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

4. Legislating for DLA-ADP migration

4.1 The challenge

The continued existence of a sizeable cohort of adult DLA claimants is a significant complicating factor in the introduction of ADP. It is possible to look at an individual's PIP award and state with a very high level of confidence that the individual fulfils the criteria for an ADP award at the same rate. This is not the case with a DLA award. Although the problem might be reduced or overcome by allowing the DWP to continue to migrate claimants from DLA to PIP, with migration to ADP following thereafter, the Scottish Government preferred to stop DLA-PIP migration because of its concerns about the PIP assessment and decision making process,^[4] concerns the introduction of ADP is intended to address. This has created a need for a bespoke process for migrating adult DLA claimants directly to ADP, which must be set out in regulations.

4.2 Purposes and effects of the draft Regulations

The draft Regulations,^[5] which are summarized in Annex 2, aim to smooth the migration process from DLA to ADP for adult claimants. This is achieved by enabling individuals to move directly from DLA to ADP, whereas most people will move to ADP having first transferred to PIP. Migration will be a two-stage process, with a transitional award made on the basis of (and at the same rate as) the transferring individual's previous DLA award, followed by a review against the ADP criteria and descriptors within 12 months of transfer. The two-stage process is intended to lessen the Social Security Scotland delivery challenge that would result if each case were reviewed at the point of migration, in accordance with the need for efficiency as stipulated in principle (h).

Migration to a new social security benefit takes three forms:

• Natural migration means that an individual reaches a point at which their entitlement to benefit needs to be reviewed in any case, typically because of a change of circumstances.
• Voluntary migration means an individual requests to be moved to the new benefit.
• Managed migration means that the social security authority transfers individuals to the new benefit whose cases would not otherwise be reviewed and who do not ask to be moved.

The Scottish Government has stated that it intends to use the draft Regulations to facilitate natural migration of adult DLA claimants who report a change of circumstances to the DWP (which would otherwise trigger an application to claim PIP in the UK system) and voluntary migration of those who wish to move to ADP. This will leave a cohort of adults who remain on DLA for the time being. The Scottish Government has not set out a plan for future managed migration, but the wording of the Transitional Provisions Regulations does not limit their application to the natural and voluntary migration groups – in principle, they could also be used for managed migration. However, the Scottish Government has told the Commission that decisions on how managed migration will take place have yet to be made, with the process not getting underway until at least 2024 in any case (after the completion of managed migration from PIP to ADP). Bespoke arrangements will have to be made in the future to facilitate the transfer to the Scottish system of people who were older than state pensionable age on 8 April 2013 and remain in receipt of DLA.

While further stakeholder engagement will take place before the finalisation of any of these plans, it would be useful to have whatever insights are possible into thinking as it develops. The Child Poverty Action Group in Scotland's (CPAG) submission to SCoSS on the draft Regulations warns that there may be a scrutiny deficit if these Regulations are laid before the Scottish Parliament but MSPs are not fully informed of how they are likely to be used. This certainly appears to be a risk. If a new payment along the lines of a 'Scottish DLA' (one option under consideration by the Scottish Government) was created to receive individuals subject to managed migration into the devolved system, this would require new regulations, which would be subject to scrutiny by both SCoSS and the Social Justice and Social Security Committee. On the other hand, if managed migration were to proceed using the current regulations, there would presumably be no need for further legislation and therefore no need for pre-legislative scrutiny. This matters, because different routes will result in different outcomes for some transferring individuals. An individual whose mobility is restricted by a mental health condition or cognitive impairment is more likely to qualify for the mobility component of ADP at the enhanced rate than the mobility component of DLA at the higher rate, while one who can walk less than 50 metres but more than 20 metres is more likely to be entitled to the DLA mobility component at the higher rate but not to the ADP mobility component at the enhanced rate. This would have implications not only for the level of the cash award, but for access to the Motability/Accessible Vehicles and Equipment scheme.

