Disability and Carers Benefit Expert Advisory Group: case transfer advice

To: Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People

By e-mail

24 July 2020

Dear Shirley-Anne,

Case transfer

In your letter to the Advisory Group sent 12 Feb 2020, you asked for advice on the case transfer plan for disability assistance. We are pleased to offer our advice on this matter below.

We welcome the commitment by the Scottish Government to ensure safe and secure delivery of the newly-devolved benefits, and to improve the claiming process for all recipients. 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, where possible, to signpost a proposed solution.

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. In addition to officials attending our most recent quarterly meeting on 11 June 2020, a smaller contingent of DACBEAG members met with officials to discuss some of the more technical aspects of case transfer proposals on 24 June 2020. We would like to especially thank the officials who worked with us on this policy area. 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 some issues and recommendations arising from our discussions to which we wish to draw to your attention. Our recommendations are summarised at the end of this letter.

Existing commitments

First, we would like to highlight some issues regarding the commitments the Scottish Government made in its policy position paper on case transfer and how those might look in practice. 

No face to face DWP re-assessments

We welcome the commitment that people in receipt of disability benefits administered by the Department for Work and Pensions (DWP) at the point of transfer to the corresponding Scottish payment will not be subject to a face-to-face assessment or “consultation” in order to determine their eligibility for that Scottish benefit. Our understanding is that a determination will be made automatically, without requiring the recipient to apply or otherwise provide evidence in support of their new award.

As currently drafted, the commitment states: “We… will ensure that no-one will be subject to a face to face re-assessment by DWP when new claims for Personal Independence Payment (PIP)/Disability Assistance for Working Age People (DAWAP) are open.” However, we understand that even after the point at which new claims for DAWAP are open, there will still be instances when individuals in Scotland will be subject to a face-to-face reassessment from the DWP or will have to make a new claim for DAWAP - specifically, those who have not yet had their case transfer process begin but have a change of circumstance or otherwise require a reassessment to continue their DWP award at the correct rate. While we know the DWP has currently suspended reassessments as a result of the coronavirus outbreak, it is unclear how long it will be before they begin requiring them again.

We believe this policy has the potential to be confusing and stressful for claimants who may take it to mean that no one in Scotland would be subject to DWP face-to-face assessments at all once DAWAP has been rolled out.

To make sure this doesn’t happen, communications must be especially clear that “no face-to-face assessments” means only that current claimants will not be asked to attend an assessment or re-assessment as part of their move to the Scottish benefit.

Recommendation 1: Communications must be particularly clear about the circumstances in which current claimants will and will not be subject to DWP or Scottish Government assessments or reassessments once new claims for DAWAP are open.

Complete as soon as possible

We believe the basis of this principle deserves further consideration. 

The policy paper cites an Experience Panel survey in which around six in 10 respondents rated “Client cases are transferred as soon as possible” as a ‘very important’ priority. Around a quarter said that it was ‘important’. 

However, when asked to choose the best option from the below in the same survey, the results were: 

• all cases should be transferred from DWP as fast as possible (14%)
• all cases should be transferred from DWP with a balance between speed and making sure there are no mistakes (57%)
• all cases should be transferred from DWP over a longer time, making sure there are no mistakes (29%)

Clearly there are mixed opinions here. The second set of answers, and other results from the same survey, suggests that ensuring the transfers are completed without mistakes is more important than speed in the eyes of respondents.

We recognise substantive changes to Scottish benefits cannot take place until case transfer is completed and this may be a reason for wanting to complete this process quickly. However, it will take a significant period of time, likely several years, to develop, test, and implement any substantive changes. We see no reason why this process cannot begin while case transfer is ongoing.

There is a danger that in order to expedite the transfer process it may be felt necessary to reduce individuals’ rights, such as the right to challenge determinations about entitlement which we discuss further below.

For these reasons, we believe the proper balance between avoiding mistakes and completing transfer quickly must be properly struck and clearly articulated. As things stand currently, we suggest speed is being given too much weight.

Recommendation 2: The principle “complete as soon as possible” must not be used to undermine people’s rights or jeopardise the “safe and secure” transfer process.

Changes of circumstance

We now move away from the principles of case transfer to discuss some of the practical details we believe require further attention.

We understand that there may be a period of several months between an individual’s case being selected for transfer and the transfer being completed. This gap can create issues because once a case is selected for transfer, it is transferred based on the information DWP has on the case at the time the transfer begins. This means that a change of circumstance that occurs between the transfer beginning and ending will not be reflected in the initial determination of the Scottish benefit.

