Child Disability Payment Amendment Regulations: draft fairer Scotland assessment

Fairer Scotland Assessment

Title of Policy, Strategy, Programme etc.

The Disability Assistance for Children and Young People (Amendment) (Scotland) Regulations 2021

Summary of aims and expected outcomes of policy

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 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 :

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;
• clarifying the date when payment of the care component will stop when an individual is admitted into a care home or legal detention.

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;
• 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 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 when 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.

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 impairment 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.

This policy is closely aligned with the Healthier, Wealthier and Fairer Strategic Objectives, and contributes to the following National Outcomes:

• We respect, protect and fulfil human rights and live free from discrimination;
• We tackle poverty by sharing opportunities, wealth, and power more equally;
• We live in communities that are inclusive, empowered, resilient and safe; and
• We grow up loved, safe and respected so that we realise our full potential.

Summary of evidence

This Fairer Scotland Duty assessment has been developed drawing on a range of primary research, including 2 public consultations,^[2][3] engagement with those with lived experience via focus groups, as well as ongoing consultation with stakeholders through our independent Disability and Carers Benefits Expert Advisory Group (DACBEAG)^[4] and the Ill Health and Disability Benefits Stakeholder Reference Group.

This work also drew upon interviews conducted via the Scottish Government's Social Security Experience Panels.^[5] The Panels involve people with lived experience of the benefits that are coming to Scotland, and have over 2,400 members drawn from people across Scotland. In 2019, a further round of recruitment took place, targeting specific groups identified as being underrepresented such as ethnic minorities and young people.

A specific survey regarding the case transfer process was sent out to Experience Panel members in February 2019. 559 responses were received and a summary of these responses was published^[6].

Despite the continuing impact of coronavirus, work with Experience Panels has continued, with engagement around the following topics helping to inform our policy.

The link between poverty and disability

Research has shown that poverty disproportionately affects those having a disability, with disabled people experiencing higher poverty rates than the rest of the population.^[7] UK-wide, disabled people make up 28% of people in poverty and a further 20% of people in poverty live in a household with a disabled person. This statistic is largely replicated in Scotland where around 410,000 households in poverty (42% of all households in poverty) include a disabled person or are disabled themselves.^[8]

Scotland-wide, there are higher levels of child material deprivation in households containing a disabled person, at 20% compared to households without a disabled person (at 8%). There are higher rates of food insecurity among disabled people (18%) compared to non-disabled people (5%). There is a higher likelihood of living in relative poverty after housing costs with a disabled person in the household (24% of families with a disabled person compared to 17% of families with no disabled members). If disability benefits are not counted towards household income, this raises to 30%. 'Family' in these circumstances referred to the core family in a household, comprising one or two adults and children, if any.

Disability and unemployment/under-employment are positively correlated. 14% of 'workless families' (defined as families where parents are predominately out of work or have little connection to the labour market; who live in social rented accommodation and are reliant on benefits for their income) have one or more children with a disability or long-term illness.

A further 17% of 'struggling to get by' families (unemployed or working part-time, half of which are single-parent families) have one or more children with a disability or long-term illness^[9]. Child material deprivation in households containing a disabled person reaches 20% compared to 8% of households without a disabled person.

Even where one or more parent in the household is in employment, within families with a disabled child, the same level of income secures a lower standard of living than it would for a disabled person.

Research conducted by the Papworth Trust^[10] showed that the annual cost of bringing up a disabled child is three times greater than for a non-disabled child. Disabled people face higher costs than non-disabled people, such as the cost of specialist equipment, therapies and home adaptations to manage a condition.^[11] Travel costs too, may be higher as families have to afford the cost of taxis to and from hospital where it is not possible to use public transport (and/or public transport may not be available).

Poverty amongst disabled people is likely to be exacerbated in light of the COVID-19 crisis. In the United Nations policy brief on disability- inclusive response to COVID-19^[12], the report makes connections between the pandemic and poverty, with disabled people likely to be disproportionately impacted.

Summary of assessment findings

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

An individual who is entitled to the care component will be paid the care component for the first 28 days of their stay in a care home or in legal detention. These regulations remove a potential ambiguity regarding on the date when individual stops being paid the care component. The changes made within these regulations make clear that payment will stop on the 29th day, not the 28th.

They also amend the definition of legal detention as defined in regulation 2, 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. This regulation seeks to ensure that an individual detained in these circumstances should not be considered to be in legal detention for the purposes of CDP, and their assistance should remain in payment. This will help ensure consistency for young people and their families regardless of which environment a young person becomes resident in.