Recommendation 1: The Scottish Government should publish its plans for managed migration from DLA to ADP (or to whatever devolved provision is made for older claimants) at the earliest opportunity, being mindful of the desirability of appropriate scrutiny by SCoSS and legislators whether or not this involves the making of further regulations.

4.3 Impact

Overall, between April 2013 and December 2021 in Great Britain, 39% of adult DLA claimants who migrated to PIP received a higher award on reassessment and 14% saw no change. 21% received a lower award, while 25% received no PIP award^[6]. However, a high proportion of mandatory reconsiderations (19%) and appeals (81%)^[7] result in a higher award^[8], so it is likely that the final proportion of increased or unchanged awards was higher. Just as migration from DLA to PIP or ADP creates winners and losers, the pausing of migration from DLA to PIP over the last two years will have created, and the future migration process will create, winners and losers (see section 6).

The impact of these differences is not limited to the disability benefit award itself. A change in the level of award, or the termination of an award of one or both component, may have implications for passported entitlements to cash benefits (such as a disability premium in an income-replacement benefit)^[9] or non-cash services, such as a Motability vehicle. Receipt of a qualifying disability benefit also confers exemption from the household benefit cap.^[10]

4.4. Devising the transitional provisions

The making of any arrangements to enable adult DLA claimants to migrate directly to ADP without first having to move to PIP is in keeping with the Scottish Government's priority of improving processes and the user experience across the three forms of disability assistance. As noted above, allowing individuals to avoid the PIP assessment process has been a key objective here. This approach is grounded in evidence received through the social security experience panels, consultation responses and other stakeholder engagement^[11]. The actual transitional provisions have a more limited evidence base, but the Scottish Government has informed SCoSS that it undertook detailed engagement with a small number of experience panel members as well as other key stakeholders, building on the previous advice of the Disability and Carers Benefits Expert Advisory Group^[12]. We are told that this work has informed decisions on a two-stage transfer, payment patterns and communication strategy.

4.5 Competence

The draft Regulations are made in exercise of powers conferred by the Social Security (Scotland) Act 2018. Section 31 of the Act defines disability assistance (of which ADP is one form) as assistance given on account of a disability arising from a physical or mental impairment, or a terminal illness. In accordance with draft Regulation 5, transferring individuals will be awarded ADP at a given rate on the basis of a previous DLA award, not because they have demonstrated to Social Security Scotland that they have a disability arising from a physical or mental impairment (the situation will be different for individuals with a terminal illness).

This potentially creates some uncertainty about whether these ADP awards, between the date of transfer and the date of the review determination, will in fact be within the scope of section 31. It is possible that draft Regulation 4(5) speaks to this risk. The regulation specifies that the determination without application that a transferring individual is entitled to ADP at a given rate is to be made on the basis of 'such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the transferring individual's entitlement to Disability Living Allowance' as well as any other relevant information. Draft Regulation 4(7) allows Social Security Scotland to work on the assumption that the information received from the DWP and the other relevant information the agency holds 'remains accurate on the date on which the determination is made'. The implication may be that the information communicated to DWP, which led it to make an award of DLA, is sufficient evidence of disability for a new award to be made within the scope of section 31.

The Scottish Government has confirmed to SCoSS that it is working on the basis that the previous DLA award does demonstrate that the transferring individual has a need for assistance on account of disability arising from a physical or mental impairment. The Commission agrees that this seems a plausible position to take, since that is the basis on which DLA is awarded, and the likelihood of the provisions falling outside the powers conferred by the Act seems low. However, the consequences of the provisions being ultra vires would be very high, as there would be no legislative basis on which to pay ADP to transferring individuals until completion of their case review, so it is important that the Scottish Government is confident on this point.

Observation 1: In view of the importance of ensuring social security regulations fall within the regulation-making powers in the Social Security (Scotland) Act 2018, SCoSS welcomes the Scottish Government's confirmation that it believes the draft Regulations are within the scope of section 31 and paragraph 1 of schedule 5 to the Act.