Disability and Carer Benefits Expert Advisory Group - pension age disability payment: advice

Pension Age Disability Payment

We were grateful for the request made by your officials to provide advice on Pension Age Disability Payment. Please accept our apologies for the delay in getting this advice to you as a result of previous Secretariat resourcing challenges. 

We welcome the commitment by the Scottish Government to ensure safe and secure delivery of the newly devolved benefits, and to improve the application and decision making process for all clients. We understand that our advice may incur risks, implications and challenges for the Scottish Government. These will be made explicit in this advice note and we aim to offer proposed solutions. 

We have worked with officials to ensure that our advice is informed by information available at this time and relevant to the current policy landscape. We first met in November 2020 to discuss this issue, and then re-visited our discussions on 10 November 2021. We would like to especially thank the officials who worked with us in this area. Their input was clear, concise, and greatly aided us in focusing this advice. 

We recognise that information available and the current policy landscape may change in ways that cannot be foreseen at this time, so the advice we give now is with the caveat that this too may change in light of developments. We set out below the key issues arising from our discussions which we wish to draw to your attention. Our recommendations are summarised at the end of this letter.

Background

In November 2020 Scottish Government officials leading on Pension Age Disability Payment presented to DACBEAG. They explained the Scottish Ministers’ intention for Pension Age Disability Payment (previously referred to as Disability Assistance for Older People) to broadly replicate the rules surrounding Attendance Allowance as per the following: 

• a recurring payment intended to mitigate the costs incurred as a result of additional care needs
• no mobility component
• individuals must have additional care needs which meet the eligibility criteria  for at least six months before, and be expected to continue to meet the criteria for six months after (except in the case of terminal illness where no qualifying period applies)
• the eligibility rules will be broadly the same in order to ensure a safe and secure transfer from the DWP to Social Security Scotland and
• a similar higher and lower rate of care, with the rate an individual is entitled to being determined by their level of need for assistance  

Officials indicated that they would welcome our thoughts on the following topics: 

• what are the views of the Group regarding the eligibility criteria for PADP? 
• do the Group have any views on how to make the application process easier for older people? 
• do the group have any views on how award duration should be set for PADP?
• regarding the rules on alternative accommodation, have we struck the right balance given the age and likely range of outcomes for older people?

The Group welcome the opportunity to set out what we believe should be reflected in Pension Age Disability Payment policy. Our discussions have highlighted a number of areas for further consideration that we hope will help officials in the policy development process.   

Eligibility criteria

The results of the Scottish Government’s consultation on Disability Assistance, published 28 October 2019, concluded that 89% of respondents agreed with aligning the age criteria with State Pension age, and 63% agreed with the approach to eligibility criteria.  

Overall we support this alignment to facilitate a safe and secure transfer. Parity will help to ensure case law in relation to Attendance Allowance can be used to inform decision making on Pension Age Disability Payment. We understand that while case law deciding Attendance Allowance issues are not binding on Scottish tribunals considering Pension Age Disability Payment, it will be persuasive. 

We do not believe a process similar to that undertaken by DACBEAG regarding Adult Disability Payment caselaw is needed. In that context we felt it was necessary to set out clearly existing principles described in caselaw so these could be integrated into the relevant regulations. Attendance Allowance caselaw is much better established and ‘settled’ compared to Personal Independence Payment, so we feel such an exercise is not required. 

Improvements for future consideration

We believe that a safe and secure transfer should not prevent or inhibit the consideration of ways to improve the assistance once case transfer is complete. For example, some responses to the 2019 consultation suggested a mobility component would bring Pension Age Disability Payment in line with other forms of disability assistance and should be considered. 

We agree that the introduction of a mobility component should be carefully considered by the Scottish Government. Mobility issues are just as relevant to people over pension age as to those below it. In addition to financial support, it could potentially open access to the Accessible Vehicles and Equipment scheme, subject to negotiation and agreement by Motability, which would be a great boon to many who will receive Pension Age Disability Payment. 

Recommendation 1: We agree that initially Pension Age Disability Payment eligibility criteria should align with those of Attendance Allowance for the completion of a safe and secure transfer but this should not inhibit consideration of improvements to Pension Age Disability Payment soon after.

Recommendation 2: The Scottish Government should commit to further exploring the introduction of a mobility component to Pension Age Disability Payment to bring this in line with other forms of disability assistance and to better meet the obligations of a system designed in line with a rights based approach.

We understand that there are significant financial implications of introducing a mobility component to Pension Age Disability Payment. However, increases to social security expenditure must be considered in the wider context of public service provision. 

