 welcome to the 10th meeting of the Social Justice and Social Security Committee. we have no apologies this morning and our first item of business for today is a decision to take agenda items 5, 6 and 7 in private. Are we all agreed? is our fourth evidence session on the social security amendment Scotland bill. The bill is currently at stage one and today we will focus on part seven of the bill, which concerns recovery from compensation payments. I welcome to the meeting Lynn McFarlane, Solicitor Advocate, Forum of Insurance Lawyers. Alistair Ross, Assistant Director, Head of Public Policy, Scotland, Wales and Northern Ireland Association of British Insurers. Alan Rodgerson, Forum of Scottish Claims Manager. I thank you very much for accepting our invitation and just a few points to mention about the format of the meeting before we start. So, if you can please wait until I or the member ask him a question, say your name before speaking. And don't feel that you have to answer every single question and if you feel that you've got nothing new to add to what's being said by others then that's okay as well. And can I ask everyone to keep questions and answers as concise as possible. So we will now move to questions and I am going to invite Paul O'Kane. Thank you. Thank you very much, convener, and good morning to the panel. I wonder if, first, for the benefit of the committee, witnesses might give a brief overview of how the current system of compensation recovery works. I think that would be a useful place to start. I'll maybe just start in the middle with Alistair and then others can pitch in. To be honest, I was going to defer to Alan as a practitioner. That's fair, yeah. I decided to go in the middle there, I don't know why I did that, so, Alan. Thank you very much. So I should explain my other day job is working for Aviva insurance as a senior claims manager. So I do have a practical experience of the recovery benefit system as it works in the UK currently. Essentially what happens is a claim for compensation will come into an insurer or a compensator. They will register that claim with the DWP, Compensation Recovery Unit, who will then go away in the background and check if there was benefits paid to that person, which could be as a result of the accident or incident that is being claimed for. After that, what happens is a certificate will come out to the compensator to say either there's no benefits or here's a schedule of benefits that are due to be recovered from the compensator if you pay that claim. Those benefits, as they work under the UK scheme, very much similar to what's proposed in the Scottish scheme, they are aligned to individual heads of claim. At the point of settlement, so a compensator can't make an offer to an injured person until they've got a certificate of recoverable benefits. That's a very important point to make, because any delay in the process means a delay in the person getting their rightful compensation at the end of the day. What happens is, at the point, if the insurance company was making an offer of £5,000 and £3,000 of that is for the injury, £2,000 for loss of earnings say, and there is a benefit repayable of £1,000 that's loss of earnings related, then, essentially, the injured person will get £4,000 in their hand, £1,000 will go back to the compensation recovery unit. The £5,000 remains the £5,000 regardless is then offset against the person's damages and what they receive at the end of the day. I think that that was a helpful overview for us. Does anyone want to add anything? Yes, when? Thank you. There is also an opportunity to seek review of the certificate or a reconsideration of the certificate, and that is in the existing scheme. If you, as the compensator, receive the certificate and consider that some of the benefits that have been attributable to the accident are not, in fact, attributable, you can then seek to review or appeal the certificate, and that's an integral part of the process. One tiny little point, just because Lynne's reminded me of that, it's not just the insurer who can then ask for the appeal or review, the claimant solicitor could do that as well if they don't believe that those benefits are linked to the accident. Turning to the bill before us that we are scrutinising, are witnesses content that the bill enables the same system to be created for Social Security Scotland as currently exists for those DWP benefits? I wonder if you might want to comment on the synergies. Alasdor, do you want to? Yes, thank you very much. I'm happy to start off. From our point of view, we have a system that's operated by the DWP that works well, insurers are familiar with it, they're committed to prompt payment, one settlement has been agreed, we want to get these monies through so they can get to the injured person and also to the Social Security provider. Our preference would be to very much align with that model. As we understand, as it's set out in the bill, the two options are to essentially outsource or to enter into an agency arrangement with DWP. That would give familiarity with the current process or go down the route of a separate Scottish system, which would mean insurers adapting to operating two systems to be able to identify situations where you had to go down the existing DWP route or you had to go down a separate Social Security Scotland route. There are areas of uncertainty that would be good to clarify if somebody, for example, is resident in Scotland but suffers an injury while they are in another part of the UK or vice versa, how they would all work out. I think as well, it's maybe just helpful to clarify for the purposes of the bill what we're talking about here is the payment of monies to, in this case, Social Security Scotland for benefits payments that are resulting from the injury that's happened. So if somebody was already receiving Social Security payments pre the accident, those would not be covered. The payments that we're talking about is that if somebody was, for example, working in a longer able to work and devolved Scottish payments were triggered by that accident, that is when this would come into play as opposed to existing people that are receiving the payments. I hope that that makes sense, but I think that it's just an important point to understand here. Certainly from an insurance industry point of view, our preference would be the agency model that's been set out. I think that that's also indicated as Scottish Government's preference. Between the three of us, we've taken part in consultation events with the Scottish Government in advance of the bill being brought forward. It's fairly unusual for the insurers, the insurance lawyers and also the claimant lawyers to agree on this, but this is one of the rare times when we're all in agreement. I know that you've not got the association of personal injury laws in front of you, but having spoken to Gordon Dall, they are very supportive of that agency route as well, so that would seem to be the most practical option. Obviously it's for Scottish ministers and DWP to agree how that would work in the details of that, including presumably some kind of agency fee and how that would compare to the figures that have been set out in the financial memorandum. I know that we might come back to the financial memorandum later, but I think that that's an important aspect of it as well. Thank you. That was a comprehensive overview of that interaction, if you like, in the bill and, as I suppose, the views of insurers. Does anyone else want to contribute anything at this point, Lynn? Thank you. I'm here to represent the Forum of Insurance Lawyers, so I'm very concerned with essentially the litigation process. The main issue that we have in our minds is the smooth running of the litigation process, so receipt of a certificate of recoverable benefits is an absolute cornerstone of what we all do, whether we're a defender solicitor or a pursuer solicitor working in personal injury. If we do not have an accurate certificate, if we do not have a prompt certificate, that has a very significant knock-on effect on the litigation process. From a defender point of view, I cannot offer advice to my client in relation to what might be a reasonable settlement proposal, because I do not know what benefits are attributable or deductible from damages. If I'm a pursuer's lawyer, I cannot offer advice to my client about whether or not that offer is a reasonable offer and should be accepted. If the system itself, if the front end of the system does not operate quickly, promptly and smoothly, we will have real difficulties progressing litigation, not just from a settlement point of view, but from a court point of view. Essentially, if you decide as a solicitor that a case is to be defended and you wish the case to proceed to a full hearing on evidence or a proof, the court must be given evidence about compensation recovery unit recoverable benefits, and that certificate would routinely be lodged with the court. The presiding judge or sheriff will have to award damages if he or she is unminded to taking into account the compensation recovery unit certificate. If the process breaks down, if we are not in receipt of a valid, prompt and accurate certificate, that will put a risk to the litigation process. It's also good to know that yous were working in harmony with one another as well. Before I bring in Rose, I believe that Jeremy Balfour would like to come in with a supplementary. That may be a daffladi question, but what's happening at the moment? Obviously, some benefits have been devolved. Is there an agreement between DWP and Social Security Scotland working at the moment of what happens day in and day out as some benefits have been devolved, but yet those powers haven't been devolved in the bill? I'll pass that on to my colleagues because I am very much concerned with the front end rather than the back end. That's okay. Nothing's happening at the minute, is the short answer. If the person is receiving universal credit or any of the UK-led benefits, the compensation recovery unit is working as normal, any Scottish-devolved benefits at the minute, because the legislation is not in place yet, there's no actual mechanism for recovering those benefits, so the headline of the bill is to replicate what exists in the UK in Scotland first, and then it's about the mechanism of how we're going to recover those benefits. I'm on a benefit here in Scotland that's just not included in any certificate that is presented to the court. If it's a devolved benefit, no, it's not in any certificate at the minute. If it's a UK-led benefit, like universal credit, industrial injuries, disabled benefit, yes, it's appearing, and yes, it's there, and the money's going back into DWP. Thanks very much. I'm now going to invite—oh, sorry, did you want to come in, Bob? Apologise. There may be a few dafflady questions this morning, so I do apologise, but I'd rather be properly understood. I was using a briefing paper and it says that applicable benefits could be for up to five years that can be claimed back, so that certificate, does that certificate for benefits that have been taken up until the date of the award, or do you fast forward to an individual where a claim is going to be on devolved or reserved benefits as a direct result of an injury forever or for a prolonged period of time? Is that taken into account in terms of clawback? How does it work? I can take that as well, so sorry. The certificate arrives, so it's benefits payable after the accident and the benefits have to be caused by the accident, which was the point that Alistair made earlier. When an insurer or a compensator receives a certificate, there's a list of dates down the left-hand side and then there's the benefits being paid and the amounts, so it's accruing as it goes down the page. As at