Disability assistance in Scotland: response to consultation

Our response to the consultation analysis report about the consultation on disability assistance undertaken between 5 March and 28 May 2019.

2. Section 1 - Disability Assistance in Scotland

The broad purpose of Disability Assistance is to provide financial assistance to mitigate some of the increased costs that people incur as a result of having a disability or long term condition. Disability Assistance helps ensure that disabled children and adults are more able to secure the care and mobility support they need, reducing barriers to their full participation in our communities and improving life opportunities.

Section 1 of the Consultation paper sought views on aspects of delivering Disability Assistance in Scotland relevant to all forms of Disability Assistance.

We know that there is an interaction between take-up levels, and a broader understanding of what benefits are for, and the simplicity of the names of the benefits. We set out our intention to rename the devolved replacement benefits to clearly set out to disabled people their different to DWP equivalents.

We are intending to undertake further user research and engagement to ensure that the names of the benefits are simple and inclusive and clearly set out the client group that each form of assistance is for.

2.1 Policy Proposal – Disability Assistance Names

The consultation document asked for views on the Scottish Government’s proposed names for each form of Disability Assistance:

Current Name Proposed Name
Child Disability Living Allowance Disability Assistance for Children and Young People
Personal Independence Payment Disability Assistance for Working Age People
Attendance Allowance Disability Assistance for Older People

Respondent Feedback

The majority of respondents agreed with our proposed names for each type of Disability Assistance. Some respondents were concerned that words such as ‘disability’ and ‘assistance’ may not be inclusive, and a small number of respondents suggested that the proposed names may discourage greater uptake if an individual does not identify themselves as having a disability.

Scottish Government Response

We will undertake further engagement with stakeholders and Experience Panel members around our proposals for benefit names to ensure that they are simple, straightforward and inclusive.

2.2 Policy Proposal – Application Channels

We know that many disabled people and their families have found the current system complicated to navigate, particularly when applying for benefits. To try to reduce this complexity and to meet a broad range of needs and preferences, our proposals committed to a range of application channels, all accessible to clients based on their preference and not just on need.

We also committed to ensuring that each of the channels was designed to be inclusive and accessible, simpler to complete and tested with people with lived experience of disability benefits. We know that the process of applying for disability benefits can be incredibly complex and we are seeking to consider the views of disabled people in how we might make this much simpler.

We set out our intention to redesign the application process form beginning to end to make it more inclusive and person-centred, whilst removing repetition and unnecessary complexity. The consultation paper set out our intention to make available a choice of application channels including by phone, by paper form or online.

Respondent Feedback

A large majority of respondents who answered (87%) agreed with the approach to ensure a choice of application channels with a theme emerging that inclusivity and accommodating people with varied needs was key.

Scottish Government Response

We will continue to co-design application channels with people who have experience of applying to the current benefits system and will consult relevant expert groups and stakeholders on our approach to the various application channels.

Our Social Security Charter sets out our commitment to adapt our processes and ways of communicating as much as we reasonably can to meet client’s needs and preferences, for example by providing interpreters.

The Social Security (Scotland) Act 2018 also places a duty on Scottish Ministers to have regard to the importance of communicating in a way that ensures individuals who require communication support (in relation to speech, language or otherwise) can receive information and express themselves in ways that best meet each individual’s needs.

2.3 Policy Proposal – Conditions Relating to Residence and Presence

The consultation document set out our initial policy intention that the Scottish system will broadly replicate the residency rules used by DWP, meaning an individual must meet all of the following residence and presence conditions:

  • Be habitually resident in the Common Travel Area;
  • Not be a person subject to immigration control;
  • Be present in Great Britain on the date the claim is made, and;
  • Must have been present in Great Britain for 104 weeks out of the last 156 weeks on the date the claim is made (the “past presence” test).

We also set out the intention to broadly replicate existing provisions in relation to temporary absence from Great Britain, which prevents people from losing eligibility if they are away from home temporarily.

Existing rules allow individuals to be outside of Great Britain for up to 13 weeks for any reason and for up to 26 weeks to receive medical treatment.

