Annex A: Legislative Background to this Strategy
The Scotland Act 2016 devolved new powers over social security to the Scottish Parliament and the Scottish Government. The Social Security (Scotland) Act 2018 ('the Act') was required to deliver these new powers. The Act enables the Scottish Parliament to make legislation to pay disability, industrial injuries and carer's benefits, benefits for maternity, funeral and heating expenses, and Discretionary Housing Payments. It also provides the ability to top-up benefits which remain reserved to the UK Parliament. The Scottish Government is also given the power to create new benefits in any area except old age pensions or where there is a connection to a matter reserved to the UK Parliament (such as child support maintenance or reserved aspects of employment support).
The primary function of the Act is to set out the legislative framework for the Scottish social security system. This allows Scottish Ministers to pursue a Scottish benefits system that is distinctly different to that of the UK one. The Act does not contain operational detail on the benefits being delivered, for example, eligibility criteria or payment rates. The rules around entitlement and delivery are being set out in benefit specific secondary legislation (regulations). These have been and will be introduced over a phased timescale to ensure the safe and secure transition from the UK to the Scottish system. The benefit specific regulations are subject to scrutiny by the Scottish Parliament and the Scottish Commission on Social Security.
Requirements of the Act
Section 3 of the Social Security (Scotland) Act 2018 places a general duty on Scottish Ministers to promote take-up. Sections 8 and 9 of the Act require Scottish Ministers to prepare, publish and lay before Parliament a number of strategies to promote the take-up of Scottish social security assistance. Each strategy should set out a best estimate of take-up for the benefits covered by it, and how Ministers will work to improve take-up. The Act requires that the first strategy would be published one year from the commencement of the relevant sections of the Act. That was done on 22 October 2018. A second strategy must follow by 21 October 2021, three years after commencement of the relevant sections. Thereafter a new strategy should be published within five years of the previous one.
Section 8 of the Act states that the primary purpose of the strategies is to estimate the extent of take-up of the assistance provided for by the Scottish social security system (i.e. the system for the Scottish Ministers giving assistance to individuals in accordance with Parts 2 & 3 of the Act), and to explain what steps Ministers will take to ensure individuals receive what they are eligible to receive.
Section 9 of the Act also states that Scottish Ministers must consult appropriate individuals when developing any of the strategies. Ministers can largely decide who they consider to be 'appropriate' in this context, but this must at least include:
- People using the Scottish social security system; and
- People who work with or represent individuals living in households whose income is adversely affected, or whose expenditure is increased, because a member of the household has one or more protected characteristics as defined by section 4 of the Equality Act 2010.
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