the point, the compensator settles the claim, everyone's clear, you'll literally go across the grid, that's the figure of benefits that needs to be repaid and needs to be deducted from the injured person's settlement. Actually received and it's a full and final settlement, there's no predication of future benefits accrued. Absolutely right. Yes, it stops as at the point of payment. Glyn, would you like to come in? Yes, sorry, can I just add to that? Just to explain, it does sound like quite an odd process and I appreciate that we're trying to explain quite an odd process from our perspective, but through the life of the litigation, if you are a solicitor dealing with the litigation or the claim, you will periodically reapply for an up-to-date certificate. So a certificate will be provided to you, which will have a date of expiry, essentially, and as a responsible solicitor, I would always require to update the certificate before the expiry date, so I'm aware of the accrued benefits and what should or shouldn't be deducted, so that's quite an important part of the process because if you're not in receipt of a valid certificate that's valid until a particular date, then you're not in a position to affect resolution of the litigation. Thanks, I'm now going to invite Rose and thank you. Yes, thank you very much and thank you very much for helping us out with such in-depth answers. I'm certainly not a lawyer and I'm going to follow on the Daft Lassie side of things rather than the Daft Lassie one. I think you've alluded to this on the opposing side, but I want to sort of narrow down a bit. Do you have any views on the necessity of these provisions and what would the implications of not enabling compensation recovery for Social Security Scotland benefits at moment specifically? So I'm not quite sure who's the best placed to answer that question, but who would like to come in? I'm happy to kick off. I mean, I think we partly touched on this in Mr Walfour's point, but if for whatever reason you choose not to go down this route, then those moneys simply won't be recoverable and so you'll have that imbalance between what happens at DWP level and what would happen at Social Security Scotland level. So that would be the most obvious implication of not going forward. I mean, just to be clear from that, an insurance industry's point of view, we support the principle of the bill that social security payment should be recoverable in the event that an insurer or their customer is liable for the injury that is meant that somebody has to start receiving social security support. So I absolutely agree with that and it makes sense to apply it to the devolved system as well as operates at the DWP. There's no particular, there's certainly no benefit for insurers for having that imbalance. I mean, what we're talking about here is insurers paying out gross sum and then that sum being divided and part of it going back to Social Security Scotland in order to address this potential shortfall and avoidable compensation. To not go down this route and to not enable the compensation recovery for Social Security Scotland would just mean that loss of income and compensation payment. On the other hand, I would also just point out that going down the route would not generate any additional moneys on top of what can reasonably be expected, so I don't think it would be the case that a separate Social Security Scotland system would recover a greater proportion of moneys than the DWP one would. There wouldn't really be that kind of contrast between the agency agreement with DWP and a separate Social Security Scotland system. That's very helpful. Thank you. We need to have a balanced view on that and that really helps a lot. Thank you very much. I'm going to move on to team two, which is options for delivery, and I'm going to invite Katie Clark in. Thank you very much. The Scottish Government's preferred implementation option is to have an agency agreement with the Department of Work and Pension. What are the advantages of an agency agreement with the DWP for compensation payments? I don't know if. Would Alan like to come in first? Certainly would. Thank you very much. It's not so much the advantages, the disadvantages of not going down that route. We've heard about the litigation process, we've heard about the importance of having a certificate, but if we ended up with having two certificates and having to have two certificates and two different methods of getting them and everything else as well, it's just confusion for everyone and it could lead to delay in the system. That's probably why the agency route is more appealing to everyone that was asked during the Scottish Government consultation phase. Alistair's point on the previous question, it's probably then needing a cost-benefit analysis to see what we're going to recover versus what it's going to cost to implement. It would seem that the agency route would be cheaper to deliver because the infrastructures there, the DWP are already asking local benefits officers what benefits have been paid to that person, so surely it would be easier for everyone involved to then ask about Scottish devolved benefits at the same time. I want to come in. From my point of view, as Alan has said, you've got a province system that is familiar to all users, whether it's insurers and compensators or whether it's claimant lawyers, but everybody understands how the system operates at the moment. A different system would require training to make sure that people are understood and could identify which of the particular systems they would have to go down if it was separated out, as opposed to the agency agreement with DWP. I won't get into the details of this just now, but if you're going to go down a separate Scottish system, that would presumably require procurement to build an IT platform that could then be delivered, so that's additional cost. Presumably, there would be some cost of the agency arrangement. Again, as Alan says, a cost-benefit analysis would need to be carried out to understand what would be the best value for money for the taxpayer for one of the better term. The only other question that I had in my mind was, having looked at the papers in terms of the financial memorandum, the set-up costs for the option of a separate social security Scotland system. I think that the operating cost would come in at about £5 million a year once it had been set up and running. The estimated figures that would be recovered were round about the same, and presumably one would offset the other. You'd have to balance that against the cost-benefit analysis for the DWP agency system. I don't know if Lynn will get anything to add at the moment. To pick up on the point that Alistair has just made, if for any reason the Scottish Government and the DWP were unable to negotiate an agency agreement, what other options—you've alluded to one option—might be available? I don't know if Alistair would want to pick up on that. I expect that one option would be simply not to recover, and we've already talked about the implications of that option. Two would presumably be to build a separate Scottish system with everything that that entails in terms of procurement of the high T system. The training, I don't know if you would need legislation to put through for that as well. Scotland that you would presume that would operate that system, would that be the presumption that you're making? I expect so, yes. Valin, would you want to come in on that, whether there are other options? I'll be honest, I can't think of another option. I think that that's probably the only ones that we've been able to come up with. Thank you, that's very helpful. I don't know if Lynn wants to come in, because it's been covered. Just a little. I think that the only practical assistance here might be the possibility of just one certificate. From the front end perspective, one certificate that sets out all benefits recoverable, which are English and Scottish, we then pay that amount, or the insurer pays that amount, and the back-end process is then left between Scottish ministers and the DWP. Okay, that's felt good. Thanks very much. I'm now going to invite Bob Dorison, thank you. Okay, thanks, convener. So let's assume there is an agency agreement. I might return later on to what the other options are, but I think that's been explored pretty well so far. We can't just do it overnight. I think that the suggestion could take at least a one-year, perhaps more lead-in time, so perhaps some more witnesses may want to put on the record what has to be done to support the industry for effective implementation so that this is a success once we're there. So what is dear, would you give the committee and government to make sure that this is a success in any agency agreement? Mr Dorison. I'm happy to come in. If the agency agreement was the compensator, still reports it exactly the same way they do now to the DWP, absolutely nothing extra would need to be done from the compensator side. Everything would then be back-end for the DWP and Social Security Scotland, so nothing else would be required. We've got systems at the minute where we would register the claims and it talks to DWP directly. All big compensators will have exactly the same, and for people who don't have that, there's ways that you can notify the claims in a traditional manner using forms and that still happens. Mr Ross, your organisation has talked about training and other potential requirements ahead of time in relation to lead-in time. Do you want to say that I can read the quote that we've got here if insurers would need at least 12 months notice of the charge and details of the new system in order to support its smooth introduction and provide training for claims, handlers to understand the new system and social security applicable. Is there, Mr Rodgerson's perspective, we can just press the button and on and we go, because it's a single point of contact and things at the point of view that Lynn McFarlane was talking about carries on as before. The numbers just simply changed with a disaggregated breakdown, but are there other things lurking there, Mr Ross, that maybe needs a wee bit of attention? What we were really thinking of, as I said earlier, because he's the practitioner, but what we were thinking there was that there would be an element of training just to make sure that the claims handlers were aware of the separate system in case it is brought up in the conversations that they're having when they're going through the claims handling process and the claimant of the representatives raised that and said, well, actually, you know, I'm now in receipt of child support payment, rather than the Scottish child payment, rather, or, you know, are these factors being taken into account? So we need to be an element of educating and training just to make sure that the claim handlers were aware of that and understood that, weren't confused by that. And in terms of just being able to roll that out across various kinds of sites and stuff like that, 12 months would be, you know, a not unreasonable period of time. I'm not saying that it would take 365 days, but in order to make sure that you'd been able to familiarise people and bring them up to speed with the new terminology and just the presence of this, all the dope necessary, I need to operate it and they do need to be aware of it. So that's the main point. The quote, Sir, Mr Rogers, in the S. In my earlier point, I was missing out the back-end training that insurers would do, but they would do that as a matter, of course. The front-end would be the same and nothing would need to be done if we were still reporting it to DWP in the normal way. I think where the ABI quote comes from is, if there was an alternative method where there was needing to be two different ways for us as