Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020: scrutiny report

As always, this report has been completed in accordance with our pre-legislative scrutiny function, as set out in sections 22 and 97 of the Social Security (Scotland) Act 2018.  Section 97 requires us to carry out our role with regard to the Scottish social security principles and any relevant provisions of human rights law. The Commission’s scrutiny was also informed by our draft scrutiny framework.

The draft CWHA regulations were formally referred to SCoSS on 14 May 2020. Since then, we have had ongoing engagement with Scottish Government officials. This has provided welcome opportunities for SCoSS to request further information including, for example, on the wider fuel poverty landscape, thereby enabling us to inform and influence the development of the draft regulations and allow issues to be addressed prior to regulations being laid. Clearly, time can also be an issue when it comes to carrying out meaningful stakeholder engagement. On this occasion we were able to undertake some limited consultation with stakeholders, building on our previous CWHA evidence-gathering through our DACYP consultation. We sought views on the draft CWHA regulations from stakeholders, including through a public Twitter call. We thank those organisations that responded. Their submissions added real value to our scrutiny and have supported the compilation of this report.

SCoSS acknowledges that there are exceptional demands on Scottish Government officials at the current time. Moreover, there will always be a balance to be struck between getting the assistance people need in place rapidly, and allowing time to ensure that draft regulations referred to us are of high quality, clear and complete. This is of the utmost importance to ensuring our scrutiny process is as efficient and effective as it can be. Otherwise, while the aim may be to save time, there is a risk that much time can be consumed by the need to repeatedly raise queries and make adjustments in light of new information.

On this occasion, it would have been helpful if the Scottish Government had been able to confirm, in advance of referring the draft regulations to SCoSS, its approach in relation to the average Scottish temperature in winter and the impact on entitlement for exportable cases. SCoSS would also have found it very helpful had the Scottish Government been able to provide impact assessments at the point the draft regulations were referred to us. The time lag between the referral of the draft regulations and the impact assessments (received on 17th June), and the lack of clarity concerning policy intent, unavoidably affected our ability to fully assess and scrutinise the regulations and consequently increased the number of times we had to seek further information from Scottish Government officials. However, we accept that factors beyond our knowledge or anyone’s control may have meant that on this occasion there was no alternative, given the desirability of having CWHA in place for the forthcoming winter and the extent of Covid-19-related demands on officials. These are matters we can explore further with the Scottish Government as we develop a protocol setting out how we work together. The timeline of our scrutiny is contained in the Annex.

Observation 1: In the interests of good use of limited time, and acknowledging that factors beyond anyone’s control may prevent it, SCoSS asks the Scottish Government to make every effort to ensure clarity on all key policy areasand that impact assessments are provided at the same time that draft regulations are referred to us.

SCoSS welcomed the opportunity to scrutinise standalone regulations for CWHA. Since the Winter Heating Assistance provisions were only one element of the much wider, complex DACYP Regulations our scrutiny of them made up just a small part of our overall report. Separating these out has produced fuller, clearer and more prominent provisions. It has also allowed SCoSS to undertake more in-depth scrutiny within the time available. Winter Heating Allowance and Short Term Assistance, provisions for which were also contained within the DACYP regulations, are made using powers conferred by different sections of the 2018 Act. Such forms of assistance may be reflected in regulations for other forms of assistance. There is therefore a case for considering whether standalone regulations would be preferable. While acknowledging that time constraints may militate against developing standalone regulations, this could promote greater consistency and facilitate in-depth scrutiny, leading to better policy and improved outcomes for recipients.

Recommendation 1: The Scottish Government should consider continuing to produce standalone regulations for provisions like CWHA and Short Term Assistance to enable consistency, clarity and in-depth scrutiny, and thereby better outcomes.