We learned that several options are currently being considered for how to address this issue. What is most important in our view is that claimants receive their correct award as quickly as possible after transfer. We know that backdating awards is being considered, but this could potentially take months from the point of determination, leaving claimants short on their entitlements that entire time. 

Recommendation 3: Claimants who have a relevant change of circumstance between their case transfer beginning and ending should have this change reflected in their award as soon as possible.

Appeals

We understand that the current thinking is that claimants who have ongoing applications for revisions, supersessions or appeals regarding their DWP award will not be chosen for case transfer until there is an outcome regarding that application. There are several issues that arise from this policy.

First, appeals, especially those to the Upper Tribunal, can sometime take years to resolve. We are concerned at the prospect of an individual claimant’s case transfer being delayed indefinitely for this reason. One way to address this would be to put an absolute time limit (perhaps 12 months) on the time an individual’s case can be delayed from transfer due to an ongoing appeal.

Waiting to complete case transfer until there is no one with an ongoing appeal may result in a significant delay not just for individual claimants but for the process of case transfer as a whole. This in turn will delay the implementation of the positive substantive changes to the disability benefits that must wait until case transfer is complete.

It is also unclear to us at this point what will happen if case transfer begins between different points in the appeal process. For example, someone could have a revision request denied, have their case transfer begin, and then decide they want to further appeal the decision. If this were to occur, systems will need to be in place to either stop the case transfer process, or continue the case transfer while the appeal is ongoing. Both of these are likely to cause issues according to what we understand so far of the systems being devised. Whatever the solution, we propose that which ensures the least administrative burden and delay to claimants receiving their awards should be preferred. 

Recommendation 4: Problems to the case transfer process caused by ongoing appeals should not cause undue administrative burden or significant delay for claimants. Putting an absolute time limit on how long an individual’s case transfer can be delayed due to an ongoing appeal is one strategy to consider.

A claimant’s prior DWP award may be revised or superseded sometime after their case is transferred to the Scottish system, for example because of the outcome of a test case or because the claimant requests a supersession or any time revision of their prior DWP award after the case transfer process has completed. In these instances, we seek reassurance that a claimant’s Scottish award will be changed to reflect the revision or supersession without requiring an application from the claimant.

Recommendation 5: Where a past DWP award is changed after the case transfer process is complete, the Scottish award should be revised to reflect this change without requiring input from the claimant.

Another issue we wish to address is our understanding that claimants will receive an automatic determination without application regarding the Scottish benefit they are transferred to based solely on their DWP award at the point of transfer, but it is not yet clear whether or not they will have a right to request a re-determination of or otherwise appeal that determination.

Clients must have the right to request a re-determination or otherwise appeal the automatic determination made as part of the case transfer process. If the policy does not recognise this right, it would be inconsistent with the rights of re-determination and appeals set out in sections 41 through 49 of the Social Security (Scotland) Act 2018 (the Act). We can see no power set out in the Act that would allow the Scottish Government to curtail these rights.

Moreover, it could be argued that denying claimants this right is inconsistent with Article 6 of the European Convention on Human Rights, which states that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” As the Act recognises that social security is a human right, this is not an issue to be decided lightly. 

There are several instances in which claimants way wish to challenge the automatic determination.

Recommendation 6: The Scottish Government must recognise a claimant’s right to request a re-determination of, or otherwise appeal, the automatic determination without application that results from the case transfer process.

Our understanding is that many of these decisions are driven by a desire to keep appeals to a minimum during the case transfer process to protect Government resources. We must stress that the rights of individuals must not be curtailed in the name of expediency.

It is important that claimants have the ability to challenge these decisions during the case transfer process and not be forced to end their Scottish award and make a new claim for the same benefit in order to get a challengeable determination. Otherwise, not only will there be a danger of claimants having a gap in their award, but the agency capacity the Scottish Government is trying to protect would be at risk from a flurry of new applications. 

Residence

Determining the residence of the claimant will be a crucial aspect of determining who will and who will not have their case transferred to Scotland. We are concerned that the complexity of residence as a concept in social security law has not been adequately appreciated so far. As such, we believe more thinking needs to be done to develop this area in the case transfer policy.

Our understanding of the process is that someone will be flagged on DWP’s system as being subject to case transfer to Scottish benefits if the DWP has a Scottish address on record as the residential address for the claimant. We understand that claimants will not have the option to apply for their case to be transferred in their own right. We also understand it is currently unclear whether claimants will have the right to request a re-determination or otherwise appeal the decision to transfer, or not to transfer, their case. There may be an administrative complaints procedure claimants will have to follow through Social Security Scotland (the Agency) if they dispute the decision regarding their residence.

