The Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025: business and regulatory impact assessment

2. Purpose and Intended Effect

2.1 Background

The Scotland Act 2016 devolved some social security powers to the Scottish Government and Scottish Parliament for the first time. The Social Security (Scotland) Act 2018 (the 2018 Act) sets out the broad framework for the delivery of the Scottish Government’s social security benefits^[1] and in 2018 Social Security Scotland was set up in to deliver devolved benefits on behalf of Scottish Ministers. The programme of devolution is expected to be completed by 2025/26. A major element of this programme is the transfer of the awards of around 700,000 children and adults in receipt of disability and carer benefits from the Department for Work and Pensions (DWP) to Social Security Scotland.

On 1 April 2020, executive and legal competence for disability benefits, including Disability Living Allowance, Personal Independence Payment and Attendance Allowance was transferred to Scottish Ministers. The Scottish Government has now replaced Disability Living Allowance for children with Child Disability Payment, and Personal Independence Payment with Adult Disability Payment, and intends to replace Attendance Allowance with Pension Age Disability Payment from 2025. All children and young people in Scotland that were receiving Disability Living Allowance have had their awards transferred to Child Disability Payment and the process for transferring people’s Personal Independence Payment awards to Adult Disability Payment is ongoing.

Recognising that the disability benefits being transferred are critical for some of the most vulnerable people in our society, Scottish Ministers have set out a number of case transfer principles which have been used to guide the development of the approach to case transfer. These principles have been enveloped through engagement with existing benefit recipients and stakeholder organisations. Learning lessons from previous benefit transfers within the Department for Work and Pensions. The principles are:

• Correct payment at the correct time – ensuring that the case transfer process is designed so that clients will receive the same amount for the Scottish benefit as they received for the corresponding UK benefit. A safe and secure transfer is the priority.
• No re-applications - we will not require clients to apply for their new benefit as part of the case transfer. We will work with Department for Work and Pensions to move clients automatically to Social Security Scotland and the corresponding new Scottish 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 Department for Work and Pensions when new applications for Adult Disability Payment are open across Scotland.
• 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 will be safe and secure, and not create unacceptable risks for clients.
• Clear communication with clients – we will inform our clients the date their case will be transferred and will keep them informed at the various stages of the case transfer process.

A key to delivering on this principles is to ensure like-for-like transfer. This means that new forms of disability assistance in Scotland introduced under the Social Security Scotland Act 2018 have been designed to have the same main eligibility criteria and financial values as the UK wide benefits they are replacing. This means clients’ awards can be transferred without clients having to re-apply, be re-assessed or see any change in their rate of award. These principles were developed through engagement with

Disability Living Allowance for adults was replaced by Personal Independence Payment in 2013, and only a small group of people remain on Disability Living Allowance. Adult Disability Payment has now replaced Personal Independence Payment in Scotland and is the primary disability benefit available for working age adults in Scotland. Disability Living Allowance continues to be delivered in Scotland by the Department for Work and Pensions on behalf of the Scottish Government under an Agency Agreement. There are two distinct groups of people remaining on this benefit:

• Disability Living Allowance ‘65+’

People who were over the age of 65 when Personal Independence Payment was introduced in 2013 (i.e. born on or before 8 April 1948) received a commitment from the Department for Work and Pensions that they could continue to receive Disability Living Allowance for as long as they are eligible to do so. These individuals have never been in scope for transfer to Personal Independence Payment or Adult Disability Payment, and have continued to have any change in their circumstances managed by the Department for Work and Pensions under the Disability Living Allowance rules.

• ‘Working Age’ Disability Living Allowance

This group consists of those in receipt of Disability Living Allowance who were born after 8 April 1948 and have not yet transferred either to Personal Independence Payment (before 1 April 2020) or to Adult Disability Payment. This cohort are understood to have long-standing, persistent needs – the fact that they remain on Disability Living Allowance suggests that they have not reported a significant change in their circumstances since 2013. Until Scottish Adult Disability Living Allowance is introduced, individuals in this group who report a relevant change of circumstances will continue to transfer to Adult Disability Payment.

