Disability and Carers Benefits Expert Advisory Group minutes: June 2020

Attendees and apologies

Present

• Jim McCormick (Chair)
• Tressa Burke (Deputy Chair)
• Fiona Collie
• Lucinda Godfrey
• Angela O’Hagan
• Andrew Strong
• Frank Reilly
• Ed Pybus
• Carolyn Lochhead
• Bill Scott
• Ewan MacDonald
• Jo McLaughlin
• Simon Hodge

Apologies

• Jatin Haria
• Sarah Hammond
• Shaben Begum
• Etienne d’Aboville
• Alan McDevitt
• Carol Tannahill

In attendance

• Kate Thomson-McDermott
• Nicola Davidson
• Ellen Searle
• Graeme Buchanan
• Katherine Higgs

Secretariat

• David Hilber
• Kirsty Milligan

Items and actions

Welcome and introduction

Jim welcomed everyone to the meeting, especially the two new members of the group, and thanked everyone for their attendance for the first virtual meeting of the group.

Group business

David began by talking through the agenda of this meeting.

He then explained that the revised schedule for delivering benefits is still being developed. However, after discussions with officials, it was agreed that it would be best for the Group to maintain its current schedule of providing advice rather than wait until the revised delivery schedule is finalised.

He continued by talking through the status of the responses from officials to the group’s recent advice. The Disability Assistance for Working Age People (DAWAP) response has been received and was overall a positive response. The Personal Independence Payment (PIP) Caselaw response is currently with the Cabinet Secretary and will be sent to the group soon. The Decision Making and Consultations response should be with us by the end of the month. The response to the Carers Additional Child Payment (CACP) advice is still being developed and will be provided soon.

Tressa discussed the COVID-19 proactive advice the group is producing. It was acknowledged that some of the original recommendations were outwith the remit of the group. It has been revised, and the recommendations are now more clearly within scope. However, the advice maintains sharing as much background information as possible to provide context for those recommendations.

David explained that the Cabinet Secretary has asked the group for advice on Appointees. There is a short time scale to develop this advice due to the progress of the relevant bill making its way through parliament, so he suggested the group have a meeting in July to discuss the advice.

Action one: Secretariat to arrange meeting with group to develop advice on appointees for July

Action for: Secretariat.

Action by: end of June 2020.

The group then went over the actions from the last meeting. David confirmed that he has been in contact with the secretariat of Scottish Commission of Social Security (SCoSS) and is continuing to develop and formalise how the two groups work together.

It was noted that the group wanted equalities at the next quarterly meeting and Angela said she was happy to liaise with the group for an agenda that would be acceptable.

David confirmed that the website has been updated and will continue to be updated regularly. He also noted that he had sent out diary invites for important upcoming dates.

Finally, David acknowledged the two new members of the group who have been invited to join while awaiting formal appointment from the Cabinet Secretary.

Action two: arrange to have equalities at next quarterly meeting

Action for: Secretariat.

Action by: August 2020.

Action three: Secretariat to set up twitter account and keep website up to date

Action for: Secretariat.

Action by: July 2020.

Discussion regarding case transfer advice request.

Officials discussed the policy paper and diagrams that had been distributed to the group regarding the case transfer of disability benefits from the UK system to the Scottish system. The paper included points that would be useful for the group to discuss and advise on.

Some questions were submitted by the group in advance which included:

• is there any further detail about the limited appeal rights against the determination made for devolved benefits at the point of transfer?
• is there a possibility that some appeal cases will need to transfer rather than remain with the Department of Work and Pensions (DWP), depending on the length of the appeal process and whether the transfer process is near conclusion?
  • has there been any analysis of how long appeals take?
  • would this include cases where there is an appeal to the Upper Tribunal?

• given the delay to Disability Assistance being transferred, due to the impact of coronavirus, I think there is a possibility that people may be called for a PIP face to face reassessment by DWP. Can this be prevented?
• in the paper it says that a new award will be created by an automated process via a digital solution. This makes sense – but what is the situation if the notice of transfer prompts the claimant to report a change of circumstances?
  • will that be assessed during the initial period and the award changed accordingly?

• the paper refers to an analysis to establish where parents or appointees are not aware of a child’s terminal illness diagnosis. I was surprised that this was a possibility: in approximately what percentage of cases would you expect this to be the case?
• we’ve heard that PIP claims have been significantly curtailed as the result of COVID-19 (from 12,000/week in beginning of March 2020 to 5000/week in late April 2020). Are the implications of this being considered and if so what is the current thinking?

The officials thanked the group for these questions and the floor was opened for the group to ask any additional questions. These included:

• you’ve said there will be no DWP face-to-face assessments during the transfer, can I confirm that the Scottish Government (SG) will not be carrying out assessments?
• what happens if there is a change of circumstances between the claimant’s award being chosen for migration and the completion of the transfer?
• what happens if someone needs an increase to their Disability Living Allowance (DLA) award while they are waiting to be transferred? Currently they would have to claim PIP. Any way to supersede their DLA award until they are transferred to DAWAP?
• what about people over the age of 65 before 2013 who are currently receiving DLA? There is facility to supersede those awards?
• are you able to provide more details on the appeal rights for the initial determination?
• is it right that no case currently undergoing an appeal process will be transferred? Some can last years
• are mandatory reconsiderations also subject to delayed transfer?
• if a DLA award is changed after transfer (e.g. retroactively revised) will this be reflected in the SG award?
• my understanding is that the Scottish budget will be based on caseload, and we’ve heard that claims have been significantly curtailed due to the outbreak? Is this being considered?
• what are the number of people in Scotland who are currently on DLA and are over the age of 65?
• is there a shortfall in the way the budget is allocated considering Scotland has a higher ratio of people in receipt of benefits? Is the fiscal framework still fit for purpose?

