Scottish Parliament, 3 December 2024

146 contributions from 29 members. The official report.

Time for Reflection

Alison Johnstone (Presiding Officer, Lothian)

The first item of business this afternoon is time for reflection, and our leader today is the Right Rev Frank Dougan, Bishop of the diocese of Galloway.

The Right Rev Frank Dougan (Bishop of the Diocese of Galloway)

Good afternoon, and thank you, Presiding Officer, for this opportunity.

This is not my first debating chamber. In a previous life I was a convener of debates at Glasgow university union. Some of you will know that the debating chamber in the GUU is modelled after the House of Commons—so it is a bear pit. It is designed to be like that: a chamber where you face off against your opponents; an adversarial place.

This room was designed differently. One description that I read says that this layout

“is intended to blur political divisions and principally reflects the desire to encourage consensus amongst elected members.”

Would it be unkind of me to ask how that is going?

Let us be honest: how we behave towards each other is not going to be principally driven by the shape of the room. We should be treating each other with dignity and respect—the very words that were sent to me in the guidance notes for this address—and dignity and respect come from something deeper. They are attitudes that can only be rooted in a deep-seated belief in the value of every single person. That means that, contrary to what we might often say, respect is not something that needs to be earned; it is something that everyone is owed because of their innate dignity as a human being.

For Christians, and others, it is also rooted in our belief that we are made in the image and likeness of God; that God has loved every single one of us into existence. We have a dignity that no one can remove and that no one should disregard.

I came across a beautiful line recently that sums up how we should welcome the God of love:

“Receive him with open, outstretched hands, for it was on his own hands that he sketched you. Receive him who laid your foundations on the palms of his hands.”

That is why I believe in the dignity of every person, because our names are written on the palms of his hands. Some might agree; some will not. However, we can all agree that how we treat each other does not depend on how the seats are arranged but on the fundamentals of where we believe a person’s value lies.

Business Motion

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is consideration of business motion S6M-15709, in the name of Jamie Hepburn, on behalf of the Parliamentary Bureau, on changes to the business programme.

Motion moved,

That the Parliament agrees to the following revision to the programme of business for Tuesday 3 December 2024—

delete

5.00 pm Decision Time

and insert

5.20 pm Decision Time—[Jamie Hepburn.]

Motion agreed to.

Topical Question Time

Tess White (Conservative, North East Scotland)

To ask the Scottish Government what assessment it has made of capacity in the NHS, in light of the critical incident declared by NHS Grampian on 28 November 2024. (S6T-02222)

Neil Gray (Scottish National Party, Airdrie and Shotts)

Capacity continues to be challenged across NHS Scotland as we go into winter, as illustrated by the recent critical incident. Supported by NHS and social care partners, NHS Grampian came through that incident as a joined-up system, keeping patient safety paramount. I would like to thank all staff colleagues for their work in doing so.

National improvement and preventative action to maximise capacity is reflected in the winter preparedness plan, which the Government published with the Convention of Scottish Local Authorities. Building on previous experience, the plan helps to ensure that people receive the right care in the right place, while targeting additional investment and focusing on the wellbeing of our workforce.

Tomorrow’s budget will further bolster our plan for the health service.

Tess White (Conservative, North East Scotland)

That rolls off the tongue.

In a damning indictment of the situation leading up to last week’s critical incident, senior NHS Grampian clinicians sounded the alarm in August, stating:

“There is no evidence to support any planned improvement work or capacity changes that will meet the impending increase in demand seen over October and sustained over the winter period.”

The winter crisis has hit health boards, and it is abundantly clear that the health secretary’s winter preparedness plan is not worth the paper it is written on. Today, Audit Scotland has warned that the Scottish National Party Government has “no clear plan” for wider NHS reform. Lives are at risk.

What is the Scottish Government doing now, with health boards across Scotland, to stave off the looming Christmas chaos in the NHS and to protect patients and staff from serious harm?

Neil Gray (Scottish National Party, Airdrie and Shotts)

We have been working with NHS Grampian for some time. Tess White has been raising the situation of ambulance stacking at Aberdeen royal infirmary, and we have been working with NHS Grampian to produce a robust improvement plan that can meet the demand in the system and that can be backed with the requisite resource to relieve the pressure. The situation serves to highlight why we need reform and improvement.

The discussions around reform and improvement, and around how we shift the balance of care from the acute system into primary and community care, have been absolutely clear and are part of the national conversation that we have embarked on.

Tess White (Conservative, North East Scotland)

Those are just words. The British Medical Association in Scotland has described the diversion of ambulances away from Aberdeen royal infirmary as “a major warning light” for the NHS. The reality, however, is that this dire situation will not improve while NHS Grampian has the lowest bed base per head of population in Scotland. Aberdeen royal infirmary has been operating above capacity since 8 September. Increasing capacity and the bed base in NHS Grampian is contingent on the delivery of the delayed Baird and ANCHOR projects. With the service lurching from crisis to crisis, patients and staff have absolutely had enough.

What is the cabinet secretary going to do differently—I emphasise “differently”—after this central belt-obsessed SNP Government has been short-changing NHS Grampian for years?

Neil Gray (Scottish National Party, Airdrie and Shotts)

There are a number of reflections there that I would seek to remark upon. First, I am sorry for everybody in Grampian who had their treatment interrupted over the weekend. We worked with NHS Grampian to get through the critical incident, and it was able to do that on Saturday. I pay tribute to all the staff across the whole system in Grampian who worked to overcome the situation. That was great. Secondly, I am a health secretary who originates from Orkney, and I am surrounded by two ministers who represent rural constituencies, so the accusation about us not representing the entirety of Scotland is unfounded.

Going forward, it is important that we listen to clinicians, staff, trade unions and, of course, patients and academics about how reform can ensure service improvement. We are currently embarked upon that work. However, the areas and principles that I set out clearly in June will come forward through the budget tomorrow. It is about shifting the balance of care, getting through the Covid-related backlog in planned and scheduled care and relieving the pressure within social care so that delayed discharge can be reduced. Those clear fundamentals are what we are embarked upon right now.

Kevin Stewart (Scottish National Party, Aberdeen Central)

At a meeting that I attended on Friday, which the cabinet secretary was also at, the chief executive of NHS Grampian said that

“tons of lessons have been learned”

about the situation, but it seems that lessons have not been learned or staff listened to during the past few months, in the lead-up to the declaration of the critical incident.

What will the cabinet secretary do to ensure that lessons are learned and acted on, and that staff are listened to for the benefit of all patients?

Neil Gray (Scottish National Party, Airdrie and Shotts)

Kevin Stewart is absolutely right that lessons must be learned. The immediate priority following the announcement of the critical incident was to get through it. I met the chief executive of NHS Grampian on Thursday night to discuss matters so that I could be assured about its plan of resilience to get through the critical incident. I asked that MSPs and MPs be given a briefing on Friday at lunchtime to discuss how that was going to be taken forward, and I am grateful to Kevin Stewart and other colleagues from the north-east for participating in that.

Mr Stewart is absolutely right that lessons must be learned. After the process of coming through the weekend, it is now time for an intensive focus on developing a plan that is robust and that ensures that capacity is brought into the system.

Tess White referenced the Baird and ANCHOR set of projects, which can make a difference to flexibility in the bed base in Grampian. My officials and I have been liaising daily with NHS Grampian to clear the incident. We will now direct our time to a joint and urgent focus on a sustainable plan. That will mobilise all the learning and available resources, and it will include listening to clinical and improvement support staff not just from NHS Grampian but from the centre for sustainable delivery, who visited the board on Monday as part of our intensive progress to resilient services. I expect MSP colleagues such as Kevin Stewart to be kept updated on that progress.

Alison Johnstone (Presiding Officer, Lothian)

There is much interest in the question, so I am keen to allow in as many members as possible. If we could be concise, that would be appreciated.

Michael Marra (Labour, North East Scotland)

To see a hospital declaring a critical incident this early in the winter is a matter of significant concern for my constituents in Aberdeen. Was the cabinet secretary warned that that might be a possibility? Can he assure me today that all possible capacity within the ARI was being utilised? Can he give assurances that, at the point when the critical incident was declared and patients were being treated in corridors, all standard and unfunded beds in the hospital were being utilised?

Neil Gray (Scottish National Party, Airdrie and Shotts)

The situation in Aberdeen royal infirmary was critical at the end of last week. There was far too much corridor care. I do not want to see corridor care happening anywhere. Everybody understands the need for that to be resolved.

There was very serious pressure on Aberdeen royal infirmary on Wednesday night into Thursday, and it was clear that an issue needed to be resolved.

I regret very much the fact that the critical incident happened, not least for the patients and staff who were involved. In response to Michael Marra’s point, the important thing now is to ensure that all possible capacity and beds, not just in Aberdeen royal infirmary but in NHS Grampian, are being utilised.

