Social Justice and Social Security Committee

Meeting date: Thursday, December 16, 2021

Official Report 626KB pdf

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Adult Disability Payment

The next item is on the adult disability payment, which is due to start replacing personal independence payment in Scotland next year. Changes will be made through regulations that the committee expects to be laid soon. This morning, we will consider the differences between ADP and PIP and any potential policy issues in advance of formal consideration of the regulations next year.

I am pleased that we will hear from two panels today. I welcome to the first panel Ed Pybus, policy and parliamentary officer, Child Poverty Action Group in Scotland; Richard Gass, welfare rights and money advice manager, Rights Advice Scotland; and Judith Paterson, who is a member of the Scottish Commission on Social Security. A very warm welcome to you all.

I ask committee members and panellists to type R in the chat box if they would like to come in. Some members have already indicated to me that they would like to do so. I would also appreciate it, given that we are meeting virtually today, if colleagues who are asking questions could direct their questions to witnesses directly and allow a wee bit of time to ensure that their microphones are turned on before speaking.

Good morning, panel. Thank you very much for joining us.

We note in the regulations for adult disability payment that some of them—indeed a lot of them—mirror PIP. Where the regulations differ, can the panel comment on whether the changes support or help the end user? Some of the differences between adult disability payment and PIP, including the terminal illness rule, the fact that awards do not end immediately, rules on members of the armed forces and residence rules, represent policy divergence from the United Kingdom. What is your understanding of how the Scottish Government was able to progress on those areas, given the constraints that we have heard about in implementing policy that is different from the UK Government’s policy?

As Pam Duncan-Glancy says, the eligibility rules largely follow PIP rules. I do not know about the discussion between the Scottish Government and the Department for Work and Pensions that has allowed some change to happen, but I welcome, for example, the extension of the rules for terminal illness. We hope that that will help more people. There has been quite a lot of change in the process and in the rules for making new determinations and so on, and we will have to wait to see how that all beds in and how it works.

Where there are differences, and where there might be problems, is around case law. A lot of the PIP rules were built up around case law for the PIP regulations, and the Scottish Government has tried to incorporate some of that in regulation but, obviously, incorporating case law in regulation is not always easy. There are a few areas where we feel that definitions could be tightened up to make them more in line with PIP. A key one of those is for pain. Case law has established that, if you cannot do something without being in pain, you should not be considered able to do it, and the definition of “to an acceptable standard” could include a reference to pain, which it does not at the moment. We hope that PIP case law will carry on into ADP case law and establish that, but to put it beyond doubt, including that sort of thing in the regulations and making clear exactly what should be taken into account when making decisions could be helpful for clients as well as the agency and decision makers.

On the broader point about the changes to terminal illness and residence rules, there is a direction of travel in the UK in those areas. The UK is also widening eligibility for people who are terminally ill and residence rules, not in PIP but in disability living allowance, which has been propelled by case law. In Scotland making improvements in ADP in those areas, there is some sense of alignment, if not complete alignment, with the rest of the UK.

On whether the detail of the regulations, where it differs, is always of benefit to the claimant, various phrases in the regulations have been changed to incorporate case law—Ed Pybus talked about case law being relevant—and I think that pretty much that is beneficial. When SCOSS looked at the regulations, that was the intention that we could see. It is a difficult job that has to be done with some care because, if you incorporate case law, it can change things in unexpected ways, but I think that the approach was careful and it seems reasonable to us.

The regulation changes about decision making and social security are drafted differently in Scotland, so they do not mirror PIP in the same way as the eligibility rules do. When you drill into the details of those decision-making changes, you see that most of them are neutral, so that follows the policy intention, but SCOSS reported on one change that seems to be detrimental. It is detailed, but it is one of our recommendations that that should be attended to. It meant that, in some circumstances, somebody could lose out on a few weeks’ money because of the way in which regulations have been drafted. We have made that recommendation, but we do not know at this point what the Scottish Government’s response to that recommendation might be.

Could Richard Gass and Ed Pybus comment on where they see eligibility mirroring PIP and the impact that that has on the people they represent?

The eligibility rules are nearly identical; it is more the process rules that have been changed, and we welcome those changes. We have PIP as it was transposed into a Scottish format. In answer to your question about how our clients are affected, these benefits have been devolved and we have been expecting this for quite some time. There was some expectation of improvement, but we have not had that yet. We are lifting and recasting what was a benefit entitlement that welfare rights advocates and claimants would criticise for having inadequacies. I understand the idea of safe and secure transition, but it feels as if safe and secure transition has been a justification for not being sufficiently ambitious. The child disability payment is already in place and there were some tweaks to it, such as the extension of entitlement to the over-16s, that required an element of reassessment for clients. The idea of introducing something that requires some reassessment is not alien and I feel that the opportunity has been lost.

If I could labour on that point in relation to the mobility component, many claimants who were on disability living allowance moved over to PIP and lost their mobility component or their higher-rate mobility component at that stage, and we had hoped that the new system would rectify that, but it has not done so. There is an opportunity here for the mobility element to be reviewed. That would require some reassessment, but it would be reassessment for the good.

I see that, more recently, there has been some concern that, in making changes, we tie the hands of the review next year. However, there might be a fundamental principle that the mobility component should not be removed from claimants who previously had it, and that might steer the mind of the review next year.

To jump back to areas where the rules are different, there are some slight changes around residence and presence conditions for people who are offshore workers or members of the armed forces. It would be good to drill down into those changes, because they are not necessarily all beneficial and they could have a wider impact.

On the larger point about potential changes, organisations are giving evidence in the next session. In the meantime, it is important to look at the way in which the rules are being applied. We know that often, unfortunately, in PIP decisions people have been refused benefit and have to go to appeal because, as I mentioned, pain and the ability to do things “to an acceptable standard” have not been taken into account in looking at someone walking. If someone can walk only in pain, they should be getting the mobility component at the higher rate, but that does not happen under PIP, because the rules are not being followed correctly by decision makers. We need to make sure that, in the Scottish system, not only are the rules clear but the guidance for decision makers—or case managers, as they will be called in the Scottish system—is absolutely clear and that there is an audit process to ensure that they are using the guidance and following it and that the decisions that they are making are correct.

Another key part of the system that we have been discussing for a while is making sure that Social Security Scotland collects data on the claims, conditions and outcomes of claims—about people who get awards, what rate they get and people who are refused awards, so that we can see whether people are not getting the awards they should be getting. For example, if people with multiple sclerosis are not getting the higher rate, we need to look at that. We want to gather evidence so that changes can be made.

We have broadly accepted the Scottish Government’s weighing up of the advantages of changes compared with those of avoiding disruption and going with a safe and secure transition. Richard Gass is absolutely right that small changes can be made in the system, but that will have to await the outcome of a formal review.

SCOSS is very aware that the introduction of adult disability payment is an opportunity to do better than the benefit that it replaces and that people want to seize that opportunity to make improvements. SCOSS shares that ambition, but we were persuaded in the course of our scrutiny that the critical priority in the short term is to make sure that people can be confident that their payments will continue without disruption. Having listened to everyone that we could, we felt that doing too much too soon could destabilise delivery and put it at risk. We concluded that it was right to go ahead as planned and look to make changes after the initial transition period.

09:15  

While you are on that point and before I bring in Jeremy Balfour, I note that the SCOSS report said:

“We are persuaded that changing eligibility criteria at this time would risk undermining the delivery of ADP, with extremely detrimental consequences for people who depend on it.”

What detrimental consequences did you envisage? What made you reach that conclusion?

It was the stability of payments, as Richard Gass and Ed Pybus have suggested. If you change eligibility criteria as people transfer from their existing PIP to adult disability payment, they have to be assessed, and there are 300,000 people to be transferred and everything is new. There are so many new systems to get up and running and to test to make sure they are working that, if you introduce too much too soon, some of those critical paths would mean that there are delays to payments or that people drop out altogether.

We have seen with other transfers in the UK system that it is a difficult process. One of the things that people do not want and which causes problems is to have to apply for the new benefit during the process of transfer. It is very clear to us that people want to be transferred and not to have to claim their new benefit, with all the uncertainty that that brings. That was most persuasive for us.

That is extremely helpful.

I have three questions to ask. The first one is for Richard Gass or Judith Paterson, but feel free to jump in if you wish. It goes back to the issue of case law. We have had quite a lot of debate about this over the past number of years because, clearly, a lot of case law has built up over the past 15 or 20 years. Is it your understanding that the new agency and the new tribunals will be following that case law, or is the situation still unclear?

As we have adopted the regulations for PIP almost verbatim, with some process changes, the entitlement rules remain the same. I would therefore expect that the tribunals will be applying the same case law. At present, we have a Scottish legal system. It defers in part to the UK but, by and large, that does not impact on social security legislation. I imagine that the existing case law would continue to apply until some point where our entitlements diverge.

