Draft Suspension of Assistance (Social Security) (Scotland) Regulations 2021: equality impact assessment (EQIA)

Draft equality impact assessment - The Disability Assistance for Children and Young People and Scottish Child Payment (Suspensions) Amendment (Scotland) Regulations 2021

Title of policy

The Disability Assistance for Children and Young People and Scottish Child Payment (Suspensions) Amendment (Scotland) Regulations 2021

Summary of aims and desired outcomes of Policy

The draft Regulations provide a framework for how Scottish Ministers will exercise the power to suspend awards of ongoing assistance under the Social Security (Scotland) Act 2018 in order to:

• ensure that vulnerable individuals are protected from the risks of economic and financial abuse, either by an appointee or by someone who is able to coercively control the individual’s finances;
• ensure that an individual’s entitlement to assistance does not prematurely come to an end because a person appointed to act on their behalf if unwilling or unsuitable to continue to act on their behalf;
• mitigate the potential risks of an individual’s entitlement to assistance terminating as a result of a failure to provide information to Social Security Scotland, by providing an opportunity to engage; and
• protect individuals against the risk of overpayment if their circumstances have changed, but they have failed to engage with Social Security Scotland as part of a review of their entitlement.

The draft Regulations provide safeguards in relation to the operation of suspension of assistance, including a requirement to notify individuals affected by a suspension, taking hardship into account and providing the individual with a right to request a review of the decision to suspend.

Directorate: Division:

Social Security Directorate: Social Security Policy Division

Team:

Disability Benefits Policy Unit

Background

1. The Social Security (Scotland) Act 2018^[1] received Royal Assent on 01 June 2018. The Equality Impact Assessment for the Social Security (Scotland) Bill was published on 20 June 2017 and is available here.

2. The 2018 Act transposed eleven existing benefits onto a Scottish legislative platform, allowing the Scottish Ministers to shape a new and distinctly Scottish benefits system, with dignity and respect being core to its approach. The Act sets out an overarching legislative framework for the administration of these forms of social security assistance in Scotland, in addition to making provision for operational functions such as managing overpayments, fraud, error and appeals.

3. Under the 2018 Act (as originally enacted), there was no mechanism to allow for the temporary suspension of payments of on-going assistance whilst the individual remained entitled to the assistance in question – an individual was simply entitled to be paid, or they were not.

4. During the passage of the Social Security Administration and Tribunal Membership (Scotland) Bill^[2], the Scottish Ministers brought forward an amendment at Stage 2 as a result of an appearance by the Cabinet Secretary before the social security committee that introduced a power to suspend payment of forms of assistance payable under the 2018 Act in prescribed circumstances.

5. The Scottish Government has been clear that the use of the power to suspend should not be punitive – it should be used to protect clients from the risk of overpayments, from financial abuse, and to give clients the opportunity to re-engage with Social Security Scotland if they fail to provide information where requested.

6. It should be acknowledged that the ability to suspend assistance interferes in an individuals’ right to that assistance. Being able to suspend in broad circumstances would not be showing due regard to the needs mentioned in the public sector equality duty. However, we believe that utilising suspensions in the manner expressed in the regulations provides for use in limited circumstances and contains adequate safeguards which will allow suspensions to be used in such a way as to be beneficial to clients, including clients with protected characteristics.

7. These Regulations contribute to the National Outcome of “We tackle poverty by sharing opportunities, wealth and power more equally”.

Policy aims

8. The policy aims of the Regulations are to:

• ensure that vulnerable individuals are protected from the risks of economic and financial abuse, either by an appointee or by someone who is able to coercively control the individual’s finances;
• ensure that an individual’s entitlement to assistance does not prematurely come to an end because a person appointed to act on their behalf if unwilling or unsuitable to continue to act on their behalf;
• mitigate the potential risks of an individual’s entitlement to assistance terminating as a result of a failure to provide information to Social Security Scotland, by providing an opportunity to engage; and
• protect individuals against the risk of overpayment if their circumstances have changed, but they have failed to engage with Social Security Scotland as part of a review of their entitlement.