in compensators to notify these claims, that's where the new systems and even more training and everything else would come in. I don't want to get a division between witnesses, but it's nice to get one, because you all agree with each other. Mr Rogers, what you're saying is, just in terms of the terminology and the phraseology, the different system in Scotland, awareness-raising and just not taking for granted that all the individuals working in the sector are fully aware of that, I'm sure they are, but let's just get it right and let's be 100 per cent sure. Is that maybe more what you're saying? Yes, I mean, as Alan had touched on, you've got the major compensators who are working at scale, but you've also got some mid-sized and some smaller firms who may well have a much smaller volume of these cases, but when it comes up, they would still need to be able to recognise and understand and go through the appropriate route, so it's just making sure that it's sufficient time available for the claims handlers who need to be aware of those distinctions. I mean, at this point in time, it may be the case that they're not aware, because they're not having to include that in the compensation recovery process, so awareness of things like the Scottish child payment and the other devolved payments that we have now is probably relatively low within the, for one or the better term, the compensator community, so it would be providing some capacity just to educate people and bring them up to speed with that. That was the point that I was making there. The big takeaway for us is that it's a single point of contact for the sector in terms of delivering on this, and the complexities don't have to be you guys doing that. It's for between DWP and Social Security Scotland, and you don't have to see those complexities as long as the front end user that Lyn McFarlane was talking about can just continue as always have done with the appropriate training. Sorry, Lynna, I apologize if I misrepresented your position. Not at all, not at all. I just wanted to add a little bit of colour around that in terms of the appeal or the review process. So the way that the bill is set out at the moment, if you wish to appeal Scottish benefits, you have to do so to the Scottish ministers, but if you have English benefits that you wish to appeal, you have to appeal to the DWP. So there is some prospect of a divergence in practice in relation to the appeal process. Now, that's just something that we don't know how that will play out in due course, but that might cause a little bit of confusion and a little bit of uncertainty around the appeal process. Okay, that's helpful. Thank you. Okay, thanks very much. I'm moving on to theme 3, which is the financial memorandum. I'm going to invite Marie McLeary in, thank you. Thank you, convener, and good morning, panel. Mr Rogerson, do you think that the estimated recoverable payments of up to £5.5 million per year by 2029 is reasonable? I did notice the financial memorandums very heavily caveated in that respect, and when I first read it, I went back and did a little bit of digging in my own organisation, and that's where I came up with the £992 per claim that's in the submission. So I couldn't necessarily square the two because I think by 2029 the cost per case would be about £3,600, I think it is, if my maths is correct. So I wasn't sure how that would all work in practice, but because I'm not clear and I'm doing it every day, I actually did a freedom of information request to DWP so that we can try and get some more information back on what payments they're actually recovering now for Scottish benefits, and hopefully if I can get that, I can maybe extrapolate what that might mean for the recovery in Scotland, and certainly more than happy to share anything I get back with both Scottish Government and the committee if it's in time. Anyone else want to make any comment? I think it was just herself, I was going to post my question to, cheers. Okay, thanks very much. Jeremy, you would like to come in with a supplementary, and then I'm going to invite John Mason in, thank you. Yeah, I mean this is probably not within your area, but just in case. I noticed with the financial memorandum, it's £3.78 million to implement the scheme, which seems quite a lot of money to me. Can you maybe unpack what do we get for that £3.78 million, and why is it so expensive? I'll try. I'm not an IT expert by any matter of means, but IT projects do seem to run away with themselves, and it certainly seems from our side that there would be a lot of IT requirements if there was a central Scottish social security recovery of benefits place, talking to local benefits agencies and working out exactly what was to happen and when it was to happen. I did have a quick look at the UK compensation recovery unit figures to see how many cases were notified last year, and it was 484,000 cases were registered. If Scotland accounts for 8 per cent of the general population and we look at it that way, that's about 38,700 cases per year that would need to be looked at, registered, go to the benefits office to see if there's benefits there, come back, issue certificates, so there must be a bit of manpower or IT resource required behind that Jeremy, but unfortunately I couldn't give you any more detailing on the actual deliverables. I suppose that there's the element of the wide-ranging element of the different costs as well, if you wanted to come in on that, John. I think that that was a reasonable answer to the last question. Bob, would you like to come in? I would help that. I suppose that asking that question is caveatic with, I absolutely agree, the idea of a single point of contact and as little disruption as possible for claimants and defenders and the sector makes absolute sense, but I am looking at the amount of recoverable estimates from social security Scotland compared to the set-up and on-going running costs, and it could effectively be cost-neutral at the end of the day, so you don't really collect very much. I suppose there's commercial negotiations behind the scene between DWP and Social Security Scotland, so the more figures they put in the public domain, if you like, the DWP can squeeze for a better deal for the DWP in relation to this. We could get to a point in the future where the figures may show that it makes sense to set up a standalone Scottish system, which could still dovetail nicely with the UK system. The bill is not suggesting that. I am not suggesting that. I feel like what I'm doing is I'm asking a future proofing question, given the numbers are pretty self-evident there in terms of what the benefit is to the Scottish taxpayer of doing this at all seems relatively minimal in the first instance, if I've looked at the numbers accurately. Any reflections on how, if we were to fast forward five years, ten years in the numbers show that there's a business case to set up a standalone Scottish system, could that be done? Is there a way of dovetailing nicely with the wider UK system? It's a leap into the unknown. The legislation that we've got in Scotland talks about five discrete benefits, one that relates to loss of earnings and the others relate to care and mobility components, whereas the UK legislation is 20 different benefits and 11 of those all relate to loss of earnings. Loss of earnings being the one I see day in, day out on certificates. In answer to your question, it's possible. It's something that may need to be considered as we go, but it's a huge leap into the unknown for knowing what you're going to get back, when you're going to get it back and also how much it's going to cost to implement as well. If the agency agreement—I'm not part of this negotiation, obviously—if Scottish ministers were minded to try and do it on a percentage basis of what's recovered goes back to DWP, then you would future proof the agreement that you've got with the DWP. I've seen nods from the other witnesses, so unless you're a Mr Ross, you may wish to come in. I was just to point out that I absolutely recognise the kind of premise you're starting from, and what you're talking about is a lot of different variables. As you're saying, on five years' time or 10 years' time, it could be a different proposition as could the Scottish fiscal position at that point. We're a budget in 10 years' time to have the capacity to pay for a one-off set-up cost for a system if the system was then deemed to be required at that point in time, but the other big variable is—at the moment, as Alan said, we're talking about five discrete payments. Would a future Government want to extend that? We know certainly that the Scottish child payment intention is to, over time, increase the value of that. Would those go beyond inflation? Would you get new payments coming in? All those factors would come into account as well. It's very hard to say today what a five-year or a 10-year case would look like when there's lots of different components could change. That's very important to put on the record. I suppose that the key thing is that whatever happens in the future is that we take the insurance industry and litigators with us within that process to make sure that there's no disruption to the most important thing that William McVallan keeps going about, which is the front-end business of making sure that people get the compensation that they deserve. I'm now going to invite Jeremy Balfour in. Thank you. I have a couple of questions. My mind is working a bit slower this morning, but I'm going back to the question that you said earlier about the appeal process being different if it's a Scottish minister compared to the DWP. Is it possible, within the agreement between the two parties, that that one party could waive the right of appeal and allow Irish or Scottish Government or DWP to do the whole process? Would that legally be possible? Yes, that could be possible. It's certainly not set out and the bill is proposed at the moment, so at the moment the bill sets out that the appeal process should be to the Scottish ministers in relation to Scottish benefits. From the petitioner's perspective, would it be easier to have one port of call for an appeal? It would be a lot easier and a lot more practical, and from a practitioner's point of view easier to prepare for an appeal to one point of appeal rather than two different points of appeal where there is a possibility for divergence of views. My final question is that the bill includes the power to create a criminal fence for failure to comply with the requirements of an investigation. Are witnesses familiar with any similar powers in the current system? Do you have any comment on whether it is reasonable to make a criminal fence to neglect to comply with an investigation? I'm not aware of that at all. I would need to go back and have a look at it, Mr Balfour. I've not seen that in the legislation. As I understand it, most of the legislation is lifted straight from the UK legislation, so maybe that clause exists in the UK legislation as well. I've never heard of it being enacted, so I'm not sure. In my 25 years of litigation experience, I've never encountered it. I don't know if anyone has any further supplementary questions to put to our witnesses. We have plenty of time in hand anyway, so thank you very much. That concludes this evidence session, and thank you very much for joining us today. After recess, we will hold a final evidence session with our cabinet secretary for social justice before we report on our findings. I now briefly suspend the meeting to allow for a panel change before we move on to the next item of business. Welcome back. Our next agenda item is an evidence session looking at the client experience of Social Security Scotland's redetermination and appeals process. The committee heard from today's witnesses or a representative