When developing the provisions within Social Security (Amendment) (Scotland) Bill, the Scottish Government gave consideration to the following options:
Option 1 – Do nothing
Under this option existing legislation would remain in place and primary legislation would not be brought. No changes would be made to current processes and policies if this position was adopted. If this approach were the preferred option, the Scottish Government would fail to live up to the commitments made in the Scottish social security principles and Social Security Scotland’s charter to continuously improve the Scottish social security system and put the people who use it at its heart.
Option 2 – Non-regulatory changes
Under option 2 the Scottish Government would seek to implement changes to operational processes and guidance without introducing legislation. If this were to be the preferred option the improvements and changes that could be made would be limited and constrained.
The majority of the proposals included in the Bill could only be enacted through primary legislation. If the Scottish Government chose this approach then Scottish Ministers would not have the powers to recover the costs of Scottish social security assistance from awards of compensation, nor would they be able to introduce a formal challenge route for overpayment liability or create new forms of financial assistance such as childhood assistance. If option 2 were adopted the Scottish Government would also not be able to deliver the recommendations made by Glen Shuraig in their independent review of SCoSS.
For the proposal on requesting information for audit, Scottish Government officials identified and explored different options, including conducting a literature review comparing international best practice, to obtain the relevant information from Social Security clients. Statistical officials advised that compulsory participation in the audit exercise was required in order to deliver robust data from which estimates could be extrapolated. A non-regulatory solution would not be suitable for this proposal as participation must be mandatory to protect the integrity of the data and avoid a self-selecting sample.
For proposals where a non-regulatory route is an option, the policy impact of this option is likely to be limited. The process for completing re-determinations beyond the period allowed could be clarified in public-facing guidance and in operational guidance which could facilitate greater public understanding of the process for re-determinations when they run late. However, other proposals relating to re-determinations and appeals including the withdrawal of re-determination requests, providing a new determination once an appeal has been lodged, confirming the scope of process appeals, and creating flexibility beyond a year for re-determinations in exceptional circumstances could not be delivered without legislative changes. The scope for improving the challenge process is therefore considerably reduced under this option.
Option 3 – Legislative change
This option would take the primary legislation forward as planned to amend or repeal sections of the 2018 Act, as well as seeking to create new provisions in that Act.
Option 3 is the Scottish Government’s preferred approach as it will have the greatest policy impact. Primary legislation will allow Scottish Ministers to: deliver new types of social security assistance; place challenge rights for overpayment liability on the same footing as other forms of challenge; recover social security assistance from compensation awards; recognise DWP appointees in certain circumstances; request information from individuals in order to produce effective measurements and estimates of the extent of client error, official error, and fraud; and expand and improve on the rights-based approach of the Scottish social security system.
Primary legislation will enable the Scottish Government to fulfil its obligations to continuously improve the Scottish social security system and to ensure that the system is efficient and delivering value for money.
This approach also supports the Scottish Government’s commitment to “Keep The Promise” by 2030 and would ensure a consistent, national approach is taken to providing financial assistance to people with care experience.
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