Disability Assistance for Working Age People (Scotland) Regulations: scrutiny report
The Scottish Commission on Social Security's scrutiny report on the draft Disability Assistance for Working Age People (Scotland) Regulations for Adult Disability Payment with recommendations for the Scottish Government.
1.1 ADP eligibility issues
ADP is based on rules as well as processes. Rules are set out in the Act and regulations. The rules set out in detail the conditions a person must satisfy to qualify for benefit. Like PIP, ADP regulations set out a list of activities. Each activity is separated into a range of detailed descriptions of a level of ability e.g. from being able to carry out an activity unaided, to not being able to carry it out at all. These ‘descriptors’ have a points score attached. A person needs a certain number of points to qualify for ADP. There are a series of daily living and mobility activities and descriptors.
While many people hold negative views about how PIP is assessed – i.e. about the processes for delivery – there are also some who feel strongly that change is needed to the eligibility rules themselves – i.e. about what is delivered to whom. There are a range of concerns expressed about the ADP rules, for example:
- The overall approach focuses too much on medical conditions and the treatment and management of medical conditions.
- People must explain what they cannot do rather than what they can do, and often have to give sensitive and potentially intrusive information that is incompatible with dignity and respect.
- There is a suggestion that descriptors do not cater well for some conditions such as multiple sclerosis, epilepsy and other fluctuating conditions, autism, hidden disabilities, some sensory impairments, learning disabilities and mental health conditions.
- The provisions to accommodate fluctuating conditions are too inflexible, requiring that the functional limitation should apply at least 50 per cent of the time.
- When DLA was replaced by PIP in 2013 for disabled adults, the requirement to qualify for the higher rate of the mobility component was tightened up, from an unspecified distance in DLA that in practice meant an inability to walk 50 metres, reduced in PIP to a specified distance of 20 metres. As they transferred to PIP, many people lost the higher rate of the mobility component and their passported entitlement to a car through the Motability scheme and, with it, a key part of their independence. The same 20 metre rule applies in ADP.
However, the Scottish Government has said that a safe and secure transition to ADP requires the eligibility rules for ADP to be broadly the same as PIP during the period of transition. ADP marks a step-change in the scale of delivery to be undertaken by Social Security Scotland. The task of setting up the systems needed and transferring a large existing caseload of over 300,000 should not be underestimated. Caseload projections on which the resources for Social Security Scotland to deliver ADP rest, are based on the PIP caseload. The possibility of wider eligibility criteria generating a lot of new claims could render the task overwhelming. Furthermore, it is planned to transfer an estimated 6,000 awards a month from PIP to ADP without reconsidering entitlement in the majority of cases. Having to decide entitlement against new rules could again overwhelm the system.
Regardless of any other factors, these challenges alone simply do not permit going further in changing the rules at this stage. The Commission accepts that this is the reality. The Commission is in no doubt that a stable, well-run system that gives people confidence in the continuity of their payments is absolutely critical. We are persuaded that changing eligibility criteria at this time would risk undermining the delivery of ADP, with extremely detrimental consequences for people who depend on it.
However, delivery challenges are not the only constraints on making more substantial changes. Others include the interdependency with the reserved benefits system and the need to protect the passporting of entitlement to other benefits and services, and cost. We say more on this below, as some may continue to apply to the 2023 review and potentially always, to some degree.
1.2 Independent review
In scrutinising Regulations against principles (d) (dignity and respect), (e) (contribution to poverty) and (h) (efficiency and value for money), as well as human rights concerning non-discrimination, we felt it important to understand the nature of the constraints that apply regarding scope to make improvements. We also note that Our Charter commits the Scottish Government to ‘look for ways to make eligibility rules fairer’.
We are therefore pleased that the Scottish Government plans to set up an independent review in summer 2023, one year after the national launch of ADP. Presumably that review should have principle (g) at its heart: ‘opportunities should be sought to continuously improve the Scottish social security system in ways which (i) put the needs of those who require assistance first and (ii) advance equality and non-discrimination’.
In preparation for the 2023 review, the Scottish Government could usefully make an early start in considering options for change, and to what extent constraints on changing eligibility rules may continue to exist beyond the transition period. It is worth considering how constraints may interconnect, and that the implications could significantly differ in nature and extent, depending on the change in question.
Once transition has been completed, it will still be necessary to understand and manage the delivery consequences of any significant changes of approach. Usefully, by 2023, there will have been a chance to learn from the experience of administering the system.
