Adult disability payment

Jon Shaw looks at the new benefit which will replace personal independence payment (PIP) in Scotland.

For most claimants, the adult disability payment (ADP) entitlement conditions are effectively identical to PIP.1The rules are set out in The Disability Assistance for Working Age People (Scotland) Regulations 2022, No.54 (‘DAWAP(S) Regs’) The structure of two components paid at two rates is the same, as is the system of scoring points for a descriptor within each prescribed daily living and mobility activity. ADP is not means tested or affected by work. A claimant’s needs must be expected to last over a year, unless s/he is terminally ill.

One notable difference is that the ADP ‘past presence’ test is 26 of the last 52 weeks (104 of 156 weeks for PIP). Claimants must normally be ordinarily resident in Scotland to qualify (or able to ‘export’ the daily living component to another European Economic Area (EEA) country and have a ‘genuine and sufficient link’ to Scotland), while the other residence and presence rules are broadly the same as for PIP.2Part 5 DAWAP(S) Regs

Another difference is that 16–17-year-old ADP claimants in legal detention can be paid the mobility component until they turn 18.3Reg 30 DAWAP(S) Regs

There are a number of other minor differences, such as defining the ‘required period’ in weeks as opposed to months. These will be of limited effect in most cases. However, the following differences will be of interest to advisers.

Like child disability payment (CDP), the ADP definition of terminal illness makes no reference to life expectancy. Instead, to qualify via the terminal illness route, a claimant must be certified by a healthcare professional as having a progressive disease likely to result in her/his death. Guidance on making such judgements suggests that the disease must:

New ADP awards on the grounds of terminal illness can be backdated to the later of the date of the judgement, or 26 weeks before the date of claim.5Reg 26(4) and (5) DAWAP(S) Regs – but note that ADP entitlement can never begin before the DAWAP(S) Regs came into force (21 March 2022).

Terminally ill claimants automatically get the enhanced rate of both components, unless they become terminally ill after reaching pension age (when the mobility component cannot begin or increase).6Reg 25 and Sch 2 para 11(1A) and (1B) DAWAP(S) Regs, following amendments to be made from 29 August by reg 19 of The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (draft) (‘DAWAP(TPMA)(S) Regs’). Subject to parliamentary approval.

While most entitlement conditions will not change (except as set out above), the Scottish government intends some important caselaw to apply to the ADP assessment, in spite of PIP Upper Tribunal decisions being not formally binding for ADP. This has been done by amending some of the definitions and descriptors. The differences are covered in full in Chapter 73 of the Welfare Benefits and Tax Credits Handbook 2022-23.

One significant change is the new definition of ‘follow the route of a journey’, which means ‘for an individual to navigate and make their way along a planned route to a planned destination’.7Sch 1 para 1 DAWAP(S) Regs This appears to be aimed at implementing an Upper Tribunal decision that is still the subject of an ongoing corrective exercise for PIP.8MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12. For details of the corrective exercise, see DWP guidance, Overwhelming Psychological Distress and Journeys: changes to PIP law from 28 November 2016, 4 April 2022, available at gov.uk/government/publications/ personal-independence-payment-changes

Another change is a new definition of ‘to an acceptable standard’, which means ‘to a reasonable standard for the activity, taking account of the impact on the individual of carrying out the activity to that standard’.9Reg 7(3)(b) DAWAP(S) Regs Presumably this will include pain caused by carrying out an activity, among other things.10See PS v SSWP (PIP) [2016] UKUT 326 (AAC)

Whatever the intention, at present the applicability of existing PIP Upper Tribunal decisions and the exact meaning of the amended wordings remain to be determined. This will be the role of the Upper Tribunal for Scotland. Advisers can argue that the changed wording does have a meaningful impact on who qualifies for ADP, or that existing PIP caselaw not reflected in the regulations should not be followed.

At the time of writing, ADP claims can only be made by claimants living in Dundee, Perth and Kinross, and the Western Isles. Detailed guidance on how claims are made and assessed, and an example claim form, can be found on the mygov.scot website.11mygov.scot/browse/benefits/adult-disability-payment. See also ‘Claims and getting paid’, Welfare Benefits and Tax Credits Handbook 2022-23, Ch 73 The table below shows the rest of the roll-out for new claims.

Until ADP is introduced in an area, advisers should encourage people to claim PIP if they may be entitled.

It is understood that a limited pilot of the transfer from PIP to ADP will begin from 13 June, for some claimants whose PIP awards are ending and in the first three areas in which ADP can be claimed. At the time of writing, no details of this had been published. From 29 August, the wider transfer of existing PIP and disability living allowance (DLA) claimants to ADP will begin across Scotland.

