12. Section 8 - Business and Regulatory Impact Assessment Summary
1. The Social Security (Scotland) Act 2018 set out the legislative framework for the delivery of nine types of social security assistance in Scotland, including Disability Assistance. The Scottish Government is currently consulting on Disability Assistance, the three benefits that will become the Scottish replacements for Disability Living Allowance (child) (DLA Child), Attendance Allowance (AA) and Personal Independence Payments (PIP) currently administered by the Department for Work and Pensions (DWP).
2. The three new benefits currently proposed to replace the DWP administered benefits stated above are:
- Disability Assistance for Children and Young People (DACYP)
- Disability Assistance for Working Age People (DAWAP)
- Disability Assistance for Older People (DAOP)
3. This Business and Regulatory Impact Assessment sets out the Scottish Government's analysis of the policies described in the consultation document: 'Social Security: A Consultation on Improving Disability Assistance in Scotland' on businesses, private organisations, public agencies and Legal Aid. It also sets out how Scottish Government will ensure that the delivery of Disability Assistance complies with relevant regulatory requirements.
4. These forms of Disability Assistance will provide financial support to over 350,000 people in Scotland and it is anticipated that all of these individuals will be impacted directly by the delivery of Disability Assistance. Further work on developing a benefit uptake strategy is being undertaken and it is likely that the total caseload will increase as a result of the implementation of the strategy.
5. The delivery of Disability Assistance in Scotland is anticipated to have a broadly neutral impact on businesses and public agencies.
Who we have involved in our deliberations?
6. A range of private and third sector organisations responded to the Social Security Consultation in 2016 and gave views on the current administration of PIP, DLA and AA, as well as giving written responses on how the benefits, and the benefit administration processes, should be changed. There was support across all of these groups for change in a number of areas particularly around the administrative processes for PIP, DLA and AA, and these responses have supported the Scottish Government to develop policy options in line with comments and feedback given.
7. The Scottish Government has developed policy related to Disability Assistance through co-production with current benefit recipients, key third sector stakeholders and other interested parties and is currently undertaking a public consultation to further ensure that the policy intent is supported by stakeholder, individuals and interested organisations. Where feedback is provided as part of the consultative process that would alter the policy direction, these will be considered as part of the drafting of the Disability Assistance regulations for each of the three benefits. Draft regulations will be scrutinised by the Scottish Commission on Social Security (SCoSS) before being laid before the Scottish Parliament.
8. We are seeking further comments and feedback from businesses, the third sector, public agencies and individuals on the impact of Disability Assistance in relation to their organisations.
Business and Regulatory Impact Assessment (BRIA) summary
9. Our assessment of the Disability Assistance policy intent in relation to Business and Regulatory impact was undertaken using the five principles of Better Regulation, as follows:
10. Proportionate -The Scottish Government will look to identify and minimise any indirect impacts, for example administrative burdens, on local government, private businesses or third sector organisations as a result of the benefit introduction. The equivalent UK benefits, DLA, PIP and AA will reduce in caseload as Disability Assistance is delivered by the Scottish Government. This will likely lead to a neutral impact on the administrative burdens on other public agencies, private businesses and third sector organisations. Social Security Scotland has committed to undertaking much of the administrative responsibility, as far as possible, on behalf of people accessing Disability Assistance and intends to create data sharing processes with relevant public bodies. It is anticipated that this will reduce the burden of providing information to individuals that public agencies currently undertake, by creating formal data sharing agreements and processes with one Agency, Social Security Scotland.
11. Consistent - Disability Assistance builds on the Social Security (Scotland) Act 2018 framework of a new system that is underpinned by dignity, respect and a human rights based approach. The benefit will be delivered on an entitlement basis to eligible people. Secondary legislation will be laid describing the rules and eligibility for each of the three new benefits. Operational guidance for Case Managers within Social Security Scotland will be implemented, in line with the rules within the regulations, to provide a framework for consistent decision making across all applications. There will be provision in place to challenge the decision of Social Security Scotland through a redetermination and all recipients will have the right of appeal to a First-tier Tribunal.
