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

6. Age

As Scottish Adult Disability Living Allowance spans across both working and pension age groups, there is a need to consider the intersectionality between age and disability.

The Scottish Government intends to align the age criteria for Scottish Adult Disability Living Allowance with Disability Living Allowance, so there will be no upper age limit.

It will be important for individuals to understand that if they are receiving Scottish Adult Disability Living Allowance prior to reaching State Pension age, they will continue to receive this after reaching State Pension age so long as they remain entitled.

6.1 The 'Relevant Age'

Disability Living Allowance is made up of two components; a care component and a mobility component. To be considered eligible for either of these components the needs arising from the individual's health condition must have lasted and be expected to last a set period of time known as the "qualifying period". When assessing how long a condition has already impacted the needs of an individual, this is known as the "backwards test", and when assessing how long a condition is likely to continue to impact the needs of an individual this is known as the "forwards test".

The 'relevant age' for Scottish Adult DLA is:

• pensionable age
• or, if higher, 65.

For adults under the relevant age, the "backwards test" seeks to establish if the needs arising from the individual's health condition have been present for 3 months or more, while the "forwards test" seeks to establish if these needs are likely to be present for 6 months or more from the date the award starts.

For adults over the relevant age, the "backwards test" for the care component seeks to establish if the needs arising from the individual's health condition have been present for 6 months or more.

For adults over the relevant age, the qualifying periods for the mobility component remain the same as those below the relevant age, however there is also a further requirement that the individual have been in receipt of that rate of the mobility component consistently since before they reached the relevant age.

Because Scottish Adult Disability Living Allowance is intended to act as a replacement benefit for Disability Living Allowance, it is important that they are closely aligned as part of the Scottish Government's commitment to a safe and secure case transfer. In practice this means that Scottish Adult Disability Living Allowance will continue to treat the working age and State Pension Age groups differently, as described above.

For clients who reach State Pension age on Disability Living Allowance under the Department for Work and Pensions, the mobility component is capped at the rate the client received prior to reaching the State Pension age, unless the change of circumstances occurred before this. This means that if a client is in receipt of the lower rate of the mobility component when they reach the State Pension age, and their mobility needs increase after this time, they are not eligible to increase their award to the higher rate of the mobility component. Similarly, if a client does not receive any rate of the mobility component prior to reaching the State Pension age, they will not be able to receive it after this time.

A similar rule also applies to those who receive the low rate of the care component of Disability Living Allowance. Beyond the State Pension Age, an individual cannot newly become eligible for the low rate care component, only the middle and high rates will be available. Those who reach the State Pension Age with an existing award of the low rate care component can increase or maintain their award, however if their needs decrease and later increase they will need to qualify for the middle rate of the care component to become eligible.

We anticipate that many of those who are over or approaching State Pension Age (referred to as the 'relevant age' under Social Security Scotland) will already be expecting any change of circumstance in their health condition to be assessed using the qualifying periods that have long been established by the Department for Work and Pensions.

We feel that an extended 'backwards test' would account for longer recovery times in the older population from short-term conditions, which would not ordinarily make them eligible to receive a disability benefit. This longer recovery period is not associated with any specific disability or health condition, but with natural ageing.

We also acknowledge that decreased mobility and additional care needs are associated with natural ageing in the older population, and restrictions on the rates/components which clients can newly qualify for is intended to account for this. It is also intended to provide some alignment with the rules for Pension Age Disability Payment. There is no mobility component available under Pension Age Disability Payment, nor is there a lowest rate of the care component. Maintaining this restriction on people in receipt of Scottish Adult Disability Living Allowance creates parity between those on Scottish Adult Disability Living Allowance and Pension Age Disability Payment, whilst maintaining the entitlement that people on Scottish Adult Disability Living Allowance had before they reached the relevant age.

Additionally, by retaining the Disability Living Allowance rules on qualifying periods, it brings Scottish Adult Disability Living Allowance in line with previous case transfers and is consistent with Pension Age Disability Payment and Adult Disability Payment rules.

6.1.1 Mobility component

Because the terms '65+' and 'working age' relate to recipients' age in 2013, this means that some in the 'working age' cohort are now at or above State Pension age. Normally, when someone above State Pension age is receiving Adult Disability Payment, Personal Independence Payment, or Disability Living Allowance and they report a change of circumstances or have a review, they cannot have the mobility component of their award increased or have the mobility component awarded for the first time. This will also be the case in Scottish Adult Disability Living Allowance.

However, as part of the transition from Disability Living Allowance to Personal Independence Payment, anyone in the 'working age' group can make a Personal Independence Payment application at any time and can avail themselves of the whole Personal Independence Payment mobility component (considering its different eligibility rules), even if they did not transition from Disability Living Allowance until after they reached 65. The Department for Work and Pensions intends to complete the required transition from Disability Living Allowance to Personal Independence Payment for the working age group by the end of 2025, at which point this policy will no longer have effect.

