Disability Assistance for Working Age People (Scotland) draft regulations: scrutiny report
Scottish Commission on Social Security (SCoSS) scrutiny report on the Disability Assistance for Working Age People Regulations
Footnotes
1 Benefits for carers and disability assistance at November 2020: summary statistics
2 Scottish Government Adult Disability Payment: consultation
3 Social Security Scotland - Our Charter
4 Social Security Scotland – Our Charter: A better future, commitment 8
5 Shaping future support: the health and disability green paper - GOV.UK (www.gov.uk)
6 Social Security (Scotland) Act 2018
7 Schedule 2, Part 3 (Transfer to Adult Disability Payment) and Part 4 (Consequential Amendments) were not included in the draft Regulations referred for scrutiny.
8 Draft regulations referred to SCoSS on 25 June 2021
10 The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021
11 Social Security (Scotland) Act 2018, section 1
12 Scottish Commission on Social Security: draft scrutiny framework - gov.scot (www.gov.scot)
13 Adult Disability Payment: consultation analysis - gov.scot (www.gov.scot)
14 International Covenant on Economic, Social and Cultural Rights
15 Relevant human rights law is defined as law contained in human rights treaties ratified by the UK.
16 Convention on the Rights of Persons with Disabilities
17 This is sometimes known as Thlimmenos discrimination, after the case in which the European Court of Human Rights recognised the principle (Thlimmenos v Greece (app no 34369/97)) – see also article 5 CRPD
19 European Convention on Human Rights
20 Scottish Government Social Security in Scotland: consultation
21 Scottish Government Disability assistance in Scotland: consultation
22 Scottish Government Adult disability payment: consultation
23 Disability and Carers Benefits Expert Advisory Group
24 Social Security Experience Panels: publications
25 For example, more people with a terminal illness could be entitled for longer and to a higher amount.
26 The Scottish Fiscal Commission estimates that by 2026-27, there will be 70,000 more people getting ADP on top of the 400,000 people who would have received PIP in the absence of ADP (Scotland’s Economic and Fiscal Forecasts, August 2021, para 5.15)
27 The High Court in Northern Ireland found this difference of treatment to be unlawful, but this decision was overturned by the Court of Appeal - Re Cox’s application for judicial review [2021] NICA judgment, 3 August 2021.
28 The Second Independent Review of the Personal Independence Payment Assessment
29 This is not inevitably the case – the law recognises that ‘functions of a public nature’ may be carried out by a wide variety of organisations in different sectors – see Human Rights Act 1998, section 6(3)(b)
30 Other differences include making awards life-long with no review for people with awards under the special rules. This is expected to be set out in guidance rather than in regulations.
31 Principle (d); Social Security Scotland - Our Charter ‘Processes that work, commitment 1
32 The UK Government is planning to legislate to change the six- month limit to 12 months. Shaping Future Support: The Health and Disability Green Paper, para 208.
33 Re Cox’s application for judicial review [2020] NIQB 53
34 Re Cox’s application for judicial review [2021] NICA judgment, 3 August 2021
35 sections 29(2)(d) and 57(2) of the Scotland Act 1998
37 For UC and ESA, someone whose death can reasonably be expected within six months gets a higher amount of benefit and is not expected to work or prepare for work.
38 Social Security Scotland When to complete a BASRiS or a DS1500 form
40 PIP handbook - GOV.UK (www.gov.uk)
41 The shorter past presence test for children in Disability Living Allowance and now CDP followed a legal challenge on human rights grounds.
42 A Consultation on Adult Disability Payment, Scottish Government Response, June 2021, page 49
43 Articles 13 and 28 of the Convention on the Rights of Persons with Disabilities (CRPD)
44 A Consultation on Adult Disability Payment, Scottish Government Response, June 2021, page 98
45 Scotland’s Economic and Fiscal Forecasts, para A.46
46 Scottish Government’s response to SCoSS’s scrutiny report on the Disability Assistance for Children and Young People (Scotland) Regulations 2021
47 SCoSS Scrutiny Report Disability Assistance for Children And Young People (Scotland) Amendment Regulations 2021, para 3 ‘Age criteria’
48 Social Security Scotland - Our Charter
49 Adult Disability Payment: consultation analysis - gov.scot (www.gov.scot)
50 This is a statutory function of the Commission under Section 22(1)(d) of the Social Security (Scotland) Act 2018
51 Social Security policy position paper - disability benefit applications: making applications
52 From July 2021, client support advisers were available to people who live within the Child Disability Payment pilot areas – Dundee City, Western Isles and Perth – with the roll out across Scotland due from November 2021. Local-Delivery-service-factsheet-English.pdf (socialsecurity.gov.scot)
53 Social Security Charter measurement framework: co-design process
55 Social Security policy position paper - disability benefit applications: how decisions are made
56 Section 55 Social Security (Scotland) Act 2018
57 DWP Shaping future support: the health and disability green paper para 192
58 Northern Ireland Public Services Ombudsman: PIP and the Value of Further Evidence For example, the report notes that time pressures inhibit further evidence being requested.
