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.

Operational and administrative processes

Many people with experience of claiming PIP are looking forward to the system in Scotland being fairer and easier to manage, are expecting to be treated with dignity and respect and offered more support, and anticipate decisions being consistent, accurate and right first time. These expectations, and more, are set out in Our Charter.
With the introduction of ADP, the Scottish Government is laying down the foundations for a system intended to better meet the needs and aspirations of working-age disabled people. The recent consultation on these draft ADP regulations indicates that people see ADP so far as a significant improvement though there is clearly some frustration that ADP will not include more changes to eligibility conditions from the outset, and expectations that this will be picked up in the proposed 2023 review.

While regulations provide a framework for how ADP is to be delivered, they are not the place for setting out the specifics of processes that will achieve policy intentions and implement Charter commitments. It is the regulations which are the focus of this scrutiny report. However, how well processes are meeting expectations may, in due course, come under the Commission’s remit to review in our role to report on the Charter. There should be much to learn from the experiences of disabled people, stakeholders and staff using and delivering the new services.

People can register their ADP claim simply by giving basic details of name and date of birth, then have 8 weeks to complete the application (draft regulation 35). People will be able to choose to apply online, by post, by phone or through face-to-face contact with staff.

The application form is the starting point for gathering information to enable Social Security Scotland case managers to make the right decision. The form is intended to be as easy to use as possible. This is vital as the form is the primary way to gather the person’s own account of their condition and how it impacts their daily living and mobility. The person’s own account is the richest source of evidence for decision making. We know, however, that it is very difficult for anyone encountering a benefit as complex as ADP, perhaps for the first time, to be able to give a full account that includes being able to explain how they manage activities safely, repeatedly, to an acceptable standard in a reasonable time period, all key issues for eligibility. Ensuring there is help available to complete the form, for anyone needing it, is clearly very important. The new system has help to claim ADP inbuilt, through an Independent Advocacy Service and through Social Security Scotland’s network of local client support advisers. This support sits alongside the enormous contribution of the many advice and support services across Scotland.

Supporting people through the application is one of the expectations in Our Charter. There is a Charter measurement framework that sets out a range of measures to check how well processes are working. For applications, measures include how many of the people who need extra support are referred to relevant support and how many Social Security Scotland staff know how to refer people to advice and advocacy services. The term ‘refer’ is often used to mean signposting rather than the more active setting up of appointments through a referral system. People are more likely to get the support they need through active referrals so this is preferable to signposting where it is feasible to set up, and with the individual’s permission.

Recommendation 4: Social Security Scotland should aim to set up active referral systems with advice agencies trained to help with benefit claims, as well as active referral systems, with client consent, to advocacy and local client support services.
Aiming to get decisions right first time – another Charter expectation – is a challenge given the inherent complexity of ADP (like its predecessor, PIP). Charter measures include research with Social Security Scotland managers of examples of reasons for appeal outcomes. We would suggest that added to that is research with the Scottish Courts and Tribunals Service to learn from the perspective of the tribunals hearing appeals.

Recommendation 5: The Scottish Government ensures that tribunal insights into appeal outcomes for ADP are included in quality assurance measures and continuous improvement of Social Security Scotland decision making.

An application may go through several stages before there is enough information for a case manager at Social Security Scotland to reach a decision on entitlement. Stages involve clarifying information directly with the applicant and working with them to identify sources of supporting information. Supporting information may be formal – e.g. from a community nurse, physiotherapist or support worker – or informal e.g. from family, friends or unpaid carers. Usually one source of formal information will be required. If there is not enough information to make a decision, the case manager can get advice from a Social Security Scotland practitioner – staff with professional experience in health or social care – to clarify questions e.g. about health conditions or how a disability generally affects people, and ultimately about whether a ‘consultation’ is required.

Eliciting timely and detailed supporting information from busy professionals, which is focused on daily living and mobility activities, will be challenging. The evidential value will likely be variable, and Social Security Scotland decision makers will need good skills in weighing evidence to handle this appropriately. How effective formal and informal supporting information is in aiding decision making will be an important area for delivery, learning and improvement. Ahead of ADP being introduced, there is an opportunity to learn from how the system is operating for Child Disability Payment. For example, Social Security Scotland has been working with COSLA and health boards on standard routes to request and give supporting information, from which they have produced guidance for medical professionals, local authorities and health boards.

Recommendation 6: The Scottish Government is invited to set out a plan of action that will ensure an early focus on systems to capture learning and support continuous improvement in order to elicit good quality, timely supporting information, and support the effective use of evidence in decision making.

The consultation is intended to be a discussion between the applicant and a practitioner (with an opportunity for third party support for the applicant) to gain information on descriptors that the case manager has said they are not clear about. It will usually be by phone but there is flexibility about finding alternative ways that suit the applicant including meeting in person if requested which could be at their own home.

Practitioners are to take the time they need to fully understand the impacts of a person’s condition. Information gathered is to be transparent with reports provided and audio recordings available for appeals.
The redesign of the process away from the functional assessments for PIP that people find so traumatic is one of the most important changes in ADP. The process is not set out in regulations although the Act ensures that requiring someone to take part in a face-to-face consultation is a last resort.

Observation 1: By law, requiring a consultation must be a last resort, however, this only applies to face-to-face consultations where the individual and practitioner are ‘physically in the same place at the same time’. In practice, consultations will be delivered by phone or video call in many cases. There may be a case in due course for updating the Act accordingly.