As I said in response to Kevin Stewart, we will be working with board colleagues and the centre for sustainable delivery to ensure that a plan comes forward that means that we have the capacity in place and the beds available to respond to such a situation. It is not just about acute beds; we will also make sure that there is resilience in community, primary and social care, so that the need for people to present at hospital at all is avoided as far as possible. That is my expectation of NHS Grampian’s improvement plan.

Douglas Lumsden (Conservative, North East Scotland)

Does the cabinet secretary have confidence in the NHS Grampian board?

Neil Gray (Scottish National Party, Airdrie and Shotts)

Yes, I do. I believe that the board has been working through incredibly difficult circumstances. As I said in response to Michael Marra, I regret the fact that the incident happened, not least for the patients and staff who were involved.

As I said in response to the member’s question at the meeting on Friday, now that we are through the immediate critical incident, it is important that our attention turns to ensuring that the model of care and service delivery in NHS Grampian is robust and has the capacity to avoid such situations happening again.

Maggie Chapman (Green, North East Scotland)

I put on record my thanks to all those who worked so hard to deal with the critical incident at the ARI last week. We know that medical and surgical procedures will need to be rescheduled as a consequence of it, which will put further strain on a system that already has no spare capacity. What assurances can the cabinet secretary provide to those patients who have already had procedures delayed and to others who fear that they, too, will face delays if such a thing happens again in the coming winter months?

Neil Gray (Scottish National Party, Airdrie and Shotts)

Not all scheduled care appointments at the ARI were cancelled. Many specialties, including cancer specialties, were given priority on Thursday and Friday. Nevertheless, I recognise Maggie Chapman’s point.

I further underline my thanks—which I have given in a number of answers—to the staff of the ARI, who have performed above and beyond in order to overcome the critical incident and who will undertake the rescheduling of appointments. I fully expect NHS Grampian to reschedule those appointments and to ensure that it is responsive to care needs. That will be done on the basis of clinical decision making, as the member would expect.

I am also very grateful to the Scottish Ambulance Service and neighbouring regional boards for the support that they provided in overcoming the initial incident and for the work that they continue to do to support NHS Grampian.

Douglas Ross (Conservative, Highlands and Islands)

The critical incident that was declared at the Aberdeen royal infirmary had a huge impact on patients in Moray, because so many of those attending Dr Gray’s hospital in Elgin are transferred through to the ARI—travelling, of course, along the A96. What is the cabinet secretary doing, and what does he expect from NHS Grampian, in order to see more services and specialisms delivered in Elgin, at Dr Gray’s hospital, in order to save Moray patients having to travel and to take some pressure off the ARI?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I recognise the impact that the situation has had on Dr Gray’s hospital and on Mr Ross’s constituents in Moray. I also recognise the distance that people have had to travel between Dr Gray’s hospital and the ARI in order to access services, as well as the travel involved for those who were diverted from the ARI to Ninewells or Raigmore. I recognise the need for us to ensure that we are informed, where possible, by clinical advice as to the best location for services.

Service delivery is an issue for us not just in rural communities but more widely with regard to the reform and improvement agenda. We need to consider where it is clinically safest to provide services and where we have the necessary capacity to deliver services to optimal levels in order to meet the needs of our constituents. We also need to balance that with the need to provide those services as close to home as possible.

As I said in my answer to Tess White, I am originally from Orkney, so I understand what it means to travel to access services, and I recognise the difficulties faced by Mr Ross’s constituents and the constituents of many other members. Those difficulties are why reform and improvement discussions need to be informed not just by clinicians but by patients, to ensure that we get the services right for them.

Alison Johnstone (Presiding Officer, Lothian)

That concludes topical question time.

Urgent Question

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is an urgent question.

Brian Whittle (Conservative, South Scotland)

To ask the Scottish Government what its response is to the findings of Audit Scotland’s report, “NHS in Scotland 2024: Finance and performance”, that the Scottish Government has no clear plan to deliver its NHS vision.

Neil Gray (Scottish National Party, Airdrie and Shotts)

I thank Audit Scotland for its “NHS in Scotland 2024: Finance and performance” report. I agree that reform is essential—I already acknowledged such in my vision for reform, which I set out to Parliament in June. I stated then that, given the scale of the growing demand that our health and social care services face, major reform is required to ensure sustainable health and care services.

We are already developing and making good progress on new models of care and exploring how we can further improve productivity through innovation, technological advancements and workforce models that will respond directly to the challenges in our system.

This year, we are providing more than £19.5 billion for health and social care, but we are determined to continue to improve our health service. The budget that we set out tomorrow will throw the weight of the Government behind performance improvement and ensure that we can tackle the challenges in our health service.

Brian Whittle (Conservative, South Scotland)

This is the second time in nine months that Audit Scotland has warned the Scottish Government that Scotland’s NHS is failing on its watch, with no clear long-term plan and unsustainable spending. We have the worst record on accident and emergency waiting times, one in six Scots is on an NHS waiting list, we have the lowest life expectancy in western Europe and we have record drug and alcohol deaths.

We were promised action on the mental health crisis, but this Government has slashed £20 million from the budget, and we were promised an end to delayed discharge, but it is at record levels. The list goes on and on. Limitless promises bring little change. There is ever-greater spending, but ever-poorer outcomes. There are endless directives, but no direction. Change has got to come, and the first step in making that change is recognition that it is needed. Will the cabinet secretary accept that his Government’s attempts to fix the NHS are not working?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I thank Brian Whittle for his question.

I have already said that I accept and agree with Audit Scotland that reform and improvement are needed. I am not just saying that today—I said that in June, and when I first took office in February. We have not been waiting to see improvements and reform take place; rather, we are in a national conversation with our clinicians, staff, trade unions and patient organisations to inform how we will shift the balance of care.

I think that we are all clear—I am certainly clear—on the direction of travel that we need to go in. As I set out in response to a topical question earlier, it is about shifting the balance of care from the acute sector into primary and community care services and moving where we deliver care closer to people’s homes, for the reasons that Mr Ross set out in his question. We are all in agreement on that, so we now need to make sure that we get on and deliver it.

Brian Whittle (Conservative, South Scotland)

I have heard that answer every single year that I have been in this Parliament. If I sound angry, it is because I am, and because the public are, too. They are tired of hearing about record investment or by what metric Scotland is doing better than England this week. They want an end to 8 am queues on the general practice surgery phone line; they want to know that the waiting time for treatment will not be measured in months or years; and they want to be confident that they have a Government with a credible, focused and achievable plan to give them back a sustainable NHS.

Scotland needs a long-term strategy or, at least, a clear strategy. The solutions are not a mystery, and we have been talking about them in the chamber for as long as I have been here. They are reduction in preventable illness, investment in technology to speed up treatment, and reform to get rid of unnecessary bureaucracy and wasteful spending.

Does the cabinet secretary agree with the Scottish Conservatives that it is time for his Government to focus on and deliver the meaningful reform and strategy that are needed to improve outcomes for patients and healthcare professionals, and to give Scotland back the national health service that it needs and deserves?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I say, with respect, that we are doing just that. We have set out £30 million of investment this year, which is generating tens of thousands of new appointments to get waiting times down. Last week, I announced further investment for general medical services, recognising the investment that is required to shift the balance of care that I am talking about and for the work on adopting greater innovation. That is already happening with the likes of the ANIA—accelerated national innovation adoption—programme and the work in Government of the chief scientific officer. There are examples of good work happening across Government and our health service to deliver the aims that I have already set out, and tomorrow’s budget will include even greater investment to ensure that we can continue to deliver them.

Alison Johnstone (Presiding Officer, Lothian)

Before we move to supplementary questions, I note that there are many requests. I would be grateful if we could keep questions and responses concise, such is the level of interest.

Jackie Baillie (Labour, Dumbarton)

Audit Scotland said last year that the Scottish National Party had “no vision” for the NHS and was not delivering, and this year it is forced to repeat itself. Not only does the SNP have no clear vision for the NHS, it has no plan. After 17 years, the SNP has weakened the NHS—there has been no effective reform. John Swinney has been at the helm of the Government either as finance secretary or as Deputy First Minister. He is not an innocent bystander. This is a crisis of the SNP’s making.

Record resources are now available, but they need to be accompanied by reform and political leadership. Talk is cheap, and action from the SNP is missing. Is it any wonder that the people of Scotland have lost trust in this Government to deliver for staff and patients in our NHS?

Neil Gray (Scottish National Party, Airdrie and Shotts)

As I said in response to Brian Whittle, we have already started investments to drive down waiting times and to shift the balance of care into primary care. I set out our vision for a health service very clearly to Parliament in June, and we are now in a process of conversation with patient groups, medical professionals, clinicians and others about how we will ensure that we deliver on that.