9. The Regulations provide that Scottish Ministers may suspend assistance in the following circumstances:

• the Scottish Ministers have made arrangements for a person to receive the assistance on the individual's behalf, and the Scottish Ministers consider that it is necessary to suspend the assistance-
  • because the person with whom the Scottish Ministers have made arrangements is unable to continue to receive the assistance,
  • in order to protect the individual from the risk of financial abuse,
• the individual has requested that the Scottish Ministers temporarily stop giving the assistance in question and is yet to request that they resume doing so, and
• under section 54(1A) of the 2018 Act, the Scottish Ministers have issued a decision to suspend assistance to the individual due to a failure to provide information which the individual is yet to provide,

10. This policy affects clients entitled to the following forms of ongoing assistance covered by the Social Security (Scotland) Act 2018. These are:

• disability assistance (replacing Disability Living Allowance for children (DLAC), Personal Independence Payment (PIP) and Attendance Allowance (AA);
• carer’s assistance (replacing Carer’s Allowance);
• housing assistance;
• employment injury assistance (replacing Industrial Injuries Disablement Benefit); and
• top-up assistance (such as the Scottish Child Payment).

11. It is not intended that these provisions be used in a punitive manner. Suspending assistance will only be used in situations where it is beneficial to temporarily stop payment of assistance; for example, to protect the client from potential overpayments or where it is not appropriate to continue paying assistance to someone on a client’s behalf.

Ground 1: An individual receiving assistance on a client’s behalf is unable to do so anymore or there is the possibility of financial abuse

12. The regulations will allow for suspension where the Scottish Ministers have made arrangements for a person to receive assistance on a client’s behalf and suspension is considered necessary because either the person with whom the Scottish Ministers have made arrangements is unable to continue to receive assistance, or in order to protect the client from financial abuse.

13. This is necessary as, according to a recent report, across the UK roughly 39% of adults have experienced economic abuse.^[3] A report by the Citizens Advice Bureau (CAB) also found that roughly half of respondents were involved in cases where someone controlled or interfered with their benefits.^[4] This will allow clients experiencing financial abuse to have their payments protected while the situation is investigated.

14. Additionally, there may be circumstances where someone is receiving assistance on another’s behalf where they are no longer legally able to do so. Because Social Security Scotland would be unable to legally continue paying this person on the client’s behalf, suspending assistance will allow the client to retain underlying entitlement while a new person is appointee to receive the assistance on their behalf.

15. The Scottish Ministers will be required to end the suspension when it is no longer necessary for either of these reasons. The client would then receive a backdated amount.

16. The policy intention is for the Scottish Ministers to consider suspending assistance if Ministers have been notified of a risk of financial abuse by a public authority responsible for investigating such matters. If the Scottish Ministers independently have grounds to believe that a client is at risk of financial abuse, then, instead of suspending assistance in the first instance, Ministers would look to share these concerns with a public authority whose public function is to investigate such matters. This would be done in accordance with an established public protection policy. The Scottish Ministers would then await advice from the public authority on whether to suspend assistance.

Ground 2: Suspending assistance at the request of the client

17. The regulations state that the Scottish Ministers may suspend assistance if a client requests that it temporarily stop and has yet to request that it resume. They will only do this when the reason for the request is in line with the policy intention of suspensions: to protect client’s payments. For example, a client may want their assistance suspended if another person has control of the bank account into which assistance is paid. This could occur if the client is experiencing domestic abuse and has to leave the family home.

18. The regulations will require the Scottish Ministers to end the suspension if the client asks for payment of their assistance to resume. The client will then be entitled to a backdated amount.

Ground 3: Failure to provide information

19. The Scottish Ministers can request information if it is needed to determine entitlement or when considering whether a determination without application is necessary. A client’s award may be suspended if they do not provide the information within a specified period. The Scottish Ministers will be required to have regard to the client’s financial circumstances before deciding to suspend assistance. At the point when the Scottish Ministers request information from the client, the client will be asked to tell Social Security Scotland if the suspension would cause hardship.

20. If assistance is suspended and the client provides the requested information, the Scottish Ministers will be required under the regulations to immediately consider if they are under a duty to make a determination without application. Such a duty would exist if, for example, the requested information confirms that there has been a change of circumstances that would possibly result in an alteration to the clients level of award.

21. This will protect clients from potential overpayments while not removing underlying entitlement. It will also giving the client additional time to provide the necessary information.

