Disability and Carers Benefits Expert Advisory Group: case transfer - response from ministers

Chair: Disability and Carers Benefits Expert Advisory Group c/o Scottish Government

24 March 2021

Dear Jim,

Thank you for your letter of 24 July 2020 regarding the case transfer of disability benefits from the Department for Work and Pensions system to the Scottish social security system. Please accept my apologies for the delay in responding to your helpful recommendations.

I am pleased to hear of your constructive discussions with officials and welcome your feedback. I have considered all of your recommendations and am pleased to confirm that I broadly support most of them. Further, I would like to assure you that your recommendations have already been taken into consideration in developing our plans for transferring Scottish children and young people currently in receipt of Disability Living Allowance onto the Child Disability Payment. I would like to address each of the recommendations in turn.

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 Adult Disability Payment are open

I am happy to accept this recommendation. We will ensure that any client who reports a change of circumstances or has an award review arise once new applications for Adult Disability Payment are open will not be subject to a face-to-face re-assessment by the Department for Work and Pensions.

It is important to note that the first Scottish disability benefit to launch, Child Disability Payment, and it’s previously reserved equivalent, Disability Living Allowance for Children, do not have a face-to-face consultation/assessment process.

Our policy regarding the transfer of client’s benefits from Personal Independence Payment to Adult Disability Payment is still being developed. It is anticipated that for most clients, their determination of entitlement to Adult Disability Payment will be based on their current entitlement to Personal Independence Payment and that there will be no requirement for a client to undergo a consultation (assessment) as part of the case transfer process.

If after the launch of Adult Disability Payment, a Scottish client currently in receipt of Personal Independence Payment reports a change of condition that would affect their award, or is due an award review or an end of award for which the renewal process has not commenced, but before the client is otherwise selected for case transfer, then their benefit will be transferred to Social Security Scotland and onto the Adult Disability Payment. The process for these ‘natural case transfers’ is still being finalised. It may be that in order to determine a client’s eligibility for Adult Disability Payment in these cases we require further information about the client’s condition and that we potentially offer the client a consultation (assessment). However, this would only be done if it is the only practicable way to obtain the information necessary to make a decision about their entitlement.

We will co-develop the correspondence and communication materials with people who use the system to make sure that messages are clear and understood. This work with users will also inform the channels that we use to communicate.

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

We are fundamentally committed to a safe and secure transfer of benefits. However, as you highlight, a careful balance must be struck to ensure people are not left on reserved benefits indefinitely.

I will discuss the specific example you cite regarding re-determinations and appeals further below, but I can assure you that individual rights will not be undermined in the pursuit of haste.

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

I am happy to accept this recommendation in principle. For children and young people in receipt of Disability Living Allowance, if a client has recently reported a change of circumstances then they will not be selected for case transfer until the review process has been completed. The client will then transfer on the reviewed award level.

If a child or young person in receipt of Disability Living Allowance reports a change of circumstances after having been selected for transfer and during the 13 week case transfer window then we have processes agreed with the Department for Work and Pensions that they will process the change and notify us of their decision on the outcome. Where this decision is made before the 13 week period is up, we will ensure it is reflected in the initial determination of Child Disability Payment. Where the decision is made after the transfer process has completed, we will make a determination without application to reflect that decision in the award of Child Disability Payment where appropriate.

The detail for case transfer of Disability Living Allowance for adults and for Personal Independence Payment to Adult Disability Payment is still being developed, as is the process for transferring clients’ benefits from Attendance Allowance to the Pension Age Disability Payment. Therefore, the detail may differ for these benefits.

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

Again, I am happy to accept this recommendation in principle. Our current policy for the transfer of children and young people from Disability Living Allowance to Child Disability Payment is to have a set of stabilisation criteria which will ensure clients are only selected for transfer once their cases are stable. Therefore, if a child or young person’s Disability Living Allowance award is currently subject to a request for revision, supersession or appeal then the case will not be selected for transfer. However, we are working with the Department for Work and Pensions to ensure no one who is nearing 18 is prevented from having their benefits transferred due to an ongoing benefit appeal where this might impact their journey to adult disability benefits.

As signalled above, we are still developing the detail of the case transfer process for adults and older people. The approach for those other benefits may therefore vary. Certainly for any adult currently in receipt of a disability benefit that has a change of circumstances, or an award review or end of award for which the renewal process has not been started, after the launch of Adult Disability Payment then it is likely that client would need to transfer immediately to avoid having to undergo a DWP face-to-face assessment.

We have committed to completing case transfer in 2025. For each benefit that transfers there will also be an intended overall transfer window. Where any stabilisation criteria are in place for a particular benefit, processes will also be agreed to ensure that at the end of the overall transfer window any remaining clients for whom the stabilisation criteria still apply are transferred safely and securely.