Tomorrow’s budget will set out a clear direction of travel for how we will invest in the NHS in Scotland. The challenge for Labour members is whether the resources to go into the health service will be supported, or stopped because they vote down the budget.

Clare Haughey (Scottish National Party, Rutherglen)

I refer members to my entry in the register of members’ interests. I am employed as a bank nurse by NHS Greater Glasgow and Clyde.

We can all agree that reform is crucial to ensuring that our NHS thrives. What steps is the Scottish Government taking to progress reform and improvements, and what engagement is under way with key stakeholders?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I have set out that we are in a conversation with clinicians, trade unions, patient groups and academics on how we can make sure that we deliver on the vision that we have set out, which seeks to shift further the balance of care from hospital-based services into the community. We are not waiting for the outcome of that conversation. As I have already set out, we are investing in relieving the blockage on waiting times that built up during the pandemic. We have started to make that investment, and further investment will come in the budget.

We are investing more in primary care services, as was evidenced by the money that I was able to allocate to general medical services last week.

We will continue to work with local partnerships on relieving the pressure that has been built up in social care and which is delivering higher rates of delayed discharge, which is unacceptable. We need to see further reform in social care and there is a conversation to be had across the Parliament about how we will realise the ambition and expectations that service users have of us in delivering national standards for those who are in social care. That will come through the National Care Service (Scotland) Bill.

Edward Mountain (Conservative, Highlands and Islands)

The brutally honest Audit Scotland report shows the ineptitude of the Scottish Government when it comes to our health service. Given that NHS Highland has to borrow £50 million a year to keep afloat, will the Government ensure that it continues to get that money, or will it just accept that elective surgery will have to be binned until the board has enough money to do the job?

Neil Gray (Scottish National Party, Airdrie and Shotts)

In this year’s budget, we have allocated a real-terms 3 per cent increase to health boards to deliver local services. I recognise that, even with that, pressures are being felt across the country: NHS Highland is one example of where there are resource pressures that need to be contended with.

In the budget that will be announced tomorrow, we plan to continue our record of investment in our health service and ensure that our health boards are resourced to meet the needs of the people whom they serve.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

We note from the report, and others like it, that our NHS staff are overwhelmed. They are on their knees and hospital activity levels have not recovered. Today, we learned that more people are stuck in hospital than ever before because the care system is broken. There are more than 2,000 beds that cannot receive elective surgical patients and admissions from accident and emergency departments. That is why our ambulances are stacking up outside our hospitals. With the health and social care system going backwards by any metric of the Government, will the cabinet secretary admit that the three-year-old NHS recovery plan needs to be completely rewritten?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I accept that we need reform and improvement in our national health service. We have set that out in response to Audit Scotland’s report today, and we have clear areas of investment and prioritisation that will ensure that we will continue to see waiting times come down, an improvement in accident and emergency waiting times and an improvement in delayed discharge rates.

We also need to see reform of our social care system, which is why we made our proposals in a national care service bill. Those who stand in the way of social care reform need to answer to service users who are demanding that reform and to say, if not that reform, what it will be.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Scotland’s health service has a high rate of sickness absence. For example, 10,000 days of work have been lost at NHS Borders since 2020, and that is just for mental health reasons. Staff absences are putting pressure on other staff and wider services. Why is your Government failing those staff and the NHS?

Alison Johnstone (Presiding Officer, Lothian)

Always speak through the chair, please.

Neil Gray (Scottish National Party, Airdrie and Shotts)

I, of course, recognise the pressures that many staff in the NHS and across public service delivery face. I recognise the great demands on them, which is why we have sought to bring forward pay deals that support them and reforms to their contracts, including a reduced working week, to which I remain committed, so that they have better support in the workplace.

The best way of improving the situation for our staff, however, is to have better performance. The current situation with regard to accident and emergency waiting times and the blockages in our hospitals because of delayed discharge and social care provision are putting pressure on our staff. That is why the investments that we will make through the budget tomorrow are designed to support better performance and why it is important that Parliament supports the measures that we will take forward.

Emma Roddick (Scottish National Party, Highlands and Islands)

It is crucial that, when we discuss the current state of Scotland’s NHS, we acknowledge the significant increase in demand in the aftermath of Covid, which is still having an impact. What action is the Scottish Government taking to tackle pandemic backlogs and to reduce waiting times for folk across the country?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I recognise the incredible work that staff up and down the country have done to respond to the pressures that we face, and I am incredibly grateful to them for that. I recognise the challenges that staff face, whether we are talking about staff in NHS Grampian responding to a critical incident or, in Ms Roddick’s constituency, about their delivery of services in rural and island communities.

To answer directly Ms Roddick’s question on the investment that we are making, we have provided £30 million this year to address Covid-related elective surgery and diagnostic procedure backlogs. We will continue to invest in areas where we can see a reduction in waiting times and an increased amount of activity so that the backlogs reduce.

Sharon Dowey (Conservative, South Scotland)

Healthcare accounts for 40 per cent of the Scottish budget, yet many health board areas, including my own in Ayrshire and Arran, often feel short-changed by the NHS funding formula. Does the cabinet secretary have any intention of reviewing the NHS Scotland resource allocation committee—NRAC—funding formula to ensure that resources are distributed fairly?

Alison Johnstone (Presiding Officer, Lothian)

Cabinet secretary, please respond with regard to where the question might refer to the report that is under discussion.

Neil Gray (Scottish National Party, Airdrie and Shotts)

Funding is directly relevant to ensuring that we overcome the pressures that Audit Scotland has referred to, but I am conscious of the need to ensure that the spend that we make is effective in dealing with the issues with which we are presented. The Cabinet Secretary for Finance and Local Government will set out in greater detail tomorrow how we intend to do that through the budget.

Alison Johnstone (Presiding Officer, Lothian)

That concludes the urgent question.

Point of Order

Michelle Thomson (Scottish National Party, Falkirk East)

On a point of order, Presiding Officer. I would like to raise a concern about the admissibility of amendments that were lodged ahead of today’s stage 3 proceedings on the Social Security (Amendment) (Scotland) Bill. Amendments 21 and 22, on winter heating assistance, which were lodged by Paul O’Kane on behalf of the Labour Party in Scotland, would make a significant demand on the Scottish budget by seeking to extend, by statute, winter heating assistance to some individuals of pensionable age. That would require the Scottish Government to cover the costs of the United Kingdom Government’s cut to the winter fuel payment.

My concern is that the amendments were deemed admissible but without giving any regard to the financial memorandum that was published to support scrutiny of the bill. I therefore seek your guidance on how we can better assess the financial impact that such blatantly political amendments may have on legislation, giving due regard to how they interact with financial memoranda.

Alison Johnstone (Presiding Officer, Lothian)

The Parliament has agreed a financial resolution for the bill. The fact that individual amendments have cost implications of that nature does not prevent them from being considered during stage 3 proceedings if they meet the admissibility criteria for amendments, as provided for by standing orders, which those amendments did.

Business Motion

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is consideration of business motion S6M-15685, in the name of Jamie Hepburn, on behalf of the Parliamentary Bureau, on a stage 3 timetable for the Social Security (Amendment) (Scotland) Bill.

Motion moved,

That the Parliament agrees that, during stage 3 of the Social Security (Amendment) (Scotland) Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limits indicated, those time limits being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 to 3: 50 minutes

Groups 4 to 6: 1 hour 25 minutes

Groups 7 and 8: 1 hour 45 minutes.—[Jamie Hepburn]

Motion agreed to.

Social Security (Amendment) (Scotland) Bill: Stage 3

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is stage 3 proceedings on the Social Security (Amendment) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament bill 35A—the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for about five minutes for the first division of stage 3. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons, or enter RTS in the chat, as soon as possible after the group has been called. Members should now refer to the marshalled list of amendments.

Section 1—Childhood assistance

Alison Johnstone (Presiding Officer, Lothian)

Group 1 is on childhood assistance. Amendment 2, in the name of the cabinet secretary, is grouped with amendment 4.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

At stage 2, we introduced an amendment to enable late applications for a number of benefits that are delivered under the Social Security (Scotland) Act 2018. Amendment 4 will bring best start grants into line with that stage 2 amendment. We did not originally intend to introduce the same changes to the early years assistance powers, as we intend to repeal them and deliver best start grants under the new childhood assistance powers in due course. However, following further consideration, we have decided that what I have set out is the best approach to ensure that there is an option to include provision on late applications for best start grants before we repeal the early years provisions. That will ensure consistency with the approach that is taken for other devolved benefits and will ensure flexibility over when we can allow late applications for best start grants.

Amendment 2 makes a small consequential change to one of the headings for the childhood assistance provisions so that it reflects the amendments that were made to eligibility criteria at stage 2.

