Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021: scrutiny report on draft regulations

3. Draft Regulations

Draft Regulations 3 to 20 have the effect of amending the Disability Assistance for Children and Young People (Scotland) Regulations 2021.^[6] The latter are referred to as the ‘DACYP Regulations’ throughout this report. SCoSS’s comments and recommendations appear below. Some recommendations concern changes to the draft Regulations (as referred to us) that Scottish Government officials have already agreed to during the scrutiny process. This is highlighted where appropriate. A small number of draft Regulations make only minor, uncontentious changes to the wording of the DACYP Regulations, mainly for the purpose of clarification or to correct previous drafting errors – the report makes no comment on these.

Draft Regulation 15 amending Regulation 31 of the DACYP Regulations, and draft Regulation 20, amending part 3 of the Schedule to the DACYP Regulations, are made within the scope of powers conferred by section 52 and section 95 respectively of the Social Security (Scotland) Act 2018. This means they sit outside SCoSS’s pre-legislative scrutiny function as set out in section 97 of the Act. We do not, therefore, make any formal recommendations in respect of these Regulations, but offer some informal observations in the hope that the Minister and Committee will find these useful.

Definitions (draft Regulation 3)

Draft Regulation 3 amends the definitions of ‘legal detention’ and ‘residential educational establishment’ as set out in Regulation 2 of the DACYP Regulations. The changes appear to be uncontentious. The most significant effect will be to ensure that children and young people who are detained in hospital subject to a mental health order continue to be paid Child Disability Payment (CDP).

The Equality Impact Assessment (EQIA) notes that “this regulation seeks to ensure that an individual detained in these circumstances should not be considered to be in legal detention for the purposes of CDP, and their assistance should remain in payment. This will help ensure consistency for young people and their families regardless of which environment a young person becomes resident in.” The Commission welcomes this amendment and agrees that the position of an individual detained under the mental health legislation should be treated as analogous to one in hospital for other reasons rather than one placed in legal detention in connection with a criminal offence.

Age Criteria (draft Regulation 4)

Draft Regulation 4 amends the age criteria established by DACYP Regulation 4 to allow for young people to remain on CDP after age 18 in specific circumstances. According to the EQIA, this is to primarily avoid the scenario whereby individuals cease to be entitled because a determination of entitlement has not yet been made in relation to Adult Disability Payment (ADP).

SCoSS note the general rule that an individual cannot begin a new claim for CDP if they are 16 or over (DACYP Reg 4(2)). But a young person already entitled to CDP when they reach 16 can continue to receive it while they are 16 or 17 (DACYP Reg 4(1)). This gives more flexibility around the time of transition to ADP, which SCoSS welcomed in our previous scrutiny report on the DACYP Regulations.^[7] The amendments in the draft Statutory Instrument are intended to introduce further flexibility so that young people in three specific circumstances can continue to get CDP at age 18 or older. They provide for the continuation of awards beyond 18 for individuals receiving CDP under the special rules for terminal illness (DACYP Reg 4(1A)(a)), undergoing dialysis (DACYP Reg 4(1A)(b)) or awaiting determination of entitlement to ADP (DACYP Reg 4(1A)(c)).

Allowing an award of CDP to a young person with a terminal illness to continue beyond their 18^th birthday is a helpful simplification of the rules, which avoids the worry of a change in benefit at such a time. Whether a young person who is terminally ill is on CDP or ADP, the amount of money they get is the same. However, the Regulation as drafted leaves some ambiguity as to whether a terminally ill young person can initiate a claim for CDP after their 16^th birthday (which is not the policy intent) and around the application of the special rule that allows terminally ill children to be awarded CDP before they are three months old. Scottish Government officials have indicated in correspondence that they intend to make further changes to the wording of Regulation 4 to ensure these matters are clarified.

Recommendation 2: Regulation 4 should be revised to remove any ambiguity around the ages between which an individual must first meet the eligibility criteria in order to be awarded CDP.