Scottish Adult Disability Living Allowance will be delivered by Social Security Scotland on behalf of Scottish Ministers. Scottish Adult Disability Living Allowance will, like Disability Living Allowance for adults, be a closed benefit meaning that there will be no new applications. It is being introduced to facilitate a safe and secure transfer of awards from the Department for Work and Pensions to Social Security Scotland, while continuing to meet commitments given by the Department for Work and Pensions that those the 65+ group could remain on Disability Living Allowance for as long as they remained entitled. The introduction of Scottish Adult Disability Living Allowance also provides the opportunity to provide a like-for-like transfer for those in the ‘Working Age’ group.

The Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025 set out the eligibility criteria and how Social Security Scotland will deliver Scottish Adult Disability Living Allowance. Section 31 of the 2018 Act sets out the legal basis in which Scottish Ministers make regulations for the rules and structures of disability assistance. The regulations also make provision for the case transfer process for adults in Scotland who currently receive Disability Living Allowance. The regulations also make provision for people 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.

2.2 Key Differences Between Disability Living Allowance and Scottish Adult Disability Living Allowance

As part of the commitment to a safe and secure transfer, Scottish Ministers do not propose to make significant changes to the existing Disability Living Allowance eligibility criteria when introducing Scottish Adult Disability Living Allowance. Examples of this include the replication of the current 3-month qualifying period for Disability Living Allowance for those under the relevant age and capping the rate of the mobility component for clients over that age. By maintaining the current eligibility criteria, individuals in Scotland who are eligible for passported benefits and premiums from the UK Government will have seamless access to this vital support. This will provide security to people in Scotland when Scottish Adult Disability Living Allowance is rolled out.

However, there are some key changes along with a number of practical administrative differences between Scottish Adult Disability Living Allowance and Disability Living 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.^[2] 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 is committed to continually improving Scottish disability benefits by continuing to engage with disabled people and stakeholders to identify areas for further improvement in future.

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 relevant forms and take forward any follow-up actions relating to a person’s ongoing award. This support will be of particular benefit to those on receipt of Scottish Adult Disability Living Allowance, as many clients in this cohort are older and/or vulnerable, and may find completing forms overwhelming and might not have access to a support network to assist them.

The Scottish Government launched the Social Security Independent Advocacy Service in January 2022 and has committed to investing £20.4 million in the service over the four years following the launch of the service.^[3] The service is free and supports people who self-identify as a disabled person with advocacy when dealing with Social Security Scotland with regards to their benefit.

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. A Case Manager will ordinarily only seek one piece of supporting information from a professional to support the decision-making process when making a determination on an individual’s change of circumstances or following a scheduled review.

Case Managers will use a collaborative approach to help people gather supporting information from a professional, where an individual does not already have this to hand. This includes 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.

The Scottish Government included provision in the 2018 Act to introduce a new definition of terminal illness that differs from the current UK Government definition. 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 Scottish Adult Disability Living Allowance will be made by clinicians, based on guidance prepared by the Chief Medical Officer.^[4]

The Scottish Government’s new definition allows medical professionals, including registered nurses, to use their clinical judgement when determining whether an individual has a condition which can reasonably be expected to result in their death. This means that individuals who would otherwise not be entitled to Disability Living Allowance through Special Rules will be able to do so under the Scottish Government definition as part of Scottish Adult Disability Living Allowance, thereby having a positive impact on those with protected characteristics in Scotland.

During the Parliamentary passage of the 2018 Act, the inclusion of Short-term Assistance was welcomed by stakeholders and supported by Parliament. 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 Scottish Adult Disability Living Allowance.

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.

Short-term Assistance will be available until the First-tier Tribunal for Scotland has made a determination, and is non-recoverable except in cases of fraud or error. Where a person is eligible, the value of Short-term Assistance will be the difference between the longstanding award paid prior to the reduction and the new level of award. This includes when that amount is now £nil because entitlement to the individual’s award has stopped.

The proposal that Short-term Assistance should not be recoverable, except in cases of fraud or error, was also met with approval by 87% of respondents to the Disability Assistance consultation.^[5] This will ensure that, should a re-determination or appeal be unsuccessful, there will not be any overpayments that individuals will need to worry about repaying. This will help to prevent a further reduction in household income should the re-determination or appeal be unsuccessful, something which was stressed by respondents.

