The Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025: fairer Scotland duty assessment

3. Summary of assessment findings

3.1 Communication

The Scottish Government recognises that people will require options and the ability to choose how to engage with support when accessing Social Security Scotland’s services. Therefore, Social Security Scotland offers a multi-channel approach including online, telephone, letter-based and face-to-face interactions. As well as offering choices, this ensures that those who cannot or choose not to adopt digital methods will not become isolated.

People who require further assistance or would prefer face-to-face support, for any reason, 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 which Scottish Government benefits they may be entitled to.

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. Scottish Ministers believe this strikes the right balance to encourage people whose disability benefits awards are transferring from the Department for Work and Pensions to gain support from friends and relatives when required, while also maintaining their financial independence.

Social Security Scotland will create a range of content and resources for Scottish Adult Disability Living Allowance in accessible formats. These resources will be proactively supplied to relevant stakeholder organisations through the National Engagement Team for distribution 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. Social Security Scotland also proactively translate resources into 12 languages and can arrange translations for other languages based on demand.^[16]

To make the transition from Disability Living Allowance to Scottish Adult Disability Living Allowance as stress-free as possible, Social Security Scotland will not require people to submit a new application as part of the case transfer process. The Department for Work and Pensions will transfer the individual's case details to Social Security Scotland and the award entitlement will be protected on a like-for-like basis at the point of transfer.

3.2 Improved decision-making and review processes

The Scottish Government has taken a different approach to the award review framework across all disability benefits to ensure that people’s awards are not reviewed unnecessarily. When a Case Manager makes a determination in relation to an individual’s Scottish Adult Disability Living Allowance award, they will set a review date based on when they think a person’s needs will change, using a person-centred approach.

Such reviews will be light-touch and 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.

Furthermore, Social Security Scotland does not conduct face-to-face assessments as a routine practice for any of the disability benefits they deliver. Instead, Case Managers will request supporting information from clients, and give equal weighting to all forms of supporting information. Case Managers usually seek one piece of supporting information from a professional to make a determination on any changes to an individual’s health condition(s). However, they will also consider supporting information from people who know a client best, even when that person is a family member, friend, or carer.

Where an individual does not have supporting information to hand, Case Managers from Social Security Scotland will, when requested, use a collaborative approach with the individual to help gather 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. This could be due to the individual’s health, disability 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 discussions with one of Social Security Scotland’s qualified Health and Social Care Practitioners to assist in using their discretion when making a determination, based on the balance of probabilities. 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 a range of physical and mental health conditions.

As older and disabled people are disproportionately impacted by social isolation, this approach will ensure access to a robust determination of entitlement that takes into consideration their current circumstances when supporting information is not available.

It is anticipated that this approach will have a positive impact on disabled people. Through previous policy impact evaluations, Scottish Ministers have gathered feedback from stakeholders, including applicants for disability benefits, which indicates that the Scottish Government’s approach to supporting information has helped to reduce stress and anxiety for individuals.^[17]

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.

Social Security Scotland will honour the rate of award and the award review period for Disability Living Allowance as far as possible when the award transfers to Scottish Adult Disability Living Allowance. Thus, there will be no decision-making process for awards that are transferred unless or until the individual’s award is subject to a review, whether scheduled or unscheduled. There will be an exception for people receiving Disability Living Allowance under the Department for Work and Pension’s Special Rules for End of Life. In this case, if the Department of Work and Pensions have set a review period on a client’s award, this will not transfer to Scottish Adult Disability Living Allowance as Social Security Scotland consider all clients who are diagnosed with a terminal illness to be eligible for an indefinite award under the Special Rules for Terminal Illness.

3.3 Terminal illness

The Scottish Government’s 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.

Under existing Department for Work and Pensions regulations, a person must be able to prove they have less than 12 months life expectancy to qualify for enhanced awards available under the Special Rules for End of Life. Where benefits are delivered by Social Security Scotland, confirmation will only be needed as to whether a condition or illness is likely to result in an individual’s death (based on guidance supplied by the Chief Medical Officer), regardless of how long someone’s life expectancy is.^[18] Individuals who are terminally ill will automatically receive the highest available rate for both components of Scottish Adult Disability Living Allowance.