The recent report by the Social Security Advisory Committee (SSAC) on the use of public funds in supporting the mobility needs of disabled people noted that:

…the inequalities in access to the [mobility component and, therefore, the Motability] scheme, were highlighted not only by individual respondents but also by organisations representing disabled people such as Parkinson’s UK, MNDA, SCOPE, Age UK and CAS. The lack of access to a private vehicle for older people was particularly an issue for those living in rural areas and/or areas with little or no public transport. For people over [state pension age], in receipt of AA and living in areas unsupported by frequent or accessible public transport, the ineligibility to apply for a Motability vehicle was linked to rural poverty, isolation and poor mental health.  

Any barriers placed on one age group demographic compared to another as a result of their age alone could be considered discriminatory as is currently the case in regards to the mobility component lacking from Pension Age Disability Payment. Therefore, this presents a compelling case in principle to move in this direction, while recognising that there will be significant costs and benefits attached to these options. 

Recommendation 3: The equalities impact assessment for Pension Age Disability Payment should specifically reflect the equalities impact of not providing a mobility component. 

We also believe a wider financial analysis should be employed to understand the cost of awarding the mobility component for this benefit versus the wider cost of not awarding the mobility component including the cost of this in other parts of the system, for example, social care and healthcare. Consideration should focus on the benefits to individuals and society, such as health and wellbeing of Pension Age Disability Payment applicants, including their mental health, self-worth, impacts of isolation and loneliness. This should be further reaching than a simple financial business case and should also be considered as a focus of any equalities impact assessment or islands impact assessment undertaken.

Rights based language and terminology should be used with the principle of progressive realisation also adopted. Where wholescale change is not achievable quickly, step changes could be introduced, such as introducing a mobility component that is not immediately at the same rate as that of younger people but with a plan for progression towards it.

The mobility component also links to a Wellbeing Economy and the National Performance Framework in that it would improve opportunities and increase wellbeing for those in receipt of Pension Age Disability Payment. Many individuals want a mobility component to allow them to access the Motability scheme. Options towards this would be welcome 

Recommendation 4: The financial analysis of amending the Pension Age Disability Payment eligibility criteria, for example introducing a mobility component, should compare the cost of increased benefit expenditure to the wider costs of not making the change. This should consider the savings to other areas of public spending, including for example social care and healthcare, introducing such changes could help to generate. This full cost/benefit analysis should include well-resourced direct experience input, as well as high quality quantitative analysis.

Application process, support and signposting

The Group welcomed the outlined engagement by people with lived experience of claiming within the legacy system in designing the application process and the intention to provide multiple application routes. The pandemic has made the case even stronger for ensuring all application routes are robust. 

We believe an application for Pension Age Disability Payment should be part of a larger 'holistic assessment' specifically tailored to the needs of older people, with active referral pathways to and from all appropriate forms of support and services (including health, housing and transport). This integrated approach is consistent with our advice on Child Disability Payment and Adult Disability Payment and has been a feature of DACBEAG’s work since 2017-18. In addition, we suggest monitoring the effectiveness of different referral strategies to inform continuous improvement strategies. This would help to identify the many pension-aged disabled people receiving social care who are entitled to, but currently not in receipt of, Attendance Allowance or Pension Age Disability Payment and vice versa to support the legislative principle of maximising benefit take-up. 

We recognise that this element will take some time, but a pilot approach should be taken from the launch of Pension Age Disability Payment with specialist capacity within Social Security Scotland’s local delivery teams dedicated to this. 

Recommendation 5: A Pension Age Disability Payment application should form part of a larger ‘holistic assessment’ specifically tailored to the needs of older people with active referral pathways to and from all related and appropriate services. 

Recommendation 6: Social Security Scotland should ensure there is clear information about rights and entitlements to other social security payments and services included in their communications on Pension Age Disability Payment.

We believe that, for this cohort in particular, there are likely to be a high number of cases where a carer and cared for person will be mutually supporting one another. Therefore, further consideration should be made of the need for tailored support for people in mutually supportive caring roles, including the interaction between Pension Age Disability Payment and Carer’s Allowance/Scottish Carer’s Assistance, and consideration of how applications for these benefits could be better aligned. 

There is also the issue of under-claiming of Pension Credit and Council Tax Reduction. Social Security Scotland could take practical steps to support older people in Scotland to claim these forms of support from the UK Government and local authorities in Scotland. This would not only increase benefit take-up, but be a poverty-reducing action to support disabled older people and older carers. 

