Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021 - draft: SCoSS scrutiny report

4. Safeguards

The Regulations introduce a number of important safeguards that aim to prevent suspension being used in ways that work against human rights and social security principles. However, here again this is not always straightforward and there is a case for strengthening and/ or clarifying safeguards in a number of respects.

4.1 Accessible communications, advocacy and supported decision- making

The draft Regulations are intended to, and must, protect users of the Scottish social security system from overpayments, financial abuse and problems resulting from payment of an award to someone who otherwise cannot or should not act in this role. There is also a need to protect individuals from the possible negative consequences of suspension itself, so far as this is possible, and ensure individuals know how to avoid or respond to suspension (including their right to request a review). If these things are to be achieved, there is an overarching need for Social Security Scotland to take account of the need for accessible communication, advocacy and supported decision-making at all stages of the suspension process.

Communication needs to be in a form that works for service users in line with commitments in Our Charter^[8] and Section 4 of the Social Security (Scotland (Act), 2018. SCoSS acknowledges and welcomes Social Security Scotland's aspiration to be 'a leader in inclusive communication'.^[9] By taking steps to maximise the chances of individuals in vulnerable circumstances understanding what is happening to their award and receiving independent guidance on how best to respond, Scottish Government can ensure such individuals' equal enjoyment of their right to social security, in accordance with article 2(2) ICESCR and principle (g).

This begins at the point where a need for information material to a determination regarding continuing entitlement is identified. The affected individual must understand what information is being sought, why and the implications of a failure to respond, with a view to avoiding suspensions where at all possible. Following a decision to suspend, DACYP Regulation 26C and SCP Regulation 19C require Social Security Scotland to inform the individual of the decision to suspend, the reason(s) for the decision, what actions are required to bring the suspension to an end and the right to request a review of the decision. The information must be communicated in a form that allows the claimant to share it with others. Some stakeholders suggested to SCoSS that the duty should be to supply information in writing. However, SCoSS is of the view that if a claimant prefers to receive communication in a different form, the Regulations should not preclude this^[10]. We would stress that the individual should have a permanent record of the decision^[11].

Section 10 of the 2018 Act sets out the individual's right to advocacy where this is required to engage with the determination of their entitlement. Scottish Government has advised SCoSS that, in its view, this right does not apply to a decision to suspend, as this is not a determination. However, Scottish Government has stated that it will aim to ensure individuals whose payment is suspended nonetheless have access to advocacy where required. While this undertaking is welcome, it would be preferable if those who require advocacy had a legal right to it. One stakeholder suggested that where a decision to suspend concerns an individual with a learning disability or mental health condition then advocacy services should be automatically alerted. If such an approach were adopted, it would be important to ensure this did not go against the wishes of the individual concerned. Access to supported decision-making to enable individuals to make their own informed decisions (as opposed to substituted decision-making) would be in line with CRPD article 12, and principle g (ii) on advancing equality and non-discrimination.

Observation 2: SCoSS notes the particular importance of inclusive communication, advocacy and supported decision making in ensuring people are able to respond to a request for information material to their entitlement and understand why their award may be suspended, or has been suspended, the steps required to avoid or end the suspension, their right to review a decision to suspend and the protection available in cases of financial hardship (including the implications of invoking this protection).

Recommendation 5: Scottish Government should amend SCP Regulation 19C(2) to stipulate that the individual must have a permanent record of the information referred to in Regulation 19C(1) without specifying the form that must take.

Recommendation 6: Scottish Government should consider amending draft Regulation 3, so that a right to advocacy, similar to that conferred by section 10 of the 2018 Act, attaches to the suspension of SCP.

Recommendation 7: SCoSS invites Scottish Government to explain what actions it is planning to identify and safeguard individuals who face difficulty engaging in the suspension progress and to consider whether this needs to be further enhanced.

4.2 Duty to Have Regard to Financial Circumstances

DACYP Regulation 26A(1) and SCP Regulation 19A(1) require Scottish Government to have regard to the claimant's financial circumstances before taking a decision to suspend payment of a CDP or SCP award. At face value, this appears to be an important provision, but it also carries inherent risks. Suspension of a social security payment always has potential to take a household's income below the poverty line, or to deepen poverty, which might be in tension with the right to an adequate standard of living (article 11, ICESCR). This is particularly true of low-income benefits, such as SCP, but disability is also associated with lower income households^[12]. Measures that cause poverty may run contrary to principle (e), although the principle is not a decisive argument against the existence of a power to suspend – the termination of an award because of failure to provide information, or running up a large overpayment while Social Security Scotland awaits information, would also result in hardship. The principle does mean it is appropriate to consider safeguarding measures. Scottish Government has advised SCoSS that, in practice, the duty to have regard to financial circumstances means that if the individual to whom the award is made (or their parent, or an appointee) self-declares that suspension would result in hardship, the default position would be that suspension should not go ahead. SCoSS has several misgivings about this approach.