I ask members to support the amendments to ensure a consistent approach to late applications and to ensure that the title of chapter 1 of the new schedule on childhood assistance accurately reflects its scope.

I move amendment 2.

Paul O'Kane (Labour, West Scotland)

As these are my first remarks during today’s proceedings, I put on record my thanks to everyone who has been involved in helping to get the bill to this stage.

I simply note that Scottish Labour will support the amendments in the group on childhood assistance. We welcome the technical fixes to the bill and, in particular, amendment 4, which will ensure the fair treatment of late applications.

Alison Johnstone (Presiding Officer, Lothian)

I call the cabinet secretary to wind up.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

I have nothing to add.

Amendment 2 agreed to.

After section 2

Alison Johnstone (Presiding Officer, Lothian)

Group 2 is on winter heating assistance. Amendment 3, in the name of Jeremy Balfour, is grouped with amendments 21 and 22.

Jeremy Balfour (Conservative, Lothian)

I remind members of my entry in the register of members’ interests, which shows that I am in receipt of higher-rate personal independence payments.

I think that it was Harold Macmillan who said, “Events, dear boy, events.” Amendment 3 has been overtaken by events. A similar amendment was debated at stage 2 and was voted down on the basis of the convener’s casting vote.

Amendment 3 recognises the financial situation that the Scottish Government is in but, at the same time, recognises that the most vulnerable people in our society need extra help. This is perhaps not for today, but the Parliament needs to truly debate the issue of targeted benefits versus universal benefits. With the financial situation as it is, whoever is in Government over the next number of years will have limited resources. Surely the point of benefits is to target them at the most vulnerable in our society. We already do that by awarding a similar type of payment to children who are under 16 and are on higher rates.

This benefit would have given those who are on the higher rate of pension age disability allowance or attendance allowance that extra payment to meet their fuel payments in recognition of the fact that most of them stay at home all the time and thus have extra heating costs. However, as I said at the start, I recognise that things have moved on, so I will not move the amendment in my name today.

I move to amendments 21 and 22 in the name of Paul O’Kane, which clearly prompted the statement by the cabinet secretary last Thursday, in which she went some way towards rectifying the situation that the UK Government has left us all in. However, her suggested way forward, which would come into force in November next year, would not give the same help to every pensioner; some are given a lesser amount of money. That is a concern. Certainly, my colleagues and I have received a number of emails—as I am sure have members across the whole chamber—to the effect that, without that extra payment, whatever is discussed and decided today, there will be people this winter who will be cold in their homes and need that help. I am disappointed that the UK Labour Government took that away. We should not be debating that this afternoon. However, we are where we are.

I look forward to hearing what Paul O’Kane, who lodged the amendments, has to say. I would also be interested to hear from the cabinet secretary what would happen if we were to introduce the regulations that she suggested last Thursday and they came into law, and then Westminster, at any point, reinstated the benefit that was already there? Would we then be paying two lots of benefits to pensioners? How would they fit together? More to the point, how would they be administered?

I look forward to hearing the contributions from others but, at this moment, we are minded to support amendments 21 and 22.

I move amendment 3.

Alison Johnstone (Presiding Officer, Lothian)

I call Paul O’Kane to speak to amendment 21 and other amendments in the group.

Paul O'Kane (Labour, West Scotland)

We are now at stage 3 of the bill, having had a debate at stage 2 about the nature of pension age winter heating payment. Those who followed the stage 2 process, when Mr Balfour lodged amendments on the topic, will know that I was very clear in my remarks that it was important that Parliament had the chance to debate the nature of the fully devolved version of pension age winter heating assistance. That is what we are trying to do today, in setting out an opportunity to talk about how that benefit should look going forward.

My amendment 21 simply seeks to put the universal nature of pension age winter heating payment on a legislative footing. Again, I refer to my comments at stage 2, when I said that it was worthy of a debate and a discussion across the whole Parliament. Amendment 21 requires Scottish ministers to bring in new regulations by the end of next November to ensure that all pensioners are entitled to some form of assistance from winter 2025-26. I have consistently said throughout the process that we have to look at pension age winter heating assistance in Scotland in the context that we are in.

I recognise that I have asked the cabinet secretary a number of times what her plans are for this winter. It is clear that a last-minute decision was made and announced last Thursday about what will happen this winter, including in relation to the £41 million—which I have referenced throughout the process—from the household support fund, which will rise to £82 million next year. I recognise the Government’s decision to spend that money more broadly.

We offered a package of measures that could have been put in place this year, but those have not been undertaken. The Northern Ireland Executive, for example, has been working on how to use that money this year to support winter heating assistance and move to a £100 payment from the household support fund, but that has not happened here in Scotland.

The Scottish Government has repeatedly said that it supports universal payments but, as I have been told by the cabinet secretary and by others in the chamber, talk is cheap, and it will stay cheap unless the payment that we are discussing is put on to a legislative footing.

As we have now learned from various sources, the commitment that was made on Thursday was rushed and thrown together. There is real concern that, although an announcement was made here, there is no legislative foundation for it. The devolution of pension age winter heating payment surely gives us an opportunity to set out in statute how that payment will continue. It is only fair that we have this debate here today and take the opportunity to vote on that new devolved benefit and put it on a legislative footing.

Let us be honest: the commitment that came from the Government, late in the day, was possible only because of the record block grant that has been provided following the UK budget. [ Interruption. ]

Alison Johnstone (Presiding Officer, Lothian)

Let us hear Mr O’Kane.

Paul O'Kane (Labour, West Scotland)

They do not want to hear this.

Despite our discussion of and debate about the issue over many months, it has taken the cabinet secretary until now to confirm what she will do with a new devolved payment in future and also what she will do now that she knows that the Barnett consequentials are there.

The cabinet secretary has been telling me for months that she cannot do anything because she does not know what the budget will be, that she cannot base the budget on

“a wing, a prayer and a promise”,—[Official Report, 3 October 2024; c 44.]

that she did not know that there would be £41 million this year and £82 million next year or what she would do in future. The UK budget has made things clearer, and that is why I have lodged amendment 21.

I appreciate that the Scottish National Party does not want to take the opportunity to bring Parliament together to look at the future of this devolved benefit and to put it on a legislative footing. As I said at stage 2, there is an opportunity to ensure that we have a discussion about what pension age winter heating assistance should look like.

My amendment 22 shows that there is an opportunity look at how we do that in future. We know that receipt of pension credit is the criterion for the delivery of winter heating assistance. In her announcement last week, the cabinet secretary said that anyone whose income takes them above pension credit level will receive £100. There is an opportunity to look at how we might do things differently in Scotland, where we have a devolved payment. At stage 2, I raised comments that we had from the Poverty and Inequality Commission and others, who have pointed to the need to make a fairer system so that those who have a higher income or pension do not receive money that they are not entitled to.

Maggie Chapman (Green, North East Scotland)

It sounds as if Paul O’Kane is coming to the end of his remarks, so I ask him to be clear about amendment 22, which claws back money. Does that mean that winter heating assistance would not be a universal payment?

Paul O'Kane (Labour, West Scotland)

I am about to talk about amendment 22, which provides a power for Parliament to consider, by using secondary legislation, whether it wants to create a mechanism by which it could claw payments back from those who have higher incomes.

One reason why I lodged amendment 22 comes from the evidence that was given by the Poverty and Inequality Commission regarding the original consideration of pension age winter heating assistance. That evidence set out how the system could be fairer if a universal benefit was paid but there were options, for example through the tax system or by other methods, to take money back if required. We know that many people choose not to use their winter heating allowance or choose to give it back. The Government’s own Poverty and Inequality Commission, among others, laid out those options.

Amendments 21 and 22 simply seek put that matter into the bill, so that we have legislation for what the Government has said that it wants to do and so that we have the option to create a claw-back mechanism by using secondary legislation, if that is what we wish to do.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

Will the member accept an intervention?

Paul O'Kane (Labour, West Scotland)

I am concluding and do not intend to take the intervention because there will be opportunities for further contributions.

As I said, there is an opportunity for Parliament to come together on this issue and to put into statute something that I think that we all support.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

Amendment 3, in the name of Jeremy Balfour, is focused on expanding eligibility for winter heating assistance via the winter heating payment to people on the higher rates of pension age disability payment and attendance allowance. Conversely, amendments 21 and 22, in the name of Paul O’Kane, suggest removing altogether our ability to target payments at people who are in receipt of relevant benefits and would allow for all or part of the payment to be recovered when the income of the individual in receipt of the payment, or the income of anyone living with them, exceeded a certain amount.

On 28 November, I announced that the Government would deliver a £41 million package of support for our pensioners this winter and that we would deliver universal support to pensioners through our new pension age winter heating payment from next winter, which includes a new £100 payment that is not available elsewhere in the UK. That will provide guaranteed support to around 900,000 people who will miss out this winter due to the UK Labour Government’s decision to restrict winter fuel payment eligibility. It means, for example, that people on disability benefits who are above the income threshold for pension credits will now receive support.

