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

7. Regulations - areas for clarification

7.1 Meaning of terms and case law

Through appeals brought by individual claimants, tribunals and courts interpret social security regulations. These decisions form part of the law, and are referred to as ‘case law’. Decision makers must follow case law as well as the regulations when deciding entitlement in other cases. There are hundreds of PIP cases interpreting the PIP regulations, some setting important principles relating to eligibility criteria. Eligibility criteria are largely replicated in the draft ADP Regulations but despite the similarity, PIP case law does not automatically form part of ADP law. Tribunals and courts in Scotland, who will in time consider individual ADP appeals, will decide to what extent they should follow PIP case law when interpreting ADP regulations. However, the Scottish Government has chosen to incorporate some principles from case law in the draft ADP Regulations. This has the effect of clarifying the law in certain definitions of terms and certain eligibility rules. The intention is to reflect other case law in guidance for Social Security Scotland decision makers. SCoSS believes that this is the right approach. It gives more rights to individuals – if a particular interpretation is in the regulations and the decision maker does not follow the law, an individual can put that right at appeal.

The Scottish Government took advice from DACBEAG to inform their decisions about which case law to include.^[71] Even so, incorporating case law principles is not an easy task. There are a number of examples in the draft Regulations, primarily in regulation 2 and Schedule 1, which list definitions of terms. For example in regulation 2 a new definition of ‘needs’ has been added. It clarifies that ‘needs’ relating to an item or function means they are ‘reasonably required’. Thus it includes needs beyond mere medical necessities and also where something is needed but not actually available. Another amended definition clarifies that an aid or appliance can be an ordinary household item. Both are helpful clarifications and in keeping with Scottish social security principle (d) (respect for the dignity of individuals).

One choice to amend a definition may inadvertently narrow eligibility further than has been established in case law. In Mobility Activity 1, descriptor 1(e), an individual scores points if they ‘cannot undertake any journeys at all because it would cause overwhelming psychological distress ….’ whereas the corresponding PIP descriptor simply refers to ‘any journey’. The amended definition may be meant to convey that there is no distinction to be made between familiar and unfamiliar journeys, which is consistent with case law. However, the intention (in PIP) is that an individual would score points under 1(e) if most days they cannot manage a single journey.^[72] The risk in embedding the words ‘at all’ in the descriptor is that this is interpreted more narrowly as meaning the individual would only score points if they cannot manage a single journey ever. In this case, it may be wiser to clarify the intention in guidance rather than in the regulations.

The opportunity could be taken to clarify an ambiguity in Daily Living Activity 3 (Managing therapy or monitoring a health condition). In descriptors 3(c) to (f), it is not clear whether an individual scores points based on the time taken to assist (e.g. to help attach a TENS machine to relieve pain) or the time taken for the therapy (e.g. however long a TENS machine is in use). Case law has clarified that it is the former.^[73]

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).

7.2 Overlapping entitlement with other benefits

There is no entitlement to ADP while an individual is entitled to Attendance Allowance (AA), CDP, DLA, PIP or Armed Forces Independence Payment (AFIP). While there can be no overlapping entitlement, it is possible for there to be overlapping payments e.g. where entitlement is removed retrospectively after payment has already been made. To avoid duplication of payment for the same period, where there is ADP entitlement for a period for which a person has already been paid one of the other disability benefits, only the difference will be paid in ADP (draft regulation 4(2).

Such offsetting can be helpful. Adjusting entitlement avoids the cumbersome alternative of paying money out with the one hand and separately recovering an overpayment with the other hand. However, it is not clear that the provision would necessarily prevent overpayment recovery action from being taken, whether by Social Security Scotland or the DWP, for example, someone having to repay PIP to the DWP, but still getting less ADP. On a further technical point, as drafted, the regulation does not specify that the difference is paid only when the ADP award is higher.

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.

