4. Section 1 - Disability Assistance in Scotland
The broad purpose of Disability Assistance is to recognise the impact of living with a disability or health condition and the additional costs this can incur. Disability Assistance helps ensure that disabled children and adults are able to purchase the care and mobility support they need.
The sections of this consultation document seek views on aspects of delivering Disability Assistance in Scotland which are relevant across Disability Assistance for children and young people, people who are working age and older people.
Following this, there will be an opportunity to provide views on sections which are specific to each individual benefit.
4.1 Disability Assistance for Children and Young People
We intend to replace what is currently delivered by DWP in the form of Child Disability Living Allowance (Child DLA) with a form of assistance to be known as Disability Assistance for Children and Young People (DACYP). We intend that this form of assistance will support children and young people and their families to access appropriate support and care associated with their long term disability or condition.
The rate of award of DLA depends on how an individual is affected by their condition. There are two components to DLA:
- The "care" component which relates to the level of assistance a child requires (more than a child of the same age who does not have a disability)
- A "mobility" component which relates to the help a child needs in getting around.
Either or both can be awarded depending on the child's needs. Under current arrangements, in advance of their 16th birthday, recipients of the benefit are notified by DWP that they will be required to claim PIP when they turn 16.
To remain consistent with the terminology used by the Act and to reduce the risk of confusion between benefits being delivered by both UK and Scottish Governments, we intend to refer to our replacement as Disability Assistance for Children and Young People (DACYP).
Question 1. Do you agree or disagree with the proposal to name Disability Assistance for clients aged 0-18 years old Disability Assistance for Children and Young People (DACYP)?
Question 2. If you disagreed, please could you explain why.
4.2 Disability Assistance for Working Age People
We intend to replace what is currently delivered by DWP in the form of PIP with a form of assistance to be known as Disability Assistance for Working Age People (DAWAP). PIP is a payment to help with the costs of everyday life for people with a long-term illness, disability or mental health condition. To be eligible an individual must be aged 16 to state pension age and need help with everyday tasks or getting around. PIP can be claimed in addition to other income-related, reserved disability benefits such as Employment and Support Allowance (ESA). PIP was introduced by the UK Government in 2013 and is replacing Disability Living Allowance (DLA) on a phased basis for existing recipients.
The rate of any award of PIP depends on how an individual is affected by their condition. There are two components to PIP:
- The "daily living" component (where the condition makes it harder for the person to carry out everyday activities like eating or washing).
- The "mobility" component (where a condition limits the person's ability to move around or plan and follow journeys)
Depending on the nature of an individual's condition, they may be eligible for one or both of these components at either the standard or enhanced rate.
As with Disability Assistance for Children and Young People we intend to adopt consistency across Scottish legislation to reduce the risk of confusion between benefits being delivered by both UK and Scottish Governments. We will refer to this form of assistance as DAWAP.
Question 3. Do you agree or disagree with the proposal to name Disability Assistance for clients aged 16 years old to state pension age Disability Assistance for Working-Age People (DAWAP)?
Question 4. If you disagreed, please could you explain why.
4.3 Disability Assistance for Older People
Disability Assistance for Older People is currently delivered by DWP in the form of Attendance Allowance (AA), a benefit for people over 65. It is awarded to help with extra costs if a person has a disability severe enough that they need someone to help look after them.
It is our intention to link the entitlement age for this benefit with changes to the state pension age which will be age 66 by 2020.
The rate of any award of AA depends on how an individual is affected by their condition. There are two components to AA:
- A "lower" rate where a person requires frequent help or supervision during the day or night
- A "higher" rate where a person requires help or supervision throughout both day and night or if they are terminally ill.
As with DACYP and DAWAP we intend to remain consistent with Scottish legislation and want to reduce the risk of confusion between benefits being delivered by both UK and Scottish Governments. We therefore intend to refer to the benefit as Disability Assistance for Older People (DAOP).
Question 5. Do you agree or disagree with the proposal to name Disability Assistance for clients who are state pension age or older Disability Assistance for Older People (DAOP)?
Question 6. If you disagreed, please could you explain why.
Legal responsibility for all forms of Disability Assistance will be assumed by the Scottish Government from 1 April 2020. We intend to deliver the different forms of assistance in stages to allow for a safe and secure transition and implementation of each form of Disability Assistance. Our engagement with users of the current system has informed this approach - ensuring that we test all our systems and processes thoroughly.
Our incremental approach to the devolution of social security demonstrates clearly we have learned, and will continue to learn, lessons from other public sector programmes (both in Scotland and more widely). We have developed the timetable outlined below to include fire breaks between the launch of each form of assistance. This will ensure that we have the time to test systems, undertake lessons learned and that each launch of a new form of assistance is improved by the lessons learned from previous launches.
Many people on DWP disability benefits have been subjected to new systems and processes. While we are determined to deliver all forms of Disability Assistance as soon as we can, we will not rush to deliver a system which is not fit for purpose or puts benefits at risk.
