The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the Scottish Government’s draft Scottish Child Payment (SCP) regulations. The report has been completed in accordance with the Commission’s pre-legislative scrutiny function, set out in sections 22 and 97 of the Social Security (Scotland) Act 2018. Section 97 requires us to carry out this role with regard to the Scottish social security principles and any relevant provisions of human rights law.

The Commission welcomes the Scottish Government’s proposal for a Scottish Child Payment as a progressive measure with potential to contribute to the realisation of various social security principles, human rights goals and the targets in the Child Poverty (Scotland) Act 2017.

The Scottish Child Payment has potential to:

• Act as an investment in low income households (principle a)
• Contribute to the fulfilment of human rights objectives (principle b)
• Help households with children secure a dignified standard of living (principle d)
• Reduce levels of poverty and depth of poverty among households including children (principle e)
• Improve the Scottish social security system in a way that benefits recipients of assistance, by doing the above (principle g).

To a large extent, the recommendations and observations presented focus on the need to ensure that the potential of the SCP in these areas is fulfilled.

The Commission’s interaction with the Scottish Government on the SCP has been a dynamic, iterative process. The draft Regulations have continued to evolve since the first version was referred to us on 4 October 2019 by the Cabinet Secretary for Social Security and Older People.  This report focuses on the draft Regulations subsequently referred to the Commission by the Cabinet Secretary on 19 December 2019 (‘the second draft Regulations’), although we also considered the earlier version (‘the first draft Regulations’). Scrutiny was guided by our draft scrutiny framework.5 We are pleased that a number of important issues that we raised during the scrutiny process have already been responded to positively by the Scottish Government in advance of the publication of this report.

The Commission feels the proactive approach to early engagement with us, as adopted by the Scottish Government, will result in improved Regulations being referred to the Social Security Committee. It has also allowed us to seek and obtain clarification from officials on numerous points in advance of producing this report, during the scrutiny process, whereas our first report on the Young Carer Grant6 contained multiple requests for clarification and further information. The Cabinet Secretary has highlighted in her letter to the Committee (see Annex A)7 some of the ways in which the Regulations have evolved as a direct result of the Commission’s earlier input.

While we welcome the opportunity to comment on early drafts, there are challenges associated with scrutinising an evolving set of Regulations, particularly when the policy is being driven at considerable pace. We understand the Scottish Government’s desire to introduce the SCP as quickly (and securely) as possible but this has reduced the amount of time available for our scrutiny of the second draft Regulations. Although section 97(5) of the Act in principle gives the Commission scope to decide how much time it deems ‘appropriate’ for scrutiny, the reality is that the Scottish Government has a legislative timetable with limited flexibility. Our report would, unavoidably, have considerably less potential impact if it were not ready in time to be laid in the Parliament with the Regulations.

A particular challenge is that timing constraints meant we were unable to seek stakeholders’ views on the second draft Regulations. We have also been asked to produce a supplementary report on issues that the Scottish Government was not able to include in the second draft Regulations. These have still to be referred to us but we expect aspects of the application process will feature prominently in this supplementary report.  Depending on the extent of additions or changes, some parts of this report may also require amendment.

The Commission is committed to improving its scrutiny processes as our experience grows, and we will discuss with the Scottish Government how lessons learned from consideration of the SCP could be applied to future draft Regulations. This includes the usefulness of our having sight of impact assessments as early as possible. We are encouraged that the Scottish Government is similarly committed to a process of continuous improvement; we have already had productive discussions about a draft protocol that is designed to improve scrutiny processes.

The drafting of our report was informed by briefings provided by Scottish Government officials on SCP policy/versions of the draft regulations at successive board meetings. Officials also provided written responses to our questions and various other relevant information, including details of feedback from stakeholders they had consulted. A timeline of our scrutiny is contained in Annex B.

Social security principle (f) states that “the Scottish social security system is to be designed with the people of Scotland on the basis of evidence.” In the case of the SCP, this principle is reinforced by article 12 of the Convention on the Rights of the Child, which requires that children be given the opportunity to express their views on matters affecting them. Through the experience panels project, the Scottish Government has prioritised the voice of people with lived experience of social security in the development of the new devolved system. The Commission commended this approach, while suggesting some areas for improvement, in its first report.

In the case of the SCP, a strong evidence base exists in terms of the effect of different levels of payment and the choice of different qualifying benefits on child poverty rates, depths of poverty, simplicity, take-up and work incentives. The Scottish Government also provided the Commission with reports of its discussions with stakeholders. However, the kind of structured engagement with potential recipients that the experience panels embody was absent and there was no formal public consultation. While some user research has been carried out, the report received by the Commission appears to indicate that this focused largely on the application process.

Logically, it seems unlikely that claimants of means-tested benefits with dependent children would object to the headline objective of increasing their incomes by £10 per child per week. However, it is possible that a fuller coproduction process would have produced valuable evidence of prospective claimants’ views on some of the issues relating to the operational delivery of the SCP that this report highlights, such as payment frequency. The Scottish Government has prioritised expediting the legislative process for the SCP in order to achieve reductions in child poverty as soon as possible. This is arguably in keeping with social security principle (e),11 but on this occasion has come at the expense of principle (f)12. It is preferable that the voice of the user is heard and in-depth impact assessments undertaken before any new form of social security assistance is introduced, and worth noting that prospective recipients of devolved benefits do not always prioritise speed of delivery. As roll-out proceeds, recipients should be involved in the ongoing search for opportunities for improvement that puts their needs first, in accordance with principle (g). These may include, but need not be limited to, the issues highlighted in this report, particularly in our recommendation below for a review of the SCP. While the involvement of children under six years old would present challenges, caregivers and (in anticipation of the extension of the SCP to children aged six to 16) older children could have useful insights to offer.

In part because the Scottish Government had not undertaken a formal public consultation on the SCP (although it has had extensive discussions with key stakeholders) we decided to hold a stakeholder event on the first draft SCP Regulations to inform our scrutiny. This was held on 18 November. It was attended by 25 participants, including parents with lived experience of the benefits system and other stakeholders with key roles in the social security system, including Scottish Government officials and MSPs on the Social Security Committee. This event included an open discussion on a synopsis of the first draft Regulations. While timescales and resources prevented us from exploring in depth all aspects of the Scottish Government’s approach, SCoSS members and participants found the event to be particularly valuable in allowing us to identify key issues of concern from a wide variety of perspectives, including, importantly, that of lived experience.

We are thankful to all those who helped inform our scrutiny and the drafting of this report. A summary note of our SCP event is provided in Annex C.

A final issue relating to the speed of developments at devolved level is that, as a top-up to a reserved benefit, the introduction of the SCP will be dependent in part on the amendment of UK legislation under s104 of the Scotland Act 1998. This creates an inherent vulnerability in that meeting the envisaged launch date is dependent on action by the UK Government and Parliament, the timing of which will be outside the control of the Scottish Government.