Adult Disability Payment: consultation response

Social Security : A Consultation on Adult Disability Payment : Scottish Government response

Ministerial Foreward

This consultation builds on our commitment to designing Disability Assistance in partnership with disabled people and disabled people’s organisations. Despite the considerable challenges of the Covid-19 pandemic, a significant number of disabled people and a wide variety of organisations have responded, which we are very grateful for. Together as a society we are delivering a social security system based on the principles of dignity, fairness and respect.

I am pleased that most of our proposals were supported by respondents. I also recognise that there are some areas where we have been urged to go further and I appreciate the ambition to make bigger and bolder changes to disability assistance in Scotland. However, I also recognise the over-riding need to deliver Adult Disability Payment on time and in a safe and secure manner. While we have made a number of positive changes in response to the consultation, we have also had to be mindful of our priority to ensure that people continue to receive the payments they rely on, as we introduce new forms of Scottish disability assistance.

It is important to emphasise that the regulations are only part of the story. The way that Adult Disability Payment will be delivered will be dramatically different to Personal Independence Payment. We will use the feedback from this consultation to make further changes to ensure that Adult Disability Payment delivers a better service and a better experience for disabled people in Scotland. The choices we are making will make a meaningful difference to the way people experience applying for and receiving disability assistance; our choices will create a system that trusts people, and treats them with fairness, dignity, and respect.

I am immensely grateful to everyone who participated in the consultation, whether that was online or through one of the many virtual consultation events that the Scottish Government held. Covid-19 has affected all of us and disabled people have faced particular challenges over the past year, whether that has been due to the isolation of lockdown, disruption to routine medical treatment or difficulties accessing essential services. Thank you to everyone who put in considerable time and effort to engage with our proposals for Adult Disability Payment.

I will look forward to continued engagement about the priorities for developing a disability assistance system that works for disabled people in Scotland.

Introduction

We are talking to and – importantly – listening to many individuals, organisations and groups with direct and personal experience of the social security system. We are designing Adult Disability Payment using evidence of what works and what does not work. We are testing everything that we do with the people who will use or interact with it to make sure we get it right, whether that is our application forms or our new client consultation service. What we deliver on day one of Adult Disability Payment will not be the limit of our aspirations. We want to establish a system that can continue to improve and to respond to feedback and the experiences of those that use it.

About the Consultation Process

The Scottish Government sought views between 20 December 2020 and 15 March 2021 on the draft regulations for Adult Disability Payment.

The consultation built on our work to date with Experience Panels and stakeholder groups such as the Disability and Carers Benefits Expert Advisory Group. It follows our 2019 Consultation on Disability Assistance^[1] during which we received 263 responses from individuals and stakeholder organisations. These responses have shaped our approach to the development of social security in Scotland. The purpose of this consultation is to gather views on the draft regulations and identify any gaps, issues or unintended consequences. The consultation will inform our final decisions on policy and it furthers the user involvement in the development of a new social security system based on dignity, fairness and respect.

The Scottish Government has published an analysis of responses to the consultation and the report is available here: https://www.gov.scot/ISBN/978-1-80201-110-4

The draft regulations are available to view in the supporting files alongside this publication.

When discussing the prevalence of certain views, we have used the following terms to indicate the proportion of consultation responses that raised a particular point:

• “Few”: less than 5 respondents
• “Several”: between 5-9
• “Large numbers of respondents”: more than 10

Introductory and Interpretation (regulations 1 and 2)

This part sets out when the regulations will come into force. It also provides definitions of the key terms used throughout the regulations. Specific terms defined through case law have been added here to ensure that existing Personal Independence Payment case law is reflected in the interpretation of these regulations, for example, the definition of aid or appliance. Other terms and phrases used specifically in other provisions have been defined within the relevant regulation itself.

