Social Justice and Social Security Committee

Meeting date: Thursday, May 26, 2022

Official Report 575KB pdf

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Subordinate Legislation

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Draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022

Welcome back. We now have a short evidence session with the Scottish Commission on Social Security about its report on the draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022—is that not a mouthful—which were laid in Parliament on 6 May. The regulations deal with the transfer from disability living allowance to adult disability payment for adults of working age and those who have reached pension age since April 2013.

The committee will invite the minister to give evidence on the regulations at a future meeting. This morning, I am pleased to welcome Dr Sally Witcher, who is the chair of SCOSS, and Dr Mark Simpson, who is a member of the commission. I hand over to Dr Witcher to make an opening statement.

Thank you very much, convener. We welcome the opportunity to talk to you about the regulations and our report. The regulations are exceptionally complex, as you will have no doubt noticed. I will, in fact, hand over to Mark Simpson to make an opening statement, as he was the lead drafter of the report. I am best placed to take questions around the wider issues, whereas Mark will field questions that are more detailed or on technical matters. I hope that that is acceptable to the committee.

That is perfect, thank you.

Like Sally Witcher, I am very pleased to be here. This is my first meeting with the committee.

You will know that the social security system at both United Kingdom and devolved level gives various payments that are designed to support people with the extra costs that they incur as a result of disability. I think that all members will be aware that the disability living allowance was the benefit that was in place for working-age people prior to 2013. At that point, a process began to replace the benefit with the personal independence payment at UK level and, in turn, PIP has now been replaced by the adult disability payment in Scotland.

The Scottish Government’s priority and, indeed, its mantra for the introduction of ADP, as with the other new disability benefits, has been to ensure a safe and secure transition of cases from the Department for Work and Pensions to Social Security Scotland. One of the things that has been central to the safe and secure transition project has been the maintenance of parity in the eligibility criteria for ADP and PIP. We have seen the same thing between the child disability payment and DLA, with the exception of people with terminal illness.

That essentially means that, when people transfer from PIP to ADP, they can easily get the same award without any complex reassessment of their entitlement. Where all that breaks down is that ADP is being introduced before migration from DLA to PIP has been completed. That leaves up to 38,000 adults in Scotland who are still in receipt of DLA. That is quite a significant problem from the point of view of the safe and secure transition, because DLA awards are made on a different basis to PIP awards and are therefore made on a different basis to ADP awards.

I will give a couple of examples of that. Many people have received higher awards when they moved from DLA to PIP because it is possible to receive the enhanced rate of the daily living component of PIP without having any overnight care needs, which is in contrast to DLA. On the other hand, quite a lot of people have lost money at that point of transfer because they are able to walk more than 20m, which rules them out of the enhanced rate of the mobility component of PIP, whereas they could have received the equivalent component of DLA.

Even the structure of the two payments differs. There are three rates of the DLA care component but only two rates of the PIP or ADP daily living component. I know that I am labouring this point a wee bit, but the crucial thing about the regulations is that they are necessary only because there is no simple lift and drop of cases from DLA to ADP in the same way that there is from PIP to ADP.

However, the Scottish Government still wants the migration process to be as seamless as possible. That is essentially why the regulations are drafted to envisage an interim award at the point of transfer being made at the same rate as the individual’s previous DLA award. Only once that has been done and a case has been transferred from DWP to Social Security Scotland will a redetermination be made, within one year, to get the individual on to the rate of ADP that matches up with their impairment and its effect on their mobility and their daily living, as opposed to the rate that matches their previous DLA award.

We said in our report that we think that that approach is broadly sensible. We probed the Scottish Government around its confidence that it has competence within the Social Security (Scotland) Act 2018 to award ADP on the basis of a previous award from the DWP rather than on Social Security Scotland’s evaluation of the individual’s impairment and its effect on their life. We were satisfied with the response that we received.

We suggested that the initial award to people who are transferring from the lowest rate care component of DLA be referred to as a transitional rate award rather than a lowest rate award to emphasise the temporary nature of the award. Ultimately, many of the people who receive that will not receive the daily living component at all, once they have been redetermined. We are pleased that the Scottish Government accepted that recommendation. We are also pleased that people with terminal illnesses are exempt from the two-stage process and will receive their full award from the point of transfer.

