Draft Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023: draft fairer Scotland duty impact assessment

Draft Fairer Scotland Duty Impact Assessment

Title of Policy, Strategy, Programme etc

Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023

Summary of aims and expected outcomes of strategy, proposal, programme or policy

The Social Security (Scotland) Act 2018 (the 2018 Act) sets out the broad framework for the delivery of social security in Scotland. Child Disability Payment was the first of three types of disability assistance to be introduced by the Scottish Government and launched nationally on 22 November 2021. It is available to children and young people from the ages of 3 months to 18 years old who have care and/or mobility needs as a result of a disability.

Adult Disability Payment was also introduced by the Scottish Government on 29 August 2022. This form of assistance provides disabled individuals with support for extra costs incurred as a result of disability. Both Child Disability Payment and Adult Disability Payment have been co-designed with stakeholders and disabled people to ensure that the values of dignity, fairness and respect are embedded throughout.

In addition to supporting new applications, Scottish Ministers have made provision for the transfer of responsibility for delivering disability benefits for individuals who receive Personal Independence Payment and Disability Living Allowance for Children from the Department for Work and Pensions to Social Security Scotland. They are also responsible for changing the disability benefits for these individuals from Personal Independence to Adult Disability Payment and Disability Living Allowance for Children to Child Disability Payment. We refer to this process as "case transfer".

The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 make amendments to the following sets of principal Regulations for Child Disability Payment and Adult Disability Payment: the Disability Assistance for Children and Young People (Scotland) Regulations 2021; the Disability Assistance for Working Age People (Scotland) Regulations 2022; and the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022. These changes to the principal regulations are intended to smooth the transition for individuals moving between these benefits. In addition they include some minor technical amendments. They also make a small adjustment to the Social Security (Invalid Care Allowance) Regulations 1976 to clarify eligibility criteria for Carer's Allowance.

These changes build on the 2018 Act's framework of a system that is underpinned by dignity, respect and a human rights based approach to delivering social security for the people of Scotland. This impact assessment is one of a package to accompany the regulations. The others are: Equality Impact Assessment (EQIA), Business and Regulatory Impact Assessment (BRIA); Island Community Impact Assessment (ICIA) and the Fairer Scotland Duty Assessment.

Amending the principal regulations ensures that Child Disability Payment and Adult Disability Payment entitlement is aligned to our policy intent, which is to help improve outcomes for disabled people, by providing financial assistance to help meet the additional costs associated with care and mobility needs as a result of being disabled. To achieve this we are doing the following:

Changes to the Child Disability Payment and Adult Disability Payment Regulations which relate to the Child Disability Payment to Adult Disability Payment journey

The Scottish Government recognises the vital importance of supporting young people who are transitioning between different forms of social security assistance. We have listened to disabled people and people with long-term health conditions with experience of the social security system who told us that transitioning between child and adult services can be challenging.

We have already taken a number of actions to ensure that this process is less burdensome and more seamless than under the UK system, such as extending eligibility to 18 for those individuals in receipt of Child Disability Payment before the age of 16 to ensure continuity for young people at what we have been told is a difficult transition period for them. We have also provided individuals with the choice to make an application in many different ways including by post, online, by phone and with face-to-face support from our Local Delivery team.

We consider that the amendments we are making to the principal regulations for Child Disability Payment and Adult Disability Payment will have a positive impact on individuals with protected characteristics as they intend to smooth the journey of those individuals transitioning from Child Disability Payment to Adult Disability Payment.

One way we are doing this is by amending the Adult Disability Payment Regulations to enable the payment cycles of people moving from Child Disability Payment to Adult Disability Payment to be maintained. This will ensure that young people who are transitioning from Child Disability Payment to Adult Disability Payment will receive their Adult Disability Payment on the same date that their Child Disability Payment was previously paid.

