The Scottish Government has chosen not to stay in lockstep with UK social security in the sense of adopting identical legislation. In contrast, in Northern Ireland the legislation is more or less identical to legislation in England and Wales. Thus, caselaw arising in England and Wales, in practice, applies in the same way in Northern Ireland. In Scotland, tribunals and courts will decide to what extent, if at all, DLA caselaw from the rest of the UK is binding or persuasive for CDP.

For any benefit, the Act and regulations provide the framework but caselaw applies the law to people’s real life situations. This clarifies what terms mean. For example you ‘require’ attention if it is what you reasonably need, rather than it being what you need medically. It also keeps legislation relevant as society changes. For example, you reasonably ‘require’ attention if it is what you need to live a normal life and participate in recreational, social and cultural activities.

DLA has been in existence for many years and a large body of caselaw has developed. Some is in day to day use. Questions in the claim form ask about social activities for example, and decision makers routinely apply caselaw as they decide entitlement.

In drafting CDP regulations, the Scottish Government has chosen to take account of some of the DLA caselaw, incorporating some milestone cases into the meaning of terms. The Commission believes this is the right approach. Had it done otherwise, this would have had the effect of winding the clock back, losing decades of lived experience that has informed the practical application of the law, creating uncertainty for case managers making decisions on entitlement, and meaning tribunals having to go over old ground unnecessarily. We also acknowledge the difficulty of incorporating caselaw and note that the end result is that the meaning of certain terms for CDP is not identical to DLA. Social Security Scotland staff deciding entitlement will need clear guidance with case study examples on how the law is intended to be applied to real life situations. To support the Scottish Government’s take up strategy, organisations who will be spreading information and learning about CDP will need access to this guidance. The Scottish Fiscal Commission (SFC) has also noted that although entitlement rules for CDP and DLA are similar, how they are interpreted will depend on guidance, which will influence SFC’s forecast on spending on CDP.

Recommendation 12: The Scottish Government should undertake a thorough review of caselaw and how it is incorporated into CDP legislation. This review should be in time to inform drafting of the very similar legislation for Disability Assistance for Older People.

The Commission considers that some adjustments could be made now to these draft regulations where the drafting could be clearer. For example, in regulation 2, ‘attention’ includes ‘vigilance to ensure the safety of an individual’. By giving prominence to the concept of vigilance, which derives from caselaw, the line is blurred between ‘attention’ and ‘supervision’, which are two different routes to qualifying for the care component.

Recommendation 13: The Scottish Government should make clearer the distinction between ‘attention’ and ‘supervision’ in the draft regulations.

To be eligible for CDP, a person must satisfy various tests about their residence in Scotland: be ‘ordinarily resident in Scotland’, ‘habitually resident in the UK, Ireland, the Channel Islands and the Isle of Man (called the Common Travel Area), not subject to immigration control and, in some cases, able to demonstrate a ‘genuine and sufficient link to Scotland’. A person must also be present in the UK, and have been present for a certain length of time. To avoid a short holiday or other temporary absence abroad immediately ending entitlement, there are provisions that treat people as though they were still present in the UK during a temporary absence. There are also exemptions for certain groups such as army personnel outside of the UK.

The Scottish Government’s intention is to replicate the DLA rules on temporary absence. CDP regulations are indeed very similar to DLA provisions but there are differences:

• In DLA regulations, only serving members of the forces working abroad and their families are exempt from the residence tests as well as the presence tests. Others who are abroad, for example people who go on a short holiday, are treated as though they are present in Britain as long as the absence is no longer than 13 weeks (typically) but must continue to satisfy the residence tests.
• CDP regulations, however, treat people going on a short holiday in the same way as serving members of the forces. They are exempt from both presence and residence tests but have to demonstrate a ‘genuine and sufficient link to Scotland’.

