Ultimately, the best way to take forward intended goals within the constraints that apply will always be a matter of political judgement. However, without a robust evidence base, there may be questions or confusion about how the chosen course of action will achieve policy intent, is strategic and represents value for money. That may particularly be the case where decisions are taken that exceed statutory requirements, or do not align with previous statements on strategic approach or could set precedents for it. There may well be extremely good reasons for doing so. However, in the interests of transparency these require to be supported by good evidence.

One key form of evidence concerns that provided through engagement with stakeholders, particularly people with lived experience. The policy note accompanying the draft regulations confirms there is no statutory requirement to consult on this instrument. Certainly, if the draft regulations merely implemented an approach that was previously consulted on and accepted, the case for stakeholder involvement (and likelihood of stakeholder interest) would likely be weaker than if the draft regulations were non-routine. However, the existence of scope for ministerial discretion on uprating decisions, and now evidence of the extent to which that may be used, may have implications for social security principle (f) – that “the Scottish social security system is to be designed with the people of Scotland on the basis of evidence”.

Recommendation 4: Unless circumstances outwith the control of the Scottish Government preclude it, where there is a policy intent to uprate in a non-routine way, enough time should be factored in for stakeholder engagement.

In responding to a recommendation in our report on Funeral Expense Assistance and Young Carer Grants (Uprating) (Miscellaneous) (Scotland) Regulations 2020 the Scottish Government undertook that it “will look to develop the content and scope of future [section 77] reports as more types of assistance are delivered”. Below we highlight areas where it should be helpful to provide additional information, particularly when more forms of devolved assistance come on stream, whether in section 77 reports, accompanying policy notes or through other means.

The current section 77 report notes that the decision to increase relevant benefits by 1% “is in recognition of the exceptional circumstances arising through COVID-19 and the impact it has had on low income households”. However, it is not entirely clear whether that decision has been driven by evidence of the impact of COVID on the CPI measurement of inflation and its reliability, or evidence of the economic impact on low income households. The report provides a technical commentary on the impact of COVID-19 on CPI inflation. However, statistical or other information on the impact on different households or other groups is not provided in the section 77 report or policy note. Yet the impact may vary by type of household and equality group and such data is available.

There is also no information provided in the section 77 report on the budgetary implications of the actions taken or other possible options available within the confines of the fiscal framework. The Scottish Government has previously stated in a response to SCoSS’s earlier uprating report: “any decision to uprate beyond the statutory duties laid out within the Act, will have wider budgetary impacts for the Scottish Government and would require significant consideration and analysis before being implemented”. However, this analysis is not set out in the section 77 report. From discussions with officials we understand that the Scottish Government, in applying the 1% increase, sought to strike a balance between recognising the social security principles and the increased pressures on the Scottish Budget. The estimated cost of the 1% increase is £300k in 2021-22.

Recommendation 5: To improve transparency, the Scottish Government is asked to consider whether section 77 reports or information provided to accompany uprating regulations could usefully say more on the economic impact on different groups and the overall costs of uprating decisions.

In our uprating report of 2019 we raised the issue of whether Equality Impact Assessments (EQIAs) should be carried out to inform section 77 reports. The Scottish Government responded that they had been conducted on the Bill that led to the Act and on each set of regulations for particular forms of assistance, so this was unnecessary as the policy had not changed. However, the existence of considerable discretion, whether or not it is proposed to make use of it, could strengthen the case for carrying out an EQIA on future uprating regulations, to identify their overall impact on equality, rather than relying on those EQIAs originally undertaken on specific forms of assistance when they were introduced. For example, an EQIA could usefully inform decisions on whether or not to maintain or increase the value of a form of assistance on which a particular equality group is particularly reliant, or whether there are exceptional circumstances that have a disproportionately detrimental impact on a particular equality group. This is relevant to social security principle (g) concerning the advancement of equality and non-discrimination.

Recommendation 6: The Scottish Government should prepare equality impact assessments concerning the overall impact of future uprating decisions on equality, where there is a policy intent to uprate in a non-routine way.

There may be other information that could usefully be included in future section 77 reports that would improve transparency, for example, replicating a table in SCoSS’s report on the Uprating Policy Paper and Analytical Report. This showed reporting and up-rating requirements for each form of devolved assistance, including whether they were covered by an agency agreement.

Recommendation 7: The Scottish Government should review whether other information could usefully be provided in future section 77 reports in order to improve transparency.