no fault of their own would be required to pay it back and that it would also be greater incentive for the agency to perform well in making accurate payments. I agree that it is certainly one of our concerns in terms of the overpayments because, primarily, one of the biggest areas that the bill is going to deal with is disability benefits. That would create a very different provision in terms of overpayments down south compared to up here. It would be far more stringent up here because currently you have to show misrepresentation or failure to disclose in order to get an overpayment down south. That is not the case here. The other thing, too, is that it does seem to fly slightly in the face of some of the principles that are set out at the beginning of the bill in terms of dignity and human rights, etc. Again, if we are looking at having to get a good relationship between the department and the claimants, one of the things that I certainly know from my own experience in representing clients is that, if they feel that they have not contributed to something and it has not been their fault and they are nevertheless having to pay it back, that is a problem. Any good work that is done between trying to create a new system is one of the things that would undermine it. Another one—this is a curious one—is that it will come out to them that if you happen to be living in England, you would not begin to have to repay it. Whereas if you are living here in Scotland, you are having to repay it, that would further undermine any good work that might be done in terms of the relationship between the clients and the claimants rather than the agency. In terms of the financial floor, I would reiterate what my colleagues have said, but I would add something else that I think is also important to bring in somebody's personal circumstances into account there. That is missing from the bill just now. There can be many reasons as to why somebody does what they do. It does not necessarily mean that they should try to recover the money from them. One of the primary reasons is that there is domestic abuse involved. That currently would be caught under the overpayment provisions. The person would then be in an even worse position of having to repay and then the domestic abuse could then have a potential of increasing at that point. The reason for the overpayment occurring could be as a result of domestic abuse. Mental health is another one in terms of personal health, and whether the overpayment would lead to a possibility to deterioration of mental health. There are areas in the expression that is used for not recovering the overpayments that are welcomed in terms of finances, but they ought to be brought in doubt to take somebody's entire circumstances into account. Thank you. Do you agree that there should be a definition between an intentional error and intentional fraud in the bill, and how do the DWP treat those differences at the moment, if there has been an overpayment? Fraud in the DWP regulations, as Mr Hodges described, is that someone failed to disclose material fact, or did they misrepresent their circumstances? That is the intentional error that would be, perhaps. They did not advise of a change in circumstances. A person might not know that a fact is a circumstance to be reported. However, if someone is clearly aware that their circumstances have changed and they ought to report that, then that failure to report the change of circumstances would be an intentional matter. Do you think that that should be detailed on our bill? I think that there should be something in the bill that makes it clear that there is a duty to disclose your information, but it should also be in the bill that where there is an error that occurs outwith the duties on the individuals that is an official error, the official error overpayments will not be recoverable. Unless the person ought to know that they were being overpaid. If someone gets a lottery win one week rather than their weekly payment, then, quite clearly, something has gone wrong. It might be inappropriate that they would have the right, therefore, to retain that money. However, if someone reports a change, their benefit then is unaltered to discover five or six years later that they have been overpaid, and because of the quantity involved that that was now above a threshold and had to be recovered, that would be somewhat unfair. Mr Hoad, do you want to come back on that? No, no, I was just wondering if we were moving into the fraudulent penalties question or whether we are still talking about overpayment. No, I was just trying to clarify whether that has been a question. Okay, did you want to come back on that? No, thank you. I think that Ben Macpherson has raised a very interesting issue about who funds what. I suppose that it might be good to go back to one of the questions just a piece a bit harder. Should we separate advice and assistance and representation into three different areas so that perhaps if someone comes in and there is general advice given that it is funded maybe from his pot of money, but in regard to assistance and representation, that would only be for the devolved benefits. Would it be helpful to make a very clear distinction between the three areas of work so that there is no confusion on that, or would that exactly make it even more complicated in practice? I think that making a distinction between advice and independent advocacy is important. Whether we have made the distinction between independent advice and representation, I think that we would probably be cautious about that, particularly because the nature of the independent service that we provide is that people into a CAB will be able to get advice on all range of things related to a social security benefit from making application all the way through to representation at tribunal. I think that in terms of the funding, there are obviously considerations there, but I think that even with welfare statistics, I think that you would still have need for advice on some of the more basic elements making applications as well as the representation function, which I think is important that that is an independent function and that it is not really something that could be provided by the agency. Does anyone want to come in on that? I think that there should be a duty on the agency to provide information on the benefits that it is delivering, and a duty on the agency to signpost to the advice sector for information on the reserved benefits. When it comes to what the advice agencies provide to the individual when they come through the door, without funding, those agencies are going to provide information