12. Accountable - We will ensure that clients understand their right to have their decision re-determined by Social Security Scotland and to request an appeal to the First-tier Tribunal if they remain unhappy with their Disability Assistance benefit decision. All decisions made relating to an application for Disability Assistance will be provided to clients in a communication method that meets their needs. All evidence used, and rationale for the decision, will be included within this communication to ensure that clients are informed of how the decision relating to their benefit application was assessed. The Social Security Charter sets out, in plain and clear English, what people are entitled to expect from the Scottish social security system, including how they should be treated and how their application will be treated. Complaints regarding Social Security Scotland can be directed to the Scottish Public Services Ombudsman.
13. Transparent - We will develop a communications strategy for each of the three Disability Assistance benefits. This will aim to ensure that people who are eligible, the third sector, local government, education sectors and advice providers are aware of the benefit, know how to apply and understand the eligibility criteria. We will publish guidance on the benefit, in a way that takes account of differing communication needs, so that eligibility is clearly understandable. The Social Security (Scotland) Act 2018 places a duty on Scottish Ministers to publish a benefit uptake strategy in advance of delivery of social security benefits. This benefit uptake strategy will be a transparent measure of success in promoting uptake of each the benefits.
14. Targeted only where needed - Each form of Disability Assistance is provided to cover the additional costs of a disability or long term condition. There is currently no other funding source or alternative service that would be available to support children and families for this purpose. The rules for the benefit will be set out in regulations and each new claim will undergo a claims process which will assess eligibility for the benefit, in a way that is consistent with the principles of dignity, respect and being person-centred. As described above, the regulations will set out the eligibility rules for the benefit and operational guidance to ensure that, where a client has submitted an application but does not meet the eligibility criteria for the benefit, they will not receive an award for Disability Assistance. We have undertaken analysis, based around the anticipated eligibility rules, to scope potential caseload sizes of those who will be the target group for each form of assistance:
15. In May 2018 there were 37,226 children in receipt of Child DLA in Scotland, and our forecasts estimate that we could receive approximately 7,600 new applications for Child DLA in 2020/21.
16. In October 2018 there were 213,741 individuals in receipt of PIP in Scotland. This total will increase significantly as working age individuals currently in receipt of DLA are transitioned on to PIP. By the end of 2020/21 our forecasts estimate that the total PIP caseload in Scotland will be almost 300,000, and in 2021/22 there could be over 50,000 new applications for PIP.
17. In May 2018 there were 125,501 people in receipt of AA in Scotland, and our forecasts estimate that we could receive approximately 28,000 applications in 2021/22.
18. Disability Assistance will initially transfer to Scotland with rates for the benefit components unchanged at point of transfer. The Social Security (Scotland) Act 2018 sets out the duty on Scottish Ministers to promote uptake of benefits for eligible individuals, and the Act requires Ministers to set out in parliament a benefit uptake strategy. Increased benefit uptake is likely to have a positive impact on businesses and the economy because more individuals will be in receipt of benefits which will be used to purchase a range of goods and services from third sector or private organisations.
19. It is expected that the introduction of these benefits could cause additional requests for information and support from existing advice services. However it is anticipated that by introducing a system that has been designed in partnership with advice agencies, key stakeholders and recipients, the Social Security Agency will be equipped to support individuals. This should lessen the impact on advice services in their provision of complex welfare rights casework support for individuals.
20. For the purpose of determining entitlement to Disability Assistance the Act requires the Chief Medical Officer (CMO) to prepare guidance which sets out when a progressive disease can reasonably be expected to cause an individual's death A decision on whether an individual is to be regarded as having a terminal illness is to be based on the clinical judgement of a registered medical practitioner. This decision must take regard of the CMO Guidance and the definition set out within this.
21. If an individual is regarded as terminally ill, their claim for Disability Assistance will be processed under 'special rules' for terminal illness as laid out in the Social Security (Scotland) Act 2018. These rules will do four things:
No qualifying period for the benefit will apply. This means that an individual will not be required to have the progressive disease for any period of time in order to be eligible for assistance.
