Independent Review of Adult Disability Payment (ADP): Analysis of responses to a public consultation and call for evidence

8. Re-determinations

This chapter explores experiences of re-determinations and the appeals process. The right to ask for a decision to be looked at again is called a re-determination. People have 42 calendar days to ask for a re-determination, although in some cases Social Security Scotland can accept a late re-determination request. Re-determinations can be submitted online or by paper form, and once Social Security Scotland receives the re-determination request, they have 56 calendar days to make a new decision. If Social Security Scotland does not complete a re-determination process within the allocated 56-day period, a person has a right to appeal directly to a First-Tier Tribunal.

Key findings

• One quarter (26%) of consultation respondents had asked for a redetermination. Respondents provided some feedback on what worked well, including the ability to submit personal statements and being able to provide evidence in multiple formats.
• Others highlighted concerns about timescales. A few noted they were waiting on re-determination decisions. Participants at consultation events had experienced stock phrases in re-determination decisions that indicated the messaging was not unique to each applicant. Others suggested that applicants be allowed to review their full application before a re-determination.
• Call for evidence respondents noted that the re-determination process could be confusing for some. Some organisations highlighted that their clients were not well informed about the Adult Disability Payment process and were not aware that points could be removed during a re-determination process, for example.
• Others cited confusion about the process as a reason people did not seek re-determinations. Negative impacts on wellbeing and lengthy timescales were mentioned as other reasons clients may not seek re-determinations. Similar reasons were given for why clients may not seek an appeal.

Consultation

One quarter (26%) of those who answered had asked for a re-determination; three quarters (73%) had not and 1% were unsure.

Among those who answered Q16B, 17% indicated they had been treated well, 46% had not and 38% were unsure. The number of respondents answering this question, and the level of ‘don’t know’, suggests that a few respondents who had not asked for a re-determination answered this question. They may have considered or contacted Social Security Scotland about a re-determination but not proceeded with it, or may have misunderstood the question and answered in the context of their contact with Social Security Scotland.

Among those who answered Q16C, over two third (69%) of those who had asked for a re-determination indicated that they had not had regular updates about it. One in five (19%) felt they had and 13% were unsure.

Q16D. What do you think worked well about the re-determination process?

Just over one in ten consultation respondents provided an open comment at Q16D. Among this small number of respondents, the most common theme, in contrast to the question, was dissatisfaction with the re-determination process. A few respondents expressed frustration with the timescales, noting that they are still waiting to hear about their re-determination. One organisation provided similar feedback.

A few respondents provided positive feedback about the re-determination process. Two individuals noted that they liked having the flexibility to provide supporting information in multiple formats. Both respondents provided personal statements alongside their re-determination, which they thought captured the state of their condition accurately. One individual reflected positively about their treatment during the re-determination process. Another individual thought that offering an online form made the process more accessible.

“The re-determination process was dealt with dignity, with compassion and fairly. Using evidence provided and no misinformation. I was informed throughout the process.” - Individual

Individuals at engagement events also noted positive experiences with re-determinations, especially compared to similar experiences under Personal Independence Payment. Participants appreciated Social Security Scotland’s flexibility in providing additional time to complete re-determinations and thought that it is clear how to request re-determinations.

Q16E. What would you change about this process?

One in ten provided a comment at Q16E. The most common theme, including the only organisational response, was a request to improve the re-determination timescales. Respondents felt they were taking too long and could be handled more efficiently.

“It should be much more urgent (my claim is now in its 7th month), and updates should be frequent.” - Individual

Two individual respondents requested improved communication throughout the process, including updates on the status of the re-determination. One of those respondents noted that they would like it to include the chance to speak with a case manager about their condition. Another individual thought it would be beneficial to allow the submission of new supporting information dated after the original application if that would allow the client to show new diagnoses or conditions.

At a few engagement events, participants from organisations described seeing more communication from Social Security Scotland that contained stock phrases and acronyms that indicated the messaging was not unique to each applicant or considering the applications fully. Another area for improvement raised during the events was a request to allow people to see their full application before a re-determination.

Two individuals noted that they would not change anything about the process as they had positive experiences. One noted they felt they had been treated with dignity and respect throughout the re-determination process.

Call for Evidence

Q9. Do you have any evidence about how well-informed people feel during the re-determination process?

One third of call for evidence respondents answered Q9. Among those responding, some highlighted that the process was confusing. For two, the confusion was related directly to the complexity of the language and phrasing. For example, two respondents noted their clients did not know what “re-determination” meant. This was also reflected at engagement events where organisational participants noted client confusion around the word and what it meant for their application.

A small number felt that the clients they helped were not well informed about the Adult Disability Payment process and struggled to understand the decision letters sent to them. Respondents therefore felt that their organisation’s support was needed to help their clients get through the re-determination process.

Two organisations highlighted a concern that clients were unaware there was a chance that points could be removed during a re-determination process. They thought that Social Security Scotland should make all the possible outcomes clearer to clients.

