Adult Disability Payment: consultation response

Annex A

A summary of actions that we’ve taken in response to the consultation is provided here:

You said:

Eligibility Criteria

Some respondents answered that the eligibility criteria did not consistently reflect the policy intent. Several of these respondents stated that the eligibility criteria were too narrow in their scope and that they did not adequately reflect the impact of certain conditions. This was particularly relevant for individuals with mental health conditions and variable/fluctuating conditions such as epilepsy, Parkinson’s, and Multiple sclerosis.

Much of the concern focused on the maintenance of the ‘20 metre rule’. Some 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 area of discontent was with the ‘50% rule’ which specifies that an individual must be impacted by their condition on at least half the days in every month. A small number of organisations stressed that they viewed this as inflexible and reflective of an overly medical/ functional approach.

We listened:

We recognise concerns that people have around the way the eligibility criteria is applied and we have set out a number of actions that we are taking to apply the eligibility criteria more 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 consider that in order to protect the entitlement of claimants as we move from Personal Independence Payment to Adult Disability Payment, it is favourable to largely replicate the eligibility criteria as it currently exists in PIP, and that experience of this criteria will be improved with some of the adjustments we have made, along with improved processes and guidance for practitioners and case managers.

We consider that it is too risky to 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 made a number of commitments to change the way which we decisions are made about entitlement. This includes the removal of all functional examinations and the consistent application of the reliability criteria. 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.

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 development of further guidance on the reliability criteria for clients and case managers.
• 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 committed to an independent review of Adult Disability Payment. The review will take place one year following national roll-out and will consider further changes to the eligibility criteria.

You said:

Client consultations

A large majority of respondents supported the proposal to invite clients to a consultation where it is the only practicable way of making a decision on entitlement.

We listened:

Client consultations will only be used where it is necessary in order to make a determination of the idnividual’s entitlement to ADP, and we have taken on board feedback as to how to improve assessments for clients, compared to those which have been received to date from DWP.

Unlike DWP assessments, an ADP consultations will not be a standard duration, and will only be used where necessary for the client’s entitlement to be determined. An assessment 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.

Pracitioners will take the time necessary to fully understand the impacts of a disability and/ or health condition on the client.

If a practitioner makes an informal observation during an ADP assessment, 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 a DWP assessor can make assumptions about the client without telling them, and can do so before or after the assessment has taken place.

You said:

Eligibility Criteria and Scoring System

Some respondents raised concerns around the retention of the points scoring system and commented on the medical focus of this approach.

It was felt by some respondents that the points scoring system was at odds with the social model of disability and does not account for wider environmental and cultural factors relevant to many disabled people and individuals with long term health conditions, particularly progressive and fluctuating conditions.

We listened:

As has been set out above, we consider that in order to protect the entitlement of clients as we move from Personal Independence Payment to Adult Disability Payment, it is favourable to largely replicate the eligibility criteria as it currently exists in PIP, and that experience of this criteria will be improved with some of the adjustments we have made, along with improved processes and guidance for staff. We are, however, making a number of changes to the way decisions are made on an application, including the fairer and more consistent application of the eligibility criteria, to ensure that the full impact of a disability or health condition on an individual is understood and taken into account.

The Scottish Government intends 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, where an assessment is considered to be necessary, a practitioner will discuss with the client the full impact of completing an activity. Guidance and tools will be available to the assessor to ensure that environmental, cultural and social factors are taken into account

You said:

Practitioners

Some respondents expressed concerns about the proposed 2 years’ experience that will be required of Social Security Scotland practitioners before they can carry out a consultation. Some commented that practitioners should have more than 2 years’ experience of working in a relevant profession.

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. It was pointed out by one stakeholder that a social care assistant with 2 years’ experience of working in a care home, where formal qualifications may not be required, did not have comparable expertise with a trained and qualified nurse or occupational therapist with 2 years’ experience.

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.

