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

7.1 Overview of entitlement

Draft regulation 3 gives an overview of the ways to qualify for Scottish Adult DLA. They include meeting the care or mobility conditions and qualifying under special rules for terminal illness. The list should also include qualifying for the care component when undergoing dialysis.

Draft regulation 3 also provides for Scottish Adult DLA to be a closed benefit with no route to qualify through making a claim. It sets out the routes to entitlement e.g. through a transfer determination or on appeal to the First-tier Tribunal. The list does not include awards made by the Upper Tribunal or courts. Although, commonly, if the Upper Tribunal quashes a decision of the First-tier Tribunal, it would remit the case back for a new hearing at the First-tier Tribunal, it also has the power to re-make the decision, which, for example, it may do if no more fact finding is required.  We, therefore, believe that reference to Upper Tribunal determinations should be included in the list that current spans draft regulations 3 (1) (d-i). The Scottish Government has, in correspondence with SCoSS, accepted this point and intends to amend the regulations accordingly.

Recommendation 8: Draft regulation 3 should be amended to include the Upper Tribunal and courts in the list of routes to entitlement to Scottish Adult DLA.

7.2 Transferring over pension age with a terminal illness

Draft regulations provide for people with a terminal illness to transfer to the highest rate of the care component and, if under pension age when they transfer, also to the higher rate of the mobility component. There is no automatic entitlement to the higher rate of the mobility component for those over pension age. Instead, they remain on the same rate of the mobility component they were already getting on DLA. Draft regulation 9(3) provides for this restriction but adds an extra test to transfer to the same rate of the mobility component as they were getting on DLA – that the individual must have ‘substantially the same condition’ for which that rate was awarded in DLA. Given that those without a terminal illness would transfer automatically to the same rate of mobility component as they were getting on DLA without any extra test, there is a case for removing the extra test for those with a terminal illness.

Recommendation 9: The Scottish Government should consider removing the extra test in draft regulation 9(3)(a)(ii) and (b)(ii) for those transferring to Scottish Adult DLA over pension age who are terminally ill.

7.3 Eligibility criteria, ‘supervision’

One way to qualify for the care component of Scottish Adult DLA is because of a need for ‘continual supervision’ and one way to qualify for the mobility component is because of a need for ‘guidance or supervision’.  The eligibility conditions are very similar to those for DLA. For DLA, what counts as supervision has been considered in case law. DLA case law considers the meaning in context so ‘supervision’ means something different in the context of the mobility component and the care component. For example, CDLA 42/1994 emphasises that the context for the need for ‘supervision’ for the mobility component is providing something that enables the individual to take advantage of the faculty of walking. Whereas ‘supervision’ in the context of the care component is concerned with continual supervision to avoid substantial danger to the individual or others, which is not a limitation for the mobility component. While DLA case law is not binding in relation to Scottish Adult DLA (or the similar rules in Child Disability Payment and Pension Age Disability Payment) it does provide guidance to how the law should be interpreted and, in the case of devolved disability payments, to how the law should be drafted.

‘Supervision’ in Scottish Adult DLA is defined in the same way for the care component as for the mobility component in draft regulations 12 and 13, that is as:

“…the precautionary or anticipatory presence of another person to monitor an individual’s physical, mental or emotional health including monitoring for obstacles or dangerous places or situations.”¹Draft regulations 12(5)(e) and 13(6)(iii)

This definition appears to have been informed by DLA case law on the mobility component. For the care component, it would be better to align with the equivalent provision in Pension Age Disability Payment, which is informed by DLA case law on the care component and defines supervision as ‘the continual presence of another person for the purpose of reducing the real risk of harm to the individual and to others’. Changing the definition for the care component in Scottish Adult DLA from the way it is currently drafted to match the PADP definition would mean that DLA case law on supervision could continue to inform entitlement to Scottish Adult DLA.

Recommendation 10: The Scottish Government should consider amending the definition of ‘supervision’ for the care component in draft regulation 12 to align with Pension Age Disability Payment.

7.4 Qualifying period

The usual qualifying period for entitlement to Scottish Adult DLA, the same as in DLA, is 13 weeks before the start of the award and 26 weeks after. In DLA, this changes when someone reaches pension age. It is intended to align the qualifying conditions with Attendance Allowance. To mirror this approach in Scottish Adult DLA as intended, the qualifying period over pension age should be 6 months before the start of the award and no forward qualifying period. As drafted, regulations 12(3), and 13(5) and 14(11) incorrectly add a 6 month forward qualifying period. This should be removed, and consequential references in regulation 12(4)(a)(ii) and (b)(ii) emended accordingly.