from their organisation earlier this month as part of the scrutiny of the Social Security amendment Scotland bill. Today's session is intended to allow a wider discussion about the client experience of redeterminations and appeals, so our discussion will go beyond the proposals in the bill. I welcome to the meeting Erika Young, policy officer for Citizens Advice Scotland, who is joining us in the room, and Richard Gass, chair of Rights Advice Scotland, who is joining us remotely. Thank you once again for accepting our invitation. We were also meant to hear from Kirsty McKechnie from CPAG, the Child Poverty Action Group. Kirsty is unfortunately unable to join us today, but will provide her contribution to the evidence session in writing. I will swiftly move on to our questions. The first person that I would like to bring in, based on redeterminations, is Paul O'Kane. Thank you very much, convener, and good morning to Erika and to Richard. I wonder if we can just begin by looking at the theme of redeterminations, so Social Security Scotland's client survey suggested that most people who think that a decision has been wrong don't ask for it to be redetermined, and many of the reasons for that are focused around the idea that it's not going to be successful. I wonder what more could and should Social Security Scotland be doing to try and support clients to request that redetermination. One of the things that we can't build is that there are two strands to it that are really framed within the overarching need to get decisions right first time, and that's where perhaps some of the focus should be. One of it is making sure that people are correctly signposted to advise and support when a decision is provided to them. At the moment, regardless of whether your decision is negative or positive, you're getting an overwhelming amount of paperwork. You can submit a redetermination and people can look at that and it can feel quite adversarial, whereas if the decision was simply accompanied by a signposting to advise, that might be a little bit more reassuring for people that there's less process. In terms of the actual process itself, one of the things that might be a little bit less off-putting for people is if they have more channels to submit a redetermination. Unless you have a Gov.Scot account, which is very difficult for people, you can't submit a redetermination electronically in any other way other than through a My Gov.Scot account. Something like an electronic route not through a My Gov.Scot would be quite helpful. The other thing is to ensure that information is proactively gathered at the commencement of a claim as to a client's particular communication needs. We've had some cases come in of where clients' really imperative communication needs have been completely overlooked. For example, we had a couple presenting at one of our cabs, both the carer and the cared for person, who was also the ADP claimant, were profoundly deaf, and they required a BSL interpreter. They'd been trying to report their challenge to an award for some considerable time, some three to six months. They were offered a home visit, which is wonderful, but in order to access that home visit they would require to download an app on their phone in a range of video appointments to actually book the home visit. It's quite basic failures like that that can make all the difference between whether someone has the confidence that their decision will be properly looked at again. The same can apply to supporting information. If people feel that their supporting information was not appropriately or thoroughly addressed, that can also make them think, well, there's no point in proceeding with a redetermination, because my evidence isn't going to be considered properly. I will qualify that by saying that Social Security Scotland has made enormous progress in terms of the way it handles evidence on quite a few different levels. I wouldn't say that's a general critique, but it's the kind of thing that can go wrong in the process. I think that that's helpful in terms of that practical example. I'm sure we'll want to maybe explore that in more detail. Richard, I don't know if you would want to add anything about your experience. Yes. Some of the problems that arise from trying to do something good and better in the first instance. Appellants or claimants, when they're making their claims, advise that the agency will seek out information, and indeed the agency does seek out information, and then they get the decision through. At that point, the claimant with an unsuccessful claim doesn't really feel that there's anything further to add. They've made their claim, the agency sought out additional information, and you're now only going to have another person look at the same information, and it's not going to get very much further forward. When reconsiderations were introduced by DWP, they were introduced as an exercise to manage down the number of cases proceeding to appeal. I think that we probably carry a problem where claimants may not fully distinguish between Scotland and England. It's seen as a fruitless exercise going through the MR stage at DWP, so there could be some well-founded belief that there's no point in pursuing a redetermination. If I could be so bold as to suggest that if we were to abolish the redeterminations and just combine them into a single, I've got a decision, I'm not happy with that decision, and I'd like to take that further and the agency can correct it or improve upon it if they're able to, but if they're not able to it would proceed to appeal. The thing about an appeal is that it's an independent appeal. Folk fuel will, it's not the same people marking their own homework on this occasion, it's an external agency that's going to look at this, so I think that I certainly felt that that was a better system in the past and would encourage us to embrace that again. Yeah, thanks for that. I recall at the time of the passage of the bill, those discussions around how that system might work and it may be tied into the point about accessibility as well, that it might be a more accessible process if you're going straight to appeal. Do you feel that in terms of some of the points that Eric I made, Richard, around that accessibility, it would be easier if we just went straight to that process? Yes, I would, everything Eric has said, I don't disagree with. There seems to be a hang-up on using prescribed forms, et cetera, which makes the role of the adviser that bit more tricky. We'd quite like to go out to visit somebody and if we can identify a claim, we make the claim we've got the tools in the bag to do so. If we visit somebody and they've already had an unfavourable decision, we want to have the tools in the bag to actually resolve that when we're in that person's house. Not a case of, well, we need to download a form or you don't have a printer, what happened to the letter you were sent or it went in the fire along with the decision notice. We just want things to be simple and us to be able to bring the tools with us. I wonder if I can just ask a question about perhaps some of the differences in terms of where people live and some of the challenges there. Are there differences between rural, semi-rural or urban areas in terms of clients' experiences of redetermination? I'll come to Erika. What I have found is that it's only about 12 per cent of our ADP clients come from very rural areas or remote areas, specifically anyway. What we're finding is that the logistics of doing home visits can be more challenging in rural areas. Some can involve a round trip of three to four hours, so if you've got a multi-stage process you're maybe supporting that client to complete the application, you're then supporting that client to complete redetermination and then potentially an appeal, that can be logistically extremely difficult for a bureau, but it might be the only way that that person can access the process. That again comes down to how things are lodged. What Richard was saying about prescribed forms is quite a significant issue for our bureau, because a lot of bureau would just like to put in statements and evidence, potentially on their own format or the preferred format of the claimant rather than having to use the prescribed form from social school to Scotland, so that's definitely a gap and that can be relevant to rural areas because they have to make sure that they've got all their hate paperwork. Digital connectivity and postal services are also much more volatile in rural areas, so potentially there can be delays caused by post not arriving or there can be delays by digital connectivity going wrong during the process, so the client then has to return to the bureau or another home visit has to be organised. The other difficulty with rural areas is clients can be located quite far from their professional, medical professional input, so getting support and evidence can also be logistically a little bit more difficult and a little bit slower. The broader context is higher cost of living in rural areas, and we can't lose sight of that when discussing that because what that means is that money has that little bit extra urgency for people living in rural areas. We did a pilot into food insecurity in different ways of providing people with food insecurity, and what we found was the three areas with the highest repeat visits for emergency food assistance were all in rural areas. What we also found was that those clients were preferring food bank referrals over cash supermarket vouchers simply because the local supermarkets that they could realistically access were simply too expensive. That's the broader context there. Richard, do you want to add anything in that space? In relation to folk in rural areas, if they can't physically get into an advice centre but they can phone in, then we would like people to do the business with that person over the telephone. If there's an online mechanism for lodging an appeal, then we could do that over the phone with the person, but where it requires the specific form, then, if we're not able to visit, we need to post that out and have that then returned, so that is a bit of a barrier. Also, in rural areas, you don't have what I used to refer to in Glasgow. It's a tenement culture where everybody somehow knows everybody's business and they're able to say, well, oh, you've been turned down for this, you need to go and see that chap down the road. If you live in a rural area, maybe you don't have that. I think that's quite interesting because I think there's a variance of views on are you more exposed in a rural and is there a more stigma? I think that's interesting and it's certainly something that we would want to consider, so I think it's a useful point more widely. Thank you, convener. Okay, thanks very much. I'm still on the theme of redeterminations. I'm going to invite Ross McClellan. Thank you. Thank you very much and welcome back. I really do appreciate your candour and honesty on these questions because it's important that we hear in the committee how we get this right and where the issues are when it comes to redeterminations. 