Adult Disability Payment: consultation analysis

Determinations of Entitlement

Entitlement without application

Regulation 39 sets out that the Scottish Ministers must make a determination of an individual's entitlement to Adult Disability Payment, without receiving an application, after the end of the period specified (if any) in the individual's notice of determination under section 40 of the Social Security (Scotland) Act 2018.

Regulations 40-43 set out other situations requiring a determination without an application including determinations following under and over-payment errors. The timescales relating to when changes in entitlement take effect are also set out.

Overall, 72% of respondents believed that the regulations relating to entitlement without application reflected the policy intent, although comments made at this question were disparate.

	Number of Respondents	% of Respondents	Valid %
Yes	69	54%	72%
No	11	9%	12%
Don't know	15	12%	16%
Missing	32	25%	-
Total	127	100%	100%

Under and Overpayments

Additional clarification was sought on the process of determination following over- or under-payment made in error, including details about if this decision-making would be automatic. It was recommended that underpayments be backdated to the date of application rather than the date the error became apparent. Any overpayment sought by the Department for Work and Pensions should be undertaken in a fair and dignified way. It was recommended that a person be given considerable notice of a requirement to repay an overpayment made in error and clear information if their account was going to be automatically debited.

A number of respondents suggested that if the award had been made in error it was inappropriate and unethical for it to be necessary to repay these monies as this caused additional stress to people who already had considerable challenges to overcome and were at higher risk of experiencing material deprivation. The adoption of the new system was suggested by one organisation as an opportunity to regain and secure the trust of clients, as well as improve the public perception of the benefits system, by avoiding recovering overpayments made in error to the detriment of applicants.

Indefinite Awards and Changes in Condition

Several respondents were keen for indefinite awards to be made in other circumstances to that outlined^[2]. Related to this, it was recommended that indefinite awards should automatically be awarded to people with degenerative conditions without application. It was suggested that these circumstances relating to award without application should be incorporated into law to make it more difficult for future administrations to change the policy. Similarly, some organisations wished to see to see a policy of safeguarding awards of a suitable length fixed in law.

A few suggested that some flexibility may be needed to review awards for certain individuals who may have experienced reduced support as a result of the move from the Disability Living Allowance to the Personal Independence Payment. It was felt that some of the Personal Independence Payment assessments and awards were unfair, and that carrying this over to Adult Disability Payments was wrong.

More generally, it was felt that if an individual's condition was not going to improve over time, then the need for future reviews should be removed. It was suggested that in cases where an individual's condition had deteriorated, they should be able to seek additional support and there should be an obligation for the agency to engage with this request and make a fresh determination:

"Rolling 5-year light touch is okay for conditions that may improve but a waste of time, money and stress regarding those with a deteriorating condition." (Disabled People's Organisation)

"Lifetime awards need to be reinstated and stop the stress, anxiety and burden on all involved; from the individual to the GP [General Practitioner] and person looking through the application." (Disabled People's Organisation)

Although it was considered appropriate to report changes in circumstance, it was suggested that an adaptation should be made to the 28-day rule. It was believed that this timeframe could unduly disadvantage individuals in relation to specialised treatment. There was also concern that to be eligible for enhanced rates from the day a person's condition deteriorated, an individual would need to report this within four weeks, and it was believed this did not give fair consideration to fluctuating conditions:

"This is a relatively small timeframe, in which individuals who experience a deterioration may want to 'wait out' as it may be perceived and hoped by them as an increasingly difficult period that will return to normal levels. If this however were not the case and their condition did not return to said normal levels, individuals would be unfairly penalised by only being awarded the enhanced rate of payment from the day they reported the change if this was outside the specified four weeks." (Disabled People's Organisation)

It was recommended that clearer rules should be introduced to protect people who may not have realised that a gradual change has affected their eligibility, and that recovery of overpayment was not sought in such cases. It was felt that support from Social Security Scotland and other agencies was likely to be required to help an individual consider whether their condition has changed such that their level of award might be affected.

