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

SCoSS received copies of draft impact assessments along with the draft regulations which are a welcome and helpful aspect of our scrutiny. During the scrutiny period the draft Equality Impact Assessment of Pension Age Disability Payment (PADP) was published on the Scottish Government website.¹Draft Disability Assistance for Older People (Scotland) Regulations 2024: Draft Equality Impact Assessment (www.gov.scot) Similarly the Draft Disability Assistance for Older People (Scotland) Regulations 2024: Draft Fairer Scotland Duty Assessment – (www.gov.scot) was also published. SCoSS welcomed this move in allowing for wider feedback on this draft assessment.

As the draft had been made public, SCoSS met with the Equality and Human Rights Commission Scotland to consider effective approaches to equality impact assessments using the draft assessment of the PADP regulations as an example. When reviewing equality impact assessments, SCoSS considered that potential issues for further consideration included:

• Plugging data gaps, including consideration of ‘intersectionality’(ie the interaction of one or more protected characteristics, such as age and disability in this instance), and what assumptions can be made about potential impacts when data is limited and so impacts cannot be evidenced
• Further stakeholder engagement to assist in meeting data gaps, especially concerning intersectionality and therefore any new potential impacts
• As we note in section 5 on mobility, in the context of the different social security and human rights principles being applied in Scotland, the introduction of PADP presents an opportunity to re-consider the justifications inherited from AA. As such, further consideration of the justifications for not including a mobility component, and mitigations against any negative impacts is required

Concerns about the lack of a mobility component, as discussed above, relates to the potential for differential treatment by age²Where an apparently neutral provision puts people sharing an age group at a particular disadvantage; see Age discrimination (www.equalityhumanrights.com). unless it can be objectively justified (eg as a proportionate means of achieving a legitimate aim).

As noted earlier, although some cases considering DLA/AA legislation have held that such differences by age could be justified,³Kennedy, S. (2021) Social security benefits for older people with mobility needs. House of Commons Library paper SN07160 (parliament.uk); Work and Pensions Committee, Tackling Pensioner Poverty, 30 July 2009, HC 411I (parliament.uk) there remain concerns. For example the 2004 ‘Mobilise’ campaign, and a 2009 House of Commons Work and Pensions Select Committee questioned such differences in treatment on the grounds of age.⁴Now the Equality Act 2010. Discussed in Kennedy, S. (2021) Social security benefits for older people with mobility needs. House of Commons Library paper SN07160 (parliament.uk).

As noted in Section 5 of this report on mobility, retaining age distinctions sits uneasily in the context of the Scottish Government’s human-rights based approach to devolved social security. Furthermore, aspects of the Equality Act concerning disability also includes the potential to treat disabled people more favourably⁵Disability discrimination (www.equalityhumanrights.com), which could be considered in future iterations of equality impacts.

Observation 2: When updated, the draft Pension Age Disability Payment Equality Impact Assessment could address data gaps and engage stakeholders to explore further justifications and mitigations related to a mobility component.