Draft Disability Assistance for Older People (Scotland) Regulations 2024: Draft Business and Regulatory Impact Assessment

Purpose and Intended Effect

Background

The Social Security (Scotland) Act 2018^[1] (the 2018 Act) sets out the broad framework for the delivery of the Scottish Government’s social security benefits. On 1 April 2020, Scottish Ministers took executive and legal competence for disability benefits, including Disability Living Allowance for Children, Personal Independence Payment and Attendance Allowance.

Pension Age Disability Payment will be the replacement for Attendance Allowance in Scotland. Attendance Allowance will continue to be delivered during a transition period by the Department for Work and Pensions under the terms of an Agency Agreement to ensure the safe and secure transfer to Pension Age Disability Payment. The Scottish Government plans to introduce Pension Age Disability Payment with a pilot and phased approach in Autumn 2024 and national launch in early 2025.^[2]

The draft Disability Assistance for Older People (Scotland) Regulations 2024 set out the eligiblity criteria and how Social Security Scotland will deliver Pension Age Disability Payment. This benefit will accept new applications from those over State Pension age.

The regulations also make provision for the case transfer process for people in Scotland who currently receive Attendance Allowance. These provisions are not currently included within the full draft regulations, however they will be added in due course.

Based on information from the Department for Work and Pensions’ Stat-Xplore service, there were around 144,000 individuals in August 2022 with an entitlement to Attendance Allowance in Scotland whose awards would transfer to Pension Age Disability Payment.^[3]

Pension Age Disability Payment will be delivered by Social Security Scotland on behalf of Scottish Ministers. People will be able to challenge a determination by requesting a re-determination, and subsequently they will be able to appeal to the Social Security Chamber of the First-tier Tribunal for Scotland.

As part of the commitment to a safe and secure transfer, Scottish Ministers do not propose to make significant changes to the existing Attendance Allowance eligibility criteria when introducing Pension Age Disability Payment. Examples of this include the replication of the current 6 month qualifying period for Attendance Allowance and continuing alignment by not introducing a mobility component. By maintaining the current eligibility criteria, individuals in Scotland who are eligible for passported benefits and premiums from the UK Government will have seamless access to this vital support. This will provide security to people in Scotland when Pension Age Disability Payment is rolled out.

However, there are some key changes along with a number of practical administrative differences between Pension Age Disability Payment and Attendance Allowance which Scottish Ministers expect to have a positive impact for disabled people in Scotland. These differences have been developed through the commitments under the Social Security Charter.^[4] The Scottish Government recognises social security as a human right and has designed Social Security Scotland’s services with the people who use them so that everyone is treated with dignity, fairness and respect. The Scottish Government is committed to continually improving Scottish disability benefits by continuing to engage with disabled people and stakeholders to identify areas for further improvement in future.

The Scottish Government has made changes to the application process for all forms of disability assistance, including Pension Age Disability Payment, which will help to reduce stress and anxiety for individuals. People interacting with Social Security Scotland will require options and choices that suit them best. Social Security Scotland offers a multi-channel approach including online, telephone, paper-based and face-to-face applications. As well as offering choices, this ensures that those who cannot or choose not to adopt digital methods will not become isolated.

People who require further assistance or would prefer face-to-face support will be able to access that through Social Security Scotland’s Local Delivery service. Local Delivery staff will provide one-to-one support and help disabled people to understand what Scottish Government benefits they may be entitled to. They can also provide assistance to complete application forms and take forward any follow-up actions relating to a person’s application. It is considered that this support will be of particular benefit to older people applying for Pension Age Disability Payment, as many older people may find completing application forms overwhelming and might not have access to a support network to assist them.

The Scottish Government also launched the Social Security Independent Advocacy Service in January 2022, and has committed to investing £20.4 million in the service over the following four years. The service is free and supports people who self-identify as a disabled person to access and apply for Social Security Scotland assistance.

As with the Scottish Government’s other disability benefits, a new approach to gathering supporting information is being utilised by Social Security Scotland which will help reduce stress and anxiety for individuals. A Case Manager will ordinarily only seek one piece of supporting information from a professional to support the decision-making process when making a determination on an individual’s entitlement to Pension Age Disability Payment.

Case Managers will use a collaborative approach to help people gather supporting information from a professional, where an individual does not already have this to hand. This includes Case Managers obtaining supporting information from professionals on the individual’s behalf. Case Managers can also assist in gathering supporting information from the individual’s wider support network, such as a family member or unpaid carer, which can help Social Security Scotland to understand the individual’s needs, conditions or disability.