The Commission considered that the draft provision on entitlement to the care component of CDP when undergoing dialysis risked introducing unnecessary confusion about when a young person undergoing dialysis would transfer from CDP to ADP. In correspondence, the Scottish Government has indicated that it intends to withdraw this specific provision as it did not match the policy intent.

Recommendation 3: The Scottish Government should amend draft Regulation 4 to withdraw proposed DACYP Regulation 4(1A)(b) on post-18 entitlement to CDP for people undergoing dialysis.

DACYP Regulation 4(1A)(c), once amended, will enable a CDP award to continue beyond the claimant’s 18^th birthday if the claimant is awaiting determination of an application for ADP. The Commission considers this to be a sensible way of eliminating the risk of gaps in entitlement at 18. The Scottish Government has indicated in correspondence that it plans to make further changes to the provision to ensure that young people who remain on disability living allowance after the age of 16 (under the ‘Rising 16s’ policy) receive similar protection. Such individuals will be able to transfer to CDP and receive it for up to one additional year after their 18^th birthday if required for determination of their entitlement to ADP. Some individuals might otherwise have had to apply for Personal Independence Payment (PIP) upon turning 18. Removing this potential is welcome. It reduces the risk of gaps in entitlement. It will eliminate the need to undergo a PIP assessment, which has been identified as a source of indignity in the UK system.^[8] It may also reduce administrative complexity for the claimant, given the Scottish Government’s commitment to ensure the transfer from CDP to ADP places as little burden on the client as possible’^[9], although there can be no certainty about whether this process will be less onerous than transferring from DLA to PIP until there is clarity about how this will work.

An issue here, with potential to undermine the intent of avoiding gaps in entitlement, concerns eligibility for short-term assistance if an 18-year-old CDP claimant’s application for ADP is unsuccessful. If there is no ADP award under the initial determination, CDP entitlement will end because the individual is over 18 and DACYP Regulation 4(1A)(c) no longer applies. If the young person asks for a re-determination of the ADP determination, there is no provision to either continue to pay CDP until that re-determination or appeal is concluded, or to pay short-term assistance (STA). The STA rules in CDP only apply when a determination resulting in the reduction or termination of a CDP award is being challenged, while the STA rules in schedule 2 to the draft Disability Assistance for Working Age People (DAWAP) Regulations only envisage STA being payable when a determination resulting in the reduction or termination of an existing ADP award is being challenged. This in keeping with the general rule that STA is only payable where there is a change to an existing entitlement, not when a new application is unsuccessful or results in a lower award.

We consider that a claimant moving from one form of disability assistance to another because of the age criteria for each form of assistance is in a different position to a new applicant for social security assistance. Indeed, the CDP claimant who applies for ADP might well be protected by the non-discrimination provision of the European Convention on Human Rights.^[10] The positions of two disability assistance claimants who lose or receive a reduced award are broadly analogous. It could be difficult to justify a policy that allows one to benefit from short-term assistance while the other cannot for no reason other than the requirement to move between forms of disability assistance at a given age.

The Scottish Government has indicated in correspondence that it shares the view that claimants transferring from CDP to ADP should not face an immediate loss of entitlement if their initial determination is that they are not entitled to ADP. We have been told that the STA provisions in the DAWAP Regulations will reflect this intention when they are ultimately made. The Commission will monitor this (along with other aspects of the transfer process) when draft DAWAP Regulations are referred for scrutiny.

Recommendation 4: In order to avoid gaps in entitlement, the DAWAP Regulations should ensure that short-term assistance is available to CDP claimants whose initial determination in respect of ADP is that they have no or a reduced entitlement.

Residence and presence conditions (draft Regulation 5 and 6)

Draft Regulation 6 dis-applies the past presence test to serving members of the armed forces and civil servants established by DACYP Regulation 6. Under the principal regulations, serving members of the armed forces and civil servants are required to have met each of the residence and presence tests immediately prior to the start of their absence caused by their employment, including the past presence test, which requires 26 weeks’ presence in the Common Travel Area in the past 52 weeks at the date an application is made.

