Disability and Carer Benefits Expert Advisory Group – Scottish Disability Living Allowance: advice

Case transfer

In your letter to us sent 1 July 2022, you asked for further advice on several aspects of proposed policy on case transfer. We are pleased to offer our advice on these below.

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 and these will be highlighted in this advice note.

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. Officials attended our quarterly meeting on 3 November 2022 to discuss this with us in detail and we would like to extend our thanks to them for this. Their input was clear, concise, and greatly aided us in focusing this advice. 

Clearly, information 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

On 3 November 2022, Scottish Government officials provided DACBEAG members with an update and outline of the case transfer of the following benefits:

• Disability Living Allowance for Children – Child Disability Payment (DLAc-CDP)
• Disability Living Allowance for Adults – Adult Disability Payment (WADLA-ADP)
• Personal Independence Payment – Adult Disability Payment (PIP-ADP)
• Carer’s Allowance – Scottish Carer’s Assistance (CA-SCA)
• Disability Living Allowance – Scottish Disability Living Allowance (DLA-SDLA)
• Attendance Allowance - Pension Age Disability Payment (AA-PADP)

They indicated that they would like our advice on the following issues:

Update on Live Benefits - Evaluation

• the questions the evaluation seeks to answer
• any specific equalities issues the group believes may require particular consideration as part of the evaluation

Carer’s Allowance to Scottish Carer’s Assistance

• the intention to reset client entitlement to breaks in care at the point of case transfer
• the intention to confirm the earnings of clients identified by DWP as being earners, as soon as is reasonably practicable after the completion of case transfer
• the options regarding SCA payment cycles and any alternative approaches the group may feel are appropriate

Disability Living Allowance to Scottish Disability Living Allowance

• the proposed approach for Cohorts A and C
• the below options for the ongoing management of Cohort B:
  • to remain on SDLA for as long as they are eligible, along with those clients in Cohorts A and C, with the option to voluntarily claim ADP
  • to undergo managed migration to ADP, in line with DWP’s intention that these clients would be required to transfer to PIP

Attendance Allowance to Pension Age Disability Payment 

• whether there are any particular groups of Attendance Allowance recipients the group believes should be prioritised for transfer
• whether there are any relevant considerations the group believes would apply to Attendance Allowance recipients specifically

We are pleased to see that it appears that a substantial number of the recommendations and comments we have made to date on different elements of case transfer have been incorporated to the current policy. In addition, the case transfer principles have clearly been central to the development of the process. However, there are still some more technical points requiring attention.

Evaluation

We welcome the inclusion of the case transfer process as part of the wider evaluation of the delivery of devolved disability benefits. Within this, we believe the evaluation should go further than identifying:

‘What differences in experience can be drawn from clients transferring from different benefits?’

The evaluation should analyse the different experiences that different groups have of the case transfer process, within and between payment types, and explore why this is the case. For example, do parents or care givers of children and young people eligible for Child Disability Payment that are from ethnic minority groups have distinct experiences? Are their experiences different to parents or care givers who themselves are disabled? And why? This same thinking also applies to working age people that have transferred on to Adult Disability Payment. Given that this benefit will see the largest number and widest age range of claimants, the evaluation should consider whether the oldest and youngest of this cohort have the same experience, and if not, why? Other intersections should be considered including gender, disability experiences, race and sexuality. This will require a purposeful equalities understanding and analysis to be applied.

Following the evaluation, the development of the case transfer process should respond to the information gathered of the distinct experiences of different groups of people as well as the more general and process issues that will be identified. 

Considering the questions that the evaluation seeks to answer, it would also be helpful to understand how the evaluation will be undertaken, both how the questions are going to be framed, and who is going to ask them. This will be important for the evaluation to have the most meaningful output. For example, specifically considering the following question:

‘Has the case transfer process been communicated and executed in line with policy principles?’

This is a more complicated question to understand. The appropriate support would have to be provided to a number of participants to ensure the most accurate and detailed responses could be collected. Further to this, it would be helpful to understand who the questions are being asked of. Are these going to be sent to every disability benefit recipient? Or will people be picked using a stratified sampling approach to participate being interviewed by researchers? In both scenarios different individuals may face particular barriers to return answers and responses. These barriers should be identified and addressed to ensure returns are received from a diverse range of people, in a fair and equal way. In addition, where briefings, capacity building, dialogue and deliberation is enabled, another layer of rich data and evidence can be provided to enhance the evaluation. As a group, we are aware of a number of Disabled Peoples Organisations and Carers Organisations that would be willing to be involved in the evaluation to supplement and support the researchers performing the evaluation. 

