Commentary on Provisions Part 9 – Scottish Commission on Social Security Section 20: Scrutiny of regulations by the Commission
143.Section 21 of the 2018 Act establishes the Scottish Commission on Social Security (“the Commission”) and makes it a body corporate. Section 22 sets out its functions, which are principally in the form of reporting duties to the Scottish Ministers and Scottish Parliament.
144.Under section 97, when the Scottish Ministers propose to make regulations under either Chapter 2 of Part 2 or section 79 of the 2018 Act, they must, before laying that instrument in Parliament, inform the Commission of the proposals in the form of draft regulations. Having been informed of the proposals, the Commission must then prepare a report setting out its observations and recommendations in relation to the proposals. This report is submitted to the Scottish Ministers and Scottish Parliament, and made publicly available. Section 20 of the Act amends section 97 of the 2018 Act to ensure that these requirements apply regardless of whether regulations are subject to the negative or the affirmative Parliamentary procedure.
145.The specific reporting requirements set out at section 97 currently only extend to regulations made under Chapter 2 of Part 2 or section 79 of the 2018 Act. Section 20 of the Act expands the scope of section 97 to apply those reporting requirements to more regulation-making powers within the 2018 Act, as follows:
	Section 11(2) – in relation to independent advocacy services to be delivered in terms of section 10 of the 2018 Act, there must be compliance with advocacy service standards. These standards are to be set out, in terms of section 11(2), by way of regulations.
	Section 13(3) – in connection with making a determination of what assistance an individual is eligible to be given through the Scottish social security system, they may be required to undergo an assessment. Where an assessment is to occur in terms of section 13(2), this must be carried out by a suitably qualified person. Section 13(3) allows Scottish Ministers to specify within regulations who is to be regarded as a suitably qualified person.
	Section 41(4)(a) – where an individual has a right to request a re-determination of their entitlement in terms of section 41(1), a request for a re-determination will only be valid if it meets the conditions set out at sections 41(3) and (4). This includes making a request within a period to be prescribed by the Scottish Ministers in regulations, as set out at section 41(4)(a).
	Section 43(5) – under section 43, on being requested to re-determine an individual’s entitlement, the Scottish Ministers must aim to make the determination within the period allowed for re-determination. Section 43(5) sets out that the period allowed for re-determination is to be prescribed by the Scottish Ministers in regulations.
	Section 51(1) – this section allows the Scottish Ministers to make provision by way of regulations for a determination of entitlement to be made on the basis of ongoing entitlement to that type of assistance, and provide for exceptions to any such provision.
	Section 52 – this section provides that Scottish Ministers may in regulations specify circumstances in which they are to make a determination of an individual’s entitlement to a particular type of assistance without receiving an application; the regulations may also make provision about the information to be used and assumptions to be made in making a determination without receiving an application.
	Section 63(12) – this provision allows the Scottish Ministers to make regulations defining the meaning of “the individual’s representative” for the purpose of determining liability for assistance given in error.
	Section 69A(4)(a) – this section provides that the Scottish Ministers are to prescribe the period within which an individual or individual’s representative may request a review of a decision that they are liable to repay assistance given in error.
	Section 69C(6) – this section provides that the Scottish Ministers are to prescribe the period within which a review of a decision that an individual or individual’s representative is liable to repay assistance given in error should be carried out.
	Section 79(1) – this section allows the Scottish Ministers to make regulations to provide for financial assistance to be given to top up a reserved benefit.
	Section 81(8) – this section makes provision for a ‘carer’s allowance supplement’ to be paid to qualifying individuals. Section 81(2) and (2A) detail who will be a qualifying individual, and section 81(8) allows modification of this section by way of regulations, to alter the definition of who is a qualifying individual.
	Section 82 – this section allows the Scottish Ministers, by way of regulations, to repeal section 81 and revoke any regulations made under it, and repeal section 82.
	Section 84A(1) – this section allows the Scottish Ministers to make provision, by way of regulations, about investigation of offences under the 2018 Act or regulations made using section 79.
	Section 85B(5) – this provision requires the Scottish Ministers to make regulations defining the meaning of an “appropriate person” for the purpose of certifying an appointment to act on behalf an individual in connection with the determination of the individual's entitlement to assistance.
	Section 85F(1) – this section allows the Scottish Ministers to treat a person appointed by the UK Department for Work and Pensions for a limited time as though they are an appointee under the 2018 Act.
	Section 87B(4)(c) – this provision allows the Scottish Ministers to make regulations setting out the circumstances in which a written response is required by an individual to a request for information for audit.
	Section 87B(4)(d) – this provision allows the Scottish Ministers to make regulations setting out other required forms of responses to requests for information for audit.
	Section 87B(5) – this provision allows the Scottish Ministers to make regulations exempting categories of individuals from requests for information for audit.
	Section 87C(1) – this provision allows the Scottish Ministers to make regulations setting the deadline for an individual to ask Ministers to withdraw a request for information for audit.
	Section 87C(4) – this provision allows the Scottish Ministers to make regulations setting the deadline for Ministers to decide whether an individual has a good reason for seeking the withdrawal of a request for information for audit.
	Section 93A(1) – this section allows the Scottish Ministers, by regulations, to establish one or more schemes to give financial assistance to individuals who have had experience of being in the care system.
	Section 95 – this section allows the Scottish Ministers to make ancillary provision as they consider appropriate for the purposes of, or in connection with, or for giving full effect to the 2018 Act or any provision made under it. Where this power is used in combination with another section to be included within the section 97 scrutiny requirements, its exercise will also be included within those requirements.
146.In addition to these further regulation-making powers in the 2018 Act, section 20 of the Act also provides for scrutiny by the Commission of regulations made in relation to Best Start Foods. This is a benefit which is legislated for under regulation-making powers set out at section 13 of the Social Security Act 1988 and section 175(4) of the Social Security Contributions and Benefits Act 1992. When exercised together, these powers are now included within the terms of section 97 as per the insertion made by section 20(2)(b) of the Act.
147.Finally, section 20(2)(e) of the Act allows the Scottish Ministers to make regulations amending the list of powers in section 97 which are subject to scrutiny by the Commission by adding, removing or varying the description of a power.