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

4. Policy changes from personal independence payment

The Scottish Government’s ambitions for ADP as it is introduced focus on changes intended to improve the way disabled people experience the system. Some of these changes are operational and administrative and we consider these in section 5 below: application processes, local delivery service, evidence for decision making, rolling awards. Other changes are set out to some extent in the draft Regulations: definition of terminal illness, conditions about residence in the UK, the introduction of Short-term Assistance. We consider these below.

4.1 Terminal illness

Under special rules, people with a terminal illness are entitled to the enhanced rate of both the daily living component and mobility component of ADP (draft regulation 26). Entitlement depends on the clinical judgement of a healthcare professional that the person has a progressive disease that can reasonably be expected to cause their death. Clinical judgement is based on Chief Medical Officer Guidance and notified to Social Security Scotland on a BASRiS form, which stands for Benefits Assessment under Special Rules in Scotland. Entitlement starts from the date of application for ADP without the usual 13-week qualifying period and can be backdated for up to 26 weeks.

Differences in the Scottish approach

There are differences in ADP compared with PIP: in the definition of terminal illness, in how it is notified, in the amount paid and length of award.^[30]

In ADP, people are paid the enhanced rate of both the daily living and mobility components, whereas in PIP just the enhanced rate of daily living component is paid, not the mobility component which people must apply for on the basis of mobility needs. Living with a terminal illness can mean extra costs, for example, for heating, special diets, support to manage health, transport and to spend time with family and friends. Paying maximum entitlement with the minimum of red tape is welcome and in accord with the social security principle of respect for dignity, and with the Charter commitment to make systems simple and clear.^[31]

Currently, to qualify for PIP under the special rules, a person must have a progressive disease and be reasonably expected to die within six months.^[32] For ADP, there is no time limit on life expectancy. Entitlement depends on a clinical judgement based on guidance that a progressive disease can reasonably be expected to cause death. The intention is that removing the time limit will bring special rules entitlement to those with progressive diseases where the end of life is harder to predict. This is likely to make the system fairer by removing a source of discrimination against terminally ill applicants who fall outside the special rules for PIP. Indeed, since the Scottish Government announced its intention to remove the six-month limit on life expectancy for awards under the special rules, the High Court in Northern Ireland has held that the limit unlawfully discriminates against terminally ill people with a longer life expectancy, contrary to article 14 ECHR.^[33] While the Court of Appeal reached the opposite conclusion,^[34] in the absence of a Supreme Court judgment it would be unwise to assume that the Scottish Government and Parliament would have had competence to replicate the six-month time limit in the draft Regulations, as the Scotland Act prevents them from acting contrary to ECHR.^[35]

According to analysis undertaken with health professionals tasked with making these clinical judgements, the change is likely to mean terminally ill people will be on benefit for longer.^[36]

There are implications for people in Scotland of there being different rules for UK and Scottish benefits. For DWP benefits, evidence of terminal illness is supplied on a form, DS1500, while for Social Security Scotland benefits such as ADP, it is supplied on a BASRiS form. The Commission believes that administrative requirements must on no account take precedence over the needs of terminally ill people. We commend the approach of the Scottish Government in making it clear in guidance that someone who already has a DS1500 form will not have to supply a BASRiS form too. It is to be hoped that the DWP will similarly accept a BASRiS form as sufficient evidence to decide access to special rules for Universal Credit (UC) and Employment and Support Allowance (ESA).^[37] However, there is clearly scope for confusion, amongst clinicians as well as staff in the DWP and Social Security Scotland. Official guidance to clinicians in Scotland in relation to CDP (which has the same terminal illness rule as ADP) is that during the transition period, if a clinician sends a form to the wrong department, it will be transferred to the correct department.^[38] However, confusion could well outlast the transition period during which disability benefits transfer to Scotland.

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.

4.2 Residence conditions

The Scottish Government’s initial intention is to broadly replicate the residence rules in PIP.^[39] Eligibility for PIP depends on having been present in the UK or Ireland for at least 104 weeks out of the last 156 – called the ‘two-year past presence test’.^[40] Following their public consultation on draft ADP regulations in which some stakeholders expressed the view that the two-year past presence test was discriminatory and incompatible with the social security principles of dignity and respect, and of social security being itself a human right, the Scottish Government decided to change the regulations to reduce the past presence test to 26 weeks out of the last 52 weeks. This brings the rules in line with CDP which removes any issues with the interface for young people transferring from CDP to ADP. ^[41] We welcome this change as one that is likely to advance equality and non-discrimination.