22. The suspension must immediately end if the Scottish Ministers are not required to make a determination without application.

23. If the client requests a review of a decision to suspend, the Scottish Ministers will be required within a prescribed period to either:

• review the decision, or
• make a determination of entitlement (if Ministers are under a duty to do so), at which point the suspension must also end.

Safeguards

24. In relation to safeguards, it is important that these are put in place and of sufficient ability to protect clients, particularly in cases where another person is receiving assistance on the client behalf. This is because failure to do so could indirectly discriminate against clients with disabilities as they are more likely to have an appointee than clients without a disability.

25. It should be acknowledged that, to support a system of suspensions, clear guidance will need to be provided to Social Security Scotland staff. It will also necessitate ensuring that adequate safeguards are in place so that a client’s award is not suspended where it will be detrimental to the client (such as causing hardship) or, should a client’s award be suspended, to allow the client to challenge that decision.

26. Almost all stakeholders expressed a view that there must be consideration of hardship when a decision is made to suspend assistance. The purpose of this is to balance the need to protect clients from overpayments (and, therefore, future deductions) and the financial needs of individuals who, if their assistance was suspended, may be placed into hardship.

27. One of the key issues raised with the current use of powers to suspend is that clients are not always clear what they must provide to have the suspension lifted or how to challenge a suspension. There have been some cases documented where the only action that lifted a suspension was threatening a judicial review.

28. The Regulations therefore contain the following safeguards:

• a right to require the Scottish Ministers to review the decision to suspend;
• a duty on the Scottish Ministers to have regard to an individual’s financial circumstances before deciding to suspend assistance and when reviewing a decision to suspend assistance;
• provision on when suspension must end; and
• the right to be notified about:
  • a decision to suspend;
  • the reasons for the decision;
  • any steps that the individual might take in order for the Scottish Ministers to consider ending the suspension; and
  • the right to request a review of the decision.

Reviewing the decision to suspend assistance

29. A review of a decision to suspend assistance will be a two-part decision. First, the Scottish Ministers will decide if they are required under the regulations to end the suspension. In which case, the suspension must be immediately ended and the client will receive a backdated amount of assistance, under the latest determination of entitlement, in respect of the past-period when the suspension was in place.

30. If the Scottish Ministers decide that they are not required to end the suspension, they will then decide, at their discretion, whether or not to maintain the suspension, having regard to the individual’s financial circumstances.

Having regard to a client’s financial circumstances

31. The Scottish Ministers will trust what clients tell them about their circumstances and will not suspend assistance if it will cause financial hardship. If the Scottish Ministers decide not to suspend assistance, they will clearly communicate to the client the risk of continuing to receive assistance which they may become liable to repay at a later date.

Notification of suspension

32. Clients will be informed in writing:

• of the decision to suspend assistance;
• the reasons for the decision;
• of any steps that could be taken to end the suspension; and
• of their right to request a review of the decision.

33. Clients will also be informed in writing:

• when the suspension ends and how much they are immediately entitled to under the latest determination of entitlement as a result of the suspension ending; and
• the outcome of any review of the decision to suspend.

34. The Scottish Ministers may make an arrangement for a person who is not the client’s legal representative to receive assistance on the client’s behalf. Under the regulations, the Scottish Ministers will be able to notify this person about the same information that the client must be notified about. However, the person receiving assistance will not have a right to request a review of the suspension. Before exercising this power in individual cases, the Scottish Ministers will consider carefully whether notifying the person is in the interests of the client.

The scope of the equality impact assessment

35. As the measures within the regulations cover a number of forms of devolved social security assistance, many people in Scotland might be impacted. The full EQIA process has been followed given the potential equality impacts related to the policy areas to which the regulations relate.

36. The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 places a duty on the Scottish Ministers to review policies and practices against the need to

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

37. The Equality Act 2010 covers the protected characteristics of: age, disability, gender reassignment, pregnancy or maternity, race, sex, sexual orientation and religion and belief. The impacts of the regulations have been assessed against the extent which it fulfils these needs.

Consultation

38. This EQIA has been informed by extensive engagement with a range of external stakeholders as well as the wider public on a range of matters in relation to social security over a significant period of time.