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.

2.3 Objective

Scottish Adult Disability Living Allowance is awarded to any adult who was, immediately prior to having their award transferred, in receipt of Disability Living Allowance as delivered by the Department for Work and Pensions. It is intended to assist with the extra costs associated with having a long-term condition or disability which means that the individual requires support with their mobility or care needs. This includes physical or mental health conditions and disabilities.

This impact assessment is one of a package to accompany the regulations. The other impact assessments are: Equality Impact Assessment; Island Communities Impact Assessment; and the Fairer Scotland Duty Assessment.

2.4 Rationale for Government intervention

The assessment of the regulations and Scottish Adult Disability Living Allowance overall in relation to business and regulatory impact was undertaken using the five principles of Better Regulations,^[6] as follows:

Proportionate: The Scottish Government will look to identify and minimise any indirect impacts, for example administrative burdens on local government, private businesses or third sector organisations as a result of the introduction of Scottish Adult Disability Living Allowance.

The equivalent United Kingdom Government benefit, Disability Living Allowance, has been reducing in caseload since it closed to new applications for adults in April 2013, and cases have been transferred to Personal Independence Payment or Adult Disability Payment. The transfer of cases to Scottish Adult Disability Living Allowance will further reduce the number of people entitled to Disability Living Allowance, and is expected to lead to a neutral impact in the longer term on the administrative burdens on other public agencies, private business and third sector organisations.

In the short term, there is likely to be additional work for public agencies and some third sector organisations as they make arrangements for their staff to incorporate knowledge of the replacement benefit into their current systems. Social Security Scotland has committed to undertaking much of the administrative responsibility on behalf of people accessing disability assistance, including Scottish Adult Disability Living Allowance, and intends to utilise data sharing processes with relevant bodies. For example, this may occur where an individual requests Social Security Scotland to gather supporting information from a professional, where the individual does not already have this to hand.

It is anticipated that this will streamline the administrative burden of providing supporting information in circumstances where an individual does not have this to hand. Public agencies will instead be able to supply this information directly to Social Security Scotland through formal data sharing agreements and processes.

There is also expected to be a neutral impact on medical professionals as a result of the new definition of terminal illness. They will still be expected to use their clinical judgement to determine whether an individual has a terminal illness with the primary difference being that, instead of a DS1500 or SR1 form, they will be required to complete a ‘Benefits Assistance Under Special Rules in Scotland’ (BASRiS) form.

There may be some short-term impacts as medical professionals adjust to using the BASRiS form and taking a different approach but, overall, this should not place additional burdens on medical staff and, as the BASRiS form has been rolled out for Child Disability Payment and Adult Disability Payment, many medical professionals will already be familiar with this new process in Scotland.

Consistent: Scottish Adult Disability Living Allowance builds on the Social Security (Scotland) Act 2018 framework of a new system that is underpinned by dignity, fairness and respect. It will be delivered on an entitlement basis to eligible people. Decision-making will be person-centred and operational guidance for case managers within Social Security Scotland will be created in line with the rules within the regulations which will provide a framework for consistent decision making across all applications.

Where possible the Scottish Adult Disability Living Allowance Regulations and the associated policies have been aligned with those for other Scottish disability assistance to provide a consistent approach for clients, and services who will support them, to understand and navigate Scotland’s social security system.

Accountable: All communications made relating to an individual’s Scottish Adult Disability Living Allowance award will be provided in a communication method that meets their needs. All information used, and a rationale for any determination made will be included within communications to ensure that individuals are informed of how their determination of entitlement was made.

The Social Security Charter sets out in plain English what people are entitled to expect from the Scottish social security system, including how they should be treated. Complaints regarding Social Security Scotland can be directed to the Scottish Public Services Ombudsman.

We will ensure that people understand their right to have a re-determination by Social Security Scotland, and have a right of appeal to the Social Security Chamber of the First-tier Tribunal for Scotland if they are not satisfied with the outcome of a re-determination. This includes a right to appeal directly to the First-tier Tribunal if Social Security Scotland are unable to complete the re-determination process within the 56 day period.

