The Social Security (Scotland) Act 2018 – A Rights-Based Approach to Social Security?
| Author | |
| Published date | 01 January 2019 |
| DOI | 10.3366/elr.2019.0532 |
| Pages | 117-123 |
| Date | 01 January 2019 |
The Social Security (Scotland) Act 2018 (the “Act”) is a significant piece of devolved legislation. It is the first major Act passed by the Scottish Parliament dealing with social security matters, after part 3 of the Scotland Act 2016 gave effect to the recommendations of the Smith Commission and devolved responsibility for a range of benefits and associated powers to regulate other elements of the social security system. As such, it represents a substantial extension of the reach and impact of devolved legislation into ordinary life, covering as it does key areas of social welfare support such as disability and independent living allowances, regulated social fund allowances such as funeral payments and Sure Start maternity benefits, and housing benefit.
But the significance of the Act extends beyond its impact in terms of devolution. It establishes a new devolved social security system in Scotland – and attempts to ground this system on a framework of principles which include an acknowledgement that access to social security is a human right. Its provisions are thus designed to reflect a rights-based approach to social security, which marks it out as an interesting departure from the legislative status quo. In what follows, the impact and consequences of this approach are analysed, along with the most important elements of the Act.
The Act is ambitious. It was introduced by the Scottish Government with the aim of helping to “create a fairer Scotland” by giving effect to a remodelled social security system “that is based on a distinctively Scottish guiding vision and set of principles”.
Part 2 of the Act establishes a statutory basis for the provision of “assistance” by Scottish Ministers to different categories of persons in need. Existing benefits are rebranded: for example, “carers’ assistance” replaces “carers’ allowance”, while “employment-injury assistance” replaces “industrial injuries benefits”.
The Act also establishes a new administrative framework for determining entitlement and processing payments, which makes some significant adjustments to the functioning of the reserved system. For example, sections 12–14 impose certain restrictions on the use of medical assessments in determining eligibility for assistance, requiring that they only be conducted by suitably qualified employees of a public body (i.e. not by private contractors) and where they are the only practicable way to obtain information required to determine entitlement to assistance. The legislation also clarifies the procedures governing overpayment recovery and fraud investigations, and confers a range of powers on the Scottish Ministers to regulate the functioning of the devolved social security system and its interaction with various elements of the reserved system like Universal Credit.
However, the most innovative aspect of the Act lies elsewhere. In general, UK social...
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