It is clear that there has been a considerable loss of trust in the fairness of decision making in disability benefits, particularly for PIP. It is equally clear that the experience of applications and assessments is very important to people. The Charter, created together with people with lived experience, sets out a range of expectations about how people want to experience the system – that it should be simple and clear, positive and stress-free, convenient and accessible, with independent advice and support available. It also places an emphasis on creating a learning system where staff are well trained and supported. In due course, the Commission will be able to report its views on how such Charter expectations are being delivered.

Alongside producing these draft regulations, there are very many other systems and processes to be set up in time for CDP to be delivered later in 2020. A good system is one in which correct decisions are made first time, and one that values continual learning and improvement. Certainly to be effective, people will need help to explain their needs fully from the start. The Scottish Government is designing a new application form for CDP that can be completed online, by phone, on paper or face-to-face and is setting up a network of local staff to provide pre-application support. There is also a promise that children and young people will not have to undergo a face-to-face assessment.

Turning to the draft regulations, these provide for things like the date of the application, who can make an application and what experience case managers and others involved in assessments must have.

To give people time to complete what could be a lengthy application form, CDP regulations allow six weeks from the date a person first contacts Social Security Scotland and supplies enough ‘data required to construct a record in respect of the child’ (regulation 24(4)). What exactly would be enough to construct a record is not specified. The more data or verification required, the more people will fail to meet the requirement and lose out on benefit. Examples from the current system range from DLA where the date of claim is simply the date the form is requested, to Universal Credit where the complex ID and verification process leave many failing to claim altogether.

The Commission takes the view that the needs of children should be the primary consideration in designing these processes. Undoubtedly allowing time to complete the form is compatible with this approach. While due attention must also be given to effective administration, care should be taken that the process does not require more than the minimum needed to start an application, which may be no more than a record of a phone call. For clarity, ideally the exact requirements should be set out in the regulations, and certainly set out in publicly available case managers’ guidance.

Recommendation 27: The Scottish Government should make clear, ideally in the regulations, that the least possible information will be required to start an application.

To deliver a system based on dignity and respect, the Charter requires that staff are well supported and trained, and understand the needs of different people and the barriers they face. Regulations specify that case managers and ‘specialist advisers’ must be trained on mental health conditions and learning disabilities. This will help support Charter expectations. Obviously, training will go beyond legal requirements. In designing staff training, we consider that equipping them with the skills they need to support people to give a complete picture of their needs will be important. To be properly enabling, this task will need to go beyond scripted questions, and build on staff having a good understanding of the issues that matter for the individual and the skills to be able to draw out a full account of those needs from the individual.

Finally, in creating feedback loops to learn from, Social Security Scotland should build in learning from the Scottish Courts and Tribunal Service (and its UK and Northern Ireland counterparts), for example, about reasons for overturning decisions, which can point to ways to improve decision making at an earlier stage.

We are pleased that the Scottish Government intends to introduce a Bill to enable Social Security Scotland to appoint a parent or another appropriate person to act on behalf of a child in relation to their social security assistance. This addresses a gap in the law. There may need to be consequential amendments to these draft regulations. There will also be a need for processes to be designed and guidance produced to clearly explain those processes. To be in line with human rights tenets, the touchstone in developing these processes and guidance must be considering what is in the best interests of the child. There should certainly be a clear process for dealing with disputes between appointees, which should provide an independent review, and a process for assessing a young person’s capacity to handle their own claim when they turn 16 that ensures they can properly exercise their right to express their views.

Recommendation 28: The best interests of the child should be the primary consideration in designing processes and guidance about appointing parents and others to act for children and young people.  Processes and guidance should be designed to ensure that children can properly exercise their right to express their views.

If someone wishes to challenge a decision about CDP, they have 42 days to ask for a redetermination (regulation 35). There is provision in the Act to make a late request for up to a year from the decision if Social Security Scotland accepts that the person has a good reason for being late. There is broad support amongst stakeholders that we spoke to for the time limit being 42 days. The Commission notes that these redetermination time limits for CDP are different from DLA and other reserved benefits and not directly comparable. As an example, someone getting DLA has 31 days to ask for a reconsideration but if they miss the deadline they have an unqualified right to appeal for up to 13 months. Someone getting CDP would have longer – 42 days – to ask for a redetermination but would not be able to proceed to redetermination or appeal if they missed the deadline unless they could show a good reason for the delay. They could, however, appeal about the question of good reason – called a ‘process decision’. Rules requiring people to show a good reason for their actions are common in social security. For some, they are a considerable barrier. We are pleased to see that the Scottish Government anticipates that case managers would make appropriate enquiries of people of their reasons. We also recognise that the availability of Short-term Assistance may act as an incentive to appeal, and may therefore counter this barrier to some extent.