on everything. That is the nature of the organisation. If there is extra funding available to make it easier, then that is great, but it is going to be difficult to constrain advice agencies to say, right, here is the piece that I am funded for and here is the piece that I am not funded for. I think that you would be adding complications unnecessarily there. Did you want to come in on that one, Mr Hodge? Yes, I think that that is similar to the point that I was making before. Mark Griffin, do you want to come in and then George Adams? Thanks, convener. I think that we were about to move on to the new offenses that were created in the Bill and the committees received evidence from Justice Scotland and gender and others about a concern that the new offenses are overly hard in comparison with the UK system that there is a potential for a criminal offence for an honest mistake rather than the UK system where prosecution has to prove dishonesty to take that case to court. I wonder what your interpretation was of the new offenses that were drafted. Mr Hodge, do you want to come in on it? One of the clauses in clause 39 does mean that you have to show intent, the other one does not, and that is the one that we have a problem with. You are correct that it is different from the UK system and that again brings in the argument that I said before that it can be quite unfortunate to see that a new system that is trying to engend and dignity in human rights, etc., is giving less protection to the Scottish subjects than it would have in the south. I have problems even with the drafting of the legislation itself, which is particularly weak in clause 40, because what it allows for is that the person ought to have known that the change might result. That is the only protection that might result. That is the equivalent of saying that the person suspects that something might be wrong, and that is a very low threshold to pass in order to criminalise. We have to remember that we are criminalising people. The effect of criminalising has a huge effect on people's individual lives, credit ratings, insurance, travel, etc., so it should not be looked on lightly when somebody has a criminal record. That, in particular, is simply to say that you suspect that something might be wrong. In our position anyway, it is too low a threshold, and we would also go further to say that the protection that is most similar to this is in the housing benefit over payment regulations. They themselves have been described by one upper tribunal judge as draconian. The problem that we have here is that in order to show that somebody can reasonably be expected to realise that something is wrong, it is a low threshold. We have cases for example where a couple correctly gave on four different occasions the correct information to local authority, but it was still held to be recoverable because the person knew or ought to have known. The problem that we have here is that although the person may have given the right information, the point at which that benefit then continues to be in place. There could be argued to be a position where the person knows that that information has not got to the right place, and therefore any overpayment that is done thereafter is recoverable. We have another case in which a particular gentleman had a very limited experience with the housing benefit system. He had put in for housing benefit. He had given his wage slips completely correctly. His weekly wage slip was assessed by local authority. As an annual wage slip, he was given full housing benefit. Immediately prior to that, he had gone in to see his housing benefit office, and the person who had incorrectly put in the information and told him that he was going to get full housing benefit was still held that he ought to have known because when he got the letter in which he identified where the mistake was made, he ought to have read that in full. That is a letter that is about eight pages long and is quite double the decipher. The problem that we have got here in terms of the protection is very low in terms of clause 40. I would say that it is far too low, but our position in this one anyway is that in the bottom line, if you are looking at a criminal record, there really ought to be criminal intent, and that ought to be in the bill. In clause 39, it should be in clause 40 as well. Mr Gass, do you want to come in on that one? I agree with what has been said that you cannot have a crime where there is not been an intention to commit the crime. That is just wrong. We would wonder, like the common law fraud, if that is not sufficient to cover offences that would arise under the Scottish social security system anyway, is there a need to have so much detail? Would it not be sufficient to say that where someone is attempted to chain benefit by fraudulent means that that will be prosecuted under the common law fraud? Rob Goad, do you want to come in on that one? Only that I agree with a lot of the points that have already been made. We would welcome drawing as much of a distinction as possible between unintentional overpayments and deliberate fraud in where somebody, if somebody was prosecuted for fraud, would need to be unambiguous that it was done deliberately and with intent not that they could not inadvertently be sucked into it because of lack of awareness of the rules or not declaring something in error or because they did not realise that they had to declare it. I think that there is potentially some work that could go on. This is around some of the reasons why fraud happens in the first place, in terms of disability benefits. The rate of fraud according to the official statistics is 0.5 per cent, so it is a very small proportion way from speaking to advisers. They do not often encounter situations where there has been fraud, where it is either because of people's lack of awareness of the rules or because somebody is in absolute desperate financial hardship and has made a desperate move. I think that there is some stuff that could be done around that as well as within the system to reduce fraud, but we would welcome a drawing of a clear distinction between overpayments and fraud. How do you mention clause 40? You mentioned clause 40, which is specific to that clause, because clause 29 or 39 covered what we were talking about earlier. Is clause 40 the one that causes most of the problems? I think that there is clause 40 and 41. The only point to reiterate is that the basis of how the housing benefit system has worked, and that has got similar provision, is similar to what my colleague has said, is that if a person does not know what the rules are and, for