First, if suspension is considered due to failure to provide information relevant to the confirmation of entitlement, and the ultimate determination is that the claimant is no longer entitled to their award, then it would be important to ensure the decision not to suspend could not serve to store up greater hardship for the future by allowing overpayments to build up. Scottish Government has advised us that a more objective test of hardship would be administratively complex and that it will provide claimants with sufficient information about the possible consequences of invoking the hardship provision to enable them to make informed decisions. Nonetheless, this could be quite a difficult decision. Further, the purpose of suspension under Regulation 26A(2)(a) or 19A(2)(a) is to prompt the claimant to engage with Social Security Scotland and supply the further information that is required. There is clearly an expectation on the part of Scottish Government that if the claimant engages sufficiently to declare financial hardship, then Social Security Scotland will be a step closer to securing the information it needs. That may well be the case in many (or most) instances, but cannot be taken for granted in every case and the ultimate consequences of the hardship provision for claimants should be monitored closely.^[13]

The main income replacement benefits are not devolved, so Social Security Scotland cannot suspend or terminate awards. Nonetheless, disability and top-up benefits can act as a much-needed supplement to an otherwise low income and their suspension would inevitably have some impact. Scottish Government has advised SCoSS that suspension will be a last resort, when all other means of obtaining the necessary information from the individual or a third party have been attempted. It is important that this is the case in practice, and that contact with individuals with a view to obtaining information material to their award take full account of their communication needs and any relevant disability or health condition that may be the reason for failure to engage.

Where suspension is because of issues relating to the person who receives a payment of social security assistance on behalf of the individual to whom the award is made, there are different concerns about the appropriateness of the duty to have regard to financial circumstances. If suspension is being considered to protect an individual from financial abuse, in many cases the implication must be that Social Security Scotland has reason to believe that the payee is effectively stealing the money from the individual. Deciding not to suspend could therefore benefit the abuser and not the individual with entitlement. Scottish Government must also consider the possibility that a request not to suspend on the basis of hardship might, in such circumstances, be prompted by the abuser. Scottish Government officials have advised SCoSS that the duty does not amount to a right to have suspensions waived on request and that the need to protect individuals from financial abuse would be taken into account. Similarly, if suspension is being considered because the payee is unable or unwilling to continue in that capacity, it is questionable whether it is feasible to do anything but suspend payment until a replacement can be found.

Recommendation 8: Scottish Government should monitor the impact of the duty to have regard to financial circumstances before suspending payment of SCP to determine whether it in fact encourages claimants to engage with Social Security Scotland and whether it could result in avoidable overpayments.

4.3 Impact on passported benefits

Where the form of social security assistance whose suspension is under consideration confers passported entitlement to either a UK benefit or another form of Scottish social security assistance, there is potential for that passported entitlement to be affected by suspension. Scottish Government has advised SCoSS that it is not currently certain what the implications for passported entitlements are likely to be if CDP payments are suspended (SCP is not a passporting benefit). However, its working assumption is that:

• Passported benefits and premia paid by DWP, HMRC or local authorities are unlikely to be paid while CDP is suspended.
• Applications for Young Carer Grant (YCG) will not be determined while the cared-for person's CDP is suspended, but if it is subsequently confirmed that the cared-for person was entitled to CDP during the period of suspension then the young carer will be able to retrospectively use this as all or part, of the qualifying period.
• There will be no impact on entitlement to Child Winter Heating Assistance (CWHA) until the September 2022 qualifying period at the earliest. Scottish Government will consider what impact the suspension of CDP should have on entitlement to CWHA in the interim.

The possibility of an impact on passported entitlements may have different implications depending on the reason for suspension. If suspension occurs due to failure to provide information, with a view to protecting the individual from overpayments of CDP, then it will also serve to protect the individual from overpayments of the passported entitlement. The risk associated with waiving suspension is therefore increased. Alternatively, where suspension relates to suspected financial abuse or an unsuitable payee, it might be that some individuals are better served by waiving suspension and allowing the passported entitlement to remain in payment. This is assuming that the passported entitlement is not itself subject to financial abuse or is not paid to the same, unsuitable person. It could be extremely difficult for Social Security Scotland to take a view on whether this is the case, not least because the DWP might be better placed to assess whether the person who receives payment of the passported entitlement should remain in this role.

