Disability and Carers Benefits Expert Advisory Group: award review advice

To: Shona Robison – Cabinet Secretary for Social Justice, Housing and Local Government

Ben Macpherson – Minister for Social Security and Local Government

02 July 2021

Dear Ms Robison and Mr Macpherson,

Award review documents

Thank you for your request to provide advice on award review forms for Scottish disability benefits. 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 application 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. We met with officials on 10 February 2021 to discuss this issue. 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 arising from our discussions to which we wish to draw to your attention. Our recommendations are summarised at the end of this letter.

Award review forms

We have been asked to provide advice on the forms to be used in Social Security Scotland’s newly proposed award review process. We understand that Social Security Scotland intend for this award review process to:

• be designed as a fairer, more transparent and empathetic process and a service that works for all Clients
• be based on all clients having rolling awards and being able to inform Social Security Scotland if their need’s change
• be based on a ‘light touch’ review, on a sliding scale depending on the scope of changes the client has experienced since their last review
• use forms for the ‘light touch’ review, where a client does experience a change, that are shorter and less intrusive than DWP and that these will be refined through User Research and testing
• ensure clients continue to receive payments during the review, that any increase will be backdated but any decrease will not have to be paid back

We were specifically asked to comment on whether, in our view, it was appropriate that clients receive slightly different forms based on the anticipated likelihood that they would have experienced a change of condition. We were also provided with drafts of three forms: a change of condition form, an award review form for where there are no expected changes to the clients condition, and an award review form where there is an expected change.

Our discussions have highlighted a number of areas for further consideration that we hope will help officials to develop the award review process, including the content of the forms, to meet the aims set out above.

If different forms are to be sent to clients depending on whether there is an expectation that their condition has changed, it is important that clients clearly understand the basis on which this decision is made, who is making this decision and the support and guidance that is in place to support this decision. If there is an option for a shorter form to be sent, then it will be important to be clear about the category of clients it would be likely to go to. For example, for a client on an indefinite award, there may be no expectation of change at all and it may not be appropriate even for the shorter form to be sent. If Social Security Scotland can make a reasonable assumption on whether the client is likely to have experienced a change in condition, then it seems reasonable that clients could receive a different form as long as there is an option for them to input other information that may be relevant to their award.

However, there are a number of elements that need to be considered in determining whether there is an expectation that a client may have experienced a change in condition. First, this should be about an expectation of changes to a client’s care needs or how their condition is affecting their functional abilities. Changes that may affect entitlement could relate to a client’s main condition, a secondary condition, a new condition or even a change in circumstances which means they are either better or less able to manage the impact of their condition. There is a risk that in making this key initial decision, only the expectation of change to a client’s primary condition is considered and other changes that may affect their entitlement are missed. This may be the case whether it is a case manager or the client making this decision, if the correct support and guidance is not in place.

Secondly, if clients are to make the initial decision, it will be important to consider how they will be supported to do this. “Some clients may need support and access to independent advice to help them decide whether their condition has changed.

We would be keen to understand the next steps if a client indicates that there is no change. It is possible that the client may not have realised that their condition has changed sufficiently to affect their award, and might therefore actually be on a lower award than they ought to be. There is an argument that clients should also be asked to describe how their condition affects them, even if they do not consider that their condition has changed. 

If a client received this form, would there be circumstances where the Agency would still consider it necessary to get more information? If not, this may defeat the purpose of two separate forms.

Lastly, if case managers are to make the initial decision on which form to send to a client, the purpose of this decision must be based on a client’s best interests and this must be reinforced through training, support and guidance. While there is a strong focus on dignity, fairness and respect evident in the overall approach that has been set out, there is a risk that with time, decision making becomes driven by other factors such as financial pressures. It is, therefore, important that processes are future proofed to ensure that these values remain at the centre of decision making. 

Recommendation 1: Further consider whether a more appropriate approach would be the issue of a single form with clear guidance provided for clients in relation to the relevant sections in changes to condition.

