Disability Assistance for Working Age People (Scotland) Regulations: letter to the Scottish Commission on Social Security (SCoSS)

Scottish Government response to Scrutiny Report

Responses to Recommendations and Observations

1. We invite the Scottish Government to set out the action it has taken and plans to take to ensure as far as possible a seamless system for terminally ill people is created and sustained across UK and Scottish benefits.

Scottish Government response:

To support the introduction of the new terminal illness rules in Scotland, the National Implementation Group has been established and is made up of clinicians and wider stakeholders. The Group has developed a raft of support measures for clinicians, designed to ensure the smooth implementation of the new terminal illness rules. This includes tailored communications for each phase of the staggered roll out. We will ensure that our communication about this new definition is clear so that individuals understand that this is for determining eligibility for Disability Assistance in Scotland's new disability benefits only. Where communications have been used for CDP, we will take on board feedback and seek to make improvements where appropriate.

The Scottish Government has developed a range of support measures for clinicians with the Terminal Illness National Implementation Group, which are designed to ensure the smooth implementation of the new terminal illness rules. This includes carefully crafted communications to issue at each phase of the staggered roll out (making clear for whom the new definition applies and therefore whether it is appropriate to use the new ' BASRiS' form), a one-stop online 'hub' for all related information, frequently asked questions, easy-read information leaflets tailored for both clients and medical professionals and, importantly, a clinical helpline managed by Social Security Scotland.

Social Security Scotland will accept the DWP form to provide confirmation that someone is terminally ill. The DWP's terminal illness definition will of course continue to be required for Scottish clients accessing benefits which continue to be the responsibility of the UK Government, such as Employment Support Allowance and Universal Credit.

We have agreed with the DWP that where someone already has a BASRiS form the DWP can use the information, as part of their suite of medical information, to determine whether the individual meets their definition and is therefore eligible for the reserved benefit under the DWP rules. This means if a BASRiS form has already been completed the DWP will not require a DS1500 form as well.

There are two scenarios this will be particularly helpful; where a BASRiS form has been completed in error for a Scottish client but the new Scottish benefit has yet to launch, and for a Scottish client to access reserved benefits such as Universal Credit or Employment Support Allowance. This is intended to provide a seamless system for clients and frontline clinicians.

Communications with the DWP are ongoing to develop robust processes for sharing this information, which will ensure people who are terminally ill receive the assistance they are entitled to in an expedited timeframe.

Accept

2. We invite the Scottish Government to set out its plans to identify the different factors that could contribute to lower or higher redetermination and appeal rates and success rates, with a view to analysing whether Short-term Assistance is fulfilling its intended role of incentivising and enabling people to challenge decisions they think are wrong or is resulting in unintended consequences.

Scottish Government response:

The Scottish Government has committed to monitoring behavioural impacts and the extent to which Short-term Assistance allows people to overcome barriers to challenging decisions.

As part of the process of monitoring and our commitment to continuous improvement, we will collect data on rates of successful and unsuccessful applications to STA and on appeal rates. The Scottish Government is committed to monitoring any unintended consequences. This will further be achieved through the feedback gained from the Tribunals Service in order to sufficiently monitor the accuracy of decision making and whether the policy intent for STA is being met.

Accept

3. In order to avoid gaps in entitlement, regulations should ensure that Short-term Assistance is available to young people aged 18 or over who were on Child Disability Payment but whose initial determination in respect of ADP is that they have no or a reduced entitlement.

Scottish Government response:

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 than under the current system.

The transition has been designed to minimise gaps in entitlement and to ensure that the process is as smooth as possible for clients. In contrast to the current system, young people will be given significant flexibility in choosing when to apply to Adult Disability Payment after their 16^th birthday. Someone's Child Disability Payment will only stop when a positive determination is made for Adult Disability Payment. If they do not receive any award of Adult Disability Payment, their Child Disability Payment will continue until their 18th birthday. If they request a re-determination on their Adult Disability Payment determination, and they turn 18 before that re-determination is complete, they can continue to receive Child Disability Payment up until their 19^th birthday.

Short-term Assistance (STA) is designed to support people 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. As we set out in our response to SCoSS' scrutiny report on the Disability Assistance for Children and Young People (2021) Regulations, 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 (due to age or being in receipt of Adult Disability Payment).

STA addresses barriers to accessing justice, through removing certain financial disincentives to challenging decisions that exist in the UK system. 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. We therefore do not consider 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, the same as a client already in receipt of Adult Disability Payment who wished to challenge a determination following a review. If STA were to be extended to the former, it would be paid on the basis of a different payment relating to different eligibility criteria, to cover a period where a client was challenging a decision on a separate form of assistance.

Furthermore, if STA were extended to Child Disability Payment clients who apply for Adult Disability Payment, the Scottish Government would potentially be treating those clients more favourably than all other clients who apply for Adult Disability Payment. Therefore, it is our view that STA should only be paid during a re-determination or appeal on an existing award. We are satisfied that our current policy for the payment of STA where an individual's existing assistance is reduced or stopped is appropriate.

However, as set out above, we will monitor the impacts of Short-term Assistance as well as the impact of changes we have made to the transition between Child Disability Payment and Adult Disability Payment and give further consideration to the full range of implications of extending Short Term Assistance in this way.

Reject – explanation provided

4. Social Security Scotland should aim to set up active referral systems with advice agencies trained to help with benefit claims, as well as active referral systems, with client consent, to advocacy and local client support services.

Scottish Government response:

The Scottish Government recognises the importance of different services and systems that support clients being connected and accessible.

We are working with local authorities, NHS boards, third sector organisations and a range of advice and support services to better understand the barriers preventing people from applying for benefits, as well as ensuring we take reasonable steps to encourage people to receive their full entitlement and to access further support if necessary.

Where appropriate, and with the consent of the client, we will actively refer clients to relevant advisory services including Citizens Advice Bureau. In line with the requirements set out in the 2018 Act to make independent advocacy support available, Social Security Scotland's Independent Advocacy Service will be person-centred and accessible to a range of needs and preferences. We will monitor this process, including collecting data on uptake and feedback from clients, in order to facilitate improvements and additional interventions where appropriate to ensure support and advice for clients is as joined up as possible.

Accept

5. The Scottish Government ensures that tribunal insights into appeal outcomes for ADP are included in quality assurance measures and continuous improvement of Social Security Scotland decision making.

Scottish Government response:

The Scottish Government is committed to continuous improvement. The consistent monitoring of all aspects of Adult Disability Payment delivery will enable learning and inform future changes.

We recognise that the perspective of tribunals will be a valuable source of learning and of monitoring decision making and are committed to ensuring they are used effectively to make improvements to the process where appropriate.

Accept

6. The Scottish Government is invited to set out a plan of action that will ensure an early focus on systems to capture learning and support continuous improvement in order to elicit good quality, timely supporting information, and support the effective use of evidence in decision making.

Scottish Government response:

The Scottish Government is committed to continuous improvement and recognises that this can only be achieved if learning is effectively captured. We plan to gather feedback via user research, surveys and stakeholder engagement in order to identify ways to enhance the client experience. Continuous improvement is imbedded in the overall delivery for Social Security Scotland currently and will be for Adult Disability Payment.

We plan to gather feedback via user research, surveys and stakeholder engagement in order to identify ways to enhance the client experience. For example, we will collect data on the time between requesting supporting information and receiving it. This information will allow us to identify where issues in this process arise.

The Scottish Government is in regular contact with Health Boards and Local Authorities in order to collect information on the process for gathering supporting information and how information, feedback and learning is shared. This process will of course build on learning from how learning is currently being gathered and shared in relation to Child Disability Payment.

Accept

7. The Scottish Government ensures that the relevant experience of the practitioner advising decision makers or conducting a consultation is clearly communicated in order to instil confidence and promote transparency.

Scottish Government response:

The Scottish Government has listened to the consistent concerns raised by stakeholders and individuals around the appropriateness of PIP assessors and the lack of knowledge of clients' specific disabilities or health conditions. The regulations sets out the experience and qualifications required to carry out a consultation (preferred to as "assessments" in the regulations). The type of practitioner ("health and social care practitioner" for example) will be communicated to clients on their consultation letter. We have set out that, where a client has a mental health condition, learning difficulty or a learning disability, the practitioner will have experience of working in a relevant field due to feedback that these conditions were often poorly understood by PIP assessor.

Unlike a consultation, which is carried out by a single practitioner, it is likely that more than one practitioner may be involved in providing advice where it is requested by a case manager to help them make a decision on entitlement. Many cases will require advice on multiple conditions that relate to different health areas. As a result, a range of practitioners may be involved in this process. Therefore, we will not provide this level of detail in the decision letters. Instead we will provide an explanation of the decision making process including that case managers will have access to a range of medical practitioners.

Partially accept - although we accept the premise of the recommendation

8. The Scottish Government considers further ways to make the expertise of disabled people available to staff, for example, through refresher training or roles within Social Security Scotland for people with lived experience.

Scottish Government response:

Recruitment

Social Security Scotland run workshops for employability providers and disabled people's organisations to help interested candidates understand the recruitment process and to support them with applications to ensure it actively encourages and supports candidates with disabilities. In recent campaigns we have recorded webinars on the recruitment process including subtitles and British Sign Language. The webinars are available online so people can access them at a time which suits them.

We offer adjustments throughout the recruitment process to those who need it and we are a Disability Confident Employer offering a guaranteed interview for all disabled candidates who meet the minimum criteria. At the end of June 2021, 11.2% of directly employed staff in Social Security Scotland declared that they have a disability, and increase of 0.5% points from the previous quarter and up 4.9% points since the launch of Social Security Scotland in September 2018.

Learning

Lived experience is fundamental to the training delivered by Social Security Scotland's Learning & Development team and is woven through all of the learning materials where appropriate. We have worked with a number of partners, especially in the lead up to the launch of new benefits, where the learning new staff receive includes inputs of people with experience of receiving that benefit. Partners include Health and Social Care Alliance Scotland (the ALLIANCE) and Public Health Scotland.

We worked with Health and Social Care Alliance Scotland (the ALLIANCE) to feed into and inform the development and content of learning materials as well as to include lived experience in learning modules for staff. Reflecting established practice in Child Disability Payment, we will build in user research findings (including quotes from parents applying for disability benefits) when designing learning modules.

We have recently partnered with Public Health Scotland, launching several of their learning modules on our accessible eLearning platform. It is our intention to develop further relationships with external partners to continue to enhance our delivery informed by lived experience.