This introduces a potentially complicated test of whether a person has a ‘genuine and sufficient link to Scotland’ when they go abroad on holiday where before determining continued entitlement was a simple matter of counting weeks abroad. It also seems at least possible that someone could find themselves ineligible for CDP while in Scotland (for example because of living in the UK for less than two years) but eligible for CDP when they leave the country because the requirement to have lived in the UK for any length of time is lifted.

A further example relates to people from the EEA or UK citizens who have worked in an EEA country where certain ‘co-ordination rules’ apply.  EU co-ordination rules are intended to support free movement of people across EU member states. For example, the rules allow periods of presence in one country to count towards entitlement to benefit in another country. However, the CDP regulations go further than this and remove the requirements to be present in the UK and to serve the two-year past presence test, again replacing these with a requirement to ‘demonstrate a genuine and sufficient link to Scotland’.

Some stakeholders have queried the effect of the UK leaving the European Union on the application of the draft CDP regulations. We understand that although the EU co-ordination rules referred to in the CDP regulations have now been converted into UK law, references to EU legislation remain valid during the transition period at least until the end of 2020 (and beyond for EU nationals granted settled status). Scottish Ministers will have powers to make amendments to CDP and other devolved social security assistance should this be needed for example, depending on how a future negotiated relationship with the EU treats EU nationals arriving from 2021.

Three other residence and presence rules merit clarification:

• It is not obvious whether regulation 4(3)(e) is meant to apply to all the previous paragraphs (a) to (d) or only to paragraph (d).
• Regulation 4(3)(d) should specify that the temporary absence should be from the UK, which seems to be the intention.
• Regulation 4 requires a person to pass the residence and presence tests on the day the CDP application is made. Regulation 27 deems those tests to continue to be satisfied until the date set for the review of entitlement. There is no specific provision to redetermine entitlement should a person no longer meet those tests, for example, if they should leave the UK for an extended stay or permanently. Thus it is not clear that CDP entitlement would end in those circumstances.

Recommendation 14: The Scottish Government should amend the draft regulations to ensure that the provisions on residence and presence are clear and align with the policy intention.

A child who can walk but needs guidance or supervision due to a physical or mental impairment, can qualify for the lower rate of the mobility component. Because young children all need guidance or supervision, the help they need is compared to that needed by other children of the same age.

The draft regulations offer two different versions of this comparison test: regulation 5(2) which applies to the care component and follows the DLA rule; and regulation 6(2) which applies to the lower rate mobility component and partially follows the DLA rule. Having raised this with officials, they have indicated to us that they intend to amend regulation 6(2) in line with regulation 5(2), though this is not reflected in the draft regulations referred to us for scrutiny.

Recommendation 15: The comparison tests of the care and mobility needs of children with those of children of the same age should be consistent across the care and mobility components.

The Act provides that disability assistance regulations must be framed so that eligibility depends on having a physical or mental impairment. Regulation 6, which provides for the lower rate mobility component, makes no reference to the guidance or supervision needs of a child having to relate to an impairment.

Recommendation 16: The regulation for lower rate mobility component should relate the need for guidance or supervision to a physical or mental impairment.

Mobility needs can arise from visual impairment, hearing impairment and learning disabilities where children may be able to walk but nonetheless have significant difficulty moving safely out of doors. The highest rate of the mobility component has a specific route to qualifying for children with a visual impairment. There are two issues with how the CDP regulations deal with this. Firstly, they do not exactly mirror the DLA regulations and secondly they may not be a good fit with current best practice for children with visual impairments.

The CDP regulations introduce a separate qualifying route for children who are ‘blind’ which does not exist in DLA. As drafted, a child who is ‘blind’ qualifies for the higher rate of the mobility component under regulation 7(2)(g), while a child who is both ‘blind and deaf’ qualifies under regulation 7(2)(h). Having raised this with officials, they have indicated to us that the intention is not to diverge from DLA and that they plan to amend the regulations accordingly, though this is not reflected in the draft regulations referred to us for scrutiny.