In practice, this would only apply in a small number of cases, those who newly qualify for a higher rate or different component because of a change in circumstances.

Recommendation 11: Draft regulations 12, 13 and 14 should be amended to align the qualifying period over pension age with the pension age provisions in Disability Living Allowance and Pension Age Disability Payment.

7.5 Eligibility criteria for the mobility component, ‘severe visual impairment’

Someone with a severe visual impairment can qualify for the higher rate mobility component of Scottish Adult DLA.  Severe visual impairment is defined as visual acuity of less than 3/60 or, in some cases, 6/60. These figures correspond to results from the eye chart used by ophthalmologists measured on the ‘Snellen scale’.

A DLA case in the Upper Tribunal²YR v SSWP [2014] UKUT 80 (AAC) has held that relying solely on the Snellen test, a test only conducted indoors, is discriminatory for the purposes of Article 14 of the ECHR. and adversely affects people whose visual acuity is worse outdoors than it is indoors e.g. people with the eye conditions achromatopsia or retinitis pigmentosa. In this case, the judge considered whether the DLA regulation defining visual acuity was compatible with the claimant’s rights under Article 14 of the ECHR and concluded that ‘the regulation cannot be read in a manner that is compatible with Convention rights”.³Regulation 12(1A) The Social Security (Disability Living Allowance) Regulations 1991 SI 2890; YR v SSWP [2014] UKUT 80 (AAC) paragraph 39 Draft regulation 14(5) uses the same definition for Scottish Adult DLA relying on the Snellen test alone, albeit without explicitly referring to Snellen, and so may also be incompatible with Convention rights.

It is outside the competence of the Scottish Parliament to legislate in a way that is incompatible with any of the Convention rights.⁴Section 29 of the Scotland Act 1998 However, DLA case law does not offer an alternative approach and the DWP has not amended the DLA regulation on which draft regulation 14(5) is based. We note that the Snellen scale is also used to decide who should be certified as severely sight impaired but in addition clinicians have flexibility to use their judgement where appropriate. Guidance to ophthalmologists says that “where acuity cannot be accurately measured, a patient may be certified if, in the consultant’s judgement, there are clinical findings/investigations consistent with significantly impaired acuity and/or restricted visual fields.”⁵Para 33 Certificate of Vision Impairment Explanatory Notes for Consultant Ophthalmologists and Hospital Eye Clinic Staff in England, August 2017] This suggests a way to add flexibility to the definition of severe visual impairment in Scottish Adult DLA to make it fairer for people whose vision is worse outdoors.

Recommendation 12: The Scottish Government reviews the test of severe visual impairment in draft regulation 14 to ensure it is compatible with rights under the European Convention on Human Rights.

7.6 Restrictions from pension age

As noted earlier in section 6.2 on equality issues arising from age differences, in DLA, some rules change at state pension age so that there are fewer differences between DLA and Attendance Allowance. For example, DLA has a mobility component whereas Attendance Allowance does not, but once an individual reaches pension age they cannot receive a new or increased award of the mobility component. They can continue to receive mobility component at the same rate if they already receive it. Mirroring DLA, the policy intention is that the mobility component of Scottish Adult DLA is capped at the rate an individual already had before reaching pension age. Draft regulation 25(3) restricts awards of the mobility component after pension age based on entitlement before the day of transfer. However, it seems to be incorrect to refer to entitlement before the day of transfer. What matters is entitlement before the individual reaches pension age which may be later than the day of transfer. For example, someone may transfer to Scottish DLA at age 60 and get the care component only. At age 63, they qualify for the lower rate mobility component. At age 67, over pension age, their mobility deteriorates. They can stay on the lower rate, but they cannot qualify for higher rate mobility. As drafted, at age 67, there could be no award of mobility component at either rate.

Recommendation 13: The Scottish Government should amend draft regulation 25(3) to restrict awards of the mobility component based on entitlement before pension age.

Another difference between DLA and Attendance Allowance is that Attendance Allowance has no lowest rate of the care component. Accordingly, we assume that the policy intention to mirror DLA is that individuals can stay on the lowest rate of the care component if their award already included it before pension age but otherwise cannot get the lowest rate e.g. if care needs go down. However, draft regulations do not seem to provide for this restriction.

