Seòmar agus comataidhean

Minister for Social Security and Local Government submission of 7 October 2021

PE1854/E: Review the adult disability payment eligibility criteria for people with mobility needs

Outcome of the consultation on draft regulations for Adult Disability Payment

As Members may be aware, the consultation on the draft regulations for Adult Disability Payment (ADP) closed on 15 March 2021. An independent analysis of findings from the consultation was commissioned and the Scottish Government have responded to this. Both of these reports are available online:

• The Adult Disability Payment Consultation Analysis: https://www.gov.scot/publications/adult-disability-payment-analysis-consultation-responses/pages/1/
• Scottish Government response to the consultation analysis report: https://www.gov.scot/publications/adult-disability-payment-response-consultation/

Most respondents to the consultation on ADP supported the changes we are making to the application and decision making process, which are intended to provide disabled people with a fundamentally different experience of accessing disability assistance. However, we acknowledge that several respondents did say they felt that the eligibility criteria were too narrow in their scope and did not adequately reflect the impact of certain disabilities and health conditions, particularly fluctuating conditions; many of these responses specifically focused on the “20 metre rule”.

Moreover, responses sought reassurance that no one would suffer a loss of eligibility as a result of transferring from benefits provided by the Department for Work and Pensions (DWP) to Scottish disability assistance. The strength of feeling in support of a safe and secure transition for current recipients of disability benefits, where payments are protected and clients do not need to reapply, has been consistent. In addition to this consultation, it has been heard through experience panel responses, wider stakeholder feedback and the initial consultation on disability assistance in 2019.

This is why we have committed to prioritising safe and secure transition for current recipients of disability benefits. We have carefully considered the experience of DWP in migrating clients to newly introduced benefits and are persuaded that our approach of providing clients with their existing entitlement is the only way to meet this commitment. Undertaking safe and secure transfer does however require that the eligibility criteria for ADP should be broadly the same as for PIP during this period of transition - a “like for like” benefit. This approach has been well supported, including receiving endorsement from the Disability and Carer Benefits Expert Advisory Group (DACBEAG).

Our response to the consultation, and specifically to the feedback around the eligibility criteria, further set out how the changes we are making will improve the way all of the eligibility criteria are applied, including the “20 metre rule”. These improvements are as follows.

• The reliability criteria, which require a client to be able to carry out activities safely, repeatedly, in an acceptable manner and in a reasonable time, are more fully defined in our legislation. This is intended to ensure they are stringently applied, meaning decisions will take full account of how the client experiences the activity, such as moving around. This change is especially important for considering a client’s fluctuating ability to undertake activities.
• Only one piece of formal supporting information to support the general care and mobility needs described on an application will be required. This differs from the current UK Government system which requires formal supporting information to evidence each and every difficulty that the client reports experiencing. Further, equal consideration will be given to all sources of information, including from a client’s informal support network.
• DWP style assessments will be replaced with consultations; a discussion between a client and a practitioner employed by Social Security Scotland, based on a position of trust.
• There will be no functional examinations as part of a consultation. Currently DWP carry out examinations as part of an assessment, such as musculoskeletal examinations to test limb strength. We do not believe these functional examinations meet our values of fairness, dignity and respect.

Should a practitioner make an informal observation during a consultation they will tell the client, sharing any conclusions drawn from it and give the client, or person accompanying them, the opportunity to respond. This is a significant change to the current UK Government system.

‘Passporting’ and further information on the definition of “like for like”

PIP eligibility provides clients with automatic entitlement to various reserved benefits and premiums, usually referred to as ‘passporting’. Throughout the various consultation activity we have undertaken on disability assistance, we have consistently heard how people’s main concern is having to submit new applications to receive Scottish disability assistance or to maintain other support they are entitled to as a result of their current entitlement. Devolved disability assistance must therefore continue this ‘passporting’ to additional forms of assistance.

DWP have made clear that ‘passporting’ for ADP is subject to delivery of a “like for like” system. Whilst there is not a detailed definition of “like for like”, DWP have, for example, registered concerns about aspects of changes which one might consider to be relatively minor, such as, alterations to the “interpretations” section of the regulations.

