Child Disability Payment Amendment Regulations: draft equality impact assessment

Background

Policy Aims

• In a statement to the Scottish Parliament on 28 May 2019^[2], the Cabinet Secretary for Social Security and Older People, Shirley-Anne Somerville MSP set out the Scottish Government’s vision for the further devolution of a number of benefits under the Social Security (Scotland) Act 2018, including the following disability benefits: Disability Living Allowance for Children (DLAC); Attendance Allowance (AA); and Personal Independence Payment (PIP). These are currently being delivered by the UK Government’s Department for Work and Pensions (DWP).
• As part of this devolution of benefits, individuals will have their reserved benefits changed to the corollary devolved benefits, a process called “case transfer”.
• These regulations make several technical amendments to the principal regulations. Amending the principal regulations ensures that CDP entitlement is aligned to our policy intent which is to help improve outcomes for disabled children and young people, by providing financial assistance to help meet the additional costs associated with care and mobility needs as a result of having a disability.

Amendments relating to the effect of time spent in care homes and in legal detention

• An individual who is entitled to the care component will be paid the care component for the first 28 days of their stay in a care home or in legal detention. These regulations remove a potential ambiguity regarding on the date when individual stops being paid the care component. The changes made within these regulations make clear that payment will stop on the 29^th day, not the 28^th.
• There is an overrepresentation of males in the young prison population^[3]. For this reason, young disabled males are likely to benefit more frequently from this amendment. This will however not disadvantage female children and young people.
• They also amend the definition of legal detention as defined in regulation 2, ensuring that children and young people who are in-patients in a hospital or hospice are not treated as though they are in legal detention and will continue to be paid their care component of CDP. This regulation seeks to ensure that an individual detained in these circumstances should not be considered to be in legal detention for the purposes of CDP, and their assistance should remain in payment. This will help ensure consistency for young people and their families regardless of which environment a young person becomes resident in.

Amendments relating to age criteria

• These regulations amend the age criteria to allow for young people to remain on Child Disability Payment after age 18 in specific circumstances. This is to primarily avoid the scenario whereby individuals cease to be entitled because a determination of entitlement has not yet been made in relation to Adult Disability Payment.
• We have heard how the transition from Child DLA to PIP can be challenging for young people. In order to ensure continuity of payments for young people on reaching age of 18 in some exceptional circumstances.

Amendments to the past presence test

• Under the principal regulations, serving members of the armed forces and civil servants are required to have met each of the residence and presence tests immediately prior to the start of their absence caused by their employment, including the past presence test, which requires 26 weeks’ presence in the Common Travel Area in the past 52 weeks at the date an application is made. These regulations seek to dis-apply the past presence test to civil servants and members of the forces on the basis that the Scottish Government considers that the policy intent is served by requiring ordinary residence in Scotland and habitual residence in the Common Travel Area immediately prior to the start of any work-related absence, in addition to the broader fact of the individual’s employment in the civil service or in the armed forces.
• These regulations also make changes to the temporary absence from the Common Travel Area (CTA). This will allow Scottish Ministers to temporarily stop payment of CDP rather than end entitlement if the child or young person has a temporary absence from the CTA. The temporary absence can be for up to 13 weeks for any reason, or up to 26 weeks if the absence is in connection with arrangements made for the medical treatment of the individual, provided the absence is not expected to last more than 52 weeks.
• By stopping payment rather than ending entitlement after a temporary absence, we will minimise the potential need for children and young people to re-apply for CDP upon return to the Common Travel Area. This change will therefore reduce stress and anxiety for children, young people and their families or carers around having to start a new application.
• This may have a bigger impact on third country nationals who have immigration status that allows them access to public funds , who may need to be absent from the Common Travel Area for longer because of e.g. family reasons. Scottish Government analysts highlighted significant challenges in relation to the data available on the size of this group and interactions with social security benefits.

Amendments relating to the mobility component

• These regulations also make a technical amendment to the requirements for the higher rate mobility component to make it clearer that clients have to have met the eligibility criteria for the higher rate for at least 13 weeks prior to the date when entitlement would begin.
• The policy intention has always been that in order to move from the lower rate to the higher rate of the mobility component, or to qualify for the mobility component for the first time, a client should meet the backwards test of 13 weeks.
• This regulation makes that intention more explicit and places it beyond any doubt the requirement to have those needs for 13 weeks on the date that entitlement would begin, aligning with the rules relating to moving from the lowest or middle rate of the care component, to the highest.