Respondent Feedback

The majority of respondents (77%) agreed that regulations 1 and 2, as currently drafted, would meet their policy intent. Several who provided support overall did, however, suggest that there could be even greater clarity around some of the key terminology used, to ensure that the regulations could be understood by all. One specific suggestion was for a single clear definition of the ‘Adult Disability Payment (ADP)’, and another was for a clearer definition of ‘determination’ (i.e. as it refers to a determination of entitlement).

There were mixed views on the proposal to carry out a pilot for Adult Disability Payment. While some welcomed the pilot on the basis that it would provide essential opportunities for learning, a few respondents indicated that they felt a pilot scheme may slow down the introduction of the new payment and leave some people on Personal Independence Payment for longer. Others commented that they would have like more information on the pilot scheme.

Scottish Government Response

We have listened carefully to the feedback on this part of the regulations and have made changes to introduce greater clarity around the some of the key terminology.

For example, we have introduced a new definition of Adult Disability Payment. We have also clarified the definition of ‘determination’, with reference to section 25 of the Social Security (Scotland) Act. A ‘determination’ refers to a determination of entitlement to Adult Disability Payment.

We are confident that a number of technical alterations to the regulations, such as the addition of interpretations and a more consistent use of key terminology, will ensure greater clarity and consistency throughout the regulations and make them more accessible.

Disability Assistance for Working Age People Overview (regulation 3)

Eligibility – Daily Living Component and Mobility Component (regulations 4 – 9)

Regulation 3 provided at the time of the public consultation that a client is entitled to Adult Disability Payment when they meet the following eligibility rules:

• the daily living component criteria;
• the mobility component criteria;
• the required period condition;
• the residence and presence conditions; and
• the age criteria.
• The development of further guidance on the reliability criteria for clients and case managers.

It also set out the component parts of the payment and specified the application requirements.

Regulations 4 and 5 set out the Daily Living Component and Mobility Component, and outlined individuals’ eligibility and entitlement to the standard and enhanced rates.

Respondent Feedback

A majority of respondents (76%) who answered felt that regulation 3 was clear in its intent and agreed with the eligibility rules. Similarly, around three quarters (76%) of the respondents that provided an answer agreed that the regulations related to the Daily Living Component and Mobility Component reflected the policy intent.

Several respondents felt that the eligibility criteria were too narrow in their scope and did not adequately reflect the impact of certain disabilities and health conditions. Many responses specifically focused on the ‘20 metre rule’, i.e. the distance in metres an individual can walk to determine eligibility for the mobility component, a rule which is used in Personal Independence Payment, and we have replicated in Adult Disability Payment.

A few responses suggested that the 20 metre measure was a significant barrier for those with neurological conditions, mental health issues, learning disabilities, and fluctuating conditions. Therefore, many of these responses suggested that this rule should be reconsidered or removed.

Another significant focus of discussion was the ‘50% rule’ (i.e. that an individual must be impacted by their condition on at least half the days in every month to qualify for Adult Disability Payment). A few organisations, commented that they considered this as inflexible. Some comments also sought clarity over how the impact of carrying out activities would be taken into account.

A majority of respondents supported our proposal to invite clients to a consultation where it is the only practicable way of making a determination of entitlement. Some respondents raised concerns around the retention of the points scoring system and it was felt by some that the points scoring system was at odds with the social model of disability.

Ultimately, a majority respondents wanted a clear, easy to understand and transparent system. They also sought reassurance that no one would experience a loss of eligibility as a result of the introduction of Adult Disability Payment.

Scottish Government Response

We have set out a number of actions to apply the eligibility criteria fairly and consistently, and to ensure that the impact of a disability or health condition on an individual, including the impact of fluctuating conditions, are fully taken into account.

We are confident that the changes we are proposing will significantly improve how decisions are made. For example, we will aim to collect one piece of supporting information from a formal source, such as from a GP or a support worker. This information only needs to determine, on the balance of probabilities, that the individual’s condition is consistent with the needs detailed on their application.

