Social security system - enhanced administration and compensation recovery: consultation analysis

Executive summary

Introduction

This summary provides an overview of responses received to the Scottish Government consultation 'Scotland's social security system: Enhanced Administration and Compensation Recovery'^[1]. The online consultation ran on the Scottish Government Citizen Space website for twelve weeks from 4 August 2022 to 27 October 2022. An independent organisation (EKOS Ltd) was commissioned to undertake analysis of the responses and this summary provides an overview of the findings of that analysis.

The consultation sought views on proposals to inform the continuous improvement of the Scottish system of social security. In line with the Social Security Principles^[2] and Social Security Scotland's Charter^[3], the measures proposed are principally intended to improve client experience and deliver increased value for money.

A range of proposals were included in the consultation relating to:

• Scottish Child Payment
• re-determinations
• determinations after an appeal is lodged
• appointees
• challenge rights for overpayment liability
• compensation recovery
• alternatives to prosecution for low-value fraud
• overpayment liability where someone acts on behalf of someone else
• independent advice and scrutiny of social security
• Coronavirus (COVID-19) measures.

These proposals were grouped into four broad sections: improving client experience; delivering value for money; independent advice and scrutiny of social security; and COVID-19 measures. Questions were also included in the consultation, under the heading 'Impact assessments', to consider the possible effects and outcomes of the proposals on people, businesses, and communities.

Consultation process

A total of 34 responses were received to the online consultation (all validated and appropriate). Most consultation responses were from organisations (85%), with the remainder from individuals (15%). Third sector organisations were the most common organisation type to respond to the consultation, followed by the public sector and private sector.

The Scottish Government held six remote and in-person events between 27 September 2022 and 15 November 2022 with stakeholders and people with lived experience of the social security system and disability. The events, which supplemented the online consultation, attracted varied attendance levels. The Scottish Government has commissioned research to be undertaken with Social Security Experience Panel and Client Panel members focussed on certain consultation topics to supplement the feedback from engagement events and formal consultation responses. The findings will be analysed internally by the Scottish Government and the outputs will be considered before proposals are finalised.

Analysis and caveats

All consultation responses were given equal weighting and the analysis sought to identify the most common themes and issues in consultation responses. The views presented in this report should not be taken as representative of the range of stakeholders who were invited to respond to the public consultation.

Respondents were self-selecting and the number of consultation responses received and attendance at some of the virtual stakeholder and in-person public engagement events was relatively low. The Scottish Government is addressing this limitation through engagement with Social Security Experience Panel and Client Panel members.

It should also be noted that the consultation was structured to allow respondents to answer questions independently in recognition that respondents might want to respond to one or some of the proposals without wishing to express views on the others.

Main findings

Improving client experience

The first section of the consultation was titled 'Improving client experience', and a total of 16 questions were asked about five proposals. Each proposal sought to implement the Scottish Social Security Principle "opportunities are to be sought to continuously improve the Scottish social security system in ways which put the needs of those who require assistance first, and advance equality and non-discrimination"^[4].

Scottish Child Payment

There was strong support for the proposal that it would be useful for the Scottish Government to be able to make changes to Scottish Child Payment that were not limited by the current approach that relies on 'top-up' powers. Almost all respondents who answered this section agreed (93%) with the proposal while the remainder didn't know (7%).

The main advantages noted by respondents were that the proposal would:

• build on the early success of the Scottish Child Payment, in particular as an intervention to help reduce child poverty and in the context of the cost-of living crisis
• overcome limitations of Universal Credit, a UK Government qualifying reserved benefit for receipt of the Scottish Child Payment
• protect the Scottish Child Payment from the impact of any changes made by the UK Government to reserved UK benefits
• align the Scottish Child Payment with other forms of Social Security Scotland assistance
• enable the Scottish Government to be more agile and responsive to changing circumstances, for example future external events or factors.

The main disadvantages of the proposal identified by respondents were:

• that implementation of any changes that arose from creating greater flexibility might require additional resources (such as finance and staffing resource), and that this might be challenging in the current climate
• that the application and assessment process for the Scottish Child Payment might become more complex.

A few respondents noted that additional flexibility could be used to restrict entitlement therefore the way in which additional flexibility was created would be important.