Individuals will also be made aware of the existence of Short-term Assistance, which can be utilised 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. Short-term Assistance will ensure that individuals do not face a reduced income while undergoing a re-determination or appeal of an ongoing award. This will help to ensure that individuals are not discouraged from challenging a determination they do not agree with, or seeking administrative justice by having to manage, for a time, with a reduced income.

Transparent: A communications strategy will be developed for Scottish Adult Disability Living Allowance and the related case transfer process, as has been done for other forms of disability assistance. This will aim to ensure that individuals and their families or carers as well as the third sector, local government, health sector and advice providers are aware of this benefit and understand the eligibility criteria.

Where a determination is made that an individual is no longer entitled to receive Scottish Adult Disability Living Allowance due to a change in their condition, Social Security Scotland will provide a reason why, as set out in section 40 of the 2018 Act, to ensure that determinations are understood and that Social Security Scotland’s processes are as transparent as possible.

We will publish guidance on Scottish Adult Disability Living Allowance in a way that takes account of differing communication needs, so that material is clear and transparent for those seeking further information. Social Security Scotland will create a bank of Scottish Adult Disability Living Allowance stakeholder resources and content for distribution to people in local communities. These resources will be produced in accessible formats that will be proactively supplied to relevant stakeholder organisations through the Stakeholder Engagement team.

The languages that Social Security Scotland proactively translate materials into 12 languages used in communities across Scotland. These include: British Sign Language, Urdu, Polish, Arabic, Ukrainian, Romanian, as well as braille and easy read formats. Materials in other languages are available on request^[7].

Social Security Scotland’s communications team will work with community radio and foreign language press to provide messaging on Scottish Adult Disability Living Allowance to communities. In some circumstances, printed marketing materials may not be the right way to engage with communities, and where this is the case Social Security Scotland will provide an engagement approach through work carried out by the Stakeholder Engagement and Local Delivery teams.

The second Benefit Take-Up Strategy was published in October 2021 under the provision of the 2018 Act.^[8] The strategy sets out Scottish Ministers’ work supporting benefit take-up to date. It also introduced a series of new activities and initiatives aimed at increasing awareness of, and access to, Scottish Government benefits and supporting those who are eligible to apply.

These include new funding streams for income maximisation, establishing a Benefit Take-up Stakeholder Reference Group to provide advice and support in the implementation of this strategy and developing a Benefit Take-up Stakeholder Toolkit. Two roundtable events were held in 2020 which were co-designed with key stakeholders to explore solutions to issues such as stigma, barriers to access, and the human rights-based approach. Increased benefit take-up is likely to have a positive impact on businesses and the economy because more individuals with a disability will have increased income, which may be used to purchase a range of goods and services from private or third sector organisations.

Targeted only where needed: Like Disability Living Allowance, Scottish Adult Disability Living Allowance is intended to help disabled people meet the additional costs of living with a disability or health condition.

It is only intended for those adults who are still receiving Disability Living Allowance administered by the Department for Work and Pensions on behalf of Scottish Ministers when it launched.

The rules for the benefit will be set out in the regulations, and any reviews – scheduled or unscheduled – will include a decision-making process which will consider eligibility for Scottish Adult Disability Living Allowance in a way that is consistent with the principles of dignity, fairness and respect.

Based on information from the Department for Work and Pensions’ Stat-Xplore service, there were around 80,000 adults as of August 2023 with an entitlement to Disability Living Allowance in Scotland. Based on estimates provided by the Scottish Government’s Communities Analysis Division, there will around 66,000 people in Scotland still with awards of Disability Living Allowance in scope for transfer by the time Scottish Adult Disability Living Allowance is launched in Spring 2025.^[9]

It is expected that the introduction of Scottish Adult Disability Living Allowance and case transfer process could cause additional requests for information and support from existing advice services. However, it is anticipated that by introducing a system that has been designed in partnership with advice agencies, key stakeholders and individuals with experience of the current system, Social Security Scotland will be equipped to support individuals. This should lessen the impact on advice services in their provision of complex social security rights casework support for individuals.