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Amendments 92 to 94 bring within the scope of SCOSS’s formal scrutiny remit regulation-making powers on care experience assistance, appointees, assistance given in error and information for audit.

The bill as introduced sought to implement the findings of the Glen Shuraig Consulting review and bring specific additional regulations into SCOSS’s formal scope. At that point, the regulations that were being brought into scope did not include those for care experience assistance, compensation recovery, information for audit, appointees or assistance given in error, as those were not under consideration at the time of the review.

As the committee heard during stage 1, there were calls from stakeholders for all the new regulation-making powers in the bill to be subject to formal scrutiny by SCOSS. Following that evidence, the board of SCOSS wrote to me in April 2024, noting that it welcomed additional scrutiny of some—rather than all—of the regulations that were made possible by the bill. Amendments 92 to 94, in my name, therefore add to the existing list of regulation-making powers that are captured under section 97 of the 2018 act, in accordance with those exchanges with the board of SCOSS—[Interruption.] Excuse me, convener. Clearly, I am allergic to stage 2 proceedings after a certain amount of time.

I urge the committee to support those amendments. We have seen how SCOSS scrutiny adds value to the development of regulations, and I have no doubt that its scrutiny of regulations on the added topics will similarly make an important contribution.

Amendments 95 and 96 simply ensure that section 97 of the 2018 act, on formal scrutiny by SCOSS, applies to regulations whether they are subject to the affirmative or the negative procedure.

Amendment 97 ensures that SCOSS is aligned with similar public bodies in its duties to publish an annual report. The Glen Shuraig review noted that the 2018 act’s relatively onerous statutory duty on the commission to prepare accounts and submit those for external audit should be removed. Amendment 97 replaces it with a more proportionate requirement to prepare an annual report that must be submitted to ministers and laid before the Parliament. The SCOSS board has welcomed that amendment.

Amendment 11, in Jeremy Balfour’s name, would expand SCOSS scrutiny to primary social security legislation as well as a broader range of secondary legislation. The Government cannot support that. The Scottish Government is already bringing the majority of the regulation-making powers in the 2018 act within the scope of scrutiny by SCOSS. That aligns with the recommendations of the independent review, which recommended a focus on areas that can have an impact on clients. The widening of the scope that is proposed in amendment 11 would both undercut that policy objective and create unclear resource implications for SCOSS.

The Government also has concerns about how the provisions on the scrutiny of primary legislation would work in some contexts—for example, if emergency legislation is required, there might not be sufficient time.

It is also important to highlight that the functions of SCOSS under the 2018 act are already wide ranging, and relate not only to the scrutiny of legislative proposals; SCOSS can, when requested, prepare and submit to the Scottish ministers and the Parliament advice on any matter relevant to social security and report on whether expectations as set out in the Scottish social security charter are being fulfilled, as well as make any recommendations for improvement. According to its most recent annual report, the commission has progressed work in that area, and I believe that it would be useful for the committee to consider those existing functions rather than create entirely new statutory functions, given that those that are available to the Parliament have been used so little.

I move amendment 92.

I will respond to some of the points that Mr Balfour and Mr O’Kane made on the authority of Social Security Scotland to make the decisions in relation to children around some aspects, based on the common-law approach.

With regard to amendment 9, I can see where Mr Balfour is coming from on third-party representatives. However, that is one of the areas where we must be careful of unintended consequences. For example, there is a default position that representation is for three months. That was asked for by the Scottish Women’s Convention. We can imagine circumstances where a woman who is experiencing coercive control by her partner or husband might wish not to have something like Mr Balfour’s suggestion in place. Therefore, primary legislation is really not the place for such a provision, because the system needs to be flexible.

Of course, a client can ask for longer. The default position is that representation is for three months but it does not have to be three months. Clients have the opportunity, as I said in my opening remarks, not just to use the mandate form from Social Security Scotland and not just to have representation for three months but to choose to do something different should they so wish.

I hear where Mr Balfour is coming from. Can he perhaps try to persuade me that we can audit Social Security Scotland and the way in which it does things without auditing the decisions that it makes and, therefore, its case load? I simply do not see how to do that. The entire purpose of Social Security Scotland is to deliver the right decisions at the right time; therefore, we must examine the decisions.

