Scottish Government's response to SCoSS's scrutiny report on the draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022
Dear Sally,
Thank you for your scrutiny report of 30 March 2022 on The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (the “Regulations”). I would like to express my sincere gratitude to the Commission for considering these Regulations. I recognise the significant volume of work undertaken by the Commission in their scrutiny of these Regulations, alongside others to challenging timescales.
As you will be aware, our plan is to begin transferring awards from Disability Living Allowance to Adult Disability Payment, where they would otherwise be required to apply for Personal Independence Payment, from 29 August 2022 when Adult Disability Payment is launched nationally. This group of people includes people who report a relevant change of circumstances, who have an award review or award renewal due, or who request to have their benefit transferred. The substantial analysis undertaken by the Commission on these Regulations has been immensely valuable in ensuring that the case transfer process delivers for disabled people in Scotland. Changes we have made in response to the Commission’s recommendations demonstrate that we are listening and that our decisions are informed by evidence of what is right for clients.
Please find attached a copy of the Scottish Government’s response to the Commission’s recommendations (set out in the accompanying Annex A). The response also details further changes that have been made to the regulations (set out in the accompanying Annex B). These changes include miscellaneous amendments to the Disability Assistance for Children and Young People (Scotland) Regulations 2021, and the Disability Assistance for Working Age People (Scotland) Regulations 2022, which were identified after the Commission had publish its report.
As these are to be made using the regulation making powers in section 31(2), 36(2) and 52 of the Social Security (Scotland) 2018 Act (the “2018 Act”), these were referred to the Commission on 12 April 2022.
Further transitional amendments to the Personal Independence Payment (Transitional Provisions) Regulations 2013, and to provide for the solution for transferring individuals with Working Age Disability Living Allowance and Personal Independence Payment on a 3 weekly in arrears and 1 week in advance payment cycle onto a 4 weekly in arrears payment cycle, have also been added since the Commission published its report. As these provisions are being made under section 95 of the 2018 Act they do not need to be referred to the Commission.
The main purpose of the Regulations is to put in place case transfer processes for those clients on Working Age Disability Living Allowance that wish to transfer or would otherwise have to apply for Personal Independence Payment. These Regulations must be in force by Adult Disability Payment national launch to meet our commitment that, wherever possible, we will transfer clients after the national launch of Adult Disability Payment before they have to undergo a DWP face-to-face assessment. Therefore, we do not wish to delay these regulations beyond 6 May.
I am grateful for the Commission’s initial consideration of these additional provisions, your subsequent letter of 4 May 2022 that noted the Commission accept the need to have complete, robust regulations in place before the national roll-out of Adult Disability Payment, and that incorporating these amendments into the original set of regulations is the most time-efficient way to achieve this.
In your letter you also raised a specific technical issue in relation to draft regulation 19(5), which relates to the transfer of people over pensionable age from Disability Living Allowance and onto Adult Disability Payment. You recommended that the Scottish Government confirms it is content that there is a clear legal mechanism to provide for Adult Disability Payment to be awarded, including the mobility component, at review stage for those over the state pension age.
On further consideration, we accept that the drafting could be clarified to ensure the exception added to regulation 24 of the Disability Assistance for Working Age People (Scotland) Regulations 2022 applies consistently to all determinations that clients transferring from Disability Living Allowance will receive, for their entitlement to Adult Disability Payment. The drafting has, therefore, been updated accordingly, so that the exception to the age requirement for transferring individuals will extend to the initial transfer determination under regulation 4, the review determination under regulation 12, and any subsequent determination of Adult Disability Payment the client receives. We also intend to mirror the clarification in the provisions on case transfer for Personal Independence Payment in paragraph 7 of Part 3 of schedule 2 of the Disability Assistance for Working Age People (Scotland) Regulations 2022, to ensure that similarly the age requirement will be consistently disapplied for all transferring individuals moving from Personal Independence Payment to Adult Disability Payment.
The restrictions upon the mobility component which can be received after the relevant age, under regulation 25 of the Disability Assistance for Working Age People (Scotland) Regulations 2022 only applies to determinations without application made under regulation 48(a) of those regulations. We are, therefore, confident that for both the transfer and review determinations, individuals over the state pension age who are transferring from Daily Living Allowance to Adult Disability Payment can be awarded either rate of both the daily living and mobility components of Adult Disability Payment, with no restriction.