7.3 Daily living and mobility component entitlement

Mental health conditions, learning disabilities and cognitive impairments – terminology

Draft regulations 5 and 6 set out that an individual is entitled to the daily living or mobility components if their ability to carry out the daily living or mobility activities is limited by their physical or mental health condition or conditions. Draft ADP regulations differ from PIP regulations in that ADP refers to ‘mental health condition’ whereas PIP refers to ‘mental condition’. Mental conditions include learning disabilities and cognitive impairments such as dementia as well as mental health conditions such as depression and anxiety. Elsewhere in the draft ADP regulations, a distinction is made between ‘mental health condition’ and ‘learning disabilities’ or ‘intellectual or cognitive impairment’.^[74] The 2018 Act refers to ‘disability arising from physical or mental impairment’.^[75] To avoid ambiguity, there should be more consistency in terminology.

We commend attempts to introduce more positive words to describe people, which is an aim in Our Charter.^[76] However, using ‘mental health condition’ as a catch-all term risks inadvertently excluding people with learning disabilities and cognitive impairments. There may be no single accepted term that encompasses this range of conditions.^[77] SCoSS sought views from stakeholders and is grateful for the feedback received which pointed to other relevant consultations which could inform these regulations.^[78]

The Commission considers that further consultation is needed with people with lived experience both to inform the terminology used in the law, and how people are described in forms and communications.

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.

Reliability criteria

Draft regulation 7 provides a way of deciding whether someone can or cannot carry out a points-scoring activity using four measures: being able to do so safely, to an acceptable standard, repeatedly and within a reasonable time period. These are often referred to as ‘reliability criteria’. Regulations further define these terms.

Draft regulation 7(4)(a) adds to the PIP definition of ‘safely’, which refers to a manner ‘unlikely to cause harm’, a further consideration of the likelihood of harm and the severity of the consequences. This change, based on case law, is welcome. Examples in guidance would further bolster this important provision to ensure that risks which are a real possibility albeit relatively unlikely are taken into account if they cannot sensibly be ignored. For example, someone who removes a cochlear implant to shower and so could not hear a fire alarm could score points for needing supervision to bathe.^[79]

‘To an acceptable standard’ is not defined in PIP regulations. Draft ADP Regulations insert a new definition in regulation 7(4)(b). This refers to ‘a reasonable standard for the activity, taking account of the impact on the individual’. We understand that the Scottish Government’s intention is that the definition should take account of the impact of such factors as pain and fatigue.^[80]

In SCoSS’s view, tightening definitions in the reliability criteria in this way should help Social Security Scotland case managers make fairer and more consistent judgements about whether people can or cannot manage the various activities that make the difference between getting or not getting benefit. Just as important as regulations is how they work in practice. Case managers should be steered by operational practices that give people the opportunity to explain impacts such as pain and fatigue, and that ensure they are taken into account as a matter of course.^[81] Because these reliability criteria underpin so much of the decision making, having clear definitions and good operational practices will be an important contribution towards meeting the Our Charter intention to ‘make decisions in a way that is consistent and accurate – and aim to get them right first time’.^[82] Whether there is scope to further reinforce definitions, and how they are applied in practice, should be kept under review.

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.

7.4 Required period condition

It is a condition of entitlement to ADP that an individual meets the ‘required period condition’ and also satisfies descriptors over 50 per cent of the days in the ‘required period’. In PIP, both are composed of two periods – a 13-week retrospective period and a 39-week prospective period. Each must be satisfied before an award can be made. In draft ADP regulations, while the ‘required period’ is the same as in PIP – two separate periods – draft ADP regulations 11 and 12, condense the two parts of the required period condition into a single period. These are complex provisions so the consequences of changing the drafting are difficult to foresee. However, the risk is it leads to uncertainty and appeals about whether a person needs to satisfy descriptors over the 13-week and 39-week periods separately, or over a single 52-week period.

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.

7.5 Payment after an interval

Normally to qualify for ADP, a person must be able to satisfy the points-scoring activities from 13 weeks before the date they apply. This is the past period part of the ‘required period condition’ (there is also a forward period of 39 weeks to satisfy). If they re-apply after a gap in entitlement of up to two years, there is no need to re-satisfy this 13-week condition if the application is based on largely the same health or disability conditions as before (draft regulation 14). The rule links two awards of ADP, but also applies where the person applies for ADP within two years of the end of a CDP, DLA or PIP award.