We have serious concerns about this process. Residence is a complex concept, discussion of which has created significant case law in the UK system. The latest draft of the Child Disability Payment regulations we’ve seen state eligible claimants will have to be “ordinarily resident in Scotland”, among other conditions. This is a phrase that has been interpreted by courts and tribunals who have created nuanced tests that must be used in its determination. 

There are scores of situations that could put the “ordinary residence” of an applicant in dispute, despite the information held on DWP systems. For example, students may be attending a residential school in England but normally live with their family in Scotland; children could be in shared care arrangements between one parent who lives in Wales and one who lives in Scotland; or families could own two properties, one in Scotland and one in England, and regularly move between them.

To suggest that a decision regarding a claimant’s residence will be a simple process of looking at the address held on DWP systems highlights a need for urgent and deeper consideration of this issue. The Young Carer Grant also requires “ordinary residence in Scotland”; its decision making process could provide insights into how this issue should be approached for case transfer.

Recommendation 7: The Scottish Government should give further consideration to how residence will be determined for purposes of case transfer, taking into account the significant body of law used to determine residence in the UK system.

In the same vein, the notion that questions about residence should be decided by an administrative disputes process, with no independent appeal rights, is concerning. Courts have filled pages with discussion about residency and developed delicate tests for decision makers to follow. A determination of residence has the potential to have a significant impact on the quality of life of the claimant, and we would be remiss to suggest that any government should have unfettered discretion in this regard.

We are unclear on what would happen if there is a dispute about residency after the case transfer process begins. For example, the DWP might flag someone for transfer but Social Security Scotland may agree they are resident in Scotland; or an individual may believe they are ordinary resident in Scotland, but may not be flagged for transfer by the DWP - they should have the ability to question that decision. 

Recommendation 8: The Scottish Government must give claimants the ability to challenge, and have independently reviewed, the determination of their residency used to decide whether or not their case should be transferred to Scotland.

Communications

Ensuring claimants and the people who support them understand exactly what is going on with their award during the case transfer process will be paramount to keeping client anxiety to a minimum and avoiding unnecessary pressure on the Agency.

Regarding the communications plans generally, we are concerned that there will be groups of individuals, especially among disability benefit claimants, who will be difficult to get in touch with. We seek reassurance that the Scottish Government is doing everything it can to identify these individuals and devising ways to get in touch with them.

The Experience Panels have been an important part of designing the communications process, with members of the public with lived experience of using the legacy benefits system sharing their experiences and reflections for service design and improvement. It is important, though, that too much weight is not put on any one tool for engagement and policy design. For example, we know that the composition of the panels do not fully represent the diversity of Scotland. Experience Panels should be augmented when devising the communication strategy for any part of the benefit system, especially one that will focus on people in some of the most vulnerable circumstances. 

We suggest that the Scottish Government take a more proactive approach to identifying groups that will likely be difficult to reach including, for example: people who are homeless, those with learning difficulties; people who do not speak English, or those who otherwise do not typically engage with the system, and reaching out to them in targeted way.

In addition to trying to anticipate groups that will be difficult to engage with before the communications campaign begins, the Scottish Government should put in a place a way to understand in real-time who is not responding to communications and change their strategy as a result. Making sure these groups understand what is happening with their benefits will minimise the potential of mistakes happening during the transfer of their cases.

Recommendation 9: The Scottish Government should seek to communicate the case transfer process to seldom heard groups. To do this it should:

• proactively identify groups that its core communications strategy will be unlikely to reach and address these gaps before the communications campaign begins
• once the communications campaign begins, develop a way of identifying groups that are not responding to the campaign and change the engagement strategy accordingly in real-time

An additional way of addressing this issue will be to make sure the services these groups use, for example health, social care, advice and support services, have a solid understanding of the process and are properly resourced to keep their clients informed and well supported through the case transfer process. Work needs to begin as early as possible in communicating changes to people affected and their carers so that when an official letter arrives it is not a surprise. As providing this further support will require increased outputs from these services, part of ensuring they are properly resourced will be to provide increased funding.

Recommendation 10: The Scottish Government must ensure health, advice and other support services are provided with adequate resources, including additional funding, to keep claimants informed and well supported through the case transfer process.

We understand that the current intention for communicating with clients regarding case transfer will include a letter from the DWP explaining that their award is ending and a letter from the Scottish Government explaining that their case will be transferred. We are concerned this may be confusing for claimants, who may not understand why their DWP award is ending and might, for example, make a new claim for the Scottish benefit or request a mandatory reconsideration of the decision to end their DWP benefit. Both of these scenarios could lead to delays in clients receiving their entitlements and create more work for the agencies administering them.