This response will be laid in Parliament along with the Regulations. I have also issued a copy to the Convener of the Social Justice and Social Security Committee. Thank you again for your continued significant contribution to shaping disability assistance in Scotland.
Best regards,
BEN MACPHERSON
Table of recommendations and responses
| Responses to recommendations and observations | Accept/partially accept/Reject | Scottish Government response |
|---|---|---|
| 1. The Scottish Government should publish its plans for managed migration from Disability Living Allowance to Adult Disability Payment (or to whatever devolved provision is made for older claimants) at the earliest opportunity, being mindful of the desirability of appropriate scrutiny by SCoSS and legislators whether or not this involves the making of further regulations. | Accept | We are still finalising our plans for the managed transfer the awards of individuals currently in receipt of Working Age Disability Living Allowance and for the transfer of Disability Living Allowance awards for those who were 65 or over on 08 April 2013. When clients’ who were over 65 on 08 April 2013 have their awards transfer to Social Security Scotland they will continue to be managed as Disability Living Allowance awards. We are still considering whether the managed case transfer for remaining Working Age Disability Living Allowance awards should be to Adult Disability Payment or whether these should move to Social Security Scotland but also remain on Disability Living Allowance. We will ensure these clients’ awards are transferred to Social Security Scotland in line with our case transfer principals. There will be no need to apply for their Scottish assistance and no break in their entitlement. We will need to reach agreement with the DWP on any proposed process and we will share our plans at the earliest possible opportunity ahead of introducing further regulations to facilitate these transfers in due course. |
| 2. The Scottish Government should modify Regulation 3(3) of the ADP Regulations as it applies to transferring individuals to state that there are three weekly rates of the daily living component. | Accept | Taking this on board we have modified Regulation 3(3) of the ADP Regulations as suggested, Regulation 10(a) in the draft Regulations applies this modification. |
| 3. To avoid perceptions that the proposed lowest rate daily living component will be a permanent feature of ADP, the Scottish Government should consider amending draft Regulations 5(1), 5(2) and 5(3)(a) so that, for transferring individuals only, the daily living component of ADP consists of transitional, standard and enhanced rates. | Accept | We have taken this on board and have amended Regulations 5(1), 5(2) and 5(3) (a) of the draft Regulations as suggested. |
| 4. The Scottish Government should explain why an increase in award flowing from a change of circumstances is only backdated to the start of the ADP claim and not to the date when the change of circumstances was reported to the DWP. | Accept | If someone on Working Age Disability Living Allowance reports a relevant change of circumstances, there is currently no way to review the person’s award to consider what the effect would be on their Disability Living Allowance award. Instead, the DWP process is to invite the client to apply for Personal Independence Payment. Similarly, while Social Security Scotland can determine a person’s entitlement to Adult Disability Payment, we do not have the processes in place to consider someone’s entitlement to Disability Living Allowance. Therefore, to avoid the person being invited to claim Personal Independence Payment we will transfer them on a ‘like for like, interim basis’ onto Adult Disability Payment and then review their entitlement to ensure they are on the correct level of award for their current circumstances. We will then backdate any increases in their award to the beginning of the initial transfer determination. Our approach is that decreases will only take effect from the day that decrease is determined – that is the day the review completes. These decreases are not backdated to the point of transfer. |
| 5. The Scottish Government and Social Security Scotland should develop an approach to supporting individuals who receive a reduced or no award following review of their transitional ADP award, as in other circumstances. | Accept | Such a decision would only be reached after a full consideration of the client’s entitlement to Adult Disability Payment, based on their current circumstances. If an award is decreased, the change will only take effect from the date the decision is made. There will, therefore, be no overpayment the person could be asked to repay. Short-term assistance would be available to anyone who wished to seek a re-determination or appeal such a decision. We are also looking at ways in which we can support clients who lose the enhanced mobility component and are part of the Accessible Vehicle Equipment Scheme. Any client that is over the state pension age may also be able to claim for Attendance Allowance in such circumstances, and we are considering ways we could work with the DWP to make this process more straightforward. |