Accept

9. SCoSS refers the Scottish Government to the recommendations made in our scrutiny report on the draft Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021. The Scottish Government should consider the applicability of these recommendations to draft regulations 38 to 43.

Scottish Government response:

The Scottish Government has incorporated changes to the Adult Disability payment draft regulations on the basis of SCoSS' recommendations relating to the Suspension of Assistance Regulations for Scottish Child Payment and Child Disability Payment. We intend to ensure our approach to suspending entitlement is consistent across the benefits delivered by Social Security Scotland Explanations, including details of where changes have been made, is set out below:

Recommendation 1 invited the Scottish Government to consider how it can clarify who is meant by the 'individual' and 'the person' as they appear in social security regulations. The Scottish Government is currently preparing a set of client representative guidelines, which are designed to support any person who is acting, or thinking of acting, on behalf of an individual in connection with the individual's entitlement to assistance. These guidelines will help the Scottish Government to clearly explain to individuals and their representatives the distinction between what is meant by 'person' and 'individual' in circumstances where Ministers consider it necessary to suspend assistance for reasons relating to an arrangement for a 'person' to receive assistance on behalf of an 'individual'.

Recommendation 2 recommended that the CDP and SCP regulations are amended to refer to suspension of payment rather than entitlement. The legal effect of a suspension is that the individual is not entitled to assistance but only for as long as the suspension is in place. Once a suspension ends, the individual is to immediately become entitled to receive all the assistance that they would have been entitled to receive, under the latest determination of entitlement, during the period of the suspension.

Recommendation 3 suggested that where a client does not provide information which is only needed to decide a possible increase in entitlement, the existing award should not be suspended. We agree that where information is only required to potentially increase entitlement, we would not wish to suspend assistance. The Scottish Government is preparing decision-making guidance to guide staff working in Social Security Scotland on when to suspend assistance in accordance with these regulations and in accordance with operational policy. This decision-making guidance will explain that where a request for information relates only to the possibility of a potential increase in entitlement, Social Security Scotland will not consider suspending an individual's award. The decision making guidance will apply to the administration of all forms of ongoing assistance administered under the 2018 Act. The powers to make suspensions in the regulations are permissive such that the decision can be taken not to suspend in these cases.

Recommendation 4 asked the Scottish Government to reconsider the minimum statutory time of 14 days for response to requests for information pertinent to ongoing eligibility, with a view to extending it to 28 days. This has been taken out of draft regulations for ADP and CDP as we concluded that it conflicted the discretion Ministers have, provided for at section 54 of the 2018 Act. The Scottish Government will provide in decision-making guidance that case managers should always give clients at least 28 days to provide requested information. This 28 day rule will apply to both an initial and further request for information.

The Scottish Government is committed to treating individuals with fairness, dignity and respect when reviewing entitlement to assistance and will carry out this function in a way which is consistent with the Social Security Charter, which commits Ministers to follow processes which support clients' wellbeing and are as stress-free as possible.

Recommendation 5 invited the Scottish Government to set out how it plans to identify and safeguard individuals who face difficulty engaging in the suspension progress, and to consider whether this needs to be further enhanced. We will continuing to monitor the impacts of suspending assistance on clients. The Adult Disability Payment regulations require Ministers to inform individuals of a decision to suspend assistance, the reasons for it, any steps which might be taken by the individual in order for the Scottish Ministers to consider ending the suspension, and the right to have their suspension decision reviewed. Notices of a decision to suspend assistance must contain the decision, the reasons for it, details about the individual's right to require Ministers to review the decision and mention any steps which might be taken by the individual in order for the suspension to be ended.

The Scottish Government believes the current drafting does require Ministers to issue the individual with a permanent record of information without specifying the form that must take. The risk of expressing this requirement any differently to how it is currently expressed is that it could inadvertently influence how similar duties are interpreted by the courts, such as the duty under section 40(2) of the 2018 Act. For example, an inference could be drawn that Ministers do not need to provide individuals with permanent records of the determination of their entitlement to assistance.

Recommendation 6 asked the Scottish Government to consider amending regulations so that a right to advocacy, similar to that conferred by section 10 of the 2018 Act, attaches to the suspension of SCP. Our response set out that The Scottish Government accepts the need to reflect on whether the scope of section 10 of the 2018 is sufficient to match the Scottish Government's policy ambitions relating to the provision of advocacy to all individuals with a disability.

Section 10 of the 2018 Act applies to all assistance paid through the Scottish Social Security System, including top-up assistance. The Scottish Government would have concerns about seeking to rely on the regulation-making power to administer top-up assistance to widen the scope of section 10 of the 2018 Act

Recommendation 7 invited the Scottish Government to explain what actions it is planning to identify and safeguard individuals who face difficulty engaging in the suspension progress, and to consider whether this needs to be further enhanced.

If it is considered necessary to suspend assistance because Ministers have arranged for a person to receive assistance on an individual's behalf and either:

• the current arrangement can no longer continue,
• there is a risk of financial abuse.

then the suspension can only last as long as the suspension is considered necessary for any of these reasons. If assistance is suspended on grounds of necessity, decision-making guidance will guide decision makers to proactively make an alternative arrangement for the individual to receive assistance so that suspension is no longer necessary.

If assistance is suspended because the client has not provided information requested by Ministers, then Social Security Scotland must ask again for the information to be provided within a further period. If the information is not provided within the further period, then Ministers may effectively end entitlement to assistance. However, we will look at ways to avoid suspending or ending an individual's entitlement such as:

• extending the period for providing the information if the individual reasonably requests this;
• sending individuals reminder notices and trying different ways of contacting the individual before deciding to suspend assistance;
• encouraging case managers to consider if the same or similar information could be obtained from a source other than the individual;
• arranging for another case manager to review whether the requested information really is pertinent to reviewing entitlement before deciding to end entitlement.

The Scottish Government will continue to keep under review whether individuals are having difficulty engaging with Social Security Scotland, whether this engagement is for the purpose of avoiding a suspension or for the purpose of having a suspension ended.

Recommendation 8 asked the Scottish Government to monitor the impact of the duty to have regard to financial circumstances before suspending payment of Scottish Child Payment to determine whether it in fact encourages claimants to engage with Social Security Scotland and whether it results in avoidable overpayments. The Scottish Government accepts the need to reflect on whether the scope of section 10 of the 2018 is sufficient to match the Scottish Government's policy ambitions relating to the provision of advocacy to all individuals with a disability.

Section 10 of the 2018 Act applies to all assistance paid through the Scottish Social Security System, including top-up assistance. The Scottish Government would have concerns about seeking to rely on the regulation-making power to administer top-up assistance to widen the scope of section 10 of the 2018 Act.

Recommendation 9 asks the Scottish Government to clarify the implications of suspension for passported entitlements (whether devolved or reserved) at the earliest opportunity. In doing so, it should consider whether there are scenarios in which it should be possible to complete the qualifying period for Young Carer Grant by providing someone whose CDP has been suspended. This recommendation is also applicable to ADP. The Scottish Government has worked with the DWP and other stakeholders to impact both the legal and practical implications of suspending assistance for access to passported forms of assistance.

The eligibility criteria for most passported forms of assistance is based on being in receipt of a qualifying award. When assistance is suspended, an individual is no longer considered to be in receipt of the qualifying award. The effect of suspension is therefore to disentitle them to the passported form of assistance. This effect mirrors the effect of a suspension of a UK Government administered disability benefit by the DWP. This underlines the need to have a suspension policy with robust safeguards, so that assistance is only suspended in proportionate circumstances.

Recommendation 10 does not relate to Adult Disability Payment.

Recommendation 11 asks the Scottish Government to amend Scottish Child Payment to include a requirement that the outcome of a review and the next steps if the person is dissatisfied with the outcome are communicated to the person requesting review. The draft Adult Disability Payment regulations set out that an individual must be notified about the outcome of any review of this decision. SCoSS also recommend that individuals are advised of any next steps that they can take if they are dissatisfied with the outcome of the review. Following a review individuals will be notified of services which provide advice on steps that the individual may take in order for the suspension to be ended.

Recommendation 12 invites the Government to explain the rationale for the proposed 31-day period for consideration of a request for review of a decision to suspend payment, in particular why this is longer than the 16 working days normally allowed for redetermination requests.

The Adult Disability Payment regulations places a duty on the Scottish Ministers to 'aim' to make a re-determination of entitlement within 16 working days of receiving a re-determination request. A working day means a day other than a Saturday, Sunday or a bank holiday. 16 working days is no less than 22 days. The Scottish Government considers a longer statutory period of time is justified than 16 working days because the grounds for suspending assistance will not always be straightforward to review. Where the reason for suspension is because it is considered necessary following an arrangement being made for a person to receive assistance on behalf of the individual, the grounds for imposing the suspension will relate to the necessity of suspension because either the current arrangement can no longer continue or there is a risk of financial abuse. Reviewing the necessity of suspension is expected to require Ministers to make enquiries with third parties in most cases. Unlike in the case of re-determining determinations of entitlement, the individual's circumstances are more likely to have materially changed during the period when the decision was first taken and when the review is being carried out.

Accept

10. In preparation for the 2023 independent review of disability assistance, the Scottish Government should begin now to consider options, identify their implications and scope out the parameters and process for the review.

Scottish Government response:

The Scottish Government has committed to establishing a substantial independent review of Adult Disability Payment. The group's members and chair will be drawn from outside the Scottish Government. The group will also secure input from people with lived experience. The review will be wide ranging to allow consideration of the suitability all of the activities, descriptors and supporting criteria.

We are acutely aware that people are eager for changes to be made as soon as possible and are committed to implementing reforms as quickly as is achievable. We have therefore commenced planning and consideration of the scope of the review and will provide further details in due course.

We agree with SCoSS' assessment that the impacts of some changes on clients will easier to measure than others. As SCoSS have recognised, a key consideration when making any changes to the eligibility criteria will be the impact on clients' entitlement to reserved benefits and premiums. Currently, the Scottish Government and DWP have agreed that Adult Disability Payment will provide automatic entitlement to UK benefits and premiums on the basis that the rules remain broadly similar to the rules for PIP.

