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Draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022: SCoSS scrutiny report

Scottish Commission on Social Security's (SCoSS) scrutiny report on the draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022.

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Footnotes

1. Any client that was over 16 but under 65 on the 08th April 2013.

1. Personal Independence Payment statistics to October 2021 - GOV.UK (www.gov.uk)

2. What is and is not in scope for scrutiny by SCoSS is potentially confusing, as noted by the Disability and Carers Benefits Expert Advisory Group (DACBEAG) in its Case Transfer report to Scottish Government dated 24 July 2020. They suggest that complex issues like case transfer require expert scrutiny and could be referred to SCoSS under section 22(1)(b) of the Act. This allows the Scottish Ministers to ask SCoSS to prepare a report on any matter relevant to social security.

3. For example, the role of private contractors in the process, the routine use of functional assessments and experience panel members' reports of how they felt treated by the system was noted in the Scottish Government's publication Social Security Experience Panels – Personal Independence Payment Health Assessments Part two

4. See Annex 2 for a summary.

5. DWP Personal Independence Payment: Official Statistics to October 2021, published 14 December 2021.

6. 67% of appeals result in a higher award being made by the tribunal, while in a further 14% of appealed cases the DWP makes a higher award without waiting for a tribunal hearing.

7. DWP Personal Independence Payment statistics to April 2021, updated 14 September 2021.

8. Receipt of the DLA care component at any rate as an adult confers passported entitlement to premia in working tax credit, housing benefit, council tax reduction, a £10 'Christmas bonus' and universal credit as a student.

9. The benefit cap limits the benefit income of affected working age households to the equivalent of £20,000 per year outside London (not including top-up payments from the devolved Scottish system). Exemptions are also allowed on the basis of limited capability for work-related activity and current or recent employment with a minimum level of earnings. The majority of capped claimants lose up to £200 per universal credit assessment period (i.e. per month), but in August 2021 there were 20 households in Scotland losing more than £1,000 per assessment period – see DWP Benefit cap: number of households capped to August 2021, published 14 December 2021.

10. For example, see: DWP benefits case transfers: survey findings - gov.scot (www.gov.scot), Disability Assistance for Working Age People (Scotland) draft regulations: scrutiny report - gov.scot (www.gov.scot), Social Security Experience Panels: designing the benefits case transfer process - gov.scot (www.gov.scot) and

11. Social Security Experience Panels: case transfer survey and interview findings - visual summary - gov.scot (www.gov.scot).

12. Scottish Government Disability and Carers Benefit Expert Advisory Group: transfer advice.

13. Social Security Experience Panels: publications - gov.scot (www.gov.scot).

14. Disability benefits: draft Suspension of Assistance (Social Security) (Scotland) Regulations.

15. For example, a young person migrating from child disability payment to ADP at 18 or an adult DLA claimant who pre-empts the migration process by submitting an application for ADP.

16. 'opportunities are to be sought to continuously improve the Scottish social security system in ways which… put the needs of those who require assistance first'.

17. Principle (g) requires the Scottish Government to seek opportunities to continuously improve the Scottish social security system.

18. Principle (b) recognizes that social security is a human right, while principle (e) states that 'the Scottish social security system is to contribute to reducing poverty in Scotland'

19. Principle (h) states that 'the Scottish social security system is to be efficient and deliver value for money.'

20. See the Office for Budget Responsibility Welfare Trends Report January 2019

21. R Sainsbury, cited by N Harris , 'Welfare reform and the shifting threshold of support for disabled people' (2014 ) 77 (6) Modern Law Review 888 , 892.

22. Office for Budget Responsibility, Welfare Trends Report (CP02, London: HM Treasury, 2019).

23. From the point of view of individuals with a terminal illness, ADP also differs from PIP. The special rules for terminal illness only confer entitlement to the PIP daily living component and only if the individual has a life expectancy of six months or less.

24. Our Charter – in particular, see Part 1, 'A people's service'.

25. Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021 - draft: SCoSS scrutiny report - gov.scot (www.gov.scot).

26. 1. Introduction - Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021 - draft: SCoSS scrutiny report - gov.scot (www.gov.scot).

27. The Scottish social security system is to contribute to reducing poverty in Scotland.

28. Article 19 recognises the equal right of all persons with disabilities to live in the community, with choices equal to others, while article 20 requires states to take effective measures to ensure disabled people's personal mobility and independence. Loss of mobility could also have indirect implications for various other UNCRPD rights.

29. SCoSS Scrutiny report on draft regulations: Disability Assistance for Working Age People (Scotland) Regulations

30. Welfare Supplementary Payment (Loss of Disability Living Allowance) Regulations (Northern Ireland) 2016 (NISR 2016/250) part 3.

31. Universal Credit Regulations 2014 (SI 2014/1230) part 4.

32. Our-Charter_1.pdf (socialsecurity.gov.scot), A People's Service, Item 11, p.8.

33. STA is available when an existing award is reduced or terminated and the individual requests a re-determination or commences an appeal. It is not available when a new application for social security assistance is unsuccessful, which would be the case when an individual applies for ADP rather than being migrated to it from a DWP benefit.

34. Adult Disability Payment: policy position paper - gov.scot (www.gov.scot).

35. Scottish Government Adult Disability Payment: consultation analysis.

36. Stec v UK (Admissibility) (65730/01) [2005] 41 EHRR SE18.

37. In accordance with draft Regulation 16, any reduction in entitlement takes effect from the date on which the review determination is made.

38. As noted above, this is arguably in keeping with principle (h) by ensuring efficiency of administration.

39. While the unsuitability of the PIP assessment is to some extent a political judgement, this would likely be regarded by the courts as a matter on which the executive and legislature are entitled to take a view with little judicial scrutiny, as with the 'fairness' of the household benefit cap and two-child limit on universal credit and child tax credit awards – see R (on the application of SG) v Secretary of State for Work and Pensions [2015] UKSC 16 and R (on the application of SC) v Secretary of State for Work and Pensions [2021] UKSC 26.

40. Note that, while each individual should be subject to the transitional arrangements for a maximum of 12 months, how long the transitional arrangements will remain in place for some individuals is uncertain and will depend on how long transfers continue to take place under the arrangements put in place by the draft Regulations.

41. Alliance, NAS, CPAG Scotland, SCLD, SAMH.

42. Social Security Scotland and the Scottish Government will: make communications, processes and systems as simple and clear as possible by testing them with the people who will use them [and] adapt processes and ways of communicating as much as we reasonably can to meet your needs and preferences.

43. These sections require the Scottish Ministers to have regard to the importance of inclusive, accessible communication, independent advice and independent advocacy.

44. This article recognises disabled people's right to seek, receive and impart information on an equal basis with others.

Contact

Email: info@socialsecuritycommission.scot

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