This is a complex rule. There is a technical drafting issue relating to the linking of previous CDP or DLA awards with a new ADP application. Draft regulation 14(1)(c) requires the CDP or DLA award to have the ‘same component’ as the ADP award. However, CDP and DLA are structured differently from ADP. It is not clear that having had an award of the CDP or DLA care component would count as the ‘same component’ as an award of ADP daily living component. Simplifying this rule would be desirable e.g. by lifting the 13-week past period requirement for any linked awards.

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.

There is a further drafting issue in the rule that links two awards after the person has reached pension age (draft regulation 24(3)). This refers erroneously to subparagraphs (a) and (b) in draft regulations 11 and 12 that do not exist.

7.6 Residence and presence conditions

To be eligible for ADP, people must be ‘ordinarily resident in Scotland’ and ‘habitually resident in the UK, Ireland, Isle of Man or the Channel Islands (the ‘Common Travel Area’). It is not enough to be resident in the country, they must also be actually present in the UK (or Common Travel Area) and have been present for at least 26 weeks in the first 52 weeks (referred to as ‘the past presence test’). There are exceptions to allow for temporary absences, for certain occupations e.g. army personnel outside of the UK, for refugees and for those with a terminal illness and for people covered by social security co-ordination rules e.g. in the EU withdrawal agreement.

Since these draft regulations were referred to SCoSS, emergency regulations have been introduced to allow people evacuated from Afghanistan under the UK Government’s relocation and resettlement schemes to access benefits as soon as they arrive.^[83] SCoSS plans to scrutinise these emergency regulations retrospectively. We understand that the version of the ADP regulations laid before the Scottish Parliament will contain corresponding provisions to exempt this group from the habitual residence test and the past presence test. We will consider these ADP provisions in the course of our scrutiny of the emergency regulations.

Technical and drafting issues

Draft regulation 17(2) disapplies the past presence test to serving members of the armed forces and civil servants working abroad on the basis 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.^[84]

SCoSS reported on a similar measure in CDP noting that, as drafted, the regulations require 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.^[85]

We are grateful to stakeholders for pointing out that exemption from the past presence test may only be effective while overseas and not on return to the UK, which would mean members of the armed forces, civil servants and their families could lose ADP entitlement on return to the UK. Presence abroad is only clearly treated as satisfying the ‘on-the-day’ presence condition in draft regulation 15(1)(d) rather than also satisfying the past presence test in regulation 15(1)(e). The same issue could arise for aircraft workers and others treated as meeting presence conditions under draft regulation 18. As drafted, they are treated as meeting those conditions while abroad, rather than days abroad counting for the purposes of the past presence test.

Rules permit temporary absence from the UK (or Common Travel Area) for 13 weeks for any reason, or for 26 weeks for medical treatment. After that entitlement to ADP ends. The rationale for entitlement ending is to align with PIP. However, it will not align with CDP under current proposals. SCoSS reported on a measure in CDP that provides that in the same circumstances, CDP entitlement will not stop, there will just be a temporary stop on payments.^[86] The rationale for the CPD policy is to minimise the need to re-apply for CDP on return to the UK, reducing stress and anxiety on families and carers. The EQIA (Equality Impact Assessment) notes the bigger impact of loss of entitlement on third country nationals who need to be absent for longer for family reasons.^[87]

In addition to these residence and presence rules, there is a requirement that people must not be subject immigration control. This is defined in the Immigration and Asylum Act 1999. For example, this excludes from ADP people whose stay in the UK is subject to the condition that they have no recourse to public funds. We would welcome clarification about whether an amendment is needed to ensure that the exceptions in The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 apply to ADP (and CDP) applicants.

Recommendation 18: The Scottish Government considers whether the residence and presence conditions accurately reflect the policy intent, specifically:

e. 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.

f. Whether draft regulations 17(2) and 18(1) cover a return to the UK as well as periods overseas.

g. 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.

h. Whether a consequential amendment is needed to ensure that exceptions to the immigration conditions apply to ADP (and CDP).

7.7 Age rules

To qualify for ADP, a person must apply before they reach pension age, currently age 66, but once on ADP, there is no upper age limit to the award continuing (draft regulation 23). People who apply once they reach pension age, currently need to claim Attendance Allowance, or when it is introduced, Pension Age Disability Payment. The most obvious difference between pre- and post-pension age disability benefits is that ADP has a mobility component whereas Attendance Allowance does not. Being able to remain on ADP, therefore, ensures that people do not lose their mobility component as they get older.