Recommendation 17: The Scottish Government should amend the draft regulations to align with the policy intention regarding children who are blind or visually impaired.

As with DLA, there is one test of ‘blind’ and one of ‘severe visual impairment’. In Scotland, children under 16 diagnosed with a sight impairment are not ‘certified’ as used to be the case. Accordingly, children applying for CDP do not need under the regulations to be certified as they do, at least technically, for DLA. While this is a positive change, other aspects of the test remain the same and would benefit from a review to ensure they are in line with current best practice under the Visual Impairment Network for Children and Young People. A review should also consider whether the ‘disablement’ definition of ‘blind’, which traditionally and by caselaw relates to being unable to work, is relevant for children.

Recommendation 18: The Scottish Government should review the eligibility criteria and evidence required for children who are blind or visually impaired to ensure they are in line with current best practice in Scotland.

Children with learning disabilities or behavioural disorders more often get DLA at the lower rate of the mobility component, which is for children who can walk but need more adult support to get around safely. However, the highest rate of the mobility component has a specific qualifying route for children with a ‘severe mental impairment’ and a significant number of children qualify this way. There are issues with how the CDP regulations deal with this (regulation 7(2)(i) and (j) and regulation 7(7) and (8)): there are significant differences from DLA regulations; there is a provision which may not be in line with the best interests of the child; and there are terms which could be updated or defined.

Significant differences from DLA

DLA regulations have a single test for the severe mental impairment route to qualifying for the highest rate of the mobility component. A child must be ‘severely mentally impaired’ and also have ‘severe behavioural problems’ and also get the highest rate of the care component. The CDP regulations have separated this into two separate tests – regulation 7(2)(i) ‘severe mental impairment’, and regulation 7(2)(j) ‘severe behavioural difficulties’. A child who is ‘severely mentally impaired’ can qualify, and a child who has ‘severe behavioural problems’ can qualify. The CDP regulations also remove the requirement to have the higher rate of the care component. Having raised this with officials, they have indicated to us that these are not intended policy changes and regulations will be amended accordingly.

Physical restraint

Regulation 7(8)(b) refers to children whose behaviour requires ‘physically restraining’. The Children and Young People’s Commissioner Scotland has highlighted serious concerns about the use of restraint.  The Scottish Government has committed to producing guidance aimed at reducing its use. Stakeholders have told the Commission that it is an outdated measure of a child’s needs and, in particular, the use of restraint to avoid damage to property is not consistent with good practice in social care, centred on the needs of the child.

Recommendation 19: The reference in the regulations (regulation 7(8)(b)) to damage to property should be removed. In producing guidance for case managers, the Scottish Government should consider wider concerns and policy about the use of physical restraint.

Clarification

Regulation 7(2)(i) and (7) changes certain wording from the equivalent rule in DLA – from ‘severe impairment of intelligence and social functioning’ (DLA) to ‘significantly impaired capacity for judgement’ (CDP). Neither version is readily understood in terms of how children manage in the real world. The DLA version has the advantage of having been considered and clarified in caselaw.

Recommendation 20: The Scottish Government should produce clear guidance on factors that case managers will take into account in deciding eligibility for the highest rate of the mobility component under the ‘severe mental impairment’ test, and consider whether the formulation ‘significantly impaired capacity for judgement’ in the draft regulations adequately reflects the caselaw.

Children with no legs or feet qualify for the highest rate mobility component. CDP regulation 7(2)(e) makes it clear that this is so irrespective of whether a child has prosthetic legs. However, someone with prosthetic legs may still need to use other walking aids to move freely. This should not disqualify them from the highest rate mobility component, and would not do so under current DLA rules.

Recommendation 21: Draft regulation 7(2)(e) should be amended so that the need to use walking aids does not disqualify a child with prosthetic legs.

