CPAG in Scotland’s response to SCOSS’ request for views – August 2021
CPAG in Scotland welcome the opportunity to provide our views on the draft Disability Assistance for Working Age People (Scotland) Regulations. We are happy for our submission to be published.
We have some comments on the following regulations.
The definition of “aid or appliance” in Reg 2 includes in sub-paragraph (a)(i) a definition that is not found in the personal independence payment (PIP) regulations. This seems at best superfluous as the descriptors that score points for the use of aids and appliances include the word ‘needs’ – making this addition unnecessary. At worst it could potentially be read as an additional test beyond ‘needs’ and therefore make the test harder to meet than the equivalent PIP test.
Entitlement to other benefits
It is important that, as armed forces independence payment (AFIP) currently overlaps with PIP (allowing a claimant to be entitled to both benefits, unlike ADP), that AFIP also passports individuals to any additional entitlements that adult disability payment (ADP) does.
Determination of ability to carry out activities
It would be useful if the definition of ‘to an acceptable standard’ in Reg 7(4)(b) was brought in line with the current PIP case law, by adding the level of a pain that an individual experiences as a consideration.
The relevant date: Adult Disability Payment after an interval
It is not clear why child disability payment (CDP) is not also included in the list of benefits in Reg 14(1)(b). A more straightforward way to achieve what appears to be the aim of Reg 14 would be simply to lift the past period part of the required period test for those who were previously entitled to an award of ADP, disability living allowance (DLA) or PIP (or CDP) within the past two years. As the regulation is currently drafted, it is not clear that, for example, the care component of DLA is the ‘same component’ as the daily living component of ADP. Even if it is accepted as such, the current drafting requires the ADP decision maker to consider the ADP entitlement conditions for a period up to two years in the past during which the individual was getting, in the case of DLA care component, a benefit with completely different entitlement conditions. Reg 14(4)(b) also seems to exclude, for example, people who were previous entitled to PIP, DLA or ADP but were outside the UK, such as individuals who were in a EEA state and entitled to the benefit under the co-ordination rules.
Temporary Absence from the common travel area
It is unclear why the rules about advance claims for those that do not yet meet the residence and presence conditions (Reg 16(4)) are included under the temporary absence rules.
Residence and presence conditions
The rules for serving members of Her Majesty’s forces, civil servants and their family members and aircraft workers, mariners and individuals working in continental shelf operations are in some respects more generous than the rules for PIP, and in some respects less generous. There is also a lack of clarity about what would happen when such individuals return to Scotland.
Reg 17(1) treats serving members of Her Majesty’s forces, civil servants and their family members as present and resident in Scotland and Reg 17(2) exempts them from the past presence test (PPT) altogether. This is different from the PIP rule, which does not mention civil servants, and treats such individuals as present in the UK, rather than exempting them from the tests entirely.
Reg 18(1) exempts aircraft workers, mariners and individuals working in continental shelf operations from the presence and past presence requirements only, but does not treat them as ordinarily resident or habitually resident. This is again more generous than PIP in that there is an exemption from the PPT, but not as generous as the provisions for Her Majesty’s forces, civil servants and their family members as they still need to meet residence condition (although that seems not likely to be an issue in most cases).
However neither regulation treats the persons covered as present for the purpose of the test in Reg 15(1)(e) but rather exempts them from that test entirely. This creates a problem when Reg 17 or Reg 18 no longer applies. The regulations seem to allow these individuals to get ADP whilst abroad, but create a gap in entitlement on their return, as those periods do not count as presence in the common travel area. As soon as Reg 17 or Reg 18 no longer applies to an individual, they must immediately meet the condition in Reg 15(1)(e) and in many cases will not do so, having been abroad for over 26 weeks in the previous year.
Reg 15(1)(c) makes no reference to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 which allow certain persons subject to immigration control to get PIP (as well as DLA and attendance allowance). Whilst amending those regulations is of course a matter for the UK government, the current drafting excludes some groups from ADP who can get PIP. It is not clear if this is intentional or not.
