Draft Disability Assistance for Older People (Scotland) Regulations 2024: Draft Equality Impact Assessment

Key Findings

This Equality Impact Assessment has found that the introduction of Pension Age Disability Payment will have a positive impact on the people of Scotland, including individuals who fall under the following protected characteristics.

Age

In the Mid-2021 Population Estimates, people aged 65 and over accounted for 20% of the Scottish population.^[16] This is an increase since the time of the 2011 Census, whereby this age group accounted for around 17% of the population.

In the current system, the age criteria for Attendance Allowance begins at State Pension age. The Scottish Government intends to align the age criteria for Pension Age Disability Payment with that of Attendance Allowance. In the 2019 Consultation, 89% of respondents agreed with the proposals to align the age criteria with State Pension age.

It will be important for individuals to understand that if they are receiving Adult Disability Payment prior to reaching State Pension age, they will continue to receive this after reaching State Pension age so long as they remain entitled. Individuals will also be able to apply for Adult Disability Payment after reaching State Pension age in circumstances where no more than a year has lapsed since their previous award of Adult Disability Payment, Personal Independence Payment or Disability Living Allowance has ended, and their condition or disability is substantially the same as when their previous award was made. Guidance and communications will be clear on this so that individuals understand if, and in what circumstances, they should apply for Pension Age Disability Payment.

Given Pension Age Disability Payment will be open to new applications for those over State Pension age, the Scottish Government has an opportunity to further tailor the approach to disability assistance with regard to the needs of this age group. Scottish Ministers believe that the approach to Pension Age Disability Payment will have a positive impact on this age group.

Application and decision-making process

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 application or review forms, will be approached from a position of trust.

From engagement with stakeholders, it is understood that although many people who apply for Attendance Allowance 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 application or review processes. 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 in this age group to gain support from friends and relatives when required, while also maintaining their financial independence.

One piece of supporting information from a professional will be sought by Case Managers, such as a medical report or a letter from a support worker. 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 Pension Age Disability Payment 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. This will have a positive impact on disabled people in this age cohort. As older 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.

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 Pension Age Disability Payment. 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.

This approach will be of particular benefit for individuals within this age cohort, as Social Security Scotland will be able to support them in gathering supporting information where they do not already have this to hand. 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 individual’s needs and condition(s) when deciding the appropriate award review period.

Mobility

The 2019 consultation and stakeholder feedback suggested there was interest in the introduction of a mobility component as part of Pension Age Disability Payment. The Scottish Government undertook an analysis of the potential impact of this policy change. Further consideration of the impact of the Scottish Government’s position can be found in the ‘Disability’ section of this Equality Impact Assessment.

As part of the development of Pension Age Disability Payment, the Scottish Government has carefully considered whether to introduce a mobility component. Scottish Ministers have concluded that it is not feasible to include a mobility component within the foreseeable future.

In February 2020, the Scottish Government estimated that the introduction of a mobility component could cost an additional £580 million annually.^[17]

This cost would increase annually due to uprating with inflation and, with an aging population, is likely to grow substantially in the coming years. Due to the financial implications, as set out in the position paper, the Scottish Government would have to find additional funding from the fixed budget. Therefore, given the highly challenging fiscal environment, Scottish Ministers are not currently in a position to consider the introduction of a mobility component.

However, it can be noted that following a consultation in 2017,^[18] the Scottish Government committed to maintaining free bus travel through the National Entitlement Card scheme for people aged 60 and over. This scheme provides free travel on registered local and long-distance bus services throughout Scotland, at any time of day for any number of journeys. In recognition of the impact of age, the provision of free bus travel allows older people improved access to services, facilities and social networks, therefore promoting social inclusion.

Alternative accommodation rules: legal detention

Under the UK Government social security system, different approaches have been taken to legal detention for disability benefits for individuals of working age and those of State Pension age.

Payments for those receiving Attendance Allowance are stopped the day after an individual enters legal detention. However, for those receiving Personal Independence Payment, the individual’s payments are stopped after 28 days from when they entered legal detention. This position has been replicated as part of Adult Disability Payment in order to maintain alignment with Personal Independence Payment. Similarly, the Scottish Government will align Pension Age Disability Payment with the legal detention rules of Attendance Allowance.