We listened:

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 consultation, we have amended the regulations to stipulate that practitioners will be required to have at least two years’ post qualification experience. This means that 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.

Furthermore, we are taking actions to address the negative impacts of how Department for Work and Pensions assessments are carried out. We have heard from people with experience of assessments that often they are not 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 PIP 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.

You said:

Awards and changes of circumstances

A majority of respondents agreed with the proposal to have no set award duration for Adult Disability Payment and to set an award review date when a decision on an application is made, for example, setting an award review date 5-10 years in the future for a person with a condition that is unlikely to change.

However, several respondents felt that light-touch reviews are not appropriate or necessary at any point. A significant number of organisations and individuals expressed support for life-long awards and the removal of reviews where the individual’s condition will not change.

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.

We listened:

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 the importance of communicating what ‘Light-Touch reviews’ will look like in practice. We are working with stakeholders and disabled people themselves to develop inclusive communications which will provide the assurances that people have asked for.

In terms of the concerns that 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.

You said:

Re-determinations and appeals

Whilst a majority of respondents agreed with the proposal that clients have a maximum 42 days to request a redetermination, we received feedback that there was a need for flexibility, particularly since support services may be difficult to access.

We have also proposed that when they are requested, re-determinations should be completed within 56 days of the request being made. A small number of respondents felt that 56 days is too long for people to deal with the uncertainty of a re-determination. A couple of respondents stated a preference for a 28 day period to undertake a re-determination.

All respondents agreed that there was a need to provide transparent timeframes for the period of re-determination requests, and to communicate this information in an accessible and inclusive way.

We listened:

We will ensure that flexibility is embedded within the service. For example, Social Security Scotland will be able to accept requests for re-determinations after the period of 42 days has passed if the individual has a good reason for not requesting the re-determination sooner. A consideration will be made on a case by case basis taking the specific circumstances of each case into account.

Where a late request for re-determination is not accepted by Social Security Scotland, individuals will be able to appeal directly to the First tier Tribunal.

We will work with stakeholders, including disabled people themselves and people with experience of the social security system, to ensure that communications are inclusive and accessible to those they are aimed at.

Residency and Presence Rules

A majority of 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.

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 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.

We have listened to the feedback regarding residency and presence rules, in particular around the ‘past presence test’. Since the consultation was launched, a change has been made to the regulations to reduce the past presence test from 104 out of 156 weeks to 26 out of 52 weeks.

You said:

Case transfer

While a majority of respondents appreciated the need for a smooth transition between reserved and devolved benefits, there was widespread concern that this meant many of the inadequacies and unfairness associated with eligibility for Personal Independence Payment would be transferred to the new system, and therefore would not represent a significant improvement. A majority of the respondents expressed some kind of concern about the transfer from DWP to Social Security Scotland.

Some respondents suggested that robust promotion would be required to ensure that those eligible for Adult Disability Payment were made aware that they would not have to apply for it and given reassurances that they would not see a reduction in their award.

Several respondents were concerned that people would ‘lose out’ as a result of case transfer. In particular, there were concerns that some might lose the enhanced mobility benefit from Disability Living Allowance.

We listened:

Individuals already in receipt of DWP administered disability benefits will not need to complete a new application to Adult Disability Payment when it launches.

We will consider how best to communicate with such individuals in advance of delivery. We recognise the pressing need to provide assurance to people who are worried about their award.

You said:

Terminal Illness

The majority of respondents supported that the proposed regulation on terminal illness

Some respondents emphasised their support for awards for individuals with a terminal illnesses being life-long awards whereas others requested further information on the guidance for practitioners.

We listened:

We have made a commitment that all awards made under terminal illness rules will be ‘life-long’ awards. There will be no review dates for these awards

The Chief Medial Officers’ guidance and relevant guidance for Social Security practitioners and case managers will set out the process and the rules that they should follow. This guidance has been developed with the input of clinicians and stakeholder organisations.