Our intended commencement dates for Disability Assistance are
- Disability Assistance for Children and Young People in Summer 2020
- Disability Assistance for Older People by the end of 2020
- Disability Assistance for Working Age People early in 2021
Between taking responsibility in April 2020 and the dates outlined above, the Scottish Government will negotiate agreements with DWP to continue to carry out some of the administration of these benefits on our behalf. Agency Agreements are a normal part of the machinery of devolution which allow one Government to carry out the administrative functions for the other Government. Scottish Government retains competency over policy and funding.
4.5 Applying for the Benefit
Through our engagement with people who have applied for the benefits in the past we know that the current paper application forms for disability benefits are considered to be too long, with fragmented supporting guidance and sections which are not considered to be relevant to all applicants. Those with experience of applying for PIP have said that the current 2 stage application process including phone call and completion of a paper form is unsuitable for many clients. They have also told us that the guidance is unclear, the application form is repetitive and that there is no clear information about what is being assessed.
We are developing an online application channel which will allow for a more inclusive, personalised and efficient process. It is our intention that a choice of application channels will be available and that application forms will be available in accessible formats.
It is intended that Social Security Scotland will actively gather supporting information to support applications, to ensure that the claim and decision making process is as transparent and simple for clients as possible. We are currently exploring a range of options for other public agencies to provide supporting documentation for client claims, lessening the administrative burden on families and ensuring that Social Security Scotland is able to make decisions that take into account the needs of the client.
We have listened to feedback about the application process and guidance available to clients and others who support them. We are therefore redesigning the application process from beginning to end to make it more person centred, and to remove repetition and unnecessary complexity. We will also ensure that there is clear, transparent and accessible guidance available for each form of Disability Assistance to ensure that individuals and others are clear about the process.
Question 7. Do you agree or disagree with the proposal to enable multiple application channels for Disability Assistance?
Question 8. If you disagreed, please could you explain why.
4.6 Conditions Relating to Residence and Presence
The initial policy intention is for the Scottish system to broadly replicate the residency rules used by DWP. This would mean three main residency and presence conditions that would require applicants to:
- Have been present in Great Britain for two out of the last three years (often referred to as the 'presence condition')
- Be habitually resident in the Common Travel Area (CTA) (i.e. the United Kingdom, Republic of Ireland, Isle of Man or the Channel Islands) and ordinarily resident in Scotland.
- Not be subject to immigration control.
The main advantage of this approach is consistency with the UK system; meaning easier transitions for people moving between jurisdictions and reducing the risk of unintentional eligibility gaps.
The proposed approach to residency conditions is intended to be as simple as possible whilst also broadening the evidence base that an applicant is able to draw on to establish eligibility in Scotland. Ordinary residence is a relatively straightforward test to meet, requiring applicants to demonstrate that they are currently living in Scotland. The habitual residence element is consistent with practice across the CTA where periods of residence in one jurisdiction can be relied upon to establish eligibility for social security in another. In practice this will help people who have recently arrived in Scotland from other parts of the CTA to establish eligibility.
The presence condition applies to Great Britain rather than Scotland specifically. This avoids people moving from other parts of Great Britain to Scotland having to wait a minimum of two years to access benefits.
The proposed condition relating to immigration control flows from immigration law which is reserved to the UK Government. We will continue to work closely with key stakeholders and local authorities on these issues and where there are actions or policy changes we can undertake to mitigate these issues, we will seek to implement them.
In addition to these main conditions we also intend to broadly replicate UK provisions in relation to temporary absence from Great Britain which prevent people from losing eligibility if they are away from home for relatively short periods for example to receive medical treatment. This also extends to special rules relating to the absence of people employed in the armed forces and people who work for extended periods offshore.
The Scottish Government intends to broadly replicate these rules to offer the same protection to people in receipt of Scottish forms of social security assistance.
Question 9. Do you agree or disagree with the proposal to broadly replicate the current temporary absence rules?
Question 10. If you disagreed, please could you explain why?
4.7 Terminal Illness
At the moment across the current disability benefits delivered by DWP, an individual is regarded as terminally ill if they suffer from a progressive disease and their death as a consequence of that disease can be reasonably expected within 6 months. We are providing a new definition of terminal illness in Scotland.
We know that the issue of terminal illness is an extremely complex area for clinicians and conversations between clinicians, the individual and their carers can be very challenging. Following extensive consultation with medical professionals and wider stakeholders we were told that the same condition may have different impacts on individuals, sometimes resulting in significant needs due to deteriorating function. In these instances individuals who are not likely to die within 6 months may still require support much earlier than the normal application route for disability benefits allows. The new approach to terminal illness in Scotland will allow medical professionals to use their clinical judgement on a case by case basis to ensure that those individuals who need support will receive it when they need it.
The rules which apply to entitlement to Disability Assistance where a person has a terminal illness are set out in Chapter 3 of schedule 5 of the Social Security (Scotland) Act 2018.
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.
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. An individual will not be required to satisfy the relevant qualifying periods for each benefit to get Scottish Disability Assistance. Further details on the relevant qualifying periods are contained within section 2. 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. This means that they will not be required to undergo any assessment to establish the impact of a terminal illness on care and mobility needs.
