Disability Assistance for Working Age People (Scotland) Regulations: equalities impact assessment (EQIA)

Background

As part of the Scottish Government's long-standing commitment to a safe and secure transition, we do not propose to make significant changes to the existing Personal Independence Payment eligibility criteria for Adult Disability Payment. Social Security Scotland must commence delivering Adult Disability Payment before wider changes are made, to enable full consideration of the impact of any possible changes to eligibility criteria and to ensure that any such changes do not inadvertently disentitle clients who are currently in receipt of an award or other benefits delivered by DWP. We must ensure that people's payments are protected during this transition period.

However, there are several differences between Adult Disability Payment and Personal Independence Payment which we expect to have a positive impact on disabled people in Scotland. We also plan to establish a group to undertake a review of Adult Disability Payment to commence in summer 2023. The review will allow consideration of the suitability all of the activities, descriptors and supporting criteria while not jeopardising the safe and secure transition.

Removal of face-to-face assessments

We have previously committed to reducing the number of face-to-face assessments that will be carried out by Social Security Scotland. We are doing this by improving the process of gathering supporting information and decision making. Face-to face assessments will be replaced with client consultations. Clients will only be invited to participate in a consultation if it is the only practicable way to gather information about their needs.

Before inviting a client to a consultation, case managers within Social Security Scotland will work with clients to gather supporting information, including doing so on their behalf, with the client's consent. Case managers will seek only one source of formal supporting information (for example provided by a GP, social worker, nurse or support worker). They will also use informal sources of information, such as from carers or family members, who are able to give an accurate account of the needs of the client. This way, we will help to ensure that people are not disadvantaged by a lack of formal supporting information. It is only when there is no other way to gather sufficient information about the needs of a client that they will be invited to attend a consultation. This will help to ensure that individuals are not invited to attend a consultation unnecessarily which will reduce potential stress and anxiety.

Social Security Scotland Practitioners

A key theme throughout our consultation on Adult Disability Payment and engagement with our Experience Panels was that there was no trust in the assessment process, assessors or the contractors that are responsible for carrying out assessments. It was generally felt that more knowledgeable assessors would lead to more accurate reports, higher quality assessments and fairer outcomes for clients.

Consultations will be carried out by health and social care practitioners employed by Social Security Scotland who will be suitably qualified to do so as required by the 2018 Act. Practitioners will have experience in the provision of health and social care and be able to evidence experience working in a relevant role for at least two years. A proportion of practitioners will also have particular experience in mental health and learning disabilities as recommended by the Disability and Carers Benefits Expert Advisory Group.

This is particularly important given that, according to Department for Work and Pensions data, a large proportion of clients, some 108,081 in Scotland, have mental health conditions such as anxiety or depression, or global learning disabilities and difficulties. We have listened to feedback from individuals who report their mental health condition not being properly taken into account during an assessment because the assessor did not appear to have a sufficient understanding of mental health. People have also shared their experiences of assessors displaying a lack of empathy for a mental health condition or learning disability.

Suitably qualified practitioners will help address the negative impact on individuals that experiences such as these have. They will ensure that, when a client is invited to attend a consultation, they are able to engage in the discussion with someone who has an appropriate understanding of their disability or health condition.

The consultation process

A significant change we are making is to take a multi-channel approach to how consultations take place, such as by phone or video call, removing the need for clients to travel to unfamiliar assessment centres in the majority of cases. While we expect it will be helpful for many clients, we understand that a telephone consultation will not be the best option for everyone and we know that clients have valid concerns over the way telephone assessments have been carried out by Department for Work and Pensions in recent months because of COVID-19.

Where a client is not able to express themselves over the phone or is uncomfortable doing so, we will work with the client to find alternative ways of carrying out a consultation. Clients will also be able to request a face to face consultation if they feel it is the best way of articulating the impact of their condition or disability. Social Security Scotland will continue to provide in-person consultations when required to meet a client's access needs, either by a practitioner attending the client's home, or at a local partnership location, such as a GP surgery.

Social Security Scotland will discuss with clients invited for a consultation the most suitable way for it to be carried out, to ensure their particular needs are met. This will help to address some of the difficulties outlined by our Experience Panels members who highlighted how difficult traveling to a Department for Work and Pensions face-to-face assessment could be, particularly if they had to travel a large distance or had a disability which made attending a Department for Work and Pensions assessment difficult or impossible which, consequently, made an already stressful experience worse.

A telephone consultation carried out by a practitioner from Social Security Scotland will be substantially different from Department for Work and Pensions telephone assessments. For example, clients will not face the same pressures to explain or 'prove' their disability or condition, as exemplified by our commitment to abolish functional examinations which is further explained below.