The move to align the payment cycles of people moving from Child Disability Payment to Adult Disability Payment will offer advantages for smooth processing. It will avoid the need for Child Disability Payment to end with a smaller payment covering part of a payment cycle, and therefore offers an administrative advantage. At the moment, this group of young people are entitled to Adult Disability Payment from the date that a determination of entitlement for Adult Disability Payment is made, meaning that they receive their Adult Disability Payment later than those who were not in receipt of Child Disability Payment before becoming entitled to Adult Disability Payment. We are altering the start date of entitlement for Adult Disability Payment so that it begins on the day after the individual's next Child Disability Payment payment cycle ends, following the determination. Consequently, we are making a small amendment to the Child Disability Payment Regulations to bring entitlement to an end when someone has received a determination that they will be entitled to Adult Disability Payment.

Importantly, this change does not negatively impact on the overall amount a person will receive. This change will therefore directly benefit disabled young people moving from Child Disability Payment to Adult Disability Payment as it will provide them with financial continuity and ease their transition from one form of assistance to another.

There is provision in the Child Disability Payment Regulations to extend entitlement to Child Disability Payment to age 19 for those transferring from Disability Living Allowance to Child Disability Payment and those who have made a cross border move to Scotland from elsewhere in the United Kingdom who were also included in the case transfer process. This was included to provide case transfer individuals, approaching 18 at the time of transfer, sufficient time to make their Adult Disability Payment application before their Child Disability Payment comes to an end. We are now at a place in the case transfer process where all young people over age 16 have now transferred to Child Disability Payment and are receiving the appropriate communications about making an application for Adult Disability Payment. This means it is now appropriate to narrow this provision. As such, we are amending this provision to apply only to those who turn 18 on or before 31^st December 2023. This will ensure that this policy has the desired impact which is to protect those young people transitioning from Child Disability Payment to Adult Disability Payment as they approach 18. It also means that going forwards, regardless of whether an individual was originally in receipt of Disability Living Allowance or not, the same rules, regarding entitlement to Child Disability Payment over the age of 18, apply.

Other Amendments to the Child Disability Payment, Adult Disability Payment and Adult Disability Payment Transitional Provisions Regulations

These amendments also include a set of minor technical amendments to the Child Disability Payment, Adult Disability Payment and Adult Disability Payment transitional provisions Regulations. As such, we do not consider that they will have a significant impact on groups of people or communities but we have noted any potential impacts that have arisen as part of this impact assessment.

We are amending the Child Disability Payment and Adult Disability Payment Regulations to make explicit that the care/daily living component of Adult Disability Payment/Child Disability Payment is restricted to individuals for whom the United Kingdom is the correct state for paying these components. We are aware that the residence criteria is more likely to impact individuals who regularly move between Scotland and the rest of the UK but there is insufficient data available to determine the level of this potential impact.

The Child Disability Payment and Adult Disability Payment Regulations are also being amended to make provision to state that, where a Determination Without Application is made on an individual's entitlement to Adult Disability Payment when Scottish Ministers become aware that the individual has died, their entitlement will end on the day the person dies. This has always been the policy intention but this additional clarification ensures this is put beyond doubt. We are also clarifying Regulation 34(b) of the Child Disability Payment Regulations by inserting the word 'Payment' after 'Child Disability' as this is currently missing.

The Adult Disability Payment and Adult Disability Payment transitional provisions Regulations are being amended to clarify who changes are reported to before the transfer determination. Further amendments to the Adult Disability Payment transitional provisions Regulations clarify when and how changes that occur after the point of transfer should affect a person's award.

These are technical amendments and we do not foresee any significant impact on groups or communities other than to clarify these provisions in terms of the Regulations.

Amendment to the Social Security (Invalid Care Allowance) Regulations 1976

We are making amendments to the Social Security (Invalid Care Allowance) Regulations 1976 to reflect the current legal position for carers to be able to receive Carer's Allowance when abroad and caring for someone who is in receipt of Child Disability Payment or Adult Disability Payment. We consider that this will have a positive impact for disabled people given that it will ensure that carers abroad who are caring for a disabled person in receipt of Child Disability Payment or Adult Disability Payment receive the assistance they are entitled to.

We are amending the list at Regulation 9(2)(b) of the 1976 Regulations to include the care component of Child Disability Payment at the middle or highest rate and the daily living component of Adult Disability Payment at the standard or enhanced rate.

This will ensure carers providing care to someone in receipt of Child Disability Payment or Adult Disability Payment are treated consistently with those providing care to someone in receipt of Attendance Allowance, Disability Living Allowance or Personal Independence Payment.