Our policy includes being able to focus on people who are in receipt of low-income benefits to ensure that those who are least able to afford increasing energy bills over the winter months—and they are increasing—can be identified and will receive a higher level of support.

It is surprising, if I can put it like that, to see Mr O’Kane present a proposal that could prevent a higher level of support from being paid to those who, through receipt of a low-income benefit, are identified as having a higher level of need. Many of his remarks were based on the requirement for a legislative footing; I therefore point him to section 30 of the 2018 act, which provides a legislative footing for winter heating payments. It is unclear from the drafting of amendment 21 whether the ability to target assistance in that way would be removed, and removing our capacity to easily focus support on those who are most in need is concerning.

As soon as the UK Government made its announcement to cut winter fuel payments from many pensioners, I committed to continuing to review eligibility for pension age winter heating payment, and we have delivered on that commitment.

I thank Mr Balfour for his on-going interest in the topic, which he has raised with me in the many discussions that we have had. Although we did not necessarily agree on the solutions, I thank him for his time.

With reference to what would happen if the UK Government was to change its mind—there is still the opportunity for it to do so—that would change the block grant adjustments that the Scottish Government would receive, which would, in part, assist the Scottish Government in mitigating any UK Government cuts in that area.

I reached out to Mr O’Kane last week to explain the difficulties with the proposals that he has lodged in terms of operational complexity and flaws in drafting. Unfortunately, I did not receive a reply, so let us go through some of that now.

Paul O'Kane (Labour, West Scotland)

The cabinet secretary will recall that I raised these issues at stage 2 and suggested that there would be an opportunity for a debate and further discussion in the chamber at stage 3. I do not think that it is fair to characterise me as not wishing to engage.

I note that the cabinet secretary brought her statement on energy costs to the chamber on Thursday with less than 10 minutes’ notice to members. She never mentioned this to me previously, so I do not think that what she has said is in the spirit of trying to find consensus.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

It is disappointing that Mr O’Kane did not take up that invitation, because I would have gone through the flaws in the system. However, I am more than happy to do so in this public setting today.

Mr O’Kane’s amendment 21 would require expensive and time-consuming technical development to implement, with development costs alone potentially running into tens of millions of pounds. I am sure that we can all think of better ways to spend that money. Some of what would be required to implement the amendment—particularly the links with the Department for Work and Pensions and His Majesty’s Revenue and Customs—would be so complicated that it might in fact not be possible. It certainly would not be possible before November 2025. For example, it is not clear from the amendment how Social Security Scotland could assess household income, because the sort of data feeds that we would require simply do not exist.

Therefore, let us be clear that what Mr O’Kane is proposing today is a delay to supporting pensioners. Even if the technical hurdles could be overcome with HMRC, it is forecasted that hundreds of additional seasonal staff would be required in Social Security Scotland to deliver a one-off payment, which we do not consider an efficient use of the agency’s resources. We must remember that those additional staff would have to be recruited and trained every year at continued expense.

In addition, it is not clear how Mr O’Kane’s amendments—particularly amendment 22—would work alongside the existing framework of the 2018 act. For example, under the act, Scottish ministers can recover payments only if the individual is not entitled to the assistance that they have been given or is entitled to less, and the individual is liable to repay the overpayment. It is not clear how, under the act, someone could be entitled, but later be subject to a decision that they are not entitled to the same payment. Let us be clear that amendment 22 talks about giving money to eligible pensioners and then taking it away from them.

When we compare the systems in the Scottish Government and Labour proposals, we have a Scottish Government proposal that is universal and a Labour proposal that would apply to the majority of pensioners. We have a Scottish Government proposal that is simple for pensioners to understand, with £300, £200 or £100 for pensioner households. We still do not know and have no idea how much the Labour proposal would be or who it would be for. We have a simple-to-administer proposal from the Scottish Government as opposed to the genuinely unworkable proposal from Scottish Labour. The Scottish Government’s proposal will be available from next year. Labour’s would be available at some point in the future if we could get past the technical deficiencies.

This Government will continue to call on the Labour Government to reverse its decision to means test winter fuel payments. Despite Mr O’Kane’s wish to push his expensive and highly unworkable amendment to a vote, the real challenge is for the Labour Party to figure out what it actually stands for. Scottish Labour has had two chances to get this right—a vote in Holyrood and a vote in Westminster to scrap the cut. On both counts, Scottish Labour backed Starmer and not Scotland. [ Interruption .]

Alison Johnstone (Presiding Officer, Lothian)

Members, thank you.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

For all those reasons, the Government does not support amendments 3, 21 or 22. I invite Mr Balfour not to press amendment 3 and Mr O’Kane to not move amendments 21 and 22.

Alison Johnstone (Presiding Officer, Lothian)

I invite Jeremy Balfour to wind up and press or withdraw amendment 3.

Jeremy Balfour (Conservative, Lothian)

The Scottish Government and Scottish Labour could perhaps have approached the three amendments in the group with a wee bit more humility on both sides. We are where we are because of what happened at Westminster, and it is slightly unfortunate that Mr O’Kane, in his remarks, did not at least acknowledge that and apologise to Scottish pensioners. With regard to the Scottish Government, we have to recognise that the majority of pensioners will receive no extra benefit this winter.

Concern has been expressed at stages 2 and 3 about the way that Social Security Scotland works and the system that it has in place. In a letter that we received from the cabinet secretary, she seemed to indicate that, even if Parliament wanted to make the proposed changes, Social Security Scotland could not have delivered them this year. That means that we have a system that is not flexible and will not allow us to adapt. We need to come back to that, either in the chamber or at committee, and examine what can be done about it.

We are where we are, and for that reason we will support Labour’s amendments in the group. I seek to withdraw my amendment 3.

Amendment 3, by agreement, withdrawn.

Amendment 21 moved—[Paul O’Kane].

Alison Johnstone (Presiding Officer, Lothian)

The question is, that amendment 21 be agreed to. Are we agreed?

Members:

No.

Alison Johnstone (Presiding Officer, Lothian)

There will be a division. As this is the first division at stage 3, I will suspend the meeting for around five minutes to allow members to access the digital voting system.

Alison Johnstone (Presiding Officer, Lothian)

We will now proceed with the division on amendment 21. Members should cast their votes now.

Alison Johnstone (Presiding Officer, Lothian)

The result of the division is: For 51, Against 60, Abstentions 7.

Amendment 21 disagreed to.

Amendment 22 moved—[Paul O’Kane].

Alison Johnstone (Presiding Officer, Lothian)

The question is, that amendment 22 be agreed to. Are we agreed?

Members:

No.

Alison Johnstone (Presiding Officer, Lothian)

There will be a division.

Alison Johnstone (Presiding Officer, Lothian)

The result of the division is: For 50, Against 67, Abstentions 0.

Amendment 22 disagreed to.

Section 3A—Power to make provision about late applications for assistance

Amendment 4 moved—[Shirley-Anne Somerville]—and agreed to.

Section 7—New determination of entitlement after error

Alison Johnstone (Presiding Officer, Lothian)

Group 3 is on new determination during appeal. Amendment 5, in the name of Jeremy Balfour, is grouped with amendments 6 to 15.

Jeremy Balfour (Conservative, Lothian)

I am grateful to the Child Poverty Action Group, Citizens Advice Scotland and other organisations that have helped with the drafting of my amendments.

I am sure that the cabinet secretary and members will be pleased to know that we are now debating policy instead of money. This is an important policy debate to have.

My amendments in the group aim to remove the unnecessary step of having a formal redetermination before an appeal. An appeal could be scheduled more promptly, if that was required, but the redetermination could take place behind the scenes and the award could be changed, if that was needed. The redetermination could also mean that, if the award was made, the appeal could lapse, which would mean that a further intervening period would not be required.

On social security, we have tried, as a Parliament, to put the claimant—the disabled person—at the heart of the process. We have said that we want to treat them with dignity and respect, and I believe that amendment 5 goes a wee bit further in providing that dignity and respect, because it would help the individual to get an award if the process could happen more quickly than is the case at the moment.

I do not want to pre-empt the cabinet secretary’s comments, but I suspect that she will say that people do not like going to tribunals. That will be true for some people, but perhaps this is a chance for us, collectively here in Scotland, to reset the image of tribunals. As a former member of a tribunal that heard such cases, I believe that most, if not all, tribunal members seek to do their best. I appreciate that the process can be stressful and awkward for some, but that does not mean that we should not allow a redetermination to happen in the background, which might allow a decision to be made more quickly.

I hope that members will look at these amendments favourably. They put the claimant where we want them to be, which is at the heart of the system. They would speed up the whole process of the system, and it is to be hoped that we will not end up with many more tribunals.

