First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Rules of Procedure)(Miscellaneous Amendment) Regulations 2022: child rights and wellbeing impact assessment

2. What impact will your policy/measure have on children's rights?

Positive: The proposed amendments are anticipated to have a broadly positive impact on children's rights and welfare. The introduction of a discretionary power for the Tribunal to give a direction prohibiting the disclosure of a document or information to withhold information from a person if it could cause serious harm to their physical or mental health, is likely to benefit disabled people and their families.

Our assessment of the impact of the changes we are proposing on the relevant articles of the UNCRC is as follows. The relevant articles include (but are not limited to):

Article 2 - Non-discrimination.

Social Security Scotland is committed to treating all applicants equally. The principle of non-discrimination is enshrined in the Social Security Scotland Act (2018) under section 1(g) of that Act.

The Scottish Courts and Tribunal Service (SCTS) provides administrative support to the Scottish Tribunals. SCTS has published a Tribunals Users Charter which sets out what Tribunal Users can expect from them. SCTS has also published an Equality and Diversity policy, which sets outs its commitments: Equality and Diversity (scotcourts.gov.uk)

Article 3 - Best interests of the child

This policy will mitigate the risk of young people being exposed to information that could cause serious harm to their physical or mental health. This policy will allow the First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland, respectively, to issue a direction prohibiting the disclosure of a document or information to a person ("the recipient") if a registered medical practitioner or a registered nurse has advised that the information is likely to cause serious harm to the physical or mental health of the recipient or some other person. The General Medical Council's Guidance on Consent sets out that "in very exceptional circumstances" it may be appropriate to prohibit disclosure of harmful information to the patient if it would cause them serious harm. The guidance goes on to say that 'serious harm' means more than the patient might become upset, decide to refuse treatment, or choose an alternative. In the context of individuals who are applying for disability assistance under Special Rules for Terminal Illness, the Chief Medical Officer's guidance for doctors and nurses completing the Benefits Assessment for Special Rules in Scotland (BASRiS) form for terminal illness also notes the limited exception of "serious harm" where it may be appropriate to withhold the information from the patient. The guidance states that harmful information is anything that would be considered to cause serious harm to an individual's mental or physical health if they were to become aware of it (e.g. a diagnosis of malignancy).

This will also impact positively on families where the adult receiving Child Disability Payment on behalf of the child could themselves be at risk of serious harm to their physical or mental health and that information may not be disclosed to them for their own safety.

People already in receipt of Child Disability Payment before the age of sixteen will continue to receive it until their eighteenth birthday. Young people aged 16 and 17 can also choose to apply for Adult Disability Payment. Young people aged 16 and 17 in receipt of Child Disability Payment or Adult Disability Payment will be covered by this policy and may benefit from the ability of the Tribunal to issue a direction prohibiting the disclosure of a document or information to a person if a registered medical practitioner or a registered nurse has advised that the information is likely to cause serious harm to the physical or mental health of the recipient or some other person.

This policy is likely to most affect young people aged 16 and above who are responsible for managing their entitlement to disability assistance. The impact of this policy will be on those individuals' rights to access information held about them at an appeal in either the First-tier Tribunal or Upper Tribunal. However, the potential negative effect of this policy on those young people aged 16 and above is mitigated by the inclusion of clear rules about when the Tribunal can give a direction. These rules create a high threshold to be met which is informed by clinical advice.

Article 5 - Parental guidance and a child's evolving capacities and Article 12 - Respect for the views of the child.

Under section 62A of the Social Security (Scotland) Act 2018, Scottish Ministers have powers for the non-disclosure of information to a recipient if it relates to the physical or mental health of an individual and if a registered medical practitioner or a registered nurse has advised Scottish Ministers that the information is likely to cause serious mental or physical harm to the recipient if disclosed. Section 62A is intended to address the needs of adults, including people aged 16 and 17, in relation to whom a doctor or nurse has advised that the disclosure of information relating to their entitlement to assistance would be likely to cause serious harm to the individual's physical or mental health. In such circumstances, the Scottish Ministers' duties to inform individuals at various stages of their social security claim will not apply. However, section 62A of the 2018 Act only applies to certain duties of the Scottish Ministers under the 2018 Act. Section 62A will not apply if the individual's case is appealed to the First-tier Tribunal or Upper Tribunal.

Once a child reaches the age of 16, they are considered a young person with legal capacity. Young people are generally expected to manage their own entitlement to Child Disability Payment and Adult Disability Payment including receiving payments and communicating with Social Security Scotland, and with the Tribunal during an appeal. If the young person cannot manage their own entitlement after they become 16, Social Security Scotland must consider whether an appointee is required to receive disability assistance on behalf of the young person.

Article 18 – Parents or legal guardians to have primary responsibility for the upbringing of the child.

Young people aged 16 and 17 in receipt of disability assistance are generally expected to manage their own application for assistance and manage their own payments. If the young person cannot manage their own entitlement after they become 16, Social Security Scotland must consider whether an appointee is required to receive disability assistance on behalf of the young person.

Article 23 – Children with disabilities.

As this policy will give the First-tier Tribunal and the Upper Tribunal a discretionary power to issue a direction prohibiting the disclosure of a document or information to a person if it will cause serious harm to the physical or mental health of the recipient or some other person, it is expected that people in receipt of disability assistance will be the most likely to be affected. This is because applications for disability assistance generally include consideration of a person's physical or mental health, while applications for some other devolved benefits such as the Five Family Payments do not include consideration of a person's physical or mental health.

This policy will mitigate the risk of young people in receipt of disability assistance being exposed to information during an appeal that could cause serious harm to their physical or mental health.

Article 26 – Social security

This policy does not prevent children or young people from receiving any social security payment due to them or from challenging a decision made by Social Security Scotland on their entitlement to assistance. The policy is instead intended to mitigate the risks of vulnerable clients being exposed to information during an appeal that may cause serious harm to their physical or mental health.