The laying of the Disability Assistance for Children and Young People (Scotland) Regulations 2020 will mark a significant new stage in the Scottish social security system. The assistance – to be known as Child Disability Payment (CDP) – replaces Disability Living Allowance (DLA) for children and is the first of the devolved forms of assistance that will replace current UK benefits for disabled people.

The transfer of disability benefits represents by far the largest undertaking for devolved social security policy and delivery to date and, as such, it is to be expected that a host of implications for the interface between devolved and reserved provision will come to the fore. The Scottish Government has been clear that it must take a careful approach to be sure of continuing to pay people with the least disruption.

Consequently, while there are some significant policy changes, the draft regulations by and large seek to replicate the DLA provisions for children. However, it is not always possible to exactly replicate DLA for two main reasons. Firstly, DLA has been in existence for many years and has been shaped by caselaw that interprets the legislation. In drafting CDP regulations, there were necessary choices for the Scottish Government to make over whether and to what extent this caselaw should be reflected in the new regulations. Secondly, with a different system in the Social Security (Scotland) Act 2018 for applying for, deciding, paying and appealing Scottish social security, some DLA provisions are impossible to replicate.

Therefore, in our scrutiny, for provisions which are intended to replicate DLA, we have highlighted areas where we believe there are, nonetheless, material differences which could have unintended consequences.

Understandably, many people are looking to the Scottish Government to use its powers to rectify known issues and inequities within current disability benefits and to make improvements. Scope to exercise such powers is unavoidably limited where the focus is on smooth transition of existing claims. However, some areas of improvement have been included, notably with regard to terminal illness, transitions for young people aged 16 to 18, new support for people challenging decisions, and new financial support for winter fuel bills.

While improvements are welcome, they do create differences between disability assistance delivered across the UK. This can raise issues for people relocating between Scotland and other parts of the UK. The more differences between a Scottish and UK benefit, the harder it is to move smoothly from one to the other. Even once fully transferred, Scottish Disability Assistance continues to act as a passport to elements of reserved benefits. It remains to be seen how much divergence would be possible while still being sufficiently similar to be considered as a reliable passport to UK entitlements.

Where we believe there are changes that could be made in these draft regulations that are in keeping with the careful approach to transfer from DLA, we have made recommendations. We also highlight some broad considerations that, in the future, might inform more fundamental changes that aim to align devolved provision more closely to the social security principles and human rights obligations while mindful of the potential risks and complexities that may bring. However, many of our recommendations concern technical or drafting issues and the need to remove the risks of unintended consequences.

Recommendation 1: The Scottish Government should investigate and risk assess the many different aspects of the interface between devolved and reserved benefits, and the implications of divergence for people receiving assistance, to ensure these are identified before further policy changes are implemented.

This report by the Scottish Commission on Social Security (SCoSS) on the draft Disability Assistance for Children and Young People (Scotland) Regulations 2020 has been completed in accordance with our pre- legislative scrutiny function. This is set out in sections 22 and 97 of the Social Security (Scotland) Act 2018. Section 97 requires us to carry out our role with regard to the Scottish social security principles and any relevant provisions of human rights law. The Commission’s scrutiny was also informed by our draft scrutiny framework.

As with our approach to scrutinising Scottish Child Payment draft regulations, our engagement with the Scottish Government on these draft regulations has been fluid and iterative. The benefit of this approach is that the Commission has been able to influence the Scottish Government’s ongoing development of the draft regulations. We are pleased that the Cabinet Secretary for Social Security and Older People has welcomed this approach and highlighted various amendments made to the draft regulations as a result of the Commission’s earlier input.  These amendments are presented in Annex A.

However, the difficulties we experienced in scrutinising these draft regulations were also similar to those we faced in considering the Scottish Child Payment. The Cabinet Secretary referred an earlier draft of the regulations to the Commission on 12 December 2019 and a further version on 7 February.  While we were able to undertake some limited consultation with stakeholders on the earlier draft, the tight deadline for the Commission to report meant that our ability to consult on the further version of the draft regulations was very restricted.

Moreover, the length and complexity of the draft Disability Assistance for Children and Young People regulations, and the very draft nature of those referred on 12 December, significantly increased the challenge we faced. Further details of our engagement with stakeholders and the timeline for our scrutiny are contained in Annex B. Annex C contains a summary note of a roundtable discussion that we held with stakeholders on the earlier draft regulations.

In view of the demonstrated benefits of the iterative approach taken with recent draft regulations, we would welcome continuing working in this way. This would entail the Scottish Government referring an early set of draft regulations that we can use for our initial consideration and for consultation purposes, and then a further set, that may have been amended in light of our earlier input, for our detailed scrutiny. The Scottish Government should also ensure that we have sufficient time for undertaking both those stages. This will be particularly important to allow for the effective engagement of people with lived experience, and where regulations are lengthy and complex.