The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the Social Security Assistance (Funeral Expense Assistance and Young Carer Grants) (Uprating and Miscellaneous Provisions) (Scotland) Regulations 2020. We refer to these throughout the report as the ‘draft Regulations’.

Our 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 states that the Commission must report on draft Regulations proposed to be made under any section in Chapter 2 of Part 2 of the Act. The draft Regulations are made under powers conferred by sections within this part and chapter.

SCoSS has previously reported on the Scottish Government’s general approach to uprating, in response to a referral by the Cabinet Secretary for Social Security and Older People in September 2019, under section 22(1)(b) of the Social Security (Scotland) Act 2018. This was comprised of an ‘uprating policy paper’ and ‘analytical report 2019’, and set out the “options available for uprating devolved social security assistance and the Scottish Government’s proposed approach based on the available evidence”.

In our ‘Uprating Measures Report’ we provided our views on the Scottish Government’s preferred measure for increasing the value of certain forms of social security assistance. We also took the opportunity to set out a longer-term view by exploring options for developing improved approaches to uprating. The Scottish Government’s response was provided in November 2019 . It confirmed the Scottish Government’s intention to use the Consumer Price Index (CPI) for the purpose of uprating social security assistance, at least in the short-term. CPI has been used as the basis for uprating the forms of assistance covered in the draft Regulations.

The draft Regulations include a few ‘tidying’ amendments to earlier Regulations covering Young Carer Grant (YCG) and Funeral Support Payment (FSP) . While clearly it is desirable to make strenuous efforts to avoid the need for such amendments where possible (although, as with the YCG amendment, they may concern a development since the approval of the original Regulations), in the course of establishing a new social security system it is reasonable to expect these may occasionally be necessary from time to time.

As always, SCoSS has carried out its scrutiny role in accordance with Section 97 of the Act; with regard to the Scottish social security principles and any relevant provisions of human rights law; and also with reference to our scrutiny framework.

The draft Regulations had originally been timetabled for referral to SCoSS in December 2019. However, they were formally submitted on 10th February 2020 by the Cabinet Secretary, with a request by officials that we report by 14th February. Therefore, the Commission has only had five working days in which to draft and agree this report. The delay in formally referring the draft Regulations to SCoSS was due to the UK General Election and the subsequent delay to the publication of the Scottish Budget. The Scottish Government did provide SCoSS with an earlier indication of the likely content of the draft Regulations in December 2019, although this did not cover all of the provisions that are contained within the version on which we are reporting.

This delay and the very tight timescales have had inevitable implications for our approach to scrutiny. We were unable to invite officials to a SCoSS Board meeting to discuss the draft Regulations (and clearly, had we wished to consult stakeholders, it would have been impossible). However, Scottish Government officials provided helpful responses, by email, to our questions on the intended policy and legal effect.

As noted in our Uprating Measures Report, the Scottish Government did not consult on its overall approach to uprating, as far as we are aware. Thus, to date, there appears to have been no stakeholder engagement on the topic of uprating. It is true that matters to do with uprating may be technical and, once established, often routine. However, decisions on which indices to use for uprating and decisions not to up-rate – particularly where cumulative over time – can have a significant impact on people’s lives. This may create risks to social security principles (a), (b) and (e). It is therefore important that risks are carefully monitored and that principle (f) – that the social security system should be designed with the people of Scotland on the basis of evidence – is not sacrificed. Moreover, if it is the intention to use uprating Regulations as a vehicle for ‘tidying up’ other Regulations, it will be important to ensure such additions do not cover matters of substance where stakeholder engagement would be beneficial.

Recommendation 1: The Scottish Government should routinely assess whether uprating Regulations contain matters where stakeholders may have an interest and a contribution to make, and ensure adequate time is available for this.