39. In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. 521 formal written responses were submitted, of which 241 were from organisations and 280 from individual respondents^[5].

40. In 2017 the Scottish Government set up Social Security Experience Panels, with over 2,400 people with lived experience across Scotland registering as panel members^[6].

41. The ‘Disability Assistance in Scotland’ Consultation launched in March 2019. This sought the views of the people of Scotland on the three proposed disability assistance benefits. The consultation received 263 replies, of which 74 were from stakeholder organisations and 189 were from individuals^[7].

42. The Scottish Government has also undertaken consultation with stakeholders through the Ill Health and Disability Benefits Stakeholder Reference Group, with input from Child Poverty Action Group in Scotland, Citizens Advice Scotland, Inclusion Scotland, Support in Mind Scotland and SAMH informing the high-level policy principles for suspensions.

43. Stakeholders also helpfully set out their views on the use of suspensions as part of a letter to the Cabinet Secretary for Social Security in June 2020, helping to further refine our policy approach to both the application of suspensions and the safeguards associated with them.

Key findings

Age

44. It is difficult to accurately gauge the scale of financial abuse, particularly in the case of older people, due to the under-reporting of said abuse due to lack of knowledge or fear of consequences.^[8]

45. It is estimated that people over 65 may be more vulnerable to financial abuse. On average, the best estimate for the UK is that between 1-2% of people aged 65 or over have experienced (or are currently experiencing) financial abuse since turning 65.^[9]

46. Where an individual has a vulnerability connected to their age the ability to suspend assistance is considered to measure positively against the need to remove disadvantage experienced by persons who share a protected characteristic that are connected to that characteristic. This is because it will be a system of last resort, with Social Security Scotland’s processes designed to seek information in other ways and to continue engaging with clients.

47. The EQIA identified no negative impacts in relation to this protected characteristic arising from the safeguards introduced by the regulations.

Disability

48. The Scottish Health Survey 2018 provides an accurate estimate of the number of disabled working age people in Scotland.^[10] For young people aged 16-24, 24% of young people have a limiting longstanding illness. This number raises to 30% for individuals aged between 25-34, 32% between 35-44, 46% between 45-54 and, finally, 60% between 55-64.

49. According to DWP Stat Xplore:^[11]

• As of August, 2020, there were 41,833 children entitled to Disability Living Allowance in Scotland. The largest proportion of individuals entitled to DLA for children are in the category of ‘learning difficulties’ (20,771), behavioural disorders (5,566), and hyperkinetic syndrome (4,207).
• As of August, 2020, 142,308 people were entitled to Attendance Allowance in Scotland. The largest proportion of individuals entitled to AA have Arthritis (40,074), dementia (15,421), then ‘unknown’ (12,838).
• As of January 2021, there were 281,788 individuals entitled to PIP in Scotland. The largest proportion of individuals entitled to PIP are categorised as having ‘psychiatric disorders’ (111,396). This includes mixed anxiety and depressive disorders (38,831), global learning disabilities (14,578), and mood disorders (11,489).

50. Where an individual has a vulnerability connected to their disability the ability to suspend for failure to provide information is considered to measure positively against the need to remove disadvantage experienced by persons who share a protected characteristic that are connected to that characteristic. This is because it will be a system of last resort, with Social Security Scotland’s processes designed to seek information in other ways and to continue engaging with clients.

51. According to a study conducted in England, roughly one quarter of cases of financial abuse involved an individual who lacked capacity.^[12] Data from the Office for National Statistics found that, between April 2019-March 2020, disabled people (14.3%) were more likely to experience domestic abuse (including financial abuse) than non-disabled people (5.1%).^[13]

52. It is thought that the provisions relating to suspension to protect a client who, because of difficult circumstances, may not be able to act for themselves or would find managing their entitlement assistance to be a distressing experience will have a positive impact. It is anticipated that in many cases these difficult circumstances will be connected to a person’s disability.

53. The EQIA identified no negative impacts in relation to this protected characteristic arising from the safeguards introduced by the regulations.