In reference to the question:

‘What are the key differences clients are experiencing in the assessment processes compared to that with DWP and how do they feel about these differences?’

As a key difference between the DWP system and the Scottish system is the change in evidence requirements, we would assume that this will be explored as part of this question. For example, it would be useful to understand if individuals with certain conditions have had greater or lesser difficulty with the Scottish evidence requirements. The evaluation should draw upon people with recent experience of both DWP and Scottish systems.  

As a group, we have high expectations of the number of equalities issues to be explored within the evaluation given the advice that we have previously provided in this area. We are of the view that the collection of equalities data should be as detailed as possible, down to the level of impairment. For example, learning disabled people are generally under-represented, and they will have a distinct experience of the transfer process that will be important to understand. However, we urge sensitivity and would always propose that this data is voluntarily given. Where a researcher is interviewing this can be explained and trust can be built. Alternatively, there could be an option to return the forms anonymously on some occasions.

Recommendation 1: The evaluation of the delivery of devolved disability benefits should review the different experiences that different groups have of the case transfer process and explore why this is the case. Particularly those with protected characteristics. 

Recommendation 2: Barriers to participation in the evaluation of the delivery of devolved disability benefits should be identified and addressed to ensure findings gathered are representative of Scotland’s diverse population. 

Recommendation 3: The equalities data collected as part of the evaluation of the delivery of devolved disability benefits should be as detailed as possible, notwithstanding the need for trust and cooperation to gain these insights. For example, including details of specific impairments. 

Carer’s Allowance to Scottish Carer’s Assistance

Earnings 

Officials explained that the current position is that Carer’s Allowance clients will transfer to Scottish Carer’s Assistance before their earnings are reviewed. This is because the DWP will be unable to provide up-to-date information on client earnings at the point of transfer. Clients may be contacted to confirm their earnings after transfer if this information cannot be confirmed from either HMRC or the DWP forms and evidence. We believe there are issues associated with this, related to overpayments, reliance on other agencies and the complexities of deductions (it is not as simple as matching to earnings minus NI/tax via HMRC). 

Carers are very likely to be increasingly anxious about the transfer process in general, and we question whether there is a need to exacerbate this by adding the further burden of having to supply evidence of earnings. There is a high penalty for carers not supplying this information, but some may find it challenging to source. Carers should not be penalised for errors or mistakes which may be related to anxiety associated with the transfer process. We would welcome reassurance that carers are not going to be ‘chased’ for overpayments that were not their responsibility, or overpayments that occurred due to the transfer process are not going to be recovered.

We question the rationale for carers having to supply evidence as a direct result of the transfer. If they had not transferred the DWP would not be asking them for this same evidence. This will also create additional work for Social Security Scotland that we do not feel is proportionate or necessary. If the HMRC system and DWP data on earnings is not timely or conclusive it is estimated there could be between 12,000 and 18,000 carers asked for evidence of earnings. If they were all then supplying it, we are concerned that Social Security Scotland may struggle to cope with the demand, ultimately causing delays to payment. If disabled people are not being asked for further evidence immediately after they transfer, then we do not think it is justifiable for carers to be treated differently.

After transfer, we believe the information provided by the DWP should be assumed to be up to date and accurate. It should be assumed that those carers who are working that transfer to the Scottish system earn under the threshold. Then, if the carer has any changes of circumstances, including to their earnings, they should report them to Social Security Scotland. However, Social Security Scotland should not proactively ask for further evidence or information. We are concerned that some carers could struggle to supply evidence, have their payments stopped and then not re-apply for Scottish Carer’s Assistance, falling through the cracks and losing out on their entitlements. 

The seasonal nature of some elements of the rural economy and the growth in Zero Hours and Agency work in the last decade, means in general workers have variable/unpredictable earnings. Carer’s Allowance and Scottish Carer’s Assistance clients that are earners are likely to be lower paid and we believe many will have fluctuating earnings. It would be helpful to understand if there is choice or flexibility in the assessment period to be used for any earnings calculations, rather than on a continually fluctuating real-time basis. We understand that a nil award can be awarded for a maximum of six months before the Scottish Carer’s Assistance will be stopped. We would recommend this be explored for further flexibility in recognition of the fact that there is a large seasonal economy in Scotland, and carers could be working for part of the year alongside caring. 