Finally, it was suggested that people should be able to appeal an entitlement decision without concern that they may lose the current entitlement decision. Fear of losing any entitlement may make individuals reluctant to engage with the review process, it was suggested.

Re-determination requests

Regulation 44 outlines the periods in respect of a re-determination request. Periods in respect of a re-determination request and reviews are outlined as 42 days and 56 day respectively.

Overall, 77% of respondents believed that the regulations relating to re-determination requests reflected their policy intent.

	Number of Respondents	% of Respondents	Valid %
Yes	71	56%	77%
No	10	8%	11%
Don't know	11	9%	12%
Missing	35	27%	-
Total	127	100%	100%

Many respondents indicated that it was helpful to provide transparent timeframes. A number of organisations, in particular, highlighted that the timescales proposed were an improvement from the Personal Independence Payment arrangements. Importantly, the availability of a clear timeframe for Social Security Scotland to respond to re-determination requests would provide clarity to advice agencies about when their clients/service users may need support to go to appeal. It was also suggested that it would be useful for advice agencies to have a direct helpline or email access to Social Security Scotland in order to establish their client's current position or find out additional information in relation to re-determinations and appeals.

Some respondents considered the 42 days for requests to be submitted as appropriate given the array of tasks that needed to be completed and the potential risk in postal delays:

"The regulations, with the proposed time limit of 42 days for requesting a re-determination of entitlement, reflect the different challenges and circumstances which will be unique to each individual undertaking this process. Many disabled people will require significant time to gather relevant information and access support and advice. We believe that the regulations take this into account." (Organisation, Disabled People's Organisation)

In contrast, some indicated that the proposed time periods may be excessively long, particularly if people were left without the help and assistance they require. It was highlighted by one individual that support, as previously awarded, should be paid for the period of time waiting for re-determination as payment in arrears is insufficient to prevent hardship in the interim period.

Flexibility in the proposed permitted period for re-determination requests was considered important by many of the respondents, who purported that gathering necessary information to support the re-determination may require a longer period of time. A number of situations which raised concerns with this cut-off period if there was no option for the initial period to be extended, included if:

• someone was reliant on an interpreter who they may not be able to engage with immediately;
• someone was facing difficult personal circumstances;
• someone's condition had deteriorated; and
• someone was experiencing a flare-up in their condition.

While most accepted that 56 days was fair to make a re-determination of entitlement, one organisation questioned whether 56 days was a realistic timescale for a response from Social Security Scotland and one individual with lived experience also queried this timeframe (and associated impacts):

"56 days is far too long to wait for a re-determination of entitlement. When I had to switch from DLA [Disability Living Allowance] to PIP [Personal Independence Payment] the process took a year…That year nearly killed me, and the stress of how long everything took played a large part in that. I think the whole process has to become a lot more efficient and take a lot less time." (Individual)

Although applicants required flexibility to collate further information it was not felt that those engaged to undertake the re-determination should require eight weeks as this delay could significantly impact on people's lives. It was highlighted that waiting for re-determination was incredibly stressful for clients.

The proposed introduction of 'Short-Term Assistance' was welcomed, to ensure individuals continue to receive their previous payment amount until the outcome of a re-determination has concluded. This was applauded as it removed the penalising effect of requesting a re-determination when an individual believes their award to be inappropriate.

Disappointment was, however, expressed that no prescribed period has been proposed for the initial determination to be made when clients first make an application. For many disabled people, particularly those who have had a life-changing event or diagnosis, it was suggested that a predictable timeframe would be extremely helpful.

A number of respondents highlighted that they were confused by this area of the consultation and the regulations (e.g. not understanding the difference between the two timeframes and finding the content contradictory). It was also recommended that the language used in any redrafting be as transparent as possible, for example, when referring to 'days' is this 'working days' or all days of the week:

"What is not clear is that the award will continue until that re-determination is completed to ensure there is no gap in payment. Regulation 26 seems to provide for this but is far from clear. To give people confidence that they will not be left without money, very clear information and guidance will be required." (Third Sector Organisation)

It was highlighted that the period of re-determination requests needs to be communicated in a variety of accessible channels using formats that incorporate the principles of inclusive communication. In addition, it was stated that all information to clients must include accessible methods of communication to empower clients to contact Social Security Scotland independently.