This is a departure from the current system which requires formal supporting information to evidence each and every difficulty that the client reports experiencing. We also know that useful insights can be provided by a client’s informal support network including family, friends, or unpaid carers. Under the Scottish Government’s approach, equal consideration will be given to all sources of information.

If a practitioner makes an informal observation during a consultation, they must inform the client of this observation and any inferences drawn from it. The client, or person accompanying them, must be given the opportunity to respond to the observations. This is a significant change to the current system where an assessor can make assumptions about the client without telling them, and can do so before or after the assessment has taken place.

Actions also include the removal of all functional examinations and more consistent application of the reliability criteria, supported by fuller definitions of this criteria and comprehensive guidance for case managers. In order for a determination to be made that a client is able to undertake any of the Adult Disability Payment daily living or mobility activities, they must be able to do so reliably. The reliability criteria require consideration to be given to the client’s ability to complete an activity safely, to an acceptable standard, repeatedly, and in a reasonable time. This means that when an individual is asked whether they can complete an activity, the full impact of that activity on the individual will be considered.

Since the consultation, a number of changes have been made to how the eligibility criteria will be applied and explained to clients, including:

• Further improvements to the application form to include clear guidance on how the eligibility criteria is applied. This will ensure a client is supported in providing relevant information, guided by the reliability criteria, about how they feel after completing an activity and how long the impact lasts for.
• The introduction of bespoke consultation durations. Unlike DWP assessments, a consultation will not be a standard duration. Instead, a consultation will only cover the areas of the application form which are relevant to the client and on which the case manager has requested information to make a decision. Clients will therefore not be asked unnecessary or repeated questions nor will they be rushed in giving an account of how completing an activity makes them feel. Practitioners will take the time necessary to fully understand the impacts of a disability and/ or health condition on the client.
• The development of a prompt tool to ensure practitioners cover the reliability criteria and to help them ask questions relevant to a particular disability or health condition. This will further enable practitioners to understand the full impact of an individual’s disability and/ or health condition.
• Undertaking work to consider how better to communicate how the eligibility criteria will be applied, including the removal of functional examinations and information on the role of case managers and practitioners, to provide assurances to those in receipt of disability benefits ahead of delivery.

We have proposed changes to the way decisions are made on an application for Disability Assistance. We intend to move away from a medical model of disability. This is why we have removed all functional examinations including physical examinations and the Mental State Examination. Instead, a practitioner will discuss with the client the full impact of completing an activity and of a disability or health condition on an individual. Guidance and tools will be available to the practitioner to ensure that environmental, cultural and social factors are taken into account in a fairer and more consistent application of the eligibility criteria.

We consider that, in order to protect the entitlement of individuals as we move from Personal Independence Payment to Adult Disability Payment, we consider it necessary to largely replicate the eligibility criteria as it currently exists for Personal Independence Payment. We are confident that experience of this criteria will be improved with many of the adjustments we have made, along with improved processes and guidance for case managers

We consider that, in order to protect individual’s existing entitlement, we should not make considerable changes to the eligibility criteria before delivery of Adult Disability Payment. Any changes which widen eligibility risk the Department for Work and Pensions deciding that Adult Disability Payment is not a comparable benefit to Personal Independence Payment and withdrawing automatic entitlement to reserved payments from Scottish clients. They may decide therefore that Adult Disability Payment should not provide access to passported benefits and premiums which Personal Independence Payment currently ensures entitlement to such as Housing Benefit and Jobseeker’s Allowance.

We have undertaken further research to understand how the current application of the eligibility criteria by the Department for Work and Pensions impacts on individuals with particular protected characteristics, and the extent to which our proposed changes will address any negative impacts. This is further explained in our draft Equalities Impact Assessment on Adult Disability Payment.

The qualifying period conditions (regulations 10 – 13)

Regulations 10-13 of the draft regulations defined the required period condition which must be satisfied to be eligible for each of the components of Adult Disability Payment.

Respondent Feedback

Around three quarters (74%) of respondents who provided an answer at the closed element of this question agreed that that these regulations met the policy aim and provided necessary transparency.

