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The Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2024: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2024

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Contents

1. Introduction

1.1 Overview

The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2024 (henceforth referred to as the ‘draft Regulations’).

As part of the ongoing process of devolving disability benefits, the Scottish Government has replaced Disability Living Allowance (DLA) for children with Child Disability Payment (CDP), and is in the process of replacing Personal Independence Payment (PIP) with Adult Disability Payment (ADP) for eligible people in Scotland. Attendance Allowance (AA) will begin to be replaced by Pension Age Disability Payment (PADP) later in 2024.

Whilst the UK Government began the process of replacing DLA with PIP in 2013, some people have continued to receive DLA from the Department for Work and Pensions (DWP). These people come within two groups:

Firstly, people who born on or before 8 April 1948, making them over the age of 65 when PIP was first introduced in 2013. This group previously received a commitment from the Department for Work and Pensions (DWP) that they could continue to receive DLA for as long as they are eligible to do so. They have never been in scope for transfer to PIP or ADP, and have continued to have any change in their circumstances managed by the DWP under the DLA rules.¹ This group is referred to as “the 65+ group” throughout this report.
The second group is people born after 8 April 1948, who would have been in scope to transfer to PIP before 29 August 2022 and ADP thereafter,² but have yet to do so. This cohort is understood by the Scottish Government to have “long-standing, persistent needs” related to a disability and is referred to as “the working age group” throughout this report.³

The Scottish Government is introducing a new replacement benefit, Scottish Adult Disability Living Allowance (Scottish Adult DLA), which will be launched in Spring 2025.⁴ The rules and eligibility criteria for Scottish Adult DLA are set out in this set of draft regulations. This includes honouring the commitment DWP previously made to the 65+ group to continue to pay DLA so long as they remain eligible.

While a DWP scan of their case management system in July 2023 showed that there are around 85,000 remaining adults in Scotland in receipt of Disability Living Allowance, it is anticipated that around 66,000 people will be in receipt by the start of the case transfer process.⁵ The Scottish Government has decided that there will be no new applications for Scottish Adult DLA, so the size of the DLA caseload is expected to steadily reduce over time.⁶ Around 50% of the overall expected caseload come from the “65+ group” and 50% from the “working age group”.⁷

In 2020, following the devolution of responsibility for DLA, the Scottish Government and the DWP entered into an agency agreement through which the DWP has continued to deliver DLA to people in Scotland. The agreement with the DWP is expected to remain in place until everyone in receipt of DLA in Scotland is transferred to Scottish Adult DLA.⁸

It is worth noting that additional complexity is created (which we refer to throughout this report) as some of the rules relate to restrictions on eligibility based on whether someone is over state pension age when they have a change in their condition which interrelate with rules pertaining to each cohort transferring to Scottish Adult DLA, whether under or over 65 in 2013. The report attempts to make this clear throughout, however it is important to note the differences between the two specific cohorts and these state pension age rules.

1.2 Human rights and principles

As required by the Act, our scrutiny was undertaken with regard to the Scottish social security principles⁹ and relevant provisions of human rights law.

1.2.1 Human Rights Treaty principles

The role of Scottish Adult DLA cuts across dedicated international instruments covering the human rights of both disabled and older people.¹⁰ The human rights of disabled people are promoted and protected by the UN Convention on the Rights of Persons with Disabilities (UNCRPD) adopted by the UN in 2006, whilst the United Nations Principles for Older Persons (UNPOP) was adopted in 1991.¹¹

The UNCRPD principles include respect for dignity individual/autonomy; non-discrimination; participation; respect for differences; equality of opportunity and accessibility.¹² Action to support these principles includes modifying existing laws/practices which constitute discrimination against disabled people¹³ and ensuring that steps are taken to make reasonable accommodations.¹⁴ As a non-means-tested benefit aimed at mitigating additional disability-related costs, Scottish Adult DLA will largely maintain the same level of contribution towards fulfilment of these principles as DLA currently provides. However, the draft Regulations have potential to make an additional contribution in specific areas due to the Scottish Government’s aim of improving processes and rules (such as for terminal illness). There may, however, be areas where additional accommodations could be considered, whether in the Regulations themselves or in their implementation, such as communications and access to support/advice for people in the “working age group” who may be deciding whether to move from Scottish Adult DLA to ADP, as considered in further detail at section 3.3.1.