Sex

54. According to a survey by Women’s Aid,^[14] two thirds of women who had experienced domestic abuse, had also experienced economic abuse. In 2018-2019 the clear majority of victims of domestic abuse recorded by the Police in Scotland were female (83%).^[15]

55. A report by the Citizens Advice Bureau^[16] looked at the impact of financial abuse and highlighted that, due to continued gender inequality, women are disproportionately more likely than men to experience domestic (including) financial abuse. This, in turn, makes it difficult for them to leave such situations as “Women can be economically disadvantaged through lower earnings, are less likely to be the main ‘breadwinner’, are more likely to experience a financial penalty when becoming a parent, and are still overwhelmingly responsible for the unpaid work in the home (caring and household tasks).”^[17]

56. Research has indicated that around one in five women and one in seven men experience financial abuse^[18].

57. During the development of our high-level approach to suspension of assistance, a specific set of issues were raised by Scottish Women’s Aid in relation to protecting people in situations where they are experiencing domestic abuse and either they, or their children, are in receipt of assistance.

58. Stakeholders expressed a preference that provisions allow the suspension of assistance where an individual requests that their assistance is no longer paid to them because, for instance, they have been forced to leave the family home due to domestic abuse and no longer have access to their bank account.

59. It is therefore thought that the provisions relating to suspension at the request of the individual will have a positive impact on women, who are more likely to experience domestic violence, particularly where social security assistance is paid into a joint bank account.

60. The EQIA identified no negative impacts in relation to this protected characteristic arising from the safeguards introduced by the regulations.

Gender reassignment and sexual orientation

61. Lesbian women disclosed the highest levels of financial abuse, which was disproportionate compared to the number bisexual people experiencing financial abuse (Galop, 2018).^[19] Other research indicates that a higher proportion of gay men experience financial abuse than lesbian women (Refuge, 2016)^[20].

62. According to Galop (2018), ‘trans women disclosed disproportionately higher levels of physical, sexual and financial abuse compared to trans men, who disclosed higher levels of harassment/stalking and verbal and emotional abuse.’^[21]

63. We believe that introduction of a power to temporarily suspend payment of assistance at the request of the client, or when Ministers consider it necessary to suspend payment to an appointee, will have a positive impact for clients who are experiencing economic or financial abuse, or coercive connected with this protected characteristic.

64. The EQIA identified no negative impacts in relation to this protected characteristic arising from the safeguards introduced by the regulations.

Race

65. Just under 4% of Scotland’s population belong to minority ethnic groups, and 7% of our total population communicate in home languages other than English.^[22]

66. Experience Panel engagements with people who have English as a second language showed that there is often an assumption around the most commonly translated languages.^[23] There is an expectation that Social Security Scotland will mirror provision by other public sector organisations, and speakers of less common languages have told us that they will generally opt for letters in English, on the assumption that there are no materials available in their first language.

67. The ethnic minority population also includes refugees. Scotland has resettled 3,180 people under the Vulnerable Persons Resettlement Scheme (VPRS) and Vulnerable Children Resettlement Scheme (VCRS) since Q1 of 2014.^[24]

68. The issue of language presented a very real challenge for the Syrian refugees in our focus groups who could speak or understand very little English.

69. Just over 4,000 people in Scotland (0.1% of the population) identified their ethnic group as “White: Gypsy/Traveller”.^[25] Generally, Gypsy/Traveller households were:

• more likely to contain dependent children (36% compared to 26% of the population as a whole) and
• they were three times more likely to contain “three or more” dependent children.

70. A report looking at income inequality in Scotland found that:^[26]

• In 2015-20, people from non-white minority ethnic groups were more likely to be in relative poverty after housing costs compared to those from the ‘White - British’ and ‘White - Other’ groups.
• The poverty rate was 41% for the ‘Asian or Asian British’ ethnic groups (50,000 people each year), and 43% for ‘Mixed, Black or Black British and Other’ ethnic groups (no population estimate available due to the small sample).
• The poverty rate amongst the ‘White - Other’ group was 24% (80,000 people) and that of the ‘White - British’ group was 18% (860,000 people).

71. The introduction of powers relating to the suspension of assistance for failure to supply information could potentially have a negative impact as regards the protected characteristic of race, particularly where the individual is not able to communicate in English.

72. We consider that suspension will usually involve making a request for information; if the individual fails to supply it, they are issued with a further request and informed that if they do not supply it – it is only then assistance may be suspended.