The general rule is that a child resident in a care home or a residential school (where costs are met from public funds) is not entitled to the CDP care component after the first 28 days. There are provisions to allow for short breaks in a care home and spells away from a care home. These also exist in DLA. However, DLA provisions are difficult to replicate in CDP because of the way the Social Security (Scotland) Act 2018 works. In DLA, entitlement continues but payment is suspended. In CDP, entitlement ends altogether. There is no power in the Act to suspend payment. There are important advantages with the DLA system of suspending payments. Payment can be put back quickly and easily with a phone call, there is no risk of a gap in payments if there is any delay in reporting, there is no reassessment so no risk of losing the level of award and there is no loss of exemption from the benefit cap or other passported benefits that depend on entitlement such as the disabled child element in Universal Credit. With CDP entitlement ending altogether, the Commission considers that all efforts should be made to ensure that these advantages are not lost. We also note that one option may be to amend the Act to introduce a power to suspend payments.

The regulations provide for this to some extent. Regulation 15 sets out a mechanism to reinstate an award at the same rate without a reassessment where a child who is resident in a care home takes a period of leave. However:

• It is not clear that this mechanism is intended to apply to a child who normally lives at home and has regular short breaks in a care home, or to someone returning home permanently after a period of convalescence in a care home.
• It seems to be the case but is not completely clear that entitlement would be paid from the date of leaving the care home whenever that is notified.
• Regulation 15 does not apply if entitlement to CDP began during a care home stay, where the determination was made under regulation 14(2).

Recommendation 22: The Scottish Government should ensure that the simple processes, passported exemptions and entitlements, and certainty of award currently available to people entering or leaving a care home are not lost to those getting CDP. One route to achieving this is to consider amending the Act to enable entitlement to remain while payment is suspended.

We also note the following technical issue with regulations about care homes and residential schools:

• Regulation 14 allows someone to make a new application while in a care home or residential school and have the care component paid for 28 days. This is a change from DLA regulations. Officials have told us that the regulations will be redrafted in line with the policy intention so that applications made while in a care home enable faster and simpler processes to start the award when a person leaves the care home but do not give rise to 28 days entitlement.

Recommendation 23: The Scottish Government should amend the draft regulations so that they align with the policy intention with regard to applications made while in a care home or residential school.

A child’s highest rate mobility component can be used to lease a powered wheelchair or car adapted for their needs. Motability, the charity which delivers this scheme for DLA and PIP, has been accredited by the Scottish Government to provide the same scheme for CDP and Disability Assistance for Working Age People. This continuity is welcome. It helps to secure the vitally important access to transport that protects disabled children’s right to join in activities with other children and families and participate in the community.

The scheme works by having the mobility component paid directly to Motability by Social Security Scotland (or the DWP in the case of DLA and PIP). If someone loses the highest rate mobility component, they need to give the car back after a grace period. This does not always allow enough time to pursue an appeal. In Scotland, the availability of Short-term Assistance presents an opportunity to help people keep their Motability car until the end of the appeal process. Options to explore to improve continuity include paying Short-term Assistance directly to Motability to extend the grace period.

As people come to live in Scotland from elsewhere in the UK or move away from Scotland, and switch disability benefits from one system to another, one consequence could be an interruption in other entitlements such as Motability vehicles. This transition should be seamless.

Recommendation 24: To help people with Motability vehicles, the Scottish Government should consider options to provide better continuity through the appeals process, including utilising Short-term Assistance, and through transitions between Scottish disability assistance and DLA or PIP.

There is one technical issue with the regulations on provision of vehicles:

• While CDP is the child’s award, it will usually be paid to a parent or ‘appointee’ who will also enter into the lease agreement with Motability. Regulation 39 refers to ‘the individual’s’ liability under the lease agreement and to CDP being paid in respect of ‘the individual’ – in other words, this implies that the child is liable under the lease agreement. Terminology could be clearer.

Recommendation 25: The Scottish Government should clarify the regulation relating to provision of vehicles, to clearly distinguish between the child with the CDP award and the person who is liable for the vehicle agreement.