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

2. Key Features of Scottish Adult DLA

Scottish Adult Disability Living Allowance will be a disability benefit for adults who were in receipt of Disability Living Allowance as administered by the Department for Work and Pensions at the point of case transfer. 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.

There are two distinct groups in scope for transfer to Scottish Adult Disability Living Allowance:

• 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 is required as a new benefit primarily for those in the '65+' group, to uphold the commitment that they could continue to receive Disability Living Allowance for as long as they remain eligible. Since the introduction of Scottish Adult Disability Living Allowance provides the opportunity to provide a like-for-like transfer for those in the 'Working Age' group, we also intend to introduce transfer to Scottish Adult Disability Living Allowance for these clients' awards.

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 qualifying periods for those under and over the 'relevant age' and capping the rate of the mobility component for clients over the State Pension age. This aligns Scottish Adult DLA with Pension Age Disability Payment (PADP) for those who are over pension age, and Adult Disability Payment for those under pension age and aims to ensure reasonable parity amongst those in the same age group who are receiving different disability benefits.

In addition, 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. There is more detail explaining this approach in the 'Relevant Age' section.

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.^[3]

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.

2.1 Special Rules for Terminal Illness

A client is eligible under the Department for Work and Pensions' Special Rules for End of Life if they are expected to have less than 12 months to live.

As with our other disability benefits, our definition of terminal illness will support recognition of a wider number of illnesses and conditions through Scottish Adult Disability Living Allowance than can be accounted for under the current definition in the UK Government system.

This is because the UK Government's time-limited definition of terminal illness is able to recognise individuals with malignant illnesses at the end of life, but is less effective in recognising individuals with other degenerative life-limiting conditions, as it can be harder to determine the projected length of life for these illnesses. In these circumstances, individuals with such conditions sometimes may not meet the definition of terminal illness in the UK Government system.

We 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.

In considering the approach to case transfer for those who are terminally ill to Social Security Scotland, Scottish Ministers were keen to prioritise that individuals are able to access the highest available rate of benefit as soon as possible. Therefore, for those in the '65+' group, when reporting that they are newly terminally ill, individuals will first have their eligibility considered under the Department for Work and Pensions' Special Rules for End of Life to ensure a decision is made as soon as possible. For those who receive a negative decision, they will undergo expedited (~4 weeks) case transfer to Social Security Scotland, to assess whether they meet the more generous Scottish Special Rules for Terminal Illness.

For those in the 'Working Age' group of Disability Living Allowance, the Department for Work and Pensions were unable to support this solution. Therefore, as with previous case transfers, a report that a client in Scotland has become newly terminally ill will trigger their expedited case transfer to Scottish Adult Disability Living Allowance.

People under the State Pension age who are terminally ill will automatically receive the highest rate of both components of Scottish Adult Disability Living Allowance. This aligns Scottish Adult DLA recipients with those of other Scottish disability benefits such as Adult Disability Payment. Those over State Pension age will receive the highest rate of the care component to maintain parity with others of the same age in receipt of PADP. There will be no award reviews for either age group.

2.2 Ongoing awards and reviews

For many people in the DWP system, having an award end date for their disability benefit can be extremely stressful, particularly for individuals whose conditions are unlikely to change over time and who are consequently subject to unnecessary reviews of entitlement.

Our case transfer process will aim to align a client's initial Scottish Adult Disability Living Allowance review process within the timeframes of when their Disability Living Allowance award would have been reviewed.

Those clients with indefinite awards of Disability Living Allowance, which is the overwhelming majority of Disability Living Allowance clients in Scotland, will therefore also receive an indefinite award of Scottish Adult Disability Living Allowance when they transfer.

However, whenever an individual reports a change of circumstances that is likely to impact their entitlement, this prompts an unscheduled review. These unscheduled reviews consider both the appropriate rates and components for the award, as well as whether (and if so, when) the award should be reviewed in the future. This is to ensure that the person keeps receiving the award that is most suitable for them.

