Devolution of Social Security

Date01 September 2016
Published date01 September 2016
Pages382-388
DOI10.3366/elr.2016.0372
<p>Social security has been a reserved matter since devolution was implemented in 1999. The Calman Commission, reviewing the extent of devolved competences in 2009, recommended that pensions and benefits should remain a reserved matter on the basis that they were a central feature of the UK welfare state and the latter was an important constituent of the glue that held the union together.<xref ref-type="fn" rid="fn1"><sup>1</sup></xref> But a new all-party consensus was forged by the Smith Commission which recommended the devolution of substantial aspects of social security, including competence over:<xref ref-type="fn" rid="fn2"><sup>2</sup></xref> <list list-type="bullet"> <list-item><label>•</label><p>Benefits for carers, disabled people, and those who are ill (i.e. the current benefits Attendance Allowance, Carer's Allowance, Disability Living Allowance, Personal Independence Payment, Industrial Injuries Disablement Allowance, and Severe Disablement Allowance);</p> </list-item> <list-item><label>•</label><p>Benefits which currently comprise the Regulated Social Fund (i.e. Cold Weather Payment, Funeral Payment, Sure Start Maternity Grant, and Winter Fuel Payment); and</p> </list-item> <list-item><label>•</label><p>Discretionary Housing Payments.</p> </list-item> </list> It recommended that the Scottish Parliament have complete autonomy in determining the structure and value of the above benefits or of any new benefits or services which might replace them. The proposals relating to Universal Credit (“UC”) were more complex. UC is a new income support benefit currently being rolled out across the UK which will eventually replace six existing means-tested benefits and tax credits, including income support and housing benefit. Although UC will remain, in general, a reserved benefit, the Smith Commission recommended that the Scottish Parliament should have the power to vary the housing cost elements of UC (including power to vary the under-occupancy charge and local housing allowance rates, eligible rent, and deductions from benefits for non-dependents). It would also have power to change the frequency of UC payments, and to vary the existing UK Government plans for single household payments and for direct payment to landlords of tenants' housing costs</p> <p>The Smith Commission also recommended devolution of power to create new benefits in areas of devolved responsibility and to make discretionary payments in any area of welfare to top-up reserved benefits. Finally, it recommended devolution of all powers over support for unemployed people through the employment programmes after the existing commercial arrangements expire.<xref ref-type="fn" rid="fn3"><sup>3</sup></xref></p> <p>The welfare package was by far the most significant of the Smith Commission's proposals, extending the Scottish Parliament's substantive policy competence (as opposed to competence over finance). In purely financial terms, it devolves a substantial portion of the social security budget (approximately £2.7 billion, or 15.3% of expenditure on hitherto reserved benefits in Scotland).<xref ref-type="fn" rid="fn4"><sup>4</sup></xref> It also devolves a major public service potentially affecting hundreds of thousands of people. Moreover, it represents a remarkable change of heart by the pro-union parties. If the Calman Commission was right about the importance of the welfare state for social solidarity, then it must be questioned whether devolution of substantial aspects of social security is compatible with maintaining the integrity of the union in the long run. However, this article concentrates on the more immediate issues that arise from the devolution of powers over social security benefits by the <a href="https://vlex.co.uk/vid/scotland-act-2016-808434845">Scotland Act 2016</a> (“SA 2016”).</p> THE LEGISLATION

Sections 22 to 35 of SA 2016 are intended to give effect to the Smith Commission's proposals. They add a number of further exceptions to the reservation of social security in head F1 in part 2 of Schedule 5 to the...

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