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Scotland Act 1998

Section F1: Social Security Schemes
Purpose and Effect

This Section reserves social security matters.

General

The reservation describes social security not in terms of benefits for specific purposes but in terms of the power and responsibilities which underlie any type of social security provision as follows:

(a)

the establishment and financing from central or local government expenditure of general or specific schemes of assistance to or in respect of individuals by way of benefits (which includes pensions, allowances, grants or loans) for social security purposes;

(b)

requiring persons (such as employers or individuals or local authorities) to set up or administer schemes for social security purposes or to make contributions or payments towards them and to keep records and supply information in connection with all aspects of scheme administration, including verification of claims and investigating fraud; and

(c)

the establishment of a liability for a person to maintain himself or another for social security and child support purposes.

The reservation has been cast in this way to make allowance for changes over time in the exact scope and coverage of the UK-wide social security system, and the way in which benefits are delivered.  For example, in recent years some benefits previously provided directly by central government (such as sickness or maternity benefit) have been replaced by a structure of requirements on employers to make defined payments to their employees.  Similarly some new benefits (such as Disability Living Allowance) have been established.  The reservation, which needs to be read together with the definition of social security purposes in the interpretation paragraph, makes allowance for changes of this kind.

The provision of compensation for injury resulting from vaccination, as provided for by the Vaccine Damage Payment Scheme, which are paid through the same channels as social security, is also reserved.

The current law on social security covers the following matters, some of which are given as examples in the illustrations paragraph (which is not intended to be exhaustive of all the matters covered by the reservation):

(a)

National Insurance contributions and contributory National Insurance benefits such as the state retirement pension.  The Secretary of State for Social Security has specific responsibility for the NI Fund;

(b)

other social security benefits of all kinds, including employment-related benefits (such as Job Seekers Allowance);

(c)

payments in respect of industrial accidents, injuries and diseases;

(d)

statutory sick pay and statutory maternity pay;

(e)

the liability to maintain oneself, a spouse and dependent children under 19, or any person in respect of whom an undertaking to maintain has been made under the Immigration Act 1971;

(f)

grants and loans for special needs payable through the Social Fund and the Independent Living Funds;

(g)

the administration of the social security and employment benefits system whether carried out by the Department of Social Security, other government departments or others;

(h)

decision-making and appeals arrangements;

(i)

the funding of resettlement provision for persons without a settled way of life under section 30 of the Jobseekers Act 1995;

(j)

payments under the vaccine damage payments scheme;

(k)

the recovery of benefits where compensation is paid in consequence of accident, injury or disease and the recovery of benefits from earnings, and deductions from benefits to meet an individual’s debts; and

(l)

public bodies whether tribunal, executive, advisory or regulatory dealing with these issues.

Section 110 provides the Secretary of State (for Social Security) the power to take account of the implications of varied Scottish rates of income tax (as may be provided for under Part IV of the Scotland Act) for social security, child support and pensions purposes and to determine whether a person is to be treated as a Scottish taxpayer and to specify what shall be treated as the Scottish rate of tax in any year of assessment.  The purpose of these provisions is primarily to ensure that benefit decisions can be made promptly without uncertainty over the appropriate tax rate to apply where tax is relevant to benefit entitlement.

Parliamentary Consideration
StageDateColumn
CC31-Mar-981068
LC23-Jul-981070
LC23-Jul-981145
LR3-Nov-98200
LR3-Nov-98201
Details of Provisions
First Reservation

This reserves legislative competence in respect of schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits.  This relates to social security benefits (such as retirement pension, income support or housing and council tax benefit) which are directly administered and funded by central or local government in whole or in part.  The reservation covers all aspects of the establishment, financing and administration of such benefits and activity connected with them (such as, decision-making and appeals and anti-fraud activity).  The Scottish Parliament does not have competence to set up or finance benefit schemes where these are for social security purposes (for example, by seeking to provide benefits for social security purposes to people who are not entitled to claim certain social security benefits), but the reservation does not prevent it from providing benefits or allowances for other purposes within its competence, for example education maintenance grants or fosterage allowances.  A non-exhaustive definition of social security purposes is in the interpretation paragraph.

Second Reservation

This reserves competence to require persons (including companies and authorities) to establish and administer schemes for social security purposes, to make payments to or in respect of those schemes and to keep records and supply information in connection with them.  The reservation is intended to cover activities to do with National Insurance, such as the requirement on individuals to pay and employers to collect National Insurance contributions; and to cover those types of social security provision which operate through requirements on employers or others to make payments in accordance with a regulatory framework (such as statutory sick pay and statutory maternity pay) rather than by direct central or local government delivery.  The funding of social security schemes and the requirement for others such as local authorities to provide them (e.g. housing and council tax benefit) is also reserved.

Social security legislation also imposes requirements on employers to make payments of a minimum amount of sick pay or maternity pay in prescribed circumstances.  This reservation also covers such arrangements.

Third Reservation

This reserves legislative competence over the circumstances in which a person is liable to maintain himself or another for the purposes of social security legislation and the Child Support Acts 1991 to 1995.  Social security legislation places a legal duty on an individual to maintain himself and his spouse and dependant children or any person in respect of whom he has given an undertaking to maintain under the Immigration Act 1971.  This requirement applies generally but it only becomes relevant when a person makes a claim to an income related social security benefit.  When this happens the Secretary of State may seek an order from the sheriff in Scotland for the recovery of the benefit from the liable person.  So far as the maintenance of a dependant child is concerned, that legislation is largely superseded by the Child Support Acts 1991 and 1995 (the subject-matter of which is separately reserved under Section F2).

Fourth reservation

This reserves the subject-matter of the Vaccine Damage Payment Scheme. The Vaccine Damage Payment Scheme provides for compensation for injury resulting from vaccination.  Vaccine damage payments are determined and paid through the same channels as social security.

