Draft Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2021

Severe visual impairment route to higher rate mobility

Our original report noted that children in Scotland with a visual impairment are assessed under the Visual Impairment Network for Children and Young People (VINCYP). As a result, the test of severe visual impairment for Disability Living Allowance (DLA) and hence also in the original draft DACYP regulations, were not a good fit with existing best practice. Therefore, SCoSS recommended that the Scottish Government should review the eligibility criteria for the higher rate mobility component for children who are visually impaired.

We are pleased to see that regulation 7(4) of the revised draft regulations now provides entitlement to higher rate mobility for children who have a severe visual impairment, fulfilling the VINCYP definition. The new test in regulation 7(4) has two parts:

•  the child ‘has a severe visual impairment’, fulfilling the definition from VINCYP, and
•  the child ‘is unable to mobilise safely’ …. ‘due to severe sight impairment’.

This approach is a much better fit with good practice in Scotland, and should make evidencing entitlement for children with a visual impairment more straightforward. It is reassuring that RNIB Scotland approves of the change overall. However, RNIB Scotland points out that the second part of the test (regulation 7(4)(b) on mobilising safely) is not needed because having a severe visual impairment in itself should be sufficient to qualify. Other stakeholders have voiced concerns that including a mobilising test could inadvertently restrict entitlement compared to the DLA test of severe visual impairment which it replaces.

We are grateful to the Scottish Government for conveying to us the following insights from VINCYP national lead clinicians. We understand that whereas VINCYP has an agreed definition of ‘visual impairment’ in children (reproduced in regulation 7(8)), the assessment of ‘severe visual impairment’ does not depend on the child’s ability to mobilise as the draft regulations suggest. VINCYP does refer to mobilising in the same terms as reproduced in regulation 7(4)(b), but as a shorthand used by clinicians producing a statement that a family can use to evidence entitlement to a Blue Badge or travel card. Unlike adults, the definition of ‘severe’ in children cannot always be measured in terms of the standard sight tests of visual acuity, either because they are too young, or because visual impairment is due to an abnormality of brain function so that they cannot ‘see’ due to profound difficulties with visual processing in the brain. Where it is not appropriate to apply the adult visual acuity criteria, clinicians form a professional opinion on whether a child has equivalent visual function to someone meeting the adult criteria. Best practice is for a child to have a functional assessment by a team of professionals with expertise in visual impairment including a teacher and habilitation specialist.

In the light of this information about the broader functional nature of the VINCYP test of severe visual impairment in children, we consider that removing the mobilising requirement in regulation 7(4) will help align the regulations more successfully with the clinical approach to assessments.

Recommendation 2: The Scottish Government should amend the definition of ‘severe visual impairment’ in regulation 7(4) to remove the mobilising requirement. Further, it should provide detailed guidance on the VINCYP assessment and the types of supporting information that will evidence severe visual impairment.

How many children with a severe visual impairment will qualify under the new test?

The Scottish Government has not been able to estimate the number of children likely to qualify for the higher rate mobility component under the new definition of severe visual impairment. 107 children currently qualify for DLA higher rate mobility under the existing definition.

Approximately 2,500 children in Scotland have a visual impairment but statistics from VINCYP on how many of these have a severe visual impairment have been delayed because of COVID. However, we expect that it would be possible for the Scottish Government to estimate whether any significant change is expected as a result of the new definition, which would reassure stakeholders. Children have been assessed under VINCYP for some time so it may be reasonable to assume that any significant change to how many children qualify for DLA would already have emerged. In any case, the Scottish Government should monitor how many children with a severe visual impairment qualify for CDP so that any impacts can be identified.

Observation 1: Generally, where there is a significant change in policy as regulations are developed, it would be good practice to consider any consequential impacts and update equality and other impact assessments as needed. To ensure any potential impacts are identified regarding children with visual impairments, the Scottish Government should monitor how many children qualify for CDP under the new definition of severe visual impairment.

Take-up

The Scottish Government pledges in the Charter to work to improve benefit take-up, ensuring as many people as possible get what they are entitled to, making a particular effort to reach people who are most likely to be excluded. Take-up initiatives are set out in a Benefit Take-up Strategy, a required by the Social Security (Scotland) Act 2018, which includes working with stakeholders on promotion and engagement.

There are various organisations and services for children with visual impairments that the Scottish Government will want to involve in promoting take-up of CDP. There is also an opportunity for the Scottish Government to work with the network of practitioners and bodies through VINCYP to promote take-up of CDP among children with visual impairments, many of whom have other impairments and as a group would be expected to have a high take-up of CDP. For example, VINCYP standards recommend a multi-agency review and report for each child within 8 months of identification of a visual impairment, which would be an opportunity to ensure that a benefit check for the family has been carried out.