Although the majority of reserved entitlements are contingent upon receipt of either the standard or enhanced rate of PIP, it is not possible to change the criteria for the higher rate of the mobility component for Adult Disability Payment in isolation. For example, a change to the higher rate mobility descriptor would the mean remaining descriptors, including the criteria for the standard rate of Adult Disability Payment, would need to be adjusted as well. This would likely result in an overall widening of eligibility to Adult Disability Payment and therefore result in the passporting agreement with DWP to be re-negotiated.

Furthermore, passported entitlements are one of a number of important considerations. Our approach is intended to ensure the sustainable delivery of new applications and case transfer during a significant increase in the capacity of Social Security Scotland. It is therefore critical that we consider the wider impact of changes on clients at this stage and during the review.

As part of preparations for the review, the Scottish Government is engaging with the DWP to come to a future agreement on passporting which would facilitate greater divergence between Adult Disability Payment and PIP.

Accept

11. The Scottish Government considers replacing the phrase 'any journeys at all' with 'any journey' in mobility descriptor 1(e) (Planning and following journeys) and reflecting case law that interprets this phrase in guidance.

Scottish Government response:

The draft regulations have now been changed so that they refer to 'any journey' where they previously referred to 'any journey at all'. Guidance will set out that 'any journey' should relate to a client's ability to do a single journey, whether that be familiar or unfamiliar.

Accept

12. The Scottish Government considers the merits of clarifying an ambiguity in daily living activity 3 (Managing therapy or monitoring a health condition).

Scottish Government response:

The Scottish Government recognises the need for the eligibility rules to be clearly set out for clients, staff and for those assisting with applications to ADP.

Guidance for Social Security Scotland staff and for clients will explain that an individual scores points based on the time taken to assist with the treatment for daily living activity 3. This includes, for example, setting up equipment, applying bandages, prompting and supervision if required.

Example scenarios, developed in conjunction with stakeholders, will be provided in guidance.

Accept

13. The Scottish Government should clarify how the provision paying the difference owed in ADP for a period that overlaps with an award of another disability benefit is intended to work, and ensure that offsetting and overpayment recovery cannot both take place.

Scottish Government response:

The Scottish Government recognises the need for this process to be as straightforward as possible for clients and for clients not to be unnecessarily burdened by receiving the wrong level of payment.

In most instances there will be no overlap between entitlement periods between benefits as in terms of regulation 4, in order to be entitled to ADP, an individual cannot be entitled to one of the benefits listed there. Where, however, there is potential for overlap in periods of entitlement, the regulations have made provision for there to be offsetting of the previous entitlement for that period against what the person becomes entitled to on ADP.

This means that, where a client is in receipt of another benefit, or a lower amount of Adult Disability Payment, and then becomes entitled to Adult Disability Payment at a higher rate during the same period, their new entitlement will be reduced by what they were previously entitled to for Adult Disability Payment or the other benefit for that period.

The reduction will be by the amount the individual was entitled to rather than what they were previously paid, to ensure that any deductions from the previous benefit are taken into account (for example, for overpayments for earlier periods). This offsetting ensures that the client will not be required to pay back sums already paid to them, and will instead receive a reduced sum of Adult Disability Payment, to take account of what they have already received.

The overpayment provisions, included separately in the regulations, will apply where individuals have been paid too much Adult Disability Payment for a past period, such that some requires to be recovered. Provision has been made so that the recovery payments may be made by deductions from future payments.

If there is to be offsetting to manage sums already given, those sums will not also be recovered as an overpayment.

We appreciate the complexity of these provisions which are intended to provide the best possible client journey.

We will therefore explain how the rules work, including providing examples, in publicly available guidance.

Accept

14. The Scottish Government should seek further views on the most appropriate term or terms to unambiguously encompass mental health, learning disabilities and cognitive impairments.

Scottish Government response:

We are committed to the use of appropriate and inclusive terminology when referring to people and while ensuring the regulations are as clear as possible. In response to SCoSS' suggestion that the use of 'mental health condition' in the Adult Disability Payment draft, in contrast to 'mental condition' in PIP legislation, could inadvertently exclude people with learning disabilities and cognitive impairments, we have made a change to align with PIP and refer to 'metal condition'. We consider that this will ensure that cognitive and neurological impairments are included as well as mental health and behavioural conditions.

The Scottish Government is committed to further engagement on the use of terminology to describe a range of disabilities and conditions. Guidance will clearly explain the terms used in the regulation and will be extensively reviewed by stakeholders to further ensure that the appropriate terminology is used throughout.

Accept

15. The Scottish Government should keep under review the scope to further reinforce the reliability criteria (safely, to an acceptable standard, repeatedly, within a reasonable time period) in the law and in operational practices.

Scottish Government response:

The Scottish Government is pleased to note that, in SCoSS's view, the steps we have taken in the draft regulations should help Social Security Scotland make fairer and more consistent decisions. However we understand the need to ensure that this policy intent, namely our intention to consider the full range of needs of client alongside the impacts of completing an activity (including pain and fatigue), is applied in practice.

The reliability criteria helps a case manage decide whether someone can or cannot carry out an activity using four measures: being able to do so safely, to an acceptable standard, repeatedly and within a reasonable time period. We have added to the definitions of these terms in the draft Adult Disability Payment regulations.

A number of operational measures are designed to ensure the proper consideration and application of the reliability criteria. These include extensive use of examples in guidance, developed with feedback from key stakeholders, and the use of explainers and images to aid individuals filling out the application form. Scenarios will be provided to illustrate where an individual would likely score points to help clients provide the right information.

