Disability Assistance for Older People (Scotland) Regulations 2024: Fairer Scotland Duty Assessment

Summary of aims and expected outcomes of policy

The Social Security (Scotland) Act 2018^[1] (the 2018 Act) sets out the broad framework for the delivery of the Scottish Government’s social security benefits.

On 1 April 2020, executive and legal competence for disability benefits, including Disability Living Allowance for Children, Personal Independence Payment and Attendance Allowance was transferred to Scottish Ministers.

Pension Age Disability Payment will be the replacement for Attendance Allowance in Scotland. Attendance Allowance will continue to be delivered during a transition period by the Department for Work and Pensions under the terms of an Agency Agreement to ensure the safe and secure transfer to Pension Age Disability Payment.

The Disability Assistance for Older People (Scotland) Regulations 2024 set out the eligibility criteria and how Social Security Scotland will deliver Pension Age Disability Payment. This benefit will accept new applications from those over State Pension age.

The regulations includetechnical amendments on Short-term Assistance for Child Disability Payment and Adult Disability Payment. These amendments regularise existing processes, to align with current practice used across live disability benefits to calculate the value of Short-term Assistance.

The regulations also make provision for the case transfer process for people in Scotland who currently receive Attendance Allowance.

Based on information from the Department for Work and Pensions’ Stat-Xplore service, there were around 150,000 individuals in May 2023 with an entitlement to Attendance Allowance in Scotland whose awards would transfer to Pension Age Disability Payment.^[2]

The Scottish Government has prioritised ensuring the safe and secure transfer of awards for those receiving Attendance Allowance. Scottish Ministers have set out a number of case transfer principles which guide the development of the case transfer approach.^[3] The Scottish Government’s commitment to equalities will run through all of these principles and also guides the overall approach. The principles are:

• Correct payment at the correct time – ensuring that the case transfer process is designed so that people will receive the same amount for the Scottish Government benefit as they received for the corresponding UK Government benefit.
• No re-applications - we will not require individuals to re-apply as part of the case transfer. We will work with the Department for Work and Pensions to move people automatically to Social Security Scotland and the corresponding new benefit.
• No face to face Department for Work and Pensions re-assessments - we will, wherever possible, ensure that no-one will be subject to a face to face re-assessment by DWP after the launch of new applications for Adult Disability Payment. The DWP do not typically conduct face to face assessments for Attendance Allowance, so this is not a consideration for Attendance Allowance-Pension Age Disability Payment case transfer.
• Complete as soon as possible – Scottish Ministers have been clear that they want to complete the transfer of cases as soon as is possible in a way that is safe and secure, and will not create unacceptable risks for individuals.
• Clear communication with individuals – we will inform people of the date their case will be transferred and will keep them informed at the various stages of the case transfer process.

Pension Age Disability Payment will be delivered by Social Security Scotland on behalf of Scottish Ministers. People will be able to challenge a determination by requesting a re-determination, and subsequently they will be able to appeal to the Social Security Chamber of the First-tier Tribunal for Scotland.

As part of the Scottish Government’s commitment to a safe and secure transfer, Scottish Ministers do not intend to make further significant changes to the existing Attendance Allowance eligibility criteria for Pension Age Disability Payment.

The Scottish Government will ensure that individuals with an award of Attendance Allowance do not need to reapply when their award is transferred to Pension Age Disability Payment. Significant changes to the eligibility criteria from that of Attendance Allowance would risk creating a two-tier system of disability benefits for those over State Pension age.

Changes to the eligibility criteria for Pension Age Disability Payment would cause unfairness, confusion and disruption for individuals by having two different sets of eligibility criteria and rules, whilst undertaking a significantly complicated case transfer process.

Eligibility to Attendance Allowance also provides individuals with entitlement to various UK Government benefits and premiums, usually referred to as ‘passporting’. Throughout the consultation on Disability Assistance, people consistently raised concerns about maintaining other support that they are entitled to as a result of their disability benefit award.