In the current system, PIP assessments last for a standard amount of time. Assessors are given one hour to complete an assessment regardless of how much time may be required. Individuals have reported both feeling rushed and not being properly listened to during a PIP assessment. During our public consultation, we heard how individuals have been asked questions repeatedly or have been asked questions that seemingly bear little relevance to their health condition or disability. Where a client participates in a consultation for Adult Disability Payment, they will be given a bespoke appointment duration based on the needs identified by the case manager. Social Security Scotland practitioners will be given the time they need to fully understand the impact of a client's condition or disability.

We will also audio record consultations as standard to promote transparency and trust in the process. The proposal to record consultations was approved of by 72% of participants in our Experience Panels. When asked why, many cited the lack of trust in the Department for Work and Pensions assessment process. A large majority of respondents to our Consultation on Disability Assistance were also in favour of consultations being recorded.

Recording consultations will help to improve trust in our system by ensuring that decision making is transparent. Having a record of what was said during the consultation was seen as beneficial for individuals by Experience Panel participants as it allows individuals whose disability or health condition has an effect on their memory to have a record of what was said. We also recognise that some people may not wish for their consultation to be recorded. Individuals will be able to opt out should this be the case.

Informal observations

We are also changing how informal observations will be handled during consultations. The consultation on Adult Disability Payment and engagement with our Experience Panels highlighted that, while many found the assessment better than they expected, this changed when they received a copy of the report. This is because they felt assessors had not accurately reported the conversation or felt that the observations they had made were inaccurate. They were also not given a chance to contest these observations. Respondents to our 2019 Consultation on Disability Assistance went on to say that informal observations could be 'inappropriate' for certain conditions such as autism or mental health conditions. Concerns have also been raised about how assessment of mobility is informed by informal observations. and around whether PIP assessors take into account the impact of fluctuating conditions.

Consideration of responses and advice from the Disability and Carer Benefits Expert Advisory Group has informed our approach to informal observations. Firstly, practitioners will be provided with specific guidance, training and resources regarding informal observations. Clients must also be made aware of what informal observations are, why they are being made, and the impact they will have. All informal observations will also be made known to the client so that they have the opportunity to respond. This will be beneficial as it will allow us to be as transparent as possible during the consultation process by ensuring that clients are aware of what is going on and reduce the likelihood of practitioners making inaccurate assumptions.

Removal of functional examinations

There are many reasons for our decision to not carry out functional examinations during a consultation. Firstly, Adult Disability Payment supports disabled people or those with long term health conditions that can vary over days, weeks or months, while an examination can only offer a view at a single point in time. Obtaining an informed understanding of the impact of a condition or disability on a client will always involve several sources of information. The additional value of an examination will, for many people such as those living with Multiple sclerosis or epilepsy for example, not provide an accurate reflection of their potential level of need. There are other ways of understanding the nature of a client's needs such as confirmation of a diagnosis or the level of support they require.

Where the client has provided information in the course of a discussion, we believe it is undignified to then ask the client to prove a lack of function through a test. In the Scottish Government system, the consultation will allow the time needed for a client to give the additional information required. Practitioners will come from a position of trust in the client when discussing how the client's health conditions or disability affect their daily life.

We will also not carry out any examinations to determine needs related to mental health such as the Mental State Examinations carried out by the Department for Work and Pensions. We are aware that, during a PIP assessment, a significant amount of weighting is placed on the Mental State Examination. This provides a snapshot of findings which does not take account of the variable nature of many clients' experience of their mental health condition.

There are also many conditions which do not have associated functional examinations within the Personal Independence Payment assessment. These include epilepsy, any conditions affecting internal organs such as Crohn's Disease, heart failure, kidney failure, tinnitus, cluster headaches, and cystic fibrosis. Removing the functional examinations from our consultations will promote a consistent service where no client is disproportionally scrutinised simply because they have a disability which is easier to examine than others. This consistency will contribute to our commitment that clients with varying disabilities or health conditions will be treated equally.

The consultation will be an objective discussion between a client and a practitioner, based on a position of trust. A case manager may not require information about every descriptor and will indicate to the practitioner which descriptors they are unclear on so the practitioner will not ask unnecessary questions by rote. This will lessen the likelihood of clients feeling as if the consultation is designed to "catch them out" and further help to reduce stress and anxiety.

Our new definition of terminal illness

As of July 2020, there were 3,134 individuals in Scotland accessing Personal Independence Payment under Special Rules for Terminal Illness.

It is anticipated that the new definition of terminal illness will support recognition of a wider number of illnesses and conditions than can be accounted for under the current definition in the reserved system. Engagement with stakeholders has indicated that this is because the current time limited definition of terminal illness is able to recognise individuals with malignant illnesses or neoplasms (cancers) at the end of life, but is weaker in recognising individuals with other degenerative conditions, as it can be harder to predict length of life for these illnesses. In these circumstances, individuals with such conditions do not meet the definition of terminal illness in the reserved system.

