13. Section 9 - Child Rights and Wellbeing Assessment
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 Child Rights and Wellbeing Assessment (CRWIA) sets out the Scottish Government's analysis of the impact of the policies described in the consultation document: 'Social Security: A Consultation on Improving Disability Assistance in Scotland' on children and young people's wellbeing who may be affected by the implementation of Disability Assistance.
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 positive impact on childrens rights and welfare and the three forms of assistance, and related administrative functions, have been designed around the principles of providing dignity and respect for people and their families.
6. 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 stakeholders and individuals. 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.
Who have we involved in our policy deliberations?
7. As part of the Social Security Consultation in 2016 there were more than 200 responses to questions relating to disability benefits with an even split between responses from individuals and organisations. Respondents highlighted the positive aspects of DLA, PIP, and AA, including that the approach was holistic and fair, and that the benefits were non-means tested. They also identified a number of weaknesses in the current approach, which related mainly to the complex and stressful application and assessment processes - particularly for DLA and PIP, and also the perception that the eligibility criteria for DLA, PIP and AA discriminated against certain groups.
8. Overall, respondents felt that the new Scottish social security system should be more flexible, accessible and person-centred. It was felt that applicants should be able to decide how to engage with the system, choosing from a range of options that suited them best, whether paper-based, online, by telephone, face to face, or using other types of technology. Others underlined the importance of applicants being treated with dignity and respect throughout their dealings with the new Social Security Agency. There was support for better joint working and communication between agencies. In relation to data sharing, there was some concern about potential breaches of security, and respondents emphasised the importance of securing consent.
9. Policy changes have been co-produced by colleagues from within the Scottish Government, stakeholders, the Experience Panels, and the wider public. The Disability and Carers Benefits Expert Advisory Group (DACBEAG) is independent of the Scottish Government and was formed to provide recommendations and advice to Scottish Ministers on the development of policy related to Disability Assistance. They have provided a range of advice to inform policies such as scrutiny, suitably qualified assessors, award duration and automatic entitlement and the Charter.
10. DACBEAG is comprised of experts from a range of professional backgrounds including the Convener of the Scottish Social Services Council, Chief Executive Officer of Inclusion Scotland and Associate Director for Scotland of Joseph Rowntree Foundation - the DACBEAG has significantly contributed to the development of policy related to Disability Assistance. The Ill Health and Disability Benefits Stakeholder Group was set up to inform and influence the development of policy options relating to disability and ill health social security benefits. Members of the group attend as representatives of their organisation/profession, and include representatives of Coalition of Care and Support Providers Scotland, University of Glasgow, Child Poverty Action Group, and National Rural Mental Health Forum.
11. The Scottish Government has undertaken ongoing consultation with the Ill Health and Disability Benefits Stakeholder Reference Group. The Group was set up in March 2016 to inform and influence the development of policy options relating to disability and ill health social security benefits. The group has advised on:
- The evidence base for policy decisions
- The potential impact of policy decisions
- User and stakeholder engagement
- The interaction with other Scottish and UK social security benefits.
12. An exploratory process was undertaken for each form of assistance to gather the views of users through a range of user research and stakeholder engagement activity. These engagements supported the development of both the policy intent and the design of the administrative functions of each of the forms of assistance.
Who was involved in assessing the Child's Rights and Wellbeing impact?
13. Stakeholders and the wider public had the opportunity to express views about Disability Assistance during the consultation on Social Security, discussed above. In particular comments were invited on a partial Equality Impact Assessment which represented the Scottish Government's work on the impact of social security policy on people with protected characteristics up to the point of consultation. 521 formal written responses to the consultation were submitted. Of these, 241 were from organisations and 280 from individual respondents. Of the 241 organisations that responded to the consultation 81 were received from stakeholder groups relating to children/young people, equalities and human rights, disability and long term conditions and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 February 2017. In addition, the Equality Impact Assessment that was published alongside the Social Security (Scotland) Bill was used to inform this partial assessment. It can be found at: https://www.gov.scot/publications/social-security-scotland-bill-equality-impact-assessment/
14. 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.
15. The Scottish Health Survey 2016 (published 2017) found that around 7% of young people in Scotland (under the age of 16) had a limiting long-term physical or mental health condition. Boys were much more likely to have a long-term limiting condition at 9% of the boys under 16, compared to 6% of girls under 16.
