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

Disability

We have made many changes which we believe will have a positive impact on disabled people in Scotland.

As of July 2021, there were 292,231 people in Scotland entitled to PIP.^[9] As of the same month, 3,271 people in Scotland entitled to PIP were terminally ill.^[10] This represents around 1.1% of the total caseload in Scotland.

By the end of October 2019 more than 1.4 million Disability Living Allowance reassessment applications for Personal Independence Payment had been cleared in Great Britain with 39% (556,000) leading to award increases, 14% (200,000) remaining unchanged, and 47% leading to a reduction or disallowance (603,000). Detailed research by the Scottish Government in 2017^[11] showed that the biggest impact was felt by individuals receiving the highest rate for both care and mobility components. Between 2013 and 2016, 6,400 people lost financial support of up to £7,000 per year as a result of the transfer from Disability Living Allowance to Personal Independence Payment. Since Personal Independence Payment was introduced, figures show that 25% undergoing the transfer in Scotland have lost entitlement to disability benefits entirely according to a report published by the Scottish Government in 2020.^[12] The most recent figures from the Department for Work and Pensions estimate that, in Scotland, 22% of cases are disallowed.

New applications for Personal Independence Payment make up roughly 57% of Personal Independence Payment awards in Scotland and have a 46% success rate. These new applications make up 67% of assessments carried out in Scotland. Despite this, new applications are less likely to result in entitlement, with more than half of all applications (at the time of the report, this accounted for 160,000 cases in Scotland) being 'disallowed'. This accounted for 81% of all instances of disallowed cases in Scotland.

According to participants in our Experience Panels, the most negative part of applying for Personal Independence Payment was attending face-to-face assessments with one participant stating that it was "honestly one of the most traumatic experiences of my adult life".

For many, the experience of undergoing a face-to-face assessment was extremely stressful and anxiety inducing with some participants stating that it had an impact on their health. Additionally, when we engaged with parents to discuss their children moving from child to adult disability benefits, many told us that their teenage children refused to attend a Department for Work and Pensions face-to-face assessment entirely because of this fear and anxiety, resulting in a loss to the household income.

We have designed our case transfer process so that clients in Scotland will not have to undergo a face-to-face assessment for Personal Independence Payment after Adult Disability Payment launches nationally. We will, wherever possible, ensure that client awards are selected for transfer before any review that might result in a face-to-face assessment. This includes where a client reports a relevant change of circumstance, where their award is due to be reviewed, or where their award is due to end.

This means that clients with conditions that have more variable impacts will be more likely to have their case transferred earlier when compared with those with conditions that are less variable. This is because they are more likely to have a relevant change of circumstance, and because review dates and end dates for Personal Independence Payment are set in accordance with the decision makers understanding of how likely and when the client's condition may change.

We have tried to address this by ensuring that where a client would be better off on Adult Disability Payment than Personal Independence Payment due to eligibility differences between the two, a client's Adult Disability Payment award can be backdated accordingly. This means that no client should be financially worse off for having their benefit selected later in the process when compared to those whose cases are selected earlier.

In order to ensure the case transfer process remains safe and secure, we must transfer cases in a phased approach. This means some awards will be transferred earlier than others. We feel avoiding the need for a face-to-face assessment is a fair and proportional way to prioritise awards for this purpose.

How we will apply the eligibility criteria

We have listened to feedback from our public consultation on Adult Disability Payment regarding the proposed eligibility criteria. In particular, the consultation highlighted how clients with mental health conditions, autism, learning disabilities and those with variable health conditions for example, do not feel treated fairly by the assessment process or the application of the PIP eligibility criteria.

Many of the problems people report with the PIP criteria relate to how the eligibility rules are applied by DWP. Consultation responses raised concerns with how certain conditions, such as fluctuating conditions and mental health conditions, were not properly considered by PIP assessors, and described the negative impact of this on clients. The high number of appeals that lead to a PIP decision being overturned reflect shortcomings in how the eligibility criteria is applied by DWP. Our focus on getting the decision right first time, by gathering supporting information and taking a person centred approach to decision making, will mitigate many of these negative impacts and reduce the number of re-determinations, appeals and overturned decisions.

"20 metre rule"

A great deal of the negative feedback received regarding the limitations of the PIP framework relates to how the descriptors are interpreted and applied, and to the wording of the activities and descriptors themselves. A number of concerns were raised during our consultation on Adult Disability Payment specifically around the mobility criteria. Concerns were raised that the requirement to be unable to walk more than 20 metres in order to qualify for the enhanced mobility component, was thought to be too short a distance. Particular issues have been raised with the way the current application of the 20 metre rule negatively impacts on individuals with a range of disabilities and health conditions, particularly those who experience fluctuations.

Although responsibility for determining entitlement sits with decision makers, in practice the vast majority of decisions reflect the advice provided to them in the PIP assessment carried out by Assessors. The way in which eligibility and entitlement will be decided for Adult Disability Payment will be fundamentally different to how it is decided for Personal Independence Payment. We are taking steps to ensure that all clients are treated equally and fairly. The application process and new client consultation service for Adult Disability Payment will reduce the negative impacts on individuals with fluctuating health conditions such as epilepsy and Multiple sclerosis.