The delivery of these amendments in Scotland is anticipated to have a broadly positive impact in contributing to a fairer Scotland. We are delivering person centred disability assistance rooted in the values of providing disabled people and their families with dignity, fairness and respect.

The amendments are 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;
• We grow up loved, safe and respected so that we realise our full potential.

Evidence

This Fairer Scotland Duty assessment has been developed drawing on a range of primary research, including 2 public consultations^[1],[2] and engagement with those with lived experience via focus groups, that informed the principal legislation we are amending.

In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. This received more than 200 responses to questions relating to disability benefits with an even split between organisational and individual responses.

There were 521 formal written responses submitted, of which 241 were from organisations and 280 from individual respondents. Of the 241 organisational responses, 81 were received from stakeholder groups relating to children/young people, equalities and human rights, disability and long term conditions, and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 May 2017^[3].

The Scottish Government has set up Social Security Experience Panels with over 2,400 people across Scotland registered as panel members when the Panels opened in 2017. The Panels involve people with lived experience of the benefits that have been introduced in Scotland.

Two surveys regarding the case transfer process were sent out to Experience Panel members in January and February 2019. 404 and 559 responses were received respectively. A series of individual and group interviews were also conducted. Results from both surveys and the interviews were published in 2019.^[4] These surveys confirmed that of most importance to panel members was that they continue to receive the correct payment at the correct time. The changes we are making in relation to smoothing the journey for individuals moving from Child Disability Payment to Adult Disability Payment mean that the payment cycles for these individuals will be maintained and they will receive their Adult Disability Payment on the same date their Child Disability Payment was previously paid.

The Consultation on Disability Assistance built on the work on the Experience Panels and was published on 5 March 2019. In line with the principles of dignity, fairness and respect, the Scottish Government sought the views of the people of Scotland on the three proposed disability assistance benefits. The consultation closed on 28 May 2019, having received 262 replies, of which 74 were from stakeholder organisations and 188 were from individuals. The consultation helped to inform the development of the principal regulations for Child Disability Payment and Adult Disability Payment, taking into account the views of people with a lived experience of social security.

The Scottish Government has also undertaken ongoing consultation with stakeholders through our independent Disability and Carers Benefits Expert Advisory Group (DACBEAG). DACBEAG is chaired by Dr Jim McCormick and comprises individuals with significant practical experience of the social security system, from a range of professional backgrounds. It is independent of the Scottish Government. The Group's role is to advise Scottish Ministers on specific policy options for disability assistance and carers benefits due to be delivered in Scotland. 's advice helped to inform the development of Adult Disability Payment policy and the principal regulations that we are amending and considering the impact of these amendments on contributing to a fairer Scotland.

The Ill Health and Disability Benefits Stakeholder Reference Group was set up in March 2016 to inform and influence the development of policy options relating to devolved Disability Assistance. This group has advised on the potential impact of policy decisions as well as stakeholder engagement. They mostly advise on the impact of policy decisions on disabled people and the social security system as a whole.

On 21 December 2020, the Scottish Government launched a public consultation on its proposals for the delivery of Adult Disability Payment and on drafts of the accompanying impact assessments. The consultation ran until 15 March 2021 and received 127 responses from individuals and stakeholder organisations. The consultation wanted to gather views to ensure that the proposals were aligned with the principles of dignity, fairness and respect. These amendments are also intended to align with these principles and the overall policy intent which is to improve outcomes for disabled people and part of ensuring this is by considering the impacts of these proposals on contributing to a fairer Scotland.

Overall these consultations and advice from stakeholder groups helped to inform the principal regulations for Child Disability Payment and Adult Disability Payment which we are amending as part of these regulations. We are doing this to ensure that the journey of individuals moving between these forms of assistance is as smooth as possible. As part of the development of these amendments we have considered the current impact of these regulations on the Child Disability Payment to Adult Disability Payment journey and the potential impacts of the amendments we propose to smooth this transition which are detailed below.