Setting a review date, as well as deciding that an indefinite award would be most suitable for the individual, is done using a person-centred, holistic approach. If a person's needs are likely to change in the future, a review date will be set for a time when their needs are likely to have changed. For example, if an individual reports a new health condition that is likely to deteriorate over time, it may be appropriate to set a review date for a time where their needs can be expected to have changed in a way that means that their award won't be right for them anymore. However, if it is highly unlikely that a person's needs are going to change in a way that would impact their entitlement, the case manager will award an indefinite award. Based on the characteristics of the Scottish Adult Disability Living Allowance cohort, we expect that, where people in receipt of an indefinite award will undergo an unscheduled review after reporting a change of circumstance, the majority will receive an indefinite award again.

All our award reviews, i.e. both scheduled and unscheduled reviews, are light-touch. This will help to reduce the potential stress and anxiety associated with approaching an award review. By continuing entitlement while a review is taking place, disabled people will continue to receive the assistance they are entitled to until a Case Manager has made a new determination.

Light-touch reviews will make the process easier and less stressful for individuals. This means that Case Managers will only require supporting information in specific scenarios, are able to, if needed, gather supporting information for the person whose award is being reviewed and consider existing information and previous determinations to avoid asking unnecessary questions. Case Managers will be empowered to request case discussions with practitioners and access guidance to further reduce the need for intrusive questions.

Having a light-touch review process is more appropriate, particularly where an individual's needs are unlikely to have changed significantly. 66% of respondents to the Consultation on Disability Assistance agreed with this approach alongside general agreement from Experience Panels. ^[5],[6]

Additionally, when asked if review periods should be between 5-10 years for individuals with conditions unlikely to change, 58% of respondents to the consultation agreed. This will help to cut down on the number of unnecessary award reviews that disabled people not on an indefinite award will need to go through, and as a result, reduce stress and anxiety, thereby having a positive impact on individuals.

2.3 Re-determinations and appeals

We want to ensure that no one is disadvantaged by time limits for challenging a determination. In response to feedback from the Disability Assistance consultation, Experience Panels and the Disability and Carers Benefits Expert Advisory Group, Scottish Ministers have set the time limit for requesting a re-determination to 42 calendar days across the Scottish Government's disability benefits. This is an increase on the month time limit that is set for requesting a mandatory reconsideration by the Department for Work and Pensions.^[7] Most respondents (77%) to the consultation on Adult Disability Payment agreed with this approach. This will provide individuals with additional time to seek advice or gather supporting information which might be required before requesting a re-determination. This is likely to be particularly beneficial for disabled people who live in remote or rural areas which make gathering such advice and information more difficult.

If an individual is not able to request a re-determination within 42 calendar days, they can ask for this time limit to be extended if they have good reason. The 2018 Act provides for an extension of up to a year for late re-determination requests. Guidance will ensure that, where an individual requests a late re-determination, their request is considered in a holistic and person-centred manner, taking account of their circumstances.

In the Consultation on Disability Assistance, it was proposed that Social Security Scotland be allowed 40-60 days to carry out a re-determination. 60% of respondents agreed with this proposed approach. However, some stakeholders felt that this was an excessive period for someone to be left without clarity over their award level or eligibility.

Given the concerns raised in the consultation, and subsequent stakeholder engagement, we settled on 56 calendar days for Social Security Scotland to undertake a re-determination. It may be necessary to gather supporting information on behalf of the individual, and this information may take some time to obtain.

This will be beneficial as it will ensure that disabled people and their families or carers will have certainty about how long Social Security Scotland has to complete a re-determination. Similarly, by enabling individuals to appeal directly to the First-tier Tribunal should Social Security Scotland be unable to complete the re-determination process within the prescribed timescale, this will further reduce any uncertainty and make people feel more confident in challenging a determination they do not agree with.

2.4 Short-term Assistance

We have 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. During the Parliamentary passage of the 2018 Act, the inclusion of Short-term Assistance was welcomed by stakeholders and supported by Parliament.

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. This applies both to determinations that reduce or end an ongoing Scottish Adult Disability Living Allowance award and where someone's award is transitioning from Scottish Adult Disability Living Allowance to Adult Disability Payment.

The intention of Short-term Assistance is to ensure people 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 Scottish Ministers 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. It 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.^[8] 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.

Short-term Assistance for Scottish Adult Disability Living Allowance will be processed in the same way as for Pension Age Disability Payment, Adult Disability Payment and Child Disability Payment in terms of eligibility, value and form.