The test for fraud in the Scottish system is now different from the rest of the UK. Under section 72 of the Social Security (Scotland) Act 2018 it is a criminal offence to fail to notify the Cabinet Secretary of a change in circumstances when the person had no reasonable excuse for failing to notify and knew, or ought to have known, that the change would have made a difference to benefit entitlement. As such, an overpayment which would not attract criminal charges prior to transfer (and which continued after transfer) could attract criminal charges simply by virtue of the transfer. Therefore, an exemption to section 72 should be considered so that any overpayment which continued after the transfer, up to the date the request for earnings was given to the client (or a reasonable time thereafter in order to give time to reply), would not attract criminal charges under section 72.

Overall we believe this approach to review earnings is not in alignment with the principles in the 2018 Act and the Social Security Charter. It leads with a presumption of fraudulent earnings information. The DWP takes a relatively light-touch approach in assessing carers earnings because it is established that the risk for fraud is very low. Therefore, we question why Social Security Scotland would increase the burden on this group.

Recommendation 4: Carers should not be contacted to supply existing evidence of their earnings following transfer. Instead, carers should be reminded to report any changes in their circumstances to Social Security Scotland after transfer, including an increase or decrease in their earnings.

Recommendation 5: There should be choice or flexibility in the assessment period used for earnings calculations.

SCA payment cycles 

We welcome the commitment that clients will never experience a break in entitlement due to the case transfer process. We understand the challenges associated with the 3+1 payment cycle and the three options under current consideration being:

• beginning client entitlement to SCA one week before the end of their CA award and moving to a four weekly in arrears payment cycle to align their payment dates
• moving all clients to a weekly in advance payment cycle
• giving clients the option to choose being paid four weekly in arrears or weekly in advance

We believe moving all clients to a weekly in advance payment cycle should be ruled out. This would be a huge change for people and we cannot see how this would be beneficial should it be introduced. The options to begin client entitlement to SCA one week before the end of their CA award or giving clients the option to choose being paid 4 weekly in arrears or weekly in advance would both be reasonable.

We have heard from carers that there is no consensus or majority view on a preference for either 4 weekly in arrears or weekly in advance, therefore giving people the choice would allow individual carers to make a decision based on what is best for them and their situation. When comparing in advance and in arrears payments, all existing evidence from Universal Credit points to there being more risks associated with payments being made in arrears

We see a further option as beginning client entitlement to SCA one week before the end of their CA award and moving to a 4 weekly in advance payment cycle. Any decision on SCA payment cycles should be balanced with ensuring that the interactions with reserved benefits are not underestimated, for example, unintended consequences relating to Universal Credit claims.

Recommendation 6: The Scottish Government should further explore an option to move to a 4 weekly in advance payment cycle, with clients able to opt-out and choose an alternative payment cycle if needed. 

Disability Living Allowance to Scottish Disability Living Allowance

We are generally supportive of the introduction of a Scottish Disability Living Allowance (SDLA) as we believe the overall aim should be towards consistency and simplicity for claimants. Clear communications on this will be critical. As part of this the aspects that are staying the same should be highlighted to provide reassurance and reiterate that clients only need to get in touch with Social Security Scotland after transfer to report a change of circumstances, nothing else. Given that the cohorts that this will affect will be significantly older in age, we believe there is an opportunity for the Scottish Government and Social Security Scotland to work in partnership with third sector organisations to ensure communications are necessarily detailed and truly inclusive. For example, organisations that support people affected by sight loss and hearing loss should be involved in shaping how information is accessed and communicated.

Cohort A 

Given that this cohort consists of people who were over 65 when PIP was introduced and the DWP have previously committed that these clients will not be asked to claim PIP or AA, we agree with the intention to honour this commitment and have these clients remain on SDLA for as long as they are eligible to receive it.

Cohort B

For those under 65 in 2013 and are still under 65 at the point of transfer, we believe these clients should remain on SDLA for as long as they are eligible, with the option to voluntarily apply for ADP. In comparison to the DWP system, some groups have better chances of success under PIP than under DLA, therefore the principle of informed choice would best reflect the principles outlined in the Act. We do not see any benefits of managed migration for this cohort. In addition, communications should be sent to this cohort advising each individual to obtain independent advice before applying for ADP. This could include free-of-charge Citizens Advice Bureaux advice, or Welfare Rights advice, and there should also be guidance on how to access this. 