Transparency of processing was also suggested as key during the re-determination stage. Adherence to published timescales was considered critical to avoid added stress or disappointment to applicants. One organisation suggested that, if Social Security Scotland were unlikely to consistently adhere to the proposed timescale, a longer time-frame for turnaround should be published to ensure that clients could be assured of a decision by the end of the cut-off period. Linked to this, concern was raised that there was no accountability in relation to adhering to timeframes. There appeared to be limited awareness of existing reporting requirements, as it was recommended that legislation be introduced requiring timescales and reports to be provided to parliament detailing why and how timeframes are or are not met.

Finally, it was suggested by one individual that Social Security Scotland may have concerns about people trying to use the system illegally. In these circumstances it was recommended that the award should be withheld until an investigation is carried out rather than a low award being made which could then be reduced further following re-determination.

Provision of Vehicles

Regulation 45 sets out the mechanisms for the provision of vehicles and other equipment (such as accessible cars, scooters and powered wheelchairs) linked to the Motability scheme, which will help to meet the mobility needs of eligible individuals.

Most respondents (85%) who provided a response to the closed question, agreed that the regulations reflected the policy intent and this was one of the most widely supported regulations.

	Number of Respondents	% of Respondents	Valid %
Yes	75	59%	85%
No	2	1%	2%
Don't know	11	9%	13%
Missing	39	31%	-
Total	127	100%	100%

The Motability scheme was considered by several organisations and individuals as a vital form of support for disabled people to allow them to enjoy independence. It was felt that continuity with existing provision would be important, with some respondents reassured that no one should lose such provision as a result of the move from the Department for Work and Pensions to Social Security Scotland management.

A few, however, felt that greater clarity was needed in relation to the management and mechanics of this provision. In particular, respondents were keen to know which organisation(s) would deliver the scheme, where garages/suppliers would be located, whether standard cars would be included or only 'accessible' or 'adapted' cars, what the insurance arrangements and excesses would be, and if payments could be made to adapt applicants' standard cars rather than purchasing new adapted ones.

A few respondents suggested that the payments made to suppliers should stipulate the vehicle should be suitably adapted to the individual's needs, without the need for the applicant to make 'top-up payments' for this.

Similar to responses at earlier questions, the 20 metre walking rule was discussed, and in particular how this would impact an applicant's eligibility for the mobility component and access to a vehicle/equipment and the liability to the vehicle provider. Similarly, the 28 days in hospital or care home setting rule was again mentioned, and queries over how the liability to the vehicle provider would be managed when Adult Disability Payments were suspended:

"By retaining the 20-metre rule, this means that if a person can walk one step over 20 metres, they will not receive the higher rate of the mobility component and will lose out on vital financial support and access to the Motability scheme." (Organisation, Disabled People's Organisation)

Other aspects mentioned by one respondent each included:

• a desire to see protections for clients so that they have a set period to try out the vehicle and return it if it was not suitable;
• a preference that the scheme should not be means tested and that no deposit should be required for vehicles/equipment;
• a preference for vehicles to be provided separately to financial support;
• that competition in suppliers was welcomed, although another suggested that the current UK supplier should continue delivery of this in Scotland;
• that the current enhanced mobility payments did not cover a car and an electric wheelchair, and some applicants may need both;
• a desire to extend and promote the National Entitlement Card to enable applicants on the standard rate of Adult Disability Payment to access free public transport; and
• a desire to ensure profits from the scheme can be reinvested to benefit disabled people, for example via reductions in the cost of Motability vehicles, assistance to those losing entitlement to Enhanced Mobility payments upon transferring from Disability Living Allowance to Personal Independence Payment, and investment in/grants to accessible community transport initiatives.

Liability for Overpayment

Regulations 46 and 47 outline arrangements relating to liability for assistance given in error and arrangements to recover overpayments. In addition, factors influencing the determination to affect a deduction decision are outlined.

