The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022

Annex 2 – Approach to Scrutiny

In keeping with our role to scrutinise social security regulations, this report has provides commentary in connection with, human rights, and the social security principles set out in Section 1 of the Social Security (Scotland) Act 2018[33], as operationalised via Our Charter[34].

Due to the pace at which emergency Regulations were made, the Regulations were referred to SCoSS on the 21 March 2022 and came into force on 22 March 2022, in line with the equivalent reserved provisions. The policy note highlights that the impact of not introducing these regulations would have been that displaced people previously resident in Ukraine arriving in Scotland would be required to satisfy habitual residence and past presence tests which can take up to 6 months, whilst those in the rest of the UK would have access to benefits immediately upon arrival[35].

The speed with which these Regulations needed to be put into place had direct implications for our approach to scrutiny and this report has, therefore, been produced retrospectively. In line with the requirements of section 97(9)(b) of the 2018 Act the Government is required to explain why regulations are laid before SCoSS has completed its scrutiny. This is included in the policy note[36]. SCoSS was supportive of the Scottish Government aims and appreciated the need to act swiftly to support displaced people previously resident in Ukraine. We were, therefore, content to undertake our scrutiny of the regulations retrospectively.

SCoSS was first informed on Thursday 3 March 2022 of the urgent need to legislate. A follow-up meeting was held with the SCoSS Chairperson and lead officials on 8 March 2022 to discuss the latest information available. SCoSS was informed of the need for a further amendment to the Regulations, as part of The Social Security (Miscellaneous Amendment) (Scotland) Regulations 2022, on 10 August 2022. We are grateful for the efforts made by officials to keep us appraised of developments and to answer our questions in what has been a rapidly evolving situation, involving multiple agencies.

This is the second time that SCoSS has been obliged to report after the laying of emergency Regulations. The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021[37] came into force on 15 September 2021 and SCoSS published its scrutiny report[38] on 15 November 2021.

As part of our Afghanistan scrutiny report, in addition to commenting on the specifics of those Regulations, we reviewed the general approach of devolved social security pertaining to any displaced people who come to Scotland. Many of the issues and recommendations we raised in that report thus also apply to these Regulations. We have therefore signposted relevant issues raised in that report throughout this one, as appropriate. In particular, points raised in our analysis that have relevance to these regulations include:

Further analysis of the human rights implications for displaced people can be found in Section 3 of our scrutiny report on the Afghanistan regulations[39].

As the Social Security (Scotland) Act 2018 is currently framed, Ministers are obliged to refer to SCoSS draft Regulations falling under Chapter 2 Part 2 and section 79 of the Act, and SCoSS is obliged to scrutinise and submit them in the form of a report (see section 97). As we observed in our report on the Afghanistan regulations there is still value in our reflecting on any issues within the Regulations, and drawing on any relevant learning as delivery of support in relation to Regulations 1 to 8 is rolled out, in order to identify issues at an early stage. The policy intent will only be realised if the Regulations can be translated into effective delivery. Regulations that on paper appear consistent with the social security principles and human rights may play out in ways that are not. Our comments in this report therefore aim to support the realisation of the Regulations through delivery. In order to better understand the circumstances of displaced people previously resident in Ukraine, and refugees more generally, entering Scotland and the support available to them, SCoSS representatives were pleased to meet and have an informative discussion with the Scottish Refugee Council on 13 June 2022. SCoSS was also pleased to have had the opportunity to learn more about the delivery perspective during one of our regular meetings with Social Security Scotland.

SCoSS would like to express its thanks to the Scottish Refugee Council and Social Security Scotland for the insights offered, which we have drawn upon to inform this report.

08 March 2022 Initial informal discussion with Scottish Government officials
15 March 2022 SCoSS Chair discussion with Chief Executive Social Security Scotland as part of quarterly meeting.
21 March 2022Ukraine emergency Regulations laid in Parliament.
21 March 2022 Draft Regulations referred to SCoSS by the Minister for Social Security and Local Government.
22 March 2022 Ukraine Regulations into force.
24 March 2022SCoSS Board Meeting discussion with officials.
29 March 2022Questions issued to Social Security officials regarding draft regulations.
13 April 2022 SCoSS ad hoc Board Meeting discussion.
28 April 2022SCoSS ad hoc Board Meeting discussion with officials.
13 June 2022 SCoSS and Scottish Refugee Council discussion.
14 June 2022SCoSS and Social Security Scotland discussion.
4 July 2022SCoSS ad hoc Board Meeting discussion.
4 August 2022Report considered as part of SCoSS Board meeting.
10 August 2022SCoSS board informed of requirement to make a further amendment to the Regulations.
19 August 2022SCoSS board discussion with officials on approach to further amendment to the Regulations.
23 August 2022Ad hoc meeting to discuss report, observations and recommendations.
September 2022 (TBC) Further amendment to be referred to SCoSS by the Minister for Social Security and Local Government.
TBCLaying of The Social Security (Miscellaneous Amendment) (Scotland) Regulations 2022.
TBCFinal Scrutiny report laid by SCoSS.
TBCSCoSS website publication of report.
TBCFeedback to stakeholders on their input.

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