Disability Assistance for Children and Young People (Scotland) Regulations 2020: scrutiny report

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.

Recommendation 2: In drafting Disability Assistance regulations, the Scottish Government should remove the more out-dated language, in keeping with the principles of dignity and respect.

Recommendation 3: The Scottish Government should consider what more can be done in the medium term to ensure that human rights and social security principles are embedded in disability assistance policy and practice, including that children themselves are appropriately involved in policy development.

Recommendation 4: The Scottish Government should take the necessary action to ensure that its own administrative systems protect terminally ill children, young people and their carers from experiencing the complexity arising from diverging systems in Scotland and the rest of the UK, and work with the DWP to create a seamless interface.

Recommendation 5: To ensure the system is robust, the Scottish Government should make sure that processes for getting a second opinion from another doctor about whether a child or young person meets the definition of ‘terminal illness’ for entitlement under the special rules are clearly explained and accessible in accordance with the expectations in the Charter.

Recommendation 6: Monitoring and evaluation of how the system supports terminally ill people should be joined up across Social Security Scotland, the NHS and the DWP, and take account of the need for quick, effective action to address any problems.

Recommendation 7: The Scottish Government should attend to the technical issues noted in relation to terminal illness regulations:

• to include a mobility component qualifying period exemption for terminal illness; to replace in regulations the term ‘claim’ with the term ‘application’;
• to clarify in regulations or guidance whether it is intended that
  there is no requirement for a terminally ill child to be present in the UK for entitlement to CDP;
• to clarify in regulations or guidance how the special rules operate when children reach age 16.

Recommendation 8: Regulations should be framed in such a way as to:

• provide young people a choice of which benefit to claim from age 16;
• prevent a short break in a care home or a stay in a residential school from triggering a need to apply for DAWAP;
• protect people from the consequences of applying for the wrong type of assistance, for example, by treating an application for DAWAP as one for CDP and vice versa.

Observation 1: Given that young people aged 16 to 19 could potentially be on either CDP or DAWAP or transitioning between the two, there may well be a need to adjust CDP regulations in light of DAWAP regulations to ensure they are properly aligned.

Recommendation 9: The Scottish Government should:

• assess the likely behavioural impacts of Short-term Assistance and knock-on effects (including on timeliness and standards of decision making), and ensure that Social Security Scotland and the Scottish Courts and Tribunals Service are prepared with the capacity to handle the estimated number of redeterminations and appeals;
• monitor the extent to which the appeals system, with the availability of Short-term Assistance, enables people to overcome barriers to challenging decisions, or results in unintended consequences
• build in learning from the Tribunals Service, for example, about reasons for overturning decisions which can point to ways to improve decision making at an earlier stage.

Recommendation 10: the Scottish Government should attend to the technical issues noted in relation to Short-term Assistance:

• to consider whether regulations should allow STA to be paid in full when an application is late;
• to clarify in regulations what deductions for an overpayment would be made from STA when someone has continued entitlement to CDP;
• to redraft regulation 18(2) to achieve the policy intention;
• to clarify the regulations with regard to fraud, and to moving from Scotland to another part of the UK.

Recommendation 11: The Scottish Government should attend to the technical issues noted in relation to Child Winter Heating Allowance:

• To amend the draft regulations to clarify that children who get DLA and live outside Scotland cannot access Winter Heating Assistance;
• To consider adding a provision allowing access to Winter Heating Assistance when DLA is awarded following a revision, supersession or appeal;
• To consider adding a provision to allow access to Winter Heating Assistance when CDP is awarded to correct an official error;
• To clarify in regulations whether there is one £200 payment per child or per household.

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.

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

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.

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.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

Observation 2: The Commission believes that there would be value in seeking wider views to help develop understanding of the potential consequences of diverging systems between Scotland and the rest of the UK when it comes to benefit transfers and beyond.

Recommendation 26: The Scottish Government should attend to the technical issues noted:

• To amend regulation 43 to correctly make middle or higher rate care component of CDP the qualifying benefit for carer’s allowance.
• To clarify the difference between a temporary absence from Scotland and a move elsewhere in the UK that changes ordinary residence, for example by considering adding to regulations a temporary absence from Scotland provision for absences within the UK.

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

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.

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.

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.

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.

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.

Recommendation 33: The Scottish Government should improve consistency and coherence across regulations with regard to time limits for redeterminations.

Recommendation 34: In view of their complexity, length and speed of development, the Scottish Government should continue to review the draft regulations before and after CDP is launched to identify and rectify any immediate issues arising and to ensure a robust basis for developing future Disability Assistance regulations.