Disability and Carers Benefits Expert Advisory Group: indefinite awards - response from Ministers

3 February 2022

Dear Jim,

Thank you for your letter dated 2 July 2021 regarding indefinite awards for Adult Disability Payment and Pension Age Disability Payment. I know that you have also had constructive discussions with officials, and we welcome your feedback. Please accept my apologies for the delay in responding. The depth of your recommendations and the complexity of this subject mean that extended consideration was required. I am grateful for your patience.

I have considered your recommendations and am pleased to confirm that I am broadly supportive of all of them. Please see my responses to each of them below, in turn.

A holistic overview of clients’ needs

Recommendation 1: Officials may wish to look again at including consideration of certain impairments or conditions as a proxy indicator for a likely level and pattern of disadvantage and therefore suitability for an indefinite award.

I accept this recommendation.

I agree with the group’s advice that in some instances it may be appropriate to use a limited set of conditions or disabilities as an initial proxy indicator for a likely level or pattern of disability. As you would expect, this will be used alongside other guidance to help case managers build up a holistic picture of the individual’s circumstances and ensure that a person-centred decision is made.

Officials will consider this as the guidance for indefinite awards is developed.

Recommendation 2: Consideration of when a set review period may be inappropriate, and that an indefinite award should be made, should not be limited to clients on the highest award levels.

I accept this recommendation in principle.

However, in order to get this policy right for people I have decided initially to only introduce indefinite awards for people receiving the highest level of award.

The overall aim of introducing an indefinite awards policy in the devolved Scottish social security system will be to ensure that people with lifelong conditions, or disabilities resulting in needs highly unlikely to change, receive long-term and adequate support without having their awards reviewed unnecessarily, when it is reasonably expected that their awards will not change. However, for people with lower level awards there are some issues that require further consideration. Hence why I am only accepting Recommendation 2 in principle at this stage. I look forward to engaging on these issues with you as we undertake further consideration and analysis.

We need to consider that introducing indefinite awards for clients on lower level awards could have unintended behavioural impacts that may prevent them from reporting an increase in their needs, resulting in them not getting the disability assistance they are entitled to. Long-term financial security should not come at the potential expense of people getting less support than they would be entitled to.

As you are aware, reviews are required in all other cases to ensure that people receive the assistance they are entitled to. As you are also aware, in our devolved Scottish social security system the approach to setting review periods and conducting the reviews themselves will be person-centred and will be in line with our principles of dignity, fairness, and respect.

In order for the Scottish Government to fulfil its commitment to offer appropriate support to people with lifelong and unchanging needs, it is important that the support these people receive is aligned with their level of needs arising from their condition or disability. At launch, for deciding to provide indefinite awards, we will only be able to assume levels of need with confidence for those people who are entitled to the highest level of assistance.

By their very nature indefinite awards are not regularly reviewed. However, people with lifelong conditions resulting in needs highly unlikely to change can experience an increase in needs, for example if they acquire an additional condition. Unlike those people who are already on the highest level of their Adult Disability Payment award, those on lower level Adult Disability Payment awards might become entitled to Adult Disability Payment at a rate higher than their current award. It is also possible that, because a client’s needs increase slowly over time, the person may remain unaware that they might be eligible for an enhanced award. However, in order to align their award with their increased needs, an award review would be required.

If indefinite awards were immediately provided to people on lower level awards, these clients would have to proactively reach out to Social Security Scotland to trigger a review if they experienced an increase in needs. In such a particular scenario, in addition to potentially (though unlikely) having their award reduced or stopped, an unscheduled review could potentially also lead to a client losing their indefinite award status and having to go through regular reviews again in the future – so there are risks that need to be considered. Furthermore, we know from individuals with experience of the Department for Work and Pensions’ social security system that reviews are the cause of anxiety for many people.

It is crucial that we get this policy right for all clients. I will therefore consider Recommendation 2 further in light of experience of our new social security system and the delivery of Adult Disability Payment in practice, and consider how people’s perception of social security improves over time as they experience our new devolved Scottish system.

I have asked officials to gather data to enable an informed decision on extending the eligibility criteria for indefinite awards after the launch of Adult Disability Payment. This will allow us to determine when people’s perceptions have solidified that Social Security Scotland is a trustworthy agency - that bases its decisions on dignity, fairness and respect - and when this confidence in the new system manifests into people feeling able to report any increase in their needs more readily.