73. Social Security Scotland has committed to communicating with clients in a way that meets their needs. Where clients have additional requirements linked to language, culture or understanding of services as a result of any protected characteristic, these need to be met effectively and all communications accessible.

74. In line with section 4 of the 2018 Act (recognition of importance of inclusive communication), all communications between Social Security Scotland and individuals must be accessible. Alongside the need for accessible communications required under section 4 of the 2018 Act, access to digital communications varies across differing age groups, with those aged 16 to 44 years using social networking sites significantly more than those aged 45 and over. Therefore Social Security Scotland will have to take this into account when designing communications that inform individuals of their responsibilities.

75. The EQIA identified no negative impacts in relation to this protected characteristic arising from the safeguards introduced by the regulations.

Religion or belief

76. We have not identified any particular impact that the Regulations will have on those within the protected characteristic of religion or belief.

Pregnancy and maternity

77. While the Scottish Government's Pregnancy and Parenthood in Young People Strategy highlights that young mothers are considerably more reliant on social security assistance (including tax credits) than older mothers – a position that remains the case as the child ages, no concerns or impacts were identified in relation to the Regulations.

Marriage and civil partnership

78. 8.7 million adults in the UK have reported experiencing domestic abuse from their partner in a relationship.^[27] Two-fifths (40%) of people living with a partner keep none of their own income and put all of it into a joint pool, while a fifth (20%) keep all (or almost all) of their own income and put none of it into a joint pool^[28].

79. Most people living with a partner organise their income in the same way their partner does. Over nine in ten (91%) who said they keep none of their own income said their partner does the same, and over seven in ten (72%) of those who said they keep all their income said their partner does the same.

80. We believe that introduction of a power to temporarily suspend payment of assistance at the request of the client, or when Ministers consider it necessary to suspend payment to an appointee, will have a positive impact for clients who are experiencing economic or financial abuse, or coercive connected with this protected characteristic.

81. This is particularly the case where forms of assistance may have been paid into a joint bank account or into a former spouse or partner’s bank account, especially if opening a new bank account or preventing payment of funds into an overdrawn account would likely be difficult for individuals who have been experiencing financial abuse.

82. The EQIA identified no negative impacts in relation to this protected characteristic arising from the safeguards introduced by the regulations.

Monitoring and review

83. On-going stakeholder engagement with key organisations – such as the Child Poverty Action Group, Rights Advice Scotland, Young Scot, DACBEAG, and our Ill Health and Disability Benefit Stakeholder Reference Group – will provide the Scottish Government with an opportunity to monitor the impact of the changes made by these regulations.

84. The Communities Analysis Division within the Scottish Government will also run a comprehensive evaluation programme to consider the impact of the changes made by these regulations, with a full suite of equalities data for new applicants.

85. The Scottish Ministers have also committed to engaging with, and reporting regular progress to, the Islands Strategic Group to ensure that those representing the interests of island communities and others with experience of the current system, are fairly represented in the development and delivery of the Scottish social security system.

86. The 2018 Act places a duty on the Scottish Ministers to publish an annual report on the performance of the Scottish social security system. On-going engagement with key stakeholders will also provide the Scottish Government with an opportunity to monitor the impact of the policy.

87. Audit Scotland will monitor and report on the delivery of the social security system, including Social Security Scotland.

Conclusion

88. This EQIA process has identified that overall, the introduction of the power to suspend payment of assistance under the Social Security (Scotland) Act 2018 has the potential to have a positive impact for all clients, including those withprotected characteristics.

89. The potential positive impacts include:

• mitigating the potential risks of an individual’s entitlement to assistance terminating as a result of a failure to provide information to Social Security Scotland, by providing an opportunity to engage;
• ensuring that vulnerable individuals are protected from the risks of economic and financial abuse, either by an appointee or by someone who is able to coercively control the individual’s finances; and
• ensuring that an individual’s entitlement to assistance does not prematurely come to an end because a person appointed to act on their behalf if unwilling or unsuitable to continue to act on their behalf.

Authorisation

Name and job title of policy lead:

Niall Wilson
Policy Manager
Social Security Policy Division

Name and job title of Deputy Director or equivalent:

Ian Davidson
Deputy Director
Social Security Policy Division

Date this version authorised: