Chamber and committees

The point about the primary legislation that was passed before the recess is almost a separate area of consideration, although I note and appreciate the accelerated timescale that we all engaged in to ensure that there was an additional December payment of the Scottish carers allowance supplement.

However, in regard to regulations more generally, looking back, we can see that the pandemic has had an effect on the delivery timetable. We are now in the process of working towards the important delivery timeframes for both CDP and ADP. The amendments to the regulations that we are considering are about improving the regulations following the experience of the pilot and consideration by the Government and Social Security Scotland on how to do the right thing and make improvements in advance of the national roll-out on 22 November 2021.

It is a fast-moving situation, because we are all determined to deliver social security benefits in Scotland and deliver them well. I would be happy to take that point away if you think that it would be helpful for us to set out any further information on the timetable.

Good morning. The regulations are required to support the introduction of child disability payment. For context, we started taking applications for child disability payment on 26 July, as part of a pilot. Child disability payment is the first regularly recurring disability benefit to be delivered by Social Security Scotland, and it will make a significant contribution to the lives of disabled children and young people in Scotland, their families and their carers. Feedback on the pilot has been positive so far. Its systems and processes are working well, and we remain on track to roll out child disability payment nationally from 22 November 2021.

Moreover, as I set out in my recent letter to the committee, 11 October marked the beginning of our ambitious case transfer process. The first disability living allowance for children awards have now been selected for transfer to child disability payment. Those individuals will continue to get the right payment at the right time, and they will not have to apply or be reassessed as part of the transfer process.

In relation to the regulations, the amendments that we are proposing are largely technical in nature. The amendments were identified as necessary after the principal regulations were passed. There is significant complexity in the principal regulations, in the case transfer process and in the interactions with the reserved system. The changes that we are seeking to make will reflect that, leading up to the national delivery of the benefit, we are continuously learning lessons and identifying areas in which we can improve arrangements.

The amendments will allow for young people to remain on CDP after the age of 18 in specific circumstances. They will clarify the period in which Social Security Scotland has to complete a redetermination, and they will extend the number of scenarios in which short-term assistance is payable. The changes will introduce further flexibility, bring more fairness to decision making and help to improve outcomes for disabled children and young people.

The amendments will enable child disability payment awards for case transfer clients to be backdated when one or more of the exceptions that are set out in the regulations are met. The exceptions relate to situations in which child disability payment awards resulting from the transfer process can be higher than the disability living allowance for children awards that they replace, due to differences in eligibility rules between the two benefits.

The backdating provisions ensure that those whose awards are selected later in the transfer process are not disadvantaged compared with those whose awards were chosen earlier, when one of the exceptions applies. Those rules were not included in the principal provisions because discussions with the Department for Work and Pensions on the effects of backdating on reserved systems were on-going at that point.

Although we expect the exceptions to apply to only a very small number of individuals, if any, it is important that no one whose award is transferred is worse off than they would have been had they made a new application. Consistency is important.

Before I conclude, I emphasise that I remain extremely grateful to Dr Sally Witcher and the Scottish Commission on Social Security for its scrutiny of the regulations and for its general work, leadership and scrutiny. However, I note that the case transfer provisions fall outwith its remit; that is an important point.

I welcome the opportunity to assist the committee in its consideration of the regulations and I look forward to any questions that members may have.

Could you be more specific with that question?

I will bring in David Hilber because he has been leading on development of the case transfer aspects of the regulations. Is that what you meant, Mr Balfour?

I take it that you want me to talk about short-term assistance, but do you want me to talk about the more general question of whether you can transfer from CDP to ADP, too?

I would like to take that away—unless Jennifer Sinclair wishes to add anything.

Of course, the provision to continue payments until a determination is made is in the regulations that are under consideration today. I am sure that that important change will be welcome.

We will take the issue away and, if we can provide the committee and Mr Balfour with any further information, we will be forthcoming in that respect.

As for Mr Balfour’s second question about why the Scottish Government has changed its mind about the phrase “throughout the night”, the issue was, as the member might recall, discussed by the committee back in March, and it was agreed by the then cabinet secretary that we would closely monitor the issue to ensure that our intent was carried out. The term was initially used to be consistent with the use of the term “throughout the day”, but we have changed that, now that the sector is more comfortable with the phrase “at night”.

In direct answer to your question, therefore, we have changed the wording in relation to night-time care needs from “throughout the night” to “at night” to feed back on concerns that a different criterion on the level of care would be applied under CDP from that currently applied under disability living allowance for children. SCOSS has welcomed the regulations’ amendment of the phrase “throughout the night” to “at night”, saying that the changes in the wording will put beyond doubt what the requirements are and

“reduce scope for uncertainty about how much care is required to constitute ‘throughout the night’”.

I hope that that answers your question, Mr Balfour.

I would simply refer to my previous answers and to the extra information that Jennifer Sinclair provided. As I stated, there is a difference between situations where there are considerations around people who experience a loss or reduction in award as a result of a determination and who have requested a redetermination or an appeal, and a situation of transfer. However, as I stated, we will of course monitor the process to understand whether and how further support can be provided to clients.

I emphasise the support and advice that there will be for people in that two-year window—in most cases—where they are on CDP, aged over 16 and heading towards 18. Support will be provided to help them in their journey to applying for the adult disability payment.

Thank you for that clarity—I thought that you were asking about both issues. I will also briefly touch on short-term assistance at the end of my remarks, if I may.

The initial position that we have to consider is that CDP and ADP are different forms of assistance with different eligibility criteria. A person applying for CDP knows that they can be on that benefit only until the age of 18, but the fact is that they can also apply for ADP from the age of 16. I should also point out that, although a person can be on CDP only until they are 18, there are certain circumstances in which, if these regulations are passed and if there is good reason, we can continue that payment. I can go into those in more detail, if that would be helpful to the committee.

Given that these are different forms of assistance with different eligibility criteria, treating this process simply as a transfer would mean that the information that is held by Social Security Scotland in relation to a CDP award would, for many clients, likely not be sufficient for a decision on entitlement to ADP to be made, and we would need to ask clients to provide further supporting information if they were making an application for ADP. That is why a new claim will have to be made, but I again point out that clients will have two years to do so. I would also point out that the transition from DLA to the personal independence payment also requires a new application for the same reason. Given that this is in the best interests of all CDP clients, individuals on CDP will be required to make a new application to ADP with—and this is an important point—extensive and on-going support and advice being made available to young people and their families as they undertake the process.

I emphasise for the sake of clarity that we intend to make the process as smooth as possible with no gap in payment, which will obviously be very important in ensuring that it is less disruptive than the current system. It should also be noted that SCOSS has welcomed the additional flexibility in the system, commenting that it is likely to strengthen the rights of clients undergoing this process, and we therefore consider that this process and approach represent the best client journey for all clients.

As for short-term assistance, I remember our sitting around this table, discussing the bill that led to the Social Security (Scotland) Act 2018, and how, at the time, it was highlighted that this new initiative was being introduced for a good reason. It is for people who have experienced a loss of or reduction in award as a result of a determination and have requested a redetermination or appeal, and it is not available to those moving between different forms of assistance. If we were to extend the scope of such assistance to cover those transitioning between CDP and ADP, that would represent a fundamental departure from the policy intent of short-term assistance. As I have said, the transition from CDP to ADP has been designed to be as easy as possible for clients and their families, and we do not envisage short-term assistance being a significant consideration in that process. However, we will monitor the process on an on-going basis to understand whether and how further support can be provided to clients.