Annex A: Policy Approaches Underpinning the draft Disability Assistance for Working Age People regulations
Key policy differences
1. We have bold ambitions for Adult Disability Payment and have identified a number of ways to provide disabled people with a fundamentally different experience of accessing the social security system. While the eligibility rules for Adult Disability Payment will remain largely the same, there are a number of key areas of policy which differ from Personal Independence Payment, including:
- All awards will be made on a rolling basis, with no set date for an award ending. In cases where there it is unlikely that a client's condition will improve there will be at least five years between Light-Touch reviews. Work is underway to establish parameters that could be put in place for the provision of indefinite awards for certain clients whose needs are very unlikely to change.
- The introduction of Short-Term Assistance (STA), a new form of assistance that ensures that clients can continue to receive their previous payment amount until the conclusion of any re-determination or appeal challenging the decision to reduce or stop the award;
- Extending the time limit for requesting a re-determination of a decision to 42 calendar days, to allow individuals time to access support with the process;
- A new definition of terminal illness, removing the requirement that a person must reasonably be expected to die within 6 months and instead using the clinical judgement of doctors and registered nurses involved in the individual's care.
2. There are also a range of proposed operational and administrative measures that will ensure that Adult Disability Payment is delivered in a way that is consistent with the values of social security in Scotland. These include:
- The provision of a range of application channels which clients can select based on preference including online, paper applications and face to face;
- A local delivery service that will provide support and information to clients and stakeholders at a community level;
- We will use existing supporting information to make a determination about Adult Disability Payment for the majority of clients and consultations will only be carried out where it is the only way to obtain the information needed to make a decision;
- There will be no assessments like those carried out under the Department for Work and Pensions, as we will no longer conduct any functional examinations;
- Consultations will be carried out by people who are 'suitably qualified' to do so and employed by Social Security Scotland;
- Clients with mental health conditions and learning disabilities will discuss their needs with practitioners who have an appropriate understanding of their condition or disability;
- We will take a multi-channel approach to how consultations take place, such as by phone or video call, removing the need for the majority of clients to travel to unfamiliar places.
Improved application and decision making process
3. Through our engagement with disabled people we have learnt that the Personal Independence Payment application process can be a cause of great anxiety and distress. We have received consistent feedback that the application form is confusing, individuals feel that it is designed to 'catch them out', and takes an unreasonable amount of time and effort to complete. We are significantly re-designing the Adult Disability Payment application form and testing it to ensure clients understand what is being asked of them and why. Carrying out testing with experienced decision makers is also enabling us to develop the application form in ways that enable clients to provide the most relevant and useful information to inform robust decision making.
4. We want clients to be able to provide or direct us to the supporting information which will best assist a determination to be made about their entitlement. That is why we have focussed on gathering supporting information, making use of information which already exists in the public sector where possible.
Changes to activities, descriptors and scoring criteria
5. The Scottish Government has committed to delivering Adult Disability Payment safely and securely, ensuring that people's payments are protected during this transition period as we commence delivery. We must ensure that people continue to receive the payments they are entitled to.
6. We have undertaken extensive consultation on the existing Personal Independence Payment framework. Stakeholders and individuals told us that there are many improvements that could be made to the existing activities, descriptors and scoring criteria.
7. The two particular elements highlighted in the consultation as causing concern were the 20, 50 and 200 metre descriptors used to assess mobility, and the 50% rule which is applied to the majority of descriptors. A series of descriptors relating to the distance in metres an individual can walk determine eligibility for the mobility component of Personal Independence Payment, with the enhanced rate provided to clients who are unable to walk more than 20 metres. The proportion of time during which an individual satisfies a descriptor must amount to 50% of the days in a month.
8. We have considered carefully whether we should implement changes to these rules when we begin delivery of Adult Disability Payment. There are a number of challenges associated with this that would risk safe and secure transition and could result in a poor experience for clients, including:
- Other wide ranging issues have been raised with the current system, impacting individuals with mental health conditions, learning disabilities, sensory disabilities, epilepsy, MS, fluctuating conditions in general, those whose mobility is affected, those who are Deaf or hard of hearing. Making changes to the mobility or 50% rules in isolation could further embed unfairness into the framework resulting in a system which is disproportionately improved for clients with certain conditions, over others;
- Making such changes may understandably cause clients to end their award with Department for Work and Pensions early and make a new application to Social Security Scotland. If a significant number of clients chose to do this when we begin delivery of Adult Disability Payment, it would overwhelm the agency's ability to deliver Adult Disability Payment to the high standards that clients rightly expect;
- Making changes to the eligibility criteria before case transfer has completed will involve a much more involved decision making process than is currently planned for clients transferring from Department for Work and Pensions to Social Security Scotland, which would cause a significant risk to the delivery of the case transfer process;
- Giving Social Security Scotland the opportunity to begin delivering Adult Disability Payment before wider changes are made will provide access to improved data to consider the impact of possible future changes to the eligibility criteria, including ensuring that we do not inadvertently disentitle clients who are currently in receipt of an award; and
- If the changes we made increased entitlement to Adult Disability Payment, the Department for Work and Pensions would need to agree that it would continue to provide automatic access to passported benefits and premiums. This does not necessarily prevent us from making changes to the framework, but we need to take the time necessary to develop alternative criteria and secure agreement from the Department for Work and Pensions.
