First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Rules of Procedure) (Miscellaneous Amendment) Regulations 2022: equalities impact assessment

Key Findings

The policy may impact clients in different ways according to their individual circumstances. This section considers whether there are any greater or lesser impacts expected on individuals according to protected characteristics.

Age

We expect that it will be more likely that adults and young people aged 16 and 17 will be impacted by this policy.

This is partly because children who are under 16 and eligible for disability assistance are generally not responsible for communicating directly with the Tribunal during an appeal. Instead it is generally a parent, guardian or appointee who makes the application on behalf of the child, who receives communications about the child's disability benefit, and who communicates with the Tribunal during an appeal on the child's behalf. They can therefore ensure that any information that could cause the child serious physical and/or mental harm is not shared with the child during an appeal.

Once a child reaches the age of 16, they are considered a young person with legal capacity. Young people already in receipt of Child Disability Payment before the age of sixteen can continue to receive it until their eighteenth birthday as long as they are eligible, rather than applying for Adult Disability Payment. Young people aged 16 and 17 can also choose to apply for Adult Disability Payment. Young people aged 16 and 17 in receipt of disability assistance are generally expected to manage their own application for assistance and manage their own payments. They receive communications directly from Social Security Scotland about their disability assistance. During an appeal, they would also receive direct communication from the Tribunal. If the young person cannot manage their own entitlement after they become 16, Social Security Scotland must consider whether an appointee is required to receive disability assistance on behalf of the young person.

It is also possible that the adult receiving Child Disability Payment on behalf of the child could themselves be at risk of serious harm to their physical or mental health and that information may be withheld from them for their own safety.

The policy will be applied equally, regardless of age, and based on the risk of serious harm to a person's physical and/or mental health. However, this EQIA has concluded that this policy will have a greater impact on adults and young people aged 16 and 17 who are in receipt of disability benefits than it will on children who are under 16. This is because children under the age of 16 who are in receipt of disability benefits generally have an adult who acts as the recipient of the benefit and who communicates with the Tribunal on behalf of the child during an appeal.

Disability

As this policy will give the First-tier Tribunal and Upper Tribunal a discretionary power to issue a direction prohibiting the disclosure of a document or information to a person if it will cause serious harm to the physical or mental health of the recipient or some other person, it is expected that people in receipt of disability assistance will be the most likely to be affected. This is because applications for disability assistance generally include consideration of a person's physical and/or mental health, while applications for other devolved benefits such as the Five Family Payments do not include consideration of a person's physical and/or mental health.

Adult Disability Payment, Child Disability Payment and Pension Age Disability Payment are benefits for disabled people or those with long term ill health conditions and this policy will have a direct impact on disabled people. The majority of these clients are likely to be covered by the definition of "disability" in the Equality Act 2010.

In October 2021, there were 297,213 people entitled to Personal Independence Payment in Scotland^[3]. 3,300 of these claims were processed under DWP special rules for terminally ill people.

In August 2021, there were 38,065 people entitled to Working Age Disability Living Allowance in Scotland^[4].

In August 2021, there were 139,919 people entitled to Attendance Allowance in Scotland^[5] and 61,092 entitled to State Pension Age Disability Living allowance in Scotland^[6].

As of August 2021, 43,460 children in Scotland were eligible for Child Disability Living Allowance, representing 4.7% of children under age 16.

As of August 2021, 18 children entitled to Child Disability Living Allowance in Scotland were terminally ill, representing 0.04% of all Scottish Child Disability Living Allowance cases .

It is possible that some clients who apply for disability assistance because they are terminally ill will be impacted by this policy.

In the period from November 2020 to October 2021 in Scotland, 77 out of 2,280 PIP SRTI applications were given a nil award (3.4%).

Social Security Scotland has a different definition of terminal illness to that currently used for DWP disability benefits. The definition of terminal illness for the purpose of disability assistance is based on the clinical judgement of a registered medical professional, removing any reference to a time-restriction.

Child Disability Payment and Adult Disability Payment awards under Special Rules for Terminal illness are given the highest award possible. This means that clients whose applications are successful under Special Rules for Terminal Illness automatically receive the highest rate of the care or daily living component and, where a mobility component exists, they are awarded the higher rate. This means that requests for re-determinations or appeals is likely to be rare among this client group. In the context of individuals who are applying for disability assistance under Special Rules for Terminal Illness, the Chief Medical Officer's guidance for doctors and nurses completing the BASRiS form for terminal illness^[7] notes the limited exception of "serious harm" where it may be appropriate to withhold the information from the patient. The guidance states that harmful information is anything that would be considered to cause serious harm to an individual's mental and/or physical health if they were to become aware of it (e.g. a diagnosis of malignancy).