The Commission notes some technical issues with the draft Regulations on residence and presence in section 7.6 below.

4.3 Short-term Assistance

Short-term Assistance (STA) is a new type of assistance which is not part of the UK system. It is a form of social security assistance in its own right, but only available to people whose ADP has stopped or reduced who go on to apply for a redetermination or appeal. With STA, people will continue to get the same level of payment as before until the redetermination or appeal is decided (Schedule 2, Part 1). STA is also available with CDP.

The intention is that people are not discouraged from challenging a decision by having to manage on a reduced income.^[42] As a payment to help avoid a sudden drop in income when a disabled person may well still have extra costs, it is reasonable to say that STA helps realise the right of disabled people to have decent living conditions, as well as contributing to realising the right to equal access to justice.^[43]

STA is not repayable whatever the outcome of the challenge. For people considering challenging a decision, STA is a clear incentive to request a redetermination and appeal. The Scottish Government expects the number of appeals not to change significantly, or even to reduce compared to PIP as a result of better decision making by Social Security Scotland.^[44] (As we note below (section 5.2), the new system has potential to get more decisions right first time e.g. through actively seeking information to cover gaps in evidence.) However, the Scottish Fiscal Commission estimates (albeit with caveats on the difficulty of forecasting the consequences of new policies) that people whose award is stopped or reduced will ask for a redetermination in 90 per cent of cases because of the financial incentive of STA.^[45] A very high appeal rate is not normally a sign of a smoothly functioning system. STA is intended to help people overcome barriers to challenging decisions so more appeals are to be expected if STA works as intended. However, if as many as nine out of ten people challenge decisions, an unintended consequence may be that STA acts to some extent as giving time to adjust to a reduced income – in effect a ‘run on’. This may be a benign consequence for individuals. In response to the Commission’s report on CDP, the Scottish Government committed to monitoring behavioural impacts of STA and the extent to which it allows people to overcome barriers to challenging decisions. ^[46] We would reiterate that looking for, and monitoring unintended consequences should also be undertaken.

With appeal numbers being a ‘known unknown’, there needs at least to be the flexibility to manage more redetermination and appeal cases while maintaining timely, high quality decision making. By enabling payment to continue from the point an appeal is lodged until its outcome, it is possible that STA could result in an increase in appeals regardless of the accuracy of initial decision-making. An increased number of appeals where a high proportion are unsuccessful would indicate that initial decision making was in fact accurate. It could just indicate that people are incentivised to appeal irrespective of any realistic chance of success. Thus, evaluating the extent to which STA is meeting the policy objectives is not a straightforward matter of comparing how many people challenge decisions compared with PIP. It is respective success rates, not numbers of appeals, that could provide a comparator on quality of initial decision-making. More broadly, we would encourage the Scottish Government to make sure that the right data is collected to allow a meaningful analysis to ensure that STA is contributing to an efficient system that delivers value for money.

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.

STA is not available to young disabled people who reach the age when they must apply for ADP instead of CDP. There is significant flexibility for young people on CDP to choose when to apply for ADP without the fear of losing CDP if ADP is not awarded (draft regulation 56). However, once passed their 18^th birthday, there is no provision either to continue to pay CDP until that redetermination or appeal is concluded or pay STA. We considered in our recent report on the draft Disability Assistance for Children and Young People (Amendment) Regulations that young people might well be protected by the non-discrimination provisions of the European Convention on Human Rights (article 14) and other human rights agreements (for example, article 2(2) ICESCR).^[47] We noted that 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 STA while the other cannot for no reason other than the requirement to move between forms of disability assistance at a given age. Consequently, we recommended in that report that individuals in this position should be treated as an exception to the general rule that STA is only payable where there is a change to an existing entitlement, not following an initial application/determination. The Scottish Government indicated to the Commission at that point that it shared the view that there should be no immediate loss of entitlement if ADP is not awarded initially. For clarity, we reiterate the recommendation in this report.

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.