An example of a passported entitlement through an award of Attendance Allowance is the Severe Disability premium of Pension Credit. Whilst the passporting of benefit entitlements is not the sole reason for Scottish Ministers’ approach to safe and secure transfer, the Scottish Government recognises that these entitlements are crucial to disabled people in Scotland.

However, what Social Security Scotland delivers on day one is not the limit of the Scottish Government’s aspirations. Scottish Ministers are committed to continually improving disability benefits by continuing engagement with disabled people and stakeholders to identify areas for further improvement in future.

There are some key changes along with a number of practical administrative differences between Pension Age Disability Payment and Attendance Allowance which Scottish Ministers expect to have a positive impact for disabled people in Scotland. These differences have been developed through the commitments under the Social Security Charter.^[4] The Scottish Government recognises social security as a human right and has designed Social Security Scotland’s services with the people who use them so that everyone is treated with dignity, fairness and respect.

The Scottish Government has made changes to the application process for all forms of disability assistance, including Pension Age Disability Payment, which will help to reduce stress and anxiety for individuals. People interacting with Social Security Scotland will require options and choices that suit them best. Social Security Scotland offers a multi-channel approach including online, telephone, paper-based and face-to-face applications. As well as offering choices, this ensures that those who cannot or choose not to adopt digital methods will not become isolated.

People who require further assistance or would prefer face-to-face support will be able to access that through Social Security Scotland’s Local Delivery service. Local Delivery staff will provide one-to-one support and help disabled people to understand what Scottish Government benefits they may be entitled to. They can also provide assistance to complete application forms and take forward any follow-up actions relating to a person’s application.

It is considered that this support will be of particular benefit to older people applying for Pension Age Disability Payment, as many older people may find completing application forms overwhelming and might not have access to a support network to assist them.

The Scottish Government also launched the Social Security Independent Advocacy Service in January 2022. The service is free and supports people who self-identify as a disabled person to access and apply for Social Security Scotland assistance.

As with the Scottish Government’s other disability benefits, a new approach to gathering supporting information is being utilised by Social Security Scotland which will help reduce stress and anxiety for individuals.

Case Managers can use a collaborative approach to help people gather supporting information from a professional, where needed and if an individual does not already have this to hand. This may include Case Managers obtaining supporting information from professionals on the individual’s behalf. Case Managers can also assist in gathering supporting information from the individual’s wider support network, such as a family member or unpaid carer, which can help Social Security Scotland to understand the individual’s needs, conditions or disability.

Applications will be fast tracked from people with a terminal illness. Individuals who are terminally ill will automatically receive the highest rate of Pension Age Disability Payment and there will be no award reviews.

The Scottish Government’s new definition of terminal illness will apply to Pension Age Disability Payment. It removes the arbitrary 12 month timescale currently used by the Department for Work and Pensions. Instead, the judgement as to whether a person should be considered terminally ill for the purposes of determining eligibility for Pension Age Disability Payment will be made by clinicians, based on guidance prepared by the Chief Medical Officer.^[5]

The Scottish Government has committed to providing Short-term Assistance where Social Security Scotland has made a determination to reduce or stop an on-going Scottish Government benefit and that determination is subject to a request for re-determination or an appeal. As with the Scottish Government’s other disability benefits, Short-term Assistance will be available for those with an award of Pension Age Disability Payment.

The intention of Short-term Assistance is to ensure individuals are not discouraged from challenging a review of their award determination or from accessing administrative justice, by having to manage, for a period, with a reduced income. Short-term Assistance is not available in the UK Government system. Providing support in this way is another example of where Scottish Ministers are removing barriers in the Scottish social security system.

This policy is closely aligned with the Healthier, Wealthier and Fairer Strategic Objectives, and contributes to the following National Outcomes:

• We respect, protect and fulfil human rights and live free from discrimination;
• We tackle poverty by sharing opportunities, wealth, and power more equally; and
• We live in communities that are inclusive, empowered, resilient and safe.