I move amendment 5.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I call the cabinet secretary to speak to amendment 9 and other amendments in the group.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

I have lodged five amendments that relate to provisions that allow Social Security Scotland to make a new, more advantageous determination that has the effect of stopping an appeal. Amendment 11 makes minor drafting changes to section 49A of the bill as amended at stage 2. It replaces the reference to assistance that an individual was “given” with reference to assistance that an individual was “entitled to”. That small change of wording is simply to ensure consistency and to align with other references in the Social Security (Scotland) Act 2018 to when an individual is “entitled to assistance”.

Amendment 12 removes the provisions that define “error”, as those provisions are now unnecessary. That is because the bill was amended at stage 2 to remove the need for error in order to allow Social Security Scotland to make a new determination after an appeal is lodged and for the appeal to stop as a result. Instead, the bill now provides that the Scottish ministers can make a new determination, provided that they are of the opinion that the person is entitled to a more advantageous award. That addresses concerns that were raised at stage 2 that including a requirement for error was too restrictive. Since there is no longer a requirement for error to have occurred, there is no need to define “error”.

Amendments 9, 10 and 15 are minor technical amendments that remove references to “error” from the headings of the bill, in line with the changes that were made at stage 2 to remove the need for an error to have occurred.

I urge members to support all five of the amendments in my name in this group.

I turn to Mr Balfour’s amendments, which we have had many discussions about over the past few months. I am afraid that Mr Balfour has still not convinced me to support amendments 5, 6, 7 and 8 or amendments 13 and 14. Those amendments seek to remove the requirement for a client to request a redetermination of the determination that stopped the appeal.

Those amendments would deprive people of the right to request a redetermination in that scenario. Giving people redetermination and appeal rights gives them the same range of challenge rights that are given to people who are challenging all other determinations. If a client disagrees with the determination that stopped the appeal, a right of redetermination provides the opportunity to correct any mistakes at an early stage for an independent rerun. Social Security Scotland has statutory timescales to make a redetermination to ensure that a client is not left in limbo and that they can expect a redetermination within the timeframe that is associated with that particular benefit. In addition, clients already have a right to appeal to the First-tier Tribunal for Scotland if Social Security Scotland does not complete a redetermination within the statutory timeframes.

If we removed the person’s right to request a redetermination, they would instead need to lodge a fresh appeal, which may impact on the capacity of the First-tier Tribunal. Moving disputes from Social Security Scotland into the tribunal might have the effect of delaying the resolution. There can be no guarantees that a tribunal could dispose of the hearings more quickly than through a redetermination, which we consider could negatively impact on people’s experience of using the system.

Some clients find a tribunal process daunting and stressful. While I agree with Mr Balfour that we should work to prevent and alleviate those perceptions of the process being daunting, it is important that we continue to ensure that people have the same rights across the redeterminations and appeals process.

For those reasons, I urge members not to support Mr Balfour’s amendments in this group.

Paul O'Kane (Labour, West Scotland)

We welcome the cabinet secretary’s tidying-up amendments in this group. The changes made at stage 2 to remove the need for an error to be identified were a positive change to the bill and were welcomed by stakeholders. We recognise the need to make some tweaks pursuant to the previous amendments, and we will therefore support the Government’s amendments in this group.

I have heard what Mr Balfour has said about his amendments, both at stage 3 and at stage 2. Unfortunately, despite the good intent behind them, we will not support them today. We believe that, if a new determination is made due to a change in circumstances, it is important that clients retain the right to request a redetermination of the new decision before proceeding to an appeal, which, as we have heard, can often be intimidating and is perhaps a less preferable option.

In concert with what we have heard, I would say that we hope, as a result of on-going work and other provisions in the bill, that there will be fewer mistakes and quicker decisions in the first place, which should drive down the need for redetermination and/or appeal. We will continue to work with the Government and will hold it to account on that point.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I invite Jeremy Balfour to wind up and to press or withdraw amendment 5.

Jeremy Balfour (Conservative, Lothian)

Just to provide clarification, I can say that we will be supporting the Government amendments in this group, and we welcome the tidying up that they involve.

I have probably had enough goes at the two members concerned at stages 2 and 3, so I will not labour the point, but I again point out that a redetermination can still take place. Once a decision is made by Social Security Scotland that the claimant does not like, they lodge their appeal, which normally takes four to six weeks. During that time, the redetermination takes place within Social Security Scotland. If, at that point, Social Security Scotland wants to make a decision that is different from the original decision, that can be intimated to the claimant. If the claimant accepts that, they do not have to go forward to the appeal. The redetermination—

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Mr Balfour, I ask you to resume your seat for a second. It is coming up on my screen that Stuart McMillan is seeking to make a point of order. Is that the case, Mr McMillan?

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

No.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

It is not the case. Please continue, Mr Balfour.

Jeremy Balfour (Conservative, Lothian)

For a moment, I thought I had persuaded somebody. [Laughter.]

I make that clarification: redetermination does not go away; it is simply done behind the scenes.

I press amendment 5.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The question is, that amendment 5 be agreed to. Are we agreed?

Members:

No.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

There will be a division.

The vote is closed.

Neil Bibby (Labour, West Scotland)

On a point of order, Presiding Officer. I would have voted no.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Thank you, Mr Bibby. Your vote has been recorded.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The result of the division is: For 27, Against 88, Abstentions 0.

Amendment 5 disagreed to.

Amendments 6 to 8 not moved.

Amendments 9 to 12 moved—[Shirley-Anne Somerville]—and agreed to.

Amendments 13 and 14 not moved.

Amendment 15 moved—[Shirley-Anne Somerville]—and agreed to.

After section 7

Annabelle Ewing (Scottish National Party, Cowdenbeath)

We turn to group 4, which is on determinations as part of appeal. Amendment 16, in the name of the cabinet secretary, is the only amendment in the group.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

I lodged an amendment in order to clarify the scope of a determination that is made by the First-tier Tribunal in an appeal. Amendment 16 is intended to clarify the law and ensure that it works in line with the original policy intention for the Scottish social security system. I note that CPAG has urged members to support amendment 16, as it provides clarity for people about what can be considered during an appeal.

Amendment 16 makes it clear that the tribunal

“must not take into account any circumstances which did not exist at the relevant time”.

The “relevant time” is the time or event that the Scottish ministers had to consider when determining the person’s entitlement—for example, the date of application. That puts beyond doubt that later changes in a person’s circumstances are to be considered separately. If an appeal were to consider a later change in a person’s circumstances, that would mean that the person would not have had access to the full range of challenge rights on the tribunal’s determination in relation to those new circumstances.

For example, if the tribunal were to consider a change of circumstances for a later period when making a determination at appeal, the client would only have a right to ask the First-tier Tribunal to review its decision or to ask for permission to appeal to the Upper Tribunal on a point of law against that decision. That means that some people might be denied their redetermination and appeal rights. If the person’s later circumstances are considered under a separate determination, the person would then have full redetermination and appeal rights against that, if they do not agree with the determination.

I want to be clear that amendment 16 does not prevent the tribunal from considering relevant information that was unknown, was not available or was not provided at the time when the original decision maker was determining the person’s entitlement. Amendment 16 expressly states that the tribunal

“may take into account circumstances which existed but were not known”.

For example, if a letter from a medical professional is written at a later date and demonstrates that someone had a particular condition at an earlier date that would impact their entitlement, that information could be considered.

Another example is when a person was not in receipt of a qualifying benefit when they applied to Social Security Scotland but subsequently received a backdated award of a qualifying benefit that confers eligibility. In that scenario, the tribunal could consider that information.

Amendment 16 is about protecting people’s rights to access justice, and I urge members to support it.

I move amendment 16.

Amendment 16 agreed to.

Section 8—Appeal to First-tier Tribunal against process decisions

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Group 5 is on appeal to First-tier Tribunal against process decisions. Amendment 17, in the name of Jeremy Balfour, is grouped with amendment 18.

Jeremy Balfour (Conservative, Lothian)

These amendments would ensure that process decisions are able to be appealed past the First-tier Tribunal and be heard at the Upper Tribunal for Scotland, in contrast to section 61 of the 2018 act, which states that backdated claims are process decisions. My amendments would allow such claims to be escalated if required.

I am grateful, again, to CPAG and Citizens Advice Scotland, which ask us to support these amendments. I will, if I can, steal the example from the briefing that CPAG has sent to all members, because it explains the situation better than I can. It states:

“Astrid’s Scottish child payment stopped in error when she moved from tax credits to universal credit. Astrid didn’t see the letter notifying her that the Scottish child payment stopped because she was looking after her terminally ill mum. She submits a late redetermination request and receives a process decision refusing her request because it was more than a year since the determination is made.”

