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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

3. Policy changes from Disability Living Allowance

There are, however, some changes from DLA which are intended to be introduced from Scottish Adult DLA’s launch. These are explored in more detail below.

3.1 Aligning with other Scottish benefits

A number of the policy changes align Scottish Adult DLA rules with existing rules for other disability benefits in Scotland.

3.1.1 Ongoing reviews and awards

The Scottish Government has signalled its intent to provide ongoing awards, subject to light-touch reviews, for Scottish Adult DLA. As such, any individual who has an indefinite award will not have a review date set but where there is a change of circumstances a review of their award will be carried out.¹ This reflects the Scottish Government’s existing policy on indefinite awards and how these align with reviews of ADP.² It is worth noting that the Scottish Government expects that over 99% of Scottish Adult DLA clients will have indefinite awards at the point of transfer.³

Many of those in receipt of DLA, especially in the “working age cohort”, will not have had any change of circumstance considered since, at least, the change to PIP in 2013. It would make sense to use this opportunity to encourage this group to come forward if their care or mobility needs have increased but they have been reluctant to report them previously when a report would have triggered a transfer to PIP or ADP. This would fit with the Scottish Government’s commitment to delivering value for money as per principle (h) in the social security principles.

In addition, the case transfer process will aim to align a client’s initial review process with the timescale at which their DLA award would have been reviewed. Indefinite awards, therefore, will not be subject to a review after their award transfers to Scottish Adult DLA. While we expect this will be reassuring for individuals, it does miss an opportunity to check whether those on lower or middle rate awards might now be eligible for a higher rate.

3.1.2 Short-term Assistance

Short-term Assistance will be available when Social Security Scotland has made a determination to reduce or stop an individual’s longstanding award to Scottish Adult DLA, and that determination is subject to a request for re-determination or an appeal.

This approach supports social security principles (d) (respect for the dignity of individuals is to be at the heart of the Scottish social security system) and (g) (i) (that opportunities are to be sought to continuously improve the Scottish social security system in ways which put the needs of those who require assistance first). It also encourages the use of redetermination and appeal processes, contributing to realising the right to equal access to justice.

The aim of STA 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, STA could help to realise the right of disabled people to have decent living conditions, as well as contributing to realising the right to appeal and access to justice (principle (b)).

3.1.3 Decision making

There are a handful of cases where scheduled reviews will be required for Scottish Adult DLA.⁴ Clients may also trigger unscheduled reviews by reporting a change of circumstances. In these circumstances, Case Managers will speak to individuals to gain additional information or to clarify details of their application and supporting information. While this reflects the existing policy for disability benefits, we would, however, encourage the Scottish Government to ensure that signposting for advice and advocacy support is prioritised for this group.

3.2 Terminal illness

The definition of terminal illness for Scottish Adult DLA is the same as other Scottish disability benefits but different from DLA and other UK benefits. Unlike DLA where there is a 12-month time limit on life expectancy, for Scottish Adult DLA, the judgement as to whether a person should be considered terminally ill (in draft regulation 26) will be made by clinicians, based on guidance prepared by the Chief Medical Officer.⁵ The Scottish Government considers this change should mean a wider range of conditions will be supported.⁶

Adopting this approach should support principles (d) (respect for the dignity of individuals is to be at the heart of the Scottish social security system) and (g) (i) (that opportunities are to be sought to continuously improve the Scottish social security system in ways which put the needs of those who require assistance first).

People who become terminally ill before reaching state pension age will automatically receive the highest rate of both components of Scottish Adult DLA. People who become terminally ill after reaching state pension age (including those in the “working age group” who become terminally ill after reaching state pension age) will automatically receive the highest rate of the care component but not the mobility component. This is in order to maintain parity with others of the same age in receipt of Pension Age Disability Payment. In these circumstances, an individual who is already in receipt of the mobility component of DLA will not lose their eligibility.