16. In 2017, 16 children were awarded Child DLA under terminal illness Special Rules. In 2017, the number of young people aged 16 and 17 awarded PIP under terminal illness Special Rules is not reported in line with data protection requirements because there are so few.
United Nations Convention on the Rights of the Child ( UNCRC)
17. The policy intent has been assessed against the relevant UNCRC articles:
Article 3 - Best Interests of the Child: Social Security Scotland has been developed around the principles of dignity and respect for people, transparency of decision making, being person centred and that social security is a key right for citizens. Disability Assistance will have these principles embedded both in policy and operations to ensure that all decisions made by Social Security Scotland are made with consideration of the best interests of the child, including both where the child is a recipient or where they are a family member of the benefit recipient.
Article 6 - Life, Survival and Development: DACYP has been developed with the intent to provide mitigation for the additional costs incurred by families of disabled children relating to care and mobility. Mitigation of these additional costs is anticipated to provide families with the funding to ensure children are able to access community resources, education and social activities, ensuring they are able to develop skills and new experiences and to have a good quality of life.
Article 23 - Children with a Disability: DACYP will ensure that the children in receipt of the benefit are more likely to be able to live a full life, to be as independent as possible and to be able to engage in the community. By ensuring that some of the additional costs incurred as a result of additional care or mobility requirements are mitigated, eligible disabled children and young people will have the option to engage in more activities of their choosing.
Article 26 - Social Security: DACYP has been developed as the key Disability Assistance benefit for disabled children and their families in Scotland. We have developed the policy intent based on the current system and engaged with users and stakeholders to influence targeted system changes to improve both the rules and the operation of the benefit. These changes will ensure that the benefit is easily accessed by those who are eligible, that take up amongst eligible children increases and that, throughout engagement with Social Security Scotland, individuals are treated with dignity and respect.
Article 27 - Adequate Standard of Living: The key policy intent of DACYP is to provide families, and young people, with payments that mitigate the costs they incur as a result of a disability or long term condition. DACYP will not be means tested and will be universally available to eligible children. The benefit will support families to pay for care, specialist resource, transport or accessible vehicles, enabling disabled children to access community resources, social activities, education or other activities of their choosing.
Getting it right for every child (GIRFEC) wellbeing indicators
18. The Children and Young People (Scotland) Act 2014 introduced a range of indicators used to measure children and young peoples' wellbeing. Our assessment of Disability Assistance against this framework is:
Healthy: DACYP will improve the health of disabled children by ensuring that increased financial support is provided to their families to contribute towards the additional costs of care and transport.
Achieving: The provision of the mobility and care components of this benefit directly contribute to enabling disabled children to engage in activities of their choosing including education, development opportunities and social activities.
Active: As outlined above, the provision of care and mobility components in this benefit will provide the funds for parents to enable them to support their children to engage in community activities of their choosing, ensuring that disabled children have the option to choose to engage in community based activities and resources.
Respected: The principle of respect for the dignity of individuals is at the heart of the new Scottish social security system and specified in the Social Security (Scotland) Act 2018. DACYP will further embed these principles, recognising that disabled children have the right to engage in activities of their choosing with their peers and providing funds to parents to enable them to purchase the services of equipment they need to support their children to do so. The administration of the assistance has been designed to ensure that people are treated with respect and provided with a service that takes account of, and meets, their needs.
Responsible: Social Security Scotland will pay Disability Assistance people over 16 and, with support from their parents or carers where appropriate, young people will decide on how this money should be used. Where there is a requirement for appointeeship, or a young person is subject to a guardianship order, Social Security Scotland will pay the benefit to the relevant person acting on the young person's behalf.
Included: DACYP is provided as a support to young people and children to ensure that they have, as far as possible, the care and support they require to engage in activities of their choosing. Provision of this benefit helps ensure that families are able to fund the support needed for children to attend a wide range of community and social activities and be included in activities more easily accessible to non-disabled children.
Specific Policy Impacts
Young People Aged 16-18
19. As part of the implementation of DACYP we are intending to increase eligibility from age 16 to 18 for young people in receipt of DACYP prior to their 16th birthday. This will ensure that young people and their families do not have to undergo a stressful and anxiety provoking reassessment process at age 16, a time when many young people undergo a transition to adult services. This policy measure is likely to have a broadly positive impact and is supported by stakeholders as a desirable permanent change to the eligibility rules for the benefit.