A number of issues remain. Although it is not stipulated in the regulations that this is the case, the intention is that, for the time being, the process will be used only to transfer people to ADP if they report a change of circumstances to the DWP or if they request to move.

When we received the Scottish Government’s response to our report a couple of weeks ago, there was still no decision on what the process would be for people who fall outside those groups and who are under 74 years old. That could be the same or it could be something different. We know that people who are over 74—that is, people who were 65 or older in 2013—will be on DLA even after their case transfers to Social Security Scotland, so the regulations will—[Inaudible.]

10:45  

That aside, we are expecting that the issues that arise will probably be more process related rather than to do with the wording of the regulations. There is no getting away from the fact that this will be complex. People will be confused about what is going on. A challenge is trying to make people aware that they might be better off on adult disability payment, bearing in mind that those people have not realised at any point in the past nine years that they might be better off on PIP than they are on DLA, so they have not asked for a transfer up to this point. Will they know that it might be in their interests to ask for a transfer now?

Another challenge is ensuring that people understand that their initial award is temporary, especially those I have already mentioned who move from the lowest rate care component through to the transitional rate of the daily living component of ADP. That forms part of a wider issue about how Social Security Scotland will deal with the fact that, for the first time in its existence, it is facing the prospect of having to reduce or terminate significant numbers of existing awards.

Bearing in mind that the loss of a disability benefit has wider consequences for passported entitlements and, in some cases, for exemption from the benefit cap, that could have a significant impact on people’s lives and it will have to be handled carefully. There are communication challenges ahead, and there are relational challenges ahead for—[Inaudible.]—users.

We know that a review of ADP is coming and that there could be potential to kick some of those issues down the line by deferring redetermination—[Inaudible.]—but that is not what the regulations envisage, nor would that approach necessarily be risk free. You might raise expectations that the review would result in certain outcomes that are far from guaranteed. It could also be seen as being unfair to people who have already moved from DLA to PIP and then on to ADP and might have lost money in that process if others were protected from that.

By way of conclusion, moving a relatively small but not insignificant group of people on to ADP was always going to be a much bigger challenge than is the case for those who are already on PIP, no matter how that was approached. We hope that our report has helped to eliminate some of the issues. I am sure that, at the very least, it has eliminated some of the complexity.

As Sally Witcher said, we are happy to take any questions.

Many thanks for that, Mark. As we have only a short amount of time left for this session—Mark has to leave for another meeting—I request that members ask all their questions in one when I come to them in turn. We will start with Paul McLennan, please.

You touched on an issue that I was going to raise about communications. Could you say a little bit around the tailored communications that are needed for the group of people that we are talking about? The most common main disabling conditions for the group are learning difficulties, mental health issues and arthritis. What tailored communications are you thinking about? Do you have any advice, thoughts or concerns about clients accessing advice on whether they would be better off volunteering to move to ADP?

The first part of that is more Sally Witcher’s area of expertise than mine. Do you want to speak to that, Sally, and then I can take the advice issue?

Yes, I will do my best. Mark has already outlined that there are clearly massive complexities and some big differences. There will be certain groups who will need to understand the situation. The areas of difference need to be considered in particular. People who currently get the lowest rate of the care component need to understand the situation. A lot of communication needs to be done on the mobility component and on issues around the enhanced rate.

One concern that people will have is the implications for motability and cars, because we know that losing those has a major impact. It was interesting to see in the Government’s response to our recommendations that it is looking at what it might do on that. It would be good if it could act on that, but it will need to do so fairly quickly.

There are also implications resulting from it not being specified in PIP and ADP what time of day support is required. Again, a bit of a drilling down is needed to identify the people whom that might affect, because DLA specifies night-time care.

There will be groups of people with mental health or cognitive impairments who might now qualify, or are more likely to qualify, for the enhanced rate of ADP.