- 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.
- An individual will get the highest rate(s) of the financial support to which they are entitled. 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. Our new approach will ensure that individuals regarded as terminally ill will be fast-tracked to both highest rate care and mobility components for Disability Assistance.
Where an individual has a progressive disease but is not terminally ill for the purposes of entitlement to Disability Assistance they will be required to complete the standard application process.
If an individual who has received Disability Assistance under special rules lives longer than expected they will continue to receive these benefits under the special rules. There will be no review period.
In addition, in cases of terminal illness, a 3rd party will be able to make an application on the person's behalf with or without their knowledge. Where possible this should be done with the knowledge and consent of the person or their representative. However, in certain situations, such as where the representative is a child or has learning disabilities, it may be permissible to send the form without the knowledge and consent of either the person or their representative. This should be done only where there is a clear view that disclosing to the patient the nature of their condition could cause them harm which ought to be avoided.
We have not asked any questions relating to the terminal illness rules in this consultation, since these are laid out in legislation. We are currently undertaking a targeted consultation on the structure and content of the CMO's guidance on terminal illness with clinicians and wider stakeholders. The final version of the CMO's guidance will be published on the Scottish Government and Social Security Scotland websites ahead of the launch of Disability Assistance for Children and Young people in Summer 2020, and will be accompanied by a Plain English summary, aimed at practitioners and clients.
4.8 Making Decisions About Entitlement
Social Security Scotland will staff three particular roles to make decisions about entitlement to Disability Assistance.
In relation to DACYP and DAOP
Case Managers will be responsible for:
- reading an individual's application and any supporting information provided;
- obtaining supporting information from various sources;
- considering the individual's account of how their disability or condition impacts them and whether there is sufficient information to support that account;
- seeking information and advice from Specialist Advisors when required;
- deciding whether the individual meets the criteria for the relevant form of Disability Assistance.
Using their professional experience in the provision of health and social care Specialist Advisors will be responsible for:
- providing Case Managers with information and advice on a broad range of matters, for example: the side effects of a particular medication; how a specific disability generally impacts people; the way in which two different conditions may interact.
In relation to DAWAP
Case Managers will additionally be responsible for:
- deciding when an individual should be invited to attend a face to face assessment;
- taking into account the report provided by the assessor to inform a determination on whether the individual meets the criteria for DAWAP.
- Carrying out a face to face assessment of how an individual's disability or condition impacts their functional abilities;
- Providing a report detailing their findings from the assessment to the Case Manager.
It is our intention to enable Case Managers to make robust, person centred decisions. We want consideration to be given to how an individual's condition affects them taking into account all of their circumstances. This holistic approach will enable Case Managers to consider all of the information relating to an individual and make sound judgements about the functional impact their condition has on them. For example: if an individual provides supporting information explaining why they lack motivation to shower regularly, the Case Manager can reasonably infer that they require prompting to attend to their personal hygiene, in spite of the fact they have not stated such a need.
Social Security Scotland Case Managers will therefore require the skills necessary to interpret a range of information from numerous sources and to understand specific conditions in order to put together a clear picture of how an individual's disability is likely to affect them. Our training will ensure that Case Managers carry out their roles in accordance with the Social Security Scotland values of dignity, fairness and respect.
Question 11. Do you agree or disagree with the proposal to implement a person-centred approach to making decisions about entitlement for Disability Assistance?
Question 12. If you disagreed, please could you explain why?
For Disability Assistance for Children and Young People, and Disability Assistance for Older People, it is our intention to make decisions about entitlement using existing supporting information only and not through face-to-face assessments.
Case Managers working on all forms of Disability Assistance will have access to information and advice provided by Specialist Advisors within Social Security Scotland who have professional experience in the provision of health and social care, which may include experience gained within the third sector.
It is anticipated that Specialist Advisors will provide information and advice on a broad range of matters, for example: the side effects of a particular medication; how a specific disability generally impacts people; the way in which two different conditions may interact. In some instances that may involve the Specialist Advisor answering a specific question that the Case Manager has or may require the advisor to provide more comprehensive input, for example, by reviewing the application and supporting information or suggesting what further supporting information should be obtained. Social Security Scotland will ensure that Case Managers feel empowered to make autonomous decisions where they can do so. When they seek expertise from a Specialist Advisor it will be approached as a discussion between colleagues who both want to make the right decision for the person concerned.
We intend that Case Managers will take into account a number of factors when deciding when to refer a case to a Specialist Advisor. This approach would require Case Managers to consider matters such as:
- the complexity of the application, for example if it includes conflicting information or relates to the combined impact of two conditions;
- whether the person has a particularly complex or rare condition; or
- if the person has a condition which fluctuates.
Question 13. Do you agree or disagree with our proposed approach to the involvement of Specialist Advisors in Decision Making?
Question 14. If you disagreed, please could you explain why.
Question 15. What factors should Case Managers take into account in deciding when a Specialist Advisor should be involved?
Question 16. Do you agree or disagree that the decision making process for Disability Assistance for Children and Young People, and for Older People should use existing supporting information and not through face-to-face assessments?