Withdrawing a re-determination request

Respondents were asked whether they agreed or disagreed that a person should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision. Almost all consultation respondents who answered the question agreed (96%) while the remainder of respondents disagreed (4%).

Views expressed by respondents who agreed with this proposal included that:

• it was considered a fair and reasonable approach and in keeping with the Social Security Principles around adopting a rights-based and person-centred approach
• the proposal had several advantages such as additional flexibility for people and reduced administrative burden
• access to independent advice would help ensure people have considered their options before deciding whether or not their re-determination should go ahead
• people should not feel pressured in any way to withdraw a re-determination request.

Determinations after an appeal is lodged

The consultation asked whether a new determination should only be made where the new determination has the same effect as the Tribunal making the maximum award available to it. Consultation respondent feedback was mixed. 40% of all consultation respondents who answered this question agreed that a new determination should only be made if it gave the person everything they could get from the Tribunal. A similar proportion disagreed with the proposal (44%) and 16% didn't know.

Respondents who agreed with this proposal noted that:

• people should not have to attend any unnecessary Tribunal hearings, and this proposal could reduce stress for people
• it could reduce time and resources involved on appeals
• it could increase transparency and errors could be rectified early.

Respondents who disagreed with this proposal suggested that:

• it could pre-empt the outcome of Tribunal hearings and restrict options for Social Security Scotland to respond to an appeal
• some people might wish to consent to the new determination and accept a higher award that is less than the maximum they could get from a Tribunal
• the process involved in applying for a re-determination could be stressful for people, and that some people might rather avoid applying for a re-determination as a result.

Respondents were also asked whether they agreed or disagreed that a person should be asked for their consent before a new determination is made. A majority of all consultation respondents who answered this question agreed (72%). Similar proportions either disagreed with the proposal (16%) or didn't know (12%).

Respondents who agreed with this proposal reported that:

• people should be asked for consent at all stages of the challenge process, and that this could empower people
• it fits with a person-centred approach and aligns strongly with the Social Security Principles and Charter
• it would reduce stress for people, including those with protected characteristics
• it would provide an additional opportunity for people to be signposted to independent advice.

On the other hand, those who disagreed with this proposal held the view that asking a person for consent before a new determination was made might not be necessary at this stage, and that Social Security Scotland has the right to make a new determination. It was suggested asking for consent could lead to added pressure being placed on people.

Most consultation respondents expressed support for challenge rights on a new determination, and there were broadly three main views on how those rights should look:

• some people thought there should be a consistent approach across the social security system and therefore give people both re-determination and appeal rights on the new determination
• others said that the new decision should only come with appeal rights (meaning that the re-determination step should be skipped)
• while others suggested that instead of stopping the appeal, the appeal should just continue against the new determination.

Appointees

Respondents were asked whether they agreed or disagreed that Social Security Scotland should be able to make payments to a Department for Work and Pensions (DWP) appointee for a time-limited period until Social Security Scotland completes its appointee process. Almost all consultation respondents who answered this question agreed with the proposal (96%) and the remainder disagreed (4%).

Respondents who agreed with this proposal reported that:

• the proposal would avoid delays to payment
• the benefits of the proposal outweighed the risks.

Challenge rights for overpayment liability

Respondents were asked whether they agreed or disagreed that the Scottish Government should introduce rights of challenge against Social Security Scotland's decision that someone was liable to repay an overpayment. All consultation respondents who answered this question agreed (100%)with the proposal.

Much of the respondent feedback on this proposal was that rights of challenge were important for several reasons, including that:

• people should be able to challenge liability for an overpayment, as there could be a range of circumstances in which an overpayment could occur (for example administrative errors)
• each case should be assessed on its own merits as there might be mitigating factors
• the proposal could avoid court proceedings for people
• challenge rights were consistent with a person-centred, human rights-based approach
• the proposal could increase accountability, transparency, and openness of the Scottish social security system, and ensure greater alignment with the UK system.

Many respondents considered the most appropriate way to hear challenges was for Social Security Scotland to first look at its decision again when a challenge was raised with a possible re-determination and, if the person still disagreed, then for challenges to be heard at the First-tier Tribunal for Scotland (Social Security Chamber). Other approaches suggested by a few respondents included going straight to the First-tier Tribunal for Scotland (Social Security Chamber) in some cases, or an independent review.