PIP claimants should be automatically transferred to ADP, either where an award is due to be reviewed or is coming to an end.12How longer term PIP awards will be selected for transfer is not currently clear. This will initially be at the same rate as the existing PIP award, unless the claimant is now terminally ill (in which case ADP can be awarded for a period during which PIP has been paid), or the claimant is 16 or 17 and in legal detention (see above).13Sch 2 paras 9, 11 and 13 DAWAP(S) Regs

PIP claimants who have reported a change in their circumstances to PIP will also be transferred to ADP.14Scottish Parliament Social Security and Social Justice Committee, Official Report, 27 January 2022, available at parliament.scot/chamber-and-committees/official-report This involves an initial determination that awards ADP at the same rate as PIP (unless one of the exceptions above applies). There is then a further ‘review determination’ to take account of the change, as long as the initial determination has not been challenged.

If the review determination increases the ADP award, that determination can take effect from one month (up to 13 months with good reason) before the date the change was reported to the DWP (or 21 March 2022, if later). This acts as an incentive for claimants to continue to report changes in relation to their PIP awards to the DWP.

It is understood that if a PIP award was due to be reviewed, once the claimant has been transferred to ADP there will be a further determination, even if no change has been reported. This will be achieved by setting a very short period before the ADP award must be reviewed.15Reg 47 DAWAP(S) sets no minimum period before an award can be reviewed. This second determination will allow any increased ADP award to begin from the same date a PIP supersession decision following the review would have taken effect. Details will be set out in guidance once the transfer begins.16Email from Scottish government to CPAG, 5 May 2022 17 Parts 2 and 3 DAWAP(TPMA)(S) Regs

At the time of writing, draft regulations provide for the transfer of DLA claimants, who were under 65 on 8 April 2013, directly to ADP. This will also begin from 29 August.17Parts 2 and 3 DAWAP(TPMA)(S) Regs

Most of the rules will be similar to those for transferring PIP claimants (see above). However, the DLA middle and highest rate care components and mobility component will initially transfer to awards of the ADP components paid at the same rate. Those entitled to the lowest rate care component will transfer to a new ‘transitional rate’ of the daily living component (£24.45 a week).

Within one year of the notification of the transfer to ADP beginning, a further determination of ADP entitlement must be carried out under the normal rules (unless the transfer determination has been challenged). Any increased ADP entitlement is effective from the date of transfer, while a decrease takes effect from the date of the determination. So the protection of DLA awards is effectively time limited to one year.

CDP claimants must claim ADP before turning 18, unless they are terminally ill. However, they can choose to do so from age 16 – if they might be better off. As with the DLA to PIP transfer, careful advice will be essential before committing to this course.18For further advice, see ‘Should you claim ADP early?’, Welfare Benefits and Tax Credits Handbook 2022-23, Ch 75 19 Reg 52 DAWAP(S) Regs

PIP claimants who move to Scotland will be automatically transferred to ADP.19Reg 52 DAWAP(S) Regs While the regulations do not require ADP entitlement to be the same as the previous PIP award, guidance suggests that this will normally be the case.20Social Security Scotland, Decision Making Guide: moving from Scotland to another part of the United Kingdom and vice versa, available at socialsecurity.gov.scot/asset- storage/production/downloads/Moving-from-Scotland-to-another-part-of-the-United-Kingdom-and-vice-versa-for- Adult-Disability-Payment.pdf At the time of writing, it is unclear how this will work in practice, as the regulations do not specify a time limit within which ADP entitlement must be determined.

ADP claimants moving out of Scotland must claim PIP. Their ADP entitlement will end 13 weeks after they move (whether the PIP claim has been decided by that point or not).21Reg 53 DAWAP(S) Regs

Note that there is an exception if someone goes into hospital, residential care or legal detention outside Scotland. While payment may be affected after 28 days, entitlement to ADP can continue. The policy intention here presumably recognises that claimants in this position may retain their ‘ordinary residence’ in Scotland.

While ADP will be a passporting benefit in the same ways as PIP, claimants must currently tell all of the relevant government departments (including the DWP and HM Revenue and Customs) about an award of ADP – as they do not have automatic access to this information. It is understood that the Scottish government is working on a way to automate this process.

As noted above, the regulations to transfer DLA claimants to ADP are yet to be approved by the Scottish Parliament.

The same regulations (which will come into force on 29 August, if approved) will also clarify the Scottish government’s policy intention that it is not possible to qualify for the ADP mobility component for the first time after reaching pension age. The regulations also amend some definitions and clarify aspects of the interaction between CDP or short-term assistance and a later award of ADP for the same period.22Reg 19 DAWAP(TPMA)(S) Regs

Looking further ahead, the Scottish government has committed to an independent review of mobility component entitlement in 2022.23See gov.scot/publications/adult-disability-paper-policy- position-paper This appears to be due to pressure in relation to the ‘20 metre rule’ – to get the enhanced rate mobility component due to physical difficulty walking.24This was a focus of the parliamentary scrutiny of the regulations – see note 14. There will then follow a broader review of the ADP entitlement conditions the following year. At the time of writing, the details of these reviews are unclear.