Mr Balfour’s amendments 12 and 13 would introduce powers to set out key performance indicators in legislation for both Social Security Scotland and the First-tier Tribunal for Scotland. The Scottish Government does not support either amendment.

As an executive agency, Social Security Scotland already publishes an annual report on accounts, in line with the Scottish public finance manual. It must also comply with the Public Finance and Accountability (Scotland) Act 2000.

The 2018 act also requires Scottish ministers to report on the number of people who are appealing to the tribunal. The committee can—and frequently does—hear evidence from senior leadership at Social Security Scotland on matters of operational delivery.

The committee will also be aware that section 15 of the 2018 act requires a Scottish social security charter to be prepared, published and reviewed. The charter was co-designed with people with lived experience of social security and it underpins everything that the agency does. As approved by the Parliament in 2019, the 2018 act sets out the service that people should expect from Social Security Scotland. A revised charter, which was developed by using a comprehensive co-design approach with clients and stakeholders, was approved by Parliament in June.

I repeat my comments from the debate on the previous group of amendments—if the committee would like more information on an aspect, the Parliament already has the power to get it.

Good morning, convener. The Scottish Government’s amendments 52 and 53 are technical changes to clarify that an individual’s eligibility to receive assistance has no bearing on whether an appointee may act on their behalf. An appointee may act in connection with a determination, even if the result of that determination is that the individual is not eligible.

Amendments 54, 55 and 56 are minor drafting amendments relating to terminology: they change the words “their” and “they are” to “the person’s” and “the person is”, respectively, to avoid any potential ambiguity as to whom is being referred to. It has no substantive effect on the operation of the provision or policy.

Amendment 102 corrects an error in the Social Security (Scotland) Act 2018. My officials, while considering other amendments to the bill, identified that section 85B(5) of the 2018 act on appointees is not included in the list of negative procedure powers in section 96(3). Amendment 102 amends section 24 of the bill to correct that. I ask the committee to support amendments 52 to 56 and amendment 102.

Amendment 126, in the name of Jeremy Balfour, seeks to allow Scottish ministers to appoint a person who already has authority to act on behalf of a child—for example, someone with existing parental responsibilities and rights. I again thank Mr Balfour for his on-going interest and support in relation to ensuring that we make payments to the right person and based on the best interests of disabled children. That is, I think, our shared aim, and I will explain why I do not think that the amendment will meet that aim.

I believe that amendment 126 could create uncertainty or an unnecessary additional step for parents who, in most cases, already have the right to be their child’s legal representative.

Social Security Scotland already has procedures in place to ensure that the child disability payment goes to someone who is suitable to manage that payment on behalf of the child. If Social Security Scotland receives information that suggests that persons may no longer be suitable to manage payments, it will take action urgently. It will also ensure that payments are suspended when there is a risk of financial abuse or when someone is no longer able to continue managing the assistance.

I am concerned that amendment 126 could result in Social Security Scotland or the First-tier Tribunal for Scotland being used as an arena for some separated parents to play out their disputes, with neither being suited to fully arbitrate such disputes. I believe that that would be a negative outcome for Social Security Scotland, the tribunal and the child, particularly when there are processes in place to manage such disputes. I have written to Mr Balfour to provide more information, and I hope that he has had the opportunity to reflect on that additional information.

For those reasons, the Government does not support amendment 126, and I ask Mr Balfour not to press it.

I turn to Jeremy Balfour’s amendment 9, which seeks to put third-party representatives on a statutory footing by setting out existing policy and processes in primary legislation. Nomination of a third-party representative can already be achieved under common law using a mandate form, and the process has been in place at Social Security Scotland for more than four years. Clients are not restricted to using Social Security Scotland’s mandate. They can nominate a third-party representative using other methods, such as over the phone or by submitting an organisation’s own mandate.

I understand the motivation behind amendment 9. I assure the committee that the Government continues to listen to clients and stakeholders and will seek to streamline the administrative process for nominating a third-party representative as much as possible. For example, for the launch of the pension-age disability payment, we have integrated a mandate into the application form, reducing the need for any additional forms or phone calls from the client.

I am not persuaded that we should remove the flexibility to respond quickly to feedback and to continuously improve our processes by setting out such operational detail in primary legislation. We have heard similar things from organisations that regularly act as third-party representatives in connection with social security. Citizens Advice Scotland told us that it does not support amendment 9. CAS said:

“The insertion of this process into legislation and the addition of the word ‘must’, may create operational difficulties”,

noting that representatives can change in the course of a client journey.