Respondents’ main concern was that the 13 week period to be considered before the relevant date may not suitable for individuals with unpredictable and fluctuating conditions. There were particular concerns for those newly diagnosed with epilepsy, where the frequency of seizures may be limited, but the impact on the individual’s life would be significant and immediate. It was also argued that the fluctuating effects of mental health conditions were not well suited to this timescale measure. As such, it was felt that this ‘blanket policy’ should not apply to all conditions.

A few respondents also felt that 13 weeks was too long for applicants to be made to wait, particularly those with severe and permanent disabilities/conditions, those that may incur significant costs over this time period as a result of their condition, and for severely inhibiting conditions that can appear suddenly (such as strokes and mental health problems).

Scottish Government Response

We welcome that the majority of responses agree with our proposed approach and consider that it provides transparency. However we recognise that there were some concerns expressed about the qualifying period.

We have concluded that maintaining the 13 week required period prior to ADP eligibility is in keeping with the policy intent for Adult Disability Payment and for Disability Assistance more widely. The application of the eligibility criteria for Adult Disability Payment will account for unpredictable and fluctuating conditions and we will take a person-centred approach to decision making. A reduction in this period would potentially extend eligibility to individuals with temporary, short term disabilities whose lives are not impacted in the same way as people with long term disabilities and health conditions. For individuals with a terminal illness, there will be no qualifying period.

Residence and Presence Conditions (regulations 14 – 21)

Regulations 14-21 set out the residence and presence requirements that must be satisfied for eligibility, along with the circumstances where exceptions would be made.

Respondent Feedback

A large majority (79%) of respondents who answered the question agreed that these regulations met the policy intent. Many respondents provided supportive comments, suggesting that the regulations would ensure the system was ‘fair’, would help stop fraud, provide flexibility, and provide key exemptions to the ‘past presence test’ for certain groups (such as for people with terminal illness, people awarded refugee status, and where someone can ‘demonstrate a genuine and sufficient link to Scotland’).

A small number of respondents commented that the ‘past presence test’, which requires the individual to have been resident in Great Britain for 104 weeks in the last 156 weeks, would be discriminatory and unfairly exclude some individuals. It was also suggested that those impacted by COVID-19 travel restrictions could be negatively impacted.

It was suggested that the past presence test be reduced or dropped entirely with no qualifying period for eligibility required. Suggested shorter time periods included residency of 26 weeks (or six months). Alternatively, one organisation suggested that the ‘habitual residence test’ would provide a suitable alternative.

Scottish Government Response

We welcome the majority feedback in support of these regulations. We have also listened to the feedback relating to the ‘past presence test’. Since the consultation, we have made a change to the regulations to reduce the past presence test from 104 out of 156 weeks to 26 out of 52 weeks.

Entitlement Under Special Rules Relating to Age (regulations 22 – 25)

Regulations 22-25 set out information in relation to eligibility and entitlement linked to age.

Respondent Feedback

Over three quarters (78%) of respondents that provided a response agreeing that the regulations were clear and reflected the policy intent.

It was felt that the regulations were straightforward and would help adult applicants. The move to starting eligibility at age 16 was seen as sensible as it linked with guardianship/transition, as well as provided flexibility and choice for young people aged 16-18 where they could choose to remain on Child Disability Payment.

The main concerns were linked to the upper age limit. There was some concern that Adult Disability Payment might cease when a client reached retirement age. Meanwhile, bringing the upper age limit in line with state pension age was also welcomed by some, while the ability to retain entitlement to the mobility component beyond state pension age was seen as a helpful safeguard.

Scottish Government Response

We welcome the positive feedback regarding entitlement and eligibility relating to age and have therefore not made any further changes to these specific regulations. We recognise the importance of clear communication with clients that entitlement to Adult Disability Payment will not entirely cease when they reach state pension age. We continue to work with organisations and disabled people themselves to develop inclusive communications so that the necessary assurances will be provided.