Question 17. If you disagreed, please could you explain why.
In exceptional circumstances the Case Manager may be unable to reach a decision using existing information available for children, young people and older people. In this situation we intend for the Agency to take a person-centred approach, contacting the person or their parents or guardians to discuss any gaps and to source further information where necessary.
For Disability Assistance for Working Age People the same approach to decision making will apply but face-to-face assessment may also be needed. We propose that Social Security Scotland can decide that a face-to-face assessment is necessary only in the following circumstances:
1. Where there are inconsistencies in the information provided. This could be where the functionality described in the account is not consistent with the diagnosis or condition;
2. To fill a significant gap in the individual's account of their condition and its impact, where this gap cannot be filled by other supporting information;
In these two cases a face-to-face assessment may only be required to provide specific information to Case Managers in order to fill a gap;
3. If the individual or representative requests a face to face assessment. We think that this form of engagement could be beneficial for a client who is more confident and articulate detailing their account in person;
4. The Agency may identify other circumstances where a face-to-face assessment is required for the purposes of robust decision making and auditing. These could include claims that fall into a category that means there is a high risk that an incorrect award is made without a face-to-face assessment.
4.9 Decision Making role, skills and training
Following discussion with key stakeholders we have decided on the following approach to ensure effective decision making. We propose that all Case Managers will behave in accordance with the values of the Agency and given a full understanding of the Charter and the Principles of the Social Security (Scotland) Act 2018. Following engagement with our Disability and Carers Benefits Expert Advisory Group we also propose that all Case Managers undertake the following training and hold the relevant skills:
- Training in the impact of common health conditions;
- Disability awareness and equality training. Such training should be co-produced and wherever possible delivered by professional trainers with lived experience of health conditions and disabilities;
- Training on the relevant legislation;
- Telephony skills training to help elicit pertinent information from clients in an appropriate manner, ensuring dignity and respect is paramount;
- Training on dealing with vulnerable clients, their friends and relatives.
- All Case Managers should be able to demonstrate excellent communication skills;
- All Case Managers should be able to demonstrate a focus on individual needs;
- All Case Managers should be able to demonstrate excellent analytical skills;
4.10 "Suitably Qualified" Assessors and Specialist Advisors
The Social Security (Scotland) Act 2018 ('the Act') requires that assessments for Disability Assistance must be carried out by people who are 'suitably qualified' to do so.
This requirement was included in the Act due to significant concerns that people who had applied for Personal Independence Payment (PIP) because of mental health conditions, and some other conditions, were not appropriately assessed by DWP contractors. It is intended to ensure that under the Scottish social security system people with mental health and other complex conditions are assessed by people with an appropriate understanding of their condition or disability.
Skills, Experience and Training
Specialist Advisors providing advice to Case Managers will undertake the same training as provided to Case Managers, set out above at section 4.9.
In addition, following engagement with the Disability and Carers Benefits Expert Advisory Group we propose that in order to ensure they are suitably qualified, assessors and Specialist Advisors should meet the following requirements:
- Have professional experience in the provision of health and social care, which may include experience gained within the third sector;
- Be able to evidence time working within a relevant role;
- A proportion of assessors should be trained specifically in the impact of mental health conditions and learning disabilities, to enable them to carry out face-to-face assessments of people with these conditions;
- We may require assessors to undertake training in other conditions, but this will be based on evaluation of the accuracy of assessments and on the demonstrated value of mental health and learning disability-specific assessors.
By virtue of this approach we anticipate that Social Security Scotland will employ assessors with a range of specialisms.
4.11 Approach to supporting information
The intention is for Case Managers to use existing information where possible to support decision making. Where possible, the Agency will assume responsibility for gathering information unless the individual chooses to do so. Following advice from the DACBEAG, we propose that there should be no 'hierarchy' of information. This means that the Agency will give equal weight to supporting information that is most relevant in individual cases. Where individuals choose to gather information we are keen to ensure that the Agency can provide clear and transparent guidance to individuals and the people supporting them about what information will be helpful in supporting an application and what information is not as useful. We would like to understand what kind of information people applying for Disability Assistance feel explains their condition in the best way and what information individuals and those who support them consider would therefore be most useful to Case Managers. This will help the Scottish Government to prioritise what information sources to test.
Question 18. What types of supporting information would be relevant in assessing an application for Disability Assistance eg. social work report, medical report?
In the 2016 Consultation on Social Security in Scotland there was strong support for the 'special rules' that currently apply to terminally ill people, to be extended to a wider range of conditions and illness. As a result the Scottish Government carried out work with stakeholders, our Experience Panels and the Disability and Carers Benefits Expert Advisory Group to establish how we could deliver this type of system. However, it was established that to remain consistent with our intention to enable Disability Assistance Case Managers to make robust, person centred decisions, that consider the child or person concerned holistically, that we should not introduce this type of automatic entitlement to Disability Assistance. Such an approach would also be in tension with our intention to focus on the impact of conditions on a person's day to day life. Rather, Case Managers will have the skills necessary to interpret a range of information from numerous sources and to understand specific conditions in order to put together a clear picture of how a disability is likely to affect a person. Our training will ensure that Case Managers carry out their roles in accordance with the Social Security Scotland values of dignity, fairness and respect.