Entitlement under rules relating to age
Under Part 6 there appears to be no provision to transfer those individuals who are over pension age from PIP to ADP.
Effect of time spent in care homes, hospital and legal detention
Part 8 and Reg 50 do not make explicit that there is a requirement to make a determination of entitlement when the amount of a component of ADP that is paid reduces to £0 because of time spent in a care home, hospital or in detention. This will only be required if such a change is something that the individual is required to notify. If there is no determination then the individual will not have a right to request a redetermination, or subsequently appeal, such a decision. It would be helpful to clarify if there is an intention to always make a further determination of entitlement when an individual enters or leaves one of these situations.
Effect of reaching 18 years of age while in hospital
Reg 33 (1)(c) is less generous than the corresponding provisions in PIP (see Reg 29(3) of the The Social Security (Personal Independence Payment) Regulations 2013) as payment of ADP stops if an individual turns 18 whilst a hospital in-patient. Payment of PIP continues for the remainder of that period in hospital.
Amount and form of Adult Disability Payment
Reg 35(4)(b) refers to the Social Security Act 1975, rather than the Section 104 of the Social Security Contributions and Benefits Act 1992, which has replaced it. As the regulations are drafted, ADP overlaps with industrial injuries benefits for constant attendance but not constant attendance allowance in a war disablement pensions (which overlaps with the PIP daily living component.) It is unclear if this is intentional or not.
When an application is to be treated as made and beginning of entitlement to assistance
Reg 36 is less generous than the corresponding provisions for PIP (see Reg 33 of The Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013) as they only allow an advance claim if the qualifying conditions will be satisfied within 13 weeks of the date of the claim, rather than 3 months from the date of decision, as is the case for PIP.
Circumstances in which assistance may be suspended
In Reg 39(2)(b) the reference to section 85A of the Act appears to be superfluous as a child is defined as someone who is under 16 (see Section 85A(7)). As the minimum age for entitlement to ADP is 16, there will never be such an appointment in place.
Right to review suspension
In Reg 40, unlike CDP and Scottish child payment (see the proposed Reg 26B of the CDP regulations, for example), there is no time limit for the review of a decision to suspend payments to take place. In common with the relevant provisions for CDP and Scottish child payment there is no requirement to notify the outcome of a review so an individual may not be aware of how and when to take the matter further if they are not satisfied with the outcome. There are no appeal rights so the only further action would be to submit a complaint or to request a judicial review.
There is no requirement to notify an individual that suspension of assistance has ended unless a determination of entitlement is made. Presumably the individual will start to receive payments again, but notification would be advisable to retain transparency and for the avoidance of any doubt.
Reg 39(2)(a) specifies that assistance may be suspended if the individual has failed to provide specified information requested by Scottish Ministers within a specified time period of at least 14 days (Reg 44).
- In theory this covers a request for any information even if is not relevant to determining entitlement. There should be a distinction in the regulations that allows for assistance to continue if the information requested is not relevant to determining entitlement.
- 14 days is too short a minimum time period in which to request evidence. Reg 36(4) allows an individual who is making a new claim eight weeks to provide the required information. We would expect this eight-week period to also apply to requests for information when Scottish Ministers want to make a new determination in relation to an existing award.
- Reg 36(6) allows an individual to retain the original date of claim even if information in relation to the application is not provided until after the eight weeks following the claim so long as it is determined that there was ‘good reason.’ We would expect extension for good reason to be carried through to these regulations.
- Failure to provide information may be an indicator of a need for support. Under no circumstances should benefit be ended following suspension, without robust safeguarding procedures being carried out to ensure the ongoing safety and wellbeing of the individual.
When an increase/decrease in level of entitlement or payment takes effect
Reg 46(1)(c) contains the phrase ‘or on error within the meaning of regulation 52 (determination following error – overpayments).,’ As Reg 46 concerns increases in entitlement it is not clear the purpose of this. The same applies to Reg 47(1)(c).