In the 2019 consultation, a number of respondents noted this difference between the Attendance Allowance rules for those who have entered legal detention and that of Personal Independence Payment and Adult Disability Payment. The Scottish Government has given consideration to this during the development of this Equality Impact Assessment. However, as the Scottish Government’s position aligns with Attendance Allowance, this will have no material financial impact on individuals as a result of introducing Pension Age Disability Payment.

It is important to note that when an individual enters legal detention, they will continue to have an entitlement to Pension Age Disability Payment, however their award will be reduced to £nil from the day after they enter legal detention. 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 not be required to make a new application for Pension Age Disability Payment if they continue to be eligible. Therefore, individuals will be able to access their financial support again with relative ease.

Disability

The Scottish Government believes that the changes being made with Pension Age Disability Payment will have a positive impact on disabled people over State Pension age in Scotland.

In August 2022 there were around 144,000 individuals having an entitlement to Attendance Allowance in Scotland. 3,370 of these people had their main condition or disability listed as a terminal illness. This represents just over 2% of the total people entitled to Attendance Allowance in Scotland.^[19]

Social Security Scotland will create a range of Pension Age Disability Payment stakeholder resources 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 Pension Age Disability Payment in a format that works best for them.

Supporting information

Case Managers will usually only seek one piece of supporting information from a professional to make a determination on an individual’s entitlement to Pension Age Disability Payment. Case Managers within Social Security Scotland will, if requested, help people to gather supporting information from a professional where an individual does not already have this to hand. Case Managers can also assist in gathering supporting information from the individual’s wider support network, such as a family member or carer, which can help Social Security Scotland to better understand the individual’s needs and condition or disability.

It is anticipated that this will have a positive impact on disabled people. As with the experience of Child Disability Payment and Adult Disability Payment, this approach to supporting information will help reduce stress and anxiety for individuals. This policy will allow for a consistent approach for those applying for Pension Age Disability Payment, 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.

Award reviews

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 to award Pension Age Disability Payment, 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. This will have a positive impact, particularly for those who have been awarded the lower rate of Pension Age Disability Payment, as a light touch review will ensure that individuals have an opportunity to tell Social Security Scotland if their needs have increased.

Short-term Assistance

The introduction of Short-term Assistance will have a positive impact on disabled people over State Pension age. Short-term Assistance is currently available for those receiving Child Disability Payment and Adult Disability Payment.

Short-term Assistance will be available when Social Security Scotland has made a determination to reduce or stop an individual’s entitlement to Pension Age Disability Payment 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.

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 under the current Attendance Allowance system, and aligns with the Scottish Government’s human rights approach to social security in Scotland.

Qualifying period

The current rules set out that an individual must have been disabled or had their condition for six months before becoming eligible for Attendance Allowance. This qualifying period for Attendance Allowance will be replicated as part of Pension Age Disability Payment. However, for people with a terminal illness, there will continue to be no qualifying period. 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.^[20]

The Scottish Government believes that the six month qualifying period prior to payment of Pension Age Disability Payment is appropriate and in keeping with the policy intent for Pension Age Disability Payment. It ensures that this form of assistance is targeted at those with longer-term conditions and disabilities. Changes to the six month qualifying period would lead to people with very short-term conditions becoming eligible, substantially changing both the nature and purpose of Pension Age 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. Unlike Child Disability Payment and Adult Disability Payment, there will be no qualifying period expecting a person’s condition to last for a specified time period into the future as part of Pension Age Disability Payment.

As with Attendance Allowance, the rationale for this approach is that the number of people who have stopped receiving their award because their condition improves is negligible; largely attributable to the requirement for a six month initial qualifying period. This helps to mitigate the impact of having a longer qualifying period when compared to Child Disability Payment and Adult Disability Payment.

Terminal illness

In August 2022, 3,370 people receiving Attendance Allowance had their main condition or disability listed as a terminal illness.^[21] 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. The Scottish Government expects this to be of significant benefit to disabled people in Scotland, particularly within the age cohort of those entitled to Pension Age Disability Payment.