9. For these reasons, we do not consider it safe to make any significant changes to the activities, descriptors and supporting eligibility criteria in these regulations. However, this has not stopped us from making a number of significant changes to both policy and to the administrative aspects of the delivery of Adult Disability Payment, to ensure that the Scottish social security system better meets the needs of the people of Scotland.
10. Additionally, we have made some minor changes to a number of the activities, descriptors and definitions to reflect significant case law which has shaped the way Personal Independence Payment is delivered. This will ensure that developments made through the tribunals system for Personal Independence Payment are carried over into Adult Disability Payment so that it operates in the way currently intended.
11. In the longer term, in order to address the many reported concerns with the existing framework, subject to being re-elected in May 2021, we will commence a substantial independent review of Adult Disability Payment in summer 2023, a year after this form of assistance is rolled out nationwide.
Independent review of Adult Disability Payment
12. The Scottish Government plans to establish a group to undertake the review with its members and chair drawn from outside the Scottish Government. The group will also secure input from people with lived experience. The review will not be limited to specific aspects of Adult Disability Payment, such as the mobility rules. It will be wide ranging to allow consideration of the suitability all of the activities, descriptors and supporting criteria, for example, the reliability criteria and 50% rule.
13. The review will commence in summer 2023, providing the opportunity for Social Security Scotland to administer Adult Disability Payment for a full year so the necessary data and feedback from individuals can influence the recommendations. The Scottish Government will then make the independent report and recommendations publically available to allow for transparency, scrutiny and visibility. We understand that stakeholders are eager for changes to be made as soon as possible and are committed to implementing reforms as quickly as is achievable once case transfer is complete.
20 metre rule – improved decision making
14. We know that the mobility criteria are a source of great concern for both clients and other stakeholders. They have raised concerns about the high bar which must be met in order to qualify for the enhanced rate – being unable to walk more than 20 meters – which is thought to be too short a distance. Additionally the criteria have been criticised for failing to recognise the needs of individuals with a range of disabilities and health conditions, particularly those who experience fluctuations in how their mobility is impacted.
15. We are however confident that the improvements being made to the decision making process, including the replacement of the assessments undertaken previously by Department for Work and Pensions with consultations carried out by Social Security Scotland, will bring about a marked improvement. The following measures will all contribute to that commitment:
16. In order to inform determinations of entitlement to Adult Disability Payment, we will aim to collect one piece of supporting information from a formal source, such as confirmation of a diagnosis or letter from a support worker. It need only be sufficient to determine, on the balance of probabilities, that the individual's condition is consistent with the general care and mobility needs detailed on their application. This is a marked departure from the current system which requires formal supporting information to evidence each and every difficulty that the client reports experiencing. This can present particular challenges in relation to mobility as information from formal sources might not fully reflect the impact a client's condition has on their mobility from day to day.
17. Additionally, we know that useful insight into a client's daily life can often be provided by their informal support network – including family, friends, or unpaid carers. Social Security Scotland will ensure that equal consideration will be given to all sources of information. Details of this will be provided in the staff guidance documents which will accompany the finalised regulations.
Applying the reliability criteria
18. In order for a determination to be made that a client is able to undertake any of the Adult Disability Payment daily living or mobility activities, they must be able to do so reliably. The reliability criteria require consideration to be given to the client's ability to complete an activity safely, to an acceptable standard, repeatedly and in a reasonable time.
19. Our engagement with clients, stakeholders and those with experience of delivering the Department for Work and Pensions assessment service is that these criteria are often not properly applied and this may particularly impact on decisions made about clients' mobility. It is also felt that there is a lack of clear and accessible guidance for clients applying for Personal Independence Payment. This means that these matters may not be addressed in applications.
20. We plan to address this barrier by providing transparency regarding the Adult Disability Payment criteria and guidance which facilitates clients to provide the most relevant information about how their condition affects them. In conjunction with comprehensive guidance and training for case managers, decisions about mobility should take full account of how the client experiences moving around, rather than simply being a tick box exercise.
No physical examinations
21. There will be no assessments like those carried out under the Department for Work and Pensions, as we will no longer conduct any functional examinations, for example musculoskeletal examinations, testing limb strength, etc.
22. Our review of the current Personal Independence Payment assessment process concluded that such functional examinations did not meet our values of fairness, dignity and respect. It also concluded that examinations did not provide the kind of reliable information a case manager needs to make an informed decision.
Transparency of informal observations
23. We know that the current approach of assessors not discussing their informal observations with clients, or any assumptions they draw from them, is not in keeping with our values of dignity, fairness and respect. This can also lead to inaccurate conclusions being made in Department for Work and Pensions assessment reports. The elements of Scottish Government policy relating to informal observations intended to improve decisions about mobility are:
- Informal observations must be restricted to the consultation itself – observations cannot be made outside of that discussion, for example (where a consultation takes place in person) the person's journey to and from the location;
- All clients must be informed of any observations made during the consultation and what inferences the practitioner conducting the consultation draws from them;
- The client, or person accompanying them, must be given the opportunity to respond to the observations.
Transfer from Child Disability Payment to Adult Disability Payment
24. We have not included detailed regulations within the draft in relation to how clients will transfer from Child Disability Payment to Adult Disability Payment. We are aiming to design this process in such a way that it places as little burden on the client as possible. A key improvement we are making elsewhere when a client submits a new application is to use existing supporting information to make a determination. We are considering how this principle can be applied to clients moving from Child Disability Payment to Adult Disability Payment. We will further refine these regulations when the feasibility of this approach has been fully considered and before the regulations are submitted to the Scottish Commission on Social Security for scrutiny.