4.12 Duration of Awards
We are committed to introducing longer-term disability benefit awards for conditions that are unlikely to change, recognising the need to strike a balance between lengthy awards and implementing a flexible system that recognises the role of medical advances and that conditions can fluctuate. This will remove the need for unnecessary re-assessments which are often distressing and frustrating for people and for their families.
We have engaged with users of the current system via our Experience Panels, a dedicated short-life working group on award duration made up of key stakeholders, and the Disability and Carers Benefits Expert Advisory Group. In addition the Disability and Carers Benefits Expert Advisory Group considered this issue and made recommendations to the Cabinet Secretary for Social Security and Older People. As a result of this advice we have received we have concluded that the introduction of "rolling awards" recognises the needs of individuals in receipt of assistance. This will mean that awards are allocated a review point rather than a set end point and payments will continue during the review period. It is our intention that this approach will reduce the number of awards which are stopped as a result of clients having to reapply within a set period following the award ending.
We will adopt a person-centred approach to the awarding of a benefit and therefore the Case Manager will consider the child, young person or adult holistically, including the impact any condition or disability has on the individual. Case Managers will be given clear guidance and training on establishing appropriate award lengths. For a person with a condition unlikely to change it is proposed that Case Manager's Guidance will recommend that an award review date is set that is between 5 and 10 years from the initial date of award. However, Social Security Scotland may review the award within that period where there have been a reported change of circumstances. Exceptions to this rule will of course apply, particularly in the case of children who will require to be reviewed at significant developmental milestones.
In the circumstances where a condition has deteriorated Social Security Scotland may need to consider further supporting information concerning the condition or disability.
Question 19. Do you agree or disagree with the proposal to have no set award durations but to set an award review date when a decision on a Disability Assistance application is made?
Question 20. If you disagreed, please could you explain why.
Question 21. 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
Question 22. If you disagreed, please could you explain why.
We intend to advise that a change of circumstances, as far as requesting a "light-touch" review, should be considered as a change which has an impact on the level of assistance a person already receives. Therefore, there would be no requirement for a review where there has been any change in employment status or where any personal details are reported, for example, a change of address (within Scotland) or bank details.
It is our intention that a review date will be set by a Case Manager at a point in the future where it is considered likely that there could be a significant change in the person's needs, with the review point set at an appropriate length.
Question 23. Do you agree or disagree with the proposal that a change of circumstances should be defined as a change which has an impact on the level of assistance a person receives?
Question 24. If you disagreed, please could you explain why.
For clients with fluctuating conditions, it is intended that the impact of the condition will be considered over an agreed timeframe and an award decision will take this into account. Clients with fluctuating conditions will not have their award reviewed more often but instead will be encouraged to notify the Agency of a change of circumstances should their condition change to a point where their day-to-day impact has changed.
Our approach towards reviews will be "light-touch" ensuring the review is supportive, person-centred and will minimise stress and anxiety. We anticipate that "light-touch" reviews will be carried out by Social Security Scotland without having to see the person in the majority of cases.
4.13 Rate of Benefits
It is our intention that the rate of benefits for all forms of Disability Assistance will remain at current rates and be annually uprated by inflation. Remaining consistent with the current rates will prevent a two-tier system existing between Scottish cases being provided by Social Security Scotland against those not yet transferred to the Scottish system.
Based on 2018/19 rates the weekly amounts will be:
|Disability Assistance for Children and Young People|
|Care Component||Mobility Component|
|Disability Assistance for Working Age People|
|Daily Living Component||Mobility Component|
|Standard Rate||57.30||Standard rate||£22.65|
|Enhanced rate||£85.60||Enhanced rate||£59.75|
|Disability Assistance for Older People|
|Lower rate||£57.30||Higher rate||£85.60|
4.14 Access to Accessible Vehicle Leases and Equipment
People currently in receipt of the higher rate of mobility component of DLA or the enhanced rate mobility component of PIP are able to transfer either the whole or part of their mobility component to lease a new car, scooter or powered wheelchair through the Motability Scheme.
The 2016 Consultation on Social Security in Scotland asked correspondents if the new Scottish social security system should continue to support access to this scheme, 97% of 200 respondents answered 'Yes'. The scheme was particularly praised for its benefits in promoting independence, reducing social isolation and improving employment opportunities. These benefits were especially pronounced in rural areas.
Therefore, in line with the principle of safe and secure transition, it is our intention to ensure that there will be an equivalent Scottish scheme in place in advance of the delivery of Disability Assistance.
Parents or guardians have the legal right to act for a child in relation to social security until the age of 16. Over the age of 16 some adults will need additional help due to their disability. Where necessary, appointees will be put in place to ensure that people are able to access and receive assistance, and that appropriate protections are in place to ensure that assistance paid is used in the interests of the individual.
We intend to design a process that is simple and does not place a disproportionate burden on prospective appointees whilst promoting the person's independence and only intervening where necessary.