For the purposes of temporary absence, where a person is absent from Great Britain, they shall be treated as though they were present in Great Britain if the absence is because they are abroad in their capacity as a serving member of the armed forces, or a continental shelf worker, or are a member of that persons family.

Respondent Feedback

A majority of respondents (59% who answered) agreed with the proposed approach. However, we also received suggestions about how we could change the rules, including:

  • Removing or shortening the ‘past presence’ test;
  • Whether the periods of temporary absence allowed under the current rules were long enough, and;
  • The rules on temporary absence should continue to apply to absences from Great Britain rather than Scotland to protect the entitlements of individuals who move around Great Britain for a variety of reasons.

Scottish Government Response

The Scottish Government is considering the implications of removing or adjusting the existing DWP residence and presence conditions. This is the type of policy change which could potentially have implications for individuals moving around the UK whilst in receipt of Scottish Disability Assistance. There may also be issues around eligibility for a range of payments, exemptions and entitlements associated with reserved UK benefits which remain within the control of DWP, eligibility for which currently depends on receipt of a UK disability benefit.

Major changes to eligibility rules create a risk that individuals in receipt of Scottish Disability Assistance moving to another UK jurisdiction from Scotland could face gaps in eligibility for the equivalent disability benefit in the other jurisdiction. If the Scottish form of assistance does not have a past presence test, for example, then individuals moving to another UK jurisdiction from Scotland before they have been in Great Britain for two years could fail to qualify for the equivalent DWP disability benefit when they apply in the new jurisdiction.

In addition, the disability benefits which are being devolved to Scotland currently act as ‘qualifying benefits’ for a number of premiums and entitlements associated with benefits which are still administered by DWP, such as Universal Credit. Access to these premiums and entitlements on reserved benefits could be affected if the Scottish Government introduced different residency requirements for Scottish Disability Assistance. A major policy change in the residence and presence conditions for Scottish Disability Assistance carries the risk that Scottish Disability Assistance could no longer guarantee the same access to the premiums and entitlements associated with reserved UK benefits.

We acknowledge concerns expressed by respondents to the consultation about the past presence test. Discussions are ongoing with DWP officials to establish whether changes to the past presence test can be delivered without jeopardising existing entitlements of Scottish clients or creating eligibility gaps.

The Scottish Government will ensure the rules on temporary absence are replicated. This will allow individuals to move freely around Great Britain for temporary reasons, such as to provide care to a family member in another jurisdiction, without losing entitlement to devolved disability assistance.

Key stakeholders were unable to provide any examples of individuals who had lost their benefit entitlement as a result of being outside GB for a period of medical treatment which exceeded the 26 weeks permitted under the existing rules. We have therefore been unable to find any evidence that the existing periods of permitted temporary absence are inadequate.

2.4 Policy Proposal – Making Decisions about Entitlement

We know that there are a broad range of views from disabled people about how decisions on entitlement to Disability Assistance should be made. We set out that the overarching principle should be taking a person-centred approach that looks at the individual impact of a condition on a person and not just whether they have a diagnosis of a specific condition.

We know that this approach will ensure that disabled people applying for Disability Assistance will have their application considered in broader terms, ensuring that those people with fluctuating conditions or mental health conditions have more trust and confidence that decisions will be made in a way that better considers the impact of their condition on them.

The consultation paper asked a number of questions in relation to how Social Security Scotland should make decisions about entitlement to Disability Benefits. The questions sought views on:

  • The overarching principal of taking a person-centred approach when considering if someone is entitled to receive Disability Assistance;
  • Involving Specialist Advisors in the decision making process;
  • The kind of factors which should be taken into account when involving a Specialist Advisor in the decision making process and;
  • Making decisions about eligibility and awards for children, young people and older people using existing information to support applications.

Respondent Feedback

There was consensus amongst respondents, with 92% of respondents agreeing with the proposed approach of taking a person-centred view when assessing if someone was entitled to receive Disability Assistance. A key issue many respondents highlighted was that there must be appropriate guidance and training provided to ensure consistency across the forms of assistance.