Research

Poverty in children and young people

It is estimated that 24% of children^[5] (240,000 children each year) were living in relative poverty after housing costs in 2017-20. Before housing costs, it is estimated that 21% of children (210,000 children each year) were in relative poverty^[6]. Children in this context refers to 'dependent children'; a dependent child is a person either aged 0-15, or aged 16-19 and: not married nor in a Civil Partnership nor living with a partner, and living with their parents, and in full-time non-advanced education or in unwaged government training.

It is estimated that in 2017-20, 68% of children in relative poverty after housing costs (160,000 children each year) were living in working households.

Between 2018 and 2020, 30% of households in Scotland were financially vulnerable^[7]. A household is 'financially vulnerable' if there are not enough savings to cover less than one month of income at the poverty line. These costs include average costs of rent, food and fuel, such as gas and electricity. The groups of households that are most likely to be financially vulnerable (workless, young, with children, lone parents) are often small, so the bulk of financially vulnerable households is made up of households with different characteristics.

Households with disabled household members were more likely to be financially vulnerable compared to those with no disabled household members. 40% of households with disabled members were financially vulnerable in 2018-2020, compared to 25% of households with no disabled members.

It was also found that households with children were more likely to be financially vulnerable compared to those without. 37% of households with dependent children were financially vulnerable in 2018-2020, compared to 28% of households without any dependent children.

The significance of the poverty rate is key as the longer that children experience poverty, the greater the damage to their health, wellbeing and life chances. From birth, without support, children living in poverty are twice as likely to fall behind their peers in all aspects of their development.

Whilst minority ethnic households are similarly likely to be financially vulnerable compared to white British households, the Scottish Equal Opportunities Committee found that minority ethnic adults were, on average, more likely to be unemployed or in low-paid work than white adults, despite their overall better academic performance.^[8] This is significant as households with an inactive (but not retired) or unemployed household head were twice as likely to be financially vulnerable compared to households with an employed household head. 67% of households with an inactive/unemployed head were financially vulnerable in 2018-2020, compared to only 32% of households with an employed head.

The link between poverty and disability

Research has shown that poverty disproportionately affects those with a disability, with disabled people experiencing higher poverty rates than the rest of the population.^[9]

Scotland-wide, there are higher levels of child material deprivation in households which include a disabled person, at 20% compared to households without a disabled person (at 8%).^[10] There are higher rates of food insecurity among disabled people (18%) compared to non-disabled people (7%).^[11] There is a higher likelihood of living in relative poverty after housing costs with a disabled person in the household (23% of families with a disabled person compared to 17% of families with no disabled members). If disability benefits are not counted towards household income, this raises to 29%.^[12] 'Family' in these circumstances referred to the core family in a household, comprising one or two adults and children, if any.

Disability and unemployment/under-employment are positively correlated. 14% of 'workless families' (defined as families where parents are predominately out of work or have little connection to the labour market; who live in social rented accommodation and are reliant on benefits for their income) have one or more children with a disability or long-term illness.^[13]

A further 17% of 'struggling to get by' families (unemployed or working part-time, half of which are single-parent families) have one or more children with a disability or long-term illness.

Even where one or more parent in the household is in employment, within families with a disabled child, the same level of income secures a lower standard of living than it would for a household without someone with a disability or long-term health condition. This is because disabled people face higher costs than non-disabled people, such as the cost of specialist equipment, therapies and home adaptations to manage a condition. Travel costs too, may be higher as individuals have to afford 7 the cost of taxis to and from hospital where it is not possible to use public transport (and/or public transport may not be available).

Research conducted by the Papworth Trust^[14] showed that the annual cost of bringing up a disabled child is three times greater than for a non-disabled child.

Poverty amongst disabled people is likely to be exacerbated in light of the crisis^[15]. In the United Nations policy brief on disability-inclusive response to ^[16], the report makes connections between the pandemic and poverty, with disabled people likely to be disproportionately impacted.