The new definition in Scotland allows medical professionals, including registered nurses, to use their clinical judgement alongside guidance developed by the Chief Medical Officer 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.

These improvements are anticipated to be of particular benefit to the cohort of people with entitlement to Disability Living Allowance given their older age and limited previous interaction with the Department for Work and Pensions regarding their existing awards.

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.^[19]

For individuals who were over the age of 65 when Personal Independence Payment was introduced (the 65+ cohort) who report that they have become terminally ill, they will be assessed by the Department for Work and Pensions under their Special Rules for End of Life (SREL) in the first instance. This is to reduce any delay in paying enhanced awards to terminally ill clients while their case transfers to Scotland. If a client is found to be ineligible for the highest available rate of both components under the Department for Work and Pensions’ Special Rules for End of Life, then their award will be manually selected for expedited case transfer to Social Security Scotland. Once the client’s award has transferred, it will then be re-assessed by Social Security Scotland using the Scottish Government’s Special Rules for Terminal Illness (SRTI) to ensure that all terminally ill clients can benefit from the Scottish definition.

However, individuals who were of working age when Personal Independence Payment was introduced (the working age cohort) who report that they have become terminally ill will undergo an expedited case transfer to Scottish Adult Disability Living Allowance. Then their eligibility status will be assessed by Social Security Scotland using the Scottish Government’s Special Rules for Terminal Illness (SRTI). This is because the Department for Work and Pensions would not review their award under Disability Living Allowance rules; instead they would be required to apply for Personal Independence Payment.

Payments for individuals who are terminally ill will be paid weekly in advance. This will help to mitigate the risk of living in poverty for those who are terminally ill.

3.4 Re-determinations, appeals and Short-term Assistance

The Scottish Government wants 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 (DACBEAG), 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 1 month time limit that is set for requesting a mandatory reconsideration by the Department for Work and Pensions.^[20] This will provide individuals with additional time to seek advice or gather supporting information which might be required before requesting a re-determination.

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. 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.

Short-term Assistance will be available when Social Security Scotland has made a determination to reduce or stop an individual’s entitlement to Scottish Adult Disability Living Allowance, and that determination is subject to a request for re-determination or an appeal. Short-term Assistance will be non-recoverable, except in cases of fraud or error. This will ensure that disabled people have confidence and financial stability when seeking a re-determination or appeal of changes to their on-going award.

Engagement with Experience Panels found that participants believed that Short-term Assistance would make it more likely for people to challenge award reviews made by Social Security Scotland. There was an emphasis on Short-term Assistance reducing financial pressure and giving people more confidence in challenging award reviews they did not agree with.

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 the 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.

3.5 Passported entitlements

Eligibility to Disability Living Allowance currently provides individuals with entitlement to various 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 as a result of their disability benefit award. For example, a passported entitlement that clients may receive through their Disability Living Allowance award are the Motability and Blue Badge schemes.

Whilst 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. 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.

The case transfer process is designed to ensure individuals will not face a break in entitlement so their passported benefits should be unaffected by the transfer, therefore, providing security to people in Scotland when Scottish Adult Disability Living Allowance is rolled out.

3.6 Qualifying periods

The current rules set out that an individual must have been disabled or impacted by their health condition for 3 or 6 months (depending on whether the person is over the State Pension Age), and this condition must be expected to continue for at least 6 months (regardless of age) before becoming eligible for Disability Living Allowance. This qualifying period for Disability Living Allowance will be replicated as part of Scottish Adult Disability Living Allowance.

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 disability benefits when establishing a policy position.^[21]

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.

The extended qualifying period for people over the State Pension Age is designed to account for differences between the older population and their younger peers when it comes to recovery from illness or injury. Older people typically have longer recovery times 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.

Therefore, it was decided that the three and six month qualifying periods prior to payment of Scottish Adult Disability Living Allowance are appropriate and in keeping with the policy intent for Scottish Adult Disability Living Allowance. 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. Therefore, the decision to treat these two age groups differently is not expected to create any negative impacts to clients based on their age.

Retaining the pre-existing rules on qualifying periods brings Scottish Adult Disability Living Allowance in line with previous case transfers and prevents differential treatment between Scottish Adult Disability Living Allowance and Pension Age Disability Payment or Adult Disability Payment.