20. It should be noted that at age 16, under the current UK administration of Child DLA, 22% of DLA applicants to UK PIP are unsuccessful. This policy measure intends to mitigate this issue by ensuring that there is an extended award to 18. Further scoping is being undertaken to ascertain any negative impact of this change. It is known that people in receipt of PIP generally receive, on average, awards that are 32% higher than DLA awards, meaning that some people may receive a lower award as a result of this policy measure.
21. 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.
22. 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.
Accessible Vehicle and Equipment Leasing
23. Under the current administration of Child DLA and PIP, people in receipt of a mobility component are able to transfer this directly from DWP to Motability, a provider of accessible cars, vehicles and equipment. The Motability Scheme, where payments are transferred directly from DWP in relation to access to mobility aids, vehicle leases of accessible equipment, enjoys exemption from Value Added Tax (VAT) and Insurance Premium Tax (IPT) which enables it to provide leases to people with disabilities at a much lower rate than market value.
24. Scottish Government intends to ensure that people in the Scottish system in receipt of DACYP and DAWAP have access to an equivalent service so that their mobility needs continue to be met. It is anticipated that continued access to this form of support with mobility and transport will help ensure that young people and children in receipt of Disability Assistance will be able to engage in community activities, social events, education and training and to live a life of their own choosing.
Special benefit rule pertaining to detention in a Young Offenders Institution or other form of detention.
25. As part of the implementation of this policy, it is intended to remove the special benefit rule pertaining to detention in a Young Offenders Institution or other form of detention. When a young person is detained payment of Child DLA stops under current rules. We know that young people in detention are more likely to have a learning disability or difficulty proportionate to the general population. This will ensure that, for the many young people detained in legal custody with a disability, their benefit is not stopped and, as they approach release, their family will have the funds required to support them transition back into the community as they undertake longer visitation sessions.
26. We also know that young males are disproportionally represented in secure care and young offenders institutions. The removal of this rule will therefore have the greatest positive impact on the families of young disabled boys.
27. Disability Assistance has been co-designed with a range of stakeholders and people with lived experience of engaging with the current benefit system. The policy intent for the introduction of Disability Assistance is to provide them with funds to contribute to the additional care and mobility costs they incur as a result of their disability or long term condition. The provision of this assistance is intended to enable people to mitigate these costs, and ensure they are able to live a life of their own choosing.
28. Policy measures outlined above are anticipated to be broadly positive in relation to the impact on children's rights and wellbeing. There are a number of policy measures including Young People Aged 16-18, terminal illness rules and detention in legal custody that seek to mitigate a range of issues identified that currently have a negative impact on children and young people.
29. Based on the evidence gathered, previous consultative engagement with users and stakeholders, and assessment of the demographic makeup of current Child DLA recipients, the Scottish Government does not consider that DACYP or DAWAP infringes upon the rights of the child as set out in the articles of the UNCRC. The assessed impacts of the policy make a positive contribution to the rights and wellbeing of young people who are eligible to receive the benefit as set out in the assessment of the policy against UNCRC articles outlined above.
30. The Scottish Government has assessed DACYP and DAWAP against the indicators of wellbeing as set out by the Children and Young People (Scotland) Act 2014 and has concluded that the policy is likely to have a positive impact against each of the indicators, for young people and children who meet the benefit eligibility rules.
31. While we have identified that the devolution of Disability Assistance will have some positive impacts on the groupings outlined above, we are keen to seek out opportunities to promote improved rights and wellbeing for children and young people. This consultation therefore seeks the views of stakeholders, the public and a range of groups with a specific interest in child policy development (see Annex A).
The consultation specifically asks consultees to consider:
Do you think the partial Children's Wellbeing and Rights Impact Assessment has identified where the devolution of Disability Assistance might impact on young people? What would you add or change?
How do you think the devolution of Disability Assistance might impact upon children living in low income households, in deprived areas, children in material deprivation, or children from different socio-economic backgrounds?
Responses to these and the other questions will inform the development of final Impact Assessment that will accompany the draft regulations for Disability Assistance and help us to duly consider its impact on children and young people.