Social Security (Amendment) (Scotland) Act 2025

11 Liability for assistance given in error

(1) The 2018 Act is modified as follows.

(2) In section 63 (liability for assistance given in error)—

(a) for subsection (1) substitute—

“(1) The Scottish Ministers may decide that—

(a) an individual, or

(b) an individual’s representative,

is liable to pay the Scottish Ministers some or all of the value of any assistance that was given to or for the benefit of the individual due to an error.”,

(b) after subsection (1) insert—

“(1A) The Scottish Ministers may decide that a person is liable under subsection (1) only—

(a) if the error is—

(i) the fault of the individual or the individual’s representative, or

(ii) the kind of error that an individual could reasonably be expected to notice, and

(b) if and to the extent that—

(i) in the case of a decision about an individual’s liability, the individual has benefited from the assistance mentioned in subsection (1), or

(ii) in the case of a decision about an individual’s representative’s liability, the individual has not benefited from the assistance mentioned in subsection (1).”,

(c) subsections (2) and (3) are repealed,

(d) in subsection (4), the words “and section 64” are repealed,

(e) after subsection (4) insert—

“(5) For the purpose of subsection (1A)(a)(i), an error is the fault of the individual or the individual’s representative if it is caused or contributed to by the individual or the individual’s representative—

(a) providing false or misleading information,

(b) failing to notify the Scottish Ministers about a change in circumstances in breach of a duty to do so under section 56, or

(c) causing another person to do either of those things.

(6) In subsection (5)(a), the reference to providing information includes making a statement.

(7) In considering for the purposes of subsection (1A)(a)(ii) whether an error is of a kind that an individual could reasonably be expected to notice, the following are amongst the matters to which regard is to be had—

(a) the extent to which the value of the assistance given in error exceeds the value of the assistance that would have been given (if any) had the error not been made,

(b) whether any information given to the individual or the individual’s representative by the Scottish Ministers prior to, or immediately after, the assistance being given would have alerted a reasonable person to the fact that a decision had been, or was to be, made on the basis of incorrect information or a wrong assumption.

(8) In subsection (7)(b)—

(a) the reference to information given to the individual or the individual’s representative by the Scottish Ministers does not include information explaining why the Ministers consider the assistance to have been given in error,

(b) the reference to information given to the individual’s representative includes only information given when that person was the individual’s representative.

(9) For the purpose of subsection (1A)(b), it is to be assumed that the individual has benefited from the assistance mentioned in subsection (1) unless the Scottish Ministers are aware that that is not the case.

(10) If the Scottish Ministers would be entitled to decide that a person is liable under subsection (1) but for the fact that the person has died since the assistance was given, the Scottish Ministers may decide that the person’s estate is liable.

(11) If the Scottish Ministers make a decision under subsection (10), references in sections 63A and 63B to a person who is liable under this section are to be read as references to the person’s estate.

(12) The Scottish Ministers may by regulations specify the persons, or categories of persons, who are included within the meaning of “the individual’s representative” for the purpose of this section.”.

(3) After section 63 insert—

“63A Amount of liability

(1) For the avoidance of doubt, a person’s liability under section 63 cannot be greater than the difference in value between—

(a) the assistance that was given, and

(b) the assistance (if any) that would have been given had the error not been made.

(2) If the assistance was given in a form other than money, its value for the purposes of this section is what giving it cost the Scottish Ministers (excluding any administration costs).

63B Notice of liability

(1) Having made a decision that a person is liable under section 63, the Scottish Ministers must inform the person—

(a) of the decision,

(b) of the reasons for it,

(c) of the person’s right under section 69A to request that the Scottish Ministers review the decision, and

(d) that the person will have the right under section 69F(1)(b) to appeal to the First-tier Tribunal against the decision should the Scottish Ministers fail to deal with a request for a review within the period allowed for review.

(2) The Scottish Ministers must fulfil their duty under subsection (1) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.”.

(4) Section 64 is repealed.

(5) In section 65 (consideration for debtor’s circumstances), in subsection (2), for “individual” substitute “person”.