Cohort C

For those under 65 in 2013 and over the age of 65 at the point of transfer, we believe these clients should also remain on SDLA for as long as they are eligible, with the option to voluntarily apply for ADP. Under regulation 27 of the PIP (Transitional Provisions) Regulations 2013, a person over pensionable age could still claim PIP if they were: (i) entitled to DLA (ii) under 65 on 6 April 2013 and (iii) had been asked to claim PIP by the Secretary of State. In these circumstances, they were to be treated as if they were under pensionable age. A similar principle could be applied here. Cohort B and Cohort C should not be treated differently. 

For Cohort B and Cohort C

Further to our views outlined above, the system needs to be future-proofed. As such, Cohort B and Cohort C should always have the option to apply for ADP because there is the expectation that future changes will be made to ADP. Therefore, it would not be just for individuals to remain ‘stuck’ on SDLA if they would be better off on the improved ADP at a later date. In addition, we do not agree that there should be natural migration of anyone on SDLA to ADP should they report a change in circumstances. There should always be a choice of migration.

Further considerations

There remains a number of issues that we feel need further thought from the Scottish Government in relation to the introduction of a Scottish DLA. 

• what happens in a scenario where someone of pension age and living in Scotland transfers on to SDLA and then they move to live somewhere in the rest of the UK and then back to Scotland, for example for family care reasons? Our understanding is that the DWP would require them to make a new application with a run-on from Social Security Scotland. Their new application in this case would be for Attendance Allowance and therefore they would be worse off financially due to their change in address. Then, when they moved back to Scotland they would be transferred on to PADP. We are highlighting this as it could be a real scenario, especially in circumstances where individuals move to be closer to relatives for care as they get older, and because we believe that other cross-border dynamics in the case of social security claims where policies are diverging will create similar challenges to be resolved
• the introduction of SDLA will result in another tier of support being added to the system. This will result in differential treatment for people with the same care needs as a result of the benefit they are on. There are fairness and consistency issues here that should be further explored. Nonetheless, we are of the view that having as many people supported with the extra costs of disability (and lifted out of poverty where possible) should be the goal, even if this does result in a more complex system for some time
• the choice to migrate from SDLA to ADP is only truly a choice if people have a clear view of the potential risks and benefits. Therefore, there will be a need to increase welfare rights information, advice and guidance, representation and advocacy to ensure people are given the independent support that they want and need to make an informed choice. Service caseloads have already increased in the last year, leading to delays in accessing support. This is set to continue given the current cost-of-living crisis and economic landscape. This has to be factored in to plans. People need and are entitled to clear, accurate and timely advice

Recommendation 7:

• cohort A should remain on SDLA for as long as they are eligible to receive it
• cohort B should remain on SDLA for as long as they are eligible, with the option to voluntarily apply for ADP
• cohort C should be treated the same as Cohort B, remaining on SDLA for as long as they are eligible, with the option to voluntarily apply for ADP

Recommendation 8: There should be no natural migration of anyone from SDLA to ADP – migration should always be through an informed choice. 

Recommendation 9: There should be an increase in welfare rights information, advice, guidance and representation to support all of these cohorts. This should ensure they are given the timely independent support and advice they want and need.

Attendance Allowance to Pension Age Disability Payment 

We understand that the case transfer approach for moving Attendance Allowance awards to Pension Age Disability Payment is in the early stages of development. In order to explore the priority groups for transfer, it would be helpful to understand the adequacy of data available on the conditions that clients have, and if there is a Carer’s Allowance claim related to the AA award and therefore an assumed support system in place for that person. For this cohort of older people with higher support needs, it will be even more important for communications to be clear. 

We are aware that clients in this cohort could have been in payment of AA for a long time, and therefore the stability of these payments is important. However, it may be the case that certain individuals have been in payment of a low award long-term, when in fact they have seen an increase in their care needs since the initial award and they are now likely to be entitled to a higher award. The necessary resources should be dedicated by Social Security Scotland to explore this following case transfer to ensure all clients are in receipt of any increased payments they are entitled to.

Recommendation 10: Additional Local Delivery staff and further Social Security Scotland resource should be allocated to identify any Pension Age Disability Payment clients who are eligible for a higher award, but transfer on a low award.