We can see this comparing cause of death among adults in Scotland from 2018. From the Department for Work and Pensions data available, around 80% of individuals applying for Personal Independence Payment who have a terminal illness in 2018 in Scotland identified their main disabling condition as malignant diseases. However, when we compare this with deaths in Scotland that could be due to terminal illness (i.e. excluding accidental and intentional deaths), malignant illnesses only accounted for around 40% of deaths of working age people. These figures indicate that it is reasonable to deduce that a much smaller percentage of people with a non-malignant terminal illness are currently accessing reserved disability benefits through special rules than those with malignant diseases.

Our new definition will allow medical professionals, including registered nurses, to use their clinical judgement when determining whether an individual has a condition which can reasonably be expected to result in their death. This means that individuals who would otherwise not be entitled to Adult Disability Payment through Special Rules Terminal Illness will be able to do so under our new definition, thereby having a positive impact on the protected characteristic of disabled people in Scotland.

We have designed our case transfer process to ensure that those who meet the special rules for terminal illness are able to avail themselves of our new approach even where they have an ongoing award of Personal Independence Payment. Where someone in receipt of Personal Independence Payment receives a clinical judgement as described above, their case will be selected for an accelerated transfer process, meaning their award for Adult Disability Payment will be made faster than in other cases. This will ensure clients are not disadvantaged by having to wait for their case transfer process to finish.

Award duration and reviews

Between June 2016 and July 2020, 17% of awards reviewed led to increases, 15% to decreases, 44% remained the same, and 24% were disallowed. This does not include instances where a client has requested a mandatory reconsideration or appealed a decision. Including all instances of mandatory reconsiderations (involving reviews, change of circumstances, new applications and reassessments from Disability Living Allowance), it is estimated that mandatory reconsiderations take place in a fifth of cases in Scotland. Around 10% of the aforementioned appealable decisions result in appeals. United Kingdom-wide, 76% of appeals received a decision in favour of the client in 19-20.

We know that, for many people in the current system, the end of their award 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 reassessments of entitlement.

Making awards rolling, subject to reviews, will help to reduce stress and anxiety associated with coming to the end of entitlement to assistance by removing the perception of reaching a financial cliff edge. By continuing entitlement while a review is taking place, we will ensure that disabled individuals continue to receive the assistance they are entitled to until a case manager has made a new determination.

The process for reviewing awards will be light-touch, providing a balance between respecting the needs of the individual and robust decision-making. Having a light-touch review process is more appropriate, particularly where a client's needs are unlikely to have changed significantly. 66% of respondents to our Consultation on Disability Assistance agreed with this approach alongside general agreement from our Experience Panels.

Additionally, when asked if awards 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 reviews of awards disabled people will need to go through and as a result, the stress and anxiety, thereby having a positive impact on individuals who fall under this protected characteristic.

For clients who are awarded Adult Disability Payment under terminal illness rules there will be no award review. This removes any stress or anxiety of an approaching review for this vulnerable group.

Our case transfer process will aim to align a client's initial Adult Disability Payment review process with the timeframes their Personal Independence Payment award would have been reviewed as far as possible. This will ensure continuity of client experience and allow their future review date to be set in line with the principles discussed above.

Re-determinations and appeals

We want to ensure that no one is disadvantaged by time limits for challenging a decision. In response to the feedback from the Disability Assistance consultation and our Experience Panels, we have extended the time limit for requesting a re-determination to 42 calendar days. This will provide individuals with additional time to seek advice or gather supporting information which might be required before requesting a re-determination. A majority of respondents (77%) to our consultation on Adult Disability Payment agreed with this approach This is likely to be particularly beneficial for disabled people who live in remote or rural areas which make gathering such advice and information more difficult.

We proposed to give Social Security Scotland 40-60 days to reconsider a decision, as it may be necessary to collect supporting information on behalf of the individual, and this information may take some time to obtain. A majority (60%) 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.

In response to feedback from our Consultation on Disability Assistance in Scotland^[1] and commentary from our Experience Panels and from DACBEAG, we have extended the time from 31 to 42 calendar days for individuals to request a re-determination (in exceptional circumstances, this can be extended up to a maximum of one year).

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 timescale, this will further reduce any uncertainty and, consequently, make people feel more confident in challenging a decision they do not agree with.

During this time, individuals will continue to be entitled to the new rate of Adult Disability Payment, where an award has been made. This will help to alleviate some of the worry expressed by participants in our Experience Panels who raised the point that challenging a decision can have a financial impact, particularly in cases where mandatory reconsiderations in the current system have taken a long time.