If different forms are to be sent to clients depending on whether there is an expectation that their condition has changed:

Recommendation 2: Clear support and guidance must be in place to support the decision making process as to which form will be sent, whether that decision is made by a case manager or by the client.

Recommendation 3: The award review processes put in place should be future proofed to ensure that the values of dignity, fairness and respect remain at the centre of decision making. 

Recommendation 4: Further consideration of a separate process for clients on indefinite awards may be appropriate.

There will need to be a balance between making forms clear and simple so as not to be a barrier for clients, and ensuring the correct information is collected. 

Understandably, clients want an easy form to complete. The reason current forms aren’t easy to complete is because they have to collect vast amounts of information. However, having a short form risks not collecting information that could be helpful in carrying out the award review and for any future consideration of a change of condition, redetermination, or appeal. A key issue will be communicating clearly how much of any form needs to be completed. Depending on the clarity of communication there may not be a need for separate forms. If there is a lack of clarity, clients may be confused to be sent a full form and may feel pressured to complete all sections for fear of missing out. It would be helpful to think through further the structure of documentation that will be sent. The draft award review forms provided are described as forms but currently look and read more like letters. There may be a balance between a cover letter and enclosed form that would help provide better clarity. The cover letter could seek to make clear when the form needed to be completed, rather than providing two separate forms.

It will also be important that questions should focus on capturing information about changes to functional abilities and care needs rather than simply changes to the client’s condition. As noted above, the primary condition that a client applies for might not be the only condition they have or new conditions could arise. If a client is only asked if there is a change in their condition they may say no without giving information about new conditions. Similarly they might not report changes in other conditions that they do not consider to be their “main” condition.

Recommendation 5: Documents and forms sent to clients must be focused on capturing information about changes to a client’s functional abilities and care needs rather than simply changes to the client’s condition.

Establishing a shared and accurate understanding between case manager and client on the basis for the client’s current award is critical. There was discussion with officials and within the Group on the best way to achieve this, including on the information that should be sent to a client with the initial communications on the award review. One option could be to send a pre-populated form with the information provided at the last review point and ask the client if that information is still correct. The client could also be sent details on how this information was used to make the decision on their current award and to remind clients of the details of their current award. An example of the first decision notice was provided by officials to aid consideration of this point. This could be included in its entirety or a summary provided. It might be helpful to make clear what information was used to make the decision on the client’s current award and where this information came from. At the very least a breakdown of the points awarded as part of the previous award and a copy of the criteria should be provided with the initial review documentation. If separate award review forms are to be used then it would also be helpful to make clear what information that was used to make the decision on which form was sent.

Recommendation 6: Further consideration should be given to what information the client should be provided with about the basis for their current award (eg points awarded) in order to ensure that information was and remains accurate and the client should be provided with the initial review documentation.

Clients may need support to fill out the forms. This might be help from Social Security Scotland, i.e. agency staff could fill out the form with information provided by the client over the phone. Clients may need support from independent advice service to fill in the forms or support, as noted above, to make a decision as to which form they should complete/whether they have been sent the right form. Disabled people can often underplay the seriousness of their condition or the impacts it has on their abilities.

Recommendation 7: All documentation and forms should clearly signpost, up front, the sort of support, including independent advocacy and advice that is available to clients to help make any necessary decisions and complete the forms.

Decisions as to what form to send out, what questions are asked in those forms and decisions taken on a client’s award as a result of the information provided in those forms all have the potential to be influenced by unconscious bias and result in indirect discrimination. Questionnaires can be unintentionally discriminatory in how they ask questions. Unconscious bias can be possible in decision making depending on how individuals answer the questions in the forms. Even the decision on which form to send could be influenced by unconscious bias and have the potential to result in indirect discrimination. It is important that equalities and human rights considerations are key factor in designing the award review process.