Reviewing policy against the case transfer principles

Considering a significant number of cases have already transferred over to Scottish forms of payment, the planned evaluation, and the outline of the transfers still to come, we believe it is a good time to assess case transfer policy against the case transfer principles. The group is supportive of the following principles:

Correct payment at the correct time

Officials noted the ‘correct payment at the correct time’ principle a number of times during our discussions which we were pleased to hear. We are of the view that this principle has remained central to the transfer process design. We also welcome Social Security Scotland’s proactive and prompt identification of cases where individuals were not paid the right amount following transfer, and the assurance that was given that these errors were rectified quickly.

No re-applications

Given how stressful and time consuming the process of applying for a benefit can be for people ‘no re-applications’ remains a vital principle of the case transfer process. For individuals who transfer on to SDLA and then make the informed decision that they would like to move on to ADP, we are of the understanding that a re-application would be part of this.

Separately, we question the rationale for asking carers for any further information on earnings with this principle in place. Whilst not being a full re-application, given how light touch and straightforward the application for Carer’s Allowance is currently, and our understanding is the same for future applications for Scottish Carer’s Assistance, to then ask for earnings information may be more stressful and complex than the application in the first place. 

No face-to-face DWP re-assessments

Our understanding is this principle is being met and continues to be central to the prioritisation of who transfers and when.

Complete as soon as possible

Whilst it was originally set out that all case transfers would be complete by 2024, we recognise the timescales have since changed as a result of the Covid pandemic. Whilst we do appreciate that transfers are happening at a pace that allows for safety and security of payments, we have concerns associated with the apparent policy stance that no major changes can be implemented until after completion of the transfer. Should this also follow full evaluation cycles and individual review processes, it could be several years beyond transfer completion before improvements are made, and even longer before they are truly felt by clients. We would encourage the Scottish Government to sharpen the focus on policy and practice improvement as we proceed, not ruling out more substantial changes where the case for it becomes evident. 

Clear communication with clients

There should be clear communication with clients as early as possible on the timescales for the rest of the transfer process. We are conscious that many people are already anxious about known and potential changes. How these are communicated in the context of heightened insecurity and uncertainty driven by the cost-of-living crisis should be approached with care and in a spirit of co-design. 

Conclusion 

In summary, we recognise that moving people from DWP benefits to new Scottish payments is one of the most substantial administrative undertakings that the Scottish Government has carried out and that this will continue as social security devolution proceeds. We are pleased to see that a number of our previous recommendations on case transfer have been incorporated, and that lessons learned from previous benefit transfers are being applied to the further transfers ahead. 

We have identified issues and challenges to be resolved and we hope that our advice is helpful in informing the remainder of the transfer processes.

Recommendations

A summary of our recommendations is given below:

Recommendation 1: The evaluation of the delivery of devolved disability benefits should review the different experiences that different groups have of the case transfer process and explore why this is the case. Particularly those with protected characteristics. 

Recommendation 2: Barriers to participation in the evaluation of the delivery of devolved disability benefits should be identified and addressed to ensure findings gathered are representative of Scotland’s diverse population. 

Recommendation 3: The equalities data collected as part of the evaluation of the delivery of devolved disability benefits should be as detailed as possible, notwithstanding the need for trust and cooperation to gain these insights. For example, including details of specific impairments. 

Recommendation 4: Carers should not be contacted to supply existing evidence of their earnings following transfer. Instead, carers should be reminded to report any changes in their circumstances to Social Security Scotland after transfer, including an increase or decrease in their earnings.

Recommendation 5: There should be choice or flexibility in the assessment period used for earnings calculations.

Recommendation 6: The Scottish Government should further explore an option to move to a 4 weekly in advance payment cycle, with clients able to opt-out and choose an alternative payment cycle if needed. 

Recommendation 7:

• cohort A should remain on SDLA for as long as they are eligible to receive it
• cohort B should remain on SDLA for as long as they are eligible, with the option to voluntarily apply for ADP
• cohort C should be treated the same as Cohort B, remaining on SDLA for as long as they are eligible, with the option to voluntarily apply for ADP

Recommendation 8: There should be no natural migration of anyone from SDLA to ADP – migration should always be through an informed choice. 

Recommendation 9: There should be an increase in welfare rights information, advice, guidance and representation to support all of these cohorts. This should ensure they are given the timely independent support and advice they want and need.

Recommendation 10: Additional Local Delivery staff and further Social Security Scotland resource should be allocated to identify any Pension Age Disability Payment clients who are eligible for a higher award, but transfer on a low award.

On behalf of group members, I look forward to your response and we would be pleased to discuss this further with officials. 

With best wishes,

Dr. Jim McCormick
Chair