The Disability Assistance for Older People (Scotland) Regulations 2024: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Disability Assistance for Older People (Scotland) Regulations 2024

1. Introduction

The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Disability Assistance for Older People (Scotland) Regulations 2024 (henceforth referred to as the ‘draft Regulations’).

The 2022 census highlights an ageing population in Scotland. More than one million people in Scotland are now aged 65 and over – a rise of almost a quarter since 20111 As that population rises, the number of disabled people over pension age can reasonably be expected to rise too.

In February 2023, 146,730 people in Scotland were entitled to Attendance Allowance (AA).2This includes 17,089 people entitled to AA but not being paid e.g. because they are in a care home; AA aims to help people with extra costs if they have a disability severe enough to need someone to look after them.

In 2020 the Scottish Government and the Department for Work and Pensions (DWP) entered into an agency agreement through which the DWP has continued to deliver AA to people in Scotland.3 After the necessary regulations have been approved by the Scottish Parliament, Pension Age Disability Payment (PADP) will replace AA in Scotland and will be delivered by Social Security Scotland initially through a pilot in Autumn 2024 followed by a national launch in early 2025.4Dates to be confirmed. The agency agreement with the DWP is expected to remain in place until all older people entitled to AA in Scotland are transferred to PADP.

Many of the provisions in the draft regulations are broadly the same as the existing regulations for AA – and this reflects the Scottish Government’s policy of ensuring that AA awards are transferred to PADP in a safe and secure fashion.

“By maintaining the current eligibility criteria, individuals in Scotland who are eligible for passported benefits and premiums from the UK Government will have seamless access to this vital support. This will provide security to people in Scotland when Pension Age Disability Payment is rolled out.”5

There are, however, some changes from AA which are intended to be introduced from its launch which replicate some of the changes made to other new benefits in Scotland, including a new definition of terminal illness, the introduction of Short-term Assistance and a shorter “past presence test” to determine the required length of residency. We reflect further on these changes in Chapter 4 of this report.

As required by the Act, our scrutiny was undertaken with regard to the Scottish social security principles11 and relevant provisions of human rights law.

The role of PADP cuts across dedicated international instruments covering the human rights of both disabled and older people. The human rights of disabled people are promoted and protected by the UN Convention on the Rights of Persons with Disabilities (UNCRPD) adopted by the UN in 2006, whilst the United Nations Principles for Older Persons (UNPOP) was adopted in 1991.12This statement of principles is not a legally binding set of rights (as would be the case for a human rights convention or covenant), but many of the principles broadly reflect rights protected by various conventions.

The UNPOP includes five principles aiming to promote the wellbeing of older persons and ensure that they are treated with dignity and respect. These are independence, participation, care, self-fulfilment and dignity. Each are worthy of particular consideration in SCoSS’s scrutiny of the draft regulations.

Independence: Older persons should have access to adequate food, water, shelter, clothing, and health care through the provision of income, family and community support, and self-help. The UNCRPD also includes the right to “living independently and being included in the community”. By providing an income to support the additional costs of personal care for disabled people of pension age, PADP can to some extent support independence and the right to respect for family life.

Participation: Older persons should remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their wellbeing, and share their knowledge and skills with younger generations. People over pension age may need the income from PADP to enable them to take part in social activities in order to fulfil this requirement. The lack of a mobility component in the PADP, as is the case with AA, could impact the extent to which this human rights principle is met.

Care: Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse. PADP is intended to make a contribution towards some of the additional costs of needing support from another person, rather than meeting such costs in full. Health and social care services also have a role to play, so the relationship between services and disability assistance should be working towards this aim in tandem.15

Self-fulfilment: Older persons should be able to pursue opportunities for the full development of their potential. In contributing towards the additional costs of support from another person PADP can help claimants to pursue their potential.

Dignity: Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status, and be valued independently of their economic contribution. As a non-means-tested benefit, PADP is a welcome support for older people with additional needs irrespective of their income. However, there are age differences in DWP disability benefits, especially between people over state pension age and those below that age (e.g. as between Personal Independence Payment (PIP) and AA). This distinction will be retained in Scotland as ADP and PADP are broadly similar benefits to PIP and AA respectively.

The Scottish social security principles are listed in Annexe C. The principles are embedded in Our Charter which sets out what people can expect from the social security system.17

When viewed through the lens of the social security principles, the introduction of PADP as a replacement for AA can represent an investment in the people of Scotland (principle (a)), though with the risk that retaining some of the AA criteria could be regarded as investing less in older people who are over pension age when they claim than is the case for disabled people below pension age.

PADP can contribute to the principle of social security as a human right (principle (b)), and extending Short-term Assistance should reduce any disincentive to challenging a decision, thus supporting the right to appeal.

Proposals to improve the application process and introduce light touch reviews should contribute to the Our Charter commitment to ‘Processes that work’ and related charter expectations to support people with their claims, as should improving the process for terminally ill people. These changes also have the potential to improve take-up and thus contribute to reducing poverty (principle (e)).

The retention of some distinctions by age (discussed above) risks not meeting the principle of continuous improvement, putting those needing assistance first and advancing equality and non-discrimination (principle (g) (i) and (ii)). Given the Scottish Government’s concerns about the feasibility of abolishing age differences due to cost, there may be a trade-off between principle (g) on the one hand and, principle (h), efficiency and value for money on the other. However, the balance between these principles may change over time. Whilst the need to ensure a safe and secure transfer from AA to PADP understandably limits the changes which can be made in the short term, retaining such age-based provisions in the longer term requires greater justification in the context of the social security principles.

Furthermore, age is a protected characteristic under the Equality Act 2010, and provision which ostensibly places a particular age group at a disadvantage because of their age could constitute discrimination, unless it can be objectively justified, and negative impacts mitigated against.

This report discusses some of these issues in more detail in later sections of this report, the mobility component (section 5), equality (section 7) and qualifying periods (section 8.1).

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