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

When a case is transferred, an individual’s previously reserved benefit is ended and their Scottish assistance begins. Where the previously reserved disability benefit entitlement that was ended by the transfer process is re-considered after they have transferred to Scottish disability assistance due to a revision or supersession, or as a result of the outcome of an appeal, a process will be put in place to ensure the Department for Work and Pensions inform Social Security Scotland of this change. We will ensure Social Security Scotland has the appropriate powers to consider this information, discuss it with the client where necessary, and make a determination without application of the Scottish assistance. Where appropriate, this new determination will make a corresponding change to the client’s Scottish disability assistance. This is provided for children and young people in the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (the Child Disability Payment Regulations).

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

I am committed to taking a rights based approach to case transfer and will ensure that all clients have appropriate rights to challenge decisions affecting their entitlement. For children and young people whose benefit is transferred from Disability Living Allowance, their entitlement to Child Disability Payment will be by way of a determination without application. This will carry full re-determination and appeal rights.

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

I am happy to accept this recommendation in principle. I agree that it is important that processes are in place which ensure that only the correct clients are transferred, and work is ongoing within the Scottish Government and the Department for Work and Pensions to develop processes which safeguard against errors. The residency criteria for new forms of assistance have been developed in light of the body of case law to which you refer, and have specifically sought to ensure that no one falls between eligibility gaps where they live in one of the cross-border situations which you helpfully highlight in your advice.

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

If a client is transferred but believes they are not ordinarily resident in Scotland, another determination can be made which essentially undoes the original determination as though it never happened. Because the Child Disability Payment determination on transfer is what triggers the end of the client’s Disability Living Allowance, the undoing of the Child Disability Payment determination also reverses the termination of the Disability Living Allowance.

Clients will have the right to request a re-determination or appeal of the original determination and any subsequent re-determination . We are working with the Department for Work and Pensions to make sure a process is in place to ensure the client’s Disability Living Allowance is put back into payment without any gaps.

Clients are selected for transfer based on having a Scottish postcode listed on their award. If any Scottish client thinks that they do not have a Scottish postcode listed and should, then they can make a request to DWP to update their details. Where a client believes they should have been transferred and believes they have a Scottish postcode and were not selected, they can notify Social Security Scotland or the Department for Work and Pensions. We will work with the Department for Work and Pensions to conduct the proper investigations to determine why the client was not chosen for transfer and will either arrange for the client to transfer or explain clearly to the client why we do not think the client is entitled to Child Disability Payment and should not transfer. Given the basis for transfer is that the client is ordinarily resident in Scotland, in the majority of cases this should be a straightforward process and decision. If after discussion the client is dissatisfied with the outcome, the client will have the option of making a complaint to the Scottish Public Services Ombudsman if they wish.

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

I am happy to accept this recommendation. Consideration of seldom heard groups is something that we already do with our existing benefits and will continue to do throughout the case transfer process. We do this through engagement with our Inclusive Communications Stakeholder Group and Operational Stakeholder Reference Group and we also plan to engage with our new external Equalities network. Reaching these audiences is a key objective of our communications and marketing strategies to ensure that we have tactics in place from the start and that this isn’t treated as an adjunct to the core activity – it has equal weighting.

We consult with these groups in advance on our communication plans to get input as to how we can ensure we reach seldom heard groups and we go back to these groups to get anecdotal feedback on the effectiveness of our campaigns.

Things we have put in place as a result of this engagement include:

• proactively translating benefit information into 9 languages and Easy Read

• we identified that people were not downloading or requesting these materials so following conversations with stakeholders we have started proactively providing these to organisations who are able to give them to the people who need them – for example we post Braille copies of materials to RNIB on launch

• we are carrying out targeted digital marketing based on language preference

• we run advertising on community radio stations and print

• we have joined Happy to Translate

• we have set up a sub working group to help us reach gypsy traveller groups

• we also offer to create bespoke products for organisations to reach their extended audience – this has included video content, podcasts and print materials

We hope to utilise equalities data and the results from the ongoing client survey to better understand who we are and are not reaching and we will work with stakeholders to look at ways we can improve.

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

While I agree with the point that some people will need further support during the case transfer process, and am therefore happy to partially accept this recommendation in principle, there are no plans to provide further funding over and above what the Scottish Government already provides to such services. In the financial year 2020-21, the Scottish Government invested almost £4.5 million in grant funding specifically to support welfare advice services and will maintain this level of investment into 2021 to 2022. Furthermore, we will provide £3.17 million over two years from September 2021 to deliver and fully evaluate a project embedding welfare rights advisors in 150 primary care settings in Scotland’s most deprived communities.

A number of provisions have already been made in the Social Security (Scotland) Act 2018 (the 2018 Act) that can be seen as contributing towards this, including the right to advocacy support, with an interim advocacy service having commenced on 30 June 2020. In addition there has also been significant investment to ensure that there is local delivery support from Social Security Scotland staff, pre-application advice and help. Taken together, these measures already provide significant extra resource and a tiered approach to support to meet varying degrees of need.