A large majority of respondents (77%) were in favour of our proposals about whether a Specialist Advisor should be consulted as part of the decision making process. Respondents provided various examples of situations where Case Managers might need an opinion from Specialist Advisers:

  • Cases where the Case Manager does not have the required knowledge or skills;
  • Complex or rare conditions. Some respondents cited specific conditions including epilepsy, lymphoedema, fibromyalgia, multiple sclerosis, cancer, head injuries;
  • Multiple illnesses or comorbidities;
  • Fluctuating conditions;
  • Where a client has a mental health condition, learning difficulties, or in instances where there are concerns about a client’s ability to take part in the assessment process;
  • In instances where there is contradictory supporting information or inconsistencies in the supporting information, or any doubt over the information provided and the Case Manager needs a second opinion;
  • Where existing information is deficient and / or there is a lack of supporting information.
  • Where there are hidden or invisible disabilities;
  • Where there are medical reports or advice from medical practitioners / health professionals;
  • Where the Case Manager is going to make a negative determination;
  • Where a client is taking complex medications and;
  • If requested by a client.

Most respondents (75% who answered) agreed with using existing sources of information to make decisions about Disability Assistance for children, young people and older people rather than through face-to-face assessment.

Scottish Government Response

In putting our commitment to an improved decision making process into practice we will be transparent about the decision making criteria for each form of Disability Assistance and provide clear and accessible guidance to clients so they understand what information Case Managers need in order to make entitlement decisions. There will be no hierarchy of supporting information so that all information will be considered on its own merits, ensuring that information from family members and carers is given due weight.

Case Managers will seek one source 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. In the minority of cases, a Case Manager may make a decision without a formal source of information, for example, where none is available.

This holistic approach will assist individuals to communicate their needs to the Case Manager, even in cases where they face challenges in accessing a diagnosis or other formal source of supporting information. This marks a significant departure from the present system, where clients have told us that they feel they need to ‘prove’ they have a condition, or where the majority of clients are required to attend a face-to-face assessment and further embeds the principles of a system based on trust and respect.

We are developing training and guidance for staff who will make decisions about entitlement to benefits and award rates. This will support a person-centred approach, as well as promoting fairness and consistency in all decision-making. All training is grounded in our core principles of dignity, fairness and respect, and we want to ensure that we build the trust that is lacking in the present system both in the rules and processes of Disability Assistance, as well as in the staff employed to administer it.

We are also developing guidance to ensure that Case Managers can request advice from Specialist Advisors, for example to find out the side effects and/or interactions of difference medications, the impact of complex and fluctuating conditions, or to assist in interpreting complex supporting information from medical professionals. We want to ensure the guidance covers a diverse range of circumstances that will require specialist advice.

While it is possible that Social Security Scotland can employ advisors and assessors with a professional background in common conditions, this will not be feasible in every case, particularly for rare conditions. The role of advisors and assessors is not to diagnose or assess a client’s condition but nonetheless they may require access to specialist advice to understand the symptoms or expected impacts of particular conditions.

However, because we will utilise a wider range of support information as part of the application process, including information from formal sources (such as doctors, specialists or support workers), we will ensure that we are taking into account information from those who understand the impact of the client’s condition and its impacts best. We will also ensure that all staff will have access to Agency Medical Guidance as well as the Decision Making Guidance.

2.5 Policy Proposal – Redetermination and Appeal

We want to build a system that makes the correct decisions but recognise that where clients don’t agree with decision, they should be supported and encouraged to challenge the decision. Our proposals on redeterminations and appeals ensure a framework that will allow disabled people to challenge decisions made about their entitlement.

We believe that a cornerstone of building a transparent system based on trust is enabling and encouraging clients to challenge decisions and, where the initial decisions is overturned, understanding how processes can be improved in future.

The consultation set out the rights already provided to individuals through the Social Security Act (Scotland) 2018 about their decision by Social Security Scotland where they disagree with the decision made. The consultation set out proposed timescales for both individuals to challenge the decision (31 calendar days) and Social Security Scotland to carry out a redetermination of the decision originally made (40-60 working days).

