Jon Shaw looks at the rules for the latest new Scottish benefit.
Child disability payment (CDP) will be introduced later in 2021. It is a benefit for disabled children, replacing new claims for disability living allowance (DLA) for children living in Scotland. It will be administered by Social Security Scotland. The rules are set by the Scottish Parliament.1See s31 and Sch 5 Social Security (Scotland) Act 2018 (‘the Act’), and The Disability Assistance for Children and Young People (Scotland) Regulations 2021, No.174 (‘DACYP(S) Regs’). All of the information in this article is based on these sources, except where noted below. New claims for DLA in Scotland are abolished by reg 19 of The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021, No.73.
CDP will be introduced for new claims from children living the local authority areas of Perth and Kinross, Dundee and the Western Isles on 26 July 2021, and then across Scotland from 22 November 2021.
Basic entitlement conditions
Most of the entitlement conditions for CDP are the same as for DLA. These rules are set out in summary here, with the most important differences from DLA highlighted. CDP is covered in more detail in Part 12 of the Welfare Benefits and Tax Credits Handbook 2021–22.
Like DLA, CDP consists of separate care and mobility components. It is not means tested, and there are no conditions relating to work or national insurance contributions.
A child under 16 must have additional or different needs compared to a child the same age, (unless s/he is terminally ill or for the higher rate mobility component). Except in the case of terminal illness, a child’s needs must be expected to last for at least 39 weeks (with CDP payable after 13 weeks). The upper age limit to make a new CDP claim is the 16th birthday.
CDP claimants are expected to transfer to adult disability payment (the future Scottish replacement for personal independence payment (PIP)) before turning 18. Again there is an exception to this rule for terminally ill claimants.
Normally a child must be ordinarily resident in Scotland, meet a past presence test of having been in the ‘common travel area’ (the UK, Ireland, Channel Islands and Isle of Man) for 26 of the last 52 weeks (13 weeks for children aged under six months) and not be a ‘person subject to immigration control’. The past presence test does not apply to terminally ill children. Entitlement can continue during the first 13 weeks of a ‘temporary absence’, and in limited situations the care component may be ‘exportable’ for a longer period.
The care component is paid at three rates. A child is entitled to:
•the lowest rate if s/he requires attention for a significant portion of the day;
•the middle rate if s/he requires either frequent attention or continual supervision throughout the day, or prolonged or repeated attention or prolonged or frequent watching over ‘throughout the night’ (see below); or
•the highest rate if s/he meets both a day-time and a night-time condition for the middle rate.
Some children getting renal dialysis automatically qualify for the middle or highest rate. Terminally ill children automatically get the highest rate care component (see below).
Payment of the care component entitlement may be at a nil rate if a child is in residential care or custody. However, payment is not affected if a child is in hospital.
No child can qualify for the mobility component unless s/he could occasionally ‘benefit from assistance for movement’. The higher rate mobility component can begin from the third birthday for a child who:
•is unable or virtually unable to walk;
•is at serious risk from the exertion of walking;
•has no legs or feet (in which case artificial limbs are ignored);
•is either blind and deaf or ‘severely visually impaired’ (see below); or
•gets the highest rate care component and has both a ‘severe mental impairment’ and ‘severe behavioural difficulties’.
The lower rate mobility component is payable from age five for children who need additional guidance and supervision when walking outside on unfamiliar routes.
Incorporation of DLA caselaw
Advisers will be familiar with the volume of caselaw that has interpreted the DLA entitlement conditions over the years. For CDP, the Scottish government has sought to include some of the most important caselaw in the regulations themselves. For example, ‘attention’, ‘supervision’, ‘requires’, ‘day’ and ‘night’ are all defined in relation to the care component. Other terms, such as ‘frequent’ and ‘continual’ are not defined. While DLA caselaw is likely to be persuasive as to the meaning of undefined terms, tribunals will not be bound to follow it.
The clearest difference to the DLA rules relates to terminally ill children. Firstly, the definition of ‘terminally ill’ is itself different. A child will be treated as terminally ill if: ‘… having had regard to … guidance…, it is the clinical judgement of [an appropriate healthcare professional] that the individual has a progressive disease that can reasonably be expected to cause the individual’s death.’ 2Sch 5 para 1(2) of the Act. The words ‘appropriate healthcare professional’ will be inserted by s11(2)(a)(i) Social Security Administration and Tribunal Membership (Scotland) Act 2020 – presumably before CDP is introduced, as reg 15(9) DACYP(S) Regs is drafted as if it was already in force.
In effect, this abolishes the ‘six-month rule’ for terminally ill claimants. An appropriate healthcare professional is a doctor or nurse who is involved in the claimant’s care in a professional capacity. Scotland’s Chief Medical Officer is required to draft the guidance, and much will depend on how it is worded.