Entitlement Under Special Rules Related to Terminal illness (regulation 26)

Regulation 26 outlines eligibility and entitlement criteria for individuals applying to Adult Disability Payment who are terminally ill. It also outlined that the daily living and mobility component criteria are dis-applied where this regulation applies.

Respondent Feedback

A large majority (89%) of respondents agreed that the regulations reflected the policy intent with many respondents providing supportive comments. Several comments considered that these regulations would create a smoother process for people with a terminal illness and remove ongoing uncertainty in relation to eligibility. Respondents also felt that this would provide greater dignity for applicants, and create an ‘improved and fairer system’.

The only common concern, which a small number of respondents noted, was that the regulations did not make reference to awards for those with terminal illnesses being life-long awards.

Scottish Government Response

We are pleased that a large majority of respondents supported our approach to introduce a new definition of terminal illness. Our new definition removes the requirement that a person must reasonably be expected to die within 6 months. Instead we will rely on the clinical judgement of doctors and registered nurses involved in the individual’s care.

All awards made under terminal illness rules will be ‘life-long’ awards and there will be no review for these clients. This will be made clear in the Chief Medical Officers’ guidance and the relevant guidance for Social Security Scotland practitioners and case managers.

Payability when person is residing in certain accommodation or is detained in custody (regulations 27 – 32)

Regulations 27-29 set out how time spent residing in certain accommodation such as care homes or as a hospital in-patient would impact Adult Disability Payments, as well as the related exclusionary criteria.

Regulation 30 outlined the impact of legal detention on the payments. Regulation 31-32 covered the period of residence in such accommodation (including clarification over the start and end date of residence), and the payment of Adult Disability Payment between two periods of residence.

Respondent Feedback

A majority (63%) of respondents agreed that the regulations reflected the policy intent.

Some respondents however were concerned over a potential loss of payments for individuals that needed recurring stays in hospital, and/or that the loss of Adult Disability Payments after 28 days could lead to longer-term impacts on an individual’s wellbeing. Respondents noted that clients will have existing financial commitments and continuing needs whilst in a hospital/care home/in custody, and which if not met during this time would have a detrimental impact upon being discharged.

Two organisations were also concerned that the potential for Adult Disability Payments to cease could result in individuals being reluctant, or turning down certain specialist in-patient treatments because of potential financial implications.

A few respondents highlighted that not all care home residents are disabled or elderly. These respondents noted that some younger people require the accessible/supported living environment, but they continue to work and maintain a level of independence. There was concern that such individuals would lose access to Adult Disability Payment, their car, and their independence under the rules set out in these regulations.

Unintended consequences were also highlighted. Some felt that the stoppage of Adult Disability Payment would impact other family members/housemates by reducing overall household income. Family members may also continue to face the costs of providing certain products for the client during their stay in hospital/a care home/prison. Meanwhile some commented that the regulations were fair.

Scottish Government Response

We do not propose to make significant changes to the rules which were contained in the consultation draft, however these have since been supplemented with further provisions, including to include residential educational establishments.

Whilst we recognise that some concerns were expressed regarding the rules relating to certain accommodation, the intention of Adult Disability Payment is to provide financial assistance to mitigate the costs that individuals and their families incur as a result of a health condition or disability. Continuing to pay Adult Disability Payment where an individual’s care needs are met in full otherwise from public funds, for instance in a care home, hospital or secure accommodation, would lead to a funding duplication in meeting the individual’s care needs.

Although payment will stop after 28 days of an individual being in alternative accommodation, entitlement is unaffected. Therefore, if and when a client leaves, payments will resume, subject to continuing to meet the eligibility criteria for Adult Disability Payment.

Adult Disability Payment is not intended to be an income-replacement benefit. Income replacement benefits are provided in the form of UK Government administered reserved benefits such as Employment and Support Allowance (ESA) and Universal Credit (UC). If we were to deliver Adult Disability Payment as an income-replacement benefit, there is a risk that DWP would not recognise it for the purpose of assessing a client’s eligibility for reserved benefits, including access to passported premiums or benefits.

