Moving to ADP in Scotland

Introduction

Adult disability payment (ADP), administered and paid by Social Security Scotland (SSS), has replaced personal independence payment (PIP) for people who normally live in Scotland. While it is largely identical to PIP, there are a few notable differences in conditions of entitlement, and the assessment process is markedly different. The structure and rates of benefit are the same.

Since 29 August 2022, ADP has been completely rolled out for new claims and the transfer to ADP of existing PIP and some adult disability living allowance (DLA) claimants who live in Scotland has started in earnest.

There are over 330,000 claimants who are currently on PIP and adult DLA and who live in Scotland, with the bulk of these on PIP. People on adult DLA who are being transferred to ADP are those who were still under 65 on 8 April 2013 – in other words, DLA claimants who would have been invited to claim PIP at some stage, were it not for the introduction of ADP.

This article discusses how this transfer process should work and highlights some issues that may arise for claimants and advisers.

Transferring from PIP to ADP

PIP claimants living in Scotland will transfer to ADP without the need for a new claim or assessment. There will be no reduction in benefit entitlement at the point of transfer and, for a limited number of people, there may be an increase. The transfer process for PIP claimants will start if the claimant reports a change of circumstances to the DWP, if their PIP award is due for review or due to come to an end, or if they are terminally ill.1 Where none of these circumstances apply, people will be transferred at some point as part of the ‘managed transfer’.2 This is expected to be within the next three years.3 If a claimant’s PIP award is due to run out in less than six months and they have not been told they are being transferred to ADP, we suggest that they contact SSS and ask when they are being transferred.

Where a PIP claimant reports a change of circumstances to the DWP and this triggers the transfer to ADP, the claimant will initially be transferred to the equivalent rate of benefit. For example, if they were getting PIP standard rate daily living component and enhanced rate mobility component, they will transfer to ADP standard rate daily living component and enhanced rate mobility component. This is called the ‘transfer determination’. Following this, SSS must ‘as soon as reasonably practicable’ review the ADP award, in light of the reported change of circumstances, and a ‘review determination’ made.4 This also applies if the claimant has notified a change of circumstances to SSS after they have been notified that the transfer process has started.

If the award is increased as a result of the review determination, then entitlement will be increased from the date of the change where it was notified within one month, or where it was notified after one month but within 13 months and there was good reason for late notification. Where neither of these applies, entitlement is increased from the date the change was reported. In any event, the ‘backdating’ cannot stretch back any further than 21 March 2022 (as ADP did not exist before that date). Any PIP paid before the transfer is offset against the arrears of ADP.5

Terminal illness

Where a PIP claimant is transferred to ADP and they are terminally ill, they may be entitled to an increased rate of benefit. There are two possible reasons for this: one relating to the different, and wider, definition of terminal illness in the ADP system and the other relating to the level of entitlement that is triggered by a terminal illness diagnosis. In PIP, there is an automatic entitlement to the enhanced rate of the daily living component, but in ADP there is an automatic entitlement to both components.

If a claimant is transferred from PIP to ADP and it is established that they are terminally ill within the ADP criteria, they will be awarded the enhanced rate of both components from the point of transfer, providing they are under pension age when they became terminally ill. If they were not previously receiving the equivalent level of PIP, there is scope for the increased award to be backdated. Payment of the increased amount should start from the most recent of the following dates:

• 21 March 2022;
• the date the claimant is accepted as terminally ill under the ADP regulations;
• one year before ADP entitlement is decided.

If the claimant has reached pension age when they become terminally ill, they can only be awarded the mobility component if they were already receiving it as part of their PIP award. The level is limited to the level they were getting under PIP and entitlement must be based on the same condition/s that led to the awarding of the PIP component.6

Again, PIP already paid is offset against any arrears of ADP.7

Scheduled PIP reviews

Where a PIP claimant is transferred to ADP because a scheduled review of their PIP award was due to take place, their ADP will be reviewed following transfer. Where this results in an increase to entitlement, this should be backdated to the day the claimant’s award was selected for transfer, or the date they first satisfy the requirements for an increased rate of the daily living or mobility component, whichever is the later.