Delivering value for money

The second section of the consultation was titled 'Delivering value for money', and a total of seven questions were asked about three proposals. Each proposal seeks to implement the Scottish Social Security Principle "the Scottish social security system is to be efficient and deliver value for money"^[5].

Compensation recovery

Respondents were asked whether they agreed or disagreed in principle that the Scottish Government should undertake recovery of Scottish social security assistance from compensation paid as a result of injury or disease for which a third party was liable.

Consultation respondent feedback on the proposal was mixed. 43% of respondents who answered the question agreed in principle, the same proportion didn't know (43%), and the remainder disagreed (14%).

Qualitative feedback from respondents who agreed with this proposal was that they considered it important that taxpayers' money was not used to compensate people twice for the same injury or disease.

Among those respondents who disagreed with this proposal, the main point raised was that the proposal would place undue hardship or stress on people. A large proportion of respondents were unsure about this proposal as the subject matter was outside their area of expertise.

Alternatives to prosecution for low-value fraud

Respondents were asked whether they agreed or disagreed that Social Security Scotland should have available an alternative to prosecution where small sums of money have been obtained illegally. Almost two-thirds of respondents who answered this question agreed (65%). Similar proportions of respondents either disagreed (15%) with the proposal or didn't know (20%).

There was consensus among respondents who agreed with this proposal that prosecution for low level offences would be disproportionate. They felt that prosecution processes were expensive, time consuming and stressful or intimidating for the people involved. These consultation respondents suggested that an alternative approach could involve repayment of monies fraudulently obtained plus a penalty or community payback.

Respondents who disagreed with this proposal raised two main points, namely:

• if fraudulent activity is suspected to have had occurred, then it should always be referred for prosecution, assuming that there is sufficient evidence to suggest that a fraud offence has taken place
• that it would be important for people who were prosecuted to have access to a legal defence.

Third party overpayment liability

The Scottish Government proposal is that where an overpayment has occurred, whether the person has someone acting for them or not, Social Security Scotland should seek repayment from the person who actually benefited from the overpayment.

Respondents were asked whether they agreed or disagreed that third parties, such as appointees, should be included within the scope of statutory liability for overpayments. The majority of all consultation respondents who answered this question agreed (75%) with the proposal, while 10% disagreed and 15% didn't know.

Those respondents who agreed with this proposal felt that:

• the proposal would create additional flexibility by balancing the need to protect vulnerable people and avoiding deterring people from volunteering to act on someone else's behalf
• there might be mitigating circumstances whereby friends or family could be involved in helping someone and could inadvertently make an honest mistake
• third parties who act on someone else's behalf should not be held liable where they did not cause or contribute to that error, or if it was the sort of error that a person could not reasonably be expected to have noticed.

Some respondents believed that third parties, such as appointees, should only be liable in cases of their own financial gain. These respondents suggested that, regardless of whether or not a person had acted deceitfully, it would be unfair to hold that person financially liable where they had not received financial benefit.

Respondents who disagreed with this proposal felt that a third party, such as an appointee, might be deterred from volunteering to act on someone else's behalf if they were included within the scope of statutory liability for overpayments.

Independent advice and scrutiny of social security

The third section of the consultation was titled 'Independent advice and scrutiny of social security' and contained a total of seven questions.

Current arrangements

Respondents were asked to what extent they thought the current arrangements for the provision of independent scrutiny and advice worked effectively.

Consultation respondent feedback was mixed. 42% of respondents who answered this question thought current arrangements were either partially or fully effective, 25% thought current arrangements were not effective, and the remainder didn't know (33%).

The main feedback from respondents who thought current arrangements for the provision of independent scrutiny and advice work were partially or not effective included that membership of the Scottish Commission on Social Security (SCoSS) and Disability and Carers Benefit Expert Advisory Group (DACBEAG) could be widened to increase diversity and to ensure a wider representation of viewpoints and perspectives; and to ensure the groups have the right mix of skills, expertise, and capabilities.

Future options

Respondents were asked if the current arrangements for the provision of independent scrutiny and advice were changed, which of three pre-defined options did they consider most appropriate. Consultation respondent feedback was mixed. Half of respondents who answered this question (50%) thought it would be right to maintain separation between independent scrutiny and advice as a way to remove potential for conflict of interests.