Scottish Ministers believe that this strikes the right balance of supporting disabled people in seeking administrative justice, and to ensure that individuals are not discouraged from challenging a review of their award due to facing a reduced income. Short-term Assistance is not available for clients on Disability Living Allowance under Department for Work and Pensions, and its' introduction for Scottish Adult Disability Living Allowance aligns with the Scottish Government's human rights-based approach to social security in Scotland.

2.5 Eligibility criteria

A number of key changes for Scottish Adult Disability Living Allowance have been set out above, including the introduction of the Scottish Government's definition of terminal illness and provision of Short-term Assistance. However, we do not propose making significant changes to the existing Disability Living Allowance eligibility criteria.

In line with our case transfer principles, we will ensure that individuals with an award of Disability Living Allowance do not need to apply for Scottish Adult Disability Living Allowance when their case is transferred from Disability Living Allowance. Significant change to the eligibility criteria from Disability Living Allowance would risk some people losing out on their award and risk 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 Disability Living 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 because of their disability benefit award. While 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. Considerable analysis and consultation has been undertaken to test and fully understand the limits of passporting. We now have agreement from Department for Work and Pensions to treat Scottish Adult Disability Living Allowance in the same way as Disability Living Allowance to enable clients to automatically access additional reserved payments without any further decision-making process. For that to happen, it is generally accepted that this requires Scottish Adult Disability Living Allowance eligibility criteria to be broadly replicated for Disability Living Allowance.

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. It should be noted however that Scottish Adult Disability Living Allowance is fundamentally about providing consistency for people whose awards have transferred from Disability Living Allowance for adults. It is therefore unique in that it is not intended to be a long term benefit and is therefore less likely to significantly change.

2.6 Decision-making process

While Scottish Adult Disability Living Allowance will be closed to new applications, and based on data from Stat-Xplore, we expect that over 99% of the clients in scope for transfer are in receipt of indefinite awards. There are a handful of cases who require scheduled reviews and clients may also trigger unscheduled reviews by reporting a change of circumstances. Case Managers will be empowered to speak to individuals who have indicated that they are willing to be called to gain additional information or to clarify details of their application and supporting information. Supporting information will be used by Case Managers as a resource to support the decision-making process. This information, along with information in review forms, will be approached from a position of trust.

From engagement with the Child Poverty Action Group, it is understood that although many adults in receipt of disability benefits are able to manage their own affairs, it is likely that they may require support from family or a caregiver with aspects such as the review process.

It is also important to consider that many in this cohort may be particularly isolated and vulnerable. Most clients are on indefinite awards, and the fact that those in the 'Working Age' group have not reported a substantial change of circumstances to trigger their transfer to Personal Independence Payment in the 11 years since it was introduced indicates that their needs are persistent. Since many are not subject to scheduled reviews, their interaction with Department for Work and Pensions is likely to be minimal.

Data shows that in the younger half of the working age cohort, learning difficulties is the most common main disabling condition. Psychosis and psychoneurosis are also amongst the top 5 main disabling conditions listed. From this we could infer that a substantial number of people in this cohort will face additional barriers to engaging with Social Security Scotland and making truly informed decisions about their benefits – for example whether or not to request a move to Adult Disability Payment (more information about this in section 2.8 below).

The Scottish Government will ensure that individuals can request a third party representative with ease to support them in their engagement with Social Security Scotland. Individuals may choose to provide consent for a family member, close friend or a welfare rights advisor to act as a third party representative when interacting with Social Security Scotland. DWP appointees will continue to be recognised, although Social Security Scotland will carry out additional checks post-transfer to ensure that any appointee remains appropriate for that particular individual.

Alternatively individuals can request a referral or self-refer to the Independent Advocacy Service provided by VoiceAbility who can offer support when dealing with Social Security Scotland. Scottish Ministers believe this strikes the right balance to encourage people, particularly those who are over the State Pension age, to gain support from independent trusted sources when required, while also maintaining their financial independence.

2.7 Supporting Information

Social Security Scotland are committed to considering all supporting information as equally valid. However, for new applications there is normally an expectation that one piece of supporting information will come from a professional source such as a medical report or a letter from a support worker.

Scottish Adult Disability Living Allowance does not have new applications, instead entitlement will initially be based on the information provided by the Department for Work and Pensions at the point of transfer. This information will be used for reviews and other decision making where it remains relevant.