The EQIA notes that the Scottish Government considers that the policy intent is served by requiring ordinary residence in Scotland and habitual residence in the Common Travel Area immediately prior to the start of any work-related absence, in addition to the broader fact of the individual’s employment in the civil service or in the armed forces. There may, however, be a question of whether this intent is fulfilled by the Regulation as drafted. DACYP Regulation 5(6)(a) requires the individual to meet the residence and presence conditions ‘immediately prior to the start of their employment’ – not immediately prior to their posting overseas, which may be a different date.

Recommendation 5: The Scottish Government should consider whether the wording of DACYP Regulation 5(6)(a) accurately reflects the policy intent regarding the circumstances in which certain public servants and their families should be exempt from the normal residence tests for CDP.

The Commission notes that civil servants have the same residence and presence conditions and exemptions for CDP entitlement as members of the armed forces. The policy intention relating to civil servants posted overseas is to ensure broad alignment with disability living allowance (DLA) rules. Under DLA rules, though, the exemptions for civil servants seem to apply only to those seconded to work in another EU country and covered by the Withdrawal Agreement. In contrast, the CDP exemptions apply to any posting outside the Common Travel Area not just within the EU. We do not suggest removing the exemption from civil servants, which might be unfair to those in diplomatic or other roles who are required to work overseas. However, given that the regulations seem to go beyond the policy intention of a broad alignment with the DLA rules, we consider this would benefit from a clearer rationale.

Temporary absence from the common travel area (draft Regulation 7) Draft Regulation 7 amends the age criteria established by DACYP Regulation 7 to make changes to the temporary absence provision from the Common Travel Area to allow Scottish Ministers to temporarily stop payment of CDP rather than end entitlement. They also clarify that an individual should be capable of having an advance award made where they will satisfy the past presence condition in the next three months.

The EQIA clarifies that the Scottish Government’s policy intent is to “minimise the potential need for children and young people to re-apply for CDP upon return to the Common Travel Area.” This is a welcome measure to reduce the possibility of unnecessary gaps in entitlement or reapplications, with potential to help individuals enjoy their right to social security and to contribute to the aspiration in principle (h) to an efficient social security system.

Care needs at night (draft Regulation 8)

Draft Regulation 8 amends the care component criterion established by DACYP Regulation 11 to replace the requirement for care needs ‘throughout the night’ with a requirement for care needs ‘at night’ in order to fulfil the criteria for the higher rate care component of CDP. This is a welcome amendment that aligns the eligibility criteria for CDP more closely with those for DLA.^[11] It will reduce scope for uncertainty about how much care is required to constitute ‘throughout’ the night and, in doing so, will ensure Scottish applicants are not subject to more stringent criteria than their counterparts elsewhere in the UK.

Effect of legal detention on ongoing entitlement to care component (draft Regulation 11)

Draft Regulation 11(a) amends DACYP Regulation 18 so that an individual will not be treated as being in legal detention during any stay as an in-patient in a hospital or hospice. SCoSS is not convinced that these two scenarios should be treated as analogous. If a person detained in prison or a young offenders centre (YOC) is released to a hospice for end-of-life care, there is an argument that since there is no expectation that they will return to the prison or YOC they should no longer be regarded as being in legal detention. If an individual is transferred to a hospital for treatment, the expectation will normally be that they will return to prison or the YOC. Further, the individual may be subject to security measures while in hospital, so they are not at liberty and arguably continue to be treated as being in legal detention. In correspondence, the Scottish Government has indicated that it broadly agrees with this view.

We do agree that individuals who have been given a prison sentence but are currently receiving treatment under a court order for a mental health condition, for example under a ‘hospital direction’, should not be regarded as being in ‘legal detention’.

Recommendation 6: Draft Regulation 11 should be revised to ensure it makes an appropriate distinction between individuals in legal detention transferred to a hospice and those temporarily transferred to a hospital who are not subject to a mental health order.