Amendments regarding a late report of a change of circumstances

• These regulations amend the date on which increase of entitlement takes effect, for individuals who report their change of circumstances late, without good reason. The date will be changed from the when the individual reports their change, to the date when the Scottish Ministers make their determination.
• The Scottish Government considers that this change would ensure better consistency with the policy approach in relation to changes which are reported timeously, ensuring that an individual who has reported their change of circumstance late would not see their entitlement change sooner than someone who reported a change in circumstance on time.

Amendments regarding changes in residence between Scotland and the rest of the United Kingdom

• When an individual moves from Scotland to either England and Wales or Northern Ireland, Social Security Scotland will continue to pay a 13 week run-on of CDP from the date the client moves elsewhere in the UK. This gives the client time to apply to either the Department for Work and Pensions or Department for Communities for DLAC. These regulations make clear that if an individual fails to report a move, that the date that CDP stops is 13 weeks after the date of the move.
• In the principle regulations it states that entitlement to CDP begins on the day after the day on which DLA ceases to be paid. As an individual’s payment of DLA might have been reduced to £0, whilst they are still entitled to DLA, we want to remove any potential ambiguity on when a person’s entitlement to DLA ends, and their entitlement to CDP begins.
• These amendment will help to prevent a financial ‘cliff edge’ due to a sudden reduction in part of a household’s income and give people time to apply for DLA or PIP. This is particularly important given the data indicates that households with at least one disabled child are far more likely to be in poverty. In mitigating the loss of income to households during moves, we anticipate this will have a positive impact on disabled children and young people. Providing more clarity around the rules will also help ensure that all individuals are treated equally and fairly.

Amendments relating to re-determination and appeals

• Social Security Scotland has 56 calendar days to complete a re-determination. If an individual doesn’t request a re-determination in the correct way, or fails to do it within the time specified and lacks good reason, that individual has a right to appeal directly to the First-tier Tribunal for Scotland, Social Security Chamber (this is called a ‘process appeal’). The Tribunal may decide the individual either did request the re-determination in the right way, or they had good reason for not meeting the time-limit.
• This amendment clarifies the policy intention regarding when the period Social Security Scotland has to complete a re-determination begins in a case if the Tribunal has decided that a request for re-determination has been validly made. This date will be the day on which the Tribunal makes that decision. This will help ensure that Social Security Scotland will have 56 days to complete the re-determination, ensuring that there is sufficient time to gather any additional supporting information needed to make a new determination.
• This will be beneficial as it will provide certainty for children and their families about how long Social Security Scotland has to complete a re-determination. It will also ensure that re-determinations can be carried out fairly, whilst allowing sufficient time to make more robust and accurate decisions.

Amendments relating to Short-Term Assistance

• The Scottish Government has introduced Short-Term Assistance (STA) where Social Security Scotland has made a decision to reduce or stop a continuing payment of CDP, and that decision is subject to a request for re-determination or an appeal. STA will be available until the First-tier Tribunal (FtT) for Scotland has made a determination, and is non-recoverable. Where a person is eligible for STA, the value of STA will be the difference between the level of assistance paid prior to the reduction and the new level of assistance (including if that amount is now nil because entitlement to CDP has stopped).
• STA is not available in the reserved social security system and providing support in this way is another example of where Scottish Ministers are removing barriers to challenging decisions in the Scottish social security system.
• These regulations clarify the scenarios where short-term assistance is payable to ensure that it covers the period when the change in entitlement is being challenged to the First-tier Tribunal, but the outcome is not yet known. It also includes admission to alternative accommodation to the scenarios when an individual is not entitled to short-term assistance in respect of the care component of CDP. It further clarifies that Scottish Ministers are to make a determination without application when ending an individual’s entitlement to short-term assistance. It also corrects a cross-referencing issue in the principal regulations, to ensure entitlement to STA would run from the date of request for re-determination to the date of determination made that the end of that re-determination.
• The intention of the policy is to ensure an individual is not discouraged from challenging that decision or from accessing administrative justice by having to manage, for a period, with a reduced income.