Cost of living

The Scottish House Condition Survey data (December 2019)^[17] indicates that around 613,000 households (24.6%) in Scotland live in fuel poverty, with 311,000 (12.4%) living in extreme fuel poverty. 16% of households in fuel poverty are families with children. This is likely to only have worsened as a result of the cost of living crisis. For example, Society Scotland says that on average, people living with the condition face additional costs of between £600 and £1,000 a month, and that people are "already having to make impossible choices"^[18]. Research from Citizens Advice Scotland also shows that disabled people are more likely to be in fuel poverty, which they say causes knock-on effects for those on prepayment meters such as not being able to keep a fridge on to store medicine.^[19]

Households with a disabled family member are disproportionately over-represented within fuel poverty statistics, with approximately 34% of fuel poor households containing someone with a disability^[20]. Fuel poverty, as defined in the Scottish Fuel Poverty Statement, is when a household has to spend more than 10% of their income on fuel costs, in order to maintain a satisfactory heating regime. The World Health Organisation () have defined this as 21^oC in the living room and 18^oC in other rooms, for 16 hours in every 24, unless the household is classified as "vulnerable", such as when at least one resident has a long term sickness or disability. In these instances, the heating regime required is 23^oC in the living room and 18^oC in other rooms, for 16 hours per day. In light of this guidance, the Scottish Fuel Poverty Definition Review Panel recommended in 2017 that for 'vulnerable households', including those of disabled people, the living room temperature recommendation should be 23^oC and other rooms 20^oC.

Unfortunately in spite of the recommendations, research shows that vulnerable households often struggle to afford adequate energy consumption to meet their needs, resulting in having to choose between 'heating or eating'.

By identifying the individuals likely to be impacted by the policy and summarising the evidence base, we are best able to make an assessment of the scale of impact this policy will have as well as helping us recognise the groups of individuals that would be most severely impacted.

Summary of assessment findings

Changes to the Child Disability Payment and Adult Disability Payment Regulations which relate to the Child Disability Payment to Adult Disability Payment journey

We consider that the following policy changes will have a positive impact on contributing to a fairer Scotland. These changes will positively impact disabled young people who are transitioning from Child Disability Payment to Adult Disability Payment.

We are amending the Adult Disability Payment Regulations to enable the payment cycles of individuals moving from Child Disability Payment to Adult Disability Payment to be maintained. This will have a positive impact on disabled young people who are transitioning from Child Disability Payment to Adult Disability Payment as it means that they will receive their Adult Disability Payment on the same date that their Child Disability Payment was previously paid. This will help young people in regard to their financial planning. Continuing to receive disability payments at the same time every month will help with managing regular costs and outgoings.

At the moment, this group of individuals are entitled to Adult Disability Payment from the date that a determination is made, meaning that they receive their Adult Disability Payment later than those who are not migrating from Child Disability Payment. We are altering the start date of entitlement for Adult Disability Payment so that it begins the day after the individual's Child Disability Payment payment cycle ends and making a small amendment to the Child Disability Payment Regulations to bring entitlement to an end in alignment with the start of Adult Disability Payment. This will directly benefit disabled young people moving from Child Disability Payment to Adult Disability Payment as it will provide them with financial continuity and ease their transition from one form of assistance to another.

There is provision in the Child Disability Payment Regulations to extend entitlement to Child Disability Payment to age 19 for those transferring from Disability Living Allowance to Child Disability Payment or those moving to Child Disability Payment following a cross border move.. This was included to provide case transfer or cross border individuals, approaching 18 at the time of transfer, sufficient time to make their Adult Disability Payment application before their Child Disability Payment comes to an end. We are now at a point in the case transfer process where we know all Disability Living Allowance for Children recipients over age 16 have been transferred, are receiving appropriate communications about making an application for Adult Disability Payment and have adequate time to submit their Adult Disability Payment application. As such, we are amending this provision to apply only to those who turn 18 on or before August 2023. We are confident this means the extension to age 19 has enabled those individuals who needed additional time to apply for Adult Disability Payment have been and will be able to do so. Following these amendments all young people who are aged 18 after 31 December 2023, regardless of whether an individual was originally in receipt of Disability Living Allowance or not, will be subject to the same rules regarding receipt of Child Disability Payment over the age of 18. They will all be eligible for Child Disability Payment to continue over age 18 (up to a maximum age of 19) if they have submitted a full application for Adult Disability Payment before they reach 18. Child Disability Payment will then continue until the earlier of the date their Adult Disability Payment commences (or if their Adult Disability Payment application is unsuccessful the date of that determination) or when they reach age 19. Going forwards there is no issue of people not having time to submit an Adult Disability Payment application; these can be made at any point from 15 years and 9 months onwards and Child Disability Payment individuals receive multiple communications regarding when they may want to make an application for Adult Disability Payment in the period between 15 years 9 months and 18 years.