Estimates published in August 2021 suggest that there could be a 90% increase in the number of successful applications for Pension Age Disability Payment due to having a terminal illness.^[22] These estimates are based on projections for Adult Disability Payment due to a lack of data on the conditions of those entitled to Attendance Allowance due to terminal illness, so it is therefore possible that this projection may underestimate the impact of the Scottish Government’s terminal illness policy.

The implementation of the Scottish Government’s definition of terminal illness through Pension Age Disability Payment will have a more positive impact on disabled people over State Pension age in Scotland than that of the current social security system.

Alternative accommodation rules: hospitals and care homes

Many people with disabilities and long-term health conditions may often experience stays in hospital, sometimes for a lengthy period. As with the current Attendance Allowance rules, Pension Age Disability Payment will continue to be paid to an individual in hospital or a publicly funded care home for 28 days. Beyond 28 days, payment of Pension Age Disability Payment will be reduced to £nil. Pension Age Disability Payment is not intended to be an income-replacement benefit. Payments to support those over State Pension age on a low income are provided by the UK Government through Pension Credit.

As part of this Equality Impact Assessment, the Scottish Government has considered the impact of this rule. The intention of Pension Age Disability Payment 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 Pension Age Disability Payment 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 in meeting the individual’s care needs. In the majority of instances when an individual is in hospital, their additional care needs are met by the NHS.

Child Disability Payment 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 purpose of the ‘28 day rule’ is to ensure that longer term periods in alternative accommodation are not subject to funding duplication, by receiving Pension Age Disability Payment while the costs of that care are being covered. 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 Pension Age Disability Payment. As set out previously, individuals residing in legal detention will have their payment reduced to £nil from the day after they enter legal detention.

Where an individual undergoes frequent short periods in hospital, their payment of Pension Age Disability Payment will be unaffected. People are entitled to continue receiving their entitlement for the first 28 days of a hospital stay in order to meet any outstanding additional costs incurred prior to their hospital 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 Pension Age Disability Payment.

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 Pension Age Disability Payment 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.

Mobility

As Attendance Allowance provides help with the extra costs associated with an individual’s care needs, it does not include a mobility component. The Scottish Government has committed to aligning Pension Age Disability Payment with Attendance Allowance to ensure a safe and secure transfer. Following the 2019 consultation and stakeholder feedback that suggested there was interest in the introduction of a mobility component as part of Pension Age Disability Payment, the Scottish Government undertook an analysis of the potential impact of this policy change.

The Scottish Government published a Pension Age Disability Payment policy position paper in February 2020 which included a detailed analysis of the relevant considerations regarding a mobility component.^[23] As part of the development of Pension Age Disability Payment, the Scottish Government has carefully considered whether to introduce a mobility component. Scottish Ministers have concluded that it is not feasible to include a mobility component within the foreseeable future.

Within the policy position paper, the Scottish Government estimated that the introduction of a mobility component could cost an additional £580 million annually. However, this cost would increase annually due to uprating with inflation and, with an aging population, is likely to grow substantially in the coming years.

Due to the financial implications, as set out in the position paper, the Scottish Government would have to find this additional funding from the fixed budget. Given the highly challenging fiscal environment, such a significant increase in costs would require the Scottish Government to reduce spending on other key social security priorities. Having evaluated the financial implications outlined in this paper, the Scottish Government is not currently in a position to further consider the introduction of a mobility component.

As set out above, the Scottish Government intends to align Pension Age Disability Payment with Attendance Allowance to ensure a safe and secure transfer. The introduction of a mobility component as part of Pension Age Disability Payment would be a fundamental change in the policy rationale that underpins Attendance Allowance as a benefit that helps with the additional costs related to an individual’s care needs.

As the Scottish Government will ensure that those receiving Attendance Allowance in Scotland do not need to reapply to receive Pension Age Disability Payment, significant changes, such as introducing a mobility component, would risk creating a two-tier system of disability benefits for those over State Pension age. Changes to the eligibility criteria for Pension Age Disability Payment would cause unfairness, confusion and disruption for individuals by having two different sets of eligibility criteria and rules, whilst undertaking a significantly complicated case transfer process.