The UNPOP refers to principles of independence, participation, care, self-fulfilment and dignity.¹⁵ Scottish Adult DLA should contribute to these principles in making a contribution to meeting the additional costs of disability, and continuing entitlement for many recipients. However, the age restrictions discussed above, which can limit entitlement, can have an impact on the extent to which particular principles (e.g. participation of older people) can be met, as we have previously noted in relation to exclusion from entitlement to the mobility component.¹⁶

1.2.2 Social Security principles

The Scottish social security principles are listed in Annexe A. The principles are embedded in Our Charter which sets out what people can expect from the social security system.¹⁷ When viewed through the lens of the social security principles, the introduction of Scottish Adult DLA can represent an investment in the people of Scotland (principle (a)), though with the risk that the decision about whether or not to claim ADP by people in the “working age” cohort could result in reduced or lost entitlement for some claimants, even though others may gain. Such a decision also brings a reliance on independent advice on the risks and rewards of making such a choice.

The implementation of Scottish Adult DLA can contribute towards the principle that the Scottish social security system is efficient and delivers value for money (principle (h)) by having a case transfer programme based on broadly the same eligibility criteria as DWP’s DLA, in place of any new application process. Scottish Adult DLA will be a closed benefit which will not be open to new claims, so numbers receiving it are likely to diminish over time. However, efficiency and value for money also entails considering what is best for those who need assistance.¹⁸

There are challenges for principle (c) (delivery of social security as a public service) in the complexity of aspects of this benefit for recipients and advisers, in particular the significance and potential unintended consequences for people in the “working age group” to decide whether to remain on Scottish Adult DLA or claim ADP, and the difficulty of predicting whether someone would be better off or otherwise on ADP as these benefits have different criteria. Whilst the move is not mandatory (as is the case for DLA-PIP transfers), assumptions of a strength of knowledge and capacity in the independent advice sector to be able to support people to make informed choices should be avoided. These risks could, potentially, be significant given that this cohort appears to include many people with learning disabilities and complex needs. These issues are considered further in section 3.3.1.

Recommendation 1: Given the significance of the decision facing some Scottish Adult DLA recipients as to whether to remain on Scottish Adult DLA or to claim Adult Disability Payment, and the unpredictability of the outcome, SCoSS recommends that the Scottish Government works with stakeholders to consider what adjustments may be needed to ensure that recipients have access to appropriate and timely advice and support.

Scottish Adult DLA can contribute to the principle of social security as a human right (principle (b)), as the intention is that the availability of Short-term Assistance should reduce any disincentive to challenging a decision, thus supporting the right to appeal. The intention is to keep Scottish Adult DLA as close to DLA as possible, so that clients do not experience any significant changes. There are some notable exceptions to this, for example, aligning some rules and processes with other Scottish disability benefits, such as changes to terminal illness rules (improving the experience for claimants, although we note that there are differences between the two cohorts concerning the case transfer process for those who become terminally ill).

Scottish Adult DLA can contribute to the principle of social security as a human right (principle (b) and advance equality (principle (g)(ii)), however differential treatment across the “65+ group” and the “working age group” creates the potential for confusion, complexity and perceptions of unfairness between groups of disabled people even if this approach mirrors DWP age rules.

Proposals for process changes such as light touch reviews should contribute to the delivery of social security as a public service (principle (c)) and related charter expectations to support people with their claims, though if many people have indefinite awards reviews are less likely to take place compared with other disability benefit case transfers. Aligning the definition and process for terminally ill people with other Scottish disability benefits should also help to meet principle (c) (public service), continuous improvement putting the needs of those who require assistance first (principle g (ii)).

This report discusses some of these issues in more detail in later sections of this report, for instance, terminal illness rules (section 3.2) and moving from DLA to ADP (section 3.3).