Disability Assistance for Working Age People (Scotland) Regulations: scrutiny report

Our report has been completed in accordance with the Commission’s pre-legislative scrutiny function, set out in sections 22 and 97 of the Social Security (Scotland) Act 2018.  Section 97 states that the Commission must report on draft Regulations proposed to be made under any section in Chapter 2 of Part 2 of the Act. The draft Regulations, as referred to SCoSS, are made under powers conferred within this part of the Act. We hope suggestions and recommendations in the report will help Scottish Ministers further improve draft regulations laid before the Scottish Parliament, and inform the Social Justice and Social Security Committee’s scrutiny. Rules about transferring awards of PIP paid to people in Scotland by the Department for Work and Pensions to awards of ADP paid by Social Security Scotland, and consequential amendments, are not in scope for SCoSS’s scrutiny and have not been referred, although they are expected to be included in the final version of the regulations laid before the Scottish Parliament.

The draft Regulations were formally submitted on 25 June 2021 by the Minister for Social Security and Local Government, Ben Macpherson MSP.  As part of the scrutiny process, we were able to seek further information and clarification from officials on various points, which has helped us prepare our scrutiny report and also, we hope, helped the Scottish Government in its evolving policy and legislation development. An updated version of the draft Regulations was submitted to SCoSS on 6 September 2021 with various revisions and additions, including the addition of regulations on the transfer from CDP to ADP.  While we welcome the engagement with the Scottish Government which allowed these updates and additions to be included in our report, they did not form part of SCoSS’s consultation with stakeholders. This report is based on the provisions and numbering in the updated version of the draft Regulations.

Finally, an update to the residence and presence conditions relating to people evacuated from Afghanistan was sent to SCoSS on 21 September 2021. While scrutiny of these changes is not included in this report, the Commission plans to consider them alongside its scrutiny of corresponding amendments to other benefits contained in The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021.

The scrutiny timeline is summarised in the Annex to this report.

SCoSS carries out its scrutiny role having regard to the Scottish social security principles, any relevant provisions of human rights law, and with reference to our scrutiny framework.

In carrying out our scrutiny, we drew on analyses of stakeholder responses to the Scottish Government’s consultation exercise on the draft Regulations.  We also carried out some limited consultation ourselves to help fill identified gaps in responses from representative bodies and people with lived experience. There had also been some changes between the draft that the Scottish Government had consulted upon and the draft formally referred to us so we wanted to ensure these stakeholders had sight of the latest version. We are very grateful for the timely and informative responses we received. These have informed the following report in a number of key areas and have already prompted improvements to the revised draft Regulations. We are also grateful to the Scottish Fiscal Commission for engaging with SCoSS.