In the meantime, I am confident that, from launch, the guidance available to case managers, including a list of conditions, will ensure that decisions on indefinite awards for people receiving the highest level of awards are consistent and appropriate, and will enable the Scottish Government to implement indefinite awards as a targeted and proportionate policy designed to support people with significant and lifelong needs that are highly unlikely to change.

Recommendation 3: Case managers should be able to consider whether a fixed term review period is inappropriate, and therefore an indefinite award may be appropriate, at application stage as well as when reviewing a client’s case.

I accept this recommendation.

There will be new clients that very clearly will not experience a change in their level of needs in the future. These people should not have to go through a number of reviews before benefitting from an indefinite award.

Officials will set out clear guidelines for case managers to support them in making appropriate and person-centred decisions on indefinite awards.

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

I accept this recommendation.

In order to ensure that the decision to award an indefinite award is made in the client’s best interest and is person-centred, case managers should be able to use their professional judgement within the boundaries set by clear guidelines. Case managers will be provided with clear guidelines to enable them to make person-centred decisions on indefinite awards that take the client's individual circumstances into account. Indefinite awards will not be made based on a set of highly prescriptive eligibility criteria (e.g. a set number of years since the onset of the disability or health condition) that can be used as a checklist.

In your advice you also stated that “a client’s preferences should be a clear consideration, i.e. a case manager should always ask clients about their preference for the length of award and make clear to clients when they are considering an indefinite award”. Where a client is eligible for an indefinite award and has a preference for or against this type of award, the case manager will consider this preference. The final decision will of course remain with Social Security Scotland.

Recommendation 5: If during consideration of a client’s initial application or subsequent review a case manager thinks an indefinite award may be appropriate the case manager should, following discussion with the client, be able to seek further information or evidence on this point. It should not be mandatory for the case manager to consult a health or social care practitioner in every case.

I accept this recommendation in principle.

I acknowledge and take on board the group’s advice that, generally, it should not be necessary for a case manager to request further supporting information or consult a health or social care practitioner in every decision. However, due to the complexity of decisions on award reviews, for the duration of the Adult Disability Payment pilot phases it would be beneficial for case managers to be required to request a case discussion in every case where an indefinite award is considered. This will allow case managers to improve their understanding of the complex considerations needed when deciding on indefinite awards. In turn, it will also allow us to further refine the guidance supporting case managers’ decision-making.

For clarity, once Adult Disability Payment launches across Scotland later this year, case managers will be prompted by guidance on indefinite awards to request additional supporting information or consult a health or social care practitioner for additional support only if they are not certain that an indefinite award is the right decision. If case managers are confident they have all the necessary information to make an indefinite award they should be able to do so.

This will simplify and speed up the decision-making process for the client by avoiding unnecessary efforts to provide additional supporting information.

Recommendation 6: It will be important to ensure that clients are able to challenge the award review period, including any decision on to make or not make an indefinite award, through the normal redetermination and appeal processes.

I accept this recommendation.

Clients have the right to request a re-determination if they are unhappy with a decision to award or not award an indefinite award. This right is covered by the Social Security (Scotland) Act 2018.

The Act gives clients the power to challenge review periods and therefore would cover instances where a client would want to challenge indefinite award determinations. Clients can request a re- determination up to 42 days from the day they were informed of the determination.

Recommendation 7: All clients should have a right to request a review of their award at any time and this should include the right to request a review of their award period.

Recommendation 8: If clients are not to have a right to request a review of their whole award at any time, clients should be given the right to request a review of their award when they are on an indefinite award or where they feel a fixed term award is no longer appropriate.

I partially accept both of these recommendations.

Clients will have the right to request a review of their award if they have experienced a change in their needs. It is the responsibility of the client to report any relevant changes in their circumstances to Social Security Scotland. Clients will be reminded of this responsibility as part of their annual uprating notification.