When an increase in level of entitlement takes effect (draft Regulation 13)

Draft Regulation 13 amends DACYP Regulation 28, which governs the date on which an increase in entitlement takes effect. The Commission welcomes the resulting clarification (in Regulation 28(1)(a)) of the circumstances in which a retrospective change to a DLA award will be reflected in the claimant’s CDP award following transfer, whether this results from a case transfer within Scotland or a move to Scotland from another part of the UK.

The draft Regulation also amends the wording of DACYP regulation 28(1)(b)(iii), which concerns when an increase in entitlement takes effect in the event that the claimant reports a change of circumstances later than the required one-month period, for no good reason. Following amendment, the increased entitlement will take effect “when the Scottish Ministers make their determination” rather than on the date that “the individual reports the change”. SCoSS is concerned that this amendment may unnecessarily penalise people for lateness, without adding anything in terms of fairness to those who do report on time, or have good reason for delayed reporting. Late reporters already lose out because they only receive the increase from the date of reporting rather than the date that the change of circumstances took place and there seems to be no objective reason to add a further delay. To do so appears to be punitive and not in keeping with the notion of social security as a right, as set out in principle (b). The Scottish Government has agreed in correspondence to re-examine this provision.

Recommendation 7: The existing wording of DACYP Regulation 28(1)(b)(iii) should be retained to avoid unnecessarily penalising individuals who are late in reporting a change of circumstances bringing about an increase in entitlement.

When a decrease in level or cessation of entitlement takes effect (draft Regulation 14)

Draft Regulation 14 amends DACYP Regulation 29, which governs the date on which a reduction of entitlement takes effect. The amendment to DACYP Regulation 29(1)(a) clarifies that a retrospective revision of a DLA award will be reflected in the CDP award, whether the claimant transferred to CDP within Scotland or on moving to Scotland from another part of the UK.

While it makes sense to apply the same rules whether the DLA award is increased or reduced, the implications for the claimant are different. The reduction of the pre-transfer DLA award would mean CDP had been overpaid from the first day of the claim. This overpayment would likely be recoverable in many, or most, circumstances. Given the associated risk of financial hardship, recovery should not be pursued until the conclusion of any mandatory reconsideration or appeal against the DLA decision.

The Scottish Government has informed SCoSS that it also plans to amend the regulations to clarify the effective date of a reduction in entitlement when the claimant fails to promptly report a change of circumstances to Social Security Scotland. In this scenario, the reduction will be applied from the date on which the change of circumstances ought to have been reported. This is reasonable – a social security system that pays assistance to which the recipient is not entitled might not comply with principle (h), which requires efficiency and value for money. As with the previous amendment, recovery of any resulting overpayment should not be sought until the conclusion of any re-determination and appeal process.

Recommendation 8: The Scottish Government should not seek to recover any overpayment resulting from the retrospective revision of a DLA award or failure to report a change of circumstances until the conclusion of any mandatory reconsideration/re-determination and appeal.

Determination following change of circumstances(draft Regulation 15)

Draft Regulation 15 amends DACYP Regulation 31 to require Scottish Ministers to make a determination without application upon becoming aware of a decision of a social security authority in Northern Ireland affecting the level of DLA award made to an individual who subsequently transferred to CDP. Whilst this draft Regulation is technically outside of our remit (set out under s22 (1)(a) and s97 of the Social Security (Scotland) Act 2018), we would offer the view that this will ensure equal treatment, and the correct level of award, for DLA claimants transferring to CDP regardless of the part of the UK in which their DLA award was initially made.