The purpose of the “28 day rule” is to ensure that longer term periods in alternative accommodation are not subject to funding duplication, by receiving both ADP and the costs of that care being covered. The 28 day window ensures that people cared for in temporary respite do not lose access to payments as well as recognising that where care placements break down or periods within alternative accommodation end at an early stage, the client does not experience the additional disruption of losing access to Disability Assistance.

Making of Applications and Payments (regulations 33 – 37)

Regulations 33-37 outlined the weekly payment rates for Adult Disability Payment, including the standard and enhanced rates for both the daily living and mobility components. They also outlined any deductions required as a result of people receiving the Constant Attendance Allowance.

In addition, these regulations set out the rules around who can receive the payment, the date of application/when entitlement should be taken to begin, and defines the period covered by an application. They also detailed the timing of the payments, and the need for continuing eligibility.

Respondent Feedback

Most respondents (83%) who answered the question agreed that these regulations reflected the policy intent.

Respondents were particularly supportive of the Scottish Government’s approach to the application process including when an application will be considered made and the lack of set review periods.

However some respondents felt that the payment rates were not high enough to cover the costs of living with a disability or health condition, or the costs of purchasing care services, with respondents suggesting that the rates needed to be increased.

Several respondents also discussed the issue of continuing eligibility, ‘light touch’ reviews, and indefinite awards. A few sought further information about how decisions of continuing eligibility would be made, details on what a 'light touch' review would involve, and commitments for Social Security Scotland to provide clear justifications for reducing awards following ‘light touch’ reviews.

Indefinite awards were be welcomed with respondents expecting this proposal to provide stability and financial certainty for individuals with degenerative conditions or conditions that will not improve.

Indeed, several comments were provided throughout the consultation which stressed the importance of implementing long-term/life-long awards and ‘light touch’ review periods, and sought reassurances that these would be included in the regulations in order to protect such provision.

For the most part, stakeholders felt that routine reviews would give applicants and their families/carers more stability knowing roughly when their review would take place. It was expressed by some that five to ten years was a reasonable time period to accommodate changing conditions and that having a shorter review date may cause unnecessary concern and anxiety.

Like some of the consultation respondents, event delegates also felt that those with life-long conditions/disabilities should not be reviewed or reassessed (and should also not be subject to ‘light touch’ reviews), and that indefinite awards were appropriate in these cases.

Scottish Government Response

Payment level has been set at the same level as Personal Independence Payment. This is to ensure a safe and secure transition and to avoid a situation where some clients with the same needs are in receipt of a different awards because of when their award happened to have been transferred to Social Security Scotland.

All awards will be made on a rolling basis, with no set date for an award ending. In cases where it is unlikely that a client’s condition will improve, there will be at least five years between Light-Touch reviews. Work remains underway to establish parameters that could be put in place for the provision of indefinite awards for certain clients whose needs are very unlikely to change. All awards made under the Special Rules for Terminal Illness (SRTI) will be ‘life-long’ awards with no review.

We recognise that feedback has emphasised the importance of clearly communicating what ‘Light-Touch reviews’ will look like in practice in order to provide assurances to people. We have previously been clear that we will not needlessly reassess clients and that there will be a straightforward process for clients to report a change of circumstance should their needs change.

Qualifications and Experience Necessary to Carry out Assessments (regulation 38)

Regulation 38 in the draft Regulations set out the requirement for practitioners to have been employed for a cumulative period of at least two years, in the direct provision to individuals of health care or social care services. It also set out the specific experience required in cases that require consideration of the individual’s mental health condition or conditions, and/or individual’s learning disability or disabilities.

Respondent Feedback

Just over two thirds (69%) of respondents who answered the question believed that the regulations relating to qualifications and experiences reflected the policy intent.