Officials were grateful for the questions asked and assured the group they would check the ones they couldn’t answer with the relevant parties and report back to the group. 

Action four: Scottish Government officials to confirm answers with relevant parties and report back to the group

Action for: Scottish Government officials.

Action by: End of June 2020

Advice production

The group then discussed some of the specific points the Scottish Government requested advice on. The first point discussed was communications. This raised questions from the group such as:

• are you identifying and addressing the gaps? That is, how are you finding out what groups will not be reached by implementing your current plans and how are you addressing that? There is a danger that e.g. the homeless, people with poor mental health, and other groups who are “out of the system” will not know what’s going on if you are relying on individual communications (i.e. letters to individuals)?
• you know the client’s award and bank details from DWP data, therefore, in the case where you need further information from the claimant, could you not just continue to pay people while waiting for that further information?
• is it necessary for an appointee letter to be returned before they can begin being paid?
• would it be possible to have a joint letter from both SG/DWP explaining the case transfer process?
• how do we monitor and analyse those who are not responding to communications? Is there a way to use “assertive outreach”? Are you able to share information with health and social care to make sure people are not missing out?

The next point discussed was equalities. The group made the following comments:

• showing Equalities Impacts Assessments (EQIAs) with stakeholders at an early stage could identify issues early on. Typically stakeholders only see EQIAs after the relevant regulations have been laid, which can be too late
• would an equalities stakeholder group be useful?
• experience panels should not be overly relied upon when trying to understand equalities issues. They are not reflective of the general population; BME and people with communication difficulties are underrepresented for example. These groups must be talked to
• reaching out to third party support organisations, including health and social care, could be a way of identifying and interacting with groups that the Government is currently missing

Finally the group discussed the legal framework of case transfer. After a brief discussion the officials were asked:

• are we sure new primary Scottish legislation will not be required to enable case transfer?
• what about making changes to UK legislation?

It was decided that there should be a meeting to discuss this further.

Action five: set up a follow up meeting to discuss the legal framework of case transfer

Action for: Secretariat.

Action by: end of June 2020.

Group discussion

The group then met in private and reflected on the discussion.

One of the points raised was that there needs to be a picture being built of who isn’t responding to community engagement and how to deal with that when communications regarding case transfer begin. Vulnerable groups must be identified and strategies developed to reach out to them. When communications do begin, there should be a way to monitor who is not responding and analyse trends so alternative strategies of engagement can be developed and implemented.

The group is concerned that there is nothing in the paper about people that are not “flagged up” to be transferred by the DWP system. The group feel that there should be something put in place within the legal framework to make sure people who are not identified for transfer can request to be transferred if they think they should be.

There could be disputes over whether someone is resident in Scotland or England for benefit purposes and there doesn’t seem to be a process to address this. If, for example, someone goes to a special residential school or college in England but usually live in Scotland, they could be uncertain of whether or not they will be transferred, and as things are now, may not have the ability to challenge the decision.

Another concern for the group is people not being allowed to appeal some decisions made during the case transfer process. They know there is an option to cancel the DWP claim and open a new one in Scotland, but this would be a lot more work for both the claimant and the Social Security Scotland and the claimant could go a period without entitlement.

Some of the group admitted that they get lost when the conversation gets too technical. Jim pointed out that one of the jobs of the group is to translate the technical discussions so that it can be understood by stakeholders and even other members of the group. The new members should be able to help with this given their technical background.

The group discussed their feeling that the equalities principles described in the papers do not reflect the actual equalities principles. They don’t, for example, speak to who is underrepresented, who is being missed entirely, and who is being reached. There must be pro-active interventions to make sure the equalities principles are being fulfilled.

The group wondered if an analysis of the interdependencies of benefits (i.e. which groups are more likely to claim which benefits, including multiple benefits) could help identify underrepresented groups.

Finally, the group discussed some legal issues that may arise under current plans, including: the likelihood of claimants requesting mandatory reconsiderations if they don’t understand what is happening with their claim and maintaining rights to challenge decisions about their claims that occur during the case transfer process.

Thanks and close

Everyone was thanked for attending and the meeting was closed.

Action log

• action one: arrange meeting with group to develop advice on appointees for July. Action for: Secretariat. Action by end of June 2020
• action two: arrange to have equalities at next quarterly meeting. Action for: Secretariat. Action by: August 2020
• action three: set up Twitter account and keep website up to date. Action for: Secretariat. Action by: July 2020
• action four: confirm answers with relevant parties and report back to the group. Action for: SG officials. Action by: end of June 2020
• action five: set up metting to discuss legal framework of case transfer. Action for: Secretariat. Action by: end of June 2020