Simplification

The ADP pension age rules mirror those for PIP. These are complex and widely misunderstood. For example, some stakeholders responding to the Scottish Government’s consultation on draft ADP Regulations commented that they were difficult to understand and contained too much jargon.^[88] With a need to maintain a like-for-like system during the transition from PIP to ADP, there may be little scope for simplifying these pension age rules in regulations, but clear guidance with examples will be needed for Social Security Scotland decision makers, as well as clear information and advice for individuals and their advisers.

Where there is an opportunity to use less jargon, this should be taken. For example, all the references to the ‘relevant age’ could be replaced with ‘pensionable age’.

In our previous scrutiny report on CDP, we thought it likely that some people would be confused about which benefit to apply for, particularly at ages of transition between Child Disability Payment and ADP (16 to 18). If anything, there is more scope for confusion at pension age. The Scottish Government responded to our report saying they would ‘consider the best way of ensuring that individuals apply for the correct type of assistance, including how best to quickly accept an application made for the wrong type as the correct type in a way that is transparent and fair to clients’. We would welcome an update on progress, and how this will translate to applications from pension age.

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.

Transferring to ADP from PIP or DLA

Rules about transferring awards of PIP paid to people in Scotland by the Department for Work and Pensions to awards of ADP paid by Social Security Scotland are not in scope for SCoSS’s scrutiny and have not been referred, although they are expected to be included in the final version of the regulations laid before the Scottish Parliament. We, therefore, make no comment on this ‘case transfer’ except to note that the ADP age rules as they stand (draft regulation 23) may not permit someone entitled to PIP or DLA who is now over pension age to be transferred to ADP without having to make an application.

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.

Mobility component restrictions in planned and unplanned reviews

One source of complexity and confusion is what happens to the rate of the mobility component after pension age, awarded before pension age, when an individual’s disability or health condition later deteriorates or improves. The general principle is that changes to disability or health after pension age do not give an individual access to more ADP than they could get in Attendance Allowance (which has no mobility component). Hence, rules provide that a person can stick at the rate of mobility component they are on, or go down from the enhanced to the standard rate, but they cannot go up a rate or stay on the same rate on the basis of a different condition (draft regulation 25).

We would welcome clarity over how the mobility component restrictions apply in some areas in particular: 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 enter or leave a care home, hospital or legal detention.

• Planned reviews. Draft regulation 25, and thus these restrictions to the mobility component, bites if the ADP award is changed in an unplanned review when Social Security Scotland are notified of a change in circumstances that took place after pension age (under draft regulation 49(a)). That seems correct. However, if an ADP award is changed in a planned review under draft regulation 48, it is not clear that the restrictions would apply, as we assume is intended.
• Special rules. It is not clear what restrictions would apply to someone with a terminal illness diagnosed after pension age, or where a BASRiS form is received after pension age but dated before pension age. Draft regulation 25(2)(b)(ii) would appear to prevent the enhanced rate of the mobility component being paid in both situations. If draft regulation 25(2)(b)(ii) is intended to apply solely to determinations under the special rules, this should be more clearly stated. If it is intended to apply more broadly, it would appear to be more restrictive than necessary. It seems to result in access to the mobility component for someone whose deterioration in health or disability occurs before pension age depending on whether the deterioration is evidenced by a healthcare professional after pension age (no entitlement) or evidenced some other way (entitlement).
• Care home, etc. Draft regulation 25 makes no distinction between different kinds of changes of circumstances. If the only reason for determining an award is to change the rate to or from £0 as someone enters or leaves a care home, hospital or legal detention, it would not be fair to question their mobility component entitlement.

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.

7.8 Redetermination and appeals

In our scrutiny reports on the draft Scottish Child Payment regulations and the draft CDP regulations,^[89] we drew attention to the need for clarity on how changes of circumstances would be taken into account while a redetermination or appeal was underway, for example, whether an appeal tribunal would decide an award based on circumstances at the day of the hearing or whether a new application would be required. We note that this will also be an issue for ADP where clarity will be needed for individuals, case managers and tribunals. The Scottish Government believes that this is sufficiently addressed in the regulations, and plans to set out further detail in guidance. The Commission notes that there is no guidance on this issue as yet, and would urge that the policy intention is made clear. We remain of the view that clarity would be best achieved in legislation, either in regulations or in the Act, and suggest that this option is reconsidered.