There are also issues around terminal illness. Obviously, where people have indicated that that is their status, and where that is clear, they will be fast-tracked, which is very welcome. However, there are differences in eligibility around that.

ADP is more generous, so there might be a bit of a question about how you target people who become eligible for ADP. There is a particular challenge about the scope for people to voluntarily request transfer and how they understand the implications of that for them. There is also a challenge about drilling down to the specific groups—some of which are more obvious than others—and identifying third sector organisations and getting them up to speed and primed so that they are able to advise people appropriately.

There are some major issues and real complexities for people transferring who are over pension age. That is another area where some very careful communications will be required.

Carers benefits are passports, depending on eligibility for such benefits. They might well not be affected, but they will certainly have questions about that, so that possibly needs to be considered, too.

People will definitely need support. An independent advocacy service is available in Scotland, so there is a question about how that plays into the process, whether people can have access to that and at what point.

There might also be some questions about DWP’s communications, because its messages will need to match those that Social Security Scotland and the Scottish Government are communicating.

We have raised points before, and we do so again here, about what Social Security Scotland can do for people who lose entitlement. Thought on communications around that needs to be given, too. There are challenges around how you communicate what Social Security Scotland can advise on and what it cannot.

In conclusion, there is a great deal to think about around communications. There are challenges around people who will be transferred anyway, through later managed migration, and who might not realise that that is happening. They need to be made aware of that, so that they do not inadvertently apply and then end up worse off. Basically, there are bunches of people who will be worse off and bunches who will be better off or are likely to be better off. The issue is how you ensure that those people know, in a timely fashion, and receive support around this very complex situation.

Thank you.

Convener, as Sally Witcher has mentioned, a lot of complex work is being undertaken. This might be something that we can discuss later, but I think that we need to keep an eye on things, perhaps get some further written information at an appropriate stage and pick up matters at a later point. It is all very complex.

I thank the witnesses for their attendance this morning. As has been said, many people have seen their awards increase as a result of the transfer to ADP, but we are obviously concerned about those who have lost out or will lose out. Can you expand on the different options that have been presented for transitional protection and on what the challenges might be in providing for such schemes?

The second part of that question is probably the—[Inaudible.]. When you throw any form of transitional protection into the mix, you immediately add complexity and cost in terms of the extra money that is paid in awards and the extra time that Social Security Scotland has to spend dealing with that.

I touched on the question of the forthcoming review in my opening statement. I reiterate that, although we know that the review is coming, we do not know how long it will take, what will be recommended and whether the Scottish Government will accept those recommendations. In some quarters, hopes will be high that, for example, the 20m rule for the mobility component might be relaxed, but that is far from guaranteed.

As with any form of transitional protection, it might be that all that we end up doing is deferring the reductions and the difficult conversations. It is possible to argue that that would not be a bad thing, from the point of view of the individuals who are affected, but, equally, it is possible to argue that that will drag things out and that further delaying the loss of income will increase the shock when it happens.

That said, we have looked at the possibilities in our report. Keeping someone on short-term assistance raises similar issues, but it is worth noting that, if an individual no longer receives any disability benefit and receives only—[Inaudible.]—that might well mean that they also lose passported awards, so it becomes less clear cut—[Inaudible.]. As I said, the regulations do not allow for the “wait and see what the review says” options. There are time limits in that regard for the initial review, and there are also time limits if the determinations are challenged.

That brings us on to other things that we have talked about. The Northern Ireland model is probably harder to replicate in Scotland. In Northern Ireland, people ended up with a PIP award that was lower than the DLA award that they had received previously. They received what was referred to as a supplementary payment, making up 75 per cent of the difference for a year. That aspect could certainly be replicated in Scotland. The next step in Northern Ireland involved compensating for the loss of disability premiums and other benefits, but I suspect that, given that those other low-income benefits are not devolved, it would be harder for the Scottish Government to do that. Nonetheless, Scotland could, in principle, partly emulate that model.