The answer is that we do not know. It would be up to the tribunals, which are independent of Social Security Scotland, how they manage it. I agree with Richard Gass that, because the legislation is in many cases drafted identically or very similarly, they would follow PIP case law. Where it gets slightly more complicated is if PIP case law starts to diverge—how will further significant case law for PIP apply if it happens after the transfer? One of our calls is that there needs to be a constant review process happening to review the regulations and see whether case law is diverging and what needs to be done about that. That does not mean that we have to follow PIP, because the point is that Scotland can do things differently, but a decision has to be made on that.

Ed Pybus raises an interesting point. Ultimately, decisions on these matters are made in the Supreme Court. It will be interesting to see how it interprets two different sets of regulations, but that may be a matter for the legal eagles.

I am interested in Judith Paterson’s point about the safe transfer, which we all want to happen. That has overridden the commission’s view that we should not have any changes. Will you expand on how you came to that decision? Was it a result of consultation with the third sector or was it a pragmatic view that the commission came to?

SCOSS had a consultation with stakeholders and we looked at their views very carefully. There certainly are strong views that changes should be made more quickly. The 20m rule featured quite strongly in that, as did issues for people with intermittent conditions. We also pressed the Scottish Government quite hard on the point. We had engagement with officials, the minister and the cabinet secretary at various points, and we had briefings from them. We got detailed and helpful information back on the rationale for the approach that is being taken.

We felt that we did our best. We were very aware that this was a critical question for the committee and for stakeholders, so we tried to take a broad view. Did we reach a pragmatic view? I would say that it is a practical one. We looked at the risks and focused on the money in people’s pockets and their experience. In truth, we were also aware that a lot of features in the system should be better. We addressed some of the main concerns that the Scottish Government heard from people in its initial consultation about what they did not like, such as face-to-face reviews and so forth. Those were being addressed.

It is important to allow a safe and secure transition by not making any changes unnecessarily. However, the issue with the mobility component is bigger than that. We have claimants who are still on disability living allowance and claimants who have been transferred to PIP. Those who have transferred have possibly lost, while those who have not transferred have not yet lost. We are trying to bring two benefits into a new Scottish benefit, and there is a conundrum. What are the rules about mobility for somebody on DLA who can walk more than 20m, but not more than 50m? How will they land safely and securely in the new adult disability payment?

We also have to measure that up against the fact that we still have the child disability payment with the old rules. We have 16 and 17-year-olds who are getting the higher mobility component on the basis of being unable to walk between 20m and 50m. When they are reassessed for their ADP claims, they will need to have that removed. It is not a case of saying, “Well, this is where we are—how do we move forward?” This is an emerging problem, and it needs to be resolved promptly.

That is a helpful comment. It is a disappointing situation. Five years ago, when Jeane Freeman was in charge and this work started, there was going to be a very different system. I think that the Government has lost its way, particularly on the 20m rule and those with variable conditions.

However, if we presume that the regulations will be passed by the Scottish National Party and Green Government with a review taking place in 2022-23, will it be possible for any recommendations that are made—for example, to change 20m to 50m—to be implemented in the current session of Parliament, or will it realistically be another five or six years before we see any change? Given your experience of how long things take, do you believe that we could do it in a four-year period, or is that overoptimistic?

Can it be done in the current session of Parliament? There will be more chance of that if the Scottish Government lays the ground for it now. I do not think that there is any reason not to get it under way. An independent review has been proposed to start in 2023, in not much more than a year’s time. The more that can be done now to scope that review, the better. For example, the stakeholder feedback—all the rich evidence that the Scottish Government has received—could be used as a starting point to identify the areas of particular concern where improvements could be made. The Scottish Government could start to think about commissioning some research into those areas and scheduling experience panels, client panels and consultation exercises.

However, it could also usefully look at some of the constraints. We have talked a bit about the constraints that exist in relation to safe and secure transfer, but there are other constraints that might not go away after transition—for example, constraints to do with the interactions between the adult disability payment and UK benefits, and passporting issues. Some early scoping work to look at what the constraints are, what can be moved and what cannot would be very useful to the independent review, and would make it more likely that some changes could be made in the current session of Parliament.

The timeframe is fairly ambitious. Whether change will be achievable within it will depend on how much change is proposed in the review. If the review proposes a fundamental change, it will require detailed new legislation and all the scrutiny that goes with that. If it is fundamentally new legislation, we will have winners and losers. How will we then deliver on that? Will there be transitional protection?

The other possibility is that the review will be fairly light touch and will recognise that there is not much wrong—not that I would necessarily agree with that. If it simply says that we require a single benefit from cradle to grave with nuances and tweaks at different age points along the way, that might be easier to deliver. It would be a bit like going back to how it was before PIP was introduced. The question is how ambitious the changes will be. The more ambitious they are, the longer it will take. The less ambitious they are, the quicker it will be.

I agree that it will depend on the ambition. As Judith Paterson said, sorting out the passporting issues will be key to understanding what changes can be made. It is certainly possible that the review will look at small changes that would bring some people who currently fall outwith the system into it, while also looking at bigger, long-term, structural changes that will take longer to implement. Some changes could certainly be made in the current session of Parliament if there is a will.

Thank you for your attendance at the committee, which is very much appreciated. To aid our understanding of the 20m mobility rule in PIP, which was introduced by the Tory Government at Westminster, will you explain what the rationale was for introducing it? Was there an impact assessment? Is there any suggestion that the UK Government will move away from it, given the condemnation of the policy?

Would you like to direct that question to any particular members of the panel, Marie?

I ask Ed Pybus and Richard Gass to respond.

I am thinking back to the introduction of PIP. I was a front-line welfare rights worker at that time. There were a lot of changes when adults moved from DLA to PIP. Under DLA, there was not a strict distance rule. It was more about being virtually unable to walk within locations, but case law established that that covered walking about 50m. With PIP, that was clarified with a 20m rule. I do not feel that I can say exactly what the intention was. Judith Paterson and Richard Gass have been involved for longer and they might have more knowledge of that.

Judith mentioned earlier that some of the changes that have happened in Scotland around terminal illness and so on relate to areas where the UK Government is looking at PIP. However, I am not aware that the UK Government is considering changes to mobility at a UK level. Certainly, that was not particularly looked at in the green paper.

There is an issue to do with what will happen if the rules for PIP in the UK are changed. There is a green paper on assessment for disability and work benefits. What will happen if, once ADP is in place, the rules for PIP are changed? We have the same problem of passporting. Another problem that arises is transfers. When people move from Scotland to England or Wales, they will have to reapply. If the rules are very different, what will that mean for people who move?

09:30  

The change to PIP formed part of the UK Government’s raft of welfare reforms as we were coming out of the recession. We were advised that DLA for adults was no longer fit for purpose and that it needed to be recast. At that time, there was a notion—I have tried to find the source, but I cannot find it—that the changes would bring about a 20 per cent saving. In the adviser and claimant community, it was seen as a change for the sake of saving money, and it seemed that the area where the axe fell hardest was the mobility component. I would suggest that that was one of the identified savings to be made.

Ed Pybus is correct that the old legislation talked about being virtually unable to walk. It was case law that established being unable to walk, first, 100m and latterly 50m as the true definition of being virtually unable to walk, given other factors as well. When PIP came in, the distance went down to 20m. That is 10 times the full stretch of your arm. If someone is unable to walk that distance, it almost becomes meaningless in terms of actual walking ability.

There were some welcome policy changes from PIP, but the Scottish Government’s stated priority is a safe and secure transfer from the DWP to Social Security Scotland. I want to explore the risks around transfers. Given your experience in the benefits system, can you comment on past experiences of transfers between DWP benefits? Did they meet their stated timescales? I ask Ed Pybus and Richard Gass to comment again, please.

We all know that the transfer from DLA to PIP has taken far longer than was planned. That has meant that, as Richard Gass mentioned earlier, we have adults in Scotland who are still getting disability living allowance and have not been transferred to PIP. They will have to move straight to the adult disability payment, which will bring difficulties.

I return to a point that Judith Paterson made. The decision to not get claimants to make a new claim for the Scottish benefit and to end their PIP by transferring them will, we hope, make the process far more straightforward and enable it to happen much more quickly. However, PIP brings the difficulty that it is much harder to make changes to the eligibility criteria when we do that transfer.

We picked up on a couple of issues about the transfer in our submission to the commission. An example is the transfer of people on PIP who are over pension age. There are a few difficult cases. Another example is the people on DLA who will be transferred. As we discussed earlier, the decision to keep the eligibility criteria makes it possible to transfer people. People were not actually transferred to PIP; they had to claim it and then stop their DLA claim. It is a different process in Scotland. We will have to wait and see whether it stands the test of time.

Richard, I presume that that applies to people being transferred to universal credit, as well as to PIP?

Yes. The changes to welfare rights over my lifetime go back to 1986. There have been a number of changes. Some of them have come about more promptly. My recollection is that the move in 1986 from supplementary benefit to income support happened in a far narrower window than the move to universal credit. Universal credit was supposed to be done and dusted many years ago, but we are still nowhere near that. The reason is that the more ambitious a change is, the more difficult it is to deliver it, because it throws up a load of issues along the way.