We consider that these amendments will positively impact disabled people transitioning from Child Disability Payment to Adult Disability Payment as it will ensure that they will have continuity in the timing of their payments.

Other amendments to Child Disability Payment, Adult Disability Payment , and transitional provisions regulations – these are minor technical changes

We are amending the Child Disability Payment and Adult Disability Payment Regulations to make explicit that the care/daily living component of Adult Disability Payment / Child Disability Payment is restricted to individuals for whom the United Kingdom is the correct state for paying these components. This restates and clarifies the existing legal position, and as such is expected to have no impact.

We are amending the Child Disability Payment and Adult Disability Payment Regulations to clarify the provision , for cases where a Determination Without Application is made on an individual's entitlement to Adult Disability Payment when Scottish Ministers become aware that the individual has died, their entitlement will end on the day the person dies.

We are also clarifying Regulation 34(b) of the Child Disability Payment Regulations by inserting the word 'Payment' after 'Child Disability' as this is currently missing.

The Adult Disability Payment and Adult Disability Payment transitional provisions Regulations are being amended to clarify who changes are reported to before the transfer determination. Further amendments to the Adult Disability Payment transitional provisions Regulations clarify when and how changes that occur after the point of transfer should affect a person's award.

These are technical amendments and we do not consider that they will have any significant impact on individuals other than to clarify these provisions in terms of the Regulations.

Amendments to the Social Security (Invalid Care Allowance) Regulations 1976

We are making amendments to the Social Security (Invalid Care Allowance) Regulations 1976 to reflect the current legal position for carers to be able to receive Carer's Allowance when abroad and caring for someone who is in receipt of Child Disability Payment or Adult Disability Payment. This will ensure Carers providing care to someone in receipt of Child Disability Payment or Adult Disability Payment are treated consistently with those providing care to someone on Attendance Allowance, Disability Living Allowance or Personal Independence Payment.

There is not sufficient data available to evaluate the impact of this amendments on individuals however this is a small amendment to align with what currently happens and as such we do not predict any significant impact.

Monitoring and evaluation

The Social Security (Scotland) Act 2018 places a duty on the Scottish Ministers to report annually to the Scottish Parliament on the performance of the Scottish social security system during the previous financial year. The report is to describe what the Scottish Ministers have done in that year to meet the expectations on them set out in the charter.

We will continue to engage with relevant stakeholders and key organisations which will provide the Scottish Government with an opportunity to monitor the impact of the policy. We will also be sharing these amendments with for their scrutiny on 24 February 2023.

The Communities Analysis Division within the Scottish Government will also run a comprehensive evaluation programme to consider the impact of the changes to disability assistance in Scotland including considering the transition for those moving from Child Disability Payment to Adult Disability Payment which we have further improved by these amendments.

Recommendations and Conclusion

This Fairer Scotland Duty has identified that overall, the introduction of these Amendments has the potential to make a positive contribution to reducing inequality and tackling poverty for disabled people in Scotland, particularly on those young people moving from Child Disability Payment to Adult Disability Payment, by making this transition as smooth as possible.

By introducing these amendments, we are helping to ensure that children and young people have financial continuity with regard to timing of payments as they transition to Adult Disability Payment. This is particularly valuable at a time when young people are experiencing many other transitions which can be the source of a great deal of stress and anxiety for them and their families. This contributes to a fairer Scotland by ensuring no group is disadvantaged due to age or disability and aims to make sure we continue to provide the necessary support to disabled people when they need it.

The Scottish Government is committed to designing the devolved social security system with people in Scotland, and on-going engagement with disabled people, external stakeholders and advisory groups will ensure that the impact of the regulations remain under continuous review.

Sign off of the Fairer Scotland Assessment template

Name: Ian Davidson

Job title: Deputy Director for Social Security Policy