75 per cent of child disability payments redeterminations are decided in favour or the client. Does this raise any concerns for yourself about decision making process for this benefit? I'll start with Erika, if you wouldn't mind being as open and honest as you can on that. Absolutely, yes. We see very few redeterminations and appealing advice inquiries in relation to child disability payment. Relative to adult disability payment, it's quite a small area of advice for us. The majority of what's coming in on child disability payment is difficulties when parents separate. Making sure that the right parent has the right payment is where most of the problems that we are finding with child disability payment are coming from. However, I can share with the committee probably easier because it's quite technical points to follow this up in writing. However, we have picked up on some potential issues with how the mobility criteria has been interpreted for child disability payment. However, it's something that I would need to explore in a lot more depth to determine whether there are any real conclusions that can be drawn from that, but there are signs coming through that there may be some issues there. I know that there are certainly deep issues with the interpretation and application of the criteria. There are certainly specific activities and descriptors under the ADP-PIP interaction, if you will. I can go into that in a little bit more detail as the discussion continues. That's all that we can say so far about child disability payment. Richard, do you have any comments on that? Clearly, if 75 per cent are being overturned at redetermination, something didn't go right initially, and I think that you probably need to explore as to whether additional evidence is provided for the redetermination. If so, that could be explained. However, if it's a case of a vast majority and there was no further information provided, then it's two people looking at the same facts and coming to different conclusions. That would suggest an internal training issue. I know that, for a lot of children, the source of additional supporting information comes from schools, so it would probably need to find out what information has been provided. Was it provided by the school? Was it helpful information from the school, or did the claimant or their parent come back with everything to contradict what the school had provided? Thank you for that. I'm sorry, so that I can make sure that I've got this right. Additional information is then obviously coming forward where we've got a redetermination in a positive way. That argument then would be that we should be looking for that proper information right up front. Is that really what you're saying? We should really be looking at how we frontload this process to make sure that we have the information right first time, as was already alluded to earlier. The process will be that where the claimant indicates someone who can provide that information, the agency will seek that information. However, does the person that was to provide it actually provide it? We won't know that. There's too few cases. We might be no more about this when we get to see cases proceeding to appeal to see what happened at the claimant, what happened at the redetermination at this point in time. The answer that you're looking for lies within the agency. How many of those cases was there further information provided, or how many was it a case of just a second glance at the same facts, brought about a second decision? I do understand that. Thank you. That leads on to the adult disability payment. Why do you think that most requests for redetermination are about adult disability payments? Does it suggest anything about Social Security Scotland's decision making for this benefit? I'm going to go the other way around if that's okay, because you alluded to Erica on adult disability. We'll start with Richard this time, please. The people claiming adult disability payments, unless they're brand new claimants, will have previously been claiming the DWP variant PIP or DLA. What we found particularly in Glasgow, and I would imagine that it was true elsewhere as well, was that what we had were regular customers every two to three years. They were coming back to us because they'd had a review of their benefit and they had to jump through the hoops again. I'm just offering a possibility that it may be that your ADP client group, that a number of them are familiar with the need to not just accept a negative decision and to push a bit further, but I don't have evidence to back that comment up. No, thank you, but it's a very valid point, and I accept that. Erica, do you have anything to add to that? I think that the PIP legacy on the psychology of individuals claiming adult disability payment is certainly quite a significant factor in the decision making of those individuals, especially when they don't seek out advice. In terms of why the redetermination rate is so high in relation to adult disability payment, the obvious answer, of course, is the need, frankly speaking. The second obvious answer is the sheer complexity of the criteria and what's actually being assessed and the amount of supporting information that can sometimes be required to make an accurate decision. That process is not an exact science and it's difficult. What I've also found is that there's some confusion, I think, among decision makers. It's something that I'm going to work with Social Security Scotland on about what case law applies that had previously been applied to the equivalent criteria in PIP and to what extent that case law then carries over to the same criteria in relation to adult disability payment. It's particularly affecting the social engagement and planning in following journeys and activities at the moment, in particular in which I'm picking out. The other factor in all of that is the balance of responsibility in relation to supporting information. Evidently, it's much easier for a decision maker to get a decision right first time if all the correct supporting information is supplied from the outset of a claim in adequate detail, but that's not a simple straightforward thing for any client to provide that. There's also a wonderful approach whereby there's an automatic trust in the claimants' evidence on the form. The peril of doing that is that claimants in my experience are people claiming ADP have a tendency to play down what they are potentially experiencing. They're taking certain things that they've normalised for granted as being just their lives. They don't recognise that there's actually an awful lot of dependencies that they're maybe not seeing as limitations and dependencies for psychological protection effectively. Drawing that out of a client requires quite a sensitive process, and it also requires the information of externals such as informal carers, as we all know. If that's not being provided in good detail in the course of a claim journey, then, potentially, the decision will come out wrong. Evidently, it will come out wrong. Those are some of the factors involved in quite a complicated benefit, with a very difficult criteria, and it's a function-based benefit. Thank you. I don't have any further questions, but that was exceptionally helpful to understand that process. In recent months, Social Security Scotland has been taking longer to complete redeterminations of adult disability payment. Do witnesses have any indications of why that might be the case and what impact that is having on clients, and have they got anything to say about how those delays might be addressed if I go to Erika First? That needs to be seen as part of an ecosystem. Social Security Scotland was under enormous pressure to improve overall journey times. That has a knock-on effect on the entire system. My interpretation of it is that there's been a huge amount of resource put into trying to improve journey times at initial application, and that has then slowed down redeterminations. It's backlogged them. That's just my interpretation of what may or may not be going on. The impact on clients, however, is very evident. I hesitate to throw around overused terms, like Kafka-esque, but in so far, as it describes processes that can feel as though they don't have a clear endpoint, that they have shifting perimeters, and that they're opaque, it's certainly apisite. I mean, just to talk you through one example of how long the whole process can take. We had a gentleman, we'll call him John. He claimed the ADP having felt too overwhelmed to claim PIP. He was eventually coaxed to claim ADP. He was refused. He put in a redetermination. He was then refused a redetermination level—no, he was awarded standard rate of both daily living and mobility at redetermination. The cab he was working with advised him that, given his circumstances, he should be entitled to the enhanced rate of mobility. It was then taken forward to appeal. Prior to the appeal being heard, his condition deteriorated further, so he reported a change of circumstances to Social Security Scotland. The appeal was then heard. It was successful. By the time it was heard, because it was successful, he withdrew his change of circumstances request. Only to find out a week later that Social Security Scotland had decided to take the case to upper-tier tribunal, so he'd lost his change of circumstances report, and now having to find out that it was going. This is 18 months from when he originally made his claim, so the impact of that on people is not just financial. When I say financial, we are also talking about the network that that person is travelling within. They may become more dependent on family and friends, and that can create strain. We are seeing cases where carers are struggling to engage with Jobcentre Plus because they are not currently on carers allowance, because they are waiting the outcome of an ADP. Their work coaches are saying that they have got to be subject to a full-claimant commitment because they are not currently on carers allowance. We don't have any evidence that you are a full-time carer, and of course that person may have just given it work. In some cases, they may have been moved in with the person that they are caring for. We had one lady, for example, who was a single parent to a little five-year-old, who was in and out of hospital with the person that she cared for because his epileptic seizures had become so serious that he was regularly in and out of hospital. The pressure that that person was under was enormous. Those are the kind of challenges that people are experiencing as a result of delays. It is just putting additional pressure on people at a time when they are already facing a multitude of pressures. Not very much more to add to that other than delay will just breed a belief of what is the point. If you make a claim, your hopes are there. I am going to get an award. I am going to get an award. Six months later, you are thinking, well, I am not going to get an award. Chances are, when you get a decision through saying that you have been unsuccessful, you might not feel inclined or motivated to seek advice as to whether that was correct. The financial needs are in the here and now, so the faster we can get decisions made, the better and as Erika could clearly put that it is not just the claimants' financial circumstances that are in jeopardy from the delays. Are there any other changes that you have maybe not previously highlighted that you feel need to be made to the redetermination process and have asked Erika first? Apart from not having to use a specific form, which has already been alluded to, one of the key ones would be a digital form of submission that does not involve having to use a MyGov.scot account. That would be really helpful as a simple practical thing. There is a lot of work that I am doing in the background as well on how to support people with supporting information. That would help to improve things at source but could also be transferable to how to provide supporting information for redeterminations, which would improve and speed up the process, because, again, if people are supplying that information at the outset, it is more likely to be successful. That is very helpful. Thank you very much, Richard. I know that you made some more general points earlier on in terms of the redetermination and appeal process. Is there anything that you could maybe add? Strip out any technicality. Make it as simple as possible. If someone has been turned down, they could even lift a