The final option that we talked about was more along the lines of provisional protection for universal credit. It would involve providing the award at the level that it was at at the point of transfer and then not uprating it, so it would gradually fall behind whatever the uprated award at that level would be. If we moved from the enhanced rate to the standard rate of either component, the standard rate would eventually catch up as it was uprated with the level that people were getting. That would allow for a more gradual adjustment to the reduction in income; there would not be the cliff-edge drop in entitlement that would happen otherwise.

We have not gone into great detail on the feasibility of those options in our work. We have just noted the models that are available. As I said, they are not in line with what is currently being proposed, and people would be very naive to think that there would not be challenges associated with them.

11:00  

I thank both witnesses for the evidence that they have given so far. I remind the committee that I am in receipt of PIP and will be transferred at some point. I have a quick question about the backdating of awards, which you have commented on. Could you give us a bit more information on the reduced ability to backdate awards and the financial effect that that will have on some claimants?

The backdating of awards relates to slightly unusual circumstances, because the individuals affected have moved from one agency to another, so the body with responsibility for their award has changed. The circumstances are also unusual in that, for the past two years, the DWP has, in effect, suspended the migration of DLA claimants in Scotland on to PIP, at the request of the Scottish Government. It is possible that some people might have missed out on higher awards as a result of that. For that reason, there is an argument in favour of backdating awards as far as possible. The argument against doing so is that Social Security Scotland is taking on responsibility only at a certain point, and it might be uncomfortable for it to award a higher payment for the period in which the DWP was responsible.

Even though the general migration has been suspended, individuals could still have requested to be transferred to PIP if they thought that they would be better off, although, as Sally Witcher alluded to, it is not necessarily easy for people to catch on to that.

We felt that the issue was worth exploring, but we do not necessarily take a view on what the right decision is. The worst-case scenario is that people have missed out on a higher PIP award for the past two years. However, those individuals could have missed out on that higher award for even longer if the migration to ADP had not been coming up and they had remained on DLA for longer. An optimistic way of looking at the issue is that, in some cases, the move to ADP might be the trigger in people getting a higher award.

Sally Witcher wants to come in.

Actually, I wanted to come in on the previous question. I think that Mark Simpson has covered the issue of backdating as well as I could; I have nothing further to add on that.

If you want to come in quickly on the previous question, that is okay.

I wanted to flag the fact that decisions about options are political decisions; they are not ones that it would necessarily be appropriate for SCOSS to comment on. In addition, we do not have the information. There are things that are ideal that could be desirable in this scenario, but there is a challenge in relation to whether they are realistic.

For example, we do not yet know enough about the timing of the review of ADP to get a sense of what is practical and what is realistic around putting reviews on hold until that point. We do not know enough about the financial implications of the different options or about the delivery consequences. To explore that further requires a different type of investigation, which the committee is probably better placed to undertake than we are. All that we can do in this situation is point out the possibilities that would be likely to require, or would be worthy of, further investigation.

Thank you. We move on to the final two questions.

Good morning—I had to look at the clock to check that it was still morning; it is indeed. Thank you very much for setting out what is a complex situation. I have been trying to get to grips with the information that you provided in advance. Forgive me if some of what I ask about is outwith your remit, or if I have misunderstood.

My first question is a simple one; it is about the 38,000 people in Scotland who are on DLA and have yet to transfer to PIP. Is it your understanding that leaving them to transfer to PIP, as opposed to ADP, would have taken longer than the process that is set out in the regulations?

We have not given an enormous amount of thought to that. It would mean that the timetable would be out of the hands of Social Security Scotland and the Scottish Government and would be dependent on how long the process took the DWP. That process has dragged on. This way, we can say, “Here’s the window when we transfer everyone in Scotland,” and the Scottish Government can have some influence over that.

I do not sense that that has been a huge part of the reasoning. It is more to do with the Scottish Government’s expectation that the process of getting on to ADP will be more claimant friendly than the process of getting on to PIP. That seems to be the motivating factor here, rather than the timing.