Individuals in respect of whom DLA is paid in another part of the United Kingdom immediately before moving to Scotland (draft Regulation 16)

Draft Regulation 16 amends DACYP regulation 35 to ensure that entitlement to CDP begins on the day after the day on which the person’s entitlement to DLA ends (Regulation 35(2)). This is clearer than the previous wording. It also stipulates that residence in Scotland is treated as beginning on the date notified to Social Security Scotland by the claimant or “otherwise communicated” (Regulation 35(3)). This better reflects the reality that, in many cases, it will be the Department for Work and Pensions or Department for Communities, rather than the claimant, who informs Social Security Scotland that a claimant is moving to Scotland from another part of the UK.

Individuals in respect of whom CDP is paid at the time of moving to another part of the United Kingdom (draft Regulation 17)

Draft Regulation 17 amends DACYP Regulation 36 to clarify that when an individual fails to report a move from Scotland to either England, Wales, or Northern Ireland, the date that their CDP payment will stop is 13 weeks after the date of the move.

The mechanism for stopping CDP payment is by making a ‘determination without application’ under DACYP Regulation 36(2). Regulation 36(5)(b) requires a further determination to be made regarding payments made after the award has stopped. This is referred to as a ‘determination following official error – overpayments’ made under Regulation 33. We are not clear why it is necessary to have this further determination, nor how it would operate. Regulation 33 determinations are designed to correct an error in an ‘original determination’. In these cases, the award under the original determination would already have been ended. It may be intended as a safeguard to ensure that overpaid benefit can be recovered. However, we would expect that the usual rules governing overpayments would apply here without this extra provision. As a further minor drafting point, the reference to Regulation 33 should refer to ‘error’ not ‘official error’.

Recommendation 9: The Scottish Government should clarify whether two separate determinations are required when individuals move from Scotland to England, Wales or Northern Ireland.

Periods in respect of a re-determination request(draft Regulation 18)

Draft Regulation 18 amends DACYP Regulation 37 to clarify that the period of time Social Security Scotland has to conduct a re-determination runs from the date the First-tier Tribunal (when hearing an appeal on a process decision)^[12] decides that a re-determination request has been made in such form as the Scottish Ministers require. This is a welcome clarification of the process and there might be merit in introducing similar provisions into the Regulations creating other forms of social security assistance.

Recommendation 10: The Scottish Government should consider the merits of amending other social security Regulations to clarify when the time limit for a re-determination starts to run, following a tribunal decision that a valid request for re-determination was made.

Short- term assistance (draft Regulation 19)

Draft Regulation 19 amends part 1 of the schedule in the DACYP Regulations to make clear that STA is payable during the period between the First-tier Tribunal setting aside their own decision and then making a new determination. The draft Regulation also clarifies that Scottish Ministers are to make a determination without application when ending an individual’s entitlement to STA. The Commission notes that a determination ending entitlement to STA gives rise to a right to request a re-determination. However, for such a request to be valid, section 41 of the Act would normally require Scottish Ministers to prescribe a time limit in regulations for making the request. The Scottish Ministers seem not to have prescribed any time limit for STA. Uncertainty over how the law is intended to operate could cause confusion, which may present a barrier to individuals exercising their rights.

Recommendation 11: The Scottish Government should ensure that guidance is in place to clarify the right to request a re-determination of short-term assistance. Furthermore, the Scottish Government should consider the merits of reordering the amendment to 1(1A) of the Schedule to ensure that it is clearer.

Transfer to Child Disability Payment (draft Regulation 20)

Draft Regulation 20 which amends part 3 of the schedule in the DACYP Regulations aims to correct citations to the Social Security Contributions and Benefits Act 1992 and clarify interpretation to ensure clients with severe visual disability receive the correct rate of the mobility component. It also aims to clarify the effective date of determinations without application that result from a change to a relevant past DLA award whether the change to that award was made under the UK or Northern Irish rules.

Whilst these draft Regulations are technically outside of our remit (set out under s22 (1)(a) and s97 of the Social Security (Scotland) Act 2018), we would offer the view that the revised version of paragraph 10 appears uncontroversial, para 11(1)(c) tidies up the principle Regulations and while para 11(1)(d) improves the wording it does not appear to make any substantive change.