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.

7.9 When an increase in level of entitlement takes effect

When an individual reports a change of circumstance that means they are entitled to a higher amount of ADP, when the new entitlement takes effect depends on when they report the change. If it is reported on time (within a month, or within 13 months if there is good reason for the delay), the increased entitlement starts from when conditions for the higher amount are met. However, if they report the change late, the new entitlement starts ‘when the Scottish Ministers make the determination’ (draft regulation 45). SCoSS reported recently on the same provision in relation to CDP.^[90] The report notes that starting entitlement only when the new determination is made, rather than when the change is actually reported, 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. Not paying from the date the change is reported appears to be punitive and not in keeping with the notion of social security as a human right, as set out in principle (b). The Scottish Government agreed in correspondence to re-examine this provision. The same issue of fairness applies to when increased entitlement starts if an award is increased as a result of Scottish Ministers becoming aware that the original determination was made in ignorance of a material fact (draft regulation 45(b)(ii)).

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.

7.10 Transfer from Child Disability Payment to Adult Disability Payment

There is a clear age divide between CDP and ADP at the 16^th birthday. Before the 16^th birthday, a claim for a disabled child must be to CDP. From the 16^th birthday, a claim must be to ADP. There is a choice for young people already entitled to CDP when they reach 16. They can either claim ADP when they reach 16, or delay claiming ADP and instead stay on CDP until their 18^th birthday.

CDP and ADP have different eligibility conditions. There is no guarantee of qualifying for ADP or of getting the same rate. Because of this, it is expected that most young people will delay claiming until they reach 18. Only those who think they will be better off on ADP are likely to choose to claim earlier. If they do make the decision to claim ADP but it is not awarded, the Commission understands that their CDP will nonetheless continue as normal until they reach 18. This flexibility is welcome. There is a lot of change as young people finish school and consider options for the future so providing a measure of financial stability during transition planning is helpful.

To transition from payments of CDP to ADP when ADP is awarded, the intention is that the CDP award will end the day before the ADP award begins, which is the date that the ADP award is determined. It could take weeks from application to determination, or longer if there is a further redetermination or appeal. To avoid anyone whose ADP award is higher than their CDP award from missing out during this period, draft regulation 56 backdates any extra entitlement to the date the ADP application was received. In the Commission’s view, this backdating provision for CDP to ADP transfer is likely to be regarded as fairer than the provision for people transferring from DLA to PIP where the PIP award cannot be backdated to the date of claim. There may, therefore, be less likelihood of legal challenge on human rights grounds, as has happened in the case of DLA to PIP transfers.^[91]

Young people who are terminally ill should see no difference in their award as they transfer from CDP to ADP. Social Security Scotland will transfer them to the maximum rates of the care and mobility components of ADP with no requirement for an application or for any further evidence (draft regulation 57). This seamless transition is welcome, and in line with Our Charter expectations of supporting wellbeing and making processes as simple as possible.^[92]

However, the transfer process will be much less straightforward for others who will be required to complete an ADP application form. A successful process is likely to be one that communicates clearly and inclusively, actively offers support, and offers multiple chances before withdrawing support. Social Security Scotland communications will need to be tested with the young people and families who will use them.^[93] The number of people who fail to apply for ADP and the reasons why they fail should be monitored with a view to learning and improving the processes to eliminate any drop outs other than through positive choice.

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.

7.11 Provision of vehicles

A person can use their enhanced rate mobility component to lease a powered wheelchair or car adapted for their needs. Motability, the charity which delivers this scheme for DLA and PIP, has been accredited by the Scottish Government to provide the same scheme for ADP (and CDP). This continuity is welcome and important for people in the transfer from PIP to ADP. We also welcome that the draft Regulations explicitly provide for STA to be paid to Motability while a redetermination or appeal is underway, however long the appeal may take (draft Schedule 2, paragraph 2).