From the launch of Scottish Adult Disability Living Allowance, we intend to have similar provision in our regulations. This will allow those in the 'working age' group who apply for Adult Disability Payment to be treated as though they are under State Pension age for their first full determination of entitlement to Adult Disability Payment, and be able to have the mobility component of their award increased or awarded for the first time. We do not however intend to leave this provision in place permanently, as this would see individuals in the 'working age' that are above State Pension treated more favourably than analogous groups over pension age, such as the '65+' group. For example, someone receiving the lower rate of the mobility component of Scottish Adult Disability Living Allowance could receive the enhanced rate of Adult Disability Payment in their first full determination, whereas they would only ever be able to receive the lower rate of Scottish Adult Disability Living Allowance if they remained on the benefit.

We therefore propose to limit such increases in the mobility component when those in 'working age' group who are of State Pension age apply for Adult Disability Payment immediately through the Scottish Adult Disability Living Allowance regulations. We will also provide for a clear 2 year grace period after case transfer where these individuals can have the mobility component of their award increased, or awarded for the first time, when they move to Adult Disability Payment. The end of this grace period would then prevent individuals who are of State Pension age from having the mobility component of their award increased or awarded for the first time through a move to Adult Disability Payment.

We intend to provide for this grace period as, due to the high-profile criticism of the Disability Living Allowance to Personal Independence Payment transition, some individuals may have avoided moving from Disability Living Allowance to Personal Independence Payment due to concerns about this journey, and may not have asked to move from Disability Living Allowance to Adult Disability Payment due to anxieties around the case transfer process. These individuals may be more likely to move to Adult Disability Payment once they are in the devolved system receiving Scottish Adult Disability Living Allowance, due to our commitment to treat people with dignity, fairness, and respect.

A grace period of two years will allow individuals time to adjust to being on Scottish Adult Disability Living Allowance, and to consider, with the help of independent advice, whether they would be better off on Adult Disability Payment, with a cut-off date providing clarity as to when they must make this decision by.

We propose that the two year grace period should begin once all Disability Living Allowance awards have moved to Scottish Adult Disability Living Allowance, so that a clear cut-off date can be communicated to clients. While this will see those whose awards transfer at an earlier point provided slightly longer than others to make a decision to move to Adult Disability Payment, we consider that this is fair given that we will still provide a full two years to make this decision, as well as the benefit that this approach can be more clearly communicated to all clients.

Data from DWP Stat-Xplore service shows around 11726 DLA recipients between the ages of 66 and 74 – these are the people over State Pension age who are still part of the working age cohort. Of these, 68% are already in receipt of higher rate mobility component, so the provision discussed above would not benefit them. Around 23% are receiving lower rate mobility and 9% no mobility component at all. These last two groups may have an incentive to consider a move to Adult Disability Payment if they wanted to access mobility component for the first time or at an increased rate. This amounts to just under 10% of the total working age cohort. Crucially, these are people who have been receiving benefit without reporting any significant change for over ten years, and may therefore understandably feel anxious about the change, and require support to engage with Social Security Scotland and understand these new rules. This reinforces our commitment to encouraging people to seek advice and support prior to making a decision to claim Adult Disability Payment.

6.1.2 DLA 65+ cohort

Clients from the Disability Living Allowance 65+ group will not be able to transition to Adult Disability Payment. This is because the Scottish Government has agreed to honour the commitment made by the Department for Work and Pensions to this group of clients that they would be able to remain on Disability Living Allowance as long as they remained eligible. The Disability Living Allowance 65+ cohort is not eligible to apply for Personal Independence Payment under the Department for Work and Pensions. All changes in circumstance for those who were born before 8 April 1948 are managed under Disability Living Allowance rules.

We considered whether to allow the Disability Living Allowance 65+ cohort to be able to transition to Adult Disability Payment after they have transferred to Scottish Adult Disability Living Allowance. However, this would represent a significant change in policy approach from what is currently delivered under the Department for Work and Pensions and may be confusing to clients. This could lead to some clients incorrectly making a claim for Pension Age Disability Payment, where they would not have access to the mobility component, or the low rate of the care component, and therefore could result in financial hardship for these clients.

Through our user research and stakeholder engagement, we have not heard of any particular appetite within the Disability Living Allowance 65+ cohort to have the option to claim Adult Disability Payment, and the expectation has been that any replacement benefit for Disability Living Allowance under Social Security Scotland would be, on the whole, consistent with what is delivered by Department for Work and Pensions.

We believe this approach will have a positive impact as it guarantees consistency and security for this group of vulnerable people. It remains consistent with the long-standing policy established by the Department for Work and Pensions and ensures that people in Scotland are not unfairly disadvantaged compared to counterparts in the same age cohort elsewhere in the United Kingdom.