Simple changes can come about easily, but complex changes take far longer. With our aspirations for the disability benefits, if we want to have something fundamentally different, I think that it will take quite some time. If we are looking at tinkering at the edges and maybe trying to remove some of the inequalities that have crept in, that could probably happen much more quickly.

I have a question for Judith Paterson. If we accept that there will be no change until there has been a safe and secure transition, does the review of adequacy and eligibility need to wait until after that too, or could the Government start to review those things now so that the new system could be switched on straight after the safe and secure transition?

You are right to suggest that there are things that can be done now. What the other witnesses, including Richard Gass, have said about the scale of change is really important. There is no reason why the ground work could not be done now, such as scoping out the review and considering which changes could be made in the medium term and which are long-term ambitions, for example because they will require primary legislation.

Some areas could be changed more easily, but I sound a note of caution, because it will be important to test any changes to eligibility rules to ensure that the consequences for people are fully understood. On the face of it, something might appear to be a sensible improvement, but there can be unforeseen consequences. It will be easier for the Scottish Government to test that when it has its own live case load of people on benefit and it can do a behind-the-scenes check on what it would mean if it moved things around.

[Inaudible.]—that has been done in the Scottish system is big changes to process. Those are things that can be changed and reviewed as the system goes along. An example is the agency collecting medical evidence or other formal evidence from people. Let us see how that works. If it immediately causes a backlog of evidence requests to third sector organisations, for example, the processes can be changed. The new processes need to be dynamic and changeable as the system works and feedback comes in.

I want to move on to the issue of terminal illness, and perhaps the biggest change in the primary legislation. Sadly, a number of children die as a result of terminal illness. My understanding is that the Government was going to do a deep dive to see how the system worked. Does anyone know how that has worked in practice? Has it made a difference for the children for whom it was introduced? Are there indications that the medical profession—particularly consultants, general practitioners and nurses—are aware of the changes and are signposting patients towards them?

I am not aware of the deep dive that has been done, but I like to think that the old regulations prior to the introduction of the child disability payment would have allowed very seriously terminally ill children to succeed under the terminal illness rules for child DLA.

We certainly welcome the expansion of the definition of terminal illness, which will allow more people into the benefit who are indeed terminally ill. A consultant or a specialist may have been reluctant to limit that to a six-month frame. As I said, I hope that the old rules would have been sufficient for very seriously ill people. I have no evidence to back that up; that is more a gut reaction.

On confusion among GPs and so on, I am aware that a GP practice in Perth mistakenly believed that, when the child disability payment pilot went live in Perth, the terminal illness rules had changed for all claimants. I know that that particular practice has been sending in the benefits assessment under special rules in Scotland—BASRiS—forms to the DWP in England. I have not heard of anybody not getting their benefit as a consequence, but we have not had any indication that the DWP is seeking to get DS1500 forms filled in. There is certainly scope for confusion.

I welcome the Scottish Government’s approach to terminal illness. It takes a more compassionate and, as far as I understand, a more generous approach by awarding the enhanced rates of the mobility and daily living components of PIP. Is there any concern that that difference could create confusion? How can we minimise that? Is there any indication that the Westminster Government intends to learn from the Scottish approach to terminal illness policy?

Is that addressed to any panel member in particular?

It is addressed to anyone.

It would be helpful if any colleague who wishes to come in types R in the chat function. We would then have an indication of who wishes to respond to that point.

As we have discussed, there is the potential for confusion, particularly around people who get both DWP and Scottish benefits. That has to be monitored to make sure that there is a clear understanding with the DWP and its staff about what should be happening. I understand that there is a terminal illness review at the UK level, but colleagues in London will be dealing with that. I can certainly get back to the committee if I find out a bit more from them.

I previously made a point about process. There is a new approach in Scotland to terminal illness. Data needs to be collected on that process, and it needs to be reviewed to see how well it is working. Are medical professionals able to fill in the two separate forms that have the two different definitions of terminal illness? I am sure that the chief medical officer will keep a close eye on how the guidance is being implemented in practice. That is important to make sure that the system works as intended.

09:45  

Dialogue between Social Security Scotland and the DWP is required to ensure that there is dovetailing of the systems where possible. Earlier, Judith Paterson said that there is a review for the UK Government in respect of how it will redefine terminal illness. Regardless of what the UK Government does, we could still have two things that are slightly different, but a claimant who has moved over to a Scottish disability benefit will not require a DS1500 form for the UK disability benefit, because that has changed. There could be an overlap if they are also claiming universal credit on the ground of being unfit for work. That is where the dialogue would come in. We need assurances from the DWP that it will be content to accept a BASRiS form as evidence of a person’s terminal illness for how it will process universal credit and that it will not say that it needs to be established whether the contents of the BASRiS form can be narrowed down to a six-month window.

I think that we all welcome the new approach to fast tracking claims from those with a terminal illness. SCOSS has recommended that the Scottish Government set out how it will create a sustainable and seamless system for terminally ill people. How is that work going, and has that been achieved? That may be a question specifically for Judith Paterson.

We did make that recommendation, and we were thinking about Social Security Scotland, the Scottish Government and the DWP departments working together. We wanted to know what the Scottish end of that would look like. We made that recommendation, and we are still waiting for the Scottish Government’s response to it, so I am afraid that I do not have anything to add on that. We want departments to work together, because everyone knows that any delay that is introduced into the system for terminally ill people has to be avoided at all costs.

There are obvious sources of confusion. Richard Gass was spot on on the one in Perth that he identified. Both systems need to learn lessons and make improvements really quickly.

That is helpful. We have heard evidence from a number of organisations that work with people who have a terminal illness and are being cared for and their families. To what extent have they been included in designing the system? For example, Marie Curie is obviously on the front line running hospices. Do you have any information about how it has been included in that? That question is for anyone on the panel.

Do any colleagues want to come in on Mr Briggs’s question? I cannot see an R in the chat box.

That is okay. I am happy to move on.

You are first up on the next theme, which is moving between DLA and PIP and ADP.

Witnesses have spoken about engagement with the Scottish Government on the transfer from PIP and DLA to ADP. What is the panel’s understanding of the policy, particularly for those who are over the pension age?

In the group that I participate in, a regular question that I raise is about what will happen to the folk on DLA. Although we have not had anything concrete, the words that come back are that people are not expecting the—[Inaudible.] That is the answer that I like to hear, but I would prefer to see that in a written policy format or, better still, a legislative format.

A concern that has been put to the committee relates to people moving around the UK and having a seamless system in place for rules that will be different in different parts of it. Are the systems currently adequate enough to capture that so that people do not fall through the net when they move around different systems and structures?

I cannot say that I know the answer to that question. I know that the ambition is to have a seamless system, but that will rely on engagement with the DWP. Folk need to notify changes of circumstances, and there is sometimes a slowness in that process. Social Security Scotland, the DWP and the claimant are involved. Sometimes moves may happen that are not expected to be permanent, but they become permanent. For example, someone might come up to care for a relative who is disabled, but they might not expect to stay. If they end up staying, being physically at an address does not mean that they have moved. There needs to be consideration of whether that is the new address. That is a complicated area, and I am probably waffling now, so I will just stop.

Not at all.

The system has to be seamless. I was just trying to check the rules. There are rules about what will happen to a person’s Scottish adult disability payments if they move from Scotland to the rest of the UK. The converse rules for when a person moves to Scotland and how long their PIP will continue before they have to claim will be a matter for the DWP.

There are a couple of little technical points. For example, what will happen if a person claims PIP and then moves to Scotland does not seem to be clear. That could potentially be sorted out.

The broader issue is that we would like an approach in which there is no wrong door. If anyone in any part applies for a disability benefit, Social Security Scotland and the DWP should work out who should be paying it and why. Someone should not be told that they should have applied for the benefit in Scotland or in England or Wales. A department-level agreement on that would be useful.

I think that it is right to identify—[Inaudible.]—to confusion in the future. It is brand new; we have not had to deal with it before. There are no clear lines for people or for decision makers to follow when people are moving from one part of the country to another. For example, there is no rule that says that, if a person is out of the country for a certain length of time, they will be deemed to have moved after that. It is a matter of judgment.

There is the extra complexity of a handover of agencies. All of that means that things will go wrong. It is important to be alert to that and to ensure that that is not under the radar, so that both agencies monitor, see where things are going wrong, and try to improve their systems. However, it is more likely to be about a system improvement rather than a regulation improvement.

The committee has received substantial evidence on people with mental health issues who receive PIP. Has the system captured them as we look towards moving from PIP to ADP? Are there any examples of that work being captured? That is maybe a question for Judith Paterson, as I know that she has been looking at that issue specifically.

