Decisions made in appeals to tribunals and courts are referred to as ‘case law’. Case law makes it clearer what regulations mean when applied to individual situations and specific disabilities. Because the principles established in these cases are binding on decision makers deciding other cases, case law makes decision making more consistent. It also enables individuals to exercise their rights more effectively.

Attendance Allowance case law will not form part of Pension Age Disability Payment law despite the very similar regulations. Therefore, legal principles established in AA cases do not directly apply to PADP. In our view, reflecting case law in guidance which informs decision making is generally a reasonable approach. It allows for guidance on matters that would be too detailed to include in the regulations themselves. Some cases, however, establish principles which can be incorporated in the PADP regulations. For example, the draft regulations usefully define ‘attention’ as including ‘prompting or motivation’ and ‘assistance with communication needs.

However, the definition of ‘supervision’ in the draft regulations should be changed. It is presented in identical terms to the Adult Disability Payment definition. While there is merit in defining supervision, this should be based on case law principles relevant to PADP, and not with reference to the different tests in Adult Disability Payment. As drafted, eligibility would be narrowed further than has been established in case law.

For example, someone is eligible for PADP if they need ‘continual supervision … to avoid substantial danger to themselves or others’ (draft regulation 5(2)(b)). ‘Supervision’ in this qualifying condition is then further defined in draft regulation 5((5)(c). This definition adds that ‘continual supervision requires’ the ‘continuous presence’ of another person. Case law has established that ‘continual’ and ‘continuous’ are not the same, and that supervision can be continual even when there are short breaks.¹R(A) 1/73 The definition also adds that the purpose of supervision is ‘ensuring the individual’s safety’, thus ignoring that danger to others also counts, and that case law establishes that to ‘avoid substantial danger’, means reducing the risk not removing it completely.²R(A) 3/92

Recommendation 5: The Scottish Government should revise the definition of ‘supervision’ in line with established case law principles.

‘Required period’ and ‘required period condition’ are concepts from Adult Disability Payment (and Personal Independence Payment) which are not used in Attendance Allowance. Introducing these terms in PADP seems to have meant departing from the policy intention of following Attendance Allowance and some lack of clarity in important provisions.

• The term ‘required period’ is used in regulations 3, 5, 8, 27 and 38. It refers to the 26-week qualifying period in regulation 5(6) although the term ‘required period’ is not used in regulation 5(6). For clarity, if ‘required period’ is the preferred term for the 26-week qualifying period, it would be preferable to specify it in regulation 5(6)
• The lower and higher rate conditions in regulation 6 are not clearly tied into both the period of the award and the 26-week qualifying period. As drafted, it could be argued that it is possible to qualify for the higher rate as soon as help is needed both day and night (the condition for the higher rate) while only needing help in the day or at night in the previous 26 weeks (the condition for the lower rate)
• Part 4 is headed ‘required period condition’. This is a concept from Adult Disability Payment which is not used in Attendance Allowance. In PADP draft regulations it refers to applying for PADP after an interval since the end of a previous award. To avoid confusion, renaming this part to refer to PADP after an interval would be preferable
• In Attendance Allowance, someone can reclaim the same rate within two years without serving the 26-week qualifying period again. Draft regulation 8 seems to be providing a similar rule for PADP, however, it introduces an extra test of having the same condition as before or stemming from the same condition. This is a test that exists in Adult Disability Payment (and Personal Independence Payment) but not in Attendance Allowance. While it could be reasonable to ask someone with a different condition to re-serve the qualifying period, if the policy intention is to follow Attendance Allowance, then this regulation does not meet that intention
• Draft regulation 8(3) seems to assume that the 26-week qualifying period is a rolling test that must be satisfied not just before the start of the award but also on an ongoing basis. However, while a version of that is the case for Adult Disability Payment, which seems to be the model for this provision, it is not the case for Attendance Allowance or PADP.

Recommendation 6: Provisions relating to the ‘required period’ and ‘required period condition’ should be revised to ensure they meet the policy intention.

The draft regulations contain some misnumbering e.g.

• Regulation 5(7) refers to paragraph (7) but this should be paragraph (6)
• Regulation 8(2) refers to regulation 5(4) but this should be regulation 5(6)
• Regulation 18 has incorrect paragraph references
• Regulation 42(1)(b) has an unintentional line break separating subparagraph (ii)
• Schedule numbering begins at paragraph 50 instead of paragraph 1.