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

SCoSS welcomes having sight of the draft impact assessments and is very grateful to officials for further information provided in answer to our questions on these matters.

The three aims of the public sector equality duty are: to give due regard to the need to eliminate discrimination, advance equality, and to foster good relations.¹Equality and Human Rights Commission – The Public Sector Equality Duty (PSED) This is the framework within which data can be deployed to assess the impact of a particular policy.

6.1 Data

Whilst recognising the value of statistics which can help to give a picture about claimants’ protected characteristics, SCoSS notes that there is limited equality data specifically about people who are in the two cohorts transferring to Scottish Adult DLA. Without such data, assumptions that the impact of changes which align aspects of Scottish Adult DLA with other devolved disability benefits will be positive can only be at a high level of generality as there is limited evidence on which to base this assumption.

The draft equality impact assessment (EQIA) refers to lack of data (for example on race) which renders it difficult to assess the impact of Scottish Adult DLA on meeting the three aims of the public sector equality duty. In particular it would be useful for the revised EQIA to include disaggregate data by age, sex, and by disability where it is possible to do so. It can be helpful to disaggregate disability data, such as by impairment type (though we note the limitations of the current categorisation of ‘qualifying condition’ used in DWP official statistics on DLA). SCoSS welcomes the additional information about qualifying condition sent to us by officials using DWP data.

Observation 1: SCoSS notes that, where possible, breaking down claimant data by protected characteristics such as age, sex and disability, would be helpful to include in the revised Equality Impact Assessment to assist in the understanding of the intersection between different protected characteristics.

6.2 Age differences

SCoSS was pleased to see reference to the intersection between age and disability in the EQIA. As we also noted in relation to Pension Age Disability Payment (PADP), however, retaining parity with DLA rules means that potential age discrimination remains as people getting benefit before reaching state pension age can continue to receive it so long as they remain eligible. In contrast the general rule is that who are above state pension age cannot claim the mobility component or lower rate of care for the first time, nor increase their award if their needs increase, except for those in the “working age group” who transfer during the planned grace period.

Our report on The Disability Assistance for Older People (Scotland) Regulations 2024²Scottish Commission on Social Security – Scrutiny report – The Disability Assistance for Older People (Scotland) Regulations 2024 raised concerns about the lack of a mobility component which relates to the potential for differential treatment by age unless it can be objectively justified (e.g. as a proportionate means of achieving a legitimate aim). Retaining age distinctions sits uneasily in the context of the Scottish Government’s human-rights based approach to devolved social security.

SCoSS notes that Scottish Adult DLA will be a closed benefit, following parity with DLA, and with no new claims. As such it may not carry the same implications as the development of an entirely new benefit (such as PADP). We believe, however, that some of the issues raised in our PADP scrutiny report could also benefit from further consideration.

Whilst retaining age restrictions has been justified by the need to ensure a safe and secure case transfer and retain equivalent passporting within reserved benefits, it may be necessary to consider further mitigations. And, although introducing changes to the process has the potential to improve the experiences of Scottish Adult DLA claimants some of these may be of less relevance to the two cohorts (for example light touch reviews may not be relevant to the expected 99% of claimants who are already on indefinite awards). Also, whilst broadly positive, these changes should not be perceived as negating the need to consider mitigations in other policy areas.

6.3 Cohort differences

There are also distinctions between cohorts, this also cuts across the different eligibility criteria as between DLA and PIP (and thus also between Scottish Adult DLA and ADP). Whilst it could be argued that giving the “working age group” the choice to claim ADP is advantageous to individuals in that group (rather than having a mandatory transfer, as is the case for those under the DWP system who will move from DLA to PIP) this choice can be a risky one (as highlighted in section 3.3.1 above). The choice is also time-limited with a ‘grace’ period of two years which ends on a set date (thus those transferring early will in theory have longer to decide than those transferring later).

Recommendation 7: SCoSS recommends that further equality analysis relating to the “working age group” is undertaken so as to further evaluate potential impacts on them of needing to decide whether to remain on Scottish Adult DLA or claim Adult Disability Payment. Having a choice to claim can be seen as mitigating (for example, by giving claimants more autonomy) the Department for Work and Pensions approach of a mandatory move. However, SCoSS believes that consideration of further actions which could help to give due regard to the public sector equality duty could usefully be undertaken with stakeholders.