We have been able to reach agreement with the DWP that ADP will be treated as a qualifying benefit for reserved premiums and additional payments in the same way as PIP. While welcome, it is important to note this is an interim agreement and is based on the regulations as currently drafted. Therefore, while ‘passporting’ to reserved benefits for ADP clients has been assured in the immediate term, any significant change to the criteria in the ADP regulations could risk undermining this interim agreement and the vitally important immediate security for clients which it provides.

Looking ahead, I have written to the then Minister for Disabled People, Health and Work, requesting the DWP outline their criteria for extending this ‘passporting’ agreement and reaching a more permanent accord. I have requested they specify any particular considerations we need to take into account, for example if any changes were made either to ADP or indeed to PIP in the future, and proposed we work together to realise this ambition. Our bilateral meeting on 14 September included productive conversations on how both UK Government and Scottish Government officials can work together to consider the implications of changes to either devolved or reserved benefits and how parity of entitlement to ‘passported’ benefits can be maintained.

Further rationale for the safe and secure approach

The risks of making changes to eligibility criteria at this stage go beyond ‘passporting’. We have undertaken comprehensive consideration of the broad range of issues around delivery, including managing new applications, the process of case transfer and the risks of unintended consequences arising during the course of such a large-scale project.

The volume projections for expected new applications at the launch of ADP, and therefore all of the resources required for delivery, are based upon PIP as it is currently operating, factoring in a range of contingencies. Any changes made to the PIP eligibility criteria which appear to widen eligibility could have a significant impact on the volume of applications received when ADP is launched, representing a significant challenge to Social Security Scotland’s ability to successfully deliver. Of course if changes are not accurately factored into delivery then this will undoubtedly further impact upon the ability of the agency to deliver.

Central to successful delivery is our approach to case transfer, when case managers will undertake the most complex process Social Security Scotland will ever have delivered. To meet the planned timetable, substantial numbers of PIP clients will have their entitlement moved from DWP to Social Security Scotland every month. It will simply not be feasible for Social Security Scotland to undertake the full process of making a determination for these clients, at the same time as managing all the new applications for assistance, in the initial stages of delivery. This would present risks to the safe delivery of ADP within the timescales set out, which I will not countenance. Importantly, the current approach safeguards against creating a system in which individuals paid by Social Security Scotland are subject to significantly different eligibility requirements from clients whose cases have not yet transferred to the Scottish system.

The challenge of delivering a new form of assistance to such a significant number of clients, while providing them with certainty and a vastly improved experience, led DACBEAG, as indicated above, to support our decision not to make changes to the PIP eligibility criteria during the initial stages of delivery of ADP.

Review of ADP

I am confident, following extensive engagement, consultation and design work that current eligibility and entitlement rules, coupled with the significant changes to the application and decision making process, are the right approach for the launch of ADP. But the journey does not stop here; we will continue to listen to clients and stakeholders, to learn from experience and continue to make improvements. To that end we have already committed to facilitating an independent review of ADP in 2023, one year after delivery has begun, and I can confirm this includes consideration of all the activities, descriptors and supporting criteria.

Whilst that review will commence in 2023, work will begin next year once the ADP regulations are in place. This first stage will provide an opportunity for stakeholders to consider the ADP “moving around” descriptors and propose alternative criteria for considering an individual’s mobility as well as looking at the scope of the entire review. It will also to allow us to agree how data should be gathered so that we can properly understand the impact in practice of the improvements to how eligibility is assessed.

The second stage will commence in summer 2023, once ADP has been delivered nationally for a year and will focus on a consideration of ADP as a whole. This provides the opportunity for clients to experience the new system and the improvements that we have made to the application and decision making processes. Commencing stage 2 at this point will ensure the review relates to how ADP operates in practice, as opposed to simply what is intended.

I am confident that this approach to the review is an appropriate response to the concerns set out in the petition. It ensures we are able to fully explore on a timely basis the range of approaches that may be possible to determine clients’ mobility needs whilst also ensuring that the improvements that we are introducing can be properly assessed and that we are in a position to introduce further changes quickly, on an informed basis and when it is prudent to do so without an unacceptable level of risk to the safe and secure delivery of ADP.

