Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022: scrutiny report

3. Approach to scrutiny

3.1 SCoSS’s remit

These draft Regulations are to be made under sections 31, 43(5), 52, 95 and schedule 5 of the Social Security (Scotland) Act 2018. As has previously sometimes been the case, not all of this set of regulations fall within SCoSS’s statutory remit to scrutinise. Sections 22 and 97 of the 2018 Act require the Scottish Government to submit regulations made within the scope of part 2, chapter 2, or section 79 of the Act to SCoSS for pre-legislative scrutiny. Section 31 falls within part 2, chapter 2, so regulations made on its authority are formally within scope for scrutiny by SCoSS. Section 31 empowers Scottish Ministers to make regulations concerning the eligibility rules and rates of payment of disability assistance. With the draft Regulations, the provisions that most obviously serve this purpose are Regulations 5, 6 and 9, which set bespoke eligibility criteria for adults transferring from DLA to ADP and create a new rate of payment, the lowest rate daily living component. Regulations 17 and 18 amend lists of definitions in the CDP and ADP Regulations, which are relevant to the eligibility criteria.

However, the provisions for transferring the awards of people in Scotland currently in receipt of DLA, who were over 16 and under 65 and in receipt of DLA at the introduction of PIP on 8 April 2013 to Social Security Scotland and ADP have for the most part been made under section 95 of the 2018 Act. Section 95 of the Act is not subject to formal scrutiny by SCoSS.

While it may well be clear whether a given regulation falls within the scope of part 2, chapter 2, sometimes the line may be blurred. Even where clear, regulations that do not fall within our scope can have a direct bearing on those that do. It can be impossible to comment on the effect of one regulation in isolation without situating it within its context as a component part of a wider system.

Further, our statutory remit requires us to provide scrutiny through the lens of the strategic context provided by the Scottish social security principles (set out in section 1 of the 2018 Act) and human rights. We also consider the implications for the Social Security Charter. Similarly, it will often be hard to assess whether one regulation in isolation is compatible with these. Rather, to make sensible recommendations and observations (here, on the creation of a comprehensive set of arrangements for transferring adults in receipt of DLA to ADP) it is necessary to scrutinise in the round. For these reasons, while we have attempted to focus primarily on the regulations that appear to fall within our remit, we have on occasions gone beyond. Where a point made in this report is underpinned by a particular principle or provision of human rights law, this is highlighted in the text.

3.2 Scrutiny process

The draft Regulations scrutinised in this report were formally submitted to SCoSS on 10 February 2022 by the Minister for Social Security and Local Government, Ben Macpherson MSP, with a deadline for reporting of 21 March 2022.

We were able to consult key stakeholders and are very grateful for the timely, important and informative responses we received (please refer to Annex 3). These have informed the following report in a number of respects.

Officials from Social Security policy and Scottish Government Legal Group officials attended a SCoSS Board meeting and an ad-hoc meeting to discuss the draft Regulations. They also responded to written questions from the Commission. We thank them for their assistance.