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

3. Rights and principles

Section 1 of the Social Security (Scotland) Act 2018 sets out the principles that are to guide the development of the devolved social security system. Section 97(6) requires SCoSS to have regard to these principles and to relevant international human rights law, including – but not exclusively – the ICESCR^[14], when carrying out pre-legislative scrutiny.^[15] Principle (b) itself recognises that social security is a human right and key to the realisation of other rights.

ADP is a contribution towards the additional costs associated with disability, a function it shares with CDP and the UK disability benefits it is replacing. Accordingly, it recognises and responds to the fact that a household including a disabled person will typically require a higher income to achieve an adequate standard of living (article 11 ICESCR; article 28 (CRPD^[16]), live independently and enjoy inclusion in the community (article 19 CRPD) than a household not including a disabled person. In doing so, it helps disabled people to enjoy their right to social security and other social rights without discrimination (article 2.2 ICESCR), on the basis that discrimination can flow not only from unequal treatment, but from treating people the same when one group’s circumstances demand additional support.^[17] While this is a common purpose for all disability benefits in the UK, the introduction of the various forms of Scottish disability assistance is an opportunity to develop a set of payments that do so better than the benefits they are replacing, in keeping with the obligation to work towards the progressive realisation of human rights (article 2.1 ICESCR) and the statutory commitment to continuous improvement of the social security system (principle (g)).^[18]

The fact that ADP will mainly differ from PIP in matters of process rather than eligibility criteria or rates of payment does not preclude such improvements. Furthermore, the prioritisation of a safe and secure transition from PIP to ADP will help minimise the risk of people’s social security award (a possession protected by the first protocol to the ECHR^[19]) being interrupted due to administrative problems, as well as helping to ensure the process takes place efficiently in accordance with principle (h). However, this focus does mean that the planned review of disability assistance in 2023 will be an important opportunity to consider what further improvements might be desirable or feasible once the initial transition has been completed. Responses to both the Scottish Government consultation on ADP and SCoSS’s own call for views on the draft Regulations reveal a number of areas where at least some stakeholders believe there is an opportunity for devolution to result in a better approach. We comment on the scope for improvement and the 2023 review in section 6 below.

In the remainder of this section, we highlight social security principles and human rights obligations to which the introduction of ADP seems likely to be relevant. The policy or operational changes linked to each right or principle will be discussed in greater detail in subsequent sections of the report.

The social security principles are not just about how the devolved social security system should operate, but about the process by which it is designed. According to principle (f), ‘the Scottish social security system is to be designed with the people of Scotland on the basis of evidence’. The people of Scotland have had an opportunity to give their views on the development of ADP and other forms of disability assistance through public consultations on the future of social security in Scotland,^[20] disability assistance^[21] and ADP specifically.^[22] The Scottish Government also works closely with stakeholders with particular expertise on social security when designing policy and processes. Notably, the Disability and Carers Benefits Expert Advisory Group (DACBEAG) has provided extensive advice on the development of the various forms of disability assistance.^[23] Experts by experience – individuals who have received a UK benefit in an area of social security coming under devolved control – have been a particularly important voice in the development of devolved social security. Their evidence has been gathered in a focused way through the social security experience panels, a high proportion of whose work has focused on disability assistance specifically or on aspects of social security administration of relevance to the delivery of disability assistance.^[24] Not every recommendation about the design of ADP to emerge from these processes is reflected in the draft Regulations or plans for operational delivery, but the Scottish Government’s focus on a safe and secure transition and changes to the application and assessment process reflects the priority given to these matters by many stakeholders. Certain other issues highlighted through public and stakeholder engagement may be more relevant to a future review of ADP.

Principle (e) states that the devolved social security system will contribute to reducing poverty in Scotland. ADP will make only a limited contribution to poverty reduction over and above that made by PIP, due to the similarity of the eligibility criteria and rates of payment. However, a small proportion of people may find they are entitled to a higher award following the introduction of ADP,^[25] and changes to application, assessment and review processes could mean more people getting an ADP award than would have received PIP.^[26]

Perhaps the highest profile social security principle states that the devolved system should have respect for the dignity of individuals at its heart (principle (d)). Initially at least, the Scottish Government is seeking to realise this commitment through changes to the operational delivery of social security assistance, compared to UK benefits. In the case of ADP, there is a strong focus on the application and determination process, including how applicants are required to demonstrate that they meet the eligibility criteria. We consider the planned approach in detail in section 5 below. For now at least, ADP retains the deficit approach to establishing eligibility that characterises UK disability benefits. While it is possible to question whether this is the ideal model in terms of protecting system users’ dignity, this is a possible matter for a future review rather than one that can be addressed in the current, transitional period.

Non-discrimination in the context of disability benefits is not only about the treatment of disabled people in comparison to non-disabled people, but the treatment of different groups within the disabled population. Some claimants and advice providers have claimed that PIP operates in a way that unjustly disadvantages certain groups. These include people with a terminal illness who have a life expectancy of more than six months, therefore are unable to claim the benefit under the special rules for terminal illness,^[27] people with mental health conditions and people with fluctuating conditions.^[28] The extent to which ADP ensures equal access to disability assistance for people in these kind of circumstances, or who are otherwise at a potential disadvantage in their access to public services, will only become clear over time and should be a focus of the future review of ADP (principle (g) seeking opportunities to continuously improve the system in ways which advance equality and non-discrimination).

More broadly, people’s enjoyment in practice of their social security rights is a question of procedural justice. The application, (re)determination and appeal processes must provide a fair opportunity for people to demonstrate their entitlement to an award and challenge decisions with which they disagree. Operational matters discussed in section 5 are relevant here; so is the availability of Short-term Assistance to support redetermination requests and appeals by individuals whose existing award is reduced or terminated. Getting decisions right first time is not just in applicants’ interests, but contributes to the efficiency of the system in accordance with principle (h).

A final principle to note is that the Scottish social security system is to be a public service (principle (c)). The ADP Regulations themselves do not make any particular change of relevance to this principle. However, if ‘a public service’ is interpreted as meaning a service delivered by the public sector,^[29] ADP will conform to the description better than PIP due to the prohibition of private sector delivery of any aspect of social security by section 12 of the 2018 Act.