Recommendation 14: The Scottish Government should consider whether the policy intention for awards of the lowest rate of the care component after pension age is met in the draft regulations.

7.7 Reinstatement of entitlement after a year

If entitlement to Scottish Adult DLA stops, draft regulation 28 makes it possible for it to be reinstated provided the individual requests this within 12 months of the award ending. Outside of this period, the option would be to claim another benefit instead – e.g. ADP or PADP depending on age. We note that the request must be ‘in such form and with such evidence’ as may be required and there is no provision to extend the deadline. In practice it can take weeks to submit a fully completed form, particularly for applicants who need assistance. This provision is not likely to be much used – there are no fixed term awards ending entitlement as there are in DLA – nonetheless it seems more in keeping with principles (d) (dignity at the heart of social security) and (g)(i) putting the needs of people needing assistance first) to allow some flexibility to accept a late application.

Recommendation 15: The Scottish Government should consider flexibility in the 12 months deadline to reinstate an award where there is good reason for a late request.

The rules allowing reinstatement are more restrictive in Scottish Adult DLA than in DLA for people who were aged 65 or over in 2013. In DLA, there is no bar to making a renewal claim if you have an appeal pending or have made an unsuccessful claim to another disability benefit in the meantime. In practice it is not easy to identify situations that may arise where an individual could be disadvantaged by the Scottish Government’s proposed approach. However, given the potential to remove access altogether to the mobility component, because the alternative to reinstatement would be a claim for PADP which has no mobility component, more consultation on this issue would be reassuring.

Recommendation 16: The Scottish Government should monitor and consult with stakeholders on the potential impact on people who cannot reinstate entitlement to Scottish Adult DLA because of the restrictions in draft regulation 28(5), for example that they have an appeal pending. The results of this consultation could also assist the Scottish Government in meeting the social security principle of continuous improvement and when revising its impact assessments of Scottish Adult DLA.

7.8 Applying for ADP after reporting a change of circumstances

Someone whose condition worsens may report a change of circumstances with a view to being assessed for a higher award of Scottish Adult DLA. They may also apply for ADP if they think they may be better off on ADP, for example, because of access to the mobility component after pension age. As drafted, regulations suggest that Social Security Scotland must take account of the change for the award of Scottish Adult DLA (draft regulation 50), but if they have not done so by the time they are determining entitlement to ADP, they must ignore the reported change for the previous award of Scottish Adult DLA and only take it into account for ADP (draft Schedule 1, Part 1, paragraph 15H(5)). If this is the intention, it would seem to result in some people losing money because of an official delay in acting on a reported change.

Recommendation 17: The Scottish Government should review and clarify how changes of circumstances reported by an individual on Scottish Adult DLA are taken into account if they go on to apply for Adult Disability Payment.

7.9 Miscellaneous drafting issues

There are several places where references to regulations or paragraphs are misnumbered in the draft regulations referred to SCoSS for scrutiny, for example:

• Draft regulations 3, 12, 13, 14 refers to regulation 38 instead of regulation 37.
• References in draft regulation 7(4) and (6) to paragraph (4) should be to paragraph (3)
• Reference in draft regulation 8(1)(c) to regulation 8(4) should be to regulation 9(4).
• Draft regulation 37 contains an inconsistency in wording between paragraphs 1 and 2. Paragraph 1 refers to “the weekly rate of payment of the care component” whereas Paragraph 2 refers to “the weekly rate of the mobility component”. This should be amended for consistency.
• References in draft regulation 44 to regulation 38 should be to regulation 39.
• In draft regulation 59(2, ‘Pension Age Disability Payment’ should read ‘Scottish Adult Disability Allowance’.
• Parts 12 and 13 are incorrectly titled Parts 2 and 3.
• Draft regulation 59(6) should make reference to there being no entitlement to short-term assistance in respect of ‘the component or components for which the value is to be £0’
• Draft regulation 60 omits reference to short-term assistance being paid to an authorised provider of vehicles in respect of a Motability car.
• In Schedule 1, paragraph 1(4)(a)(i), ‘48(c), 48(d), 48(c) or 48(f)’ should read ‘48(c), 48(d), 48(e) or 48(f)’.
• In Schedule 1, Part 1, inserting paragraph 15F(b), the reference to paragraph 15G(4) should be 15G(2).

Recommendation 18: Cross references in the draft regulations should be checked for accuracy.