Respondent Feedback

A majority (58% of respondents who answered) agreed with the proposal that clients should have 31 calendar days to request a redetermination from the date of Social Security Scotland’s decision. However, some organisations held differing views. Some of the feedback provided suggested that accessing support or advice on challenging a decision can be time consuming and individuals may need longer than 31 days to do get help. Respondents emphasised a need to consider all individual circumstances. We also noted concerns raised by a small number of respondents that a short timescale may deter individuals from challenging the decision.

On the timescale proposed to allow Social Security Scotland 40-60 days to re-determine the original decision, a majority (60% of respondents who answered) agreed with the proposed approach. Again, the views of some organisations differed on this issue. Many respondents felt that the timescale proposed was too long and should be quicker.

Scottish Government Response

We want to ensure that no one is disadvantaged by time limits for challenging a decision. The Scottish Government understands and acknowledges that clients may require additional time to request a redetermination, for example, because they may require specialist advice.

In response to the feedback in the consultation, our Experience Panels, and from the Disability and Carers Benefits Expert Advisory Group, we will extend the time limit for requesting a redetermination to 42 calendar days. Key stakeholders have also supported this time limit.

We proposed to give Social Security Scotland 40-60 days to reconsider a decision, as it may be necessary to collect supporting information on a client’s behalf, and this information may take some time to obtain. However, some stakeholders felt that this was an excessive period for someone to be left without clarity over their award level or eligibility. Given concerns raised in the consultation, and subsequent stakeholder engagement, we will be setting the timescale for Social Security Scotland to undertake a redetermination to a maximum of 56 calendar days (8 weeks).

We will consider the responses to the consultation carefully and use these to finalise our policy proposals about how a redetermination is undertaken. We can then consider how we can ensure that the redeterminations process is fair, and in developing guidance for Social Security Scotland staff, we will look at how our guidance will set out the key principles.

If an individual is not able to request a redetermination within the usual time limits, Social Security Scotland will consider whether individuals have a good reason as to why the request is late when deciding whether to extend the time limit. The Social Security (Scotland) Act 2018 provides an extension of up to a year for late re-determination requests. Guidance will be developed to ensure that, where a client requests a late redetermination, their request is considered in a holistic manner, taking account both their circumstances and their disability.

2.6 Policy Proposal – Duration of Awards

We know that under the current system, there are concerns about how the lengths of awards are calculated when decisions about entitlement are made. We are clear that awards for Disability Assistance should continue with, as far as possible, minimal disruption to clients. Our proposals set out how we intend to achieve this aim in ensuring that award lengths are person-centred and reflect the individual circumstances and condition of each client.

We know that there are many people who believe that, for those people with the most complex, lifelong disabilities, it is an unnecessary process to review their awards. We have set out in response to the consultation feedback that we will further consider how such a proposal might be delivered in a way that is person-centred and not based on a list of conditions, meeting the values and principles of the social security system in Scotland.

The consultation paper set out our commitment to introducing longer-term awards of disability benefit awards for conditions that are unlikely to change in order to avoid unnecessary re-assessments which are often distressing and frustrating for people and for their families.

In the consultation paper, we proposed that:

  • rolling awards would be introduced and all awards would be indefinite, subject to light touch reviews;
  • for people with a condition unlikely to change, there would be no less than 5 years between reviews and no more than 10 years;
  • an appropriate award review date would be set and the client notified at the point of the initial award decision being issued and;
  • award review dates would be provided based on an appropriate length of time to consider whether the client’s needs might have changed.

We also set out that some exceptions might apply, for example, where a client reports that their condition has changed, or for children, at certain significant developmental milestones.

Respondent Feedback

The majority of respondents who answered (66%) agreed with our proposal not to have set award durations, with 22% of respondents disagreeing with this approach. Only 12% of respondents replied to the question stating that they ‘did not know’ whether they agreed or disagreed.

From respondents who disagreed, a key theme was that clients who have a condition that is unlikely to change should be given lifetime or indefinite awards.

In relation to the question, “Do you agree or disagree with the proposal to set an award review date 5-10 years in the future for a person with a condition unlikely to change?” slightly more than half of respondents agreed (58%), whilst 37% disagreed and a few respondents answered that they were unsure (4%). Organisational respondent views were relatively polarised just over half agreeing with the proposal. Some respondents were frustrated about being reassessed despite having a condition that would never change.