In looking at this process, as you have set out in your evidence, there is a bit of policy divergence in that, with ADP, there is the interaction between the 50m rule and the 20m rule. Could any of the solutions that you have set out to address the transfer of individuals on DLA to ADP have been applied to the broader case transfer? It seems that, by definition, there will be two different systems, which will create inequity, in that some people will remain on a system that looks at the 50m rule as opposed to the 20m rule. If we are creating a solution to deal with this particular case load of people, could we not have done the same and extended that approach to others by addressing policies such as the 50m rule and the 20m rule?

If you had done it that way round, it would have looked—[Inaudible.]—same, only flipped in terms of the unequal treatment dimension. If the ADP criteria had more closely matched the DLA criteria, given that most people have already moved from DLA to PIP, a much larger number of people would potentially have to go through the two-stage process, because they would need to be migrated and then redetermined against the new criteria. The process would have been the same, but larger numbers of people would have been affected, so that would have had resource implications. Again, we are getting into the realms of political decisions about how much resource will be put into the transfer.

I have two other brief questions. Could the Scottish Government have created a lower rate of ADP to transfer people on to, in order to mirror the DLA case load?

In effect, that is what it is doing. I presume that you mean retaining that as a permanent feature.

Yes.

That is probably more a question for the review than it is for us. I presume that that would have been feasible technically but, as I said in my opening remarks, the emphasis has been on maintaining parity as a means of achieving safe and secure transfer. That raises the spectre of unequal treatment, because the relatively small group of people who were still on DLA would benefit from that, whereas the people who had already moved to PIP would not. That may or may not be an argument against doing it, but that has been the thinking.

I think that Sally Witcher would like to come in on that.

Briefly, this is where questions around the timing of the review become important. What comes out of that could mean a differently designed ADP. That is where the scope would lie for making such bigger changes. Questions of affordability and other matters relating to deliverability would need to be considered. Depending on the timing, one of the risks is that people could, in effect, be knocked off their entitlement to the enhanced rate, which we would not want to see, and then have it reinstated following a review. It could all start to get a bit messy, but that is where the issue would be positioned.

Technically, the Government can design such a system. Whether it can realistically do that is another matter, because all the constraints that we know about—we have mentioned those around finance, delivery and DWP attitudes towards passporting—could start to creep in, in some cases.

Lurking in the background is whatever comes out of the DWP’s green paper review of the structuring of benefits. Depending on the timing of that, that could throw up a lot of questions about the whole enterprise. One of the options that is flagged in the green paper would involve going down the road of merging universal credit-type benefits with extra cost benefits, which would require a fundamental rethink.

I have one further question, but I will save it and write to the commission.

I think that Mark Simpson wants to come back in before we move on to Miles Briggs.

No—I am okay. I simply wanted to flag the fact that the parity issue is not just about the transfer; it is also about the possible impact on passporting. However, Sally has covered that.

I have a brief question about part 4 of the regulations and whether there are any issues that you want to raise in that regard. Do you think that the ambition of creating a more flexible and person-centred approach will be achieved, or are there other issues that the committee needs to hear about and pursue?

I will do the easy bit on part 4. As we will be talking about that at our next board meeting, we do not have an awful lot to say about it now. The bits that we had sight of recently were dealing with small drafting errors and wee bits of unnecessary duplication. There is a bit more to them now than there was at that stage, but I think we will leave that until another day.

Sally, are you better placed to respond to the other question?

I am not entirely sure that I am, because we will be looking at part 4 at our meeting next week. If we have anything further to add, we will write to the minister and to the committee. Our initial response was very quick, because of the timelines. The points that we raised were immediate responses, but we would like to give the matter a bit more consideration. We may come back to you on that.

You also asked about a person-centred approach. If I have misunderstood what you were getting at, I apologise. Part of the aim here is to ensure that the more supportive, person-centred approach that is required of Social Security Scotland, in line with the expectations in the social security charter, is what people will get. Part of the reason for going down the road that it did was so that people would not be obliged to go through PIP assessments beforehand. That might not be what you were getting at, but it seems to be a slightly different point. I apologise if I have misunderstood.

It is not a problem.

I thank both our witnesses for giving evidence. As always, your report and your evidence will help us in our scrutiny function.

11:14 Meeting continued in private until 11:35.