“We have noted on occasions that at the appeal stage, points that were awarded on the initial claim have been removed in the re-determination process without a full explanation. This is confusing for appellants and undermines their trust in the process.” – Glasgow City Council

Q10. Can you provide specific examples of factors that influence whether a person will request a re-determination of a decision made on an Adult Disability Payment application?

Just over half of respondents answered Q10. They provided a range of factors, both positive and negative, that influence whether a person will request a re-determination. These are listed below, from most to least prevalent. Evidence provided by respondents took the form of stakeholder feedback that respondents had gathered through their own engagement events, case studies created by organisations about their clients’ experiences with Adult Disability Payment and individual experiences.

Reasons for seeking a re-determination

• Social Security Scotland case managers incorrectly interpreted the information provided in the application.
• Support from outside agencies enables clients to feel confident in asking for a re-determination.

Reasons preventing people from seeking a re-determination

• The client found the process confusing and did not seek a re-determination in the right timeframe or was unable to seek a re-determination without assistance.
• Concerns that a re-determination may result in fewer points. Respondents emphasised the importance of ensuring clients were aware of the risks of re-determination before proceeding.
• A small number had evidence that their clients would not seek a re-determination due to the impact of the process on their mental wellbeing. Two organisations suggested that their clients did not want to go through the process of sharing uncomfortable personal details again.
• Clients do not know that seeking a re-determination is within their rights.
• Lengthy timescales for a re-determination can put people off.
• At events it was noted that people not having a copy of their original application, or having lost documents, could put people off.
• One organisation highlighted that there is a language barrier for some in seeking a re-determination.
• One organisation noted that some clients have trouble collecting supporting information for their application and for their re-determination.
• Previous negative experiences with Personal Independence Payment.

“Having to repeat sensitive and on occasion painful information again and again can be overwhelming.” – One Parent Family Scotland

“As a progressive condition, dementia changes and deteriorates over a period of time. Given the length of time to receive a decision, people with dementia’s circumstances inevitably change and this can result in them being unable to pursue a re-determination due to the impact on their health and wellbeing. In these instances, it is only possible to pursue a re-determination where this can be facilitated by a person acting on their behalf, i.e. Attorney, Guardian or Social Security Scotland appointee, and this may not always be possible.” - Alzheimer Scotland

Participants at a few events also noted that the risk of losing points can put people off applying for re-determinations. There were therefore calls for greater transparency about re-determination decision-making processes, for example for this to only focus on the activity/descriptors that the client disagrees with, rather than the whole application being reassessed, to remove the possibility that re-determinations could result in a lower award.

Q11. Can you provide specific examples of factors that may influence whether a person will appeal an Adult Disability Payment decision?

Just over half answered Q11, providing reasons why a person would appeal as well as reasons that prevent someone seeking an appeal. These are listed below from most to least relevant. Many of the reasons mirrored those influencing whether a person seeks a re-determination.

Reasons preventing appeals

• Some suggested that the impact of the appeal process on the mental wellbeing of their clients was a reason some decided not to appeal. This was particularly related to the tribunal process and included people who had had bad experiences with appeals under Personal Independence Payment.
• Respondents noted some clients they assisted had not appealed as they did not understand their right to do so or how to move forward with an appeal.
• The length of time it takes to undergo an appeal was mentioned by a few.

“To enable an effective appeals process, we believe the following factors could also contribute: knowing you are able to appeal in the first place, knowing that the initial rejection from ADP was not solely based on condition (e.g. that having cancer still makes them eligible to apply/appeal), [and] being aware of the process and steps” - Young Lives vs Cancer

“Lack of understanding of what is involved in the appeal process can be a significant factor in putting people off taking their case to appeal. There is a real lack of information on tribunal attendance and impartiality of the tribunal. We repeatedly have to explain to the parents we support that it is not a “court process” and that they will not be cross examined.” – One Parent Family Scotland

These reasons were also mentioned by participants at engagement events.

Reasons for seeking appeals

• Some mentioned that with the help of third sector welfare advisors and advocates, Adult Disability Payment clients were more likely to seek an appeal.
• A few organisations reiterated that clients would undergo an appeal process if they felt that their decision did not represent their lived experience or had not captured their application supporting information accurately.
• Two organisations mentioned the automatic appeal process as a reason some clients went through appeals.

“One key factor for this will be whether they are supported during the appeal process. This is why it is key for Social Security Scotland and the Third Sector to work closely together to ensure that applicants are supported by organisations who have a full understanding of their condition. People living with epilepsy who have been turned down with regards to their ADP application will see their mental health deteriorate and will require emotional support as well as professional support with regards to the appeal process.” - Epilepsy Scotland

The ability to lapse appeals was requested in a few engagement events. Examples were given of appeals being started but then all parties reach agreement before a tribunal. However, unlike with Personal Independence Payment, the tribunal currently still needs to go ahead, although there are proposals to change this. Participants felt the time and stress involved in this is unnecessary if all parties have come to an agreement.