Gender reassignment

There is no robust data relating to the proportion of people in Scotland to whom the gender reassignment protected characteristic applies. However, the Scottish Government recognises that a potential barrier to trans and non-binary people accessing disability assistance is a requirement for individuals to provide their gender when making an application. This is often discriminatory as individuals are asked to tick a box to indicate their gender. This tends to involve a male-female binary which does not apply to individuals whose gender does not fit into one of these categories, such as individuals who are non-binary, agender or genderfluid.

It is anticipated overall though that Pension Age Disability Payment will have a positive impact on this group. Information on an individual’s gender is not required to make a determination of entitlement for Pension Age Disability Payment. Therefore, this has been taken into consideration through the design of the Pension Age Disability Payment application form which will not collect information on an individual’s gender.

Social Security Scotland staff will embody the values of dignity, fairness and respect. All training for staff will include LGBT awareness and be underpinned by human rights principles.

Pregnancy and maternity

This Equality Impact Assessment has not identified any barriers from Pension Age Disability Payment that have an impact on the protected characteristics of pregnancy and maternity. As an individual is only entitled to Pension Age Disability Payment having reached State Pension age, it is unlikely that they will possess this protected characteristic.

Race

Just under 4% of Scotland’s population belong to minority ethnic groups, and 7% of the total population communicate in home languages other than English. Although there are not statistics showing the number of people within Scotland who are in receipt of disability benefits and who belong to minority ethnic groups, it is known that they generally make up 3.7% of those with a reported learning disability or developmental disorder.^[24]

There are particular barriers for individuals from minority ethnic groups in applying for disability benefits, especially those with English as a second language, as there may be difficulties in accessing or understanding their entitlements due to language or other communication barriers. In particular, participants in Experience Panels stated that they were not confident in using online resources or other materials because, while they felt they could speak English conversationally, they did not feel comfortable making sense of the complicated and technical language often used by authorities.^[25]

To address this, work has been undertaken with ethnic minority groups alongside the main Experience Panels as part of the Benefit Take-up Strategy. Experience Panel engagements with people who use English as a second language also showed that there is often an assumption around the most commonly translated languages.

There is an expectation that Social Security Scotland will mirror provision by other public sector organisations, and speakers of less common languages have shared that they will generally opt for letters in English, on the assumption that there are no materials available in their home language. This removes individual agency, forcing some individuals to rely on support to apply, and creating a barrier to take-up. Additionally, many individuals have also expressed concerns that they would misinterpret information and, as a result, they would be sanctioned or prosecuted because of language barriers.

As part of the process of applying for Pension Age Disability Payment, Social Security Scotland will ensure that appropriate communication support is provided to meet individual needs both for accessibility and for language barriers. This includes the use of translator services during telephone calls and translation of decision reports when a determination of entitlement is made.

Social Security Scotland will create a range of Pension Age Disability Payment stakeholder resources 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. The languages that Social Security Scotland proactively translate materials into were selected through stakeholder consultation. These are: British Sign Language, Farsi, Mandarin, Cantonese, Urdu, Gaelic, Polish, Arabic, braille and easy read formats. Materials in other languages are available on request.

Social Security Scotland’s communications team will work with community radio and foreign language press to provide messaging on Pension Age Disability Payment to communities. In some circumstances, printed marketing materials may not be the right way to engage with these communities and where this is the case, Social Security Scotland will provide an engagement approach through work carried out by the National Engagement and Local Delivery teams.

Social Security Scotland will continue to work with experts who have experience of benefit take-up in specific communities, such as Black, Asian and Minority Ethnic women and the Gypsy/Traveller community. The purpose will be to monitor and provide management information to effectively target take-up activity and assist the production of take-up resources for Social Security Scotland staff and stakeholders. The Scottish Government will draw on best practice from take-up initiatives and campaigns undertaken across Scotland and elsewhere in the United Kingdom.