You are quite right. People with mental health issues form a very large proportion of people who claim PIP, so it is vital that the system works for them. In a sense, every aspect of the system—not just the regulations—has to be considered in terms of health. This is drilling into a smaller point about terminology, but SCOSS saw that the regulations were rather ambiguous and unclear about whether they referred to people with a mental health condition, such as a psychiatric condition, or people with learning disabilities or a cognitive disorder. We recommended further consultation to get the terminology right, not just in the regulations but in how things are communicated to people, and that the medical professionals who are taken on for decision makers to get specialist advice from must have relevant experience. People wanted to see that improvement, and SCOSS is pleased about that.

There are other issues to do with suspensions, for example. The committee will know that, during a review of a person’s entitlement, there is the potential for an award to be suspended if they do not respond to requests for information. People with mental ill health might find that engagement more difficult. We will be looking to see what safeguarding measures are put in place to make sure that people do not fall out of the system on the ground of their disability.

I notice that concerns have been raised about how those who are above pension age might be affected by moving to ADP. There may be a theme emerging there around different age benefits and the issues that come with transferring. Ed Pybus and Judith Paterson, should disabled people of different ages have different eligibility criteria or different benefits and should that be looked at at a UK level?

We do not have a view on a correct way of doing that, or on whether there should be a single benefit for all ages or different benefits at different ages. As you have discussed, we have a model and there will be a transfer, so we need to make sure that the rules cover all the possibilities. Most people who get PIP will be working age and most people of pension age will be getting attendance allowance, but we know that both working-age and pension-age people are getting DLA. There are also people who get PIP and who will become pension age. We need to make sure that the rules around the transfers are absolutely robust so that no one falls through the cracks. For the majority of people, the rules will be fine, but there will be people who do not fit the standard model. We need to make sure that both the regulations and the processes support those variations. It is worth reiterating Judith Paterson’s point that people must be supported not to fall through the cracks. If someone does not respond to a request for information in relation to a transfer, for example, they must be supported to do that, as opposed to the claim just falling away.

SCOSS has also not taken a view on whether there should be a lifelong benefit, so I cannot say. Nor did we have the case transfer regulations in scope for scrutiny. We literally have not seen those, so we do not know how people of pension age would be transferred on to adult disability payment.

You are quite right that there are issues as young people transfer on to adult benefits and there are differences between working-age and pension-age benefits. Helpfully, if you are already on benefit before pension age, you stay on the same benefit and are not obliged to make a fresh claim upon reaching pension age. That is a better feature of the system.

Thanks again for all your contributions. This morning’s discussion has been really interesting. I hope that there is ambition to change a lot about adult disability payments so that disabled people have the support that they need to live an ordinary life. However, we have discussed a number of issues. Do you have a view on whether there are sufficient systems in place within the current social security system in Scotland to support continuous improvement, specifically given that Social Security Scotland’s approach is to have a minimum viable product? I pose that to Judith Paterson.

10:00  

SCOSS has begun engagement with Social Security Scotland to understand those issues. It is absolutely right to look early on at continuous improvement and SCOSS has a statutory role in terms of the social security charter. One of the first things that we might well look at is that issue of continuous improvement and whether the systems are in place to monitor all the most important things that need to be monitored. I am not sure that I have more to say on that at this point.

SCOSS identified that an early focus should be those areas where it is critical that the process is got right, to make sure that people get the right decision early on and do not have to go to appeal. We thought that new parts of the system, such as how applications are made, how people are supported and how supporting information is gathered, should be an early focus for monitoring and continuous improvement, because those are critical to people getting money in their pocket at the right time.

Thanks for all your information so far; it has been really helpful. To what extent might options for the independent review be constrained because of the way that devolved and reserved benefits interact? How should that problem be addressed? I pose that question to Judith Paterson.

One of the main constraints is the issue of passporting. For example, Northern Ireland has its own social security powers but it has chosen to be completely in lockstep with the UK. Scotland does not have that lockstep process. As soon as the UK diverges and Scotland does not, or as soon as Scotland begins to make changes and the UK does not, there could be a real issue that needs to be resolved.

I understand that the Scottish Government has been discussing with the DWP the entire time to make sure that the changes that are proposed will be regarded as like for like and will not impact on passporting entitlements, but I do not think that anything can be taken for granted for the future.

There could be all sorts of options on the table for resolving issues. The most radical option would be to ensure that all the passporting benefits were within the control of the Scottish Government. However, we are nowhere near that at the moment, so that is not a medium-term solution.

That is very helpful. Before we wrap up I want to ask a couple of final questions. The first touches on the theme that Evelyn Tweed just raised, about passporting and the interchangeability of the devolved and reserved systems. I note that SCOSS has highlighted its concern about the UK Government’s green paper on health and disability and that it could have “significant implications” for the devolved system. Judith Paterson, could you please elaborate your concerns about the green paper and the white paper that is potentially coming early next year?

It is very early stages, so it is hard to talk in specific terms, but the green paper refers to consulting on changing PIP descriptors. Subject to the timing of any changes to PIP descriptors, there are obvious implications for the Scottish system. The committee has explored today the safe and secure transition and the consequences of making early changes to descriptors. That could happen at the UK level and be taken out of the hands of the Scottish Government, so that needs to be kept under close scrutiny.

In the longer term, radical changes are suggested, such as exploring the scope of combining working-age benefits such as universal credit allowance and PIP into one benefit. That would be combining a UK benefit with a devolved benefit. It is very hard to see how that could work, with one benefit in the control of one Government and one in the control of the other.

There have been numerous policy and delivery challenges, all of which could raise questions about the passporting arrangements. That kind of significant restructuring is discussed in the green paper. Where it refers to PIP, however, the green paper says to assume that that would not apply in Scotland. That might be true directly, but there could be all kinds of indirect consequences that would apply in Scotland.

Another more immediate issue that potentially comes up is combining assessments for out-of-work benefits—such as universal credit or disability and support allowance—and PIP. If a claimant in the rest of the UK has one assessment for both benefits, what does that mean for the Scottish system? Would someone have to have two assessments, one for their ADP and one for their DSA or universal credit, or would there be a way of sharing that information? There are easy ways to get around that. There can be information-sharing solutions, but there need to be agreements been the DWP and Social Security Scotland.

I meant to mention one really significant consequence, which is the cost implications of divergence. The green paper talks throughout about—[Inaudible.]

—cost, and that is the context for those changes. If there is a reduced cost of delivering PIP in the UK, there could be, through the fiscal framework, less money for the Scottish Government to deliver adult disability payment. That is a major implication for Scotland.

Conscious as I am of time, my final question is an area that we have not covered as yet. It is first for Richard Gass and it is about short-term assistance. The Scottish Fiscal Commission has made an assumption—with many caveats, it has to be said—that as many as 90 per cent of people in receipt of ADP could be accessing short-term assistance. Is that assuming that the changed assessment process in Scotland will continue to make the same award mistakes as the DWP makes with PIP? Do you share those concerns?

[Inaudible.]—it comes from. All I can talk about is my understanding of claimants’ attitudes to benefits, and break it down into three scenarios. The first is that someone is receiving a benefit today and tomorrow there is an assessment to say that they are no longer entitled to it. Most folk do not like that and they will appeal that decision if they feel confident to do so. If they get short-term assistance over the process, good and well.

There will be some people—I would say very few folk—who are quite content with the decision to reduce their benefit. I do not imagine that many of them will then engage in an appeal process so that they can artificially get some short-term assistance prior to an appeal. I do not think that those numbers are significant.

What is significant is that there will be some people who get turned down for a benefit, but do not have confidence or trust that the process of challenge will achieve anything. They will feel that they are on trial for their disability and will not want to engage with that. However, if short-term assistance were available pending the appeal process, that might persuade them that there was value in pursuing an appeal, certainly in the short term and perhaps in the longer term. I do not think that encouraging folk to take up their rights is a bad thing. I cannot comment on the 90 per cent figure or whether it is realistic.

Ed Pybus finally, please.

Richard Gass has covered it. I have nothing to add.

Lovely. Ed Pybus, Richard Gass and Judith Paterson, I appreciate your time. Your input has been invaluable as we go through the process of scrutinising the implementation of ADP. It is greatly appreciated. No doubt we will be back in touch again but, in the meantime, I wish you all a merry Christmas.

I suspend briefly to change over the panel of witnesses.

10:10 Meeting suspended.  

10:12 On resuming—  

I am pleased to say that we are joined by our second panel of witnesses. We have with us Craig Smith, senior policy and research officer for the Scottish Association for Mental Health; Frank McKillop, head of policy and research at Enable Scotland; Keith Park, policy, public affairs and campaigns manager at the MS Society Scotland; Trisha Hatt, Macmillan Cancer Support strategic partnership manager; and Bill Scott, senior policy adviser at Inclusion Scotland. Welcome to you all. We are very grateful for your presence.

We will turn immediately to questions, the first of which is from Jeremy Balfour.

I will start with an open question. Many of you have been on the journey of watching the regulations and the primary legislation going through over the past five years. One concern that I have is that we have not seen enough changes, particularly in relation to variable conditions and the higher rate of the mobility component. If we could make changes in relation to variability and mobility, what difference would that make to the people who you represent? I will start with Keith Park.