Unlike the Department of Work and Pensions, we will not require evidence of every impact that the client reports. We recognise that the current approach presents particular challenges for individuals with limited mobility, or with variable health conditions such as Multiple sclerosis. This is because a GP is often not able to describe the impact of someone's health condition on their day to day mobility needs. Instead, the supporting information we require to make a decision on entitlement need only be consistent with the needs detailed by a client on their application.

Furthermore, we will properly apply the reliability criteria by defining the criteria more fully in legislation, better explaining the criteria in the application form, and embedding it in the decision making process. This means that someone can only be considered able to complete an activity if they can do so safely, repeatedly, in a reasonable time, and to an acceptable standard. Instead of this simply being a tick box exercise, this criteria will be enshrined in law and it will be used to ensure a full account of how a client experiences an activity such as moving around is produced.

To support practitioners and clients during a client consultation, we are developing a consultation tool which will prompt the practitioner to fully explore the reliability criteria with the client. In doing so, the practitioner will get a better understanding of the full impact that completing an activity such as moving around has on an individual, including the impacts of pain and fatigue, rather than simply establishing whether they are capable of completing the activity.

Therefore the information obtained during a consultation will be detailed and more representative of the clients' needs and experiences. This will prevent snap-shot judgements and limit the negative impacts of the way that the eligibility criteria is applied for determining eligibility for PIP. Not only will this improve the overall experience of applying for disability benefits, giving client's sufficient time to discuss their needs during a consultation and ensuring the eligibility criteria is applied consistently and fairly will also improve the consistency and accuracy of decision making.

"50% rule"

Concern has also been expressed about the application of ancillary criteria – most notably the 50% rule which specifies that an individual must be impacted by their condition on at least half the days in a month. This is applied to the majority of descriptors.

The underlying intent of Adult Disability Payment is to provide support to people who face barriers as a result of a long term health condition or disability. It is therefore necessary to differentiate between long term conditions and short term illnesses which would not entitle someone to Adult Disability Payment.

This EQIA recognises that there are concerns that the 50% rule does not adequately take into consideration fluctuating conditions such as epilepsy. When Social Security Scotland case managers consider an application and apply the eligibility criteria, the full impact of completing an activity on a client will be considered. Our intention is that the application of the 50% rule will account for fluctuating conditions. This will be made clear in the guidance for staff and for clients which has been developed in conjunction with stakeholders.

The DWP PIP Questionnaire does not support clients to provide information which takes account of fluctuating conditions. We are therefore creating an application form which is supportive by telling the client the scope of the Daily Living activities and designing the form to enable the client to describe how often they are affected by their condition. The application form will provide examples and explainers, making use of images where appropriate, to ensure clients are clear about the specific information that is required. We are confident that these changes will result in more accurate decisions and an improved client experience.

Required Period Condition

The required period condition must be satisfied to be eligible for each of the components of Adult Disability Payment. It sets out that an individual needs to have had needs relating to their disability or health condition for 13 weeks before being entitled to Adult Disability Payment. We understand that some people are concerned about the impact of this rule, particularly on people with fluctuating conditions such as epilepsy.

We believe the 13 week required period prior to Adult Disability Payment eligibility is appropriate and in keeping with the policy intent for Adult Disability Payment and for Disability Assistance more widely. The application of the eligibility criteria for Adult Disability Payment will account for unpredictable and fluctuating conditions and we will take a person-centred approach to decision making. A reduction in this period would potentially extend eligibility to individuals with temporary, short term disabilities whose lives are not impacted in the same way as people with long term disabilities and health conditions. For individuals with a terminal illness, there will be no qualifying period.

Payment of Adult Disability Payment when in hospital

We recognise that many people with disabilities and long-term health conditions may often experience stays in hospital, sometimes for a lengthy period. Adult 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 Adult Disability Payment will stop. This replicates the rules for PIP.

As part of this EQIA, we have considered the impacts of this rule. The intention of Adult 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 Adult Disability Payment where an individual's care needs are met in full otherwise from public funds, for instance in a care home, hospital or secure accommodation, would lead to a funding duplication in meeting the individual's care needs. In the majority of instances, when a client is in hospital, their additional care needs are met by the NHS.

Child Disability Payment is not suspended when a client 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(s) 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. Indeed, the National Health Service Act 2006^[13] stipulates that the NHS is responsible for meeting the day-to-day costs of an individual's accommodation, board, care and treatment free of charge whilst they are in hospital).

Adult Disability Payment is not intended to be an income-replacement benefit. Income replacement benefits are provided in the form of UK Government administered reserved benefits such as Employment and Support Allowance (ESA) and Universal Credit (UC). If we were to deliver Adult Disability Payment as an income-replacement benefit, there is a risk that DWP would not recognise it for the purpose of assessing a client's eligibility for reserved benefits, including access to passported premiums or benefits.

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 both Adult Disability Payment and the costs of that care 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 client does not experience the additional disruption of losing access to Disability Assistance.

Where a client undergoes frequent short periods in hospital, their payment of Adult Disability Payment will be unaffected. Clients are entitled to continue receiving their entitlement for the first 28 days of a hospital stay in order for should enable any outstanding additional costs to be met before the payment is suspended. Although payment will stop after 28 days of an individual being in alternative accommodation, entitlement is unaffected. Therefore, if and when a client leaves, payments will resume, subject to continuing to meet the eligibility criteria for Adult Disability Payment.