Over one-quarter (27%) thought it would be right to combine these functions to maximise the use of independent expertise and secretariat resources, and as a way to ensure the more efficient and effective use of resources.

The remainder of respondents thought there is a need for a different approach (23%). These respondents felt that a new independent body is required to oversee the Scottish benefit called Employment Injury Assistance, which will in future replace Industrial Injuries Disablement Benefit. The main point raised was that the current membership of SCoSS and DACBEAG might lack the necessary skills and expertise to oversee Employment Injury Assistance.

The consultation document stated that there could be different options for organising independent advice and scrutiny in the future. This could be a formal arrangement, for example, a statutory body such as a non-departmental public body and paid board members, or an informal arrangement at Ministerial invitation with members participating on a voluntary basis.

The main point raised by consultation respondents was that if current arrangements were retained then consideration should be given to funding for back-office functions and remuneration for members.

Employment Injury Assistance

Respondents were asked whether they agreed or disagreed that the public body or bodies providing the Scottish Government with independent scrutiny and advice of Scottish Social Security should also provide advice in the future on Employment Injury Assistance. Consultation respondent feedback was mixed, albeit more disagreed (41%) with the proposal. Almost one-third of respondents who answered this question agreed with the proposal (32%) and the remainder didn't know (27%).

Respondents who agreed with the proposal felt that it would be important for SCoSS and DACBEAG members to have the necessary expertise to provide advice on Employment Injury Assistance. This feedback was often framed in the context of the complexity of this new benefit and to ensure the public body or bodies were effective in fulfilling their role and remit.

Respondents who disagreed with the proposal expressed support for the development of a new independent agency to oversee Employment Injury Assistance. These respondents felt that the necessary expertise might be lacking within the current membership of SCoSS and DACBEAG, and suggested a different approach was needed.

COVID-19 measures

The fourth and final section of the consultation was titled 'COVID-19 measures' and contained a total of eight questions.

Re-determinations and appeals

Respondents were asked whether they agreed or disagreed that requests for a re-determination should no longer be able to be treated as valid where they were made more than a year late and the reason for that delay was COVID-19. Consultation respondent feedback was mixed, albeit more disagreed with the proposal (53%). 40% of respondents who answered this question agreed with the proposal and the remainder didn't know (7%).

Similarly, consultation respondent feedback was mixed in relation to the question which asked respondents whether they agreed or disagreed that applications for an appeal should no longer be able to be treated as valid where they were made more than a year late and the reason for that delay was related to COVID-19.

Over half of all consultation respondents who answered this question disagreed (53%) with the proposal, just over two-fifths agreed (41%) and the remainder didn't know (6%).

The main feedback from respondents who agreed with these proposals was that the temporary measure has served its purpose. There was the suggestion, from some respondents who agreed with the proposal as well as from some of those who disagreed, that flexibility could be applied in exceptional circumstances. This would recognise the ongoing impact of the pandemic, including on particular groups of people and enable the Scottish Government to respond quickly to any future external factors and events.

Most respondents who disagreed with the proposals also said that the negative impacts of the pandemic were still being felt in society, and that the temporary measure might still be required.

Applications for assistance

Respondents were asked whether they agreed or disagreed that applications for assistance to Social Security Scotland should no longer be able to be treated as made on time where they were made late and the reason for that delay was related to COVID-19. Consultation respondent feedback was mixed, albeit more disagreed with the proposal (56%). 38% of consultation respondents who answered this question agreed with the proposal and the remainder didn't know (6%). Most consultation respondents emphasised the need for flexibility and discretion to allow cases to be considered on an individual basis.

Respondents were also asked whether they agreed or disagreed that the ability to apply late, where deadlines for making applications for assistance apply, should be extended to reasons other than COVID-19. There was widespread support among consultation respondents for the proposal. Almost all respondents who answered this question agreed (94%) with the proposal and the remainder didn't know (6%). Most consultation respondents restated their support for flexibility and discretion.

Impact assessments

Few consultation respondents answered the four questions that related to the impact of the proposals on different groups of people and on businesses and organisations. The main points raised are described in Chapter 7 of the main consultation analysis report.