While final guidance is yet to be published, a previous draft3The previous draft guidance (January 2019) is available from the Scottish Partnership for Palliative Care website at palliativecarescotland.org.uk/go.php?id=20360
suggested that the clinical judgement might consider whether the condition is at an advanced stage, and the care needs of the claimant. Neither is clear from the statutory definition above. The draft guidance also suggested that children with a DS1500 will be treated as terminally ill, despite the different definition. Where there is no DS1500, a new Benefits Entitlement for Special Rules in Scotland (BASRiS) form will be used.
The CDP rules for terminally ill children are more generous than those for DLA. A terminally ill child will automatically get the higher rate mobility component from her/his third birthday. A claim made on the ground of terminal illness can also be backdated by up to 26 weeks if the judgement that the child is terminally ill was made earlier.
Other differences to the current DLA entitlement rules
The definition of severe visual impairment (to qualify for the higher rate mobility component) is that a child ‘has a severe visual impairment fulfilling the definition given by the Visual Impairment Network for Children and Young People’ (VINCYP). The regulations are footnoted to a VINCYP webpage, which at the time of writing defines ‘visual impairment’, but not ‘severe visual impairment’.4See reg 13(5) DAYCP(S) Regs and vincyp.scot.nhs.uk/vincyp-definition/. At the time of writing, another page on the VINCYP website does give a separate definition of being ‘severely sight impaired’ but this is not the wording used in the law.
This leaves the qualifying condition unclear, and also suggests that it may change without any further regulations (if the definition used by VINCYP does).
While the policy intention is that the care component conditions are the same as for DLA, the drafting of the night-time care conditions is different. Where the DLA rules refer to care needs ‘at night’, the CDP rules use ‘throughout the night’.5Compare s72(1)(c) Social Security Contributions and Benefits Act 1992 with reg 11(1)(d) DACYP(S) Regs.
The Cabinet Secretary explained this provision to the Social Security Committee as follows:
‘[T]here is absolutely no intention to diverge from the existing DLA provision. It is simply a different way of expressing the same principle. We will set out clearly in the guidance for case managers that the rule should apply in the same way as the equivalent DLA provision…’6Scottish Parliament Social Security Committee, Official Report, 4 March 2021 (‘Committee OR’), col 5
However, this guidance will not bind tribunals, who will have to interpret these words for themselves and decide on their meaning if any such cases get to appeal.
While DLA can be awarded for a short fixed period, CDP awards will be longer term. The regulations allow entitlement to be determined again after a set period, if that is considered appropriate. There is a broadpower in the Actto remove an existing CDP award if any requested evidence is not provided within the time allowed
– for example, a form needed to make a new determination of entitlement.
Claiming child disability payment
It should be possible to claim CDP online, by phone, on paper (presumably by posting a form) or face to face.7Committee OR, cols 1-2
Similarly to the current DLA process, a period of six weeks from the initial contact is allowed to complete the claim, which can be extended.
While disability assistance assessments are permitted by the Act (if there is no other practicable way to determine entitlement), a decision has been made to not use compulsory face-to-face assessments for CDP. Instead, the ‘focus will be to help applicants to collect supporting information’.8Committee OR, col 2
The law simply says that a claim must be made in the required way and accompanied by any evidence requested. If these requirements are not met, entitlement to CDP is not deter- mined. The claimant can make a ‘process appeal’ against the decision to reject the claim.9See Ch 79 s 6 Welfare Benefits and Tax Credits Handbook 2021-22 for details of process appeals.
Determinations without application
A ‘determination without application’ is how a CDP award can be altered following a change of circumstances, to recover an overpayment of a Scottish benefit, and in a number of other situations. Effectively. it replaces both supersessions and ‘anytime revisions’ for reserved benefits.
Transferring children from disability living allowance
The transfer of children getting DLA in Scotland to CDP is expected to begin by the end of 2021. The Scottish government hopes to transfer ‘the vast majority’ of children to CDP by December 2022.10Committee OR, col 4
A child who is transferred will be treated as claiming CDP, with a determination of entitlement required within 13 weeks. In most cases, this will be at the same rate as the DLA award, with limited exceptions allowing the CDP award to be increased. If the DLA award was arguably wrong, the claimant can request a redetermination (with a risk to the CDP already awarded).
Moving within the UK
A child getting DLA who moves to Scotland is treated as claiming CDP. However, in this situation the level of award is not automatically the same as for DLA. Any entitlement to CDP will begin the day after the DLA award ends.
If Social Security Scotland is notified that a child getting CDP is moving to another part of the UK, s/he is treated as still ordinarily resident in Scotland for 13 weeks after moving (or 13 weeks from the date of notification, if the move is notified less than 13 weeks after moving). At this point CDP ends, unless the child is in residential care or prison.
Presumably, equivalent changes will be made to the DLA rules before CDP is introduced.