These changes will help to reduce inequalities of outcome as it will ensure that a child or young person's care needs are met, and the household does not suffer financial deprivation because of the financial impact of supporting a disabled child whilst under legal detention at home. It also avoids potentially putting children and young people and their families in the situation whereby they are faced with a sudden reduction in part of a household's income. This is particularly important given the research which indicates that households with at least one disabled child are far more likely to be in poverty.

Amendments relating to age criteria

These regulations amend the age criteria to allow for young people to remain on Child Disability Payment after age 18 in specific circumstances. This is to primarily avoid the scenario whereby individuals cease to be entitled because a determination of entitlement has not yet been made in relation to Adult Disability Payment.

We have heard how the transition from Child DLA to PIP can be challenging for young people. In order to ensure continuity of payments for young people on reaching age of 18 in some exceptional circumstances.

This amendment will allow for the individual's needs to be met during the period of transition between child and adult services. It also aligns with the original intentions of CDP, which are to provide some financial support to meet the additional cost of having a disability, and to ensure that disabled children and young people can access appropriate care and remain mobile, allowing them to feel more included in society.

It will have a positive impact on disabled young people by reducing the anxiety and challenges during what can often be, a challenging time for families. It will also help mitigate any further drop in household income at a time when other child benefits and respite care stops.

These changes are largely informed by the original output from our Social Security Experience Panels, our expert advisory groups, informal research, and public consultation.

Amendments to the past presence test

Under the principal regulations, serving members of the armed forces and civil servants are required to have met each of the residence and presence tests immediately prior to the start of their absence caused by their employment, including the past presence test, which requires 26 weeks' presence in the Common Travel Area in the past 52 weeks at the date an application is made. These regulations also seek to dis-apply the past presence test to civil servants and members of the forces on the basis that the Scottish Government considers that the policy intent is served by requiring ordinary residence in Scotland and habitual residence in the Common Travel Area immediately prior to the start of any work-related absence, in addition to the broader fact of the individual's employment in the civil service or in the armed forces.

These changes help reduce the inequalities of outcomes for young people and their families who are existing civil servants and members of the armed forces by having a more straightforward application journey.

It will also reduce the risk of any ambiguity in deciding entitlement to CDP, and in doing so, increases inclusivity for children and young people by providing some consistent financial support to meet the additional cost of having a disability. It will make it easier for disabled children and young people to access appropriate care and remain mobile, allowing them to take advantage of opportunities for learning, employment, leisure and social situations in a more seamless manner.

These regulations also make changes to the temporary absence from the Common Travel Area (CTA). This will allow Scottish Ministers to temporarily stop payment of CDP rather than end entitlement if the child or young person has a temporary absence from the CTA. 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.

The impact of this regulation should positively impact on disabled children and young people, as it will minimise the number they will need to reapply for CDP. We know, that for many people, having to apply for disability benefits can be stressful. In submissions to a 2019 Scottish Parliament Social Security Committee inquiry into benefits take-up, some of the most common reasons for low benefit take-up mentioned were complexity and lack of knowledge, followed by administrative barriers. This change seeks to break down some of the complexities and administrative barriers and reducing stress and anxiety for children, young people and their families or carers.

It will also provide many parents or legal guardians with an equal chance at making the best life decisions for themselves and their child or young person when their care and mobility needs are being met during a temporary absence.

Amendment regarding changes in residence between Scotland and the rest of the United Kingdom

When an individual moves from Scotland to either England and Wales or Northern Ireland, Social Security Scotland will continue to pay a 13 week run-on of CDP from the date the client moves elsewhere in the UK. This gives the client time to apply to either the Department for Work and Pensions or Department for Communities for DLAC. These regulations make clear that if an individual fails to report a move, that the date that CDP stops is 13 weeks after the date of the move.

In the principle regulations it states that entitlement to CDP begins on the day after the day on which DLA ceases to be paid. As an individual's payment of DLA might have been reduced to £0, whilst they are still entitled to DLA, we want to remove any potential ambiguity on when a person's entitlement to DLA ends, and their entitlement to CDP begins.

Providing more clarity around the rules will help ensure that all individuals are treated equally and fairly. It will also help to prevent a financial 'cliff edge' due to a sudden reduction in part of a household's income and give people time to apply for DLA or PIP. This is particularly important given the data indicates that households with at least one disabled child are far more likely to be in poverty. In mitigating the loss of income to households during moves, we anticipate this will have a positive impact on disabled children and young people.

Amendments regarding a late report of a change of circumstances

These regulations amend the date on which increase of entitlement takes effect, for individuals who report their change of circumstances late, without good reason. The date will be changed from the when the individual reports their change, to the date when the Scottish Ministers make their determination.