In the current DWP system a referral for a new appointee is most often instigated by a Case Manager dealing with a claim for PIP or AA. The appointee is confirmed only after a successful face to face visit by a DWP officer to both the client (to establish their needs), and the prospective appointee (to establish suitability to act). Recognising that this system is already in place and that many adults over 18 may have an existing appointee, it is important that we do not disrupt these arrangements unnecessarily or place an undue administrative burden on carers. We therefore intend to honour existing appointees through a simple administrative process, without the need for another face to face visit from Social Security Scotland.
Where Social Security Scotland wishes to make a new appointee we propose that the existing DWP model for establishing an appointee should be largely replicated. It is a relatively simple and straightforward process and the face to face element provides an opportunity for Social Security Scotland officers to make an in-person assessment of the circumstances and individuals involved, which is an important safeguard to protect the client.
Due to our proposed extension of the maximum age of eligibility for DLA and DACYP, entitlement may span the period when a young person reaches their 16th birthday. The assumption is that Social Security Scotland will pay the funds to the young person for them to manage independently from the age of 16, unless there is an appointee, guardian, attorney or other legal acting body in place who would receive the funds and direct their use. We recognise that the transition to adulthood may be more complicated for young adults with a disability and their parent/guardian. Where it is decided that an appointee is needed, the process will be in place by the first payment of assistance post 16.
4.16 Redetermination and Appeal
The Social Security Act (Scotland) 2018 provides a right for an individual to challenge a decision made by Social Security Scotland if they believe it is not right. The individual will be able to ask for a redetermination without having to supply further evidence, but Social Security Scotland will take into consideration any new evidence provided. The redetermination will be carried out by a different officer who will look at the case independently from the original Case Manager.
Section 41 (4) of the 2018 Act includes provision to set out the timescales for requesting a redetermination in regulations. In line with the approach taken for Best Start Grant and for Funeral Expense Assistance, we are proposing that a redetermination request relating to Disability Assistance should be made within 31 calendar days of being notified of the determination. This timescale is the same as the timescale for bringing an appeal to the First-tier Tribunal.
If a request is not made within the 31 days allowed, a request for a redetermination can still be considered at any point up to a year after being notified of the original determination, if there is a good reason for the request being made late. In the first instance the Agency will decide whether the reason provided is acceptable. If the request for a late redetermination is refused, the individual will have a right of appeal against this decision to the First-tier Tribunal. Social Security Scotland will take a supportive role during this late request process and will assess every request individually, on a case by case basis.
Question 25. Do you agree or disagree with the proposal that clients have 31 days to request a redetermination?
Question 26. If you disagreed, please could you explain why.
Timescales for carrying out a redetermination may vary depending on the form of assistance and the additional supporting information required, the Act provides that the timescale should be set out in regulations. It is likely that additional evidence may need to be obtained during the redetermination stage. Our proposal is therefore that we will establish a timescale of between 40 to 60 working days for a redetermination of Disability Assistance.
Once the outcome of the redetermination is known the individual is entitled to appeal to the First-tier Tribunal for Scotland ("the Tribunal") if they are dissatisfied with the outcome of the redetermination. Alternatively, if there is a failure by Social Security Scotland to carry out the redetermination within the timescales set out in the regulations, the individual will have a right to take their case to the Tribunal.
An appeal must be made within 31 calendar days of the day on which the individual is informed of the outcome of the redetermination. Appeals may be made after 31 days only if the Tribunal gives permission. No appeal may be made more than one year after the day on which the individual is informed of the outcome of the redetermination.
Social Security Scotland will have a duty to provide the individual with the necessary form for initiating an appeal should they wish to do so. Upon receipt of the completed form Social Security Scotland will forward the form and the documents used in making the determination to the Tribunal within 7 working days. Social Security Scotland will also inform the individual when they have taken this action.
A new chamber of the First-tier Tribunal for Scotland came into being on 22nd November 2018. This is known as the Social Security Chamber and will hear devolved assistance appeals. It will always have three members when matters related to Disability Assistance are being considered: a legal member, a medical member and a member with disability experience. The Tribunal is administered by the Scottish Courts and Tribunal Services which is independent of the Scottish Government.
Question 27. We have proposed that Social Security Scotland have a period of between 40 and 60 days to consider a redetermination of Disability Assistance. Do you agree or disagree with this proposal?
Question 28. If you disagreed, please explain why.
4.17 Short-term Assistance
The Scottish Government has committed to providing Short-term assistance (STA) where Social Security Scotland has made a decision to reduce or stop an on-going benefit (such as disability, carer's and employment injury assistance), and that decision is subject to a request for redetermination or an appeal. The policy intention is to ensure an individual is not discouraged from challenging that decision or from accessing administrative justice by having to manage, for a period, with a reduced income. STA is not available in the reserved system and providing support in this way is another example of where Scottish Ministers are removing barriers to challenging decisions in the Scottish social security system.