The Scottish Government’s new definition of terminal illness will apply to Pension Age Disability Payment. The Scottish Government definition removes the arbitrary 12 month timescale currently used by the Department for Work and Pensions. Instead, the judgement as to whether a person should be considered terminally ill for the purposes of Pension Age Disability Payment will be made by clinicians based on guidance prepared by the Chief Medical Officer.^[5]

Applications will be fast tracked from people with a terminal illness. Individuals who are terminally ill will automatically receive the highest rate of Pension Age Disability Payment and there will be no award reviews.

The Scottish Government has committed to providing Short-term Assistance where Social Security Scotland has made a determination to reduce or stop an on-going Scottish Government benefit and that determination is subject to a request for re-determination or an appeal. As with the Scottish Government’s other disability benefits, Short-term Assistance will be available for those with an award of Pension Age Disability Payment.

The intention of Short-term Assistance is to ensure individuals are not discouraged from challenging a review of their award determination or from accessing administrative justice, by having to manage, for a period, with a reduced income. Short-term Assistance is not available in the UK Government system. Providing support in this way is another example of where Scottish Ministers are removing barriers in the Scottish social security system.

This policy is closely aligned with the Healthier, Wealthier and Fairer Strategic Objectives, and contributes to the following National Outcomes:

• We respect, protect and fulfil human rights and live free from discrimination;
• We tackle poverty by sharing opportunities, wealth, and power more equally; and
• We live in communities that are inclusive, empowered, resilient and safe.

Objective

Pension Age Disability Payment is awarded to help with the extra costs if an individual over State Pension age has a condition or disability severe enough that they need someone to help look after them. This includes physical or mental health conditions and disabilities which have a significant adverse effect on an individual’s care needs.

This impact assessment is one of a package to accompany the regulations. The other impact assessments are: Equality Impact Assessment; Island Communities Impact Assessment; and the Fairer Scotland Duty Assessment.

Rationale for Government intervention

The assessment of the Disability Assistance for Older People (Scotland) Regulations 2024 and Pension Age Disability Payment overall in relation to business and regulatory impact was undertaken using the five principles of Better Regulations,^[6] as follows:

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 introduction of Pension Age Disability Payment.

The equivalent United Kingdom Government benefit, Attendance Allowance, will reduce in caseload as Pension Age Disability Payment is delivered through Social Security Scotland, and cases are transferred from the Department for Work and Pensions. This will likely lead to a neutral impact in the longer term on the administrative burdens on other public agencies, private business and third sector organisations.

In the short term, there may be additional work for public agencies and some third sector organisations as they make arrangements for their staff to incorporate knowledge of the replacement benefit into their current systems. Social Security Scotland has committed to undertaking much of the administrative responsibility on behalf of people accessing disability assistance, including Pension Age Disability Payment, and intends to utilise data sharing processes with relevant bodies. For example, this may occur where an individual requests Social Security Scotland to gather supporting information from a professional, where the individual does not already have this to hand.

It is anticipated that this will streamline the administrative burden of providing supporting information in circumstances where an individual does not have this to hand. Public agencies will instead be able to supply this information directly to Social Security Scotland through formal data sharing agreements and processes.

There is also expected to be a neutral impact on medical professionals as a result of the new definition of terminal illness. They will still be expected to use their clinical judgement to determine whether an individual has a terminal illness with the primary difference being that, instead of a DS1500 or SR1 form, they will be required to complete a ‘Benefits Assistance Under Special Rules in Scotland’ (BASRiS) form.

There may be some short-term impacts as medical professionals adjust to using the BASRiS form and taking a different approach but, overall, this should not place additional burdens on medical staff and, as the BASRiS form has been rolled out for Child Disability Payment and Adult Disability Payment, many medical professionals will already be familiar with this new process in Scotland.

Consistent: Pension Age Disability Payment builds on the framework of a new social security system underpinned by the values of dignity, fairness and respect, as set out in the 2018 Act.

Pension Age Disability Payment will be delivered to eligible people on a similar basis as Attendance Allowance. Decision-making will be person-centred and operational guidance for Case Managers within Social Security Scotland will be in line with the regulations and 2018 Act, which will provide a framework for consistent decision-making across all applications.

Where possible, regulations for Pension Age Disability Payment and associated policies have been aligned with those of Child Disability Payment and Adult Disability Payment. This will provide a consistent approach for both applicants and external organisations who will support them, while paying due regard to the specific needs of people over State Pension age.