phone and go, I am not happy, I want to engage, whatever you want to call it, strip away the technicality. If that involves removing a tier of decision making because there will always be a reconsideration by the agency prior to going to tribunal to make sure that they have their work correct, that would be important. I know that we are going to come on to appeals in a minute, but there is an opportunity to lapse, which is in the bill, to enable the correct decision to finalise matters. We are moving on now to the theme of appeals, and I am going to invite Marie McNeiryn. Thank you, convener, and good morning again, panel. I am much appreciated coming along again to our committee. Mr Gass, what experience do you have of supporting clients with Social Security benefit appeals, and how does that differ from appeals on reserved benefits? Well, I have worked in welfare rights since 1986, so I have seen many, many changes, so very, very experienced in relation to the DWP appeals. I have to say that my personal experience of the Scottish appeals is evidence that I have collected from my colleagues, but what we had been promised from the outset was that we are going to do things different in Scotland. It is going to be better in Scotland, and the feedback that I am getting is that it will actually, in practice, it is not working out better. There have been attempts to make things better, but these have then been issues that have an unintended consequence. For example, the requirement that the agency sends somebody a letter of appeal at the point of a negative redetermination, that is great. You are giving somebody the wherewithal to lodge an appeal. However, to then require that that is the sole tool on which to lodge the appeal is then creating a barrier, and it is a barrier that we find particularly tricky. The UK system, we can lodge an appeal online. A client can phone us up. We can go through the online form with them and submit the appeal. We cannot do that for Social Security Scotland benefit decisions. The form for lodging an appeal for Scotland is 16 pages, although there are some blank pages in there, whereas our standard appeal letter is a single page. We feel that we have stripped out all the unnecessary parts, because that 16-page form is trying to cover everything. We now have a one-page form. If we do require an ink signature on a form, we can post it at a single form to that claimant, and it is quite easy for them to know where to sign and everything else is completed. To send 16 pages out is just unnecessary, and it is slicing the face of green politics. Thanks for that. Tribunals are independent, but given the resource available to Social Security Scotland compared to the appellant, do you think that the correct balance is given when allowing flexibility to both sides? For example, how easy is it for the appellant to secure an adjournment compared to Social Security Scotland? Is that to myself again? Yes, aha, sorry. We have not had so many Social Security Scotland appeals to be able to comment on that. I have not heard anything that suggests that it is more of a problem than getting an adjournment for the UK benefits. I can move on to Ms Young. In your organisation's written submission, you referred to prolonged waiting time for an appeal to a listed poor communication that the minister of hold-ups arising from both Social Security Scotland and the tribunal service. Can you expand on the issues that the clients are facing? On the positive side, I will start with a nice positive. One of the big differences with the Social Security Scotland system, as opposed to the reserved appeal system, is that you do not have to request a statement of reasons with Social Security Scotland benefit, because beautifully justified decisions are quite often available as a basis for your challenge, whereas that was not the case with the reserved system, so I will just put that nice positive note out there. On the more difficult note, there is no timeline for Social Security Scotland to respond to an appeal request, whereas there is under the reserved system, so Social Security Scotland can take as long as it wishes to respond to an appeal. We have had experiences of Social Security Scotland delaying to respond to an appeal, and that holds up with the whole thing. On the administrative delays on the part of the tribunal itself, that is quite often with convening a panel. Now there are understandable reasons for that, but that can hold things up quite significantly, and just generally it just seems to be taking a long time. I mean, I've got a case, for example, of a lady and she's going through so many different health problems. She was misdiagnosed with type 2 diabetes, sorry, instead of type 1 diabetes, so she was given the wrong treatment, and the background was already post-traumatic stress disorder from various difficulties in her life and other health problems involving incontinence. She originally applied for ADP in February of last year, and her appeal will not be listed until April of this year, so that gives you a sense of the scope of the delays. One of the other administrative complexities is that the tribunal is trying to get this fine balance between effective communication, giving people enough information and overwhelming people with too much information, and sometimes that balance is not quite working terribly well, so our advisers are having to chase up the tribunal and say what stage are things at, what's happening, when is the appeal going to be listed, when is the appeal bundle going to be available, because of course advisers need to be able to see that appeal bundle and they need to be able to go through everything within it to be able to effectively represent at the hearing, so it's things like that. The system could definitely be much more streamlined as Richard was alluding to in his evidence. The committee obviously heard earlier in evidence the concerns that tribunal hearings have been held over the phone rather than in person. How does this practice have felt effective quality of decision making and is there any potential implications for a human right approach to social security? Happy to kick that one off. I think that this has very profound implications. I think that what we have to remember about adult disability payment, for example, is that it was a huge achievement to have consultations only required where absolutely necessary. The flip side to that is that by the time that a case reaches an appeal there will have been no face-to-face interaction with that person. For many clients this can apply as much to mental health sensory and neurodiversity conditions as it can to physical conditions. Presenting in person to a panel at tribunal can be hugely important in conveying their day-to-day lives and to be able to express effectively their needs. Many people in those circumstances will find extremely difficult to articulate over the telephone or on paper, but where has been their in-conversation with someone and also the tribunal can simply observe. It is a process that is inquisitive rather than intrusive. It is a process of curiosity teasing out that evidence from simple observations, interactions and body language with that client. Now, those things are simply not possible on the telephone. Just to give you an idea of how that can exclude people, we had a lady who had been through very significant trauma related to abuse. Post-traumatic stress disorder was diagnosed. She had a number of gynaecological conditions, multiple other physical and mental health challenges as well. She actually did go through a consultation, but it was over the telephone and she had not had the confidence English with her second language. She had not had the confidence to request a female member of staff to conduct the consultation, so she simply was not able to explore any of those issues. She also became very confused about what 20 metres means. Now, that is difficult to explain to people on the phone, whereas if you are seeing them in person, you can potentially use body language and other visual cues to help people. As a result, she was refused ADP. She then had to go through redetermination and appeal process, and it was just traumatising for her. People are confronting this potentiality that they may never be who they used to be. That is very, very hard for people to confront that and asking them to do it multiple times. Over the phone or on paper, it feels remote for people. Evidently, face-to-face hearings are not for everyone. Everybody recognises the advantages of the efficiencies that can be created by having remote communication, and it is important that everybody has that choice. That is coming to the human rights point. It has got to be about the person's right to decide what works for them and what feels best for them in terms of communicating and getting access to justice. Thank you for that. Mr Gass, have you got anything you want to add to that? Yes. When the appellant fills in their appeal form, they are all 16 pages, there is nothing on those pages to indicate their preferred disposal of the appeal, telephone, in-person or video. They do not get invited to comment at that stage. What then happens is that the Scottish Appeals Centre communicates with either the claimant or the representative. If there was no response to that, it would default to a paper hearing. In any cases where there is a representative involved, logic would dictate that they are representative involved because they are going to help me with that. It is not going to be a paper hearing, so that should be knocked out straight away. At the point of when the reps are responding, they need to ask for something more than a telephone hearing or it will default to a telephone hearing. All the points that Erica made there, the non-verbal communication that you get from seeing somebody. When somebody says that there is absolutely nothing wrong with them, but you saw them take three minutes to navigate their way to their chair and the difficulty that they had sitting and getting back out of their chair afterwards. That is all evidence that tribunal gets an in-person appeal. That is lost over the telephone, certainly lost over the telephone. Where it defaults to a telephone hearing and someone has not even been made aware that there was another way to do the appeal, then they could feel quite rightly aggrieved afterwards that they did not get a fair impartial tribunal. It will be folk on higher pay grades who would make the decision as to whether or not that was a breach of their human rights. However, there is certainly an argument to be made. You mentioned the standard letters. Does that apply to appeals? What are the benefits of those types of letters being accepted as the appeal has been lodged? The advantage of the standard letter is that it streamlines it for the advice agency. It is pre-populated with our contact details. It can be pre-populated with our availability. It can state categorically our preference for the type of appeal. We can do all that on a single page, so it is win-win. Do you think that they should and could be accepted to the first to your tribunal? The legislation says that you are required to return the form that was issued to you as a consequence of your request for a redetermination. Is it ever physically that form? Some cases it will be that form because it has kept that form. Other occasions will download a form from the website, so it is no longer the same form, but it is not going to be distinguishable from the form. I can understand that what you perhaps do not want is folk trying to lodge an appeal and providing insufficient information. In those circumstances, it might be appropriate to send out to somebody to say that you have tried to ask for an appeal, but you have not given us enough information. You have