If these amendments are not agreed to, that would be the end of the situation for Astrid, the claimant. I am seeking to introduce the right to appeal to the Upper Tribunal in process appeals, which would allow case law to develop around that type of situation and in other areas.

Case law is important. Over the past 20 or 30 years, we have seen, first with the DWP and now in Scotland, how case law has been interpreted and has given claimants greater rights. Case law develops precedents about how legislation should be interpreted and applied.

I believe that it is important that we allow the judiciary a role in developing the process of appeals, and that it can look to continuously improve the social security system. One of the principles that is set out in the 2018 act is about continuous improvement and getting it right for every person. That is not currently the situation. Amendments 17 and 18 would rectify that, and give claimants better rights of appeal. For that reason, I ask members to consider supporting the amendments in my name.

I move amendment 17.

Paul O'Kane (Labour, West Scotland)

Scottish Labour supports the amendments in group 5. We recognise that it is important that people have a final right of appeal to the Upper Tribunal. We note that organisations such as CPAG have pointed out—as we have heard—that that could help the development of precedent around process decisions, which may, over time, build up a better understanding of how the social security system is working and mean that more effective decisions are made earlier in the appeals process. As a result, we will support these amendments.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

The Scottish Government does not support amendments 17 and 18, in the name of Jeremy Balfour, which would allow people to appeal a process decision of the First-tier Tribunal in the Upper Tribunal. We do not consider that these amendments are required, and an amendment proposing the same thing was not agreed to at stage 2.

Most process appeals are based on the facts of the appeal—for example, whether a client has completed a benefits application correctly—while Upper Tribunal appeals can be brought only on a point of law. The volume of process appeals received to date is very low, and my understanding is that, if required and where appropriate, the First-tier Tribunal could seek guidance from the Upper Tribunal—for example, where the First-tier Tribunal was considering whether an appellant had a good reason for requesting a redetermination late.

The Government therefore does not support amendments 17 and 18.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I ask Jeremy Balfour to wind up and say whether he wishes to press or withdraw amendment 17.

Jeremy Balfour (Conservative, Lothian)

I have nothing to add, but I will press amendment 17.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The question is, that amendment 17 be agreed to. Are we agreed?

Members:

No.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

There will be a division.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The vote is now closed.

Annie Wells (Conservative, Glasgow)

On a point of order, Presiding Officer. My system crashed. I would have voted yes.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Thank you. Your vote will be recorded.

Bill Kidd (Scottish National Party, Glasgow Anniesland)

On a point of order, Presiding Officer. There seems to have been a problem here, but I would have voted no.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I assure Mr Kidd that his vote has been recorded. Thank you.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The result of the division is: For 46, Against 70, Abstentions 0.

Amendment 17 disagreed to.

Amendment 18 not moved.

After section 15

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Group 6 is on uprating assistance for inflation. Amendment 1, in the name of the cabinet secretary, is the only amendment in the group.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

As many members in the chamber will be aware, the Social Security (Scotland) Act 2018 requires that benefits for disability, carers, employment injuries and funeral expenses, as well as the Scottish child payment, are uprated annually in line with inflation. At present, that duty does not extend to the best start grants, best start foods and winter heating benefits. Similarly, the UK Government is not legally required to uprate all benefits annually and, as such, funding for uprating in Scotland through block grant adjustments fully covers only those payments that have a UK equivalent that is also required to be uprated by statute.

Since the first Scottish uprating exercise in 2019, the Scottish Government has frequently chosen to uprate all payments, including those that are increased at ministers’ discretion. Twice, we have also responded quickly to changing conditions to increase benefits beyond inflation, as measured by the September consumer prices index. With amendment 1, we aim to go further than the UK Government in supporting the people of Scotland. We will do that by legally committing to annually increase every benefit that is delivered under the 2018 act in line with inflation.

This new legal obligation will apply automatically to our winter heating payments and best start grants. Best start foods will be brought under the 2018 act in the future but, until then, we have made a public commitment to also increase that payment each year in line with inflation. This action will help to protect the real-terms values of those payments as costs rise in the economy, delivering more money for families by way of best start grants and best start foods. Those payments, which are already more generous than their DWP equivalents, support those families who are most at risk of poverty. Along with the game-changing Scottish child payment, the payments contribute to the Government’s core mission of ending child poverty. Scottish Government policies are estimated to keep 100,000 children out of relative poverty in 2024-25.

These annual increases will also apply to our winter heating benefits, helping the most vulnerable in our society to stay warm each year, safe in the knowledge that, as costs rise, increases to the payments will also be guaranteed.

In an already challenging fiscal environment, it is no surprise that this decision comes with significant financial implications. However, the Scottish Government views that it is vital to invest in support of families and households in Scotland. To that end, I urge all members in the chamber to support amendment 1.

I move amendment 1.

Craig Hoy (Conservative, South Scotland)

Amendment 1 expands the scope of the current duty to uprate benefits in line with inflation. We do not necessarily disagree with that, but it should be done on a discretionary basis in any given budget or for any given benefit. Indeed, last year, the UK Conservative Government uprated benefits in line with inflation, even when it stood at a hefty 6.7 per cent.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

I wonder whether this is perhaps why Jeremy Balfour is not speaking at this point. I recollect that, at stage 2, Mr Balfour lodged an amendment to uprate, so it is disappointing to see that the Conservatives’ position has changed.

Craig Hoy (Conservative, South Scotland)

That is, indeed, accurate. However, since then, we have looked in the round at the medium and long-term projections for the benefits bill. That is something that I will come to now and tomorrow. [ Interruption .]

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Members, could we just listen to the person who has the floor at the moment, who is Mr Hoy. Mr Hoy, please continue.

Craig Hoy (Conservative, South Scotland)

I missed the fact that Shona Robison wants to make an intervention.

Shona Robison (Scottish National Party, Dundee City East)

Can the member reconcile what he has just said with voting for Paul O’Kane’s amendments, which are uncosted, unspecific and undeliverable? How does he reconcile those two events, which have happened in the past half hour?

Craig Hoy (Conservative, South Scotland)

The minister has been in politics long enough to know that politics is about prioritisation, and that is exactly what we are talking about here today. We are talking about making the benefit uplift mandatory for all devolved benefits now and into future years, thereby binding the hands of current and future ministers and members of the Scottish Parliament who might want to reserve the option to make selective increases based on priority and need.

When setting their budgets, Governments should, quite rightly, be given the opportunity—

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

Will the member take an intervention?

Craig Hoy (Conservative, South Scotland)

No. I have taken two interventions already. Governments should be given the opportunity to explore whether an automatic inflationary uplift is affordable in that year, given the wider pressures on devolved benefit spending in Scotland. We will return to that tomorrow in relation to the budget.

Inflation is now relatively low, although it has been subject to upward pressure since the additional borrowing in the Labour budget, and we could be in a period of very high inflation. The amendment could therefore present challenges, even though I accept that the estimate of the relevant benefits that are being considered today amounts to only £1.9 million in 2025-26. However, given that the other benefits are already automatically uprated, that could mean a significant amount of money in a higher-inflation environment.

We also have to think of this in the wider context, as we will do when the budget is presented tomorrow. If the amendment is agreed to, the total cost to the Scottish Government of uprating benefits will be £113 million in 2025-26 alone, and it could be much more in future years.

The Scottish Fiscal Commission has forecast that, in 2025-26, the Scottish Government will spend approximately £478 million more on specifically devolved social security benefits than it receives from the UK Government through block grant adjustments. That is a political choice of the Scottish Government, and it should be entitled to take either the blame or the credit for it, depending on your outlook.

If we add in new and other social security payments, the total social security spend above block grant adjustments received by the Scottish Government will be £1.2 billion in 2025-26, and that £1.2 billion will have to be drawn from elsewhere. Few observers and analysts believe that that position is sustainable in the medium and long term. I encourage the minister to listen to the evidence that was given by the Institute for Fiscal Studies this morning in the Parliament.

The amendment will therefore bake in inflationary increases that will undoubtedly restrict future Governments and Parliaments in setting their cross-portfolio spending plans and future budgets. In short, if we want to spend money on public services, cut taxes for hard-working Scots and support businesses to create economic growth, we cannot pass into law a policy of automatically funding increases in spending on an already substantial benefits budget in Scotland.

The Scottish Conservatives therefore do not believe that enshrining an uprate for any benefit by inflation in law is prudent or politically sensible, and that is why we will vote against amendment 1 today.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

In winding up, I will agree with Craig Hoy on one point: yes, this is about our priorities. Our priorities are about protecting low-income families, protecting carers and protecting disabled people. It is unfortunate but perhaps not surprising that the Conservatives do not share those priorities. I will press the amendment.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

There will be a division.

The vote is closed.