Additionally, maintaining the 26 week ‘backwards test’ which exists under Disability Living Allowance ensures that this form of assistance is targeted at those with longer-term conditions and disabilities. Changes to the qualifying period could lead to older people, who as a result of natural ageing tend to take longer to recover from short-term conditions, becoming eligible under Scottish Adult Disability Living Allowance where they would not be eligible under Pension Age Disability Payment

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. Furthermore, for people with a terminal illness, no qualifying period will apply for Scottish Adult DLA.

3.7 Alternative accommodation rules

Many people with disabilities and 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 both components of Scottish Adult Disability Living Allowance (for people in hospital) or for the care component of Scottish Adult Disability Living Allowance (for people in care homes) will be reduced to £nil. Scottish Adult Disability Living Allowance is not designed to be an income-replacement benefit and is instead designed to assist with the additional costs people with long-term health conditions and disabilities face. Support for disabled people who have a low income is principally delivered through the Department for Work and Pension’s Universal Credit and Pension Credit benefits.

As part of this Fairer Scotland Duty assessment and the related Equalities Impact Assessment, the Scottish Government has fully considered the impact of this rule. The intention of Scottish Adult Disability Living Allowance is to provide financial assistance to mitigate the costs that individuals and their families incur as a result of a health condition or disability. Continuing to pay Scottish Adult Disability Living Allowance where an individual’s care needs are met in full through alternative public funding, for instance in a care home, hospital or secure accommodation, would lead to funding duplication. For example, in the majority of instances when an individual is in hospital, their additional care needs are met by the NHS.

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.

Receiving their entitlement for the first 28 days will help to meet any outstanding additional costs incurred prior to their hospital or care home stay. 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.

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.

Under the UK Government social security system, different approaches have been taken to legal detention for different disability benefits.

For example, payments for those receiving Disability Living Allowance are stopped the day after an individual enters legal detention, however clients can be paid in arrears if they receive a non-custodial sentence or are later acquitted. For those receiving Personal Independence Payment, an individual’s payments are stopped after 28 days from when they entered legal detention.

In Scotland, we wish to create consistency for cross-cutting disability benefit rules. We have therefore decided to bring the rules for people in legal detention who are receiving Scottish Adult Disability Living Allowance in line with the existing rules for Adult Disability Payment and Pension Age Disability Payment. Clients who enter legal detention after their award has transferred will continue to receive their benefit for 28 days. After this time, their benefit will be rated to £nil.

For those clients who are already in legal detention at the point their award is transferred, they will receive 28 days of benefit in order to prevent any disadvantage to them as a result of this change in benefit rules.

3.8 Mobility

For clients who reach State Pension age on Disability Living Allowance as delivered by the Department for Work and Pensions on behalf of Scottish Ministers, the mobility component is capped at the rate the client received prior to reaching the State Pension age, unless a relevant 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. This rule is consistent with the rules for Disability Living Allowance under the Department for Work and Pensions.

Furthermore, it is consistent with the approach for clients in receipt of Adult Disability Payment with Social Security Scotland. These rules are intended to provide some alignment with the rules for Attendance Allowance and Pension Age Disability Payment, where there is no mobility component available.

3.9 Residence & Presence

The current rules for Disability Living Allowance set out that an individual would be required to be present in Great Britain for 104 out of the previous 156 weeks. For other benefits, Scottish Government policy has been to reduce the past presence test from 104 out of 156 weeks to 26 out of 52 weeks in the common travel area.

For Scottish Adult Disability Living Allowance, as it is a closed benefit, only intended as a replacement for Disability Living Allowance, it was determined that it would be best to ensure consistency with the residence rules for other Scottish benefits. At the point of case transfer, the residence information which is shared by the Department for Work and Pensions is assumed to be correct, however we wish to be able to confirm this in future.

The residence and presence test also provides for a number of exceptions such as for individuals with a terminal illness. We believe this strikes the right balance between meeting the policy intent behind the residence and presence eligibility criteria and ensuring fairness for individuals whose awards are transferring to Scottish Adult Disability Living Allowance.

Scottish Ministers have previously legislated to ensure those settling in Scotland from Afghanistan, Ukraine, Sudan, Lebanon, Israel and Palestinian territories are exempt from having to satisfy the habitual residence and past presence tests. These provisions will also be included as part of the Scottish Adult Disability Living Allowance regulations.