3.2.1 Transfers when people have a terminal illness

For both cohorts of DLA claimants, when someone becomes terminally ill they are required, to report it to the DWP. Where the individual is in the “65+ group” they will be considered first under the DWP’s Special Rules for End of Life, which currently takes around 3 days, and then have an expedited case transfer (4 to 5 weeks) to Scottish Adult DLA.

For people in the “working age group”, a report that a client in Scotland has become newly terminally ill will trigger an expedited case transfer to Scottish Adult DLA without the DWP first assessing them under the special rules. Because changes for this age group in England and Wales trigger a transfer to PIP, the DWP no longer has a mechanism to consider changes within DLA. To do so, would require the DWP to create a new protocol.

SCoSS accepts the need to first transfer the case when someone in the “working age group” on DLA becomes terminally ill before Social Security Scotland can assess their entitlement under the special rules. We accept the explanation that the intention is to expedite the payment to the individual. However, the 4 to 5 weeks it is likely to take is in contrast with the 3 days it would normally take to assess a new claim under the special rules. It is therefore particularly important to ensure that these transfers are being appropriately handled and that a reliable and speedy timescale for their movement from DWP to Social Security Scotland is being achieved.

Recommendation 2: The Scottish Government and Social Security Scotland should work with the Department for Work and Pensions to put in place a monitoring system to consider the rate and efficiency of transfers from Disability Living Allowance to Scottish Adult DLA in circumstances where an individual on Disability Living Allowance has reported a terminal illness.

Recommendation 3: The Scottish Government should set out an approach to work directly with organisations supporting people in circumstances where an individual on Disability Living Allowance has reported a terminal illness and publish guidance on what they should be able to expect.

3.3 No mandatory move to Adult Disability Payment

While the DWP previously committed to enable anyone over 65 in receipt of DLA when PIP was introduced (e.g. anyone born on or before 8 April 1948) to remain on DLA so for as long they are eligible, the Scottish Government has opted to allow all adults still in receipt of DLA, regardless of their age when PIP was introduced, to remain on Scottish Adult DLA for as long as they continue to fulfil the care- and mobility-related conditions.

3.3.1 Option to transfer to Adult Disability Payment

Clients who were born after 8 April 1948 (the “working age group”) will, once they have transferred to Scottish Adult DLA, have the option to apply for ADP if they wish to do so.

As part of the transition from Disability Living Allowance to Personal Independence Payment, in England and Wales, anyone in the “working age group” can make a Personal Independence Payment application at any time and have full access to the mobility component even if they claim after state pension age. The DWP intends to complete the transition from Disability Living Allowance to Personal Independence Payment for the “working age group” by the end of 2025, at which point this policy lifting state pension age restrictions will no longer have effect.⁷

The Scottish Government has noted that it intends to include a similar provision in its own regulations, introducing a ‘grace’ period of two years within which to apply for ADP.

“This will allow those in the ‘working age’ group who apply for Adult Disability Payment to be treated as though they are under State Pension age for their first full determination of entitlement to Adult Disability Payment.”⁸

The Scottish Government has provided some rationale for the decision to introduce a grace period, noting that this “will allow individuals time to adjust to being on Scottish Adult Disability Living Allowance, and to consider, with the help of independent advice, whether they would be better off on Adult Disability Payment, with a cut-off date providing clarity as to when they must make this decision by.”⁹ This does not, in our view, justify fully the decision to provide a hard cut-off date for an individual to make this decision by.

In effect the existence of a grace period prevents, after two years, people who are over pension age and likely to have complex needs from, potentially, having the mobility component of their award increased or awarded for the first time through a move to Adult Disability Payment. We believe that this could put pressure on people whilst they are weighing up a decision.

It may, also, be valuable and justifiable in some circumstances to include a clause allowing them to apply after the cut off date if there is a valid reason for delay to their application. It is possible that there will be circumstances during which an individual may be unable to make that decision, or unable to access support to make that decision, e.g. following a period in hospital or care.