example, they may have been sent them and in a document that they have for some reason not read, they will be held responsible for that and they will be held to be reasonable that that person should have known about that particular thing being a problem. On that test, you have got the potential of criminalising people simply because they did not read a document properly the whole way through. That seems to be a very, very weak protection to people against what is a very significant thing, which is to criminalise them. Thank you, convener. Good morning. I would just like to go back to what we spoke about quite a length in the first panel, which was my basic question would be that the cultural change that is going to happen with the 15 per cent of the powers that are coming, and in a lot of cases, because of the disability aspect to some of the powers, that is where a lot of your advice will be dealing with at the moment. Do you believe that the cultural change will actually have an impact on the service that you are giving, because we heard from PCS that you know the whole idea was for them to get it right the first time, and if not, for the system to actually get it, they are still, I understand from my constituency work scope for your own groups as well, but would it change with the devolved side of things, the fact that you have an impact on your service? We would hope so, in terms of having a positive effect on people's interactions with the system, people's duty to receive what they are entitled to with much less stress and fuss than currently is in the system. In terms of how the new agency might interact with CABs, there are a number of ways that could be supported from, for instance, providing regular opportunities for advisors and the agency staff to meet and to compare situations where we have done that with DWP staff and job centres, then it tends to be quite positive from both sides, potential for joint training of agency staff and advice staff that would be helpful in building a culture. There are some other things alongside that. We would hopefully have a positive effect if there was a cultural change within the agency on many areas of the system. An agency that is setting out its dollars, we want to pay you the benefit to which you are entitled, and we want to give you information about that benefit. That only has to breed a better culture. However, many of the folk who will be entitled to the benefit are going to be people who are unable to come into an office. The conversation that would need to be had with someone to complete a claim over the phone is possibly not going to drill down to the finer detail. Within many local authorities, the folk claiming the disability benefits are folk who are visited in their own house. When you visit someone in their own house, you can appreciate an awful lot just from how long it took them to get to the door, the range within their living room. What you see and hear within the house helps you to articulate the circumstances on to a form. I do not think that we are going to get away from that. The more people who are unable to get into an office, the more people who are unable to get into the office would still require someone to come out now. If they felt that they could contact the new agency. I am trying to say that the difference is between the current DWP position, where it is more told that there is a culture of mistrust between claiming and DWP currently. It is more or less the idea to get the culture so that if they can sort it, there will still be aspects for advice from yourselves. However, I am talking about getting the culture where it is getting right at the beginning, if possible, as opposed to the current culture, which is more or less like just cut the budget the way we can. If the culture changes and folk feel confident to pick up the phone, to phone the new agency, I was wondering if I am entitled to this benefit and the response was absolutely, this is a benefit that you could qualify for. And then there was the linkages, if the person receiving the call recognised, well, you need to be visited in your house. We know now who to contact and effectively put in place a referral for someone to be visited. That would be great. And so long as the agency does not fall into the position where the DWP is, where there is suspicion that if it is set out with something brand new from the start, and I think that the principles in the charter might just be the way to achieve that. I am just going to ask Mr Ho. Do you want to come in and comment? I agree entirely with what has been said. What you are looking at is what you hope to achieve. The real question is how you actually get the process by which you get to achieve that. I think that everybody would like us also as a security system that we are talking about here today, but it is important to look at the means to do that. Certainly some of the things and whether that is to degrade in the charter or whatever staff training. Absolutely. The attitude towards the front line staff of the new agency towards the claimants is one of the most key points that you could have. Again, there is a whole litany of things, but things like waiting times and telephones, for example, is another thing. But all these aspects are lots of small blocks that you need to look at very carefully to achieve what we are going to achieve. However, at the point where you are achieving if it gets there, I agree with you that there could be huge benefits on the advice agencies because it allows us to concentrate on other areas that we would rather be involved in. It was just to mention, just very quickly, when we talked about operating of the benefits, the Scottish Government has already committed, Mr Gowyn, to operate the disability benefits. What are you interested in? Why? You said that industrial injuries and winter fuel payments should automatically be upgraded. Can you explain why you said that? In terms of what the bill commits to operating the benefits annually by RPI. I am just asking why you said that the industrial injuries and winter fuel payments automatically... I was making earlier on some of the other things that could be considered to make sure that the benefits keep their value, such as the energy costs. You are aware that the Scottish Government is committed to disability benefits? Yes, I think that we would like to say that on the face of the bill. Any other members wish to ask a great question? I just want to thank them, but this is very much. They will certainly take on board what you have said. We are now moving into private session to discuss the evidence that we have had. Thank you very much.