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

3. Policy Background

The Social Security (Scotland) Act 2018 sets out the broad framework for the delivery of the Scottish Government’s social security benefits. On 1 April 2020, executive and legal competence for disability benefits was transferred to Scottish Ministers.

The Scottish Government has now replaced Disability Living Allowance for children with Child Disability Payment, and Personal Independence Payment with Adult Disability Payment. Attendance Allowance in Scotland will start to be replaced by Pension Age Disability Payment in 2024-25. Disability Living Allowance is currently being delivered by the Department for Work and Pensions on behalf of the Scottish Government under the terms of an Agency Agreement. Under the 2018 Act, it is the Scottish Government’s intention to replace Disability Living Allowance with Scottish Adult Disability Living Allowance. Scottish Adult Disability Living Allowance will be delivered by Social Security Scotland on behalf of Scottish Ministers.

Scottish Adult Disability Living allowance will be a closed benefit only available to existing Disability Living Allowance recipients who reside in Scotland. In line with the Scottish Government’s published case transfer principles, transfer from the Department of Work and Pensions to Social Security Scotland will take place without clients needing to make a new application. Clients will be no worse off at the point of transfer, and Social Security Scotland will honour the client’s award review date.

Based on information from the Department for Work and Pensions’ Stat-Xplore service, there were around 80,000 individuals as of August 2023 with an entitlement to Disability Living Allowance in Scotland whose awards would transfer Scottish Adult Disability Living Allowance. By the time Scottish Adult Disability Living Allowance is expected to be launched, forecasts anticipate there will be around 65,000 cases in scope for transfer.

In order to transfer clients in line with the case transfer principles, 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 current 3-month qualifying period for Disability Living Allowance for those under the relevant age and capping the rate of the mobility component for clients over that age. 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.

However, 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.^[5] 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.

People who require further assistance or would prefer face-to-face support 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 what Scottish Government benefits they may be entitled to. They can also provide assistance to complete relevant forms and take forward any follow-up actions relating to a person’s ongoing award. This support will be of particular benefit to those on receipt of Scottish Adult Disability Living Allowance, as many clients in this cohort are older and/or vulnerable, and may find completing forms overwhelming and might not have access to a support network to assist them.

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.^[6] The service is free and supports people who self-identify as a disabled person with advocacy when dealing with Social Security Scotland with regards to their benefit.

As with the Scottish Government’s other disability benefits, a new approach to gathering supporting information is being utilised by Social Security Scotland which will help reduce stress and anxiety for individuals. A Case Manager will ordinarily only seek one piece of supporting information from a professional to support the decision-making process when making a determination on an individual’s change of circumstances or following a scheduled review.

Case Managers will use a collaborative approach to help people gather supporting information from a professional, where an individual does not already have this to hand. This includes Case Managers obtaining supporting information from professionals on the individual’s behalf. Case Managers can also assist in gathering supporting information from the individual’s wider support network, such as a family member or unpaid carer, which can help Social Security Scotland to understand the individual’s needs, conditions or disability.

The Scottish Government 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.^[7]

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.

During the Parliamentary passage of the 2018 Act, the inclusion of Short-term Assistance was welcomed by stakeholders and supported by Parliament. The Scottish Government has 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. 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.

The intention of Short-term Assistance is to ensure individuals 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 where Scottish Ministers are 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, and 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.

People will be able to challenge their transfer determination by requesting a re-determination, and subsequently they will be able to appeal to the Social Security Chamber of the First-tier Tribunal for Scotland. Once the transfer from Disability Living Allowance to Scottish Adult Disability Allowance is complete, individuals who were born on or after 8 April 1948 will be able to make an application for Adult Disability Payment instead if they wish to do so. However, this will not be an automated process, and will remain optional for these recipients as part of Scottish Ministers commitment to preserve the safe and secure transfer principles.

This policy is closely aligned with the Healthier, Wealthier and Fairer Strategic Objectives, and contributes to the following National Outcomes:

• We respect, protect and fulfil human rights and live free from discrimination;
• We tackle poverty by sharing opportunities, wealth, and power more equally; and
• We live in communities that are inclusive, empowered, resilient and safe

This impact assessment has been developed in a way that incorporates findings of previous similar impact assessments, such as the Island Communities Impact Assessments (ICIAs) that accompanied the Disability Assistance for Working Age People (Scotland) Regulations 2022^[9] and the draft Disability Assistance for Older People (Scotland) Regulations 2024.^[10]