Recommendation 8: An equality and human rights impact assessment should be used to inform the award review process, including which forms are used, the content of those forms and potentially removing identifying client information.

Finally, Group members have feedback a number of specific comments on the format and content of the example forms provided by officials and these are set out in Annex A for official’s further consideration.

Conclusion

Overall, we support Social Security Scotland’s ambition for a light touch and client-centric review process but note this needs to be balanced with ensuring the process is robust enough to gather the information needed to ensure all clients continue to receive the appropriate award and that clients and case managers are appropriately guided and supported throughout the process. We hope our recommendations on areas for further consideration will help to achieve this balance.

Recommendations

Please see below our key recommendations:

• recommendation 1: further consider whether a more appropriate approach would be the issue of a single form with clear guidance provided for clients in relation to the relevant sections in changes to condition
• recommendation 2: clear support and guidance must be in place to support the decision making process as to which form will be sent, whether that decision is made by a case manager or by the client
• recommendation 3: the award review processes put in place should be future proofed to ensure that the values of dignity, fairness and respect remain at the centre of decision making
• recommendation 4: further consideration of a separate process for clients on indefinite awards may be appropriate
• recommendation 5: documents and forms sent to clients must be focused on capturing information about changes to a client’s functional abilities and care needs rather than simply changes to the client’s condition
• recommendation 6: further consideration should be given to what information the client should be provided with about the basis for their current award (eg points awarded) in order to ensure that information was and remains accurate and the client should be provided with the initial review documentation
• recommendation 7: all documentation and forms should clearly signpost, up front, the sort of support, including independent advocacy and advice that is available to clients to help make any necessary decisions and complete the forms
• recommendation 8: an equality and human rights impact assessment should be used to inform the award review process, including which forms are used, the content of those forms and potentially removing identifying client information

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

Annex A

Specific comments on the format and content of the example forms

Accessibility/ Format

• size 14 minimum size font
• use ‘will not’, ‘does not’, ‘were not’ rather than ‘won’t’, ‘don’t’, ‘weren’t’ - this will simplify language
• can additional contact details and information regarding the next steps of the process be highlighted to provide greater signposting for claimants. Advice on what support is available to help understand a letter or fill in a form and where to get that support should go at the top of the form or letter
• the terminology used throughout the forms and letters should be standardised – for example, use ‘I’ or ‘We’ throughout and not both
• spelling out information more clearly, for example: “This means we will be paying you a total of £451 every four weeks (this works out at £112.75 a week)”
• avoid unnecessary explanations if it adds complexity rather than clarification, for example: “You need to send us your form or call us by 22 February 2021

All forms

• the client should be provided with a copy of their previous application or review form, as well as a summary of their current award and a summary of the reasons for the last decision/ determination.
• a summary of the supporting evidence relevant to the clients award, and who provided that information, would also be helpful
• a key reason for this is that individuals living with children with disabilities may not be aware of changes, or the extent of changes to their child’s needs (due to gradual changes, and parents becoming used to ‘work-arounds’ to meet their children’s needs), and therefore not accurately noting changes which could potentially increase entitlement
• there is sometimes a lack clarity on the information that claimants are required to provide and on when the Agency may collect additional information on their behalf. It would be helpful to consider what additional information could be provided to assist claimants? This could be in the form of advice notes or prompt within the forms themselves
• some members felt that the forms were lengthy and that some of the questions required multiple and repetitive responses leading to duplication of information provided. It may be helpful to review the forms to ensure each piece of information is necessary and to remove repetitive questions

