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

4. If a negative impact is assessed for any area of rights or any group of children and young people, can you explain why this is necessary and proportionate? What options have you considered to modify the proposal, or mitigate the impact?

Once a child reaches the age of 16, they are considered a young person. 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.

The UNCRC sets out that children have the right to participate in decisions which affect them. Prohibiting disclosure of harmful information from children and young people without their consent could be seen as going against this principle. However, the overarching aim of this policy is to protect people from serious harm to their physical or mental health. It is acknowledged there is a potential negative impact of this policy on those individuals' rights to access information held about them. However, this will be mitigated by the inclusion of clear rules about when the Tribunal can give a direction prohibiting disclosure of a document or information to an individual if it would cause them serious harm. These rules create a high threshold to be met, which is informed by clinical advice, before the Tribunal can decide whether to exercise its discretionary power to issue a direction.

While it is difficult to estimate the number of young people that may be impacted by this policy, 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 BASRiS form for terminal illness^[2] 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).