The Scottish Government considers that this change would reduce inequalities of outcome as it will bring more fairness to the policy. It would mean that an individual who has reported their change of circumstance late would not see their entitlement change sooner than someone who reported a change in circumstance on time. This will support the health and wellbeing of disabled children and young people in receipt of CDP by ensuring individuals reporting within permitted time frames are not penalised when accessing financial support to meet their needs.

This aligns with Social Security Scotland's Charter which is building a benefits system on fairness, dignity and respect.

Amendments relating to re-determination and appeals

Social Security Scotland has 56 calendar days to complete a re-determination. If an individual doesn't request a re-determination in the correct way, or fails to do it within the time specified and lacks good reason, that individual has a right to appeal directly to the First-tier Tribunal for Scotland, Social Security Chamber (this is called a 'process appeal'). The Tribunal may decide the individual either did request the re-determination in the right way, or they had good reason for not meeting the time-limit.

This amendment clarifies the policy intention regarding when the period Social Security Scotland has to complete a re-determination begins in a case if the Tribunal has decided that a request for re-determination has been validly made. This date will be the day on which the Tribunal makes that decision. This will help ensure that Social Security Scotland will have 56 days to complete the re-determination, ensuring that there is sufficient time to gather any additional supporting information needed to make a new determination.

We want to ensure that no one is disadvantaged by time limits for challenging a decision. In our Consultation on Disability Assistance, feedback suggested that accessing support or advice on challenging a decision can be time consuming with more time being needed to do so. Not having clear information may act as a barrier and deter individuals from challenging decisions. This policy will be beneficial as it will provide certainty for children and their families about how long Social Security Scotland has to complete a re-determination. This in turn, will make people feel more confident in challenging a decision they do not agree with.

Amendments relating to Short-Term Assistance

The Scottish Government has introduced Short-Term Assistance (STA) where Social Security Scotland has made a decision to reduce or stop a continuing payment of CDP, and that decision is subject to a request for re-determination or an appeal. STA will be available until the First-tier Tribunal (FtT) for Scotland has made a determination, and is non-recoverable. Where a person is eligible for STA, the value of STA will be the difference between the level of assistance paid prior to the reduction and the new level of assistance (including if that amount is now nil because entitlement to CDP has stopped).

STA is not available in the reserved social security system and providing support in this way is another example of where Scottish Ministers are removing barriers to challenging decisions in the Scottish social security system.

These regulations clarify the scenarios where short-term assistance is payable to ensure that it covers the period when the change in entitlement is being challenged to the First-tier Tribunal, but the outcome is not yet known. It also includes 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. It further clarifies that Scottish Ministers are to make a determination without application when ending an individual's entitlement to short-term assistance. It also corrects a cross-referencing issue in the principal regulations, to ensure entitlement to STA would run from the date of request for re-determination to the date of determination made that the end of that re-determination.

The intention of the policy is to ensure an individual is not discouraged from challenging that decision or from accessing administrative justice by having to manage, for a period, with a reduced income.

Amendments relating to Case Transfer

These regulations correct citations to the Social Security Contributions and Benefits Act 1992 to ensure individuals whose Disability Living Allowance was negatively impacted for failing to meet the "substantially in excess" test for either the care component, mobility component, or both before they turned 16 can have their award increased at the point of case transfer where appropriate.

They also clarify the interpretation of regulation 15 of the CDP regulations to ensure clients with severe visual impairment receive the correct rate of the mobility component at the point of case transfer.

The impact of these changes will be to better reflect the policy intention to ensure children and young people whose entitlements transfer are not financially disadvantaged when compared to those who make new CDP applications due to differences in eligibility rules between CDP and DLA.

The regulations clarify the effective date of determinations without application that result from a change to a relevant past Disability Living Allowance award and highlight this applies to changes to that award made under either the English and Welsh or Northern Irish rules.

This amendment aims to give Scottish Ministers the necessary powers to set entitlement dates appropriately where the DLA award the transferred CDP award is based on is changed and allow this to apply regardless of whether the DLA award was changed by UK or Northern Irish governments or tribunals. This will ensure individuals receive their correct entitlement for past periods.

We believe these changes will better promote the reduction of inequality and poverty for children and young people whose initial CDP entitlement is established as a result of the case transfer process by ensuring they are not financially disadvantaged by the transfer process.

Recommendations and conclusion

This Fairer Scotland Duty has identified that overall, the amendment regulations has the potential to build on the positive impact that the introduction of Child Disability Payment will have in reducing inequality and tackling poverty for disabled people in Scotland.

Sign off

Ian Davidson June 2021
Deputy Director
Social Security Policy Division