Change of circumstances form

• welcome the fairly detailed prompts as to which changes to report
• for the part on “Send Us Your Supporting Information” it would be helpful to be much clearer about what information the client will need to provide directly and when, and what further supporting information will be gathered by the agency. At the moment the form would seem to suggest that the responsibility for providing all evidence is directly with the client
• it would be helpful to add free text boxes so that further information which may not be covered in the rest of the form can be included
• the form does not currently include the prompts needed in order to obtain relevant information for the higher rate mobility component. Some of the criteria for higher rate mobility are: the child is virtually unable to walk, including the ‘manner of walking’; the child has a severe mental impairment; and the child has severe behavioural difficulties. However, the tick boxes in the ‘changes to mobility’ section all relate to physical difficulties. The ‘other’ tick box is insufficient to prompt parents/guardians to report changes in behaviour, for example, there are longstanding issues for children with learning disabilities and autism missing out on their correct entitlement to the higher rate mobility component of Disability Living Allowance
• on page 13 it is not clear what is meant by “sensory issues”. A suggested alternative would be “new health conditions or problems”

Award review form – expected changes

• there is a danger with the current format that people won’t be specific about the descriptors. There is an equivalent PIP form where you tick if things are better, worse or the same for each descriptor with room to explain if things have gotten worse. The problem with this is that people usually can’t remember what they wrote years ago when they last filled in a form, so it’s not that helpful to just tick if things are worse etc
• on page 5, there is a statement that applicant does not need to provide details of third party assistance/involvement. It would still however be helpful to have space to provide details of a welfare rights officer, advocate etc. should the client wish to. Otherwise this may be read as Agency advisers being the preferred choice for providing advice/assistance
• putting the ‘Next steps’ section in bullet points might be clearer or consideration could be given to the use of a simple easy read flow chart for next steps as well as the ‘How to complete your review’ section (page 1)

Award review form – no expected changes

• it would be helpful to provide an online option to confirm that nothing has changed
• if no changes, need only to tick a box and sign form. This is a change from the current process and will require clear communications and the building of trust in the Agency. Some clients may still feel they have to detail how their child manages daily activities and mobility, in order not to risk losing current entitlements
• as with the award review form where there are expected changes, there is a danger with the current format that people won’t be specific about the descriptors. There is an equivalent PIP form where you tick if things are better, worse or the same for each descriptor with room to explain if things have gotten worse. The problem with this is that people usually can’t remember what they wrote years ago when they last filled in a form, so it’s not that helpful to just tick if things are worse etc
• suggest that 28 days to return review form is regressive. It is currently one calendar month from the date on form. Consider increasing to longer than one month
• next steps section might be clearer in bullet points or consideration could be given to the use of a simple easy read flow chart – for next steps (page 2) as well as for the information in sections: ‘If nothing has changed’ (page 1) and ‘If there has been a change’ (page 1)

Final decision report

• helpful that the report gives examples of relevant change of circumstances that a client would need to notify the Agency about, as applicants are not always sure about this
• helpful that decision report is provided with the decision. Enables redetermination requests to be more sharply focussed, and therefore more likely to be successful at re-determination stage
• concerned about the use of the following phrase “If you do not tell us about a change which affects Jayden’s level of need you may be committing an offence.” This does not appear on current DWP decision letters and has the potential to add to the fears that people have in living their lives based on the current deficit model and culture of DWP
• the explanation as to when and why the award will be reviewed is helpful, as it may be possible to dispute the length of award if mistakes have been made. For example, if a client with a long-term or degenerative condition has a review scheduled within a relatively short period
• it is helpful to note that call recordings available on request. When of good quality, this can help to trace when an individual notified the Agency of a change of circumstances, if there is a point of dispute. We would note that currently, recordings of phone conversation notes at DWP service centres are very poor
• it is assumed that someone going into short term residential ‘respite’ is not included, but given that respite is common with children so this should be made explicit.
• consider making the ‘report section’ a clearly separate document
• the decision letter should clearly state the time period within which the client can make a request a late redetermination. There could be someone who has missed the initial deadline by months who does not realise it is still worth asking for a late redetermination
• it would be helpful to include more detailed information with the letter about other support and help available like Access to Work, Blue Badge, Railcard etc. This is on DWP letters and not everyone has access to internet so a hyperlink to the information might not be enough