3.10 Ability to move to Adult Disability Payment

In 2013, the Department for Work and Pensions introduced Personal Independence Payment as a replacement for Disability Living Allowance for people of working age. All new disability benefit applications from this date in the UK for people of working age were for Personal Independence Payment (prior to Adult Disability Payment roll out).

Disability Living Allowance clients who were over the age of 65 on 8 April 2013 when Personal Independence Payment was introduced (known as the Disability Living Allowance 65+ cohort) 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.

However when Personal Independence Payment was introduced, Disability Living Allowance recipients aged 16 to 64 (known as the ‘working age cohort’) were required to claim Personal Independence Payment if they reported a change in their circumstances or were due to have their award renewed. The Department for Work and Pensions also selected other people’s awards who did not meet these criteria and invited them to apply for Personal Independence Payment. People could also claim Personal Independence Payment of their own volition. The intention from the Department for Work and Pensions has always been that all clients in the working age cohort would be required to claim Personal Independence Payment or have their Disability Living Allowance award ended, including people who had previously received an indefinite award of Disability Living Allowance.

The process of inviting people to claim Personal Independence Payment was expected to be completed by October 2017, however a significant number of Disability Living Allowance cases remain.

The Scottish Government intends to honour the Department for Work and Pensions commitment that those in the Disability Living Allowance 65+ cohort can remain on Disability Living Allowance indefinitely, and extend this commitment to those in the working age cohort

We also intend to allow those in the working age cohort whose awards are transferred onto Scottish Adult Disability Living Allowance to make an application to Adult Disability Payment, if they wish to do so. Where someone does make this application, their Adult Disability Payment determination will end their Scottish Adult Disability Living Allowance award, regardless of the outcome. This is in line with what is currently in place within Department for Work and Pensions – where those in the working age cohort can make an application for Personal Independence Payment at any time. As Disability Living Allowance and Adult Disability Payment have different eligibility criteria, some individuals currently receiving Disability Living Allowance could be better off under Adult Disability Payment but others could be worse off.

The Scottish Government’s approach to the transition of clients from Scottish Adult Disability Living Allowance to Adult Disability Payment has been informed by the significant criticism from clients and stakeholders regarding the lived experiences of individuals whose awards underwent the transition from Disability Living Allowance to Personal Independence Payment.

A key focus of the criticism was that people with Disability Living Allowance awards had no choice but to undergo re-assessment against Personal Independence Payment eligibility criteria. Whilst 47% of adults moving from Disability Living Allowance to Personal Independence Payment see an award increase, another 35% see their award reduced or ended.^[22] Detailed research by the Scottish Government in 2017^[23] showed that the biggest impact was felt by individuals who were receiving the highest rate for both care and mobility components. Between 2013 and 2016, 6,400 people lost financial support of up to £7,000 per year as a result of the transfer from Disability Living Allowance to Personal Independence Payment. Since Personal Independence Payment was introduced, figures show that 25% undergoing the transfer from Disability Living Allowance in Scotland have lost entitlement to disability benefits entirely according to a report published by the Scottish Government in 2020.^[24]

We believe people should be able to make an informed choice as to whether to transition to Adult Disability Payment or not. Therefore, we intend to diverge from Department for Work and Pensions policy by not requiring people receiving Scottish Adult Disability Living Allowance to apply for Adult Disability Payment if they do not wish to do so. This means that even where someone reports a relevant change of circumstances or is due to have their award renewed, any changes will be managed under the Scottish Adult Disability Living Allowance scheme unless the person decides to make an application to Adult Disability Payment. We will encourage people to obtain independent advice before making such a decision.

Where someone in receipt of Scottish Adult Disability Living Allowance does decide to apply to Adult Disability Payment, they will have both rates of the mobility component available to them when their Adult Disability Payment award is first determined, regardless of age. This is consistent with the Disability Living Allowance to Personal Independence Payment journey as currently administered by the Department for Work and Pensions. However, after a prescribed period we intend to limit the rates of the mobility component for those over the relevant age, to ensure consistency across Scottish disability benefits. More detail of our approach can be found in the Equality Impact Assessment published alongside this Fairer Scotland Duty Assessment.