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

7. Disability

The Scottish Government believes that the changes being made with Scottish Adult Disability Living Allowance will have a positive impact on disabled people in Scotland.

Social Security Scotland will create a range of stakeholder resources for Scottish Adult Disability Living Allowance and content in accessible formats. These resources will be proactively supplied to relevant stakeholder organisations through the National Engagement Team for organisations to distribute to people in local communities. Materials will be translated into British Sign Language, braille, and easy read formats. This will ensure that people can access and understand all the information relating to Scottish Adult Disability Living Allowance in a format that works best for them.

7.1 Supporting information

It is anticipated that our approach to supporting information as described in section 2.7 above will have a positive impact on disabled people. Through previous policy impact evaluations, we have gathered feedback from stakeholders, including applicants for disability benefits, indicates that our approach to supporting information has helped to reduce stress and anxiety for individuals.^[24] This policy will allow for a consistent approach for those reporting changes to their condition, thereby ensuring the appropriate level of assistance is awarded through a robust decision-making process that embodies the values of dignity, fairness and respect. It is envisaged that by having one piece of supporting information from a professional, Social Security Scotland will be better equipped to make the right determination in the first instance, thereby reducing the likelihood of requiring a re-determination.

7.2 Award reviews

Our light-touch reviews are designed to minimise stress and anxiety for disabled people. Social Security Scotland will tailor reviews for each person to ensure that they are suitable to their needs, take account of their preferences and deliver an appropriate determination for each individual. This will have a positive impact, particularly for those who are in receipt of lower rates of Scottish Adult Disability Living Allowance, as a light touch review will ensure that individuals have an opportunity to tell Social Security Scotland if their needs have increased.

Our case transfer process will ensure that wherever possible after the launch of Scottish Adult Disability Living Allowance, a client's Disability Living Allowance award will be selected for transfer to Scottish Adult Disability Living Allowance before their award is subject to a review that could lead to a face-to-face assessment with the Department for Work and Pensions. We will also aim to align a client's Scottish Adult Disability Living Allowance review date with the timeframes their Disability Living Allowance award would have been reviewed as far as possible. This will ensure continuity of client experience and allow their future review date to be set in line with the principles discussed above.

7.3 Short-term Assistance

The introduction of Short-term Assistance, as outlined in section 2.4 above, is anticipated to have a positive impact on disabled people by removing a financial barrier to challenging a review of their award determination.

7.4 Qualifying period

The qualifying periods for Disability Living Allowance will be replicated as part of Scottish Adult Disability Living Allowance, as set out above. However, for people with a terminal illness, this qualifying period will not apply.

It is understood that some people have concerns about the impact of this rule on those who require financial assistance. Therefore, the Scottish Government undertook an analysis of qualifying periods for other disability benefits when establishing a policy position.^[25]

We believe that the qualifying periods prior to payment of Scottish Adult Disability Living Allowance are appropriate, due to the need to establish whether an individual's support needs are because of a short-term illness or constitute a long-term disability. By retaining the Disability Living Allowance rules on these qualifying periods, it brings Scottish Adult Disability Living Allowance in line with previous case transfers ensuring consistency between Scottish Adult Disability Living Allowance and Pension Age Disability Payment and Adult Disability Payment.

When applying the qualifying period, Social Security Scotland will ensure that the impact of unpredictable and fluctuating conditions on individuals is taken into consideration as part of a person centred approach.

7.5 Terminal illness

As of May 2023 there were 327 people (accounting for 0.40% of total cases) with entitlement to Disability Living Allowance who had their main condition or disability listed as a terminal illness in Scotland.^[26] However, under Disability Living Allowance at present, for those in the 'working age' group, a report that an individual has become newly terminally ill would trigger their transfer to Adult Disability Payment. Therefore, we would anticipate this prevalence to be higher once the equivalent cohort is transferred to Scottish Adult Disability Living Allowance, both as a result of this change of circumstances being managed under Scottish Adult Disability Living Allowance rules, and the more generous Scottish Special Rules for Terminal Illness.

It is anticipated that the new definition of terminal illness within Scottish Government disability benefits will support the recognition of a wider number of illnesses and conditions than under the UK Government definition. Our analysis suggests that the Scottish Government approach as outlined in section 2.1 above will result in a positive impact for those reporting a terminal illness during the case transfer period.