Accountable: All determinations made relating to an application for Pension Age Disability Payment will be provided to individuals in a communication method that meets their needs. All information used, and a rationale for the determination made for a new application or re-determination, will be included within communications to ensure that individuals are informed of how their determination of entitlement was made.

The Social Security Charter sets out what people are entitled to expect from the Scottish social security system, including how they should be treated and how their application will be processed. Complaints regarding Social Security Scotland can be directed to the Scottish Public Services Ombudsman.

The Scottish Government will ensure that people understand their right to have a re-determination by Social Security Scotland, and have a right of appeal to the Social Security Chamber of the First-tier Tribunal for Scotland if they are not satisfied with the outcome of a re-determination. This includes a right to appeal directly to the First-tier Tribunal if Social Security Scotland are unable to complete the re-determination process within the 56 day period.

Individuals will also be made aware of the existence of Short-term Assistance, which can be utilised where Social Security Scotland has made a determination to reduce or stop an on-going Scottish Government benefit and that determination is subject to a request for re-determination or an appeal. Short-term Assistance will ensure that individuals do not face a reduced income while undergoing a re-determination or appeal of an ongoing award. This will help to ensure that individuals are not discouraged from challenging a determination they do not agree with, or seeking administrative justice by having to manage, for a time, with a reduced income.

Transparent: A communications strategy will be developed for Pension Age Disability Payment, as has been done for other forms of disability assistance. This will aim to ensure that individuals and their families or carers as well as the third sector, local government, health sector and advice providers are aware of this benefit, know how to apply for it and understand the eligibility criteria.

Where a determination is made that an individual is not entitled to Pension Age Disability Payment, Social Security Scotland will provide a reason why, as set out in section 40 of the 2018 Act, to ensure that determinations are understood and that Social Security Scotland’s processes are as transparent as possible.

Guidance will be published on Pension Age Disability Payment in a way that takes account of differing communication needs, so that material is clear and transparent for those seeking further information. Social Security Scotland will create a bank of Pension Age Disability Payment stakeholder resources and content for distribution to people in local communities. These resources will be produced in accessible formats that will be proactively supplied to relevant stakeholder organisations through the Stakeholder Engagement team.

The languages that Social Security Scotland proactively translate materials to were selected through consultation with those who have experience of the social security system. These languages are: British Sign Language, Farsi, Mandarin, Cantonese, Urdu, Gaelic, Polish, Arabic, braille and Easy Read formats.

Social Security Scotland will produce communication materials in other languages on request. Social Security Scotland’s communications team will work with community radio and foreign language press to provide messaging on Pension Age Disability Payment to communities. In some circumstances, printed marketing materials may not be the right way to engage with communities, and where this is the case Social Security Scotland will provide an engagement approach through work carried out by the Stakeholder Engagement and Local Delivery teams.

The second Benefit Take-Up Strategy was published in October 2021 under the provision of the 2018 Act.^[7] The strategy sets out Scottish Ministers’ work supporting benefit take-up to date. It also introduced a series of new activities and initiatives aimed at increasing awareness of, and access to, Scottish Government benefits and supporting those who are eligible to apply.

These include new funding streams for benefit take-up and income maximisation, establishing a Benefit Take-up Stakeholder Reference Group to provide advice and support in the implementation of this strategy and developing a Benefit Take-up Stakeholder Toolkit. Two roundtable events were held in 2020 which were co-designed with key stakeholders to explore solutions to issues such as stigma, barriers to access, and the human rights-based approach. Increased benefit take-up is likely to have a positive impact on businesses and the economy because more individuals with a disability will have increased income, which may be used to purchase a range of goods and services from private or third sector organisations.

Targeted only where needed: Pension Age Disability Payment is intended to help mitigate the additional costs for individuals over State Pension age with a disability or health condition that requires someone to help look after them. The rules for the benefit will be set out in these regulations, and each new application will undergo a decision-making process which will consider eligibility for Pension Age Disability Payment in a way that is consistent with the principles of dignity, fairness and respect.

Based on information from the Department for Work and Pensions’ Stat-Xplore service, there were around 144,000 individuals in August 2022 with an entitlement to Attendance Allowance in Scotland whose awards would transfer to Pension Age Disability Payment.^[8]

It is expected that the introduction of Pension Age Disability Payment 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 individuals with experience of the current system, Social Security Scotland will be equipped to support individuals. This should lessen the impact on advice services in their provision of complex social security rights casework support for individuals.