Gypsy/Traveller community

Within the broader classification of ethnic minority, just over 4,000 people in Scotland (0.1% of the population) identified their ethnic group as ‘White: Gypsy/Traveller’.^[26] Although there are not statistics held on the number of Gypsy/Traveller people who receive disability benefits under the current system, the census showed that 28% of Gypsy/Travellers reported having a life limiting long-term health problem or disability, compared to 20% of the general population. It is thus more likely that this group will need to access disability benefits, but also likely that this group may experience additional barriers to accessing benefits.

The Scottish Government was also informed anecdotally that the Gypsy/Traveller community operate within the ‘cash economy’ and that they are more likely to have a post office account than a bank account. This can be problematic in terms of receiving payments. The payment method of Pension Age Disability Payment will be important for some people, and in particular the Gypsy/Traveller community. In addition to Post Office and Credit Union accounts, payments can be made using iMovo which is a secure digital voucher system that can be delivered to individuals in several forms, such as SMS and email. These can be redeemed at one of 2850 PayPoint outlets in Scotland.

Refugees

The ethnic minority population also includes refugees. Refugees are eligible for benefits such as disability benefits, but typically experience additional barriers in comparison to the general population in accessing them. Specific research has been undertaken with this group as part of the Experience Panels to highlight barriers and challenges in accessing social security by Mobile Populations.^[27]

Participants felt stigmatised, misunderstood, judged and discriminated against by government officials under the current system. Refugees highlighted the need to learn more English to access services and interact effectively with government officials to be a barrier. It was highlighted that many refugees have a strong reliance on translators and interpreting services to communicate with government officials.

Social Security Scotland will ensure that individuals who require the use of translator services during telephone calls have access to this support. Decision reports when a determination of entitlement is made will be translated for individuals who require this information in another language. Social Security Scotland staff will also undertake training in inclusive communications to ensure individuals can interact in ways that work for them. This approach will help to reduce the stigma felt by refugees in their interactions with Scotland’s social security system.

Participants felt that they could not find correct information on benefits and eligibility from official government channels under the UK Government system. Many perceived the social security system to be complex and difficult to understand. It was also noted by some participants that they encountered barriers in accessing information and application processes that are online, because they did not have internet access or digital services.

As previously noted, Social Security Scotland will proactively provide stakeholder organisations with Pension Age Disability Payment resources and will provide a multi-channel application process, including paper-based, telephone and face-to-face applications. The application form for Pension Age Disability Payment has been designed through user research to ensure it is accessible and reduces some of the complexities associated with the social security system. This approach should help to mitigate barriers in accessing information and the application process for refugees and other Mobile Populations.

Residence and presence

The current rules for Attendance Allowance set out that an individual would be required to be present for 104 out of the previous 156 weeks. Since the Disability Assistance public consultation launched, a change has been made to Scottish Government policy to reduce the past presence test from 104 out of 156 weeks to 26 out of 52 weeks.

This position has been settled upon to ensure compliance with recent developments in case law in relation to the United Kingdom’s social security system.^[28] Removing the test entirely, would carry a financial cost as well as a number of delivery implications. The test also provides for a number of exceptions such as for individuals with a terminal illness. The Scottish Government believes this strikes the right balance between meeting the policy intent behind the residence and presence eligibility criteria and ensuring fairness for individuals applying for Pension Age Disability Payment.

Scottish Ministers have previously legislated to ensure those settling in Scotland from Afghanistan are exempt from having to satisfy the habitual residence and past presence tests. These provisions will also be included as part of the Pension Age Disability Payment regulations. This includes those with leave to enter or remain in the United Kingdom under immigration rules in relation to the Afghan Relocations and Assistance Policy, the previous scheme for locally-employed staff in Afghanistan, those granted discretionary leave outside the immigration rules as a dependent of a person in relation to that scheme, as well as those granted leave under the Afghan Citizens Resettlement Scheme.

Provisions in relation to individuals from Ukraine that have settled in Scotland due to the Russian invasion which took place on 24 February 2022 and were residing in Ukraine immediately before 1 January 2022 will also be included in the Pension Age Disability Payment regulations.^[29] This exempts individuals from having to satisfy the habitual residence and past presence tests. This exemption will apply to those arriving in the United Kingdom under the Ukraine Family Scheme and Homes for Ukraine. These individuals will be able to meet the residency conditions for Scottish Government benefits from day one, meaning they will be eligible subject to all other entitlement conditions being met.