Recommendation 3: As part of its take-up strategy for CDP working with organisations and services, the Scottish Government should work with VINCYP networks to promote take-up among children with visual impairments.

Severe mental impairment route to higher rate mobility

(a) Significant difference from DLA

SCoSS’s original report noted that 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 have ‘severe behavioural problems’ and also get the highest rate of the care component. The original DACYP draft regulations had diverged significantly from this approach, which did not seem to be the policy intention.

The revised draft regulations (regulation 7(2)(g)) have been amended to add the requirement to have the higher rate care component, but not to have a single test. The test is still that a child will qualify if they either have a ‘severe mental impairment’ or have ‘severe behavioural difficulties’. We understand the Scottish Government’s policy intention is to have a single test and to amend the regulations accordingly.

Observation 2: We note that further adjustments to drafting of regulations are needed to ensure that the route to qualifying for higher rate mobility for a child with a ‘severe mental impairment’ who also has ‘severe behavioural difficulties’ is set out in regulations in a manner consistent with the policy intention of it being a single test where both parts must be satisfied.

(b) Evidence for physical restraint

Our original report noted a reference to children whose behaviour requires ‘physically restraining’ and, in particular, that the use of restraint to avoid damage to property is not consistent with good practice. We recommended that the reference to damage to property be removed and that in producing guidance for case managers the Scottish Government should consider wider concerns about use of physical restraint.

We are pleased to see that the revised draft regulations remove the reference to damage to property. In addition, it adds specific detail about positive behavioural support plans, the accepted best practice framework within health, social care and educational services relating to interventions to reduce and prevent challenging behaviour.

Stakeholders have told SCoSS that they welcome the change. However, CPAG asks whether all interventions must be described in a positive behavioural support plan, and, if so, whether that means a child would need to have such a plan to qualify. If this were the case, it may create an unintended barrier to eligibility under this route, for example, for children who are waiting to be assessed for a positive behavioural support plan. Officials have clarified the policy intention: interventions in a positive behavioural support plan will be evidence of challenging behaviour but other evidence can also be relevant, therefore, having such a plan is not required to qualify for higher rate mobility component through the severe mental impairment/ behavioural difficulties route. This policy intention could be clarified by amending regulation 7(7)(b).

Recommendation 4: The Scottish Government should amend the regulations to clarify the policy intention that interventions in a positive behavioural support plan are evidence but having such a plan is not required for a child to be accepted as having ‘severe behavioural difficulties’.

Drafting issue relating to artificial aids

Whether a child qualifies for higher rate mobility component through being unable or virtually unable to walk takes into account their walking ability using any suitable walking aid or prosthesis. We are pleased that regulations have been amended to be more explicit that the need to use walking aids does not disqualify a child with prosthetic legs, as we recommended in our original report. However, we suggest that the regulation would be clearer still if it was explicit that walking aids and prostheses were also irrelevant to the other routes to qualifying for higher rate mobility component (in regulation 7(2)(e) to (g)). This would also ensure that the draft regulations were consistent with relevant DLA provisions.

Recommendation 5: The Scottish Government should ensure that regulation 7(3) is explicit about which routes to qualifying for higher rate mobility are affected by a child’s ability to walk using an artificial limb or artificial aid.

Unable or virtually unable to walk as an outdoor test

The test of whether a child is unable or virtually unable to walk for DLA higher rate mobility component has always been an outdoors test taking no account of a child’s particular surroundings such as living on a hill. We understand that the policy intention for CDP is that it should also be an outdoors test. However, the draft DACYP regulations do not specify this (regulation 7). This misalignment with DLA could have the effect of case law no longer applying to CDP.

Recommendation 6: The Scottish Government should ensure that the policy intention relating to a child’s ability to walk out of doors is clear in regulations and guidance.

Lower rate mobility eligibility depending on physical or mental impairment

Our original report noted that, under the Social Security (Scotland) Act 2018, disability assistance regulations must be framed so that eligibility depends on having a physical or mental impairment. However, the original draft regulations, which provided for the lower rate mobility component, made no reference to the guidance or supervision needs of a child having to relate to an impairment. SCoSS recommended that the regulation for lower rate mobility component should relate the need for guidance or supervision to a physical or mental impairment. The revised draft regulations seek to make the link with a physical or mental health condition more explicit. However, we note that regulation 6 still does not contain an explicit requirement for a child to have a physical or mental impairment.

Observation 3: We note that further adjustments to drafting of the regulation for lower rate mobility component may be needed to explicitly relate the need for guidance or supervision to a physical or mental impairment. Should the Scottish Government consider the draft regulations to be sufficient as they are, it should explain how they are consistent with the Social Security (Scotland) Act.