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

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.

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.

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

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.

Recommendation 6: The Scottish Government should work with a range of stakeholders to develop inclusive communications to both the ‘working age’ and ‘65+ groups’ transferring to Scottish Adult DLA to ensure that information about case transfer, entitlement and access to advice and advocacy is tailored as far as possible to individual circumstances.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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

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.