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

5. The two-stage transfer

5.1 Necessity and justification

The migration of adult DLA claimants to ADP poses a particular challenge to Social Security Scotland. Transferring individuals need to be awarded ADP at a rate that reflects their impairment and its impact on their daily living activities and mobility, but the differences between DLA and ADP mean this will be much less straightforward compared to PIP-ADP migration. At the same time, each case transfer will need to be completed in line with the period agreed with DWP, likely to be 13 to 17 weeks.

Not only is there a mismatch between the DLA and ADP eligibility criteria, but the information held by DWP on some transferring individuals will now be at least nine years old. The consequent, inevitable need for Social Security Scotland to gather a significant amount of information in order to make a conclusive determination of each individual's ADP entitlement would create a risk that the agency would be unable to complete transfers within the agreed period. This could result in gaps in payment, or increase the risk of error if there is a rush to meet the deadline. To mitigate this risk, the Scottish Government has elected to move transferring individuals to ADP through a two-stage process. A provisional award will be made at the point of transfer, based on the individual's previous DLA award. Each case will then be reviewed and re-determined as soon as possible thereafter, with a statutory requirement to complete reviews within 12 months of transfer. The Scottish Government has consistently stressed the need for a safe and secure transfer from the UK to devolved disability benefits, having identified this as a top priority through extensive engagement with users of the UK system^[13]. It makes sense to maintain this approach for this part of the migration process, although SCoSS notes that a year would be quite a long time for a transferring individual to wait to find out what their actual ADP award will be and to have to live with that uncertainty.

In the event that a review has not been completed within 12 months because Social Security Scotland is awaiting information from the transferring individual, Social Security Scotland will presumably have the option of using its power to suspend the award pending receipt of the information. Any such step should be taken sensitively and as a last resort, after making every effort to obtain the information including through the use of advocacy services and home visits (if requested by the individual) where appropriate.^[14]

Further, the two-stage process has certain advantages to transferring individuals. Migration from DLA to ADP with same level of award, followed by review of the award, means individuals will benefit from Short-term Assistance (STA) if their award is reduced or terminated on review. STA's formal role is to support the right of appeal by making a payment equivalent to the amount lost if an individual's existing award is reduced or terminated, until the completion of any re-determination and appeal process. It also has the informal function of allowing the individual some breathing space to prepare for the drop in income should this ultimately be confirmed. STA would not have been available to anyone migrating from DLA to PIP, nor is it available to anyone who moves to ADP from another benefit^[15] – in such cases any loss of income would take effect immediately, albeit that back payment would be received if the award were increased on re-determination or appeal. In a sense, the remaining adult DLA claimants in Scotland will benefit from something akin to the 'mitigation' measure put in place in Northern Ireland, whereby anyone who received a reduced award on migration from DLA to PIP received a supplementary payment making good the loss until the conclusion of reconsideration and appeal. Arguably, then, there is an enhancement of certain individuals' social security-related rights in line with principles (b) and (g), and a measure of protection against poverty in line with principle (e).

An exception to the two-stage approach to transfers is made for DLA claimants who have reported a change of circumstances that indicates they are likely to qualify for ADP under the special rules for terminal illness. Anyone in this position will be made an immediate award on the basis of terminal illness and will not have to go through the two-stage transfer. The Scottish Government has told SCoSS that it will prioritise the transfer of this group. This appears to prioritise the interests of this particular group of people who require assistance by fast-tracking access to a higher award than would be available on DLA for some and minimising bureaucracy from the point of view of the transferring individual, in keeping with principle (g).^[16]

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.

5.2 Issues raised by the transitional lowest rate daily living component

Adult DLA claimants migrating directly to ADP will be in a unique position in that, legally speaking, their entitlement to ADP will not be based on the impact of an impairment on their mobility and daily living activities in accordance with the ADP descriptors. Rather, in accordance with Regulation 5, their award during the transitional period will be based solely on the components and level of their previous DLA award. After transfer, the award will be reviewed and a determination made against the statutory descriptors for ADP – draft Regulation 12 requires Social Security Scotland to complete this review within 12 months. The other major departure from the position of PIP claimants who migrate to ADP is the creation of an additional (and in practice temporary) ADP rate, the lowest rate daily living component. This rate is only available to adults who migrate from DLA to ADP having held an award of the DLA care component at the lowest rate. There is no list of descriptors for the lowest rate daily living component of ADP and no one will ever be awarded it outside this transitional context.