Amendments relating to Case Transfer

• These regulations correct citations to the Social Security Contributions and Benefits Act 1992 to ensure individuals whose Disability Living Allowance was negatively impacted for failing to meet the “substantially in excess” test for either the care component, mobility component, or both before they turned 16 can have their award increased at the point of case transfer where appropriate.
• They also clarify the interpretation of regulation 15 of the CDP regulations to ensure clients with severe visual disability receive the correct rate of the mobility component at the point of case transfer.
• The impact of these changes will be to better reflect the policy intention to ensure children and young people whose entitlements transfer are not disadvantaged when compared to those who make new CDP applications due to differences in eligibility rules between CDP and DLA.
• The regulations clarify the effective date of determinations without application that result from a change to a relevant past Disability Living Allowance award and highlight this applies to changes to that award made under either the English and Welsh or Northern Irish rules.
• This amendment aims to give Scottish Ministers the necessary powers to set entitlement dates appropriately where the DLA award the transferred CDP award is based on is changed and allow this to apply regardless of whether the DLA award was changed by UK or Northern Irish governments or tribunals.
• We believe these changes will better promote the rights and well-being of children and young people whose initial CDP entitlement is established as a result of the case transfer process by ensuring they are not financially disadvantaged by the transfer process.

Who was involved in this EQIA?

• In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. This received more than 200 responses to questions relating to disability benefits with an even split between organisational and individual responses. In particular comments were invited on a partial Equality Impact Assessment which represented the Scottish Government’s work on the impact of social security policy on people with protected characteristics prior to the consultation.
• There were 521 formal written responses submitted, of which 241 were from organisations and 280 from individual respondents. Of the 241 organisational responses, 81 were received from stakeholder groups relating to children/young people, equalities and human rights, disability and long term conditions, and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 May 2017^[4]. In addition, the Equality Impact Assessment that was published alongside the Social Security (Scotland) Bill and the principal Regulations was used to inform the partial Equality Impact Assessment for these Regulations.
• The Scottish Government has set up Social Security Experience Panels with over 2,400 people across Scotland registered as panel members when the Panels opened in 2017. The Panels involve people with lived experience of the benefits that are coming to Scotland. In July 2019 recruitment to the Experience Panels was reopened. We have been working with relevant stakeholders to specifically target disabled people from seldom heard groups as part of our engagement.
• Two surveys regarding the case transfer process was sent out to Experience Panel members in January and February 2019. 404 and 559 responses were received respectively. A series of individual and group interviews were also conducted. Results from both surveys and the interviews were published in 2019.^[5] These surveys confirmed that of most importance to panel members was that they continue to receive the correct payment at the correct time.
• We have been working with relevant stakeholders to specifically target disabled people from seldom heard groups as part of our engagement. For example, we have reached out to the Inclusive Communications Stakeholder Reference group to seek views from people from seldom heard groups. This is a continuous exercise and more information from this work is imminently forthcoming.
• The Consultation on Disability Assistance built on the work on the Experience Panels and was published on 5 March 2019. In line with the principles of dignity, fairness and respect, the Scottish Government sought the views of the people of Scotland on the three proposed disability assistance benefits, namely Disability Assistance for Children and Young People (now known as CDP), and replacement benefits for PIP and AA^[6]. The consultation closed on 28 May 2019, having received 263 replies, of which 74 were from stakeholder organisations and 189 were from individuals.
• Regarding disability assistance, an initial framing exercise for the partial Equalities Impact Assessment relating to disability assistance was carried out in 2017 involving a range of internal Scottish Government stakeholders. In addition to highlighting a number of positive impacts and potential barriers, the exercise enabled significant data gaps to be identified. This in turn led to the targeted consultation with stakeholders representing people with protected characteristics which was undertaken during the Consultation on Disability Assistance between 5 March and 28 May 2019.
• Specifically with regards to case transfer, framing exercises have been taking place in 2020 and will continue to take place with a range of internal Scottish Government stakeholders.
• The Scottish Government has also undertaken ongoing consultation with stakeholders through our independent Disability and Carers Benefits Expert Advisory Group (DACBEAG) as well as the Ill Health and Disability Benefits Stakeholder Reference Group. DACBEAG is chaired by Dr Jim McCormick and comprises individuals with significant practical experience of the UK social security system, from a range of professional backgrounds. It is independent of the Scottish Government. The Group’s role is to advise Scottish Ministers on specific policy options for disability assistance and carers benefits due to be delivered in Scotland.
• The Ill Health and Disability Benefits Stakeholder Reference Group was set up in March 2016 to inform and influence the development of policy options relating to devolved Disability Assistance. This group has advised on the potential impact of policy decisions as well as stakeholder engagement.
• Despite the continuing impact of coronavirus, work with Experience Panels has continued, with user testing on digital material that will be available on the Social Security Scotland website. Specifically with regards to case transfer, framing exercises have been taking place in 2020 and will continue to take place with a range of internal Scottish Government stakeholders. This will give information to people who are considering making a CDP application. We focused on making sure that information was easy to find, understand and navigate.