The Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025: data protection impact assessment

4. Consultation

4.1 Have you consulted with the ICO using the Article 36(4) form?

(please provide a link to it)

If the ICO has provided feedback, please include this.

Consultation with the ICO has been undertaken using an Article 36(4) enquiry form:

Case Transfer Policy - Scottish Adult DLA - Article 36(4) Enquiry Form - 17 May 2024 details - Objective ECM (scotland.gov.uk)

Feedback was received from the ICO in relation to Scottish Adult DLA on 4 June 2024. The Scottish Government responded on 5 June 2024. The feedback and response are noted below:

• The ICO noted SG’s Data Protection Officer is content that appropriate legal gateways are available to underpin a suitable lawful basis for the processing of special category data and that data sharing agreements will be in place.
• The ICO noted SG’s intention to complete a legislative Data Protection Impact Assessment to accompany the regulations, and an operational data protection impact assessment, to identify, address and record all risks. The ICO highlighted the importance of ensuring the operational DPIA sets out an analysis of the risks of transferring paper files and puts in place appropriate mitigations and measures.
• The ICO confirmed SG have met the obligation to consult the ICO on The Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025.

4.2 Do you need to hold a public consultation and if so has this taken place? What was the result?

In July 2016, the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. This received more than 200 responses to questions relating to disability benefits with an even split between organisational and individual responses.

There were 521 formal written responses submitted in total, of which 241 were from organisations and 280 from individual respondents. The 241 organisational responses included stakeholder groups representing human rights, disability, long term conditions and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 February 2017,^[3] in addition to the Business and Regulatory Impact Assessment that was published alongside the Social Security (Scotland) Bill.

The Scottish Government established Social Security Experience Panels, with over 2,400 people across Scotland registered as panel members when the Panels opened in 2017. The Panels involve people with lived experience of the benefits that the Scottish Government has executive and legal competence for. In July 2019, recruitment to the Experience Panels was reopened. The Scottish Government have been working with relevant stakeholders to specifically identify disabled people from seldom heard groups for further engagement.

Feedback from Experience Panels has helped to shape the Scottish Government’s delivery of disability benefits, including Scottish Adult DLA, through sharing lived experience of the current social security system. This has assisted in delivering changes in Scotland, such as increasing the time limit for requesting a re-determination to 42 calendar days and providing feedback on the decision-making process.

Two surveys regarding the case transfer process were sent out to Experience Panel members in January and February 2019. 404 and 559 responses were received respectively. A series of individual and group interviews were also conducted. Results from both surveys and the interviews were published in 2019.^[4],[5] These surveys confirmed that of most importance to panel members was that they continue to receive the correct payment at the correct time.

The Consultation on Disability Assistance built on the work on the Experience Panels and was published on 5 March 2019. In line with the principles of dignity, fairness and respect, the Scottish Government sought the views of the people of Scotland on proposed disability assistance benefits.^[6] The consultation closed on 28 May 2019, having received 263 replies, of which 74 were from stakeholder organisations and 189 from individuals. The majority of respondents agreed with the Scottish Government’s proposals. While not directly consulting on Scottish Adult DLA, responses helped shape the design of Social Security Scotland’s approach to cross-benefit issues, such as decision making and supporting information, which will be adopted for Scottish Adult DLA.

The Scottish Government has also undertaken engagement with stakeholders during the development of Scottish Adult DLA, through the independent Disability and Carers Benefits Expert Advisory Group (DACBEAG), as well as the Ill Health and Disability Benefits Stakeholder Reference Group (IHDBSRG). DACBEAG was chaired by Dr Jim McCormick and comprised of individuals with significant practical experience of the social security system in the United Kingdom, from a range of professional backgrounds. It was independent of the Scottish Government. The Group’s role was to advise Scottish Ministers on specific policy options for disability assistance and carers benefits due to be delivered by the Scottish Government.

On 3 November 2022 officials met with DACBEAG to discuss case transfer, including early proposals for Scottish Adult DLA to replace DLA for adults in Scotland. DACBEAG provided further advice in December 2022 which was broadly supportive of the proposed case transfer process. The views of people with lived experience have also been captured through a range of ongoing user research throughout the development of Scottish Adult DLA and by presenting to the IHDBSRG on 31 August 2023.

This engagement has provided stakeholders the opportunity to feed into the development of Scottish Adult DLA, including the drafting of regulations. Such engagement has also provided the Scottish Government with the opportunity to engage specifically with particular groups that would be impacted by the proposed policy.

4.3 Were there any Comments/feedback from the public consultation about privacy, information or data protection?

Both case transfer surveys sought feedback from experience panel members on the processes for transfer. Responses to the first survey showed a strong preference for the position that no individual should have to reapply for their benefit as part of the case transfer process. In the second set of interviews with experience panel members, participants were presented with the different types of information that Social Security Scotland may take over as part of an individual’s case transfer.

Participants were asked how they felt about Social Security Scotland taking over the different information types. It was explained that some information is essential for Social Security Scotland to take over as part of an individual’s case, including payment information, personal information (such as an individual’s address and contact information) and award information.

All participants asked agreed that this information should be transferred as part of an individual’s case. Nearly all those asked were happy with Social Security Scotland taking over application information. Again, the majority of participants were happy for information submitted for evidence to be taken over. Views were mixed on taking over assessment information and case management information.

Some participants saw no problems with Social Security Scotland taking over assessment information and thought it would be better for Social Security Scotland to have all the information that DWP currently hold as part of an individual’s case.

Some participants requested that Social Security Scotland staff view the contents of previous assessments with a critical eye if the information is to be transferred. However, some participants thought that assessment information should not be taken over. The most common reason for this was that participants did not feel the information from their assessment was accurate or correct. Participants spoke of their previous experience of assessments with DWP and some said they would like a fresh start with Social Security Scotland.

Some participants wanted case management information to be transferred so that there was a fully comprehensive record of an individual’s circumstances. However, many participants saw this information as irrelevant and questioned whether it would be needed. Similarly, to assessment information, some participants also spoke of wanting a fresh start with Social Security Scotland and therefore didn't want this information transferred. Gathering this information is intended to reduce the burden on individuals.

The approach to gather all relevant information is intended to reduce the burden on individuals. It means people will not need to submit new information to Social Security Scotland. However, where an individual is unhappy with their award, they will be able to submit new information to Social Security Scotland.

For individuals who were under 65 years old on 8 April 2013, feedback from stakeholders has been that these individuals should have an informed choice as to whether they remain on Scottish Adult DLA or whether they make an application for ADP, and this approach has been taken by the Scottish Government.