I thank the committee for inviting us to speak today. We very much welcome the opportunity.

When DLA changed to PIP, a third of people with multiple sclerosis lost out on their enhanced rate of the mobility component. That is approximately 3,000 people across the UK who lost out on that higher rate of mobility payment, which has a huge impact on people’s abilities to live their lives. It affects the availability of mobility vehicles. As a result of that process, people with MS have had to give up their work and have not been able to stay in employment, which as we all know is a human right. It affects their position in life and in society and how much they contribute.

Maintaining the 20m rule is having a huge impact on people’s lives. How far does 20m actually get you? In most cases, it does not allow people to leave their house and garden, and it does not get them to their nearest bus stop. The rule has a huge impact on people and a hugely detrimental effect on how they live their lives. It is the main aspect of the regulations that people with MS want to change. We have been pushing for that since PIP was proposed by the DWP and Westminster Government. For people with MS, the issue is very much at the heart of the matter and impacts them the most.

10:15  

I repeat what Keith Park said. The evidence from cases across the UK is that, when people who were on higher rate mobility in DLA transfer to PIP, approximately 50 per cent of them lose entitlement to the enhanced rate of the mobility component of PIP. Half the people who were previously on the higher rate have lost it. That has a devastating impact on their lives. As Keith Park said, it could impact on their ability to be in employment. It also impacts on their ability to see friends and family, to take part in aspects of community life and to access essential services such as health and education. It massively increases the isolation that disabled people face, and that should not be underestimated.

Scotland is a much more rural country than England. In the central belt, there are good accessible transport systems in certain cities. Outwith the central belt, large areas of Scotland are very rural and there are large distances to negotiate to access retail shops and services. If you do not have a car or a Motability vehicle—you lose that when you lose your higher rate mobility—you just cannot get there any longer. We have seen people struggling to access hospital services in the Highlands, the Borders and Dumfries and Galloway. The issue is one of the aspects of PIP that we wanted to be tackled in the devolved benefit system.

Keith, are you looking to come back in briefly?

I meant to add that there is no evidence base for 20m as the measure of somebody’s mobility needs. Indeed, that was acknowledged by the Scottish Government in its consultation on the regulations when it said that changing the 20m rule or 50 per cent rule in isolation could “further embed unfairness” in the system. The Scottish Government’s starting point was acknowledging that the 20m rule is an unfair measurement of somebody’s mobility. To not have changed the rule or have moved on from it does not seem to fit with the principles of dignity, fairness and respect.

With the first panel, we discussed the issue of people who are presently on DLA and who will come off it when they transfer across. That may affect not only mobility; with regard to those with variable conditions, it might mean that they lose the benefit. Do you know from talking to your members how many people that would affect? Is it a concern? I do not know whether Bill Scott, Keith Park or others have any information on that.

Are there any colleagues in the virtual room with any information or input on that question?

We do not have exact figures on how many people that will affect in Scotland. I go back to what I said in my previous answer. A third of people with MS have had that level of support reduced. In fact, one in 10 people with MS lost out completely on the mobility component when they were moved from DLA to PIP. I cannot say what impact that will have, other than to refer to where we are now. Across the UK, we estimated that between 2020 and 2022, 611 people with MS will leave work and employment as a result of the changes. We think that it will be mirrored as we move forward.

The Scottish Government estimated that, as a result of the move from the 50m rule to the 20m rule, between 15,000 and 16,000 disabled Scots people would lose entitlement to the higher enhanced rate of PIP on transfer from DLA. Effectively, the same overall number of people will be affected by a transfer from DLA to ADP, or a transfer from PIP, where they have already lost out, to ADP—they will not get it back. The figure is approximately between 15,000 and 16,000 people.

Keith Park is absolutely right. People with variable conditions such as MS, those with energy-limiting impairments such as ME, who have difficulty walking some days but not others, and people with mental health issues and learning difficulties have all lost out on the higher rate because of the descriptors that are used. It is not just about the 20m rule. There are issues around the descriptors about being able to make a journey safely that make things more difficult for people with mental health issues to get the enhanced rate of mobility in PIP.

Thank you very much for having me.

I have a quick point on variability. I do not have any numbers on how many people have been affected by the change from DLA to PIP but I want to follow on from Bill Scott’s point and go back to the 50 per cent rule—not the 50m rule, but the 50 per cent rule. Overall for PIP, the 50 per cent rule and the issue of getting awards against the activities and descriptors has been a real challenge. That is one of our longest-running issues with PIP.

We recognise why the 50 per cent rule is being maintained in ADP. In the longer term, we really hope that the issue will be explored further and changed. The rule has been difficult for people with fluctuating conditions, particularly those with mental health problems. Under the legislation, people have to demonstrate that their conditions impact on them for 50 per cent of the month. That can be very difficult for people who have bipolar disorder, schizophrenia or other mental health problems that may fluctuate rapidly over long periods. People may have short periods of real distress followed by long periods of stability. People can fall out of the system as a result, in relation to the daily living component and particularly the mobility component.

We have on-going concerns about the mobility descriptors. As Bill Scott alluded to, for people who have a mental health problem, it is very difficult to get points under the mobility activities and descriptors in PIP. Although we recognise the rationale for broadly retaining the current PIP descriptors under ADP, it is a real challenge going forward. We hope that some of the process issues to do with how consultations are carried out and the burden of proof against the descriptors might improve that situation. However, in the longer term, we need fundamental changes to the structure of the benefits, including the descriptors and the 50 per cent rule, which makes it very difficult for people with fluctuating conditions to be confident that they will get the support that they deserve under the system.

Is it possible that we could transfer safely and make changes at the same time? If that is not possible, will it be possible to make any changes that will come out of the independent review in the current session of Parliament, or are we realistically looking to the next session? I will start with Bill Scott on that.

Thanks for handing me the hand grenade. It could be difficult to make the changes after the independent review within the lifetime of this session of Parliament, simply because the changes will have to be consulted on and the regulations will then have to be redrafted, go through the consultation process with SCOSS and then come back to Parliament to be voted on. They will then have to be implemented by the new agency, and guidance will have to be drawn up and so on.

That is a lengthy process, as we have seen already in arriving at where we are today. It has taken five years since the powers were devolved to Scotland to get to the stage at which we are considering the regulations for the new benefit. New systems had to be established, staff had to be recruited and new computer systems had to be set up. I am not having a go at the length of time that it has taken, but it has to be acknowledged that these things do not happen overnight.

That is a real worry. When we first consulted with disabled people in 2016 and 2017 on the devolved benefits, the emphasis was on a safe and secure transfer, but if we had known how long it was going to take to look at the entitlement criteria, I am not sure that our members would have been so supportive of that. I am sorry for taking up a wee bit of time.

Thank you for inviting Enable Scotland to give evidence. We feel that some minor tweaks can be made to the eligibility criteria. It is about widening access to the benefit. I understand the point that the cabinet secretary made last month in a letter to Pam Duncan-Glancy that the objective behind safe and secure transfer is, in effect, to ensure no detriment to claimants. Our view is that, in implementing minor tweaks that would potentially broaden access to the benefits and ensure that no one is unfairly denied a benefit that is reflective of their circumstances, there should be no detriment to anyone who is currently accessing the benefit. Therefore, that sort of minor adjustment is possible at this time within a safe and secure transfer.

I agree with Bill Scott’s point that, if we do not make changes now when we are undertaking this fairly substantial process, it might be a long time before we are able to make changes. Some immediate positive changes could be implemented quickly and, in our view, that can be done within the principle of safe and secure transfer and would not put anyone’s benefit entitlements at risk.

I absolutely agree with those comments from Bill Scott and Frank McKillop. Our big concern about the speed of future changes in large part comes down to the issue of passporting. We agreed with the Scottish Government’s rationale around safe and secure transfer for the reasons that it set out about not wanting to create a two-tier system at the start of the process and to ensure that passported benefits are protected. If the issue of passporting is not sorted out, it could be a huge policy constraint in future.

Either through the independent review or through agreements between both Governments, we need clarity about the scope for future change, because the issue of passporting and a like-for-like benefit will not change at any point in the process, irrespective of case transfer. If the issue is still there, there needs to be an agreement that ADP is equivalent to PIP or a replacement benefit down south after the green paper. That issue needs to be bottomed out to get into scope what changes could be made while protecting passported benefits.

Obviously, we do not want anyone to lose passported benefits and financial support that is absolutely key to people’s lives and independent living. However, we need to get to a point where we can see the scope of the changes that can happen. Having an indefinite restraint on policy in Scotland due to the passporting issue is not acceptable in the long term. We need clarity from both Governments about that so that we can in the longer term consider fundamental changes to ADP, such as a move away from a points-based system or from the 50 per cent rule. If a like-for-like benefit is always needed for passported benefits, that will be a real restraint indefinitely. We need clarity on that.