59 Scottish Qualifications Authority: NPA in Social Services and Healthcare
60 Social Security Experience Panels: meeting people's needs - visual summary
61 Social Security Scotland Corporate Plan 2020 – 2023 page 30
62 Disability and Carers Benefits Expert Advisory Group
63 Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD)
65 The scrutiny report on the Suspension Regulations is yet to be submitted but will be published on SCoSS's temporary webpage in due course. In the report, we note that an individual who asks for a suspension to be waived due to present financial hardship might only be storing up greater hardship for the future if it results in overpayments.
66 Adult Disability Payment (ADP) Regulations: Analysis of Consultation Responses Final Report June 2021, page 42; Beyond A Safe And Secure Transition, Scottish Campaign on Rights to Social Security
67 Shaping future support: the health and disability green paper - GOV.UK (www.gov.uk)
69 Scotland’s Economic and Fiscal Forecasts, August 2021, para 2.16
70 Scotland’s Economic and Fiscal Forecasts, August 2021, para A.24
71 Disability and Carers Benefits Expert Advisory Group - PIP Caselaw Integration with DAWAP Regulations: advice ; Disability and Carers Benefits Expert Advisory Group – PIP Caselaw Integration with DAWAP Regulations: response from ministers
72 PIP Assessment Guide part 2, para 2.4; see also AA v SSWP (PIP) [2018] UKUT 339 (AAC)
73 RH v SSWP (PIP) [2015] UKUT 281 (AAC)
74 regulation 47, Schedule 1, Part 1, meaning of ‘psychological distress’
75 Social Security Scotland Act 2018, section 31
76 Our Charter, A better future, commitment 7
77 The term ‘mental disorder’ is used in other legislation, the Adults with Incapacity (Scotland) Act 2000, and the Mental Health (Care and Treatment) (Scotland) Act 2003. The Mental Welfare Commission for Scotland unpacks this term referring to people with mental illness, learning disabilities, dementia and related conditions. The Scottish Mental Health Law Review recognises that the term ‘mental disorder’ is regarded by many as stigmatising and offensive and plans to engage further with people with lived experience on alternative terminology. Scottish Mental Health Law Review - Interim Report - July 2021
78 e.g. The keys to life Implementation Framework (2019-2021)
79 This was the case in SH v SSWP (PIP) [2018] UKUT 251 (AAC)
81 Paul Gray’s 2014 Independent Review of the PIP Assessment (page 62) recommended that guidance on reliability criteria needed to be reinforced and applied consistently. Disability and Carers Benefits Expert Advisory Group – PIP Caselaw Integration with DAWAP Regulations: response from ministers
82 Our Charter, A people’s service, commitment 7
83 The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021
84 Child Disability Payment Amendment Regulations: draft equality impact assessment
85 SCoSS Scrutiny Report Disability Assistance For Children And Young People (Scotland) Amendment Regulations 2021, para 3 ‘Residence and presence’
86 SCoSS Scrutiny Report Disability Assistance for Children And Young People (Scotland) Amendment Regulations 2021, para 3 ‘Residence and presence’
87 Child Disability Payment Amendment Regulations: draft equality impact assessment
88 Adult Disability Payment: consultation analysis
89 Scrutiny Report on draft Scottish Child Payment Regulations 2020, section 3.3; Scrutiny Report on draft Disability Assistance for Children and Young People (Scotland) Regulations 2020, section 6.4
91 The DLA to PIP transfer provision was the subject of a challenge on the basis of discrimination under the ECHR. In TW v Secretary of State for Work and Pensions (PIP):[2017] UKUT 25 (AAC); [2019] AACR 15, the tribunal held that the difference in treatment between new PIP claimants who would be paid from the date of claim and those transferring from DLA who would be paid from a later date was justified.
92 Our Charter, Processes that work, commitments 1 and 4
93 Our Charter, Processes that work, commitment 1
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