Recommendation 29: Social Security Scotland should keep under review the optimum time limit for requesting a redetermination, for example, by monitoring appeals about process decisions.

Having received a request for a redetermination, Social Security Scotland has 56 days to make the redetermination (regulation 35(2)). Stakeholders have welcomed having a time limit in law, in contrast to the open-ended mandatory reconsideration process for reserved benefits. However there are differing views about what is a reasonable timescale with some believing it leaves people waiting too long.  The Commission is sympathetic to the situation of people who may rely on disability benefits for basic household bills who cannot easily adjust to a lower income, although some will have access to Short-term Assistance to tide them over the time it takes to resolve their case. We are also mindful of the need for the Agency to have enough time to make a fully-informed decision. A shorter time limit presumably means more undecided cases. The consequence of running out of time is that the undecided case is handed back to the individual to take to appeal or not as they choose. This carries the risk of people simply giving up.

Recommendation 30: Social Security Scotland should keep under review the optimum time limit for making a redetermination, and ensure that processes are designed so that nobody drops out of the system simply because the agency has not determined their case in time.

The Scottish Government has explained that children will get ‘rolling awards’ of CDP. How disability benefit awards are assessed and reviewed is a matter of great concern to people. In developing this policy the Scottish Government has been guided by advice from the Disability and Carers Benefits Expert Advisory Group (DACBEAG).  The draft regulations say there will be no fixed end point to an award but rather a review period set based on when it is anticipated that a child’s needs may change. At the end of the review period, Social Security Scotland will make a new determination of entitlement. DACBEAG also recommended that reviews should be light touch and minimise stress.  However, the process for review will be a matter for guidance. During the review period, a child is assumed to continue to satisfy the eligibility conditions.

There are provisions that allow an award to change before the review period comes to an end, for example, where a child’s needs have increased. Regulation 31 requires a new determination if a change of circumstances ‘would possibly result in an alteration to the level of CDP’ (emphasis added). This means that the Agency could make a new determination – and change the award or leave it unchanged – or not make a new determination. Only if there is a new determination would the individual have a right to challenge that decision by way of redetermination and appeal. There is a balance to be struck between on the one hand being able to assure people that when things happen that are not relevant to their entitlement, their award is safe, and on the other hand providing the appeal rights that people expect. For example, young people starting college should be able to do so without worrying that they will automatically be reassessed if their needs have not changed, whereas a parent who believes her child’s needs have increased should have the right to appeal if the agency disagrees with her. The Charter expectations are that the agency will ‘look at your application again if you disagree with a decision.’

Recommendation 31: To fully meet Charter expectations, the Scottish Government should ensure that regulations and processes always contain appeal rights, for example, where the Agency disagrees with a parent who believes her child’s needs have increased.

There are some technical issues with regulations about ‘determination without an application’:

• It is not completely clear that regulations provide Social Security Scotland with the necessary powers to remove an award altogether where a person is no longer eligible. For example, it is clear that the powers are there to reduce an award if there is a change of circumstances, but not clear that the phrase ‘an alteration to the level payable’ (regulation 31(1)(a)(i)) includes removing an award altogether.
• Regulation 31(1)(a)(iv) and regulation 33(1)(c) provide for full backdating if new facts come to light that would have given a child a higher award had they been taken into account in the original award. This is more generous than in the current DLA system where arrears would not be awarded. There is no indication of the policy intention but this may be an intentional improvement in putting the needs of people who require assistance first.
• Regulation 32 deals with changing an award where there has been an official error. For example, Social Security Scotland may make an official error if it gets the law wrong or ignores important information. To avoid confusion, the regulation says that the route to changing the award by making a determination without an application should not be used if a redetermination or appeal is underway. While this clarification is helpful, it does leave a potential gap if the error only comes to light after an appeal has already been decided. Sometimes errors come to light that affect lots of people. It would be unfair if this could be put right for some people but not others.
• In our Scrutiny Report on the draft Scottish Child Payment regulations,62 we drew attention to the need for clarity on how changes of circumstances would be taken into account while a redetermination or appeal was underway, for example, whether an appeal tribunal would decide an award based on circumstances at the day of the hearing or whether a new application would be required. We note that this will also be an issue for CDP where clarity will be needed for individuals, case managers and tribunals.

Recommendation 32: The Scottish Government should consider the technical issues raised about ‘determination without application’:

• to clarify that Social Security Scotland has the necessary powers to remove an award where a person is no longer eligible;
• to ensure the regulations achieve the policy intention with regard to backdating payments when new facts come to light;
• to clarify in regulations that an award can still be corrected if an official error comes to light after an appeal has concluded;
• to provide for how changes in circumstances are dealt with while a redetermination or appeal is underway.