10:30  

I agree with everything that has been said so far. If the concern is about passported benefits in a two-tier system, no matter when the review takes place and when the changes are proposed, we will be in the same position. The DWP will have its eligibility criteria in place for PIP, and those may have changed in the meantime from the current ADP regulations. We are just pushing the can down the road and delaying those conversations and changes.

On the timescale for the regulations for ADP to be rolled out, it has taken a full year from when the consultation opened to get to where we are now. The independent review will gather data and information. To do that effectively will take an awful long time—potentially up to a year—so if it starts in the summer of 2023, we are talking two years. To answer Jeremy Balfour’s initial question, I do not think that we will be in a position to roll that out in this session of Parliament.

We believe that we are able to make some changes now. The political will is there. For example, there is a broad consensus across the chamber at Holyrood that the 20m rule and the eligibility criteria around it are not fair and should be looked at. If the issue is a technical one, the two Governments, Social Security Scotland and the DWP can discuss it and come to an agreement. As Craig Smith said, we need to ensure that the agreements are in place and that we can move forward because, without having those conversations and that agreement in place, we will be in a very similar position when the review publishes its advice and recommendations and we then try to implement those changes.

I would like to thank the witnesses again for their evidence. It is incredibly powerful to hear about the impact that some of the existing eligibility criteria for disability benefits has on the people whom you represent.

I will pick up Bill Scott’s point about the safe and secure transfer of benefits. I declare an interest as someone who gets personal independence payment. I, too, would, be concerned if I thought for one minute that, in the process of transferring benefits from one Government agency to another, the benefit stopped and I lost my Motability vehicle, for example. It is no wonder that disabled people have said that the safe and secure transfer of benefits is important. However, if they were told that it might require 10 years before any fundamental change to the criteria could be made, I agree with you that they would not have put that aspect first.

Before I move to my question, I will highlight one really important point. The First Minister put the impact of the PIP criteria very well when highlighting that people who get enhanced mobility support could lose up to £3,000 a year. She said:

“Important though the money is, let us remember that, for people in those circumstances, that loss could take away more than pounds and pence—it could take away their very independence.”—[Official Report, 13 August 2014; c 33391.]

I whole-heartedly agree with that, which is why we need to move on the issue.

My initial questions are probably for Keith Park, Bill Scott and Craig Smith. Can you give a rough figure for the number of people who, in the coming weeks, months and years, will be left without their independence as a result of the criteria continuing in its current form? Is there any reason why the Scottish Government could not start to review eligibility and adequacy now, so that, when the safe and secure transfer finishes in 2023—if, indeed, it does—we can more or less switch on the new system that same day?

As I said in one of my earlier answers, we believe that 611 people with MS across the UK will leave employment as a result of losing the enhanced mobility component of the benefit. That would be about 70 people in Scotland based on a calculation of the MS population in Scotland.

We regularly hear from people whom we have been speaking to throughout the consultation process that they now have to claim additional benefits as a result of losing their mobility vehicle. They have had to give up their work, as I have said, but they are also almost becoming reclusive. As Bill Scott mentioned earlier, social isolation is a huge issue for people with MS generally, and we are perpetuating that to some extent by continuing with a measure that says that, if a person can walk 20m, they do not deserve to have the enhanced rate mobility, which allows them to have a Motability vehicle.

I agree that, if we are not willing to change the eligibility criteria now, that work should start. We are pushing for a return to 50m being the measurement that is used. However, that measure is arbitrary and not ideal because, ultimately, if a person can walk 51m, what difference is that to walking 49m? It is not that much further.

We need to have a wholesale review of eligibility criteria that measures mobility holistically and does not rely on an arbitrary figure that looks at somebody’s ability to walk on a flat, level surface. I do not know what the other witnesses’ experience is, but there are very few pavements where I live that are flat and level. That puts more pressure on people who have issues with balance, fatigue and concentration as a result of their fatigue.

We have to look at mobility criteria in the whole and assess how that can be measured in somebody holistically. To do that, we must ensure that policymakers are involved in the process. Healthcare professionals are involved but, most important, we must also involve people with disabilities and conditions such as MS to make sure that we are measuring mobility effectively.

I will bring in Bill Scott followed by Craig Smith. I am conscious that we have not heard from Trisha Hatt yet. If Trisha has anything to add, I will be happy to bring her in after that.

I agree with everything that Keith Park has just said. I go back to the related issue of passporting. A lot of the passported benefits that people get access to are reserved. In the case of the mobility component, most of the passported benefits are devolved, for example automatic entitlement to the blue badge scheme.

Motability is self-financing. As soon as somebody is on the higher rate or the enhanced rate of the mobility component, they can afford a Motability vehicle and the leasing pays for itself. In fact, Motability comes out several hundred million pounds a year in profit, which is then donated back to the Motability charity.

I do not think that the 50m and 20m rule is as big a barrier as the 50 per cent rule might be, unfortunately. I think that more could done in the near future. The biggest barrier is cost, which came through in the Scottish Government’s policy paper. There are costs associated with the measure.

It was mentioned in the earlier panel that the UK Government wants to save 20 per cent of the DLA bill and that it would partially achieve that through changing the 50m rule to 20m. In fact, it has made only 5 per cent savings, but virtually all those have come from people losing the higher rate of mobility component when moving from DLA to PIP. There are cost implications, which should be considered in how we fund the benefit in the future. However, as I said, I do not think that passporting is a big barrier.

Pam Duncan-Glancy asked about when we should start looking at changes. That should start immediately. We have the commitment to an independent review, which is absolutely key. We want that to be truly independent and led by people with disabilities and lived experience of the social security system. However, I do not think that that should be a barrier to the Government and wider stakeholders looking at changes to the eligibility criteria.

We know what the key issues are—issues such as the 50 per cent rule and the descriptors have been brought up numerous times across the disability sector since the start of the journey of devolution of social security in Scotland. There should be on-going evaluation of the issues and of ways to change those aspects. That work can feed into the independent review, but it should not necessarily have to wait until the independent review gets under way before it begins.

We believe that there should be minor changes to the eligibility criteria and to the daily living element. We would like there to be more explicit reference to psychological distress in some of the descriptors. For example, under the preparing food and taking nutrition element, that would be used to highlight the experiences of people with eating disorders and the psychological distress that is associated with preparing food, which are not easily captured under the current descriptors. Those fairly minor changes could happen now. There might be a counter argument that that is a change too far for a like-for-like benefit, but we would argue that that would not apply to minor changes to descriptors.

I return to the timing point. Work needs to be done now before the terms of reference for the review are agreed to. That is on-going work by the Scottish Government, the social security agency, the Scottish Commission on Social Security and the wider sector. As I said, we know what the key structural concerns are with the benefits, such as the 50 per cent rule, the descriptors and the points-based system.

Thank you, convener, for bringing me in.

I agree with everything that the other witnesses have said so far. We support people with a cancer diagnosis. Often, they have not accessed any benefits and they may have been working. It is important to ensure that the new system is brought in in a timely manner, that a review is undertaken quarterly and that the Government is able to review matters. It needs to look at whether the targets for people are being hit and whether people are getting access to the benefit. There is also information to consider from people themselves about how the system was for them and whether they could access it.

We have a long history of supporting people with benefit claims, particularly now through the improving the cancer journey service. The link workers, support staff and benefits advisers are very skilled at supporting people to get access and that must not change in any way.

I am very conscious of time. We have about half an hour left and quite a few colleagues to get through, so I ask that we be quick with questions and answers. It would be helpful if the witnesses could come in when they have something new to add, rather than reiterating points that have already been made.

I want to pick up on the point in SAMH’s submission about the intention to review people on PIP under the ADP system. ADP has been delayed, as we know. Can you talk a little bit about the impact that that has had on the people you represent? Bill Scott, it would be helpful to hear if you have any further evidence on that particular issue.

I have no evidence on that that I can offer, unfortunately. We have had limited contact with disabled people and, unfortunately, all of that has been online since the pandemic started. We have not asked them that particular question, but I am sure that other witnesses can answer the question better.

I can see that Craig Smith is looking to come in.

As Pam Duncan-Glancy correctly said, we mentioned that issue in our submission to the committee. Our concern is around the delay to the implementation of ADP. We absolutely understand the reason for that. We accept that the pandemic happened and is happening—we are all sitting in our rooms at the moment—so the delay to implementation made sense.

Our concern is for the cohort of people who would have transferred this year. The commitment was that people transferring when their PIP claims came up for review would transfer to ADP without having to make an application and without being assessed, which we very much welcomed. However, those people will now have to go through a PIP reassessment, possibly a face-to-face assessment and possibly face a long wait, depending on the length of their award, before their case transfers to ADP, once that comes online next year.

10:45  

That will have a big impact on people with mental health problems. We know that the face-to-face assessment for PIP causes distress and we know about the stigmatising issues that come up during those assessments. We also know about the general distress felt by people going through that process and the impact that that has on their mental health.

We highlighted that to the Government when the delay to ADP was announced. We again reiterated that we understood about the reason for the delay. We called for the rapid transfer of people who went through the PIP system this year, who had been promised that they would be in ADP but, through no fault of their own, as a result of the pandemic, whose transfer was delayed.