If a client is invited to a consultation, practitioners will be prompted by specific software on the impacts of completing an activity to further reinforce consideration of these criteria at consultation stage. We will continue to monitor the application of these criteria and keep under review the scope to strengthen them if necessary.

Accept

16. The Scottish Government should consider whether condensing the required period condition to one period rather than a separate retrospective and prospective period could lead to uncertainty over whether a person needs to satisfy descriptors over the 13-week and 39-week periods separately, or over a single 52-week period.

Scottish Government response:

The Scottish Government can confirm that the required period continues to be defined as a retrospective and prospective period under regulation 10(3).

We will provide extensive clarification of these rules in guidance which will include the use of examples, developed in conjunction with stakeholders, to aid clients' and Social Security Scotland staff's understanding of these requirements.

Not applicable – clarification provided

17. The Scottish Government considers clarifying or simplifying the rule lifting the 13-week required period condition when a new ADP application is made within two years of the end of another ADP, CDP, DLA or PIP award.

Scottish Government response:

In response to this recommendation, we have added a clarification to the regulations to ensure that an award of the care or mobility component of Child Disability Payment, DLA and PIP will be treated as an award of the care or mobility component of Adult Disability Payment for the purpose of regulation 14. The regulation does not lift the 13 week required period condition. Rather, it ensure that it can be satisfied with reference to the period before the interval. This clarification should negate any potential confusion around this regulation identified by SCoSS. The rules will also be set out in simplified terms in publicly available guidance to provide further clarity.

This regulation applies to a previous award of Child Disability Payment, DLA or PIP as well as a previous award of Adult Disability Payment. The effect is to disregard the interval of up to 2 years, and look at the last 13 weeks of the individual's previous award for their satisfaction of the 13 week condition. Therefore, although the 13 week condition must still be satisfied, there would be no reason why individuals previously in receipt of an award for the same conditions should not satisfy the test.

The same applies for the provision at regulation 23 that provides that the interval period is reduced to a year for clients who have reached the relevant age. For these clients, the interval of a year is also disregarded and the test determined based on the last 13 weeks of their previous award.

Accept

18. The Scottish Government considers whether the residence and presence conditions accurately reflect the policy intent, specifically:

a.) Whether the reference to satisfying conditions at 'the start of their employment' in draft regulations 17(1)(a) refers to the start of the overseas posting.

b.) Whether draft regulations 17(2) and 18(1) cover a return to the UK as well as periods overseas.

c.) Whether the intention and rationale for stopping entitlement of ADP during a temporary absence from the UK/ Common Travel Area, while simply stopping payment of CDP in the same situation is intended and justified.

d.) Whether a consequential amendment is needed to ensure that exceptions to the immigration conditions apply to ADP (and CDP).

Scottish Government response:

a.) We can confirm that the policy intent behind regulation 17(1)(a) is that 'the start of their employment' refers to the start of the overseas posting. Regulation 17(1)(a) should be read in conjunction with 17(3)(a) which defines a relevant individual as being outside of the common travel area.

b.) To be eligible for Adult Disability Payment, an individual should be present in the UK or the Common Travel Area for 26 of the preceding 52 weeks. This is known as the Past Presence Test.

Regulations 17 and 18 dis-applies this test from individuals to which those regulations apply whilst they are outside of the Common Travel Area. This exemption from the Past Presence test only applies when the individual is outside of the common travel area. When individuals under regulation 17 and 18 return to the common travel area, they will require to satisfy the Past Presence Test.

However, Regulation 17(1) and 18(1) already treats the individual as satisfying the separate presence test under regulation 15(1)(d) whilst they are outside of the common travel area. As a result of this, when they return to the common travel area, their absence will be treated as presence. This presence will therefore contribute to their satisfaction of the past presence test, such that their entitlement to Adult Disability Payment may be retained.

c.) As explained in a written correspondence with SCoSS on 10 September, the Child Disability Payment draft regulations now align with the draft regulations for Adult Disability Payment. For both forms of assistance, entitlement will cease after a 13 week absence from the UK (or Common Travel Area) or after a 26 week absence for medical treatment.

d.) The Scottish Government is engaging with the Department for Work and Pensions on an amendment to both section 115 of the Immigration and Asylum Act 1999 and The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 to include references to Adult Disability Payment and Child Disability Payment. We are grateful to SCoSS for highlighting this issue and will provide an update in due course. In the meantime, drafting has now been included in the Adult Disability Payment Regulations to ensure that the same groups will be able to access Adult Disability Payment as have been able to access PIP.

18.a: Accept

18.b: Accept

18.c: Partially accept – clarification provided

18.d: Accept

19. The Scottish Government considers reducing jargon in the age rules by replacing references to the 'relevant age' with 'pensionable age'.

Scottish Government response:

The Scottish Government appreciates the complexity of these regulations and recognises the need to ensure that they, and accompanying guidance, are as clear as possible.

The draft Adult Disability Payment regulations uses the term 'relevant age' to refer to pensionable age or, if higher, 65. This is consistent with PIP legislation and aligns with other relevant legislation (such the Welfare Reform Act 2012). Consistency with other forms of legislation is important in order to guarantee the meaning of the regulations and therefore the rights of clients.

