- Document Cover
- Summary of recommendations and observations
- Executive summary
- 1. Introduction
- 2. Aims of Pension Age Disability Payment
- 3. Take-up
- 4. Policy changes from Attendance Allowance
- 5. Mobility
- 6. Renal dialysis
- 7. Equality issues
- 8. Future changes
- 9. Regulations: areas for clarification
- 10. Approach to scrutiny
- Annexe A: Stakeholder engagement
- Annexe B: Scrutiny timeline
- Annexe C: About the Scottish Commission on Social Security
4. Policy changes from Attendance Allowance
From its launch, the rules for Pension Age Disability Payment (PADP) are mostly intended to mirror Attendance Allowance (AA). This is intended to allow the Scottish Government to transfer AA awards of people in Scotland safely and securely from the DWP to Social Security Scotland. Having the same rules also seeks to avoid creating a two-tier system where people still getting AA are treated differently from disabled people over pension age who have already transferred or have newly applied for PADP.
As noted in previous SCoSS reports, the Commission is clear that good operational delivery that gives people confidence in the continuity of their payments and can effectively administer new claims is critical. Changing the rules too much before the transfer is completed could risk undermining delivery with detrimental consequences for older disabled people.
Despite the focus on safe and secure transfer, there will be some changes from AA when PADP is introduced:
- An increased choice of application route with further assistance available through Social Security Scotland’s Local Delivery Service and the national independent advocacy service.
- Terminal illness eligibility will be on the basis of the judgement of registered medical practitioners and registered nurses as to whether a person should be considered terminally ill, removing the 12-month life expectancy rule in AA
- Ongoing awards will be subject to “light-touch reviews” by Social Security Scotland
- Eligibility for Short-term Assistance (STA) extended to individuals where an entitlement to PADP has reduced or stopped due to a subsequent determination. STA, paid at the rate of the difference between the level of award paid prior to the reduction and the new level of award, will be available to individuals until the First-tier Tribunal for Scotland has made a determination
We consider these immediate changes below.
When compared with AA an extended choice of application route will be offered for PADP which includes online, telephone, paper-based and face-to-face applications. It is particularly important, in the case of PADP, that a range of routes are available as 19% of over 60s (273,000 people) in Scotland do not use the internet and this rises to 29% for over 75s (139,000 people).1Scottish Household Survey, 2021 (www.gov.uk) Calculations of percentages of population of over 60s and over 75s in Scotland are based on NRS mid-year estimates for 2021.
Both Age Scotland and Alzheimer Scotland noted in evidence to SCoSS that AA forms are very long and can “put off eligible applicants from making a claim”.2Alzheimer Scotland response to SCoSS call for evidence, September 2023
“While we understand that applications need to cover a range of information about someone’s disabilities and conditions, it would be more beneficial for applicants if this was a simpler and less arduous process. In our experience, older people often play down the difficulties they experience in their application form or feel they have already covered the issue sufficiently in one of the seemingly ‘repeated questions’, which can result in awards being refused.”3Age Scotland response to SCoSS call for evidence, September 2023
Supporting people through the application is one of the expectations in Our Charter, as is aiming to get decisions right first time. The provision of additional advice and advocacy in the completion of the application process, as for other Social Security Scotland disability benefits, is welcome but Social Security Scotland should ensure that PADP applicants are not similarly inhibited and a more accessible form, designed with the user in mind, is available.
The 12-month terminal illness life expectancy timescale currently used by the Department for Work and Pensions (DWP) in determining AA eligibility will be replaced by a judgement made by registered medical practitioners and registered nurses as to whether a person should be considered terminally ill for the purpose of determining eligibility for PADP. This replicates the approach which has been taken by Social Security Scotland to both Child Disability Payment and Adult Disability Payment.
Stakeholders, including Citizens Advice Scotland and CPAG Scotland, highlighted that the approach taken to determining eligibility for AA for people who are terminally ill had led to delays in receiving entitlement when those with limited life expectancy should be fast-tracked to higher rate payments. This has generated complaints from applicants, at a particularly distressing period in their lives.
Anyone with a terminal illness will be entitled to the higher rate of PADP (as they are for AA). Entitlement will depend on the clinical judgement of an appropriate 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 Guidance4Guidance for Doctors and Nurses Completing Benefits Assessment Under Special Rules in Scotland (BASRiS) Form for Terminal Illness v1.0 (socialsecurity.gov.scot) and notified to Social Security Scotland on a Benefits Assessment under Special Rules in Scotland (BASRiS) form.