In the current system, identifying gaps in evidence or seeking further information often happens only at the appeal stage although recently the DWP has made steps to address this. Undoubtedly the new system in Scotland which actively seeks information to plug gaps in the person’s own account is an important step towards getting decisions right first time. To further understand what makes for better decision making, gathering the right data will be important. A recent report from the Northern Ireland Public Services Ombudsman offers useful insights into the importance of further evidence to getting decisions right first time, and also how the manner in which data is gathered and analysed can inhibit or enhance learning and improvement.

The role of the practitioner is a key one. The draft Regulations (regulation 47) sets out the health or social care qualifications and experience that practitioners must have to carry out consultations, called ‘assessments’ in the regulations. In response to views submitted by stakeholders on the draft ADP regulations, the Scottish Government has strengthened this provision so that the two years’ work experience must be post qualification. This is welcome, however, one stakeholder told SCoSS of their concerns about the level of qualification that social care workers will be required to have. While training for health professionals is often to degree level, the benchmark qualification for registration with the Scottish Social Services Council as a support worker is the significantly lower level SVQ 2 (Social Services and Healthcare). Thus ‘suitably qualified’ in legal terms may be a necessary but not sufficient level of expertise to act as a practitioner.

To consider someone’s mental health condition in a consultation, the practitioner must have worked providing services to people with mental health conditions, and similarly for learning disabilities. We note that the regulation only applies to consultations involving the applicant, not to advice given by a practitioner to a case manager. It will be equally important for practitioners offering direct advice on a case to have the relevant experience. Transparency about the relevant experience of the practitioner offering advice and conducting a consultation should be the norm, both to reassure individuals and also in the interests of public confidence. For example, it may simply be reflected in job titles and appended to decision letters.

Recommendation 7: The Scottish Government ensures that the relevant experience of the practitioner advising decision makers or conducting a consultation is clearly communicated in order to instil confidence and promote transparency.

Experience Panels of disabled people and carers advising the Scottish Government have emphasised the need to have staff with extra training and experience on various disability-related issues, beyond the experience brought by health professionals. Social Security Scotland plans to work with organisations who represent those with first-hand experience of disability and health conditions when designing and delivering staff training. Staff with access to insights from disabled people of the impacts of disability on daily life will undoubtedly be better equipped to communicate effectively with applicants. We suggest that this training is continually refreshed, and that more ways to have such insights available to staff are considered.

Recommendation 8: The Scottish Government considers further ways to make the expertise of disabled people available to staff, for example, through refresher training or roles within Social Security Scotland for people with lived experience.

In the current UK system, PIP awards are normally for a fixed period. People have to make a renewal claim to continue to get benefit or have their awards reviewed. The process involves a questionnaire and assessment similar to that involved for new claims. The Scottish Government intends that all ADP awards will be made on a rolling basis. In other words, all ADP awards are to be indefinite but with a date set after which a review will decide continued entitlement (draft regulation 48).

We understand that the Scottish Government wants to implement indefinite awards with no reviews for people whose condition is very unlikely to change over their lifetime, and have consulted DACBEAG on the best way to implement this. Instead of regular reviews, Social Security Scotland would write to people each year with their uprating letter to remind them to get in touch if they think they are entitled to a higher rate of ADP. Of course, in a situation where an individual is already receiving the maximum, that does not apply. There may therefore be an even stronger case for indefinite awards in such circumstances. The Commission agrees that it should be practically possible to judge in individual cases where reviews are unnecessary, and that it is desirable, both from the standpoint of designing simpler processes (a Charter commitment) and likely to deliver a more efficient, value for money service (social security principle (h)). Giving people more certainty over their income will help people make longer term plans e.g. paying for adaptations to a Motability car. It is reasonable to conclude that this approach will help contribute towards realising the right of disabled people to have decent living conditions. In implementing a no-review policy for some people, the Scottish Government will need to exercise care that this is done in an equitable way, e.g. that people with conditions that fluctuate but overall are unlikely to change are also considered, which may be the case, for example, with some mental health conditions.

The intention is that people continue to be paid their ADP while the review is underway. However, if people do not respond to requests for information from Social Security Scotland their payments could be suspended (draft regulations 38 to 43). The aim must be to make sure that suspensions are very much the exception.

The draft Regulations provide for a power to suspend in essentially the same circumstances as the draft Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021, which SCoSS is also currently scrutinising. These in turn reflect the circumstances in which Schedule 11 to the 2018 Act stipulates a power to suspend may exist. That is: when the individual to whom the award is made fails to provide information material to a determination of ongoing entitlement following a request from Social Security Scotland; to protect the individual from financial abuse; when a person who receives payment on behalf of the individual is unwilling or unable to continue to do so; or at the request of the individual.

Some of the issues we are raising in our scrutiny report on provisions to suspend CDP or Scottish Child Payment awards apply equally in the context of ADP. Notably, these are: the need for clarity about the impact on passported entitlements or carer benefits if ADP payments are suspended; the need for independent advocacy and supported decision making to be available when required; and the difficult decision that would face an individual who is considering requesting the waiving of suspension on the grounds of financial hardship. The Commission notes that, in accordance with our recommendation on the draft Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021, draft regulation 39 requires Scottish Ministers to provide an individual who requests a review of a decision to suspend with a reasoned communication of the outcome.

Recommendation 9: SCoSS refers the Scottish Government to the recommendations made in our scrutiny report on the draft Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021. The Scottish Government should consider the applicability of these recommendations to draft regulations 38 to 43.

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