Recommendation 4: There should be provision to extend the two-year grace period when an individual makes a late application with good reason.

In response to questions from SCoSS the Scottish Government highlight that it is not possible “to draw reliable conclusions” on what Scottish Adult DLA to ADP review outcomes may look like in future under Social Security Scotland. Reassessment rates from DLA to PIP, however, suggest that the outcomes may be unpredictable for clients. The equality impact assessment notes that while 47% of those transferring from DLA to PIP see an increase in their awards, around 35% see a decrease. On request of further analysis by SCoSS, the Scottish Government noted that:

“Analysis from 2017¹⁰ indicates that 6,400 people who were in receipt of the highest rate for both care and mobility on DLA lost over £7,000 each per year when they were re-assessed for PIP and their award was disallowed. This represents the highest rate of financial loss to individuals, however it is worth noting that these outcomes relate only to initial outcomes, and does not account for redeterminations and appeals. This analysis also indicates that 20,200 individuals who were in receipt of middle rate care and lower rate mobility on DLA gained over £3,000 each per year when they were awarded the enhanced rate for both daily living and mobility on PIP. Further, 10,800 individuals saw no change to the amount they received when they were re-assessed from middle rate care and higher mobility on DLA to standard rate daily living and enhanced rate mobility.”¹¹

Targeted communications will be particularly important for those people who may make the choice to apply for ADP, outlining both the benefits and risks of doing so and underlining the importance of obtaining independent advice and support whilst going through this process. We are pleased to note that the Scottish Government has committed to signposting to independent advice with particular reference to Citizen’s Advice Scotland for advice and Voiceability for advocacy support.¹² While tailored advice on this matter will be vital, advice should also extend to other areas that will be affected by any change, for example as ENABLE commented in their response to our call for evidence:

“Both the DWP and Social Security Scotland should do their utmost to communicate what is happening and when, but only the independent advice sector can provide claimants with the level of advice required on both their disability benefit entitlement and the impact on other benefits… Advice should not be solely focused on the potential ADP v DLA entitlement, but look at the wider potential impacts on other benefits such as Carers Allowance, Universal Credit, Council Tax Reduction etc.”¹³

SCoSS acknowledges that, while this is a complex and important decision to be able to make, it will be helpful to some individuals. It is, however, crucial that the Scottish Government facilitates people to make a truly informed choice when considering their options.

The Scottish Government notes that it intends to provide clear, easy to understand information in a range of different online and offline channels. These include award and transfer letters and social media as well as hosting roadshows with relevant stakeholders. As noted above, and reiterated in ENABLE’s response to our call for evidence, this information must include signposting to “high quality, independent welfare rights advice”.¹⁴

Some stakeholders noted that the risk in making an application for ADP, by an individual with an existing DLA entitlement, was increased by the lack of any opportunity to have the Scottish Adult DLA award reinstated after an application to ADP results in no award or a lower award than the ended Scottish Adult DLA award. In response to questions on this matter, the Scottish Government noted that draft regulation 28 (5) intends to preclude this from happening (also discussed in section 7.7). This is “because Scottish Adult DLA is a closed benefit (not open to new application), meant only to ease the transition to Social Security Scotland for those still receiving DLA from the DWP and to honour the commitment DWP made to those over 65 when PIP was introduced.”¹⁵

While we accept the Scottish Government’s rationale for not opening renewal claims in these situations, the consequence of this is to place a significant burden on individuals, who may or may not be better off in receipt of ADP, entering a scenario where the outcome is uncertain. It, also, places a further risk on independent advisors to give people strong and solid advice on what they may be entitled to – but may discourage people from maximising their award in some cases where the risk of making an application is so high. Appropriate communication of the risk and rewards in this scenario should receive significant attention from the Scottish Government.

Recommendation 5: The Scottish Government should place particular attention on communicating the risk to individuals when they choose to apply for Adult Disability Payment. This should emphasise that they will not be able to reclaim Scottish Adult DLA if they make this decision.