The median processing times for applications for ADP under the special rules provisions is currently 2 working days.5Adult Disability Payment: high level statistics to 31 July 2023 (www.gov.scot) These processing times were published for the first time on 19 September 2023, which is welcome, and positive. It appears that a higher proportion of AA claimants receive benefit under special rules than working age claimants.6Stat-Xplore (stat-xplore.dwp.gov.uk) shows, of the cases with entitlement, of 1,584,660 AA claims, 41,005 were made under special rules; and for PIP, of 3,330,160 claims, 29,535 were made under special rules. If older people are more likely to become eligible for PADP due to having limited life expectancy it will be important to maintain the speed of processing times for claims under the special rules for terminal illness. The Scottish Government should closely monitor these processing times to ensure that they are maintained during the introduction of PADP.
When a Case Manager makes a determination to award PADP, they will set a review date based on when they expect a person’s needs are likely to change.7Draft Disability Assistance for Older People (Scotland) Regulations 2024: Draft Equality Impact Assessment (www.gov.scot) This is a change from AA, where the individual could have an indefinite award or a fixed term award (which means an individual needs to reclaim). Although there will be a review date for PADP an award does not automatically end at that point. This is a welcome change as it avoids time pressures on claimants to renew a claim by a set date or risk their payment stopping. By continuing entitlement while a review is taking place, disabled people will continue to receive the assistance they are entitled to until a Case Manager has made a new determination.8EQIA p. 5
In addition to the information on the change provided by the client, each review will consider any existing information held by Social Security Scotland that is still relevant in making a new determination in order to ensure it is as “light touch” as possible.
“Should more supporting information be required to make a determination, case managers take a collaborative approach and can gather the information on the client’s behalf, if that’s the client’s preference.”9Scottish Government response to SCoSS question (response received 9 October 2023)
We welcome that this approach is in keeping with the approach taken to reviews of Child Disability Payment and Adult Disability Payment.10Scottish Government response to SCoSS question (response received 9 October 2023)
Short-term assistance (STA) is a form of social security assistance in its own right. It is a payment for people who are challenging a decision to reduce or stop their Adult Disability Payment or Child Disability Payment, and will also be available in PADP. With STA, people continue to get the same level of payment as before until the redetermination or appeal is decided (Schedule, Part 1 of the draft regulations).
The intention is that people are not discouraged from challenging a decision by having to manage on a reduced income. 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.11Articles 13 and 28 of the Convention on the Rights of Persons with Disabilities (www.ohchr.org)
Whatever the outcome of the challenge STA is not repayable. To avoid double payment following a successful challenge, the amount of STA paid is offset against the award of PADP made for the same period. The result can be that no PADP is paid for the period of the redetermination or appeal. This could have consequences for passported benefits (e.g. DWP benefits), which can depend on actual payment of a qualifying disability benefit.12For example, the severe disability addition of Pension Credit depends on being ‘in receipt of’ Attendance Allowance. Case law, CPC/2021/2008, has confirmed that this means actual receipt not simply being entitled to benefit. STA itself is not a qualifying benefit for passported benefits. Passported benefits include premiums and additions to DWP benefits such as Pension Credit, and carer’s benefits such as Carer’s Allowance and Carer Support Payment.
For example, a disabled older person gets PADP and also Pension Credit. Pension Credit includes severe disability addition of £76.40 a week because PADP is a qualifying benefit for the addition. To be a qualifying benefit, PADP must actually be paid, so any period of entitlement without actual payment will not count. On 1 June, their PADP award is reviewed and terminated. They ask for a redetermination and then appeal. They apply for STA and it is paid at the same rate as the PADP. Pension Credit severe disability addition stops because STA is not a qualifying benefit. Six months later, on 1 December, they win their appeal. The PADP award is reinstated from 1 June. STA paid between 1 June and 1 December is offset against the PADP award meaning no PADP payment is due for that period. Payment of PADP begins from 1 December. Although PADP entitlement has been backdates, it is only when it is actually paid that it becomes a qualifying benefit again for the severed disability addition. Pension Credit severe disability addition starts again from 1 December. The addition is not paid for the six months from June to December because there is no qualifying benefit in payment for that period. Had they not claimed STA, payment of PADP would restart from 1 June as would the severe disability addition. The person gained in the short term by being paid STA during their appeal, but overall is nearly £2000 worse off because of the loss of the severe disability addition.
SCoSS is concerned about the potential for financial detriment that could be experienced by people who have received STA during a redetermination or appeal period, won their award back and, because of the STA, lose out on passported benefits for that period. The Scottish Government has told us that people should tell the DWP if they win an appeal so that passported benefits can be reinstated, and that they are not aware of any cases where STA has blocked access to passported benefits. However, the law is clear that STA is not a qualifying benefit, so the problem is likely to arise.
It is unfortunate to leave people in the position of choosing between some money now or more money later. It should be possible to design a system that offers financial support while challenging a decision without this trade off. In the meantime, it is important that people are told this so they can make an informed decision before claiming STA.
Recommendation 3: The Scottish Government should ensure that information on Short-term Assistance while challenging a decision includes the possibility of not regaining passported benefits in full at the end of the process so that people can make an informed decision about whether to apply.