Short-Term assistance

The Scottish Government has introduced Short-Term Assistance (STA) where Social Security Scotland has made a decision to reduce or stop a continuing payment of CDP, and that decision is subject to a request for re-determination or an appeal. The intention is to ensure an individual is not discouraged from challenging that decision or from accessing administrative justice by having to manage, for a period, with a reduced income.

STA is not available in the reserved social security system and providing support in this way is another example of where Scottish Ministers are removing barriers to challenging decisions in the Scottish social security system.

STA will be available until the First-tier Tribunal for Scotland has made a determination, and is non-recoverable except in cases of fraud or error. Where a person is eligible for STA, the value of STA will be the difference between the level of assistance paid prior to the reduction and the new level of assistance (including if that amount is now nil because entitlement to CDP has stopped).

This policy will help deliver numerous Social Security Outcomes, it 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; and
• We grow up loved, safe and respected so that we realise our full potential.

During the Parliamentary passage of the Social Security (Scotland) Act 2018, the inclusion of STA was welcomed by stakeholders and supported by Parliament. When asked for views on STA in the Consultation on Disability Assistance in Scotland, respondents were overall in favour of our proposals with some concerns raised that, originally, Short Term Assistance was not intended to be available for individuals residing outside of Scotland. This has since been changed, allowing individuals living outside of the United Kingdom to apply for STA if they are in receipt of a qualifying benefit such as Adult Disability Payment. We recognise the complexities involved in this and will carry out further work to understand the impacts.

Our proposal that Short Term Assistance should not be recoverable (except in cases of fraud or error) was also met with approval (87%). This will ensure that, should a re-determination or appeal be unsuccessful, there will not be any overpayments that individuals will need to worry about repaying. This will help to prevent a further reduction in household income should the re-determination or appeal be unsuccessful, something which was stressed by respondents.

Scope of STA

We recognise that some people think that STA should be extended so that it is available to clients moving between Child Disability Payment and Adult Disability Payment. The Scottish Government recognises the vital importance of supporting young people who are transitioning between different forms of assistance. We are taking a number of actions to ensure that this process is less burdensome and more seamless the under the current system.

Extending the scope of STA, to make it available to people moving between Child Disability Payment and Adult Disability Payment, would represent a significant departure from the policy intent behind Short-term Assistance. STA is designed to support clients in challenging a decision and accessing their rights under the 2018 Act. It is intended to minimise injustice in the system where a decision has been made reduce or remove an individual's entitlement to a particular type of assistance. Child Disability Payment and Adult Disability Payment however are separate forms of assistance with different eligibility criteria. STA is not designed to be a 'bridge payment' between two forms of assistance. Extending the scope of STA in this way would represent a significant departure from the current policy intent of STA in requiring it to be paid on the basis of an award a client is potentially no longer eligible for. Continuing to pay a client's previous award during the re-determination relies on a client having a previous award for a particular form of assistance that has been reduced or stopped. A client who has applied to Adult Disability Payment for the first time who wished to challenge a determination, having previously been in receipt of another form of assistance with a different eligibility criteria, is therefore not the same as a client already in receipt of Adult Disability Payment who wished to challenge a determination following a review. Therefore, it is our view that Short-term Assistance should only be paid during a re-determination or appeal on an existing award.

Passported entitlements

PIP eligibility currently provides clients with entitlement to various reserved benefits and premiums, usually referred to as 'passporting'. Throughout the consultation on Adult Disability Payment, we consistently heard how people's main concern was about having to submit a new application to receive Adult Disability Payment or to maintain other support they are entitled to as a result of their current PIP award. An additional decision process would require clients to re-apply for reserved entitlements with no guarantee that they would be successful. This would specifically impact on clients who rely on additional means of support such as Housing Benefit, Job Seeker's Allowance, Income Support and Working Tax Credit which any award of PIP entitles them to. Such clients may experience a period without the financial support they rely on or risk losing the support altogether. Clients entitled to the daily living component of PIP (around 95% of the caseload) are entitled to further reserved payments such as a top up of Employment and Support Allowance and Pension Credit.

A key purpose of Adult Disability Payment must therefore be to continue this passporting to additional forms of assistance, including reserved payments. Considerable analysis and consultation has been undertaken to test and fully understand the limits of passporting. We require agreement from DWP to treat Adult Disability Payment in the same way as PIP to enable clients to automatically access additional reserved payments without any further decision-making process. In order for that to happen, it is generally accepted that this requires PIP eligibility criteria to be broadly replicated for Adult Disability Payment.

As currently drafted the Adult Disability Payment regulations have been agreed with DWP as an acceptable basis for an interim arrangement on Adult Disability Payment passporting. The Scottish Government is working with DWP to secure future agreement on passported entitlements that allow for divergence between PIP and Adult Disability Payment. Whilst the passporting of benefit entitlement is not the sole reason for our approach to safe and secure transfer, we recognise that these entitlements are crucial to disabled people in Scotland.