Recommendation 7: The Government should further consider the need for tailored support for individuals in mutually supportive caring roles. 

This should tie in to further policy development of Scottish Carer’s Assistance with the recently closed consultation proposing a longer term caring payment for qualifying carers of pension age who would not otherwise qualify for Scottish Carer’s Assistance.

Qualifying period 

We acknowledge the existing rationale for the qualifying period, and the exceptions that will be put in place for those with a terminal illness, but we believe further consideration is needed of any potential hardship in having to wait 6 months before entitlement can begin compared to 13 weeks for Child Disability Payment and Adult Disability Payment. For example, there are some conditions like dementia that will never improve and require continual supervision. We can see no reason why someone in this situation should have to wait 6 months for support. 

We believe the Scottish Government should consider changes to policy on the qualifying period from the point of launch, given that this will only apply to new applicants and not those transferring from Attendance Allowance. We believe the qualifying period should be consistent with the other disability benefits. Even if this is not regarded as legally discriminatory, it does not align with the aspirations of Social Security Scotland or the National Care Service to enable people to flourish. 

Recommendation 8: Further consideration should be given to the policy rationale for requiring a 6 month qualifying period including the length of the period and whether change should be made to this from the point of national launch. We recommend the qualifying period for Pension Age Disability Payment should be brought in line with the other disability benefits. 

It would be helpful for any cost/benefit modelling to be conducted, or if this is already available for this to be shared, to understand if this is a financial decision, and if so, what are the other costs of not doing this.

Award duration 

We are aware that Attendance Allowance is typically awarded for an indefinite period, with more than 40% of the current caseload in Scotland composed of individuals who have been in receipt of Attendance Allowance for more than five years.  This very likely reflects the longer-term nature of disability amongst older people. 

We have previously provided advice on duration of awards on 03 December 2018 and indefinite awards of 02 July 2021. Within these there are recommendations that remain relevant for Pension Age Disability Payments, in particular: 

Duration of Awards

Recommendation 2a: Review dates should be set at a point where it is likely that there would be a significant change in the person’s needs. 

Recommendation 3a: In cases where there is no likelihood of improvement, there should be at least five years between light touch reviews. 

Indefinite Awards

Recommendation 4: Case managers’ consideration of circumstances where a fixed review period may be inappropriate and decisions on when to make an indefinite award should be influenced by clear guidelines, rather than highly prescriptive eligibility criteria.

Recommendation 10: consideration of financial risk in ensuring decision making frameworks are robust should always consider the full system costs, balancing benefits and risks, and should never undermine the principles of dignity fairness and respect. 

Recommendation 12: While financial risk may be a consideration in ensuring decision making frameworks are robust, financial risk should never be a factor for case managers when considering an indefinite award in an individual case.

Recommendation 9: We recommend that indefinite awards of Pension Age Disability Payment are available and regularly awarded to those who receive the highest rate, reflecting the longer-term nature of disability among this age group. 

Recommendation 10: Claims for people who have been awarded the lower rate of Pension Age Disability Payment should be regularly reviewed to assess if their needs have changed. This should be balanced with psychological impacts and should be truly light-touch, requiring very little from the person claiming. There should also be a simple mechanism for individuals or their families to seek a review where circumstances change. 

Alternative accommodation 

We agree that alternative accommodation rules should be aligned to facilitate a safe and secure transfer when Pension Age Disability Payment is introduced. We also understand the rationale that when an individual is resident in publicly funded alternative accommodation (hospital or care home), their needs are deemed to be met by the accommodation provider. 

However, we would like to see changes to the rule that payment ends after 28 days in alternative accommodation. This is because of the subsequent impact on carers’ benefits, despite the continuation of the caring role in many cases. In addition, this rule can affect the availability of paid for care on returning from hospital

Some people receive or require care from their unpaid carers over and above the care being provided in hospital or supported accommodation. Similarly, there is an assumption that people in care should pay for their accommodation needs and many other things, but often people are not there by choice. 

The 28 day rule means if a person employs people as part of their package of support, they could be let go because the individual is in hospital for longer, and then they have to be re-employed again when the person is discharged. This can prevent people from being discharged due to no substantial care being in place in the community, therefore further extending their hospital stay. We see this as an avoidable unintended consequence.

Another consideration is the type of accommodation the person is in. Under current rules, payments stop where the applicant is in prison or hospital. The amount and quality of care provided in these facilities may not be equal, so a similar rule may not be appropriate.

