Disability Assistance for Working Age People (Scotland) draft regulations: scrutiny report

Summary of recommendations and observations

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

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 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.

Recommendation 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.

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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 12

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

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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).

Recommendation 19

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

Recommendation 20

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

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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.