That said, we will provide a number of supports to frontline services to help them help individuals through the process:

• ahead of a benefit launch we run a series of stakeholder roadshows to ensure that frontline workers are aware of the changes and have the opportunity to ask questions – for each benefit this will include case transfer as well as information for those that may be making a new application

• we will provide stakeholder resources that include information on case transfer that other organisations can use in their internal communication channels and with their clients. Some organisations choose to use our materials and some chose to repurpose these to meet their own needs

• we will develop a detailed engagement plan for each benefit that will include case transfer to make sure that we understand the needs of key stakeholders and to support them with these changes

• we will publish decision making and operational guidance proactively on socialsecurity.gov.scot shortly after a benefit launch and we will have a mechanism in place to make this available in advance

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

This recommendation is partially accepted and being actively considered. A joint letter is a useful idea and is something my officials are currently exploring further with the Department for Work and Pensions. Our communications materials for clients have been developed based on user research and we are currently asking all clients involved in user research for their views on joint communications for case transfer.

For the transfer from Disability Living Allowance to Child Disability Payment we will not do a joint communication. Instead we are consulting with the Department for Work and Pensions to get their feedback on our letters. We will make it clear to clients in our letter that they will not receive a letter from that Department. We are still considering our approach regarding the transfer of other benefits.

We will continue to work closely with the Department for Work and Pensions to ensure that our contact is streamlined, consistent and that messages are clear. Our approach will always be based on user needs.

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

I am pleased to accept this recommendation in principle. My officials will be happy to share drafts of equality impacts assessment documents as soon as they are available. However, I must stress that the legislative timetable for transferring the benefits of children and young people from Disability Living Allowance to Chid Disability Payment was very tight as a result of the impacts of coronavirus. As such, there was not time for significant stakeholder engagement on the sections of the draft impact assessments relating to the case transfer provisions in that case.

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

I understand the reasoning behind this recommendation but am unsure as to whether a new group needs to be established or whether existing groups could be better utilised to this end. Early engagement is underway to explore existing stakeholder groups across social security policy and Social Security Scotland to see how they can feed into equalities considerations. For example, Social Security Scotland has set up an external equalities network and we plan to engage with the Inclusive Communications Stakeholder Reference Group in relation to communications for case transfer. I will consider this recommendation further but would generally prefer utilising existing resources where possible.

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

I am happy to agree with this recommendation in part. More user researchers have been recruited to support this work. Additionally we have committed to recruit users outwith the Experience Panels and the Scottish Government have entered into a contract with Taylor McKenzie who undertake this recruitment with a specific focus on seldom heard groups.

Of course, we will be limited in what we can due at present, given the current pandemic and restrictions which are in place mean face-to-face research cannot currently take place.

Early engagement with the Experience Panels focussed on the over-arching strategic approach to the transfer of cases. As we have learned more about the service design as we have begun testing specific elements of the journey with the experience panels and testing draft content for client communications. This has provided us with valuable feedback on the understanding of parts of the policy and the process. Further sessions planned in the coming months will focus on co-design work and testing of specific case transfer scenarios.

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

I agree with this recommendation in principle. Amendments to the 2018 Act set out that we will take a different approach from the Department for Work and Pensions when it comes to appointing individuals for purposes of making benefit applications and managing entitlement. This includes some further checks the Department for Work and Pensions do not routinely make such as taking the views of the child or young person, their parents and others into account, insofar as practicable, when considering whether to make or terminate an appointment. This means we cannot usually rely on the appointee process the Department uses.

Given DACBEAG’s advice of 14 August 2020, particularly as it relates to young people, we recognise it is important that these extra steps are carried out, however, given the volumes of clients undergoing the transfer process, it may not be possible for Local Delivery to conduct all these checks within the 13 week case transfer window for all clients whose benefits are transferring.

Therefore, for the transfer of benefits for children and young people currently in receipt of Disability Living Allowance, we have made provision in the Child Disability Payment regulations for a legislative gloss. This allows us to treat people appointed by the Department for Work and Pensions as appointees in our system until the more robust processes that will be required in accordance with the recently added provisions in section 85B to 85E of 2018 Act (once commenced) and the accompanying guidelines, can be completed. The processes set out in those guidelines must be carried out as soon as reasonably practicable after the date of transfer, in effect a phased review of all previous appointments. Where Social Security Scotland’s appointment process cannot be completed in the 13 week transfer period, this provision ensures no client faces a break in payment, and that clients and interested third parties still have the right to challenge the appointment at their own instigation in the intervening period should they wish.

Our policy regarding the transfer of other benefits is still being developed, but we envisage taking a similar approach.

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

I understand this is an especially complicated process and therefore accept this recommendation in principle. Provision for case transfer within the Child Disability Payment regulations were made under section 95 of the 2018 Act. Therefore, there is no statutory requirement for these provisions to be sent to SCoSS.