7.6 Alternative accommodation rules

7.6.1 Hospitals and care homes

Many disabled people and people with long-term health conditions experience stays in hospital, sometimes for a lengthy period. As with the current Disability Living Allowance rules, Scottish Adult Disability Living Allowance will continue to be paid to an individual in hospital or a publicly funded care home for 28 days. Beyond 28 days, payment of Scottish Adult Disability Living Allowance will be reduced to £nil for both the care and mobility component (hospitals) and for the care component only (care homes).

The intention of Scottish Adult Disability Living Allowance is to provide financial assistance to mitigate the costs that individuals and their families incur because of a health condition or disability. The purpose of the '28 day rule' is to ensure that longer term periods in alternative accommodation are not subject to funding duplication, by receiving Scottish Adult Disability Living Allowance while the costs of that care are being covered. Usually when an individual is in hospital, their additional care needs are met by the NHS.

The situation is different for Child Disability Payment, which is not stopped when a child or young person undergoes a stay in hospital for longer than 28 days. This is because, when children are in hospital they continue to require care and support, usually from a parent or guardian, over and above that which is provided in clinical settings because of their young age. Adult inpatients are not expected to need this kind of pastoral input, and NHS staff are expected to meet essential care needs.

The 28 day window ensures that people cared for in temporary respite do not lose access to payments as well as recognising that where care placements break down or periods within alternative accommodation end at an early stage, the individual does not experience the additional disruption of losing access to Scottish Adult Disability Living Allowance.

It is important to note that there is an exception to this rule for those who are residing in a hospice and have a terminal illness. In these circumstances, an individual's payment of Scottish Adult Disability Living Allowance will continue, and the 28 day rule will not apply. This will have a positive impact by ensuring that people who are already in extremely difficult circumstances will not see their income reduce as a result of residing in a hospice.

7.6.2 Legal detention

Under the UK Government system, different approaches have been taken to legal detention for disability benefits. Payments for those receiving Disability Living Allowance are stopped the day after an individual enters legal detention. However, for those who are later acquitted or receive a non-custodial sentence, clients are entitled to any arrears of Disability Living Allowance for the period they were in legal detention. For those receiving Personal Independence Payment, all individuals continue to receive their full benefit for 28 days from when they entered legal detention, however clients are not entitled to any arrears for time spent in legal detention.

Other forms of Scottish disability assistance for adults, including Adult Disability Payment, Pension Age Disability Payment, and the care component of Child Disability Payment align with the Personal Independence Payment approach. We intend to align Scottish Adult Disability Living Allowance rules with those for other forms of Scottish disability assistance. Paying the first 28 days to all clients upon entering legal detention results in more people benefitting from support during their transition, assisting with the wind-down of any contracted assistance which is in place for the individual.

We do not believe it is appropriate to tie someone's disability benefit payment to their custodial sentence, as the sentence they receive does not impact their care or mobility needs or the care they should be receiving. Instead, as is the case where people are in other forms of alternative accommodation, payment should be reduced because they should be receiving the care they need in that accommodation. The 28 day period is intended to smooth this transition and to account for only small amounts of time spent in this accommodation.

It is important to further note that when an individual enters legal detention, they will continue to have an entitlement to Scottish Adult Disability Living Allowance beyond the first 28 days, however, their award will be reduced to £nil from 28 days after they enter legal detention. The median time spent on remand in Scotland is just 21 days^[27], meaning that many will be released from legal detention before their benefit is nil-rated.

An individual whose award is reduced to £nil due to being in legal detention is not entitled to Short-term Assistance. By reducing the award to £nil during this period, when an individual leaves legal detention they will be able to have their reward re-instated if they continue to be eligible. Therefore, individuals will be able to access their financial support again with relative ease.

7.6.3 Linked short stays

Where an individual undergoes frequent short stays (i.e. less than 29 days) in hospital, their payment of Scottish Adult Disability Living Allowance will be unaffected. People are entitled to continue receiving their entitlement for the first 28 days of a hospital stay to meet any outstanding additional costs incurred prior to their hospital stay. Decision Making Guidance will assist Social Security Scotland in applying linking rules where an individual spends two or more separate periods in hospital.

Although payment will stop after 28 days of an individual being in a publicly funded hospital or care home, entitlement is unaffected. Therefore, if and when an individual leaves such accommodation, payments will resume, subject to continuing to meet the eligibility criteria for Scottish Adult Disability Living Allowance.