The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Disability Assistance (Miscellaneous Amendments) (Scotland) Regulations 2023 (henceforth referred to as the ‘draft Regulations’). This report has been completed in accordance with the Commission’s pre-legislative scrutiny function, set out in sections 22 and 97 of the Social Security (Scotland) Act 2018¹https://www.legislation.gov.uk/asp/2018/9/enacted (henceforth referred to as ‘the Act). Section 97 states that the Commission must report on draft Regulations proposed to be made under any section in Chapter 2 of Part 2 or Section 79 of the Act.²Other than in relation to regulations made only for the purpose of the consolidation of earlier regulations (section 97(11)).

In this report, the term ‘CDP Regulations’ refers to the Disability Assistance for Children and Young People (Scotland) Regulations 2021, which establish the Child Disability Payment (CDP). The term ‘ADP Regulations’ refers to the Disability Assistance for Working Age People (Scotland) Regulations 2022, which establish the Adult Disability Payment (ADP). The term ‘Transitional Provisions Regulations’ refers to the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022, which primarily concern transfers from Disability Living Allowance (DLA) to ADP.

During the scrutiny process, the Scottish Government has indicated (sometimes in response to questions or comments from SCoSS) that it intends to make some changes to the draft Regulations as referred to SCoSS. Further comments appear below.

As required by the Act, our scrutiny was undertaken with regard to the Scottish social security principles⁵Social Security (Scotland) Act 2018 asp 9 s 1. and relevant provisions of human rights law. Disability benefits make some contribution towards the extra costs individuals may incur as a result of disability. As such, they play a role in enabling disabled people to enjoy their right to an adequate standard of living (article 11 ICESCR;⁶https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights article 28 CRPD⁷https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html) and their rights to independent living, social inclusion and mobility (articles 19, 20, 29 and 30 CRPD).

Since the standard rates of income replacement benefits do not take account of additional disability-related costs, the provisions of disability benefits and the additions to means-tested benefits that some recipients of disability benefits can access⁸ For example, the severe disability premium within income-related Employment and Support Allowance. also are steps towards helping disabled people enjoy their right to social security on a more equal basis (article 9 and 2 ICESCR; article 28 CRPD).

However, in themselves the draft Regulations with which this report is concerned make only a very limited contribution to the fulfilment of these rights. This is because they do not affect the level of awards and make only small changes to the conditions of entitlement. Their focus is more on ensuring that transitional provisions put in place by previous Regulations are used appropriately and that movement from child to adult disability benefits, or from UK to Scottish disability benefits, happens smoothly without undue disruption to affected individuals’ lives or finances. As such, they may be best understood as contributions to the fulfilment of the principles that the devolved social security system should operate efficiently (principle (h)) and in the interests of those who require assistance (principle (g)).

The impact assessments published alongside draft Regulations are a useful resource in assessing whether the Regulations contribute to the fulfilment of the social security principles or human rights obligations. Previously, the Scottish Government has not consistently provided impact assessments for draft Regulations that are not associated with any change of policy, which is the stated position on the current set. Officials have confirmed that the process of undertaking impact assessments can help identify unforeseen impacts and is good practice for the development of all legislation.

The Fairer Scotland Duty assessment, Child Rights and Wellbeing Impact Assessment and Equality Impact Assessment (EQIA) predict that the amendments intended to smooth the transition from CDP or DLA to ADP (notably those that enable the continuation of established payment cycles) will have a positive impact on groups such as those with protected characteristics. However, in relation to the EQIA, there are some protected characteristics (such as race and religion/belief) where no data is available; this makes it difficult to establish potential impact. Also, currently, published data on disability of CDP/ADP recipients does not distinguish between particular impairments or conditions to enable any differential impact to be assessed.

Stakeholders who responded to SCoSS’s call for evidence on the draft Regulations called for enhanced data collection such as this. Citizens Advice Scotland (CAS) called for the routine publication of data on the main reported condition of new CDP and ADP applications, broken down by award type. CAS noted that the DWP’s existing 547 condition categories could form a basis for this. Stakeholders also recommended data collection on reasons for applications being unsuccessful, numbers of applicants with an unsuccessful redetermination request who do not pursue an appeal, and outcomes of consultations by format (i.e. face-to-face, online or telephone).

“In order to ensure that the agency is tracking how well processes are working for all, as well as to ensure that staff are continuously learning, the agency should systematically collect and publish data. This is a crucial way of ensuring longer-term improvements to the system.” – Child Poverty Action Group in Scotland

We welcome information from officials that data is already being collected by broad condition groups, that there are aspirations to publish this data in future and that users’ views will be sought on the best format for doing so.

Observation 1: On this occasion a full set of impact assessments have been provided, which SCoSS welcomes. The recognition by officials of the usefulness of undertaking these as a matter of good practice is also welcomed, as are the Scottish Government’s plans to seek user views on the best approach to publishing data on decision making by condition groups.

We also note that the impact assessments reflect involvement with stakeholders. In particular, the proposed amendments appear to be a welcome response to engagement with young disabled people on the challenges associated with the transition from child to adult benefits. This is in keeping with principle (f), which states that the devolved social security system is to be designed with the people of Scotland.

The Business and Regulatory Impact Assessment projects ‘minor additional work’ for public and third sector organisations with a role in social security, mainly consisting of the need to update staff knowledge. Longer term, it predicts a reduction of the administrative burden on public bodies as details of the case transfer process are clarified. The Island Communities Impact Assessment does not identify any specific impact on island or other remote communities.