Child Disability Payment Amendment Regulations: draft equality impact assessment

Executive Summary

• The Social Security (Scotland) Act 2018^[1] (the 2018 Act) sets out the broad framework for the delivery of devolved social security in Scotland. On 1 April 2020, the Scottish Ministers took executive and legal competence for disability benefits, including Disability Living Allowance for Children (DLAC), Attendance Allowance (AA) and Personal Independence Payment (PIP).
• These benefits will continue to be delivered during a transition period by the Department for Work and Pensions (DWP) under the terms of an Agency Agreement agreed with the Scottish Government, to ensure the safe and secure devolution of disability benefits.
• The Scottish Government is replacing DLAC, PIP and AA with new forms of assistance under the 2018 Act. These new benefits will be delivered by Social Security Scotland on behalf of Scottish Ministers with most determinations carrying a right of appeal to the First-Tier Tribunal for Scotland’s Social Security Chamber.
• The first form of disability assistance the Scottish Government is delivering is Child Disability Payment (CDP). This was formerly known as Disability Assistance for Children and Young People. It replaces DLAC for children and young people in Scotland between three months and 18 years of age.
• The Disability Assistance for Children and Young People (Scotland) Regulations 2021 set out how CDP will be delivered and make provision for the transfer of responsibility for delivering disability benefits for children and young people under the age of 18 who receive DLAC in Scotland from the Department for Work and Pensions (DWP) on behalf of Scottish Ministers to Social Security Scotland, and for changing the disability benefits for these children and young people from DLAC to CDP.
• The amendments being introduced by these regulations are being made with the purpose of aligning existing rules on CDP entitlement with the policy intention which is to help improve outcomes for disabled children and young people by providing financial assistance to help meet the additional costs associated with care and mobility needs, as a result of having a disability. To achieve this we are doing the following:
• clarifying the date when payment of the care component will stop when an individual is admitted into a care home or legal detention.
• making changes to the temporary absence provision from the Common Travel Area (CTA) to allow Scottish Ministers to temporarily stop payment of CDP rather than end entitlement. The temporary absence can be for up to 13 weeks for any reason, or up to 26 weeks if the absence is in connection with arrangements made for the medical treatment of the individual, provided the absence is not expected to last more than 52 weeks;
• clarifying that an individual should be capable of having an advance award made where they will satisfy the past presence condition in the next three months.

Amendments relating to the effect of time spent in care homes and in legal detention

• ensuring that children and young people who are in-patients in a hospital or hospice are not treated as though they are in legal detention and will continue to be paid their care component of CDP;

Amendments relating to age criteria

• ensuring that young people can remain on Child Disability Payment past the age of 18 in specific circumstances.

Amendments to the past presence test

• dis-applying the past presence test to serving members of the armed forces and civil servants;

Amendments relating to the mobility component

• clarifying the policy intention as regards the higher rate mobility component to make it clear that clients have to meet the conditions of entitlement for a higher rate of payment for 13 weeks before the new rate of entitlement can begin.

Amendments regarding a late report of a change of circumstances

• clarifying the date when an increase in entitlement can take effect when a change of circumstances is reported late.

Amendments regarding changes in residence between Scotland the rest of the United Kingdom

• clarifying that when an individual fails to report a move from Scotland to either England and Wales, or Northern Ireland, the date that their CDP payment will stop is 13 weeks after the date of the move;
• making it clearer that entitlement to CDP begins on the day after the day on which the person’s entitlement to Disability Living Assistance ends.

Amendments relating to re-determination and appeals

• to clarify that the period of time Social Security Scotland has to conduct a re-determination runs from the date the First-tier Tribunal decides that a re-determination request has been made in such form as the Scottish Ministers require.
• The public sector equality duty is a legislative requirement which states that the Scottish Government must assess the impact of applying a proposed new or revised policy or practice. Policies should reflect that different people have different needs. Equality legislation covers the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.
• This EQIA builds on the principal regulations EQIA that was carried out, ensuring that any potential impacts on young disabled people in Scotland, as a result of the amendments, have been identified. It was found that, overall, our policy would have a positive impact on young disabled people. Where areas of improvement have been identified, we have made changes to better meet the needs of young people in Scotland.
• These changes build on the Social Security (Scotland) Act 2018 framework of a new system that is underpinned by dignity, respect and a human rights based approach to delivering social security for the people of Scotland.
• This impact assessment is one of a package to accompany the regulations. The others are: Business and Regulatory Impact Assessment (BRIA); Child Rights and Wellbeing Impact Assessment (CRWIA); Island Community Impact Assessment (ICIA); and the Fairer Scotland Duty Assessment.

Amendments to Short-Term Assistance

• to make clear that short-term assistance is payable during the period between the First-tier Tribunal setting aside their own decision and then making a new determination;
• to include admission to alternative accommodation to the scenarios when an individual is not entitled to short-term assistance in respect of the care component of CDP;
• clarifies that Scottish Ministers are to make a determination without application when ending an individual’s entitlement to short-term assistance.

Amendments relating to Case Transfer

• to correct citations to the Social Security Contributions and Benefits Act 1992;
• to clarify interpretation to ensure clients with severe visual disability receive the correct rate of the mobility component;
• to clarify the effective date of determinations without application that result from a change to a relevant past Disability Living Allowance award whether the change to that award was made under the UK or Northern Irish rules.