| 6. SCoSS asks the Scottish Government to outline any consideration it has given to applying a ‘no one worse off’ principle to some or all groups of transferring individuals – whether those intended to migrate under the draft Regulations or those subject to managed migration in the future. | Accept | Our top priority is to ensure the safe and secure transfer of disability and carer benefits for all Scottish people. By taking the approach of ‘like-for like’ case transfers, we are seeking to ensure that no one is worse off as a result of their award being moved to Social Security Scotland. Our case transfer principles have been developed through extensive engagement with stakeholders and with our experience panels and include a clear commitment that clients will continue to receive the right payment at the right time. |
| 7. The Scottish Government should share its plans for supporting transferring individuals to avoid or cope with problems resulting from the interaction of reserved and devolved disability benefits/assistance, for example the mutual exclusivity of ADP and attendance allowance awards. | Accept | Scottish assistance is legally equivalent to the DWP administered benefits they replace for purposes of being a qualifying benefit and for passported benefits. We are working to make sure the transfer is communicated to all relevant bodies that administer passported benefits or those benefits for which the Scottish assistance is a qualifying benefit. On the specific point on Attendance Allowance, we recognise that any client that is over the state pension age that is found not to be entitled to Adult Disability Payment may also be able to claim for Attendance Allowance and we are considering ways we could work with the DWP to make this process more straightforward. |
| 8. Given the likely complexity of Disability Living Allowance to Adult Disability Payment migration from the perspective of transferring individuals and others, SCoSS invites the Scottish Government to share details of any work being undertaken to develop a communication strategy in line with its various obligations under the 2018 Act, Our Charter and the Convention on the Rights of Persons with Disabilities. One aim should be to raise awareness of the key differences in eligibility criteria between Disability Living Allowance and ADP so that adults in receipt of Disability Living Allowance, whose circumstances have not changed since April 2020, can judge whether it would be in their interests to request transfer to ADP. Any such campaign should be tested with stakeholders to ensure clarity. | Accept | We are in the process of finalising a clear communications plan to explain the process and what it will mean for those transferring over and those who will remain with the DWP on Disability Living Allowance. While Social Security Scotland cannot advise clients on their individual circumstances, we will clearly explain the differences between Disability Living Allowance and Adult Disability Payment. We will also signpost people to third sector organisations for independent advice and support and we will refer people to the advocacy service, where required, to support them through the process. Finally, local delivery colleagues will be available in the person’s locale to provide face to face support for anyone who requires it, at any stage of this process. |
| Observation | Scottish Government response |
|---|---|
| Observation 1: In view of the importance of ensuring social security regulations fall within the regulation-making powers in the Social Security (Scotland) Act 2018, SCoSS welcomes the Scottish Government’s confirmation that it believes the draft Regulations are within the scope of section 31 and paragraph 1 of schedule 5 to the Act. | We welcome this observation. |
| Observation 2: While endorsing the use by default of a two-stage transfer process from Disability Living Allowance to ADP, SCoSS welcomes the use of a direct, one-stage transfer for adult Disability Living Allowance claimants who appear likely to qualify for ADP under the special rules for terminal illness. | We welcome this observation. |
| Observation 3: SCoSS accepts that a longer period for re-determinations to allow for evidence gathering is unavoidable but considers that it should be realistic to aim for many if not most redeterminations to be completed well within the allotted 182 days. | We welcome this observation. Our aim will be to complete the re-determinations as soon as practicable, allowing time for sufficient evidence taking to properly assess an individual’s entitlement to Adult Disability Payment. |
| Observation 4: The transitional provisions imply differential treatment of people who migrate to ADP depending on whether they previously received Disability Living Allowance or PIP, particularly if their ADP or PIP award is lower than their DLA award. SCoSS notes the difficulty of avoiding this unequal treatment given the commitment to a safe and secure transfer, the maintenance of parity in the eligibility criteria for ADP and PIP, and the necessity of completing case transfers within a short period. | We welcome this observation. |
Scottish Government response
6 May 2022 | 12 page pdf | 496.01 KB Download Document
Scottish Government response to SCoSS scrutiny report