One option to address this could be sending a joint letter from both governments detailing the process and making it clear the claimant need not do anything. The fewer opportunities for misunderstandings to arise the better, and relying on claimants receiving several different communications and piecing them together could cause unnecessary problems.

Recommendation 11: Communications describing the case transfer process should be streamlined to minimise separate pieces of correspondence. A joint letter from DWP and the Scottish Government may be an effective way to achieve this.

Equalities

We are pleased to see equalities questions are being identified by Government at this stage. It is of utmost importance that equalities issues are recognised and addressed as early as possible in any policy development process, and we have previously highlighted ways we believe equalities analysis should be better integrated into social security policy making. We still believe there is further work needed to ensure equalities issues are appropriately considered and make some suggestions below.

One way we think this process could be improved is to develop and provide stakeholders with equalities impacts analysis documents at a much earlier stage. We understand the first time equalities impacts assessment (EQIA) are seen outside Government are when draft regulations are sent the Scottish Commission on Social Security (SCoSS). Receiving feedback from stakeholders on draft EQIAs earlier in the process will better enable Government to take the suggestions of stakeholders on board and integrate them into the policy.

Recommendation 12: Share drafts of equality impacts assessment documents with stakeholders at an early stage in the policy development process so their feedback can be meaningfully integrated into the policy making process.

To formalise this process, it may be prudent for the Scottish Government to establish a specific stakeholder reference group that focuses on ensuring equalities principles are being properly considered as part of social security policy development. Existing groups might play this role in the interim, but a dedicated group of equalities experts would be preferable in the long term. 

Recommendation 13: The Scottish Government should consider establishing an equalities expert stakeholder reference group to focus on ensuring equalities are being properly considered as part of social security policy development. Existing stakeholder groups could play this role in the interim.

Specifically with regards to case transfer, what we have seen so far suggests further work is needed to make sure equalities issues are given proper consideration. For example, we understand the case transfer principles, which we touched on earlier, were developed with equalities principles running through them. However, the communications principle, for example, makes no commitment to reaching seldom heard groups, nor does it appear to address underrepresentation in any way.

As set out above, we would like to see a robust analysis of which groups are likely to miss out as a result of the communications strategy as it stands. An analysis of interdependencies of benefits (i.e. which groups are likely to claim multiple benefits meaning they will likely be affected by case transfer) could prove a useful starting point. We would be pleased to work with officials to address any gaps that are identified.

We touched briefly on the use of the Experience Panels in developing the communications approach as well as the principle that the case transfer process should be completed as soon as possible. The issues we raised are, we believe, indicative of a wider challenge to ensuring the views of seldom heard groups are considered. Experience Panels are an important part of testing policy and delivery options with members of the public with lived experience of using the legacy benefits system sharing their experiences and reflections for service design and improvement. Experience Panels are therefore a significant improvement compared to what came before. However the composition of the panels do not fully represent the diversity of Scotland and further work is needed to ensure there is deliberative dialogue leading to meaningful co-design. Members would be pleased to further discuss this issue with officials.

For these reasons, Experience Panels should be complemented with other targeted methods when trying to understand and learn from the perspective of Scotland’s diverse population. More must be done to engage with those groups who are not represented on the panels to ensure their voices are heard. To enable genuine co-design, the Scottish Government should build upon the model used in developing the social security charter and embed principles such as working at a realistic pace, taking account of and meeting capacity building needs, building relationships including peer support and creating trust through open communication, providing full access and inclusion and harnessing feelings of reciprocity and a shared goal. This additional model or models would enhance the Experience Panels and deliver a more powerful and effective dialogue with Scotland’s people.

Recommendation 14: Detailed policy analysis should consider seldom heard groups and action should be taken to actively involve these groups. In addition, Experience Panels should be enhanced with more deliberative models of engagement and dialogue, supported by capacity building to deliver more effective policies and service design.

Appointees

We understand that during the case transfer process, appointees will need to complete and return a form or they will not be able to be paid once the case transfer process is complete. This is because there must be a legal basis in Scots law to make these payments.

While the reasoning for this policy is sound, we would like to seek assurances that everything possible is being done to make sure no appointee will face a break in payments for this reason. Early active engagement with appointees is one way this issue can be avoided. Making it as easy as possible to provide the necessary paperwork, in a variety of mediums, is another option to be explored.

Recommendation 15: The Scottish government should make every effort to ensure no appointee is left without payment due to failing to respond to a request for documents.