Individuals in respect of whom Personal Independence Payment is paid in another part of the United Kingdom immediately before moving to Scotland
Reg 57(1) allows for an award of ADP to be paid when an individual moves to Scotland. We would like to see clarity around what would happen if an individual claims PIP but moves to Scotland prior to a decision on the PIP claim being made.
Reg 58(4)(a) and (4)(c) currently appear to make identical provision. If the intention is that sub-paragraph (4)(a) only applies if the individual tells the Scottish Ministers of their intention to move before leaving Scotland, then this could helpfully be clarified. Otherwise it appears that it could be removed entirely without changing the meaning of the regulation as a whole.
Reg 62(2)(b) refers to the wrong set of reserved claims and payment regulations. The reference should instead be to Reg 31 of The Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013.
SCHEDULE 1 ADULT DISABILITY ASSISTANCE DETERMINATION
PART 1 Interpretation
We welcome the fact that the definitions in Part 1 of Sch 1 largely follow the current law for PIP, but there are a couple of definitions that could be amended to better match the current PIP caselaw.
The definition of ‘assistance’ could make it clear that intervention is for part and not all of an activity as the Upper Tribunal made clear in SSWP v GM (PIP)  UKUT 268 (AAC).
The definition of ‘follow the route of a journey’ could be read to mean that ‘navigate’ and ‘make their way along the route’ are two separate tests and help must be needed with both. Current caselaw (for example MH v SSWP (PIP)  UKUT 351 (AAC);  AACR 12) suggests that making the way along a planned route includes navigation so ‘navigate and’ could be removed from the definition for clarity, or the ‘and’ could be replaced by ‘or’.
In relation to the definitions of ‘medication’ and ‘monitor a health condition’, the ‘Health Professions Council’ has now been replaced by the Health and Care Professionals Council.
The definition of ‘prompting’ – this could be amended to clarify that the person doing the promoting does not need to be physically present.
This provides the descriptors for the daily living component. Again we welcome the approach to ensure, where possible, the regulations match the current law on PIP.
Descriptors 3(c) – (f) could be amended to clarify that, as with PIP, it is the length of time that help is needed for, rather than the length of time that the therapy takes, that is relevant.
This provides the descriptors for the mobility component. Again we welcome the approach to ensure, where possible, the regulations match the current law on PIP. There have been slight changes to the descriptors 1b and 1e, and 2 c and d.
The insertion of ‘presence’ in 1b could cause confusion, as it is not clear how this interacts with the requirements of 1d and 1f to be with ‘another person’. It potentially clarifies that presence is not required for prompting, which would match the current situation (for example this interpretation is strongly implied in SSWP v MMcK (PIP)  CSIH 57 and the suggestion was not disapproved in the later decision of the Supreme Court in the same case). But this applies to prompting more generally so, as suggested above, amending the definition of ‘prompting’ would be a better way to incorporate this principle than making changes to 1b.
The insertion of the phrase ‘at all’ in 1e is more restrictive than the comparable descriptor for PIP. It also runs counter the current PIP caselaw (for example TR v SSWP (PIP)  UKUT 626 (AAC);  AACR 23), and the welcome provision of Reg 10(2)(a) that a descriptor is satisfied on a day if it has been satisfied for any part of that day.
The insertion of ‘either aided or unaided’ at the end of descriptors 2c and 2d creates uncertainty, as the descriptors require the individual either to be unaided (2c) or aided (2d).
Entitlement to short-term assistance
Schedule 2 Paragraph (1)(2)(a) allows short-term assistance to be paid if a First-tier Tribunal sets aside a decision after a review, but not if it is quashed and readmitted after an appeal to the Upper Tribunal. As these have the same outcome, that the First-tier Tribunal will re-decide the appeal, it seems in the interest of fairness to allow short-term assistance to be paid in both instances. Failure to do so could inadvertently discourage individuals from appealing to the Upper Tribunal.
For further information on this response, please contact
Ed Pybus (Policy and Parliamentary Officer)