However, there will be instances, for example when an individual has reported a significant change to their health condition, that further supporting information may be required. Depending on the significance and kind of change reported, a piece of supporting information from a professional source may be sought by Case Managers.

This will be used to support the decision-making process by assisting Case Managers in their understanding of an individual's level of need, condition or disability alongside utilising internal Decision Making Guidance. Where an individual does not have supporting information to hand, Social Security Scotland will use a collaborative approach with the individual to assist in gathering supporting information from a professional and/or their wider support network.

In instances where supporting information is not available, Case Managers can make a determination of an individual's entitlement to Scottish Adult Disability Living Allowance with no supporting information from a professional, or from their wider support network. Where it is reasonable that this information is not available, Social Security Scotland will consider this when making a determination. This could be due to the individual's health, condition or personal circumstances. Examples include, if an individual has had a recent hospital stay, if they have been unable to receive the support they need from an advocate or support worker, or where they may have lost contact with their support network, including health and social care professionals.

Case Managers will then utilise other decision-making tools, such as case discussions with a health or social care practitioner to assist in using their discretion when making a determination, based on the balance of probabilities.

Case discussions with a health or social care practitioner can assist Case Managers through advising on aspects such as the side effects of a particular medication, how a disability or health condition will typically affect someone, or the way in which two conditions may interact. This will help Case Managers to make an informed decision regarding an individual's entitlement to Scottish Adult Disability Living Allowance. Practitioners are registered health or social care professionals employed by Social Security Scotland who will have access to a range of resources and professionals with expertise in conditions more likely to affect older people, such as dementia.

The decision-making process will ensure that Case Managers have access to support from in-house practitioners who understand the needs of older people from their clinical and social care background, ensuring that they are able to make the right determination at the first opportunity. This process will similarly help ensure Case Managers develop an informed understanding of the person's needs and condition(s) when deciding the appropriate award review period.

2.8 No mandatory moves to Personal Independence Payment or Adult Disability Payment

We have decided to allow all adults still in receipt of Disability Living Allowance, regardless of their age when Personal Independence Payment was introduced, to remain on Scottish Adult Disability Living Allowance for as long as they are eligible to do so. Clients who were born after 8 April 2013 will, once they have transferred to Scottish Adult Disability Living Allowance, have the option to apply for Adult Disability Payment if they wish to do so.

There were a number of reasons to diverge from current Department for Work and Pensions policy. Firstly, clients told us about the stress and anxiety transitioning to a new benefit with new eligibility criteria entails.^[9] Allowing individuals to make informed decisions based on their own personal circumstances and professional advice is our preferred approach as we feel it better reflects our user centred approach and our values of dignity and respect. For more information regarding this, please see the 'Age' section below.

Data from the Department for Work and Pensions' Stat-Xplore service, indicates that 47% of adults received a higher award when their award was re-assessed from Disability Living Allowance to Personal Independence Payment. However around 35% would receive a lower or no award at reassessment.^[10] As this is based on the reassessment rates under the Department for Work and Pensions, it may not be accurate for Scottish Adult Disability Living Allowance to Adult Disability Payment reassessments. However, as the Scottish benefits were based on the rules of the Department for Work and Pensions equivalent, this is deemed to be the best comparison in absence of figures on Disability Living Allowance to Adult Disability Payment re-assessment rates. This does reflect that some people who would be better off on Adult Disability Payment may choose not to apply, because they do not wish to face the stress and anxiety of an uncertain outcome. We believe this is a choice people should be enabled to make for themselves, with the support of advice services if they wish.

The Scottish Government are committed to increasing the awareness and take-up of benefits and other sources of financial and practical help, and have allocated £12.3 million for 2023-24.

Welfare Advice and Health Partnerships (WAHP) are an important example of such Scottish Government initiatives – placing welfare rights advisors in up to 180 GP surgeries in Scotland's most deprived areas, as well as in remote and rural locations. WAHP practices can refer patients directly to an in-house welfare rights officer for advice on increasing income, social security eligibility, debt resolution, housing, and employability issues as well as helping with representation at tribunals.

This vital support reaches people who have not engaged with traditional advice services, and ensures that Scottish households are supported to claim the benefits they are entitled to, challenge benefit decisions, maximise their incomes, resolve issues relating to employment, housing and much more.