Draft Regulation 5(2) states that 'the lowest rate of the daily living component is to be treated for all purposes as a payment of the daily living component within the meaning of Regulation 2 of the ADP Regulations'. As it stands there appears to be conflict between draft Regulation 5(2) and ADP Regulation 3(3) which states: 'There are 2 weekly rates of the daily living component and 2 weekly rates of the mobility component'. It may also conflict with ADP Regulation 34, which sets out the various rates of payment available across the two components.

This is important because any uncertainty about whether the transferring individual's award is in fact an award of ADP would also be uncertainty about their continued entitlement to any passported awards that depend on receipt of a qualifying disability benefit and in some cases their continued exemption from the benefit cap. Continuous improvement of the social security system should not involve the creation of uncertainty (principle g).^[17] Putting individuals unnecessarily at risk of losing passported entitlements (for example, a disability premium in a reserved benefit or a Motability vehicle) or being affected by the benefit cap would not advance the right to social security (principle b) or contribute to the reduction of poverty (principle e).^[18] Wording the Regulations unambiguously will minimise the risk of these things happening. The Scottish Government has advised SCoSS that it is confident that there is no issue of conflict with ADP Regulation 34, but is considering modification of Regulation 3(3) as it applies to transferring individuals. The Commission welcomes this response and encourages the Scottish Government to make what we feel is a necessary modification.

A further issue around the new lowest rate of the daily living component is the potential for confusion about its temporary nature. Transferring individuals will need to be clear from the outset that, although they will be placed on this equivalent lowest rate at the point of transfer, they will only remain there until their award is reviewed. The Scottish Government's stated intention is for this review to take place as soon as possible and, as noted, the draft Regulations put in place a statutory requirement to complete it within 12 months of transfer. Even if a person continues to meet what were the criteria for the lowest rate, they will be unable to continue on it. If they do not satisfy the descriptors for the standard rate of ADP, they will not receive any award of the ADP daily living component.

It should be possible to handle this in communication with transferring individuals, adhering to the commitment in Our Charter to simple, clear communication. Clarity may be harder to achieve where other groups, not in direct contact with Social Security Scotland, are concerned. People who consider themselves to have a disability but who do not qualify for the daily living component of PIP or ADP – particularly those who received the lowest rate care component of DLA before migrating to PIP – may become aware of the introduction of this 'new' rate and make futile applications for ADP in the hope that they will receive it. This would not be in the interests of those individuals and would create extra work for Social Security Scotland staff, affecting the efficiency of the transfer process and its overall operations, which might run contrary to principle (h). ^[19]

In its submission to SCoSS on the draft Regulations, CPAG in Scotland suggested that draft Regulation 5 should place all transferring individuals on a 'transitional rate' of ADP. The Commission agrees that a change of nomenclature might reduce confusion, but suggests it might be preferable to apply the term 'transitional rate' to what is currently being referred to as the lowest rate of the daily living component only. Keeping transferring individuals within the standard ADP/PIP structure of daily living and mobility component should be less likely to put the passporting function of an award in doubt in the period between transfer and review.

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.

5.3 Efficiency and value for money

It could be argued that the two-step transfer process places unnecessary costs on the Scottish social security system by making higher payments than some individuals would be entitled to were their claims reviewed at the point of transfer, or indeed had DLA-PIP transfers continued over the last two years. This is compounded by the availability of STA when this would not be available were the award reviewed at the point of transfer. Counter-arguments include that this is a price worth paying for the resulting enhancement of social security and appeal rights and the avoidance of the PIP assessment process. The Scottish Government has also told SCoSS that review at the point of transfer would make the migration process slower, less efficient and more onerous on the claimant. The justification for the chosen approach potentially becomes weaker in cases where the DWP has already been notified of a change of circumstances that is likely to have the effect of reducing or terminating entitlement prior to migration to ADP. Ultimately, as noted in previous SCoSS reports, the question of what constitutes value for money is a political one.

For transferring individuals who request a re-determination, the period in which Social Security Scotland is required to complete the re-determination is extended from 56 days (the period for most ADP re-determinations) to 182 days. In its submission to SCoSS on the draft recommendations, Inclusion Scotland suggested this was excessive. While the Commission would hope that, in a system that aspires to efficiency, most re-determinations would be completed considerably faster, we feel there may be reasons beyond Social Security Scotland's control that mean a longer-than-usual review period could be unavoidable in this situation. Most re-determinations take place in a context where evidence has already been gathered through the application form, supporting information and in some cases, a consultation. Any existing evidence held in transferring individuals' DWP case files will not be specifically focused on the ADP disability conditions and is likely to be some years old. Its evidential value is therefore likely to be lower and Social Security Scotland may well require additional time to gather information, which might include supporting evidence or a consultation.

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.