For clarity we have included a definition of what we mean by the 'relevant age' at regulation 22(2) of the draft Adult Disability Payment regulations. This now sets out that the 'relevant age' refers to the state pension age or, if higher, 65 whereas previously this draft regulation referred to the state pension age only. This now replicates the regulations for Personal Independence Payment and is unlikely to bear any practical consequence. The relevant age is pension age as defined in the Pensions Act 1995 or if higher, age 65. To limit to the pensionable age would not account for increases in the pension age.

We are committed to ensuring that advice, guidance and support is available to ensure that clients are fully aware of their options and rights when they reach pension age. We suggest that this is best achieved through guidance and communication with clients while maintaining the necessary consistency with other forms of legislation.

Reject – in order to achieve consistency across legislation

20. The Scottish Government is invited to provide an update on progress to ensure people apply for the right 6 type of disability assistance particularly at age 16 to 18 and pension age.

Scottish Government response:

The Scottish Government recognises the need to provide appropriate support to people at different stages of their lives, particularly those transitioning from Child Disability Payment to Adult Disability Payment and reach pension age.

A range of measures will be in place to ensure the process at these key transition points is as straightforward as possible. Clients will be able to access a single, secure, digital portal to apply for all forms of assistance, update information and check eligibility. The Local Delivery service will provide in-person support, with staff located across the country. This service will help individuals understand what devolved forms of assistance they may be entitled to and facilitate the application process if clients wish.

The Social Security Scotland Local Delivery service will provide in-person support and have staff located across the country from rural to urban to islands settings. This service will provide individuals with one-to-one support and help them understand what devolved forms of assistance they may be entitled to. Local Delivery staff will support clients in places most convenient to them – including their own homes, venues in their local community, hospitals, care homes and prisons. There will be at least 400 local delivery staff across Scotland, a significant increase compared to the current system.

Individuals will also be entitled to the support of an independent advocacy worker if they need help applying for Adult Disability Payment. Social Security Scotland staff are able to refer clients to a suitable, independent advocacy provider. Requests for support will be referred to independent providers and neither Social Security Scotland nor the Scottish Government will have any role in the service provided, ensuring that it is fully independent.

Our benefit take-up strategy will encourage people to take up the payments that they are entitled to. The strategy is informed by people with experience of the social security system and expertise from the third sector and Local Authorities. Actions to increase take-up will continue to be informed by these voices as they are implemented.

Accept

21. The Scottish Government should clarify how the mobility component restrictions apply to planned reviews over pension age, to changes in an award after pension age under the special rules for terminal illness, and when rates change as people over pension age enter or leave a care home, hospital or legal detention.

Scottish Government response:

Planned reviews over pension age

We have provided clarification at regulation 25 that restrictions to the mobility criteria beyond pension age applies to where a determination following a change of circumstance (regulation 48(a)) is to be made, and not to planned reviews of an award. We will explain this clearly in guidance for clients and staff.

Changes in an award after pension age under the special rules for terminal illness

Where an Adult Disability Payment client who is over pension age becomes terminally ill and we are informed of this, we will make a new determination without application following this change of circumstances.

If the client did not already have an enhanced award for the daily living component this would be changed to enhanced. In alignment with all determinations following a change of circumstances where the client is over the pension age there will be no increase to the award for mobility. This is to ensure parity of treatment with all other clients who receive a determination following a change of circumstances when they are over pension age. If the client's previous award included a mobility component, and the client continues to have the same condition or conditions for which that mobility award was made, then the mobility component would continue at the same rate.

If the BASRiS form was received after the client reached pension age, but was dated before they reached pension age, the client would be treated as being terminally ill from the date of the clinical judgement up to 26 weeks before we received the BASRiS. We have added clarification in the provisions relating to determinations of awards after the relevant age at regulation 25(5) to ensure that a client in this scenario would be entitled to the maximum award under SRTI rules. This will be set out in guidance for Social Security Scotland staff and clients.

Change in rates for people over pension age entering or leaving a care home, hospital or legal detention

The draft regulations set out that if an individual has been in hospital for a period longer than 28 days, the value of Adult Disability Payment is to be £0. If the individual has been in a care home for longer than 28 days, the value of the daily living component is to be £0. If the individual has been in legal detention for more than 28 days, the value of the daily living component for 16 and 17 year olds, and both components for individuals 18 and older is to be £0. Underlying entitlement to the particular components and rates of Adult Disability Payment is maintained during this time. This applies to all clients, including those over pension age. The determination to reduce their payment to £0 is required by regulation 48(a) – their entering or leaving a care home, hospital or legal detention being a change of circumstance requires a determination without application.

The rules relating to entitlement set out at regulation 25 are separate. They set out that an individual above pension age can only continue to receive the same rate of the Adult Disability Payment mobility component they were on prior to reaching that age, or have their rate decreased.

An individual's mobility entitlement will not be altered if, all other circumstances remaining the same, they enter or leave a care home, hospital or legal detention. If, however, there were a change of circumstances affecting the client's mobility which simultaneously required to be considered, the determination could both alter the individual's entitlement to mobility (applying the principles at regulation 25 where they are over the relevant age) and reduce payment to £0 whilst they are in alternative accommodation.

