Child Disability Payment Amendment Regulations: draft island communities impact assessment

Policy Background

9. The Social Security (Scotland) Act 2018^[5] (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).

10. 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.

11. 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.

12. 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.

13. The Disability Assistance for Children and Young People (Scotland) Regulations 2021 set out how CDP will be delivered and makes 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.

14. 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.

15. In addition to supporting new applications, Scottish Ministers will 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 cases and supporting information for these clients will transfer to Social Security Scotland once new applications functionality for the respective devolved benefit is in place. Over 700,000 existing clients will require to be transferred from the Department for Work and Pensions (DWP) to Social Security Scotland as devolved benefits ‘go live’.

16. Based on estimates provided by the Scottish Government’s Communities Analysis Division, there are 57,000 children and young people who will transfer to CDP from DLAC.

17. Scottish Ministers have set out a number of case transfer principles which we have used to guide the development of our approach to case transfer.^[6] Our commitment to equalities will run through all of these principles and also guides our overall approach. The principles are:

• Correct payment at the correct time – ensuring that the case transfer process is designed so that clients will receive the same amount for the Scottish benefit as they received for the corresponding UK benefit to include checks at the point of transfer
• No re-applications - we will not require clients to re-apply for their benefit as part of the case transfer. We will work with DWP to move clients automatically to Social Security Scotland and the corresponding new Scottish benefit.
• No face to face DWP re-assessments - we will ensure that no-one will be subject to a face to face re-assessment by DWP when new applications for Adult Disability Payment open. DWP do not conduct face to face assessments for DLA Child renewals, so this is not a consideration for DLA Child case transfer.
• Complete as soon as possible – Whilst the previously set out timetable will no longer be possible due to the impacts of Covid-19, Scottish Ministers have been clear that they want to complete the transfer of cases as soon as is possible in a way that will not create unacceptable risks for clients.
• Clear communication with clients – we will inform our clients the date their case will be transferred and will keep them informed at the various stages of the case transfer process.

18. 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 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.

19. 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.

20. In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. This received more than 200 responses to questions relating to disability benefits with an even split between organisational and individual responses. In particular comments were invited on a partial Equality Impact Assessment which represented the Scottish Government’s work on the impact of social security policy on people with protected characteristics prior to the consultation.

21. There were 521 formal written responses submitted, of which 241 were from organisations and 280 from individual respondents. Of the 241 organisational responses, 81 were received from stakeholder groups relating to children/young people, equalities and human rights, disability and long term conditions, and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 February 2017^[7].

22. The Scottish Government has set up Social Security Experience Panels with over 2,400 people across Scotland registered as panel members when the Panels opened in 2017. The Panels involve people with lived experience of the benefits that are coming to Scotland. In July 2019 recruitment to the Experience Panels was reopened. We have been working with relevant stakeholders to specifically target disabled people from seldom heard groups as part of our engagement.

23. The Consultation on Disability Assistance built on the work on the Experience Panels and was published on 5 March 2019. In line with the principles of dignity, fairness and respect, the Scottish Government sought the views of the people of Scotland on the three proposed disability assistance benefits, namely Disability Assistance for Children and Young People (now known as CDP), and replacement benefits for PIP and AA^[8]. The consultation closed on 28 May 2019, having received 263 replies, of which 74 were from stakeholder organisations and 189 were from individuals.

24. Two surveys regarding the case transfer process was sent out to Experience Panel members in January and February 2019. 404 and 559 responses were received respectively. A series of individual and group interviews were also conducted. Results from both surveys and the interviews were published in 2019.^[9] These surveys confirmed that of most importance to panel members was that they continue to receive the correct payment at the correct time.

25. We have been working with relevant stakeholders to specifically target disabled people from seldom heard groups as part of our engagement. For example, we have reached out to the Inclusive Communications Stakeholder Reference group to seek users who come from seldom heard groups. This is a continuous exercise and more information from this work is imminently forthcoming.

26. Regarding disability assistance, an initial framing exercise for the partial Equalities Impact Assessment relating to disability assistance was carried out in 2017 involving a range of internal Scottish Government stakeholders. In addition to highlighting a number of positive impacts and potential barriers, the exercise enabled significant data gaps to be identified. This in turn led to the targeted consultation with stakeholders representing people with protected characteristics which was undertaken during the Consultation on Disability Assistance between 5 March and 28 May 2019.

27. The Scottish Government has also undertaken ongoing consultation with stakeholders through our independent Disability and Carers Benefits Expert Advisory Group (DACBEAG) as well as the Ill Health and Disability Benefits Stakeholder Reference Group. DACBEAG is chaired by Dr Jim McCormick and comprises individuals with significant practical experience of the UK social security system, from a range of professional backgrounds. It is independent of the Scottish Government. The Group’s role is to advise Scottish Ministers on specific policy options for disability assistance and carers benefits due to be delivered in Scotland.

28. The Ill Health and Disability Benefits Stakeholder Reference Group was set up in March 2016 to inform and influence the development of policy options relating to devolved Disability Assistance. This group has advised on the potential impact of policy decisions as well as user and stakeholder engagement.

29. Despite the continuing impact of coronavirus, work with Experience Panels has continued, with user testing on digital material that will be available on the Social Security Scotland website. Specifically with regards to case transfer, framing exercises have been taking place in 2020 and will continue to take place with a range of internal Scottish Government stakeholders. This will give information to people who are considering making a CDP application. We focused on making sure that information was easy to find, understand and navigate.

30. CDP is designed to provide additional financial resource to young people to help improve their outcomes. Research has shown that many disabled young people are more likely to be living in low income households, feel socially isolated and have poorer physical and mental health and wellbeing.^{[10] [11] [12]}