The Disability Assistance (Miscellaneous Amendments) (Scotland) Regulations 2023: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Disability Assistance (Miscellaneous Amendments) (Scotland) Regulations 2023

2. CDP to ADP journey

Regulation 4 of the CDP Regulations stipulates that CDP is normally payable to individuals under 18 years old and sets out the limited circumstances in which an individual in receipt of CDP can continue to receive the benefit after their 18th birthday. Draft Regulation 3(3) amends these provisions, largely to further narrow the circumstances in which a CDP award can continue after the individual turns 18.

The CDP Regulations currently contain broad provisions allowing any ‘transferring individual’ – that is, someone who has moved or is moving from DLA to CDP – or any individual who is awarded CDP in Scotland on the basis that they were previously in receipt of DLA in another part of the UK, who then reaches the age at which they are required to transfer to ADP, to continue to receive CDP until their ADP application is determined, or until their 19th birthday, whichever comes first.

Scottish Government officials have explained to SCoSS that the original policy intent was for this to be a transitional provision only, affecting the early cohort of CDP recipients as they transfer to ADP. Accordingly, the amended Regulation will stipulate that transferring individuals and DLA recipients who move to Scotland from another part of the UK will only automatically be able to receive CDP after turning 18 if their 18th birthday falls on or before 31 December 2023.

Scottish Government officials have advised SCoSS that the purpose of the provisions was to protect individuals who only had a narrow window between the introduction of ADP and their 18th birthday from gaps in entitlement because they may not have had sufficient time to apply for ADP and receive a determination of an ADP application quickly enough. This risk should not exist with subsequent cohorts who will have received the full suite of correspondence from age 16 that encourages them to make an application for ADP. Transferring individuals turning 18 on or before 31 December 2023 have not received this same correspondence due to them being transferred to CDP later.

Nonetheless, CPAG’s submission of evidence to SCoSS suggested that it ought to remain possible to continue a CDP claim beyond the 19th birthday for all individuals who have applied for ADP before turning 18 but not received a determination.

Another new provision – Regulation 4(1C) CDP Regulations – stipulates that certain individuals in these two groups can continue to receive CDP for a very short period after their 19th birthday.1 The draft Regulations as referred stated that such individuals ‘may continue to be paid’ CDP. Following enquiries from SCoSS, the Scottish Government has advised that the Regulations to be laid before Parliament will more clearly state that individuals in the relevant circumstances will remain entitled to CDP. This will only apply when a determination of entitlement to ADP is made less than four weeks before the individual’s 19th birthday. In such cases, the individual will receive one more payment of CDP, which might fall up to four weeks after their 19th birthday, with the ADP award commencing on the following day.2 In practice, few, if any, individuals who move to Scotland between now and the end of 2023, having previously been in receipt of DLA in another UK country, will be affected. At this point, almost all people of the relevant age in England, Wales and Northern Ireland will have been required to apply for PIP.

This is a welcome measure that will avoid the risk of a gap in entitlement, or the disruption of a change of payment cycle at the point of transition to ADP, for a cohort that will already (and recently) have gone through the challenge of moving from DLA to CDP. If the determination is that the individual is not entitled to ADP, then the CDP award will end on their 19th birthday.

In response to an enquiry from SCoSS, the Scottish Government has stated that it is monitoring and prioritising the small number of ADP applications that concern individuals in the final months of a CDP award in order to minimise the risk of CDP payments ending before entitlement to ADP has been determined. Officials reported that 57% of ADP applications are determined in 41 to 80 working days and there is no significant difference in processing times for applications made by CDP recipients.

Other groups who are currently able to continue a CDP award after their 18th birthday under Regulation 4(1B) CDP Regulations – individuals whose award is under the special rules for terminal illness (no upper age limit) – are unaffected by these amendments. Following discussions with SCoSS, Scottish Government officials have advised SCoSS that Regulation 4(1B) CDP Regulations will be revised to more explicitly state that no upper age limit applies to terminally ill CDP recipients. This does not appear to make any difference legally, but will bring welcome additional clarity.

Regulation 58(2)(a) ADP Regulations adds that, where a person has applied for ADP whilst receiving CDP, but whose ADP determination is not made until after the CDP award has come to an end, their entitlement to ADP begins on the date of determination. In this scenario there would be a gap between the end of the entitlement to CDP and the beginning of the entitlement to ADP.

Scottish Government officials have advised SCoSS that there are no scheduled reviews of CDP after the recipient’s 16th birthday, so a CDP award is likely to end only on request or because a change of circumstances is reported.

The draft Regulations contain a number of provisions whose purpose is to ensure that when an individual transfers from CDP to ADP, their disability benefit remains on the same payment cycle. For both benefits, most people are paid four-weekly in arrears, while those whose award was made under the special rules for terminal illness are paid weekly in advance.

Draft Regulation 3(5) amends Regulation 29 CDP Regulations to clarify that when an individual in receipt of CDP is awarded ADP, the CDP award ends on the date that the ADP award begins. Correspondingly, draft Regulation 4(4) amends Regulation 58 ADP Regulations to stipulate that when an individual still in receipt of CDP is awarded ADP, entitlement to ADP begins on either the day after the next CDP payment following the ADP determination (if payment is made four-weekly in arrears) or seven days after the next CDP payment following the ADP determination (if payment is made weekly in advance). At present, Regulation 58(2) ADP Regulations simply states that an ADP award begins on the date of determination.