not identified the decision that you are appealing against. You have not provided X, Y and Z. Then send them out as a request for more information. However, where a letter contains all the necessary information, that should be acceptable as the form. As I said earlier, the requirement for it to be the form is an unintended consequence. I would like to think that it was an unintended consequence of the good intention of sending out the person that we were with all to lodge it in the first place. Thanks for that. I could go on, but I better hand back to the convener. Thanks very much, Mary. I am now going to hand over to Jeremy Balfour. Thank you, convener. I should just remind that I am on the enhanced rate of PIP and I am a former member of the first tier tribe, you know. I noticed that at the moment, 365 out of the 1,745 AD appeals have been decided. Are you concerned that, with such a new system, we have already got backlogs occurring? Is this an experience that you are facing as well? Erica, do you want to go first? Yes. I think that I would go back to my previous example of the length of time that it is taking from the point of application to the point of an appeal being heard. Nearly all the cases that we have are in excess of a year from the point of application to the point of appeal being lodged. We have another example of a single mum with complex physical and mental health needs who applied for ADP on 26 February 2023 and her appeal is still not being lodged yet. It is likely to be sometime in April. It is definitely a significant concern for us. Is there anything else to add to that? Much the same. I took a couple of strawpoles over the length of time and the view is that Social Security Scotland appeals are taking longer, probably 15 months from the decision to tribunal. For DWP appeals, I think that we are sitting around about 11 months, so yes, inevitably that will be leading to a backlog. In the written submission, voiceability raised concerns about the availability of interpretation services. Have you any experience of supporting clients who need interpretation or translation services? Is this causing delay as well? That is not one that I can speak to, but it is certainly something that I want to look into after I saw that. I thought that this is something that we need to investigate, but I will certainly keep the committee informed if we do have findings on that. We had an example where there was an interpreter involved and it was a telephone hearing, and that was just completely unsatisfactory. There were issues in relation to the person who was having their evidence interpreted. Their communication with the interpreter was staggered and stalled because of poor telephony, and it seems to be quite a common concern that with telephone appeals there is always somebody who loses the connectivity, which obviously would not happen face to face. For interpreting services, I think that they are going to be best done in a face to face environment. I am now going to invite Paul O'Kane in. Thank you very much, convener. I have just lost my place in my papers, if you could give me one moment. I was going to say that I was nice to you. My apologies, sorry. That is my fault. My humble apologies to you, and I am going to invite John Mason in now. I would like to ask the two witnesses about short-term assistance. My understanding is that if somebody has already got an award and it could be either being removed or reduced, that is when short-term assistance kicks in. First of all, generally, is that working? How is it working, Ms Young? I think that the figures speak for themselves. Actually, there have only been 125 applications in the entire history of ADP. I think that the reason for that tiny number is because it applies in so few circumstances. The only example in which it would apply realistically in the real world is if someone has awarded ADP and they are granted the standard rate of both components and they are advised that they might be entitled to an enhanced rate on one. If they put in a redetermination and they are then found to have no entitlement at all, which is a very rare situation that can happen, they would be entitled to short-term assistance because they were granted the standard rate. In most circumstances, decisions that are being redetermined or appealed are simply initial claims that have been refused, so there would be no entitlement to short-term assistance in those standard everyday challenges. That is why I think that it is so limited in its scope. I am hesitating to make general recommendations that are committed today on it because it is still something that we are developing our ideas about how we might look to move it forward, but what I cannot say is that, as it is at the moment, it applies in very limited circumstances. As far as it can help some people in some situations, it is wonderful that it is there, but it is very limited in its scope. It would not apply at all if somebody is either not already getting a benefit or if it is going up or whatever it is only if it is coming down. I get that, but it is early days. There was a suggestion that perhaps there could be some disadvantage if people have STA in that it does not automatically mean, for example, that they would get carer support payment. Are there any downsides on STA, or is it positive? As far as the general principle goes, it is fantastically positive. There are some technical issues that CPAC's early warning system has uncovered around passporting, but that is something that we would need to look further into because it is not something that our network has raised so far, probably just because of the small amount of numbers, but it is worth keeping an eye on because it could be a big concern. Access to passporting benefits is one of the most significant financial implications of delays is not being able to access passporting, particularly things like the blue badge. It can be much more difficult to access if you are waiting for an award of ADP or it is under challenge. Those are quite complicated issues, but as far as STA is concerned, at least the person is getting the money in, even if it is not counted for passporting purposes and as an award of ADP, as long as the money keeps flowing. I have to say that I would be confused if it was not treated as an award of ADP for passporting purposes simply because it is applying when people have an existing award that has been reduced, so I would have expected it to be in very few circumstances in which it would interfere with passporting. It may be safe, for example, if someone was originally awarded the enhanced rate of mobility and was accessing a motability vehicle and on review was put down to standard rate and then could no longer access the motability vehicle. The short-term assistance could interfere in those circumstances because the amount that is awarded has gone down and the short-term assistance covers the lower amount. That could be something that we need to investigate further. Okay. Mr Gass, do you want to say anything on this area? The short-term awards are a great idea, but the failure of them is that when somebody… Let's take a step back. A short-term award will only exist when someone has an award and for whatever reason they have lost that award and they are then seeking to challenge it and they make a claim for it. They are then given some protection pending their appeal. The fact that it doesn't count for passporting I think could be remedied if on the successful award what happened was that the STA was recovered and then replaced with the benefit that they have just been successful for, therefore giving them an entitlement to the passporting benefit through that whole period. That would be the way to go in my mind with regard to low uptake. I was going to interrupt you, but that is not happening at the moment. I understood that they would just take the STA off the backdated payment? If you are awarded more, then you will get the difference between the STA paid and the higher amount. You have been on a benefit, you have been awarded the STA, you have been removed, you have been awarded the STA pending your appeal. If your appeal is successful to restore you to the benefit position you are in, there is no cash transaction required. Whereas if on appeal you actually managed to go up to a higher rate, then you have then awarded the difference between the STA that you have received and the higher amount of benefit that you have received successful for at an appeal. My understanding, and this is from the CPAG's discovery on this, is that where someone is awarded the STA and it is then confirmed that they should always have had their benefit with no financial difference, then the STA covers the past period and from the appeal date forward they get their disability benefit. For DWP purposes they do not recognise the STA as qualifying, so there seems to be again an unintended consequence of a good idea. Let's give somebody protection during the interim period, but in order to make that successful at the end of the day you need to recover it and replace it with the disability benefit. Right, I think that I am understanding that. That would mean that there was no actual financial change in somebody's finances, but instead of saying that for that period I had STA they could then say that for that period I had the qualifying benefit. I think that I have got my head round that. As a more general question, do you have any other comments or suggestions about the appeals process as a whole? I will start with Mr Gas this time. Obviously, I will not repeat what I have said already, but one thing that could be done in relation to STA is that you do not require a separate form for STA to only kick in specific circumstances. It could be a tick box on the appeal form that is rather than requiring another form, and that might then encourage more folk to lodge the claim. Whose decision would that be to make that simpler? Would that be social skew to Scotland to change the procedures? It is the form that they are required to send out. They have control over that. If indeed they give us permission to use our forms, you will stick a tick box on it as well. Okay, thank you. Miss Young, anything else about the appeals process? I would circle back to one of the points that you brought out earlier on in the session, which was regarding the need for the redetermination process from the claimant perspective at all. Our position on that is that there is no need for a claimant to submit a redetermination. Just take one practical illustration. A claimant has to lodge the appeal papers with Social Security Scotland who forward it to the tribunal service. They do not lodge it with the tribunal service. The whole idea of claimants having to take the step of a redetermination and then submit another set of paperwork to Social Security Scotland who forwards it to the tribunal service does not make sense if there was just one step where a claimant could simply lodge a challenge that would be treated as an appeal. At that point, Social Security Scotland could make a decision as to whether they were going to use the appeal lapsing process to make a redetermination to avoid an unnecessary appeal hearing. That is a much more streamlined process. I understand that there are concerns about whether or not the idea of going to an appeal would be off-putting for people, but because they are already lodging the appeal through Social Security Scotland anyway, I think that it would just be about the framing of it that would get over that hurdle. Ultimately, unlike a redetermination that is effectively the agency marking its own homework, the appeal is an independent body and clients can be reassured that there won't be unnecessary hearings because if Social Security Scotland does realise they've made a mistake