Issues Not Included In The Bill
Primary vs Secondary Legislation
The Committee has received considerable evidence suggesting that the balance between what is contained in primary or secondary legislation has not been appropriately struck. It believes that this is an issue that needs to be carefully addressed by the Scottish Government as the Bill proceeds.
5. The Scottish Government recognises the issues raised in relation to the balance between what is contained in primary (the Bill) and secondary (regulations) legislation and notes that stakeholders and Members of Committee have acknowledged that there is no straightforward answer to this issue. As Mark Griffin MSP, a member of the Social Security Committee, stated at the evidence session on 2 November:
" I do not envy the task of the minister and her officials in getting the balance right – it is not an easy job". 
6. The evidence is clear that most stakeholders accept the need to make legislation simpler, more accessible and easier to understand, and also agree – broadly speaking – that the existing UK legislation is labyrinthine, complex and very difficult for individuals to navigate. This is a failing in the current UK legislation, which this Bill has been designed to address.
7. The Bill, therefore, sets out an over-arching legislative framework for the administration of social security in Scotland and describes the different types of assistance to be provided. The detailed rules relevant for each benefit will then be set out within regulations, which will tell the 'whole story' in relation to that benefit. The Scottish Government believes this will make the legislation as simple, accessible and easy to understand as possible.
8. The ambitious nature of the work being taken forward to deliver the devolved benefits by the end of this parliamentary term means that the Scottish Government is taking legislation through Parliament, developing policy for the specific benefits, undertaking detailed service design work and building the necessary infrastructure for the delivery agency, all in parallel. The Scottish Government is considering the issue of balance between what is contained in primary and secondary very carefully. It believes that if there is too much detail in primary legislation before the development, design and testing has been undertaken, it may lead to inefficient, costly, or undeliverable mistakes. In such circumstances, any changes to make it work better would need to be made to primary legislation – a much longer process that could potentially delay or otherwise adversely affect the implementation of the new Scottish system.
9. The Scottish Government has also committed to continuously improve the delivery of social security and aims to do so with, rather than for, the people receiving assistance. Putting the rules entirely in primary legislation would not allow for this, and would impair their responsiveness and flexibility to circumstances, particularly where relatively simple design changes need to be made, and would make for a more unwieldy system than anyone wants.
10. That said, the Scottish Government have paid attention to the evidence gathered by the Committee and the recommendation that it needs to get the balance between primary and secondary legislation right. Therefore, the Scottish Government intends to bring forward amendments to the Bill at Stage 2, including ensuring a super-affirmative procedure and the establishment of an independent scrutiny body (discussed further in paragraphs 17 to 27 below). The Scottish Government hopes this provides assurances to the Committee and stakeholders that there will be the independent and enhanced levels of scrutiny that both they, and the Scottish Government itself, are seeking.
Eligibility criteria included in Bill
The Committee invites the Scottish Government to reflect on the evidence that
suggests that the eligibility criteria for the 8 forms of assistance should be included within primary legislation.
11. The Scottish Government has paid careful attention to the evidence around eligibility for the eight types of assistance currently provided for in the Bill. However, it considers that it would be difficult to provide this, on the face of the Bill, at this stage – particularly in relation to assistance for people with disabilities and long-term illnesses, as much of the policy development and service design work is on-going and will not have concluded within the timescales of this Bill.
12. There is a need for in-depth and detailed consultation and engagement with the people in receipt of these benefits. The Scottish Government is committed to fully consult and engage with the wider public in developing the secondary regulations where the detailed eligibility criteria will be set out. This will include the membership of disability organisations, the Disability and Carer's Benefits Expert Advisory Group ( DACBEAG) and will also draw upon the collective, lived experience of the members of the Experience Panels. The Scottish Government notes that, when Bill Scott (Inclusion Scotland) appeared before the Committee on 5 October and was asked what entitlement criteria his organisation would like to see for the new disability benefits, he replied:
"We would have had to work with people for quite some time to narrow things down to ensure that the entitlement criteria that we were proposing were in line with disabled people's wishes. We are not able to do that and to develop amendments in the time that is available for further consideration of the bill." 
13. The Scottish Government is grateful to Mr Scott, and members of Inclusion Scotland, for their input to the Bill process. The Scottish Government agrees there is a need for long-term engagement, consultation and evidence-gathering before it will be possible to settle on the right eligibility criteria for each future assistance type. In the meantime, the Scottish Government will continue to reflect, ahead of Stage 2, on the suggestion, made by some stakeholders, that more may be said in relation to the purpose of each type of assistance, on the face of the Bill.
14. The Scottish Government would also seek to reassure the Committee that, by including additional requirements, such as a super-affirmative procedure and establishing an independent scrutiny body (discussed further between paragraphs 17 to 27 below), the Bill will provide the independent and enhanced levels of scrutiny of the eligibility criteria that Committee members and stakeholders are seeking.
The Committee believes that, in its current form, the bill does not allow for adequate scrutiny as there is no provision for a super-affirmative procedure for, or independent scrutiny of, regulations produced under it. The Committee requests that the Scottish Government comes forward with further detailed proposals on these matters.