Jackie Baillie (Labour, Dumbarton)

On a point of order, Presiding Officer. Apologies, but the app would not refresh. I would have voted yes.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Thank you, Ms Baillie. Your vote will be recorded.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The result of the division is: For 89, Against 26, Abstentions 0.

Amendment 1 agreed to.

Section 17—Recovery of value of assistance from compensation payments

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Group 7 is on compensation recovery: pension-age disability payment. Amendment 19, in the name of the cabinet secretary, is the only amendment in the group.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

Amendment 19 is designed to include pension-age disability payment in the list of benefits in proposed schedule 12 to the 2018 act that are recoverable from awards of compensation as a result of accident, injury or disease.

PADP is designed to provide financial support to help to meet the additional costs of care relating to an individual’s disability or health condition. As such, equivalent amounts of the benefit received by an injured person as a result of an accident, injury or disease will be recovered entirely from compensation that is awarded for the costs of care required by the individual for the same incident.

Now that PADP is a live benefit that is being delivered by Social Security Scotland, it is appropriate to include that payment in the compensation recovery provisions. As further relevant recoverable benefits are introduced in future, such as Scottish adult disability living allowance and employment injury assistance, those will be added to the 2018 act by way of regulations.

The purpose of the compensation provisions is to help us to meet the Scottish social security principle of efficiency and delivering value for money. As such, I ask all members to support the amendment.

I move amendment 19.

Amendment 19 agreed to.

After section 21

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Group 8 is on key performance indicators for Social Security Scotland. Amendment 23, in the name of Jeremy Balfour, is grouped with amendment 24.

Jeremy Balfour (Conservative, Lothian)

I thank the cabinet secretary for arranging a meeting with Social Security Scotland, and I thank Social Security Scotland for that meeting, which I had with it last week to discuss some of the issues. The meeting was productive, and I certainly got a better understanding of where Social Security Scotland thinks that it is going over the next few years. However, there is still an issue in relation to how we judge and evaluate Social Security Scotland, particularly whether it is providing the best possible service for claimants and working efficiently.

A number of years ago, Mr Doris and I had a wee trip down to Victoria Quay to see how Social Security Scotland was designing the new system. I confess that I came away from that trip feeling that the system was going to be all singing and all dancing and that it was going to be of great use. However, over the past few years, it has become clear that, for whatever reason—whether it is due to design faults or political decisions—the information that is used to make judgments is simply not being recorded, so it is very difficult to hold the Scottish Government and the agency accountable for what is going on.

I acknowledge that things have got better over the past few years, but there are still some fairly glaring issues and, if the agency was a private company or another part of the Government, there would be real questions. That is why I seek to introduce provisions to allow the Parliament and the Government to put in place key performance indicators over the next few years. The system would be flexible, because the indicators would be introduced through secondary legislation.

As I knew before my meeting with Social Security Scotland, it has lots of information, but it is difficult to judge whether that information is good or bad. For example, on an average day, the Dundee office is at 45 per cent occupancy. That is the figure that Social Security Scotland records. I must confess that that figure seems very low, given the amount of money that we are paying for the building, but, without some kind of benchmarking or KPI, it is very difficult to make such judgment calls.

We are told that people are waiting on the telephone for long periods. However, again, it is difficult to know whether the figures are acceptable or whether there needs to be improvement. My amendments will ensure that claimants get the best service. The same could be said for application and decision times. The figures are available, but the Parliament, collectively, has not made a decision on whether they are good or bad.

From my meeting with Social Security Scotland and other meetings, I know that it is open to having such a system. Ultimately, it is for the Parliament to set appropriate KPIs so that we can be assured that taxpayers’ money is being used appropriately and that claimants are getting the service that they deserve.

For that reason, I move amendment 23.

Paul O'Kane (Labour, West Scotland)

I thank Jeremy Balfour for lodging a revised version of the amendments that he lodged at stage 2. Scottish Labour supported his stage 2 amendments, because it is important that such a large and significant public body is open to the scrutiny and transparency that we all want. Although we recognise that Social Security Scotland publishes its annual accounts and gives evidence to the Parliament, parliamentarians have still struggled to get certain information, and there is no duty on Social Security Scotland to report on certain issues.

I welcome the fact that amendment 23 takes cognisance of the debate that we had at stage 2. It is more open and less prescriptive about what the indicators should include, and it would allow the Parliament to provide input on what the KPIs should look like in order to better hold the Government and the agency to account on behalf of all our constituents.

I hope that the Government and other parties recognise the desire for additional reporting and information and that the Government will either support the amendments or allow further discussion in that regard.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

Mr Balfour’s amendments 23 and 24 would create a power to set out key performance indicators for Social Security Scotland in regulations, and would make those regulations subject to the affirmative procedure. The Scottish Government does not support those amendments. Fixing KPIs in legislation would have the effect of making them less responsive to emerging issues.

As an executive agency, Social Security Scotland already publishes an annual report and accounts in line with the Scottish public finance manual. It must comply with the Public Finance and Accountability (Scotland) Act 2000, and the Social Justice and Social Security Committee can, and frequently does, hear evidence from senior leadership at Social Security Scotland on matters of operational delivery.

Members will be aware that section 15 of the 2018 act requires a Scottish social security charter to be prepared, published and reviewed. The charter was co-designed with people with lived experience of social security and underpins everything that the agency does. Approved by Parliament in 2019, it sets out the service that people should expect from the agency. A revised charter, using a comprehensive co-design approach, was approved by Parliament in June. New commitments included providing clients with more information on what they can expect and increased accountability for delivering on charter commitments.

If more information about the performance of Social Security Scotland is required, Parliament already has the power to get it. Section 22 of the 2018 act requires the Scottish Commission on Social Security—SCOSS—to report on any matter relevant to social security if the Parliament resolves that it should. No resolution has been passed to date.

I am pleased that Mr Balfour has had the meeting with Social Security Scotland that he mentioned. Indeed, he and I have discussed the issue on a number of occasions. I think that he and I wish to get to the same end point of a highly effective, functioning agency. I believe that, in many ways, we have that. The client satisfaction rates are very high, although I am always conscious that we must continue to improve. The questions in the discussions that I have had with Mr Balfour on the issue have been about what data is missing, and what data is available but not necessarily obvious, such as the occupancy rate, which he discussed. I would say that I would not consider that one of the key performance indicators; I am perhaps more interested in the outcomes for clients, but there is a discussion to be had.

We have seen a marked improvement in relation to waiting times on phone lines, and they are published. I would caution against setting a limit on the time that people should spend on the phone to a client, because it is important that we do not get into unintended consequences, as we used to see in the DWP, where client advisers were encouraged to end calls to ensure that they were meeting KPIs.

Mr Balfour raises an important point about ensuring transparency and ensuring that there is a discussion about satisfaction with, and the performance of, the agency. I would share that view. I would welcome any time to discuss that before the committee, as would the agency.

Regardless of what happens with the amendments today, we are happy to continue the discussions with Mr Balfour about which data is not published that he feels needs to be published and, if it is published, how we perhaps need to make that more available and more obvious to the committee and those who use the service.

For those reasons, I am afraid that I cannot support amendments 23 and 24 in Mr Balfour’s name. However, I agree with his principle about evaluating the agency. As I said, regardless of what happens with the amendments today, I commit to working with him on that in the future.

Liam McArthur (Liberal Democrat, Orkney Islands)

I call Jeremy Balfour to wind up and to press or withdraw amendment 23.

Jeremy Balfour (Conservative, Lothian)

I welcome the cabinet secretary’s willingness to continue the conversation.

The reason for setting out the KPIs in regulations would be to give a bit more flexibility. We would not be pinning them down. As we all know, regulations are easier to change than primary legislation.

I will quickly respond to two points. As well as a responsibility to look after the claimant, we have a responsibility to look after taxpayers’ money. Although it is probably not in the top five issues, that is why we need to know the occupancy rate.

I come back to the point that until the Parliament knows what the acceptable figures are for decision times, telephone lines and all those things, it will be difficult to decide whether Social Security Scotland is doing what it does well.

That is why I press amendment 23.

Liam McArthur (Liberal Democrat, Orkney Islands)

The question is, that amendment 23 be agreed to. Are we agreed?

Members:

No.

Liam McArthur (Liberal Democrat, Orkney Islands)

There will be a division.

Liam McArthur (Liberal Democrat, Orkney Islands)

The result of the division is: For 55, Against 59, Abstentions 0.

Amendment 23 disagreed to.

Section 24—Regulation-making powers

Amendment 24 not moved.

Liam McArthur (Liberal Democrat, Orkney Islands)

That ends stage 3 consideration of amendments.

Members will be aware that, at this point in the proceedings, the Presiding Officer is required under standing orders to decide whether, in her view, any provision of a bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In the Presiding Officer’s view, no provision of the Social Security (Amendment) Scotland Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.