However, a number of organisations expressed concerns over the proposal that practitioners will be required to have 2 years’ experience in a health or social care role. This feedback appeared to be focused on concerns that practitioners from the health and social care sector, with limited experience of working with disabled people, could carry out consultations. It was therefore suggested that this requirement was increased or changed from ‘cumulative’ to ‘continuous’.

A further concern was raised by some respondents about whether training for practitioners took into account different expertise and experience and whether such training would be suitable. Moreover, it was suggested that practitioners employed by Social Security Scotland should receive training and support on health conditions affecting their clients as well as on dying, death and bereavement, including specifically relating to people who are terminally ill, as well as those receiving palliative care support.

Scottish Government Response

We have previously committed that consultations will be carried out by people who are ‘suitably qualified’ to do so and employed by Social Security Scotland. In response to concerns raised during the public consultation, the regulations have been amended to stipulate that people who are suitably qualified to carry out consultations will be required to have at least two years’ post qualification experience. This means that Social Security practitioners will now need to have two years’ work experience after having obtained their qualification. In many cases practitioners will therefore have three years of experience while completing their qualification in addition to the two years required after that.

The respondents concerns regarding the experience required to undertake consultations appear to relate to the negative impacts of how DWP assessments are carried out. In particular, they relate to not being heard, listened to, or believed by an assessor. We are making a number of changes to how decisions are made on an application which are aimed at directly addressing these concerns, including:

• Consultations will not follow the standard duration length of DWP assessments meaning practitioners will have meaningful time to work with case managers and clients.

• Practitioners will not work in a commercial environment such as that which DWP assessors work in. Instead, Social Security Scotland practitioners’ role will be underpinned by the values of dignity, fairness and respect. Furthermore, practitioners will not have targets to meet related to award rates and quality grades for example, which can cause adverse outcomes in the current system.

• The role of a practitioner will be substantially different to the role of a DWP assessor. Practitioners will not be trained to ‘assess’ clients. Instead they will be trained to gather information from clients by having conversations with them, and to support case managers with information and advice.

• Where a client has a mental health condition or a learning disability or difficulty, a consultation will be carried out by a practitioner with relevant experience. This is intended to address concerns with the current DWP service around clinicians without a relevant background being involved in undertaking the medical assessments, and that individuals with a mental health condition were not properly listened to or understood.

• Specific training and guidance will be provided to practitioners and case managers on the Special Rules for Terminal Illness.

Determinations of entitlement to Adult Disability Payment without application (regulations 39 – 43)

Liability for Overpayment (regulation 46 and 47)

Regulation 39 in the draft Regulations set 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.

Regulations 46 and 47 outlined 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.

Respondent Feedback

Overall, 72% of respondents believed that the regulations relating to entitlement without application reflected the policy intent.

Additional clarification was sought on the process following over- or under-payment made in error. 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.

Another concern raised by some respondents related to the timeframe of reporting a change of circumstances. Some respondents commented that only having 4 weeks to report changes could disadvantage individuals who had experienced a gradual deterioration or change that could affect their eligibility.

Scottish Government Response

We understand concerns around overpayments and we agree that no-one should be placed into hardship as result of repaying a debt to Social Security Scotland. Any repayments or deductions should be made on a sustainable basis. Instead of setting an arbitrary maximum and minimum which would then be enshrined in legislation, where an over-payment has occurred, we will take a case by case approach to ensure we take into account the financial circumstances of individuals.

The regulations have been further developed since the public consultation was launched, and provision has now been made for a change in entitlement due to over or under payment to take effect from the same date that the earlier determination took effect- so, entitlement will be corrected for the full period affected by the over or underpayment.

We understand that there were concerns over a 4 week timeframe to report a change of circumstance. The regulations make provision that if an individual reports a change more than 1 month after it occurs, but within 13 months of its occurrence, then their entitlement will commence at the same time as someone who reported within 1 month, so long as there is good reason for delay. Guidance will detail circumstances which may be considered to be good reason for reporting beyond 1 month. For example, it will set out the scenarios where a gradual deterioration in a health condition and/or a disability constitutes a good reason.