Provision for STA is set out in Section 36 of the Social Security (Scotland) Act (the 2018 Act), along with Schedule 10 as follows:
- STA will be available if a continuing payment has been reduced or stopped and that is subject to a challenge;
- STA will be available until the First-tier Tribunal (FtT) has made a determination;
- Where a person is eligible for STA, the value of STA will be the difference between the amount prior to the reduction and what it was reduced to; and
- Scottish Ministers can set further eligibility criteria in the regulations which an individual has to meet to be able to receive STA (Schedule 10 Part 1, para 1(1)(d)).
The Scottish Government is now seeking views to inform the detailed design and operation of how STA will operate.
Scope of STA
The Scottish Government will make STA available for devolved assistance types where on-going payments are made. This includes disability, carer's and employment injury assistance. As the Scottish Government has no control over UK Government policy, processes and decision making, STA cannot be used to support people whose reserved benefit is reduced or stopped. Similarly, people would not be able to access any passporting entitlements to the reserved system or those that are not controlled by the Scottish Government in the devolved system during the period that STA is being paid.
However, where there is a successful appeal, an individual's entitlement record would be adjusted from the point at which it was reduced or stopped or from the point as decided by the tribunal. The Scottish Government would expect they would also be eligible for any benefit that entitlement would have passported them to.
The 2018 Act also allows Scottish Ministers to provide assistance for housing costs, known as Housing Assistance. However, the Scottish Government position is that STA is not available for Housing Assistance as the reasons for stopping assistance would either relate to a change in a person's circumstances or that housing costs were no longer being incurred.
As the principal assistance type (e.g. disability assistance for children and young people) would have required an individual to meet clearly stated residence requirements, the Scottish Government proposes that STA should not be available if the individual is no longer living or present in Scotland. Where a person leaves Scotland to take-up residence elsewhere in the UK their claim would normally be transferred from Scotland to the relevant jurisdiction, subject to meeting eligibility requirements. The Scottish Government will work closely with the DWP and NISSA (Northern Ireland's Social Security Agency) to ensure that transition between jurisdictions are as seamless as possible and that people do not experience unnecessary gaps in payments or administrative burdens.
Question 29. Do you agree or disagree that STA should not be paid to people who are not living or present in Scotland?
Question 30. If you disagreed, please could you explain why.
Following a determination, there is no certainty that an individual may or may not accept the decision until such time as they request a redetermination. Similarly, once they get a redetermination and until they intimate an appeal, or seek late leave to appeal, there's the same lack of certainty. The 2018 Act already sets out that STA can only be made available once the request for a redetermination or an appeal is made and that the period between the decision being made and the individual deciding whether to dispute it, no payment would be made. STA will be available until the First-tier Tribunal (FtT) has made a determination. For successful appeals, the individual's entitlement will be adjusted to the point as decided by the tribunal and any sums owed to them would be paid.
In line with a rights based approach, the Scottish Government believes that a person should have a right to choose whether they want STA, but that its availability will be as seamless as possible without the need to complete complicated forms. Furthermore the availability of STA will not be dependent on meeting conditions of hardship as it would be inconsistent with the policy approach to the principal assistance types which are not subject to means-testing. This would introduce additional complexity both for the individual and Social Security Scotland. The Scottish Government envisages that a request for STA would be processed when an individual requests a redetermination or an appeal and this will be explored further with users as part of the service design process.
Recovery of STA
During Stage 1 of the Social Security (Scotland) Bill process, an emerging consensus amongst stakeholders was that STA should not be recoverable as that may discourage individuals from pursuing an appeal if they thought they could be faced with debt or increased hardship if the appeal was not successful. As the purpose of STA is to ensure an individual is not discouraged from challenging a decision or face hardship whilst doing so, the Scottish Government proposes that STA should not be recoverable.
The exception to this would be where the principal assistance type had been found to have been claimed fraudulently and Social Security Scotland was not aware at the time STA was awarded. This would ensure the government's approach of supporting individuals is balanced against its obligations under the Scottish Public Finance Manual.
Question 31. Do you agree or disagree that STA should not be recoverable except where it is later established that the principal assistance type was claimed fraudulently when STA was awarded?
Question 32. If you disagreed, please could you explain why.
During a fraud investigation, the overarching principle is a presumption of innocence and an individual's payments will not be reduced or stopped unless Social Security Scotland has investigated and obtained evidence that, on the balance of probabilities, show the assistance has been paid incorrectly. It is important that where this is the case payments are stopped as quickly as reasonably practicable so as not to result in large overpayment liabilities that could be difficult to recover. Where fraud has been identified, a new determination would therefore be made. This determination would carry redetermination and appeal rights. The Scottish Government proposes that, in these circumstances, STA would not be payable even if the individual has requested a redetermination or an appeal.
Question 33. Do you agree or disagree that STA should not be available where an investigation by Social Security Scotland has determined that the original payment was claimed fraudulently?
Question 34. If you disagreed, please could you explain why.
Servicing an overpayment liability
There may be situations where deductions are being made from an individual's on-going assistance to service an overpayment liability. The Scottish Government proposes that these deductions should also apply to STA.