Rates of ADP daily living and mobility components act as passports to other forms of assistance, for example, additional amounts in means-tested benefits, Carer’s Allowance, getting a car through the Motability scheme, and reductions and exemptions from Vehicle Excise Duty. Some of these are reserved to the UK and some devolved to the Scottish Government. There are also passports to local authority and other forms of provision, such as council tax exemption, Blue Badge, bus passes, and Disabled Person’s Railcard. For ADP to give people entitlement to UK benefit amounts and support in the same way as PIP, the DWP must accept ADP as a ‘like for like’ system. So far, that agreement has been achieved by keeping the eligibility rules broadly the same. There may come a point where ADP and PIP have diverged to the extent that an alternative to automatic passporting from ADP to UK benefits must be considered. The risk could be that increased disability benefit could be offset by loss of passported benefits, leaving recipients worse off.
Changes to the UK benefit system
It is clear that devolved and reserved benefits are closely intertwined. Changes to one system can have consequences for the other. Entitlement to devolved top-up assistance can be contingent on receipt of specified reserved benefits, while receipt of devolved assistance can act as a passport to reserved provision. There can be implications for people moving from one system to the other. This in turn can bring delivery challenges, the need to share data and IT systems to support it.
In that context, some proposals in the DWP’s recently published Health and Disability Green Paper present significant implications for the devolved system. The Green Paper notes that proposals relating to PIP and DLA (devolved) would not apply in Scotland, just those relating to ESA and UC (reserved), however, the proposals may have indirect consequences that would apply in Scotland. Some key features of the Green Paper and their implications can be summarised as follows:
- Changing PIP descriptors. Subject to timing of any changes to PIP, there could be implications for the safe and secure transition from PIP to ADP, given the need to maintain eligibility rules like-for-like during this period.
- Changing PIP descriptors would speed the divergence of case law between Scotland and the rest of the UK so that the benefit that case law brings in terms of clarifying rules and challenging unequal treatment, is weakened.
- In the longer term, the Green Paper proposes exploring the scope to combine working-age health and disability benefits (e.g. UC, ESA and PIP) into one benefit. There would be numerous policy and delivery challenges to combining devolved benefits with reserved benefits, and non-means-tested benefits with means-tested benefits.
- Changes could raise questions on passporting arrangements – what would be treated as a passport to what.
- A significant restructuring of UK benefits and changes to passporting may well mean challenges to devolved benefit delivery systems, information exchange and IT systems.
- There is repeated reference to the need for an ‘affordable’ system. Bigger changes are considered in the context of curtailing rising spending on health and disability benefits. UK benefit policy choices affect how much the UK transfers to the Scottish Government for devolved benefits (the ‘block grant adjustment’). Resources transferred to Scotland for social security may reduce.
All of this can bring cost implications. Changes to ADP eligibility rules bring delivery challenges and additional cost implications that extend beyond ADP itself. If they result in increased cost for the UK Government, e.g. in the cost of passported entitlements, those costs would need to be paid by the Scottish Government in accordance with the Fiscal Framework agreed between the two governments. As the Scottish Fiscal Commission has pointed out, new policies are always harder to forecast, and it is inherently difficult to predict how many people will get ADP compared to PIP. Their estimate of spending on ADP assumes an overall increase in successful applications of 21 per cent in the long term. Once the transition to ADP is complete and access to outturn data available, there will be a sounder understanding of the real cost of ADP, and therefore a clearer baseline from which to forecast further changes to the system.
Another factor to consider is the implication of changes to eligibility criteria for existing case law (see 7.1 below by way of illustration). A further key factor will be the learning that will be derived from an active caseload. For example, will the way ADP is delivered generate an increase in successful applications above that which would have been projected had PIP remained in place? Could that alone generate increased expenditure on passported entitlements?
Any one or combination of these factors may constrain change to eligibility rules in different ways. Obviously, some changes will cost more than others but may have a more limited impact on passported entitlements. For example, widening access to enhanced rate mobility component (e.g. by removing the 20 metre rule) would have very few implications for reserved passporting entitlements. Moreover, the implications of changes to some would be more quantifiable, and hence easier to gauge, than others.
Recommendation 10: In preparation for the 2023 independent review of disability assistance, the Scottish Government should begin now to consider options, identify their implications and scope out the parameters and process for the review.