Key themes emerging across these two questions were agreement that if initial assessment advises there will be no improvement in the applicant’s health or if their condition is unlikely to change, this should prevent further reassessment in the future.

A few respondents made suggestions as to the appropriate timescale for reviews but there was no consistency in these suggestions; suggestions included for more than two years, a minimum of three years, a minimum of seven years or five to ten years. There were also a few comments that review periods should be as long as possible rather than as short as possible. Some respondents made suggestions for specific review periods, and these ranged from five to fifteen years, with the most opting for a minimum of ten years.

Scottish Government Response

We wish to strike the correct balance between lengthy awards and implementing a flexible system that recognises the role of medical advances and that conditions can fluctuate leading to both lower and higher awards. We are clear that we can be bold with awards and move towards longer award durations, in order to move away from the present system of repeated reassessments that cause unnecessary stress and anxiety.

The Scottish Government has previously consulted with the Chief Medical Officer’s office to establish a list of health conditions or disabilities that may be appropriate for indefinite awards on the basis that they are unlikely to ever change.

These discussions had indicated that there are only a few such conditions, and as this approach would only apply to a small number of clients. As a result, the Disability and Carers Benefits Expert Advisory Group indicated that they did not believe that indefinite awards would be necessary in light of our position on assessments more generally.

However, it is clear from stakeholder feedback and from individuals responses to the consultation that there is interest in ensuring that people with the most complex lifelong disabilities are not reviewed unnecessarily.

The Scottish Government will therefore undertake further work with stakeholders to consider the feasibility of making indefinite awards without the need for review for clients with the most severe and enduring health conditions and disabilities, and how that might be developed within a system where decisions are made in a person-centred way rather than being based specifically on individual conditions.

In all other cases, we will move forward with the proposals for award duration as set out in the Consultation paper.

2.7 Policy Proposal – Short Term Assistance

As set out above, we believe that a key feature of the social security system delivering trust, transparency and respect is ensuring that clients, where they do not agree with a decision, are supported to challenge that decision. To enable this we are proposing to implement a unique, new form of assistance that will ensure that, for disabled people who have an award reduced or stopped that they wish to challenge, they will continue to receive their previous award of benefit. These continuing payments will not be recoverable, regardless of the outcome of their challenge, which will ensure that no disabled people in Scotland are financially disadvantaged by incorrect or erroneous decision making, whilst they challenge that decision.

The consultation paper set out the Scottish Government’s intention to provide Short Term Assistance (STA) where Social Security Scotland has made a decision to reduce or stop an ongoing benefit, and that decision is subject to a request for redetermination or appeal.

The consultation paper sought views on the proposals that:

  • STA should only be available to those living or present in Scotland;
  • STA should not be available where it is established the benefit has been claimed fraudulently;
  • In the event of overpayment, STA should not be recoverable unless it is established that the benefit had been claimed fraudulently;
  • Deductions to ongoing payments in respect of an overpayment agreement should be deducted from STA payments and;
  • Where a client makes a request for a redetermination that is either:
    • not validly made, or
    • where the deadline for requesting a redetermination has passed, and the client has not provided a good reason for this,
    STA will only be payable from the date a Tribunal overturns Social Security Scotland’s decision that a request for a redetermination has either not been validly made, or has been made late without valid reasons (these are called ‘process decisions’).

Respondent Feedback

A majority of respondents who answered (73%) agreed that STA should not be paid to people who are not resident in Scotland. Some respondents ask if personal circumstances could be taken into account in reaching a decision whether to pay STA, for example where an individual is receiving care temporarily outside of Scotland.

A similar majority (72%) agreed that STA should not be paid where Social Security Scotland has established that the client has made a fraudulent claim for the original type of assistance.

A large majority of respondents (87%) also told us that if a client does get STA, but it is later established that they have made a fraudulent claim for the original type of assistance, Social Security Scotland should be able to ask the client to pay back their STA. Several respondents emphasised the need to demonstrate that the client has knowingly committed fraud.