Illustrations of reservation

The illustrations provide a non-exhaustive list of some of the types of matter falling within the reservation:

(a)

National Insurance.  This covers National Insurance contributions as well as contributory National Insurance benefits such as the state retirement pension;

(b)

Social Fund.  This covers grants and loans for special needs;

(c)

administration and funding of housing benefit and council tax benefit;

(d)

recovery of benefits paid because of accident, injury or disease from persons paying damages and deductions from benefits for the purpose of meeting an individual’s debts;

(e)

sharing information between government departments for the purposes of the enactments relating to social security; and

(f)

making decisions for the purposes of schemes mentioned in the reservation and appeals against such decisions.

Exceptions from reservation

This provides for the subject-matter of following enactments which might otherwise fall within the reservation, but which relate to devolved matters, to be excepted from the reservation:

(a)

Part II of the Social Work (Scotland) Act 1968, which provides for the promotion of social welfare by local authorities.  This includes provision in exceptional circumstances for payments to persons in need and other social welfare services such as the provision of home-help and residential nursing accommodation;

(b)

section 2 of the Chronically Sick and Disabled Persons Act 1970, which relates to the provision of various welfare services by local authorities to persons resident in their area;

(c)

section 50 of the Children Act 1975, which gives local authorities the power to make payments towards maintenance for children;

(d)

section 15 of the Enterprise and New Towns (Scotland) Act 1990 (industrial injuries benefit), which deals with payments to persons undergoing training who have injured themselves at work; and

(e)

sections 22, 29 and 30 of the Children (Scotland) Act 1995, which provide for payments to be made or other assistance to be provided to children or their families.  Section 22 imposes a duty on local authorities to safeguard and promote the welfare of children who are in need by providing a range and level of services appropriate to their needs.  In exceptional circumstances cash payments can be made.  Section 29 imposes a duty on local authorities to assist young persons, who they formerly looked after, at school leaving age or subsequently through the provision of advice or other assistance including financial assistance.  Section 30 authorises local authorities to give financial assistance to such young persons to meet the cost of education and training.

Interpretation

For the purposes of the reservation, “benefits” includes pensions, allowances, grants, loans and any other form of financial assistance.  This ensures that all the various types of financial assistance provided as part of social security are covered.

Providing assistance for social security purposes to or in respect of individuals includes, among other things, providing assistance to or in respect of individuals:

(a)

who qualify by reason of old age, survivorship, disability, sickness, incapacity, injury, unemployment, maternity or the care of children or others needing care;

(b)

who qualify by reason of low income; or

(c)

in relation to their housing costs or liabilities for local taxes.  This includes all the main purposes of social security provision.  It also includes assistance in relation to housing costs or liabilities for local taxes, as described above.

Executive Devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

The Social Security Administration Act 1992 (c.5), sections 51(1), 52(3) and 189(10) and Schedule 2, paragraph 1(5).

The functions of the Secretary of State of being consulted by the Lord Chancellor on appointments of the President or a chairman of tribunals and deputy Social Security Commissioners; on regulations under the Act generally; and on removal of Social Security Commissioners or the President or a chairman of tribunals.

The Social Security Act 1998 (c.14), sections 5(1) and 79(2), Schedule 1, paragraph 1(4) and Schedule 4, paragraph 8.

Section 5(1) - The function of the Secretary of State of being consulted by the Lord Chancellor  regarding appointment of a President of appeal tribunals.

Section 79(2) - The function of the Secretary of State of being consulted by the Lord Chancellor  regarding regulations with respect to proceeding before the Commissioners.

Schedule 1, paragraph 1(4) - The function of the Secretary of State of being consulted by the Lord Chancellor regarding removal of the President of appeal tribunals.

Schedule 4, paragraph 8 - The function of the Secretary of State of being consulted by the Lord Chancellor regarding exercise of powers under paragraphs 1(2), 5(1) or 6 of Schedule 4.

The following functions have been made concurrently exercisable by a Minister of the Crown and the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

The Social Security Administration Act 1992 (c.5), paragraph 7(1)(b) of Schedule 2.

The function of the Secretary of State to pay allowances to persons attending proceedings under the Act.

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2000 (S.I. 2000/1563).

The Tax Credits Act 1999 (c.10) section 15

The function of the Secretary of State under section 15 of the Tax Credits Act 1999 to make regulations, so far as it is exercisable by him in or as regards Scotland, is to be exercisable by him only with the agreement of the Scottish Ministers. Section 15 provides for these regulations to put in place a scheme establishing a new category of persons whose charges for providing child care are to be taken into account for the purposes of eligibility for the childcare element of the Working Families Tax Credit and Disabled Persons Tax Credit.

The Tax Credits Act 1999 (c.10) section 15 (contd.).

The scheme is to provide that a person shall not fall within the new category unless he is approved by an accredited organisation in accordance with such criteria as may be determined by or under the scheme. The scheme is also to authorise the making of grants or loans to, and the charging of reasonable fees by, accredited organisations.

Section 15(3) enables the Secretary of State to accredit organisations who may approve childcare providers for the purposes of eligibility for the childcare element of the Working Families Tax Credit and Disabled Persons Tax Credit. S.I. 2000/1563 provides that the function of accrediting organisations is to be treated as exercisable in or as regards Scotland in so far as accreditation is for the purpose of the application of a scheme in relation to child care providers in Scotland.  The function is then executively devolved to the Scottish Ministers to that extent by article 3 and the Schedule.

S.I. 1999/1750 also transferred non-statutory functions in relation to the provision of premises and support staff for the purposes of carrying out the functions of the Social Security Commissioners.

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