The Scottish Government has also legislated in relation to the conflict in Sudan, whereby those who were resident in Sudan prior to 15 April 2023 will be exempt from the past presence and habitual residence tests for Scottish Government benefits if they left Sudan in connection with the violence.^[30] This will also be applied to Pension Age Disability Payment.

The inclusion of these provisions will have a positive impact on disabled people who have settled in Scotland from areas of conflict by ensuring that they have access to Pension Age Disability Payment at the earliest possible opportunity, therefore assisting with the additional costs relating to their care needs as a result of a disability or health condition.

Terminal illness

It is known that there is a low uptake of palliative and end of life care services for Black, Asian and Minority Ethnic groups in the United Kingdom. This was also identified in the ‘Palliative and end of life care for BAME groups in the United Kingdom’ report,^[31] which identified 45 literature reviews in this area. Some suggested factors for low uptake included a lack of referrals, lack of knowledge about services or the impact of family and religious values interacting with the idea of palliative and hospice care.

It is likely that some of the reasons for a low uptake of palliative care could also lead to a low uptake in disability benefits when terminally ill. As population projections are suggesting that there will be a general increase in population for those over State Pension age and continued international migration to Scotland,^[32] this may present a challenge to ensure that Pension Age Disability Payment is accessible for those who are terminally ill from minority ethnic groups.

There is some evidence that ethnic minority groups can vary in the extent to which individuals would wish to know about their terminal diagnosis. This has been highlighted in a cross-cultural study involving some East Asian countries.^[33] The research around this is not specific to any particular age group. The terminal illness policy has been developed in a way that is supportive of individuals from minority ethnic groups where explicit knowledge of a terminal diagnosis may be considered not to be in the best interests of the individual.

The Scottish Government has worked with people with lived experience to refine the way that terminal illness is spoken about. Scottish Ministers’ commitment to accessible communication includes making sure that language barriers are not created for people who communicate in languages other than English.

The Chief Medical Officer’s guidance contains important information for practitioners to support sensitive communication with individuals relating to their diagnosis. It also makes allowance for situations where sharing the terminal diagnosis with the individual would be harmful to them.

To support terminally ill people, it will also be possible for a third party to complete the application form, and this will similarly be supportive of individuals where explicit knowledge of a terminal diagnosis is deemed not in their best interests. In these ways the terminal illness policy is supportive of those from minority ethnic groups.

Figures for terminally ill people are not collected by ethnic group. As the numbers are small, caution would be needed as release of these statistics could identify individuals. To mitigate this, although ethnicity monitoring is not compulsory, it will form part of the application process through the Equalities Monitoring form, and individuals will have to ‘opt out’ if they wish not to submit this information. This should lead to collection of better data which can be used to inform changes to Pension Age Disability Payment, and where relevant, terminal illness policy.

Religion and belief

According to data published by the Scottish Surveys Core Questions in 2019, 50.7% of respondents identified as having no religion, while 46.4% identified as Christian (Church of Scotland, Roman Catholic or other Christian). 1.1% identified as Muslim, with 1.7% belonging to other religions.^[34]

Although religion and belief may vary with age, the Scottish Government has not identified any particular barriers resulting from Pension Age Disability Payment which may affect people with the protected characteristic of religion and belief.

Sex

Data from the Papworth Trust found that women are slightly more likely than men to be disabled in the United Kingdom.^[35] 23% of women are noted has having a disability, compared to 19% of men.

A report by the Women’s Budget Group has also found that, overall, women are twice as likely to rely on social security as men.^[36] This higher percentage of disabled women compared to men is also reflected in the ratio of those in receipt of Attendance Allowance. In August 2022, 37.1% of those receiving Attendance Allowance in Scotland were men, and 62.9% were women.^[37] However, this may in part be explained by the differences in life expectancy in Scotland. Between 2019 and 2021, life expectancy in Scotland was 76.6 years for men and 80.8 years for women.^[38]

There is evidence that gender inequalities are likely to have become even more pronounced in light of the COVID-19 pandemic. When healthcare systems come under pressure, it becomes increasingly likely that women will take on further caring responsibilities.^[39]

Although some disabilities and health conditions have a different impact on men and women, Social Security Scotland’s approach to decision-making is guided by the social model of disability and will be person-centred through the values of dignity, fairness and respect. People employed by Social Security Scotland will be required to undertake equalities training which will help to ensure that people applying for and receiving Pension Age Disability Payment do not face discrimination, including discrimination on the basis of sex.