Therefore, although I very much respect the intent behind amendment 9, I encourage Mr Balfour not to press it.

I move amendment 52.

I would not suggest provision in the bill. As I said, on those issues, it is important that we are able to be much more flexible than we would be able to be under primary legislation. Social Security Scotland, of course, follows strict guidance. Yes, we need the culture and the ethos but, more importantly, we must have the guidance.

On the concern about not having scrutiny, the committee can call the chief executive and others from Social Security Scotland to come to discuss anything that the committee wishes or has concerns about. Of course, the Parliament also has the power to ask the Scottish Commission on Social Security to report on any matter relevant to social security if there is a concern.

I absolutely recognise that, as I have said on many issues, Social Security Scotland is still new. The agency is learning, open to learning and open to adaptations. That is the way to address the matter in conjunction with stakeholders, knowing that we have the ability for the Parliament or SCOSS to scrutinise and investigate should they wish to do so. Therefore, I still ask Mr Balfour not to move amendment 9.

Amendment 52 agreed to.

Amendment 53 moved—[Shirley-Anne Somerville]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Liability of appointees under sections 85A and 85B of the 2018 Act

Amendments 54 to 56 moved—[Shirley-Anne Somerville]—and agreed to.

Section 15, as amended, agreed to.

After section 15

Amendment 126 moved—[Jeremy Balfour].

I would not suggest provision in the bill. As I said, on those issues, it is important that we are able to be much more flexible than we would be able to be under primary legislation. Social Security Scotland, of course, follows strict guidance. Yes, we need the culture and the ethos but, more importantly, we must have the guidance.

On the concern about not having scrutiny, the committee can call the chief executive and others from Social Security Scotland to come to discuss anything that the committee wishes or has concerns about. Of course, the Parliament also has the power to ask the Scottish Commission on Social Security to report on any matter relevant to social security if there is a concern.

I absolutely recognise that, as I have said on many issues, Social Security Scotland is still new. The agency is learning, open to learning and open to adaptations. That is the way to address the matter in conjunction with stakeholders, knowing that we have the ability for the Parliament or SCOSS to scrutinise and investigate should they wish to do so. Therefore, I still ask Mr Balfour not to move amendment 9.

Amendment 52 agreed to.

Amendment 53 moved—[Shirley-Anne Somerville]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Liability of appointees under sections 85A and 85B of the 2018 Act

Amendments 54 to 56 moved—[Shirley-Anne Somerville]—and agreed to.

Section 15, as amended, agreed to.

After section 15

Amendment 126 moved—[Jeremy Balfour].

The Government has proposed amendments in my name that fall under three themes for the compensation recovery provisions: stylistic drafting changes, changes to improve clarity and some small changes to the proposed powers in the relevant parts of the bill.

Amendments 61 to 63, 68, 75, 79, 82 and 86 to 91 all make stylistic changes to the drafting of the provisions. The majority of those amendments are designed to address the overuse of the word “any” in the provisions by replacing it with the words “a” or, where appropriate, “an”. Others are designed to remove duplication or to make grammatical changes. We consider those amendments to be minor and to have no effect on the operation of the provisions.

The committee will note that the compensation recovery provisions are complex. The next set of amendments is designed to provide clarity and to simplify where possible, without impacting the functionality of the provisions.

A key issue is that the provisions must make reference to multiple parties, often in the same section, which can be confusing. Proposed new section 94A of the 2018 act, in particular, refers to many different parties, so amendments 59 and 60 help to clarify to whom the specific provisions apply.

Proposed new section 94M provides for a

“review of certificates of recoverable assistance.”

On reconsideration, we identified that we could reduce complexity through amendments 69 to 72 by making a small change to the wording, updating the references and eliminating the need for subsection (6).

Following engagement with bodies representing the insurance industry, we believe that via amendments 66 and 67 we can reduce complexity in proposed new section 94H when referring to policies of insurance. Those changes ensure that the meaning is clearer without having any impact on how the provision will function in alignment with the rest of the United Kingdom.