15. The Scottish Government has been clear for some time that it recognises the case for some form of super-affirmative procedure and has been keen to hear the Committee's views. It is grateful to the Delegated Powers and Law Reform Committee ( DPLRC) for its summary of the current position, in particular for making it clear that there is no single or set form of super-affirmative procedure. It is noted that the DPLRC Stage 1 report said:
" There is no singular form of "super-affirmative" procedure. Instead, it is a form of enhanced scrutiny in addition to the affirmative procedure. "Super-affirmative" procedures have been used in the past in connection with delegated powers in bills for which the Parliament considered that a particularly high level of parliamentary scrutiny is appropriate." 
16. The Scottish Government accepts that an enhanced level of parliamentary scrutiny is required and can confirm it will bring forward amendments to the Bill at Stage 2 that will apply a form of super affirmative procedure to regulations made under Part 2 of the Bill.
The Committee supports the creation of an independent Scottish Social Security Advisory Committee with a role similar to the UK Social Security Advisory Committee ( SSAC) and a statutory basis. The Scottish SSAC should have an initial focus on assessing the draft regulations produced under the Bill and Ministers should be obliged to consult it on them. The Committee believes that Scottish Social Security Advisory Committee reports and recommendations should be public and that, if it disagrees with them, the Scottish Government must set out an explanation.
17. Since the UK Government decided that the current SSAC would not be available to the Scottish Government, the Minister for Social Security has consistently made it clear that she believes that there is a need for expert scrutiny of social security matters in Scotland by a body that is independent of the Scottish Government, and for the Scottish Government to consult that body on its proposals for regulations. Given the potential cut across between a new independent body, existing Scottish Parliamentary Committees and the independent DACBEAG, the Minister for Social Security raised this matter, ahead of publication of the Bill, in meetings with the Convener of the Social Security Committee (on 25 May), and the DPLRC (on 30 May). The Minister subsequently wrote to the Social Security Committee on 22 June  , and to Dr Jim McCormick, the Chair of the DACBEAG, to invite views on the best way forward.
18. A DACBEAG working group was subsequently established (made up of members of the expert group and stakeholder reference groups) to provide advice and recommendations on the independent, expert scrutiny of the Scottish social security system. Final conclusions and recommendations were made available on 12 December. The Scottish Government will make a full response directly to the working group in due course but wishes to outline its initial views to the Committee ahead of the Stage 1 debate.
19. The Scottish Government notes that the working group's findings, in relation to the scrutiny of regulations, align, on most of the key points, with the evidence from stakeholders which the Committee has collated in its report:
- There is a need for a body to undertake independent, expert scrutiny;
- It should be set up in statute;
- It should have a role in scrutinising draft regulations;
- There should be a duty on Scottish Ministers to consult with the body; and,
- Its reports should be published.
20. The Scottish Government also notes the working group's recommendations that there should be no exceptions to the regulations that are within scope and no 'urgency' provision that bypasses proper scrutiny. The Scottish Government believes that this should be achievable if the body is able to take a flexible approach to its scrutiny role.
21. The Scottish Government recognises the challenges, which the working group has outlined, in making the necessary appointments for a scrutiny body in time for the delivery of the first wave of devolved benefits. The Scottish Government will consider the working group's suggestion that an interim body could be tasked with the scrutiny of the first wave of benefits, but wishes to be clear that this interim body could not be appointed or given responsibilities under a statutory power in the Bill.
22. The Scottish Government also notes that the working group's advice addresses a further and much broader range of issues than those considered in the Committee's report, in that it also takes in matters pertaining to the existing Industrial Injuries Advisory Council, the scrutiny of guidance, the scrutiny of the interaction between the reserved ( UK) and devolved (Scottish) social security systems, other matters. The Scottish Government will reflect on the working group's advice on these matters and will respond to the group directly in due course.
23. Finally, the Scottish Government also agrees with the working group's proposal, that the body should have a role to play in protecting people's rights in relation to the charter. The intention would be to ensure access to justice and provide an accessible, immediate way of allowing the system and the underlying policy, to flex and adapt to user feedback and challenge without the costs, delay and anxiety of leaving people no option but to challenge Scottish Ministers in court.
24. The Scottish Government believes that such a function would be an innovative step in the administration of public services in Scotland, strongly reflective of a rights based approach and would provide a new layer of expert, independent assurance that the principles, and the associated charter commitments, are in fact supporting the delivery of a system that lives up to these ideals.
25. While it is right that the details of this should be developed through a process of co-design, the Scottish Government will ensure that the proposals for independent scrutiny brought forward at Stage 2 are capable of supporting such a function.
26. The Scottish Government wishes to place on record its thanks to Dr Jim McCormack, Judith Paterson and all of the members of the DACBEAG working group, who have done a great deal of work in a very short space of time. It intends to make provision for the independent, expert scrutiny of Scottish social security regulations and will bring forward appropriate amendments at a later Stage.
27. In the meantime, the Scottish Government would welcome views from the Social Security Committee and others on all of the proposals put forward by DACBEAG. The Minister for Social Security will also follow up on her original letter to the Committee in the new year.