We consider that this policy will have a positive impact on disabled people in Scotland. The First-tier Tribunal and the Upper Tribunal have no powers to prohibit disclosure of a document or information to a person if the information is potentially harmful to that person. The Tribunal Procedure rules only allow the Tribunal to prohibit or restrict the public disclosure of any aspect of appeal proceedings if the Tribunal considers that it is necessary in the interests of justice or in order to protect the Convention rights of a person.

In assessing the potential impact of the policy we considered whether the policy might negatively impact on people because it could prevent some people from seeing or hearing personal information about themselves. There is a potential negative impact in terms of people's rights to access information about themselves.

This policy introduces a discretionary power for the First-tier Tribunal or the Upper Tribunal to issue a direction prohibiting the disclosure of a document or information to a person, but only if a registered medical practitioner or a registered nurse has advised that the information is likely to cause serious harm to the physical or mental health of the recipient or some other person. The General Medical Council's Guidance on Consent^[8] sets out that "in very exceptional circumstances" it may be appropriate to prohibit disclosure of harmful information from the patient if it would cause them serious harm.

Linking the Tribunal's powers for issuing a direction to prohibit the disclosure of information only where a medical practitioner or registered nurse has informed either the Tribunal, or one or more of the parties, that disclosure of the document or information would be likely to cause serious harm to the physical or mental health of the recipient, or some other person, provides reassurance that the discretionary power to issue a direction would only be used by either the First-tier Tribunal or Upper Tribunal when truly needed. The regulations clearly set out the limited circumstances in which the Tribunal can consider giving such a direction. In addition, in exercising this discretionary power, the Tribunal must be satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

We have assessed that the impact will be positive overall as the policy proposal meets the overarching aim of avoiding causing serious harm to a person's physical or mental health. In addition, any negative impact is mitigated by the inclusion of clear rules that set a high threshold to be met, which is informed by clinical advice, before either the First-tier Tribunal or Upper Tribunal can use their discretionary power to issue a direction prohibiting disclosure of a document or information to a person if it is likely to cause them serious harm.

As part of the appeal proceedings in the First-tier Tribunal, the Tribunal must provide the appellant with a copy of Social Security Scotland's response to the notice of appeal, and any documents accompanying that response which have not already been given to the appellant. Since Social Security Scotland has a duty to send the Tribunal the information held by them that they used to make the determination and the re-determination, there is a risk that information could be shared with a person at this stage that could cause the person serious physical and/or mental harm. This policy will mitigate this risk with the aim of protecting people from harmful information.

Sex

Data from the Papworth Trust found that women make up a small majority of disabled people in the United Kingdom (23% of females have a disability compared to 19% of males)^[9]. A report by the Women's Budget Group has also found that overall, women are more likely to rely on social security than men^[10]. Data from the Scottish Surveys Core Questions 2019^[11] found that 28.4% of women and 23.3% of men have a limiting long-term physical or mental health condition.

The proposed policy will be applied equally to everyone on the basis of advice from a registered medical practitioner or registered nurse, rather than on the basis of their sex. We do not anticipate anyone to be negatively impacted by the policy on the basis of their sex. We anticipate everyone to receive positive benefits from the added safeguard of allowing the Tribunal to issue a direction prohibiting the disclosure of harmful information to a person if that information could cause serious harm to their physical or mental health. However, given that females are slightly more likely to be in receipt of disability benefits than males, the policy may impact more on females.

Religion or belief

The DWP data that the Scottish Government has access to about those in receipt of PIP, Disability Living Allowance and Attendance Allowance does not include information about these protected characteristics.

We have not identified any particular barriers resulting from this policy approach which may affect people with the protected characteristic of religion and belief.

Race

Just under 4% of Scotland's population belong to minority ethnic groups, and 7% of our total population communicate in home languages other than English^[12]. Although statistics showing the number of people within Scotland who are in receipt of disability benefits and who belong to minority ethnic groups are not available, we know that they generally make up 3.7% of those with a reported learning disability or developmental disorder.

We have not identified any particular barriers resulting from this policy approach which may affect people with the protected characteristic of race.

Marriage and civil partnership

Although the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work (for example Human Resource policies and practices), we have not identified any particular barriers resulting from this policy which may affect people with the protected characteristic of marriage or civil partnership.

Sexual orientation and gender reassignment

In 2017, 2% of people in Scotland identified their sexual orientation as "Lesbian, Gay, Bisexual or other^[13]."

There is no robust data relating to the proportion of people in Scotland to whom the gender reassignment protected characteristic applies and DWP do not collect data on this protected characteristic. We have not identified any particular barriers resulting from this policy which may affect people with the protected characteristic of sexual orientation and gender reassignment.

Pregnancy and Maternity

We do not currently have any data on the number of disabled people that fall under this protected characteristic.

We have not identified any particular barriers resulting from this policy which may affect people with the protected characteristic of pregnancy and maternity.