In effect, this means that, following these amendments, the transfer journey looks like:

The intent behind these provisions is welcome as changes to payment dates could be confusing and might create budgeting problems, for example if direct debits are scheduled to come out of the individual’s bank account the day after CDP payments are received.

This is clearly in the interests of individuals who require assistance (in accordance with principle (g)) and, despite increasing the administrative complexity of the CDP-ADP transition, could help ensure the overall efficiency of social security in Scotland (in accordance with principle (h)) by avoiding additional calls to Social Security Scotland or increased demand for the Scottish Welfare Fund. It is also in keeping with the Charter commitment to minimise stress in people’s engagement with the devolved system (Processes that work: 4).

However, the way the relevant provisions for CDP and ADP are worded creates some ambiguity: CDP entitlement ends on the day that the ADP award begins, while the ADP award begins on the day after (or seven days after) the last CDP payment. While SCoSS feels it might be clearer to state in Regulation 29 CDP Regulations that the final day of the CDP award is the day before the first day of the ADP award, as defined by Regulation 58 ADP Regulations, we are pleased to have received assurances from Scottish Government officials that these provisions will not create any gap in entitlement.

“The transfer from CDP to ADP may be the first time a younger person has applied for a benefit in their own right as opposed to a parent/carer doing it in the past on their behalf.

Therefore, accessible, well informed, and independent support and advice is vital. This is particularly important as the young person may be managing transitions in other areas of their life such as in education, employment, care, and support. These transitions can have a major impact on whether support previously offered will continue or not, as well as change the nature of support provided.” – The Royal National Institute of Blind People Scotland

Recommendation 1: The Scottish Government should ensure that guidance to decision-makers clearly explains how the dates for the last payment of CDP and the first payment of ADP are established. Communications to individuals moving from CDP to ADP should state the expected dates at the earliest opportunity.

Many individuals are likely to move from CDP to ADP with their award unchanged in monetary terms. The lower and higher rate mobility components of CDP are paid at the same rate as the standard and enhanced rate mobility components of ADP, while the middle and highest rate care components of CDP are paid at the same rate as the standard and enhanced rate daily living components of PIP. However, some people will see their award change, either because of changes to their condition or because of differences in the conditions of entitlement between the two benefits.

The measures to maintain payment cycles by making one CDP payment following an ADP determination and then commencing ADP mean some individuals will have a short delay (of up to four weeks) in the time it takes for an increase in entitlement to take effect. The Scottish Government has advised SCoSS that any necessary back payment will be received as part of the first ADP payment.

Stakeholders who submitted evidence on the draft Regulations to SCoSS have, however, expressed concern that, where the ADP award is higher than the previous CDP award, the effective delay to the start date of the ADP claim might result in a short delay in entitlement or increases in reserved benefits. This could include additions to a low-income benefit paid to the parent of the disabled young person, the young person’s own Universal Credit award or a Carer’s Allowance award.

Scottish Government officials have confirmed to SCoSS that, where the ADP award confers entitlement to a higher addition to the UK benefit than the CDP award,5This would typically be because the daily living component of ADP is at a higher rate than the care component of CDP, or because the ADP award includes the daily living component whereas the CDP award only included the mobility component. entitlement to the addition will only commence on the first day of entitlement to ADP, the day after the last CDP payment. There would therefore be a short delay in receipt of the addition to the UK benefit than would be the case if entitlement to ADP began on the date of determination. Individuals in this position would therefore be slightly disadvantaged by the measures to maintain payment cycles.

Where the ADP award is lower than the previous CDP award, the affected individual stands to gain (albeit only slightly) as a result of the draft Regulations, as their higher CDP award will continue for up to four weeks longer than is the case under the ADP Regulations as currently framed. If the ADP award conferred entitlement to lower or no additions to UK benefits, the higher additions flowing from the previous CDP award would also continue for slightly longer.

If an individual in receipt of CDP receives a determination that they are not entitled to ADP, then the CDP award would continue until the 18th birthday or if the ADP determination were made after they turned 18 it would stop when the ADP determination was made. However if they were a case transferee or moved to CDP by cross border move and turned 18 before the end of 2023 their CDP would continue to age 19. Any resulting additions to the individual’s or their parent’s UK benefit would also remain in place until CDP entitlement came to an end.

If an ADP applicant who was entitled to CDP at the time of application, but whose CDP award comes to an end before the determination of the ADP application, is subsequently awarded ADP, the previous CDP payment cycle is irrelevant. Draft Regulation 4(4) inserts new Regulation 58(2)(a) ADP Regulations, which states that in these circumstances the ADP award would begin on the date of determination. Such cases seem likely to be rare, as the Scottish Government has advised SCoSS that no reviews of CDP entitlement will be scheduled after the 16th birthday.

Recommendation 2: Social Security Scotland should advise individuals transferring from CDP to ADP of the potential for additions to UK benefits payable to the individual, their parent or a carer to be affected. The Scottish Government should work closely with the DWP to explore how take-up of increased entitlements in the UK system can be maximised and how the risk of overpayments can be minimised where the move to ADP results in reduced entitlement in the UK system.

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