Also in that section, we intend that a “policy of insurance” should cover liability only in so far as that policy has been stated to cover, and not any further. The Association of British Insurers in particular expressed concern that the point was not clear enough in the bill. Amendment 64 removes the risk that the provision could be misinterpreted to read that the insurer covers all liability, beyond the terms of the policy.

There might be situations in which, following a reconsideration or appeal, it is revealed that a person who received a compensation payment knowingly provided inaccurate or insufficient information. We believe that also proving that person’s

“intent of increasing the compensation payment”

is not necessary as there could be no other reason to do it, so amendment 77 removes that requirement in proposed new section 94P.

Amendments 78, 80 and 81 apply to the provisions on periodical payments. On review, we were concerned that those provisions could be confusing. The amendments remove words that add no value to the provisions, simplifying proposed new section 94R while having no impact on its effect.

The next series of amendments is designed to make some changes to the powers that were proposed when the bill was first introduced. Many of those changes are in response to scrutiny from both the Delegated Powers and Law Reform Committee and the Social Justice and Social Security Committee.

At proposed new section 94H, we agreed with the Delegated Powers and Law Reform Committee that the equivalent UK provision contains a more restricted power to limit the amount of the insurer’s liability. We agreed that a wider power was not required, and amendment 65 makes that change.

Amendment 84 relates to the diffuse mesothelioma payment scheme administrator. As drafted, the provision could apply to anyone providing any services to the DMPS administrator, but we do not intend for that provision to apply so broadly. The amendment narrows that power to apply only to those specifically “acting on behalf of” the administrator.

Amendments 73, 74 and 76 relate to the provisions on appeals against a certificate of recoverable assistance at the First-tier Tribunal. They remove unnecessary subsections that relate to raising an appeal; it is more appropriate that the matter be covered in tribunal rules.

The Delegated Powers and Law Reform Committee also queried the regulation-making power relating to the

“non-disclosure of medical advice or ... evidence given ... in connection with an appeal”.

On review, it was identified that a power that is contained in the tribunal rules and which is already in practice makes sufficient provision in relation to the disclosure of documents and information. As such, amendment 76 removes that unnecessary power.

Amendments 100 and 101 remove the references to those powers from the section outlining procedures.

Proposed new section 94T provides regulation-making powers for the provision of information in relation to “recovery from compensation payments”. It was identified that the provision might apply more broadly than necessary, deviating from the equivalent provision in the UK legislation. Amendment 85 narrows that power. There is also no need to specify mandatory content for regulations, so amendment 83 makes changes to allow for content that could be included in regulations.

I hope that everyone has followed those technical amendments, convener.

I move amendment 59.

I, too, thank current and previous SCOSS members for their work. They have genuinely added value with every piece of work that they have done since SCOSS came into existence, and I very much appreciate the work that they do. They have made social security in Scotland better, and they can be exceptionally proud of the role that they have played in that.

I can give the confirmation that Mr Balfour seeks around the accounts, and I point out that the review that was undertaken was also about streamlining, so, in essence, it did much of what Mr Doris suggested. Obviously, it is for the committee to decide whether it wishes to do more, but the review was very wide ranging. It was about powers and it aimed to ensure that SCOSS and its structures and responsibilities were fit for purpose. There was a streamlining element to that, too. I hope that that gives reassurance to Mr O’Kane. In essence, I am very keen that SCOSS is strengthened.

On Jeremy Balfour’s amendment, I say that SCOSS has not asked for such an amendment. SCOSS has not said that it wishes the implications of Mr Balfour’s amendment to come to fruition, but I am happy to go away between stage 2 and stage 3 to further clarify that with the chair. I have responded to the asks that were made of me in the letter with the amendments that are in front of the committee for discussion today, so I again ask Mr Balfour, on that basis, not to move amendment 11.

Amendment 92 agreed to.

Amendments 93 to 96 moved—[Shirley-Anne Somerville]—and agreed to.

Section 18, as amended, agreed to.

After section 18

I would hasten to add that it points to a clear problem with the DWP process if the case was that obvious but the client was still forced to appeal. I strongly suggest that evidence and experiences such as those gathered during the DWP process are not the way in which our system operates, and I simply refute the suggestion that the tribunal would make a decision on a case based on the way that an individual walked into a room. It cannot be as clear as that, or something has gone far wrong with the initial decision.