We would like the Government to look at the case transfers of not only those people who were awarded PIP this year once the award came up for review, but at those who lost out on a PIP claim this year, so that they are not lost in the system.

We think that the Scottish Government should engage proactively with the third sector and with awareness campaigns on people’s right to apply for ADP, which should include those who made applications for PIP this year or previously but did get an award. That includes the cohort who would have avoided a face-to-face assessment had this year’s timescale been kept to and those who might have faced such an assessment through PIP this year because of the delay. We would like the Government to identify that group of people, which we think is quite a significant number of people, and invite them to transfer to ADP as soon as possible.

This is the same question that I asked our first panel to aid our understanding of the 20m rule, which was introduced by the Tory Government at Westminster. What was the rationale for introducing it? Was there any impact assessment? Is there any suggestion that we will move away from it, given the condemnation of the policy? I will put that to Bill Scott and Keith Park. I know that Bill Scott has spoken about the issue already, but it would be helpful if you could expand on your response.

At the time when the welfare reforms were being introduced, the UK Government identified that the cost of disability benefits was rising and, in particular, that people were gaining access to the mobility component of DLA and carrying it into their pension years. That is possible; if someone applies to PIP, DLA or ADP and they are entitled to higher rate mobility, they carry that through into their retirement years.

The intention was to reduce the spend not just on working-age disability benefits, but on disability benefits in retirement. You can make long-term savings that way because you could be affecting somebody’s entitlement to a Motability vehicle for 30 or 40 years. Removing that entitlement can be done quite easily by reducing the length of the walking test from 50m to 20m.

At the time, every single charity and organisation for disabled people in the UK opposed the move and said that it would result in unfairness. The UK Government stated in its response to the consultation on the proposed change that it was going ahead with the change because it knew that it would result in benefit savings.

There is only one reason for the change: to reduce the number of people who were entitled and to reduce their entitlement not only during the working-age part of their lives but into their retirement. It has a long-term impact of £3,000 a year, but also on people’s ability to get about for the rest of their lives.

I am conscious that we have representatives of two UK-wide organisations present. Keith Park and Trisha Hatt, do you have any view on whether the UK Government has any intention to review the 20m rule, which Marie McNair asked about? Clearly, that would answer some of the problems and concerns that have been raised about passporting and the move of people who are currently on DLA to ADP.

Given that ours is a UK-wide organisation, I hope that my colleagues in the other countries will listen. We are very much in contact with them. We will be in touch after today’s discussion, and I will update them. I hope that we could have some sort of influence with our colleagues in England and Wales.

I am in a similar position to Trisha Hatt, in that UK colleagues have been working and leading on that. The green paper and the white paper have been published. I am afraid that I do not know the ins and outs of the issue, so I cannot say for certain whether it has been considered. I do not believe that it has, but I could not say that with any certainty. Like Trish Hatt, we are working very closely with our colleagues to highlight the benefits that should come through with ADP, but we are also pushing on where we should go in the future. I can make sure that our colleagues from London pass on information, which we can share with the committee afterwards.

I completely agree with everything that Bill Scott said around the reasoning behind changing the distance from 50m to 20m. At UK level, from 2013 on, we have been pushing the UK Government to provide evidence for its use of that measure. There is no evidence base to it, as I said. There is no basis that demonstrates that somebody who can walk 21m has less need for mobility support than somebody who can walk 19m. As it is not based on any evidence, it is a very unfair criterion to use to measure somebody’s ability to mobilise.

We want to encourage claims for ADP. Although it is early days, is the panel aware of any lessons that we can learn from the initial implementation of child disability payment? I pose that question to Frank McKillop.

A big advantage with child disability payment has been the publicity campaign, which originated with Social Security Scotland and which organisations such as ours and other charities that support families with children have been involved in. In raising awareness of ADP, there is an advantage in that it is something different, particularly when compared with negative experiences that families might have had in the past in applying for benefits. There is certainly an opportunity to broaden the application process and to build on the poor experiences that people have had—for example, in being assessed for PIP—as a result of which they feel that they were unfairly denied access to a benefit that they should have been entitled to.

A major lesson that can be learned is that we should ensure that we activate and support the third sector to reach out to the people it supports and works with to ensure that those people who are entitled to such benefits are able and encouraged to come forward and are supported and given access to the advocacy that they might require when they come forward. It is critical that we support the sector to support people who need such benefits and that they are able to access them.

Does the panel welcome the approach to encouraging and supporting the submission of further evidence, given the DWP experience? What more can be done to get the message out that a different approach will be taken to evidence gathering?

We definitely welcome the different approach in Scotland to evidence gathering for ADP compared to PIP and the reserved benefits, with the onus being on the agency to collect one formal piece of evidence, to be assessed on the balance of probabilities without having to prove every little bit of every criterion. It is a very positive development.

Again, it goes back to the point that has been made about engagement with the third sector to ensure that there is awareness and people know that the processes for ADP will be different from those for PIP. It is a very positive process change that the responsibility for evidence gathering is much more on the agency than on the individual and that evidence from families and carers will have equal value. It is important work and I think that the agency is doing a good job of engaging with the sector on these changes and creating more public awareness.

That will be an on-going process as ADP is introduced and raising public awareness about it will be key. The third sector and others working with people with disabilities have a key partnership role in that to ensure that people know that the processes around evidence gathering and, in particular, assessments will be very different under ADP. It is about how we share that information and build people’s confidence to engage with the system.

I agree with most if not all of what Craig Smith said. We welcome the fact that the requirement will be for only one piece of evidence and that the onus will be on Social Security Scotland to gather that. Across the MS community, we have been aware that, when it has been people with MS who have been trying to gather that information, they want it to come from the neurologist or MS nurse. MS nurses, who have an incredible workload, report that they are getting so much contact from people looking for support for benefit applications, so anything that improves that system has to be welcome from their perspective. As Craig Smith has said, the fact that somebody’s carer or family member can provide that support to demonstrate the impact that the condition has on them day to day, which a professional would not necessarily be able to tease out, has to be a positive thing.

I think that one of the best ways of encouraging take-up and letting people know that the system has changed is word of mouth. We have had early reports from some of the pilot areas where the child disability payment has been rolled out that the local office staff of the Scottish social security agency have been leaning over backwards to help families access child disability payment. That gets around the disability community like nothing else, because people are active on social media and talk to one another. It definitely indicates a very different approach from what people had experienced with the DWP. I hope that the good news continues and that people continue to have good experiences, because that will sell and get people to claim the benefits that they are entitled to.

I have a small question. Have you had any communication from the Scottish Government on the process for making amendments? Does the panel accept the Scottish Government’s argument that changes to eligibility should be left to the independent review?

In answer to the first part, we have not had any conversations with the Scottish Government about amendments. However, as has been discussed in both panels so far this morning, we believe that some minor tweaks to the eligibility criteria could be made now. On the issue of passporting benefits, especially where the 20m rule is concerned, we do not believe that anybody who is on the enhanced rate of mobility will qualify for further DWP benefits when compared to somebody who is on the standard rate of mobility. As Bill Scott mentioned earlier, a lot of what people are passported to are devolved benefits that will be part of the ADP system through the Motability component or through the blue badge system.

We have a petition that is currently in front of the Citizen Participation and Public Petitions Committee. As part of that process, we have written to the DWP and the Scottish Government asking for specific examples of where the enhanced rate of mobility would passport someone to further benefits. Neither organisation has taken the opportunity to give examples of where that would have an impact. We definitely believe that some minor tweaks around the eligibility criteria could take place just now.

One of the positives was the Scottish Government making amendments to who can sign the form for end-of-life care benefits. Initially, it was clinicians, but that has now been extended to registered nurses. That has been a very positive support.

11:00  

As we alluded to earlier, our concern is that if the opportunity is not taken now, as Keith Park outlined, to make minor tweaks to the regulations and the eligibility criteria, eligibility criteria that perhaps the majority of MSPs, let alone the wider population and the wider sector, feel are unfair could remain in place for several years and continue to be to the detriment of people with disabilities who are applying for the benefits. That outcome is not in anyone’s interest, so I feel that there is an opportunity here to make sure we have the eligibility criteria right. Given the fear about having a safe and secure transfer, we may not be able to do anything revolutionary at this point, but there are tweaks that can be made. Otherwise, we will have the very undesirable situation in which criteria that it is broadly agreed are unfair continue to disadvantage disabled people for some years into the future, despite what should have been the advantages of devolving this benefit.

[Inaudible.]—repeat anything. Inclusion Scotland is involved in a number of stakeholder groups that are in regular discussion with the Scottish Government about changes. It has been far easier to have an argument with it about process than about changing eligibility criteria, largely for the reasons that the Scottish Government has set out in its policy memorandum accompanying the draft regulations. It has been concentrating on safe and secure transfer, but we, like the other organisations around this table, believe that some changes could and should be made in the here and now. They are disadvantaging disabled people to such a great extent that they result in unfairness and should be addressed.