For example if an individual's entitlement was £100 per week and they had agreed to pay £20 per week to service an overpayment liability, their net amount would be £80 per week. If a new determination changed this from £100 per week to £0 per week, and this decision was subject to redetermination and appeal, STA would provide the difference to bring payments back up to the original entitlement i.e. £100 p/w. The Scottish Government proposes that the same arrangement for servicing an overpayment liability should remain in place until the outcome of the appeal is known, that is that £20 would be paid from the STA payment to service the overpayment liability, resulting in a net payment of £80 per week to the individual. A new arrangement may be required for any outstanding overpayment liability following the outcome of the appeal.
Question 35. Do you agree or disagree that any deductions being made from an on-going assistance type to service an overpayment liability should also be applied to STA?
Question 36. If you disagreed, please could you explain why.
Process decision appeals
The 2018 Act also provides appeal rights for what are termed as process decisions. There are two types of process decision appeals that relate to redetermination. The first is provided for in Section 41(3), where the agency refuses a request for a redetermination which it views is not made validly. The other is provided for in Section 42; a late request for a redetermination which is refused by the agency as it views the reason for the late request is not valid.
Process decisions are not routed via the agency and the individual is responsible for lodging the appeal themselves with the tribunal within the timeframes that the Act sets out in Section 61. Where a late request for a redetermination is rejected by Social Security Scotland and the tribunal rules in favour of the individual, this would require Social Security Scotland to carry out a redetermination. In these situations, the Scottish Government proposes that STA would be payable from the date the tribunal overturns that decision.
Question 37. Do you agree or disagree that for successful process decision appeals where the tribunal has overturned Social Security Scotland's decision, STA should become available at the point the decision is overturned rather than the date of the original request?
Question 38. If you disagreed, please could you explain why.
4.18 Links to other Benefits
When Social Security Scotland begins delivering Disability Assistance, the UK Government will continue to deliver benefits for which they retain responsibility (reserved benefits - e.g. Employment and Support Allowance, Universal Credit) and the Scottish Government does not have any powers to change reserved policy. The DWP can determine whether or not a person is entitled to receive associated benefits or premiums which they are responsible for. Therefore, DWP will continue to determine if someone in receipt of Disability Assistance in Scotland is entitled to receive a benefit or premium delivered by DWP.
The Scottish Government will work closely with DWP and other organisations, with a view to ensuring that any existing form of assistance arising as a consequence of being in receipt of Disability Assistance continue to be paid. Once regulations have been finalised, the Scottish Government will confirm to DWP and other organisations in Scotland the legal approach being adopted by the Scottish Government with respect to delivering Disability Assistance - DWP will then take the decision on clients continued eligibility to passported benefits.
4.19 Breaks in Disability Assistance
We propose that breaks in Disability Assistance will continue to impact on eligibility. This means that generally, where there is a break in a person's eligibility to receive the benefit after 28 days, whether that is due to residency or other issues, they will cease to receive the benefit. Details are set out below:
- Payment of DACYP for those who are required to stay away from home in a residential setting (care or education) will be stopped after a 28 day period. In the case of under 18's the mobility element will continue to be paid.
- Payment of the care component of DAWAP for those who are required to stay away from home in a residential setting (care or education) will be stopped after a 28 day period. The mobility element will continue to be paid.
- Payment of DAWAP and DAOP requiring an in-patient hospital stay will be stopped after a period of 28 days.
- Payment of DACYP requiring an in-patient hospital stay will continue.
- Payment of DAWAP who has been sentenced or are on remand will be stopped after 28 days.
- Payment of DAOP 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.
- Payment of DACYP who have been sentenced or are on remand will continue.
Question 39. Do you agree or disagree with the proposed approach that, generally, where there is a break in a client's eligibility to receive the benefit, eg. due to being in residential care, they will cease to receive the benefit?
Question 40. If you disagreed, please could you explain why.
4.20 Overpayments and Deductions
Policy on overpayments for Disability Assistance will follow wider policy for Social Security Scotland. Where an overpayment is made as a result of Agency error 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.
Where possible Social Security Scotland will always aim to agree a schedule of repayments with the individual through a variety of payment methods. There is an option for an overpayment to be repaid as a deduction from payments of an ongoing benefit. This would involve a new determination of the Disability Assistance concerned, and would be subject to redetermination and appeal.
Detailed policy for how deductions may be made is still under development. However the key principles guiding recovery decisions will be that no-one is placed into undue hardship and that people should at all times be treated with fairness, dignity and respect.
Where recovery is sought, having taken into account financial and other circumstances, consideration is being given to what rules if any, there should be around deductions from ongoing benefit payments. There are two main scenarios:
- where a client opts for this as their repayment method
- where agreement has not been achieved and Social Security Scotland proposes to make deductions.
We are considering:
- whether the amounts that may be deducted from Disability Assistance should be subject to minimum and maximum rates;
- whether these should be fixed; and
- whether there should be differentiation in the rate of deduction for different types of overpayment for example if due to fraud or error.
Question 41. Please outline any comments or experience you would like to share with us about overpayment recovery and the current DWP approach to deductions?