Just under half of respondents who answered (49%) agreed that STA should be subject to deductions in respect of an overpayment agreement. A key theme was that Disability Assistance is essential to meeting the extra costs associated with ongoing health needs and reducing the level of assistance could cause hardship. Some respondents suggested using a case-by-case approach to decision-making.

A majority of respondents did not agree that with our proposal about STA and process decisions (58%). It was felt that STA should be payable from the when a client’s eligibility changes and that individuals should not be stopped from receiving payments due to an error made by Social Security Scotland.

Scottish Government Response

Short Term Assistance is a unique, new part of the Scottish social security system. We want to ensure that people feel they have the right to challenge decisions to reduce or stop an award of Disability Assistance, without facing a financial cliff-edge as they move between different rates of benefit, or when their award stops.

Whilst a majority of respondents supported our initial proposal not to pay STA to someone living outside of Scotland, the Scottish Government recognises that Disability Assistance can be paid to individuals living outside of Scotland. We have therefore decided that an individual should be eligible to apply for STA if they are resident outside of the UK, and have been receiving the principal assistance while resident outside Scotland. We recognise the complexities involved and will need to carry out further work to understand the impacts.

We proposed that if an individual’s appeal is unsuccessful, STA should not be recoverable, except where it is later established that the principal benefit was being claimed fraudulently at the time the STA was awarded. Our proposals were supported by almost all of the organisations who participated and we do not propose to make any changes to the policy set out in the consultation

We are satisfied that, in general, there was majority support around the principle that, where someone had knowingly claimed Disability Assistance fraudulently, STA should not be made available during the dispute period.

Where a deduction is being made, a client will already have had dispute rights against the determination that put that deduction in place. Financial and other circumstances will have been considered as part of that process. We therefore do not agree that the extension of deductions to STA conflicts with the underlying policy objective and do not propose to make any changes to the policy set out in the consultation.

In relation to process decisions and the availability of STA, we anticipate that there will be a very small number of process decision appeals for Disability Assistance.

2.8 Policy Proposal – Breaks in Disability Assistance

We know that there are a range of situations under the current system where disabled people’s care needs are met through a separate form of public funding, for instance by a residential care service, and the care component of their disability benefit stops. We proposed to broadly replicate these current rules because divergence too far from the current rules may lead to both duplication of public care funding.

The consultation paper set out proposals across all three forms of Disability Assistance about when an individual’s payments may stop temporarily. The consultation paper set out circumstances when we propose that a client’s Disability Assistance would stop:

  • Payment of the care component of DACYP for individuals who are required to stay away from home in a residential setting (care or education) will be stopped after a 28 day period;
  • Payment of the daily living component of DAWAP for individuals who are required to stay away from home in a residential setting (care or education) will be stopped after a 28 day period;
  • Payment of DAWAP and DAOP for individuals who are in-patients in hospital will stop after a period of 28 days;
  • Payment of DACYP for individuals who are in-patients in hospital will continue;
  • Payment of DAWAP for individuals who have been sentenced or are on remand will be stopped after 28 days;
  • Payment of DAOP for individuals who have been sentenced or are on remand will be suspended immediately (further payment may be made in the future depending on the outcome of the case) and;
  • Payment of DACYP for individuals who have been sentenced or are on remand will continue.

Respondent Feedback

Views on this question were mixed with a slightly higher number of people disagreeing (44% of respondents who answered) than agreeing (39% of respondents who answered) with Scottish Government’s proposed approach. Some respondents indicated that they ‘did not know’ (15% of respondents).

Respondents to this question believed it is important to ensure that financial support for those with a disability should always continue due to the extra costs associated with a disability or long-term health condition. One organisation noted that some people see a disability benefit is part of a household’s overall income and loss of this income would have an impact upon the individual and their household. Another point made by an individual related to the need to be able to pause payments and ensure a quick reinstatement once an individual becomes eligible again.

Some respondents suggested that taking a case-by-case approach, assessing each case on its merits, with a view to ensuring consistency across the different forms of assistance.

Scottish Government Response

We do not propose to make significant changes to the current rules.

Whilst slightly more respondents disagreed, we feel that the original question may have given respondents the impression that an award is terminated upon entering prison, hospital, or residential care. We want to make clear that only payments stop – if and when a client leaves these settings, payments will resume, subject to continuing to meet the criteria for each form of Disability Assistance.