Uprating of Benefits
The majority of the Committee supports the Scottish Government's commitment to uprate disability assistance. The Committee notes that the majority of those who gave evidence on this issue felt that uprating all forms of assistance should be included in the Bill. The majority of the Committee believes that the Bill should include an annual duty on Ministers to have regard to the impact of inflation on the value of assistance.
28. The Scottish Government welcomes the Committee's recognition of its commitment to maintain spending on disability assistance through annual uprating. The Bill already provides the Scottish Government with the power to vary the rates of social security benefits, including to uprate, and this can be enabled through the individual benefit regulations.
29. The Scottish Government has noted the evidence gathered by the Committee and feel it is also important to recognise the context in which decisions about changes to the value of payments and uprating must be made. The Block Grant Adjustment methodology detailed in the ' Agreement between the Scottish government and the UK Government on the Scottish Governments fiscal framework' (published on 23 February 2016), continues to link adjustments to the Scottish block grant in respect of welfare to spending on equivalent policy areas in England and Wales. This means the Scottish Government is funded to provide the same level of benefits as in England and Wales. Any policy choices which give rise to additional spending will require new budget cover, funded from the existing Scottish budget envelope.
30. That said, as members will be aware the Scottish Government is already going further by increasing the value of payments of some benefits. For example, it has committed to increase the value of Carer's Allowance to the same rate as Jobseeker's Allowance and will do this by providing a Carer's Supplement, which will be paid to those receiving Carer's Allowance in Scotland. The Scottish Government is also increasing the value of maternity assistance, increasing the value of Best Start Grant payments to families who have just had their first child from £500 to £600, restoring £300 birth payments for second and subsequent children, and introducing two new payments, each of £250, at key transition stages in a child's early life.
31. The Scottish Government will reflect on the Committee's proposal that the Bill should include an annual duty on Ministers to have regard to the impact of inflation on the value of assistance ahead of Stage 2.
Use of Private Contractors
The Committee notes, and the majority supports, the Scottish Government's commitment not to involve private contractors in delivering health assessments for disability benefits. However, the majority believes that to include a formal ban on private sector contractors in the bill may lead to unintended consequences and does not therefore support this proposal.
32. A clear an unequivocal commitment was made to Parliament on 27 April 2017, stating that profit-making companies will not be involved in delivering assessments for disability benefits once devolved to Scotland. This position was reiterated to the Chamber in response to an oral Parliamentary Question (S5O-01216) from Pauline McNeill MSP on 7 September 2017. The Scottish Government has also committed to a range of improvements, including reducing the number of face-to-face assessments being carried out and introducing more lifetime awards.
33. The Scottish Government, therefore, welcomes the Committee's support of its position that a formal ban on private sector contractors in the Bill would bring about the significant potential for other difficulties and unintended consequences to occur. That said, the Scottish Government will continue to reflect on this matter, ahead of Stage 2.
Residency and Cross-border Issues
The Committee believes that it is important that a definition of residency is developed - who is eligible for the new Scottish benefits - and that this is included in the Bill or regulations.
34. Consistent with the general commitment to minimising legislative complexity, the Scottish Government will set out residency conditions in the regulations for each individual benefit. This reduces scope for confusion and allows the full eligibility criteria for each benefit to be set out in one place. It also makes sense in that the residency criteria for different types of assistance could sometimes vary. For example, disability benefits may include temporary absence and presence conditions that do not necessarily apply in the case of other devolved benefits (such as Best Start Grant). The Scottish Government, therefore, believes that establishing a single set of criteria in the Bill would be unhelpful.
35. In terms of the criteria itself, in line with its commitment to a safe and secure transition, the Scottish Government intends to broadly mirror the existing UK Government regulations. This would mean that a person entitled to Scottish assistance would be principally defined as someone who is habitually resident in Scotland. The Scottish Government believes that this approach presents distinct advantages:
- Habitual residence is an established legal concept and is consistent with the conditions used throughout the Common Travel Area and in the European Union;
- A substantial departure from this approach would be complex and may create scope for gaps in eligibility or double claiming;
- It will prevent people who happen to be in Scotland on a particular day or for a short period from being entitled to benefits ( e.g. if they have a holiday home, are working over the summer or are on a long holiday); and
- Since a person can only be habitually resident in one place at a time, they cannot claim the same benefit from multiple jurisdictions.
36. Officials are also working closely with the Department for Work and Pensions ( DWP) to understand in more detail the implications for the devolved system of European Union coordination rules and the potential impact of the UK withdrawal.
The Committee supports the work that the Minister is undertaking to seek agreement with the UK Government on reciprocal arrangements for people who move across the border.
37. The Scottish Government welcomes the Committee's support. Work is being undertaken with officials in the DWP to examine detailed cross-border scenarios in order to resolve any difficulties and to ensure that there are no unintentional gaps or anomalies.
38. The shared objective of this work is to ensure that the systems cooperate and that transitions between them are as seamless as possible. For example, a person moving from one UK jurisdiction to another should not experience gaps in payment or face a difficult process to establish residency. This is in line with the reciprocal arrangements that already exist across the Common Travel Area.