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

Policy Background

9. The 2018 Act 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, including Disability Living Allowance for Children, Personal Independence Payment and Attendance Allowance was transferred to Scottish Ministers.

10. 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 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 Attendance Allowance with Pension Age Disability Payment. This was formerly known as Disability Assistance for Older People.

11. The draft Disability Assistance for Older People (Scotland) Regulations 2024 set out the eligiblity criteria and how Social Security Scotland will deliver Pension Age Disability Payment, the replacement for Attendance Allowance in Scotland.

12. Pension Age Disability Payment will be delivered by Social Security Scotland on behalf of Scottish Ministers. People will be able to challenge a 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.

13. The regulations also make provision for the transfer of awards for individuals in Scotland who currently receive Attendance Allowance from the Department for Work and Pensions. This process is referred to as “case transfer”. These provisions are not currently included within the full draft regulations, however they will be added in due course.

14. Based on information from the Department for Work and Pensions’ Stat-Xplore service, there were around 144,000 individuals in August 2022 with an entitlement to Attendance Allowance in Scotland whose awards would transfer to Pension Age Disability Payment.^[5]

15. As part of the Scottish Government’s commitment to a safe and secure transfer, Scottish Ministers do not propose to make significant changes to the existing Attendance Allowance eligibility criteria for Pension Age Disability Payment.

16. Significant changes to the eligibility criteria from that of Attendance Allowance 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.

17. Eligibility to Attendance Allowance currently provides individuals with entitlement to various UK Government 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.

18. This would specifically impact on people who rely on additional means of support such as the Severe Disability premium of Pension Credit which an award of Attendance Allowance may entitle them to.

19. 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.

20. 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 Pension Age Disability Payment is rolled out.

21. However, there are some key changes along with a number of practical administrative differences between Pension Age Disability Payment and Attendance 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.^[6]

22. 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.

23. The Scottish Government has made changes to the application process for all forms of disability assistance, including Pension Age Disability Payment, which will help to reduce stress and anxiety for individuals. People interacting with Social Security Scotland will require options and choices that suit them best. Social Security Scotland offers a multi-channel approach including online, telephone, paper-based and face-to-face applications. As well as offering choices, this ensures that those who cannot or choose not to adopt digital methods will not become isolated.

24. 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 application forms and take forward any follow-up actions relating to a person’s application.

25. It is considered that this support will be of particular benefit to older people applying for Pension Age Disability Payment, as many older people may find completing application forms overwhelming and might not have access to a support network to assist them.

26. The Scottish Government also launched the Social Security Independent Advocacy Service in January 2022, and has committed to investing £20.4 million in the service over the following four years. The service is free and supports people who self-identify as a disabled person to access and apply for Social Security Scotland assistance.

27. 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 entitlement to Pension Age Disability Payment.

28. 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.

29. 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.

30. Applications will be fast tracked from people with a terminal illness. Individuals who are terminally ill will automatically receive the highest rate of Pension Age Disability Payment and there will be no award reviews.

31. The Scottish Government’s new definition of terminal illness will apply to Pension Age Disability Payment. The Scottish Government’s definition 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 Pension Age Disability Payment will be made by clinicians, based on guidance prepared by the Chief Medical Officer.^[7]

32. For many people in the current system, the award end date for disability benefits can be extremely stressful, particularly for individuals whose conditions are unlikely to change over time and who are consequently subject to unnecessary reviews of entitlement.

33. Providing ongoing awards that are subject to light-touch reviews will help to reduce the stress and anxiety associated with approaching an award review by removing a financial cliff edge for individuals. This is a change from the ‘renewal’ process for Attendance Allowance, whereby an individual has to complete a new application form and will see payments stop if they do not reapply in time. By continuing entitlement while a review is taking place, disabled people will continue to receive the assistance they are entitled to until a Case Manager has made a new determination.

34. Light-touch reviews will make the process easier and less stressful for individuals. This means that Case Managers are able to, if needed, gather supporting information for the person whose award is being reviewed and consider existing information and previous determinations to avoid asking unnecessary questions.

35. Case Managers will be empowered to make a determination without supporting information if this information is unavailable during a review, and request case discussions with practitioners to further reduce the need for intrusive questions. Having a light-touch review process is more appropriate, particularly where an individual’s needs are unlikely to have changed significantly. 66% of respondents to the Consultation on Disability Assistance agreed with this approach alongside general agreement from Experience Panels. ^[8],[9]

36. Additionally, when asked if review periods should be between 5-10 years for individuals with conditions unlikely to change, 58% of respondents to the consultation agreed. This will help to cut down on the number of unnecessary award reviews that disabled people will need to go through, and as a result, reduce stress and anxiety, thereby having a positive impact on individuals. Work is also underway to consider in more detail whether and in what circumstances indefinite awards should be made available to people whose needs are highly unlikely to change.

37. 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, 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 month time limit that is set for requesting a mandatory reconsideration by the Department for Work and Pensions.^[10] This will provide individuals with additional time to seek advice or gather supporting information which might be required before requesting a re-determination.

38. 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.

39. In the Consultation on Disability Assistance, it was proposed that Social Security Scotland be allowed 40-60 days to carry out a re-determination. 60% of respondents to the Consultation on Disability Assistance agreed with this proposed approach. However, some stakeholders felt that this was an excessive period for someone to be left without clarity over their award level or eligibility.

40. Given the concerns raised in the consultation, and subsequent stakeholder engagement, the Scottish Government has settled on the timescale for Social Security Scotland to undertake a re-determination at a maximum of 56 calendar days. It may be necessary to gather supporting information on behalf of the individual, and this information may take some time to obtain.

41. This will be beneficial as it will ensure that disabled people and their families or carers will have certainty about how long Social Security Scotland has to complete a re-determination. Similarly, by enabling individuals to appeal directly to the First-tier Tribunal, should Social Security Scotland be unable to complete the re-determination process within the prescribed timescale, this will further reduce any uncertainty and make people feel more confident in challenging a determination they do not agree with.

42. 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 Pension Age Disability Payment.

43. The intention of Short-term Assistance is to ensure an individual is 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.

44. The policy position for Pension Age Disability Payment 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;
• We live in communities that are inclusive, empowered, resilient and safe.

45. This impact assessment is one of a package to accompany the regulations. The others are: Equality Impact Assessment; Fairer Scotland Duty Assessment and the Business and Regulatory Impact Assessment.