The intention of Disability Assistance is to provide financial assistance to mitigate the costs that individuals and their families incur as a result of a health condition or disability. Continuing to pay the benefit where an individual’s care needs are met in full from public funds, for instance in a care home or secure accommodation, would lead to a funding duplication in meeting the individual’s care needs. Under the current rules, the UK Government do not continue to pay the care component to individuals because it is viewed that their care needs are met by their place of residence.

Disability Assistance is not intended to be an income-replacement benefit. Income replacement benefits are provided in the form of UK Government administered reserved benefits such as Employment and Support Allowance (ESA) and Universal Credit (UC). If we were to deliver Disability Assistance as an income-replacement benefit, there is a risk that DWP would not recognise this Disability Assistance for the purpose of assessing a client’s eligibility for reserved benefits, including access to passported premiums or benefits.

The purpose of the “28 day rule” is to ensure that longer term residential care placements are not subject to funding duplication. The 28 day window ensures that people cared for in temporary respite do not lose access to their benefits as well as recognising that where care placements break down at an early stage, the client does not suffer the additional disruption of losing access to their disability benefits.

We recognise that young people and children can spend longer periods than adults outwith detention in legal custody as part of the rehabilitation process and their sentences are generally far shorter on average than for adult prisoners. To support the young person’s transition back into a community setting, it is important that their family are able to meet their mobility needs.

In order to improve the consistency of rules for DACYP, we will ensure that where a young person is detained in legal custody, the mobility element of this benefit continues to be paid. This aligns rules on residential care, residential educational placements and legal custody, ensuring consistency for young people and their families, regardless of which environment a young person becomes resident in.

2.9 Policy Proposal – Overpayment Recovery

We know that disabled people have raised concerns about how overpayments are recovered in the current system and how, where these are set too high, it has a severe impact and puts some people into financial hardship. We are proposing to recover overpayments in a manner consistent with the principles of dignity, fairness and respect and therefore ensuring that overpayments are recovered in a way that better considers their individual financial circumstances, ensuring that, as far as possible, the social security system in Scotland does not push disabled people into financial difficulty.

The consultation paper set out our intention to follow wider policy for Social Security Scotland on overpayments. Where an overpayment is made because of an error by Social Security Scotland, it will not be pursued unless under exceptional circumstances such as a large and obvious overpayment. Where it is made as a result of client error, Social Security Scotland may seek to recover the overpaid assistance, but in doing so will have regard to the individual’s financial and other circumstances they consider relevant.

Respondent Feedback

There were three main strands to the responses to this question:

  • Deductions are currently set too high and expected to be repaid too quickly;
  • The current system causes severe financial hardship, increased levels of debt and can lead to reliance on food banks and;
  • Recovery of overpayments should be agreed and set at an affordable level with the individual.

Further comments provided included:

  • Recovery of the overpayment should be means-tested to prevent financial hardship;
  • A maximum weekly repayment amount could be recoverable, potentially in line with Housing Benefit;
  • Clients who have difficulties in financial management should not be expected to notice overpayments - the example of someone with learning disabilities was given;
  • There is a need for greater clarity within the existing system around the rules of entitlement and some complaints that the DWP do not automatically provide explanatory information, or provide this upon request;
  • Requests for advice agencies or local authorities to be able to gather access to the Agency’s overpayment division to enable them to agree a recovery rate on behalf of their clients and;
  • There is a need to strike a balance between the interests of clients and the impact on their family and the interests of the state.

Scottish Government Response

Respondents views were broadly consistent with the Scottish Government’s existing policy intent in relation to overpayments. A number of specific points have been raised about the hardship caused by the current system, and we will give consideration to this detailed feedback in ongoing development of policy and processes for assessing hardship, and making deductions.

Our overriding objective is that no-one should be placed into hardship as result of repaying a debt to Social Security Scotland. Any repayments or deductions should be made on a sustainable basis. We want to ensure that our policy aligns with our core principles of dignity, fairness and respect.


Email: david.george@gov.scot

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