Accept

22. The Scottish Government should set out how changes in circumstances are dealt with while a redetermination or appeal is underway. There should be further consideration given to placing this beyond doubt in legislation.

Scottish Government response:

The regulations set out that changes of circumstance which affect a someone's entitlement to Adult Disability Payment will result in a new determination (a "determination without application"). This process is separate to and independent of requests for a re-determination and the appeals process. The Social Security (Scotland) Act 2018 also sets out that these are separate processes. If a change of circumstance occurs after a re-determination has already been requested, a new determination may be made on the basis of the change of circumstances. The re-determination on the original decision must be completed separately and the client will have the right to request a re-determination on the new determination if they wish to do so.

Partially accept – clarification provided

23. Draft regulation 45 should be amended so that people who are late in reporting a change in circumstances or in notifying a material fact relevant to the award are not unnecessarily penalised.

Scottish Government response:

The regulations set out that, if an individual reports a change of circumstance within one month of its occurrence that results in a higher award, they should receive the higher award backdated to the date that they first satisfy the entitlement requirements for the higher rate (ie. 13 weeks after the change occurred). Where the change is reported over one month but less than 13 months after the change occurred, and there is good reason for reporting the change late, the higher award can be backdated to the date that they first satisfy the entitlement requirements for the higher rate (ie. 13 weeks after the change occurred). . If the change is reported either later than a month but before 13 months without good reason, or later than 13 months, the higher award was specified to be paid from the date of the determination. This does not apply to clients applying under the Special Rules for Terminal Illness.

We have now provided within the draft regulations that where an individual reports a change either later than a month but before 13 months without good reason, or later than 13 months, the change in entitlement will take effect from the date the individual reports the change. This now aligns with the Child Disability Payment regulations.

Furthermore we have added clarification in the draft regulations at regulation 48(c) that, where a determination was based on official error, or error within the meaning of regulations 49 or 50, the higher award should begin on the date when the original determination took effect. Where the ignorance of material facts is not due to official error or error, regulation 45(2) gives case managers flexibility to set an earlier date of payment if they consider it unfair not to do so. We consider this a proportionate way of reflecting the responsibilities of the client and Social Security Scotland.

Accept

24. The Scottish Government should set out how it plans to ensure the smooth transfer from CDP to ADP, and the monitoring it intends to put in place to continually improve the process.

Scottish Government response:

Clients in receipt of Child Disability Payment will be required to make an application to Adult Disability Payment after their 16^th birthday. This is because the differences between ADP and CDP eligibility criteria mean different and additional information is needed to make a decision on entitlement. Our approach will ensure a more consistent and less complex process, intended to minimise the burden on clients. We intend to make this process as smooth as possible, and less disruptive than the current system.

The intention is that a client's entitlement to Child Disability Payment will only end if they are determined to be entitled to Adult Disability Payment. This will provide clients with the security of knowing that if they are not entitled to Adult Disability payment, they will continue to receive the Child Disability Payments they are entitled to. For clients entitled to Adult Disability Payment, entitlement to Child Disability Payment will end on one day and Adult Disability Payment entitlement will begin the following day.

The Adult Disability Payment regulations set out that Adult Disability Payment will begin on the date the Scottish ministers make the determination. The Child Disability Payment regulations will set out that entitlement to Child Disability Payment will end on the day before Adult Disability Payment entitlement begins. Both sets of regulations have been drafted to ensure this transition is aligned so that clients do not experience a gap in payment or, conversely, receive unnecessary overpayments which then require to be recovered.

Furthermore there will be extensive support and advice available to clients undergoing this process. Support will be available through a choice of channels. It will be made clear to clients that they may be better off waiting to apply to Adult Disability Payment when they reach their 16^th birthday.

The Scottish Government is committed to monitoring this process and to implement improvements where appropriate.

Accept

Observation 1: By law, requiring a consultation must be a last resort, however, this only applies to face-to-face consultations where the individual and practitioner are 'physically in the same 4 place at the same time'. In practice, consultations will be delivered by phone or video call in many cases. There may be a case in due course for updating the Act accordingly.

Scottish Government response:

The 2018 Act sets out that assessments should only be required when necessary. Since the 2018 Act was passed, our approach to making a decision on entitlement has developed, in response to extensive engagement and testing. In line with the Act, we will only carry out a consultation (being an assessment in terms of the Act and Regulations), regardless of how it is held, as a last resort. In-person consultations will only be carried out when requested by the client or when Social Security Scotland are of the view that it is the most practicable means of obtaining the required information.

The 2018 Act already requires that assessments only occur when necessary (section 14) and that in-person consultations will be additionally accompanied with justifications (section 55(3)). This duty and our approach to inviting a client to participate in a consultation will be set out in guidance and integral to the delivery of the service.

Observation 2: SCoSS notes that the ADP age rules as drafted may not permit transfer to ADP over pension age from PIP or DLA without requiring an application.

Scottish Government response:

The relevant case transfer provisions were not included in the draft regulations that were sent to SCoSS as they are made under section 95 of the 2018 Act and do not therefore require scrutiny. The provisions that have since been added to the draft regulations will enable clients to transfer to Adult Disability Payment from PIP when over pension age without an application being required. The regulations do not contain provisions enabling clients to transfer from DLA to ADP without an application. The regulations setting out the process for transferring from DLA for working age people are forthcoming.