It is important to record that as well as adding significant complexity and risk, making further and more substantive changes to eligibility at this stage would significantly delay the launch of ADP.

In conclusion, the approach we are putting in place at the launch of ADP includes fundamental changes to the application and the decision making process, which will significantly improve the experience disabled people have when accessing disability assistance, including to markedly improve how all decisions but particularly those on mobility are made. We will achieve this level of change whilst also providing safe and secure transition for current PIP clients and safe and secure delivery of the new benefit. The independent review offers the opportunity to consider what further changes and improvements may be needed as we move forward, and to ensure that any changes are fully informed by evidence of the operation of ADP and can be introduced quickly.

I am grateful to the many clients and expert stakeholders who have worked closely with the Scottish Government in the development of ADP to date, whilst recognising the continuing concerns set out in this petition. I am confident that the approach I have set out will create an inclusive system of disability assistance that works for the people of Scotland.

Finally, a copy of my recent letter to MS Society Scotland is included in Annex A as this may be helpful for members of the Committee to note.

I hope this information is helpful to the Committee in its further consideration of the petition.

Annex A

Ministerial Response to MS Society Scotland

01 September 2021

Dear Morna,

Thank you for being a part of the disability benefit roundtable discussions last week and for your organisation’s valuable input to both these discussions and the Adult Disability Payment regulations consultation.

Thank you for raising your organisation’s concerns regarding the 20 metre rule. A great deal of consideration has been given to how we make improvements to the experience of applying for and receiving disability benefits without inadvertently creating risks to clients’ awards and entitlements.

Throughout the devolution of social security, our overriding commitment has been to the safe and secure transfer of disability assistance from the DWP to Social Security Scotland. As you are aware, it is paramount to ensure that clients continue to receive the payments they rely on. DWP have been clear that in order for Adult Disability Payment to be considered a comparable benefit to PIP, it must be delivered on a “like for like” basis. In turn, this will ensure that Scottish clients remain automatically entitled, or ‘passported’, to reserved benefits and premiums.

I want to assure you that the changes we are making to the delivery of Adult Disability Payment, such as replacing assessments with person centred consultations, are intended to address many of your concerns around how the mobility criteria are applied. We have proposed a new way of making entitlement decisions for Adult Disability Payment to ensure that the criteria are fairly applied to all clients. This includes stringently applying the reliability criteria, which require a client to be able to carry out activities safely, repeatedly, in an acceptable manner and in a reasonable time. These criteria mean that decisions will take full account of how the client experiences moving around.

We will aim to collect one piece of supporting information from a formal source, such as from a GP or a support worker. This information only needs to determine that the individual’s condition is consistent with the needs detailed on their application.

This differs from the current system which requires formal supporting information to evidence each and every difficulty that the client reports experiencing. We also know that useful insights can be provided by a client’s informal support network including family, friends, or unpaid carers. Under the Scottish Government’s approach, equal consideration will be given to all sources of information.

We have also removed all functional examinations from the consultation. Currently, DWP carry out examinations as part of an assessment, such as musculoskeletal examinations to test flexibility and strength. We do not believe these functional examinations meet our values of fairness, dignity and respect. Instead, a consultation will be a discussion between a client and a practitioner employed by Social Security Scotland and starting from a position of trust.

I am however acutely aware of the strength of feeling to see changes made to the 20 metre descriptor within the Adult Disability Payment mobility criteria. We have therefore committed to undertaking an independent review of Adult Disability Payment in 2023, one year after delivery has begun. This will enable all of the eligibility criteria to be considered in the round rather than any changes being made in isolation. Social Security Scotland will have had the opportunity to collect valuable data to inform any proposals for change and clients who have experienced applying for Adult Disability Payment will be able to provide their input.

Thank you again for getting in touch to raise your concerns relating to the Adult Disability Payment mobility criteria. I hope that this letter has reassured you that our aim is to build an inclusive Social Security System that works for the people of Scotland.

Yours sincerely,

BEN MACPHERSON