Draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022: SCoSS scrutiny report

Summary of recommendations and observations

Recommendation 1: The Scottish Government should publish its plans for managed migration from DLA to ADP (or to whatever devolved provision is made for older claimants) at the earliest opportunity, being mindful of the desirability of appropriate scrutiny by SCoSS and legislators whether or not this involves the making of further regulations.

Recommendation 2: The Scottish Government should modify Regulation 3(3) of the ADP Regulations as it applies to transferring individuals to state that there are three weekly rates of the daily living component.

Recommendation 3: To avoid perceptions that the proposed lowest rate daily living component will be a permanent feature of ADP, the Scottish Government should consider amending draft Regulations 5(1), 5(2) and 5(3)(a) so that, for transferring individuals only, the daily living component of ADP consists of transitional, standard and enhanced rates.

Recommendation 4: The Scottish Government should explain why an increase in award flowing from a change of circumstances is only backdated to the start of the ADP claim and not to the date when the change of circumstances was reported to the DWP.

Recommendation 5: The Scottish Government and Social Security Scotland should develop an approach to supporting individuals who receive a reduced or no award following review of their transitional ADP award, as in other circumstances.

Recommendation 6: SCoSS asks the Scottish Government to outline any consideration it has given to applying a 'no one worse off' principle to some or all groups of transferring individuals – whether those intended to migrate under the draft Regulations or those subject to managed migration in the future.

Recommendation 7: The Scottish Government should share its plans for supporting transferring individuals to avoid or cope with problems resulting from the interaction of reserved and devolved disability benefits/assistance, for example the mutual exclusivity of ADP and attendance allowance awards.

Recommendation 8: Given the likely complexity of DLA-ADP migration from the perspective of transferring individuals and others, SCoSS invites the Scottish Government to share details of any work being undertaken to develop a communication strategy in line with its various obligations under the 2018 Act, Our Charter and the Convention on the Rights of Persons with Disabilities. One aim should be to raise awareness of the key differences in eligibility criteria between DLA and ADP so that adults in receipt of DLA, whose circumstances have not changed since April 2020, can judge whether it would be in their interests to request transfer to ADP. Any such campaign should be tested with stakeholders to ensure clarity.

Observation 1: In view of the importance of ensuring social security regulations fall within the regulation-making powers in the Social Security (Scotland) Act 2018, SCoSS welcomes the Scottish Government's confirmation that it believes the draft Regulations are within the scope of section 31 and paragraph 1 of schedule 5 to the Act.

Observation 2: While endorsing the use by default of a two-stage transfer process from DLA to ADP, SCoSS welcomes the use of a direct, one-stage transfer for adult DLA claimants who appear likely to qualify for ADP under the special rules for terminal illness.

Observation 3: SCoSS accepts that a longer period for re-determinations to allow for evidence gathering is unavoidable but considers that it should be realistic to aim for many if not most re-determinations to be completed well within the allotted 182 days.

Observation 4: The transitional provisions imply differential treatment of people who migrate to ADP depending on whether they previously received DLA or PIP, particularly if their ADP or PIP award is lower than their DLA award. SCoSS notes the difficulty of avoiding this unequal treatment given the commitment to a safe and secure transfer, the maintenance of parity in the eligibility criteria for ADP and PIP, and the necessity of completing case transfers within a short period.