Periods in respect of a re-determination request

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

Respondent Feedback

A majority (77%) of respondents believed that the regulations relating to re-determination requests reflected their policy intent.

Many respondents commented that it was helpful to provide transparent timeframes. A number of organisations highlighted that the timescales proposed were an improvement from the Personal Independence Payment arrangements and that 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.

In contrast, some indicated that the proposed time periods may be excessively long, particular 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 reassessment, 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. Gathering necessary information to support the re-determination may require a longer period of time.

It was not felt by some that those engaged to undertake the re-determination should require 8 weeks as this delay could significantly impact on people’s lives. It was highlighted that waiting for re-determination was incredibly stressful for clients. However, the proposed introduction of 'Short-Term Assistance' was welcomed as this ensures that individuals continue to receive their previous payment amount until the outcome of a re-determination has concluded.

Scottish Government Response

We do not propose to make a change to these specific regulations. However, we recognise concerns around the need to provide flexibility for clients requesting a re-determination. The Social Security (Scotland) Act 2018 provides an extension of up to a year for late re-determination requests where there is good reason, to ensure that flexibility is built into the process. Guidance is being developed to ensure that, where a client requests a late redetermination, their request is considered in a holistic manner, taking account both their individual circumstances and their disability.

Where a late request for re-determination is not accepted by Social Security Scotland the individual will have the right to appeal.

Provision of vehicles (regulation 45)

Regulation 45 set 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.

Respondent Feedback

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. The Motability scheme was considered by several organisations and individuals as a vital form of support for disabled people to enable a sense of independence.

A few, however, felt that greater clarity was needed in relation to the management and mechanics of the scheme. In particular, respondents expressed an eagerness 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.

Scottish Government Response

We welcome the support of respondents to these regulations and understand the importance of the Motability Scheme to disabled people. Further information around the details of the Accessible Vehicles Scheme will be made publicly available in the relevant guidance.

Transfer from Child Disability Payment to Adult Disability Payment

This part will make provision for transfer of individuals from receiving Child Disability Payment to Adult Disability Payment. Policy is not yet settled on this matter and no draft provisions were included for the purposes of this consultation.

Transfer of Cases between Scotland and the rest of the United Kingdom

This part will make provision for transfer of cases between Scotland and the rest of the United Kingdom. Policy is not yet settled on this matter and no draft provisions were included for the purposes of this consultation.

Independent review of Adult Disability Payment and monitoring

We plan to establish a group to undertake a review of Adult Disability Payment to commence in summer 2023. The members and chair of the group will be drawn from outside the Scottish Government. The group will also secure input from people with lived experience.

Holding the review in summer 2023 will provide the opportunity for Social Security Scotland to administer Adult Disability Payment for a full year so the necessary data and feedback from individuals can influence the recommendations.

The review will be wide ranging to allow consideration of the suitability all of the activities, descriptors and supporting criteria. For example, the review will enable an understanding of the impacts of how the eligibility criteria is being applied, including the reliability criteria, and whether there are any disproportionate impacts on those with certain disabilities or health conditions, or other protected characteristics.

We will then make the independent report and recommendations publically available to allow for transparency, scrutiny and visibility.

Next Steps

We will use this consultation to inform and refine our regulations and policy proposals for Adult Disability Payment.

In addition, the Scottish Commission on Social Security (SCoSS) will scrutinise the Regulations before they are laid in the Scottish Parliament.

We will continue to engage on Adult Disability Payment using the Experience Panels, as well as key groups including the Disability and Carers Benefits Expert Advisory Group (DACBEAG) and the Ill Health and Disability Stakeholder Reference Group (IHDSRG).

We are also continuing to carry out user research to ensure every aspect of Adult Disability Payment has been tested with people who have experience of the social security system.