SCoSS

Finally, we understand that because the case transfer regulations will be subject to the negative parliamentary procedure, there is no requirement to have these regulations scrutinised by the Scottish Commission on Social Security (SCoSS). The Social Security (Scotland) Act 2018 (the Act) gives Scottish Government the power to request that SCoSS scrutinise regulations even where it is not required. It is our understanding, however, that there are no plans to do this for the case transfer regulations, in part because to do so would likely delay the current case transfer timetable.

We believe these regulations should be scrutinised by SCoSS. The case transfer process is one of the most complex aspects of building the new Scottish system, and the regulations required will be at least as equally complicated. They must necessarily interact with a wide range of primary and secondary legislation at both Holyrood and Westminster. We believe this is precisely the sort of situation the parliament envisioned when it gave Government the power to request a report from SCoSS in the Act. We are concerned that even if the policy intent is clear, there is a real risk that errors or omissions occur in the details of the regulations if they are not adequately scrutinised. These mistakes could very well delay the case transfer process significantly more than the process of SCoSS scrutiny would. For these reasons, we feel SCoSS should have the opportunity to scrutinise the regulations.

Recommendation 16: The Scottish Government should request that SCoSS scrutinise the case transfer regulations before they are laid before parliament.

Conclusion

Moving claimants from DWP disability benefits to new Scottish disability payments will be one of the most substantial administrative undertakings the Scottish Government carries out as the process of social security devolution continues. It is a process that must be as robust as possible from the start, especially considering the first wave of claimants to be transferred will be disabled children.

There is more work to be done to ensure this process is as good as it can be. Paramount to getting things right will be to seek out and listen to the least heard members of our communities, to ensure claimant’s rights are not compromised in the search for administrative efficiency or speed, and for each claimant to have a clear understanding of what is happening with their benefit payments and what is needed from them.

Recommendations

Please see below our key recommendations.

• recommendation 1: Communications must be particularly clear about the circumstances in which current claimants will and will not be subject to DWP or Scottish Government assessments or reassessments once new claims for DAWAP are open
• recommendation 2: The principle “complete as soon as possible” must not be used to undermine people’s rights or jeopardise the “safe and secure” transfer process
• recommendation 3: Claimants who have a relevant change of circumstance between their case transfer beginning and ending should have this change reflected in their award as soon as possible
• recommendation 4: Problems to the case transfer process caused by ongoing appeals should not cause undue administrative burden or significant delay for claimants. Putting an absolute time limit on how long an individual’s case transfer can be delayed due to an ongoing appeal is one strategy to consider
• recommendation 5: Where a past DWP award is changed after the case transfer process is complete, the Scottish award should be revised to reflect this change without requiring input from the claimant
• recommendation 6: The Scottish Government must recognise a claimant’s right to request a re-determination of, or otherwise appeal, the automatic determination without application that results from the case transfer process
• recommendation 7: The Scottish Government should give further consideration to how residence will be determined for purposes of case transfer, taking into account the significant body of law used to determine residence in the UK system
• recommendation 8: The Scottish Government must give claimants the ability to challenge, and have independently reviewed, the determination of their residency used to decide whether or not their case should be transferred to Scotland
• recommendation 9: The Scottish Government should seek to communicate the case transfer process to seldom heard groups. To do this it should:
  • proactively identify groups that its core communications strategy will be unlikely to reach and address these gaps before the communications campaign begins
  • once the communications campaign begins, develop a way of identifying groups that are not responding to the campaign and change the engagement strategy accordingly in real-time
• recommendation 10: The Scottish Government must ensure health, advice and other support services are provided with adequate resources, including additional funding, to keep claimants informed and well supported through the case transfer process
• recommendation 11: Communications describing the case transfer process should be streamlined to minimise separate pieces of correspondence. A joint letter from DWP and the Scottish Government may be an effective way to achieve this
• recommendation 12: Share drafts of equality impacts assessment documents with stakeholders at an early stage in the policy development process so their feedback can be meaningfully integrated into the policy making process
• recommendation 13: The Scottish Government should consider establishing an equalities expert stakeholder reference group to focus on ensuring equalities are being properly considered as part of social security policy development. Existing stakeholder groups could play this role in the interim
• recommendation 14: Detailed policy analysis should consider seldom heard groups and action should be taken to actively involve these groups. In addition, Experience Panels should be enhanced with more deliberative models of engagement and dialogue, supported by capacity building to deliver more effective policies and service design
• recommendation 15: The Scottish government should make every effort to ensure no appointee is left without payment due to failing to respond to a request for documents
• recommendation 16: The Scottish Government should request that SCoSS scrutinise the case transfer regulations before they are laid before parliament

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