In total, 65% of respondents believed that the regulations relating to liability for overpayment reflected the policy intent.

	Number of Respondents	% of Respondents	Valid %
Yes	59	47%	65%
No	12	9%	13%
Don't know	20	16%	22%
Missing	36	28%	-
Total	127	100%	100%

A few respondents were satisfied with the arrangements proposed and felt that adequate flexibility was outlined, with a person-centred approach being the driver, to address any concerns relating to repayments:

"We note that the key element here is that reasonable reductions will be made with the individual's agreement, and therefore the individual's financial circumstances are being taken into account." (Local Authority)

A greater number of respondents, however, indicated that they found these regulations difficult to comprehend and were confused by the message being given:

"I'm still in the dark regards how the government will compensate a claimant for underpayments or compensate themselves for overpayments." (Individual)

Considerable concern was raised about people being obliged to pay back money given to them in error. Recovering these overpayments was considered to be ethically wrong and likely to further disadvantage disabled people:

"The Scottish Government has stated a desire to reform aspects of current social security delivery which 'cause stress, anxiety and pain' for disabled people. If it is to meet that ambition, the Scottish Government must put in place stronger regulations with regards to liability for overpayment and liability for assistance given in error… Many disabled people face high living costs, insecure employment and fluctuating income levels. This is perhaps reflected in the overwhelming support (87%), within the Scottish Government's Consultation on Disability Assistance in Scotland, for the proposal that Short-Term Assistance should not be recoverable." (Disabled People's Organisation)

A number of respondents highlighted that disabled people were potentially already more likely to be living in poverty and to be vulnerable. Being required to repay erroneous payments was therefore likely to increase financial hardship. Particular concern related to overpayments being recovered even when an official from Social Security Scotland had made the mistake, as it was believed that this was completely inappropriate. Further disappointment was expressed that there was no provision for discretion not to recover, particularly in a situation where official errors were made. It was suggested that if the applicant had completed the process appropriately and the agency had made the error then overpayment should not be recovered:

"If an individual has given all the information asked for or informed of any changes and an error still takes place, they should not be held liable to repay any monies. Official error or bad advice from the Social Security Agency should not result in recoverable overpayments." (Health Organisation)

"The regulations allow the government to recoup the overpayment. This is the case even when the overpayment is through no fault of the disabled person and caused by an error from the government. Due to the risk of creating financial hardship for an already disadvantaged group, over payments should not be reclaimed when the disabled person was not at fault." (Third Sector Organisation)

One organisation recommended that a specific entry in the legislation should be added to account for departmental error and to ease people's concerns. Several others stressed that it was appropriate for legislation related to repayments to be updated to ensure protection of disabled individuals in line with the Social Security Administration Act 1992.

Clarification was also sought about how a 'reasonable level' of repayment instalments would be determined, particularly since Adult Disability Payment is not means tested:

"…an explanation of how a "reasonable level" will be assessed in respect of a claimant's ability to repay an overpayment is needed - we would like to see income and expenditure both being considered as income alone is not an indicator of affordability. Further clarification on whether income from other benefit payments and/or salaries etc., will be considered is needed and reflections on the appropriateness of this given that Adult Disability Payment is not means tested." (Disabled People's Organisation)

One organisation also expressed that there may be value in the Scottish Government setting out a framework for recovery rates:

"We acknowledge that it may not be appropriate to include such a framework in regulations, although the requirement for such a framework could be included. It may also provide comfort and certainty to claimants if a maximum recovery rate is set in regulations…There should also be an obligation on Scottish Ministers to provide individuals with a period of notice prior to making direct deductions from awards." (Public Organisation)

This same organisation, suggested that a further framework, the need for which could also be provided for in regulations, should set out what is and is not reasonable in terms of consent and would help to provide the necessary clarity.

Few respondents considered it appropriate that overpayments should be returned. In such cases, respondents emphasised that if repayment was necessary this should be arranged in small, manageable instalments, with a proviso that the repayments should not be so onerous as to affect the individual from being able to manage the costs of daily life. Importantly, it was considered important to provide individuals with sufficient time to make repayments.