This question is for Craig Smith. I noticed that the SAMH response says that the assessment issues are the most significant problem for mental health patients applying for PIP. Do you agree that the changes that have been made to assessment amount to a massive change in the experience of disabled claimants with a mental health issue even before eligibility is considered?

The short answer to that is yes. I do not know whether they will make massive changes, but we are very confident that there will be significant positive changes arising from how eligibility is assessed and the move away from a default face-to-face assessment with functional assessments and informal observations under PIP to what seems to be a much more positive system under ADP.

We welcome the move away from face-to-face assessments. We have been involved in discussions through our membership of the disability and carers benefits expert advisory group, as well as research sessions with the Scottish Government directly, about how the consultations under ADP will work. There seems to be a broad move away from face to face towards phone consultations if required and a more paper-based determination of eligibility, which is welcome.

There are some small but important issues for people. Things such as the move away from informal observations is key. Where an assessor makes an informal observation, under ADP they will need to disclose that to the person who they are speaking to in the consultation and allow that person to respond. We know that that has been an issue for people with mental health problems. Under PIP, they have experienced having their appearance or their manner of speech judged as not being what somebody expects someone with a mental health problem to look or sound like, and that has been distressing and hugely stigmatising.

We hope that the move away from a reliance on things such as informal observations will be helpful, as well as the move from an assessment process to a consultation process, in which there is a bespoke gathering of evidence when there are gaps in someone’s application rather than an implementation of functional assessments and standard questions.

We are particularly happy with the suitably qualified assessor criterion from the original Social Security (Scotland) Act 2018 and how that is being applied in ADP so that someone who is carrying out a consultation will need to have direct experience of working with people with mental health problems. We think that that will make a big change when the applicant has a mental health problem.

This is taken on faith at the moment. As I say, we are positive about it. We will need to see how it works in practice. That will be a role for the independent review and on-going quality assurance and on-going improvements to the system, so that this is always taken under review. We should gather good evidence of how consultations work in practice and, in particular, what clients’ experience is of those, so that we can make further tweaks if necessary.

To cut a long answer short, yes, the change from assessments to consultations is probably the most positive step in the changes from PIP to ADP.

I notice as well that your submission says that the retention of a points-based system is something for the independent review to consider. Would you expect it to agree that a points-based system for determining need is appropriate and, if not, what would you propose instead?

That is a difficult question to answer. We have long-standing concerns about a points-based system. It lacks a holistic approach to determining the impact of someone’s disability or mental health problem on their daily living and mobility. I do not have a wonderful answer about what you would replace it with, but I think that we can take learning back from disability living allowance and different models of assessing the impact that someone’s disability has or the impact that society has on disabled people. We need to be taking a much more social model to disability when we are looking at how we assess the impact of disability.

I do not have a perfect answer. I would like to see full consideration in the independent review of alternatives to a points-based system because it is very limiting at the moment and does not have the holistic approach that we would like to see. I do not have a great answer on me, but it should be a key focus for the independent review to look in a very wide way at alternatives to how we determine eligibility for disability benefits.

I know that we are tight for time. I want to ask a question about the independent review and what witnesses’ expectations are for the scope, remit and working practices of the review. When would you expect its work to be completed in a timely fashion?

As indicated earlier, I would expect a review, if it does its job properly and takes evidence from those who use the system as well as evidence from those who are involved in assisting those who use the system—the welfare rights workers, advocacy organisations and so on—to last about a year. Yes, I think that that is an issue.

To go back to an issue that I think is quite important, there have been positive changes in the assessment system. As people have pointed out, the proof of the pudding will be in the eating, but I think that it is an on-going concern that a care assistant with two years’ experience of working with older people with dementia will be able to make an assessment of somebody with a mental health issue, even though their level of qualification is Scottish Qualifications Authority level 2. The complaints about the PIP system have been that consultants have been overruled in their assessment of somebody’s mental health by a midwife and so on. There is still the contradiction at the heart of things that somebody with relatively limited experience and quite a low qualification level could overrule somebody who has spent their life in and has risen in the profession. Their ability to diagnose a mental health condition is overruled. There is not necessarily a logic to how points are awarded for certain criteria and not others. Maybe an improved points-based system could be developed.

I agree with everything that Bill Scott has said, especially about the qualifications of the people who are undertaking the consultations. One of the things that we regularly hear from people living with MS is that their GP does not really understand the condition and all the symptoms that come with it, because they do not have a huge amount of experience of working with people with MS. The chances are unlikely that somebody with two years’ experience of social care will have come across somebody with a complex condition such as MS or ME with invisible symptoms.

On the length of time for the review, a year is probably appropriate. On the information and the scope of the review, to do it properly it may even take longer than that to make sure that we gather as much information about the system as we possibly can.

We agree that there have been positive changes to the assessment process. As a result of the consultation, change were made to how the assessment process is carried out to ensure that people who have been impacted by the 20m rule and other such rules have more chance of getting the higher rate than the enhanced rate of mobility. We need to be able to gather the data to find out whether that is actually the case. No matter how you ask the question, you will still get the same answer because the question has not changed.

That is helpful. I will bring in Trisha Hatt and Craig Smith, but I also want to ask about this point. Referring back to the first panel we had regarding terminal illness, does the panel believe that there is scope for recruitment of qualified people to support people with the application process? Specifically, how can organisations such as Macmillan Cancer Support be included in that process?

We have experience of supporting people with a palliative end-of-life care diagnosis, and I agree that the staff need to be supported with training. The training that we provide to the staff we support—benefits advisers and those providing the improving the cancer journey service—helps them to understand the sensitivity, particularly from an end-of-life care position. That will be very important for people now because of the new terminal illness criteria. If Macmillan can support anything there, we are very happy to do so. We have lots of experience in doing that and supporting people.

As daunting as it will be for those with only two years’ experience in social care, the staff need to have the basis for having these conversations. Nurses are trained in communication skills and looking at anticipatory care planning. The social security agency and DWP staff need to have that support to be able to have what are sometimes difficult conversations with people.

I am conscious of time. Can I have brief submissions from Craig Smith and Frank McKillop?

Yes, I will be brief. I do not have a ready answer on how challenging the recruitment will be. We have not seen any scoping from the Scottish Government or the agency about, for example, the numbers of people to carry out consultations and the impact that it will have on the current social care and health workforce. To reiterate the point, it is key that people with the right experience and qualifications are recruited into that role. It goes back to Bill Scott’s point that, although these are very welcome legislative changes, we need to make sure that we are recruiting the right people and that training is there for them. It is a big role for the third sector to support the Scottish social security agency on training for people who are carrying out consultations and local staff who are supporting people to apply.

From our perspective, we regard it as a positive that people who have experience in social care, supporting people who have a learning disability, will be part of the assessment process. I completely take the concerns about ensuring people are properly trained and understand that. A lot of the concern probably comes from the bad experience with PIP assessments. We tend to take a more positive view that someone who has experience of supporting someone with the conditions or the symptoms that are presented will make a fairer assessment than has perhaps been the experience with the consultants who have had the contracts for PIP assessments. We take on board the concerns about ensuring that people are properly trained and qualified, but we consider it to be more positive that people have experience of supporting the people they are seeing.

11:15  

The seldom heard research programme report for end-of-life care that was published a few weeks ago clearly demonstrates the strong support from third sector organisations in supporting staff in training. These staff are skilled, but they also need to have very intense support through training and education. It is not just a one-off; it has to be on-going.

I have one final very brief question, which is predominantly to Keith Park. Do you believe that issues of eligibility, such as the 20m rule, will require reassessment on transfer? Could you give a reason for your thoughts on that, please?

We acknowledge that that is one of the issues in terms of how people move across. There will be a rolled transfer across and I think that that is something that needs to be addressed. I agree that it will develop a two-tier system potentially; people who come across will have that assessment or will have their position reviewed, similar to having a light-touch review of how far they are able to walk. We have an opportunity here to get a world-leading, rights-based social security system that supports people with a disability to live independently.

There may be some teething issues around transfer because of that, but I do not think that we should be beholden to that. We need to try to get this right at the first opportunity because, as we have said throughout the discussions this morning, come 2023 when the review takes place, we will be in a very similar position in that the DWP will have criteria and there will be passported benefits and issues around that. We will not be in a better position to review the eligibility criteria at that stage, so the same issue will be the case then.

I think that there may be some issues around how that works out for reassessment, but it is important that we do it now to make sure that people get the support that they need as quickly as possible.

I can see that Bill Scott concurs with that.

Craig Smith, Frank McKillop, Keith Park, Trisha Hatt and Bill Scott, I thank you all for your time. Yours was insightful evidence that is helpful to our work on ADP. I wish you all a very merry Christmas.

That concludes the public part of this morning’s meeting. Next week, the committee will take evidence on the budget. I invite members to join the private session via the link provided.

11:18 Meeting continued in private until 11:41.