Recommendation 11: The eligibility rules for those who are in alternative accommodation - including their impact on Carer’s Allowance - should be closely examined. Consideration should be given to a more flexible context-specific rule that better takes into account the individual’s circumstances. We would recommend the removal of the 28-day rule for non-permanent arrangements. 

Individuals often remain in hospital because of a lack of a suitable package of care at home or because of the guardianship process. Therefore there is a separate issue where an arrangement is non-permanent in which we would like to see the 28 day rule removed. There should also be consideration given in circumstances where the removal of such benefits would potentially push a household into poverty, e.g. where a carer is a spouse and there is a loss of both disability and carer benefits within a month resulting in a large proportion of household income being lost. 

Equality impact assessment and human rights

Progressive realisation is the rights equivalent of continuous improvement and should be considered here. If thorough and robust human rights and equalities impact assessments are carried out at these early stages of policy development, officials will be able to see how successful or not the policy is likely to be once it is implemented. This is essential because any differential trait of any group has to be closely examined. The impact assessments as they are currently being done are only picking up protected characteristics, but there are other people whose rights are at risk and they are more vulnerable to infringements.

Currently there are twice as many women in receipt of Attendance Allowance confirming this as a gendered payment and therefore a robust Equalities Impact Assessment should be done.

Recommendation 12: Robust Equalities and Human Rights impact assessments should be completed in the early stages of Pension Age Disability Payment policy development.   

Conclusion 

We appreciate the Scottish Government’s reasons for not introducing significant policy changes before the safe and secure transfer of cases is complete. However, this should not stop the Government from considering what changes can be made in the future. It is also important to note that some changes, like reducing the 6 month rule, could be implemented before case transfer is completed as it would only apply to new applicants.

We welcome the opportunity to highlight some of the changes we believe would make the biggest difference to older disabled people and those who care for them.  

Recommendations

Please see below our key recommendations.

Recommendation 1: We agree that initially Pension Age Disability Payment eligibility criteria should align with those of Attendance Allowance for the completion of a safe and secure transfer but this should not inhibit consideration of improvements to Pension Age Disability Payment soon after.

Recommendation 2: The Scottish Government should commit to further exploring the introduction of a mobility component to Pension Age Disability Payment to bring this in line with other forms of disability assistance and to better meet the obligations of a system designed in line with a rights based approach.

Recommendation 3: The equalities impact assessment for Pension Age Disability Payment should specifically reflect the equalities impact of not providing a mobility component. 

Recommendation 4: The financial analysis of amending the Pension Age Disability Payment eligibility criteria, for example introducing a mobility component, should compare the cost of increased benefit expenditure to the wider costs of not making the change. This should consider the savings to other areas of public spending, including for example social care and healthcare, introducing such changes could help to generate. This full cost/benefit analysis should include well-resourced direct experience input, as well as high quality quantitative analysis.

Recommendation 5: A Pension Age Disability Payment application should form part of a larger ‘holistic assessment’ specifically tailored to the needs of older people with active referral pathways to and from all related and appropriate services. 

Recommendation 6: Social Security Scotland should ensure there is clear information about rights and entitlements to other social security payments and services included in their communications on Pension Age Disability Payment.

Recommendation 7: The Government should further consider the need for tailored support for individuals in mutually supportive caring roles. 

Recommendation 8: Further consideration should be given to the policy rationale for requiring a 6 month qualifying period including the length of the period and whether change should be made to this from the point of national launch. We recommend the qualifying period for Pension Age Disability Payment should be brought in line with the other disability benefits. 

Recommendation 9: We recommend that indefinite awards of Pension Age Disability Payment are available and regularly awarded to those who receive the highest rate, reflecting the longer-term nature of disability among this age group. 

Recommendation 10: Claims for people who have been awarded the lower rate of Pension Age Disability Payment should be regularly reviewed to assess if their needs have changed. This should be balanced with psychological impacts and should be truly light-touch, requiring very little from the person claiming. There should also be a simple mechanism for individuals or their families to seek a review where circumstances change. 

Recommendation 11: The eligibility rules for those who are in alternative accommodation - including their impact on Carer’s Allowance - should be closely examined. Consideration should be given to a more flexible context-specific rule that better takes into account the individual’s circumstances. We would recommend the removal of the 28-day rule for non-permanent arrangements. 

Recommendation 12: Robust Equalities and Human Rights impact assessments should be completed in the early stages of Pension Age Disability Payment policy development.   

I hope this is helpful. I look forward to your response and we would be pleased to discuss this further with officials. 

With best wishes,

Dr. Jim McCormick
Chair