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

3. DLA/PIP to ADP journey

Two provisions in the draft Regulations concern the treatment of changes of circumstances that occur while an individual previously in receipt of either DLA or PIP is in the process of transferring to ADP (a process that typically takes around three months).1 Draft Regulation 4(5) inserts a new paragraph 12(1) into Schedule 2 of the ADP Regulations, which concerns PIP-ADP transfers. Draft Regulation 5(4) inserts a new Regulation 14 into the Transitional Provisions Regulations, which concerns DLA-ADP transfers.

Each provision stipulates that, where an individual has been selected for transfer to ADP but then reports a relevant change of circumstances to the DWP before their transfer determination has been made,2The transfer determination has the effect of ending the individual’s DLA or PIP award and starting an ADP award at exactly the same rate, without reference to the ADP conditions of entitlement. The transfer determination is followed by a review determination, when the transfer award is superseded by a new award based on the ADP conditions of entitlement. the DWP should not take any action on the basis of this information, but should pass it on to Social Security Scotland. Social Security Scotland then takes the information into account when making its subsequent review determination. Some stakeholders who submitted comments to SCoSS on the draft Regulations indicated that this process has not always worked as intended.

“Advisers have also detailed cases in which anxiety has been caused by the issuing of a review form by the DWP after the transfer process has already been triggered by a claimant reporting a change.”Citizens Advice Scotland

“Where a claimant wishes to report a change of circumstances that may affect entitlement, however, we have seen a small number of cases where they have been passed between the DWP and Social Security Scotland with the claimant being unclear who should take responsibility for the review.”ENABLE Scotland

Scottish Government officials have advised SCoSS that the purpose of these provisions is to clarify that changes of circumstances should be reported to the DWP rather than Social Security Scotland in the period between an individual being selected for transfer and the making of a transfer determination. At face value, though, the Regulations appear to stipulate how Social Security Scotland and the DWP should treat changes which have been communicated to the DWP, rather than communicating to claimants where they should report changes.

There is value in this kind of clarification, particularly given stakeholders’ reports of apparent confusion about how this kind of information should be treated. However, if the Scottish Government has identified a need to ensure transferring individuals know where to communicate changes of circumstances, further steps might still be required to address this need. This could include a further amendment to the Regulations, but clarity in communication with individuals selected for transfer and guidance to ensure that DWP and Social Security Scotland staff fully understand the process would arguably be more important.

Recommendation 3: The Scottish Government should explain what steps it is taking to ensure individuals still in receipt of DLA or PIP receive the correct guidance on where to report a change of circumstances and that the Department for Work and Pensions and Social Security Scotland follow the correct processes when changes of circumstances are reported.

The draft Regulations as supplied to SCoSS for scrutiny included a proposal (draft Regulation 5(3)) to lengthen the maximum time allowed for Social Security Scotland to make a review determination in respect of individuals transferring from DLA to ADP. The review determination is the final stage in the transfer process from DLA to ADP. The transferring individual first receives notice that they have been selected for transfer, then receives a transfer determination, under which an award of ADP is made at the same rate as the previous DLA award. This is followed by a review determination, when the now-transferred individual’s ADP award is determined against the ADP conditions of entitlement.

Regulation 12 of the Transitional Provisions Regulations stipulates that the review determination should be made within 12 months of the notice of intention to transfer. Draft Regulation 5(3) proposes changing this, so that the review determination would have to be made within 12 months of the transfer determination. This would have had the effect of increasing the maximum available time for completion of the review determination by the duration of the transfer process, typically around three months.

In our previous report on the Transitional Provisions Regulations, SCoSS noted that the envisaged maximum “would be quite a long time for a transferring individual to wait to find out what their actual ADP award will be and to have to live with that uncertainty.”5 Scottish Government officials have advised SCoSS that draft Regulation 5(3) will not now be taken forward and that they are confident that review determinations can be completed to the originally stipulated schedule, with some of the more complex cases taking around six months to review.

Observation 2: SCoSS welcomes the Scottish Government’s decision to reconsider draft Regulation 5(3), which would have extended the maximum time an applicant might potentially be required to wait for a review determination to be completed.

Draft Regulation 5(5) clarifies the rules that apply when an individual who has transferred from DLA to ADP receives a review determination that they are entitled to ADP at a higher rate than the award flowing from the transfer determination.

Regulation 45 ADP Regulations sets out a fairly complex set of rules on the date from which an increase in entitlement takes effect, depending on the circumstances (notably, when the change took place and when it was reported to Social Security Scotland). However, draft Regulation 5(5) amends Transitional Provisions Regulation 15 to make clear that, in all cases, when the review determination results in a higher award for individuals transferring from DLA to ADP, the effective date is the date of transfer. This means an affected individual would be entitled to a back payment to the value of the additional amount between the date of transfer and the date on which the review determination takes effect.

Draft Regulation 5(6) serves a similar purpose in cases where an individual who has transferred from DLA to ADP receives a review determination that they are entitled to ADP at a lower rate than the award flowing from the transfer determination, or not at all. It confirms that the relatively complex rules in Regulation 46 ADP Regulations should be disregarded in favour of the rule in Regulation 16 Transitional Provisions Regulations. This states that the reduction of entitlement takes effect from the date of the review determination.

This is important from the transferring individual’s point of view as it avoids the risk of overpayments in the period between transfer and the review determination. Regulation 16 Transitional Provisions Regulations also stipulates that, when the review determination is that the individual is entitled to ADP at the same rate as was awarded in the transfer determination, this, too, is effective from the date of the review determination. However, this has little practical effect on the transferring individual.

In SCoSS’s view, these amendments do not change the processes already provided for by Regulations 15 and 16 Transitional Provisions Regulations. Nonetheless, there is value in clarifying that the provisions of Regulations 15 and 16 Transitional Provisions Regulations take priority over those in Regulations 45 and 46 ADP Regulations in the case of individuals transferring from DLA to ADP. Previously, this purpose was served by Regulation 10(f) and (g) Transitional Provisions Regulations. Draft Regulation 5(2) omits these two provisions, avoiding duplication. It is arguable that the Transitional Provisions Regulations will be clearer following these amendments.

Observation 3: SCoSS welcomes the additional clarity draft Regulations 5(2), 5(5) and 5(6) together provide.

In discussion with SCoSS, Scottish Government officials noted that, in the case of transfers from PIP to ADP, individuals are treated as though they were already in receipt of ADP when they reported the change of circumstances that triggered their transfer determination. Any increase in entitlement is backdated to the date that the change was reported, as long as the change was reported within a month of the change occurring, or within 13 months of the change occurring if there is a “good reason” for the delay in reporting. Individuals transferring from DLA to ADP are arguably disadvantaged compared to those transferring from PIP to ADP, as they will only benefit from any higher entitlement from the date of transfer. However, this is in line with the treatment of individuals transferring from DLA to PIP within the UK system.

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