in their decision, they will then put forward an appeal lapsing proposal that a client through informed consent can then decide to accept or reject. Is that something that you've discussed with Social Security Scotland? It's certainly something that has been raised. It's going to be part of what we feed into the formal review of ADP and all of those concerns, as well as the positives that we have around ADP are all continuously being fed into Social Security Scotland on a monthly basis, and we provide regular briefings to Social Security Scotland as well. We do find those conversations to have been enormously productive. That's great. Thanks. It wasn't a bit something that we can raise as well. Thanks very much. I'm moving on to the final theme, which is on the reviews that you just touched upon there, Erica. I'm going to now invite Bob Doris in. Thanks. Thanks, convener. I'm not sure much time. I have a couple of very small questions on that last line of questioning. Do we have time for that, convener? Yeah, we have plenty of time. It's obviously a little bit of a repetition, but I just wanted to clarify a couple of things in relation to the debate around whether there's redeterminations or appeals. We did hear witnesses that said appeals are the off-putting for some clients, and they wish to keep redeterminations, and other witnesses very much took the same view of, I think, Miss Young and Mr Gas. I'm wondering if it's a range of over-complicating things a little bit, because I think what Miss Young is saying is that it kind of doesn't matter what we call it as long as we de-risk it for the individual. An appeal could include a redetermination clause within it. I think that, as Mr Gas was saying, you would move for the appeal, and there's nothing so secure to Scotland at that point, doing an internal review or redetermination anyway in quick order to see if there's a glaring inaccuracy within the initial claim, and I think that Miss Young used the expression, appeal lapsing proposal. So, could we do Mr Gas's idea of saying that your redetermination appeal is the one process, and we just get the wording of the phrasiology around it, if I can actually say that, to make sure that it's not off-putting for clients? I must wait to square the circle, would you think, Miss Young? Absolutely, it's about the framing. If we're framing this as one streamlined process for clients, but if we soften the language around appeals, so it sounds more like it's just an overarching challenge, because that would be much more accurate, because that's exactly what you're actually doing. Your lodging is one process to challenge a decision, and it either goes to an appeal hearing if Social Security Scotland doesn't use the appeal lapsing proposals in the current bill to make a redetermination. You could potentially just abolish the term redetermination altogether, and it would just be effectively an internal review when an appeal is lodged, because they've made a different decision. It definitely is about the framing to prevent people from feeling it's too formal. The word appeal suggests a process that's too formal. Mr Gas, to characterise your suggestion correctly. Yes, that's correct. The other thing that could go in there would be that a claimant or an appellant can withdraw their appeal. If they're told that you're challenging the decision to help to progress an appeal, that will require the agency to look again at their decision, but you'll be given the opportunity later on if you choose to withdraw your appeal. Can you withdraw appeals? That's helpful. At the start of this line of questioning, I think that Mishung gave a specific case study that Cassie has been supporting, and he called the person drawn for the purpose of anonymity, where there was an appeal to the upper tribunal by Social Security Scotland that was unexpected. Despite the fact that John had a deterioration in his condition, I saw a redetermination on the basis of the deterioration of the condition. I don't have to capture that properly. Just to correct my terminology, Mishung, to that kind of wider point, I want to make my apologies. This is precisely the problem with the complexity of the system. What John had done in between the first-tier tribunal hearing that was successful and the appeal by Social Security Scotland to the upper tribunal was that he had reported a change of circumstances. A change of circumstances triggers a review process. A review process can be scheduled because whenever anyone has awarded ADP, they'll be given a review point. It might be two years, it might be five years, it might be ten years for their award to be looked at again. That's called a scheduled review. An unscheduled review is when someone reports a change of circumstances. John's unfortunate mistake was that when he was successful at first-tier tribunal, he withdrew his request for a change of circumstances internal review because he thought everything's fine, I've been awarded the maximum at first-tier tribunal, I don't need to proceed with that. Of course, what was happening in the background, John, was that Social Security Scotland was appealing to the upper tribunal. It seems common sense that there should be a duty on Social Security Scotland in such circumstances to say to John, do not withdraw from this process because we still have the right to appeal to the upper tribunal and we are going to lock in what John has sought to do in the first place until any potential upper-tier tribunal has been disposed of. That must be a pretty straightforward thing to make happen, I would think, Miss Young. More widely, given one case study example, I'm sure that there's lots of others where if common sense was to prevail, we could just fix this. Is there a need more generally for a review of the guidance and the advice and information that Social Security Scotland gives out in such circumstances? I agree entirely, yes. I think that you have to remember the stress that clients are under, they're not necessarily taking everything in. For a gentleman like John, having gone through this was in excess of a year since he originally applied for ADP, the sheer relief of having been awarded what he was asked for at first-tier tribunal, the first thing he's thinking is right, I don't want to have any more process involved with this benefit, so he immediately withdrew his change of circumstances because he didn't want to have any other process going on because he was so exhausted and drained with what had been happening, so he wasn't thinking of the possibility of Social Security Scotland then further appealing that decision, so if it perhaps being made clearer to him that actually there could be further processes in a way that is sensitive and trauma informed, I think that that's a keyword I would like to bring in at this point, sensitive and trauma informed that recognises that in stressful situations like that having gone through a process that's exhausting and draining you're not taking a lot of information in a way that you might normally have to be. I would have thought a basic duty of care from Social Security Scotland would kick in relation to that. The final aspect to mopping up from the other line of question which was really helpful, Mr Gass talking about the bespoke one-page forum that distills down all the key information that you can assist clients to complete and then they sign it and off it goes, but because of the specifics of legislation there's a 16-page forum that has to be as part of that tick-bocking exercise, tick-bocking exercise rather has to be sent in. I know that this is a rather mundane workaround but could that forum not simply be sent in with an addendum attached to it and that forum could be blank as long as that forum's been sent in? It's still counts. It's a workaround, it's not a solution but are there just in the very short term are there very clear workarounds so you could work with Social Security Scotland to secure? You nodded your head, Mr Gass, but the official report would. I wasn't sure if you were directing that at me. Yes, some councils do in fact send in the necessary form with an appendix, which has the additional details. I'm not sure if you're hearing me because my screen has frozen. We can hear you just fine, even though you've your hand raised for quite a long period of time, but yes. I think that's quite clear, Mr Gass. I better move on before I get enraged to communicate with my line of question. I think there's some people watching me supplementaries if you'd like to come in. Just to clarify on what you've said, some of the changes you have been suggesting regarding how repeal process would work needs change in the primary legislation. It's not purely administration filling out forms. If we were to go to a one-peal reconsideration, that would change. We need to change the act to do that. Am I right? That's right, correct. Can you just say yes for the record? Yes. Thank you very much. I'm going to bring Bob back in, but can you try and put it as in size as possible? Yes, and I apologize. It will be really brief, but these ones are really important. I'm going to question Jeremy's clarified completely about how we'd get the change that we'd like to see. I'm just going to read for Bethan what we've got from our briefing paper just for brevity. What experience do witnesses have of supporting clients to request reviews of best start grant or job start payment, because it's a different process, it's a review process, not an appeal for redetermination? Any experience of supporting clients in that area? Maybe Ms Young, do you want to come in first? Our experience is actually really, really small. In quarter one of 2023 to 2024, we only had two appeal cases and 12 reviews. It is quite a very small area of advice for us, which is potentially a positive thing that suggests that most applications are going smoothly. We do appreciate the fact that those with no recourse to public funds can access best start foods, for instance. I appreciate your brevity, because it gets me in the good books with the convener. Mr Gass? Nothing further really to add. We've got very little experience and certainly no comments of negative experience so far. Even better, Mr Gass will go to my final question. What are witnesses' views on having a review process for those benefits, as opposed to a redetermination or an appeals process? So far, is it fine how it's working or would you like to see any changes? I suspect with very little experience there might not be a lot to say, but just for the record, Ms Young, what's your thoughts on that? As a general point, I think that I would go back to the previous discussion around framing. It's quite important to have consistent framing that people can understand easier, because it's consistent across different benefit types and different benefit journeys. I think that bringing things more into terminology and more into line helps clients to make sense and understand the system better. So, very least in alignment of terminology, if not exactly of process? Yes, because I do appreciate that the process can't be identical across benefit types because of the differences there, but if the terminology and basic processes were similar, it would help. That's helpful. Finally, Mr Gass. As far as it's possible, mirror the system for challenging a decision so that folk don't have to then check what is it that this process is at that process, doesn't matter about the language, as long as the process is much the same. Thank you very much for the questions. That concludes all our questions. Thank you all for attending our meeting today. We have given us some useful information and examples, which will help us to consider our next steps. That concludes our public business for today. We will now move into private to consider the remaining items on the agenda.