There will be no assessment by Social Security Scotland. All that will be needed is verification that an individual has been diagnosed by a registered medical practitioner as being terminally ill for the purposes of entitlement to Disability Assistance.
Awards will be calculated, at the latest, from the date of application. This approach allows awards to be made based on an earlier date than when the application is made, namely the date on which an individual is verified by a registered medical practitioner as being terminally ill.
At present, individuals regarded as terminally ill get the highest rate for the care component but the mobility component of an award is not automatic. We are changing this approach to ensure that individuals regarded as terminally ill will be fast-tracked to both highest rate care and mobility components for Disability Assistance.
22. The Scottish Government does not believe that Disability Assistance will have an adverse impact on the competitiveness of Scottish companies or the third sector within Scotland, the UK, or elsewhere in Europe or the rest of the world. The benefit does not directly or indirectly limit the number of suppliers, nor does it limit the ability of suppliers to compete or reduce suppliers' incentives to compete vigorously. Additionally the Scottish Government does not expect there to be any significant impact on the operational business of local authorities or health boards as a result of introducing this provision.
23. Any procurement required to support the administration of Disability Assistance will be subject to the Public Contracts Scotland (2015) Regulations and the Procurement Reform (Scotland) Act 2014, which together provide a national legislative framework for sustainable public procurement which supports Scotland's economic growth through improved procurement practice.
24. Face to face assessments will be delivered by the public sector. This will mean that there will be no contracts for the current private sector assessment providers to bid for undertaking assessments for the purposes of determining eligibility for Disability Assistance. The Scottish Government will have to consider however whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply to employees currently delivering this service.
New business forms
25. The Scottish Government will ensure that all clients with the highest rate of mobility component for either DACYP or DAWAP will have access to an accessible vehicle and equipment leasing scheme to meet their mobility needs. The Scottish Government is currently developing its approach to this scheme and any introduction of a new business form to the market will be done in a way that meets requirements set out in the Public Contracts Scotland (2015) Regulations and the Procurement Reform (Scotland) Act 2014, as well as relevant EU directives on state aid and competition.
26. As highlighted above, where a face to face assessment is deemed necessary, it will be delivered by the public sector. There will be no new business form in the market and the face to face assessments service will be delivered nationally by Social Security Scotland.
Legal Aid Impact Test
27. The right to appeal to a First-tier Tribunal is provided for in the Social Security (Scotland) Act 2018. Legal Assistance will continue to be available to individuals to appeal an entitlement decision to the Upper Tribunal, Court of Appeal or Supreme Court.
28. The Scottish Government does not expect any adverse impact to the Legal Aid budget as a result of the introduction of Disability Assistance. Current recipients are already able to access legal aid to appeal entitlement decisions. It is expected that as a result of the extensive consultation and co-produced service design process, that the decision making quality of Social Security Scotland will be improved and reduce appeals to tribunal by clients.
Enforcement, sanctions and monitoring
29. The Scottish Government has set up the Scottish Commission on Social Security, an independent expert body that will scrutinise the Scottish social security system (including benefit regulations) and hold Scottish Ministers to account. As part of their function, they will examine the regulations required for the administration of Disability Assistance and produce a report setting out their observations and recommendations in relation to the proposals. This report will be submitted to Scottish Ministers, the Scottish Parliament and made available to the wider public.
30. The Social Security (Scotland) Act 2018 places a duty on the Scottish Ministers to publish an annual report on the performance of the Scottish social security system, including all three Disability Assistance benefits. On-going engagement with key stakeholders will also provide the Scottish Government with an opportunity to monitor the impact of the policy. Audit Scotland will monitor and report on the delivery of the social security system, including Social Security Scotland.
31. We are keen to hear from stakeholders in relation to this impact assessment and their feedback on our impact analysis.
The consultation specifically asks consultees to consider
Do you think the partial Business and Regulatory Impact Assessment has identified where the devolution of Disability Assistance might impact on public agencies and businesses? What would you add or change?
Responses to these and the other questions will inform the development of the final Impact Assessment that will accompany the draft regulations for Disability Assistance and help us to duly consider its impact on businesses and public agencies.