Sexual orientation

In 2019, around 3% of people in Scotland identified their sexual orientation as ‘lesbian’, ‘gay’, ‘bisexual’ or other.^[40] This is likely to be an under-report, as younger people are more likely to self-identify their sexual orientation in surveys than older people.^[41] In 2021, 17% of those who identified as gay, lesbian or bisexual had experienced discrimination, compared to 8% who identified as straight.^[42]

A report by the Equality Network found that disabled people who identify as LGBT were more likely to experience discrimination than LGBT people without a disability. 59% of disabled LGBT people had experienced prejudice or discrimination within the last month at the time of publication in 2015, compared to 47% of non-disabled LGBT individuals.^[43]

The Scottish Government is committed to engaging with this group to build a service that meets their needs. 9% of Social Security Experience Panel members identify as lesbian, gay or bisexual and have been actively involved in the design of Social Security Scotland’s services.^[44]

Applications for Pension Age Disability Payment will only request information that is required for processing and determining entitlement to this benefit. The Scottish Government are trying to ensure that all individuals are comfortable in disclosing only necessary information. User research has assisted with the design of the application form, ensuring that the application uses inclusive language. It is therefore expected that the Pension Age Disability Payment application form will support equal opportunities for the LGBTI community in accessing this benefit.

Social Security Scotland staff will embody the values of dignity, fairness and respect. All training for staff will include LGBT awareness and be underpinned by human rights principles.

Marriage and civil partnership

There is not a requirement to impact assess against this protected characteristic unless the policy or practice relates to work, for example Human Resource policies and practices. However, the Scottish Government has not identified any particular barriers resulting from Pension Age Disability Payment which may affect people with the protected characteristic of marriage or civil partnership.

Recommendations and conclusion

This Equality Impact Assessment process has identified that overall, the introduction of Pension Age Disability Payment to replace Attendance Allowance would have a positive impact for people in Scotland with protected characteristics. These impacts include:

• Those applying for Pension Age Disability Payment will benefit from an improved decision-making process that starts from a position of trust and supports individuals to receive the right determination at the first opportunity.
• The application form will be more accessible, and information about Pension Age Disability Payment will be available in multiple languages and in accessible formats.
• Awards of Pension Age Disability Payment will be ongoing and subject to light touch reviews, alleviating some of the worry caused by the review process.
• Terminally ill people will have their application fast-tracked and processed using the Scottish Government’s definition of terminal illness, which removes arbitrary timescales and is based on clinical judgement.
• When an individual disagrees with their award review, they will have access to Short-term Assistance during the re-determination and appeals process. This is non-recoverable and will mitigate a drop in the level of household income while reducing anxiety for those seeking administrative justice.

The Scottish Government is aware that groups who share protected characteristics may face difficulties in accessing or understanding their entitlements due to language or other communication barriers. Scottish Ministers are committed to mitigating these barriers both within Social Security Scotland and by ensuring that the independent advocacy service will be available to signpost people to third sector organisations where necessary. Interpreter services and assistance to complete application forms will be available.

The Act and the Charter recognise that social security is a human right, which informs all of the Scottish Government’s work. The creation of a social security charter acts as a bridge between the principles in the Act and everyday delivery of social security in Scotland to improve the experience of individuals. In this way the Scottish Government will invest in the people of Scotland, making a positive difference to the lives of all.

Name and job title of Policy Lead:

Joseph Scullion

Disability Benefits Policy Officer

Social Security Policy Division

Name and job title of a Deputy Director or equivalent:

Ian Davidson

Deputy Director

Social Security Policy Division

Date this version authorised:

7 August 2023