In the case of Young Carer Grant specifically, SCoSS notes that, in order to be entitled to an award, the applicant must provide care to a person or persons 'to whom a qualifying disability benefit is normally payable' (emphasis added).^[14] While we acknowledge that the working assumption set out above is not settled policy, SCoSS believes that such an approach would be inappropriate in circumstances where the cared-for person's CDP has been suspended due to suspected financial abuse or issues with the payee. In this scenario there is no question about the individual's underlying entitlement to CDP, therefore it seems reasonable to treat them as a person to whom CDP would normally be payable. In the case of suspension pending further information, which implies that there is a question mark over the individual's continued fulfilment of the eligibility criteria for CDP, the approach outlined in the working assumption may be more reasonable.

While SCP does not itself act as a passport, it is contingent on receipt of designated reserved means tested benefits or tax credits. The interconnections between devolved and reserved benefits can be varied and complex. Thus, when suspending devolved benefit it will be important to consider if there are implications for associated reserved benefits too.

Recommendation 9: Scottish Government should clarify the implications of suspension for passported entitlements (whether devolved or reserved) at the earliest opportunity. In doing so, it should consider whether there are scenarios in which it should be possible to complete the qualifying period for Young Carer Grant by providing care to someone whose CDP has been suspended.

4.4 Issues concerning payees, Appointees and persons with parental responsibility

Scottish Government has advised SCoSS that it is currently devising, and will in time consult on, guidelines for the appointment of appointees. These guidelines are also likely to inform decisions on when a person who receives payment of social security assistance on behalf of the individual to whom the award is made is 'unable' to continue in that role. However, there is a case for guidance to go wider when it comes to clarifying who is a suitable person to receive payment of social security assistance on behalf of an individual.

Where the award is made to a child, and the claim is managed by and assistance paid to a parent, there is potential for issues to arise between parents with authority. Suspension of payment at the request of the claimant is unproblematic when the award is made to an adult who manages their own claim. This will be the case for most SCP awards. However, where the award is to a child, as in the case of most CDP awards, both parents will normally have authority to act on the child's behalf. This raises the potential that one parent could request suspension of payment contrary to the wishes of the other. Scottish Government has advised SCoSS that its default position is to respect the wishes of the person with parental responsibility who is actually receiving assistance on behalf of the child unless it has reason to believe they are not acting in the child's interests, but that it will give further consideration to how it should manage such disputes.

Recommendation 10: Scottish Government should confirm at an early stage how it will resolve disputes between persons with parental responsibility regarding the suspension of social security assistance, and include this in published guidance.

4.5 The right to request review of a suspension

DACYP Regulation 26B and SCP Regulation 19B stipulate that an individual whose payment of CDP or SCP is suspended has a right to request a review of the decision to suspend. Social Security Scotland must complete this review within 31 days of receiving the request, which is longer than the normal period allowed for a re-determination of entitlement to social security assistance. In contrast to re-determination requests, there is no time limit within which the request for review must be made. Clearly, procedural justice, embodied in article 6 and protocol 1, article 1, ECHR, requires that individuals have an opportunity to challenge interference with their property rights (which include social security entitlements).

Some stakeholders expressed concern to SCoSS that there is no explicit duty to inform the claimant of the outcome of the review and of the next steps if they remain dissatisfied. SCoSS agrees that it will be necessary to provide this information, particularly as the process for challenging a decision to suspend is different to challenging a determination of entitlement – the individual may not appeal to a tribunal, but would have to submit a complaint and perhaps ultimately seek leave to bring a judicial review.

Recommendation 11: Scottish Government should further amend SCP Regulation 19B to include a requirement that the outcome of a review and the next steps, if the person is dissatisfied with the outcome, are communicated to the person requesting a review.

Recommendation 12: SCoSS invites Scottish Government to explain the rationale for the proposed 31 day period for consideration of a request for review of a decision to suspend payment. In particular, why this is longer than the 16 working days normally allowed for re-determination of entitlement to social security assistance.

4.6 Exacerbating risk of abuse

Communication of a decision to suspend and the reasons for it may be particularly delicate when payment is suspended with a view to protecting an individual from financial abuse. If the suspected abuser is the parent of the individual to whom the award is made (where the individual is a child), or an appointee, or lives at the same address, then it is likely that they will at least have an opportunity to read communication from Social Security Scotland. This could leave the individual with the award exposed to other forms of abuse, or lead to repercussions for whoever may be suspected by the person of prompting suspension of the payment they were receiving. As noted above, this could include putting the individual under pressure to declare financial hardship with a view to avoiding suspension. This would inevitably be a very difficult situation to address and all SCoSS can do is note that we have received an assurance from Scottish Government that it is aware of the possibility and will endeavour to minimise risk to the claimant or other parties, working in partnership with individuals or organisations as appropriate.