If the reported change pertains to the client’s level of needs, Social Security Scotland will carry out a review, leading to a new determination of the client’s entitlement. They will then receive a notice of determination which sets out whether their award has changed, remained the same, or will be stopped based on their reported change. It will also contain the case manager’s decision whether the client’s award will be reviewed in the future. If the award will be reviewed, it will detail the date of the scheduled review. If the client has been awarded an indefinite award, this will be stated clearly in the notice of determination. This new determination grants the client the right to request a re-determination, including the right to a re-determination regarding the award’s review period.

Clients are unable to initiate an unscheduled review of their award without having experienced a change in needs.

Recommendation 9: Further consideration should be made as to whether guideline eligibility criteria for indefinite awards would be the same or differ for Pension Age Disability Payment.

I accept this recommendation to undertake further consideration.

As part of progressing policy development work on Pension Age Disability Payment, the Scottish Government will consider in more detail, in the near future, whether indefinite awards should be made available to people in receipt of this Scottish benefit when it is launched in due course.

Financial risk: an appropriate balance?

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

I accept this recommendation.

It is my intention to introduce indefinite awards in order to provide a person-centred approach and fair treatment to those whose needs are unlikely to change. Case managers’ decisions on a

client’s award will never be based on considerations of financial risks. Rather, Social Security Scotland will make determinations on the basis of a decision-making framework that is based on the principles of dignity, fairness, and respect. Case managers will have access to training and decision-making guidance which sets out the policy and interpretation of the regulations, which will enable them to make determinations that are appropriate and consistent.

Recommendation 11: To ensure that any consideration of financial risk is proportionate, any evidence that indefinite awards result in a significant financial risk should be published alongside the potential whole system costs and savings. This evidence should clearly distinguish between financial risk, which may need to be mitigated, and financial uncertainty, which should be managed by ensuring sufficient resources are allocated to cover benefit expenditure.

I partially accept this recommendation.

Officials will continue to consider the sources of financial risk attached to policy on indefinite awards and how these risks result in significant uncertainty about future costs.

However, while it is possible to describe the effects associated with the introduction of indefinite awards, it is not straightforward to estimate the overall impact in terms of additional benefit expenditure or any savings that would be associated with undertaking fewer award reviews.

Resources cannot be pre-committed to a policy change where expenditure is potentially large and growing without due consideration during policy development, particularly as the divergence from Department for Work and Pensions decisions is primarily where we expect additional costs to be incurred by the Scottish Government. These challenges mean that it is unlikely to be feasible to present the evidence in the manner suggested by the Disability and Carers Benefits Expert Advisory Group. However, we will keep this recommendation under consideration.

Funding will be allocated during the annual budget setting process in the normal way and officials are continuing to develop a range of controls to manage the financial risks involved.

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

I accept this recommendation.

Case managers will not base decision making on financial risks or costs. Their decision will be based on the decision-making guidance and will therefore be rooted in dignity, fairness, and respect.

Transparency, guidance and training

Recommendation 13: Guidance on the guideline eligibility criteria for indefinite awards should be developed, reviewed and updated with input from people with lived experience of impairment.

I accept this recommendation.

Officials will engage with experience panel members with lived experience of the social security system to test guidance and service design for indefinite awards.

Officials will also engage with key stakeholders on the draft decision-making guidance for Adult Disability Payment, including on indefinite awards, to allow stakeholders to provide expertise and feedback.

Continuous improvement efforts will ensure that applying the eligibility criteria for indefinite awards will align with the policy intent.

Recommendation 14: A programme of on-going training for case managers focusing on input from those with lived experience of impairment and of undergoing reviews in the disability benefits system should be developed alongside the guidance on the guideline eligibility criteria.

I accept this recommendation.

An extensive training programme has been developed for officials in Social Security Scotland involved in decision making. One integral part of the initial training design and the continuous improvement is to engage with external stakeholder organisations to include the experiences of people with disabilities using public services.

Recommendation 15: Ensuring assessors are suitably qualified in particular conditions and developing a programme of training to increase awareness and understanding of fluctuating conditions should be developed alongside the guidance on the eligibility criteria for awards.

I accept this recommendation.

When considering whether a person with a fluctuating condition is entitled to an indefinite award, case managers should focus on whether or not the person’s needs are unlikely to change beyond the expected fluctuation.

Recognising and understanding the impact of fluctuating conditions on a person’s needs, as well as translating this information into making an appropriate determination regarding award rate and