Transfer from adult DLA to ADP

Adults who are resident in Scotland, currently receive DLA and who were under 65 when PIP was introduced on 8 April 2013 will be transferred to ADP.8 Were it not for the introduction of ADP, people in this situation would, at some stage, have been invited to claim PIP and may or may not have been awarded it. As with PIP to ADP transfers, claimants will be transferred to the equivalent rate of ADP. This raises the question of people currently getting the lowest rate of the care component, which has no equivalent in ADP (or PIP). In this situation, the claimant is transferred to a special ‘transitional rate’ of the daily living component paid at the rate of the lowest rate care component.9

For this group, the transfer process will start if the claimant reports a relevant change of circumstances, their DLA award is due to end or be renewed, or they ask to move to ADP. If none of these applies, then they will be transferred at some point as part of the managed transfer.

As with PIP claimants, there is no requirement for a new claim or assessment at the point of transfer. However, within 12 months of the date DLA claimants are notified that they are being transferred to ADP, they must be reassessed under the ADP rules and a ‘review determination’ made.10 If their rate of benefit is increased, this will be backdated to the start of the ADP award. If the award is reduced, this takes effect from the date of the review determination.11 At the review determination, the claimant can be awarded ADP without the usual restrictions for claimants over pension age, regardless of whether the individual has already reached pension age. For example, a claimant aged 70 who was previously only getting the care component of DLA, could be awarded the mobility component of ADP.12 This mirrors what would have happened had the person been invited to claim PIP.

Terminal illness

Once again, different rules apply if the person is terminally ill, either by reference to the DLA terminal illness criteria or where SSS, before making the transfer determination, becomes aware that they meet the ADP terminal illness criteria. In this situation, the claimant will transfer onto the enhanced rate of both components of ADP, regardless of the rate of their previous DLA award.13 If this provision results in an increase, this should be awarded from the most recent of the following dates:

• 21 March 2022;
• the date the claimant is accepted as terminally ill under the ADP regulations;
• one year before ADP entitlement is decided.

DLA already paid is offset against the arrears of ADP.7

Telling other agencies about ADP award

When a claimant is transferred from PIP or DLA to ADP, they should tell any other relevant benefit agencies about the change. Unfortunately, this does not yet happen automatically on transfer and therefore it is important that the claimant notifies other benefit agencies – HM Revenue and Customs, local authority, DWP – to ensure that entitlement to any associated premiums continues uninterrupted.

Unfinished PIP business

Where a claimant has an award of PIP or DLA and they are transferred to ADP, the award of the existing benefit ends when ADP entitlement starts.14 This will be the situation for the vast majority of claimants being transferred to ADP. However, there will be some people living in Scotland who have unfinished PIP business. For example, what if the claimant has an ongoing challenge to a PIP claim?

If the person does not have an existing award of PIP, but has an outstanding PIP challenge, there is no reason why they cannot pursue the mandatory reconsideration and/or appeal at the same time as making a claim for ADP. If ADP is awarded before the PIP issue is resolved, then any PIP award eventually made would be for a closed period.

If a claimant is transferred from PIP to ADP and their PIP award is retrospectively changed (eg, by revision or appeal), then this can alter the level of ADP that the person should have received from the outset. SSS indicates that this would prompt a ‘determination without application’ which we would expect would result in the ADP award reflecting the increased PIP entitlement.15

Cross-border issues

To be eligible for ADP, the claimant must be ‘ordinarily resident’ in Scotland.16 ‘Ordinarily resident’ is not further defined in the law and SSS guidance says that ordinary residence is established if:

• someone lives in a particular place for the time being;
• their stay is of a short or long duration;
• there is continuity in their stay apart from temporary or occasional absences;
• they have decided to live there voluntarily.

A person can have more than one ordinary residence at the same time if they genuinely live between two addresses. The guidance provides the example of a student having a term-time address in Scotland for study and a family home in England where they spend holidays. In this situation, the guidance says the person should be seen as ordinarily resident in both Scotland and England and could therefore choose to claim ADP. Clearly, if they did so, they could not also be entitled to PIP.17

If a claimant has an award of ADP and moves to another part of the UK, their entitlement to ADP ends 13 weeks later.18 A PIP claimant moving to Scotland will be assessed for ADP without the need to make a claim. Although there is nothing in law which dictates that they must receive an equivalent award, SSS guidance suggests that they will.