Getting determinations right

All our decisions should follow the principles set out in the Scottish Government guidance “Right First Time – A practical guidance for public authorities in Scotland to decision-making and the law”.

Additionally, all our decisions have to meet the standards required of administrative decision making. Tribunals are unlikely to overturn decisions that are in line with these standards.

All our decisions should also reflect the principles set out in the Social Security Scotland Charter and the Social Security (Scotland) Act 20181.

1 SS (Scotland) Act 2018, s1.

The standards of a good decision

Decisions must be:

• lawful
• reasonable and rational
• made following a fair procedure
• without influence of conscious or unconscious bias
• compatible with the individual’s existing rights

Lawful decisions

You must make sure that you fully understand the Adult Disability Payment rules and know how to interpret and apply them. These rules, as well as their correct interpretation, are set out in the decision-making guidance.

If you are unsure how to follow a rule, you should always use the decision-making guidance, speak to your team leader, or request a case discussion with the Decision Support Team.

How the rules are interpreted and applied might change due to case law. This can happen when an individual appeals a determination we have made to the Tribunal.

The decision-making guidance will be updated to reflect any relevant case law that you need to know. If you do not follow this updated guidance, the determinations you make will be unlawful.

Reasonable and rational decisions

Decisions must

• be based on all relevant information and
• not be based on information that is irrelevant.

Any information that relates to the case at hand is potentially relevant. Therefore, you should never pre-judge the relevance of a piece of information, for instance, based on its source alone. For example, you shouldn’t disregard a piece of additional supporting information just because it has been produced by a member of the individual’s wider support network, rather than by a professional.

In order to ascertain whether the information at hand is relevant, you should always review the information provided and refer to the guidance to establish the value of the piece of supporting information.

An example of a decision that is based on irrelevant information would be a case manager making a conclusion on the individual’s ability to walk based on facts that relate to how well the individual swims. 

Another example would be a case manager making a conclusion based on facts that come from an outdated medical report relating to a time when the individual’s mobility and daily living needs were different.

Determining if a piece of information is relevant is different to identifying a relevant inconsistency. You should refer to the Understanding and Interpreting Information Decision Making Guidance chapter for more information on identifying relevant inconsistencies and next steps.

Related reading

• Social Security Scotland Charter

Decisions that are made following a fair procedure

Decisions must be made following a fair process. Following the decision making guidance and operational guidance every time ensures that all clients are treated in the same way and that our decisions are consistent. You can only decide two cases differently if there is a rational justification for this outcome.

However, this does not mean that all individuals with the same condition should be given the same award. We take a person-centred and needs-based approach. For more information on our person-centred approach and our needs-based approach, see the Decision-Making Aid.

Decisions must also be taken impartially, meaning that you should not be biased in your decision-making. Even if there is no actual bias, decisions should not have an appearance of bias as it would undermine the credibility of Social Security Scotland.

Bias can play into a determination in different ways. For example:

• you might know the individual whose application you process personally, which is a conflict of interest because it could appear that you cannot make an objective decision – regardless of whether you think you can or not
   
• you might have unconscious bias towards the individual, based on, for example their disability, the fact they have children, their perceived sexual orientation
   
• you must make it known if you encounter a case where there is a conflict of interest. If there is a conflict, you cannot be involved in processing the case.

Decisions made without unconscious bias

Everyone has unconscious biases. These are judgments or assumptions we make about people or situations without realising we’re doing so.

Disabled people are frequently affected by non-disabled people’s biases, and the assumptions they lead others to make and the assumptions they can lead them to make.

In your interactions with disabled people applying for, or receiving, our benefits, you must do your best to identify and counter these biases and assumptions.

Your own unconscious bias might lead you away from making accurate and informed decisions. You might not be immediately aware you’re doing this.

Inaccurate assumptions might arise from:

• prejudice against disabled people or people applying for benefits
• stereotypes about people with particular characteristics 
• thinking you understand a disability because you know someone with the same condition
• the fact an individual isn’t at home when you phone to speak to them
• the way an individual communicates

You must always do your best to:

• recognise when you might be making assumptions
• actively challenge your own biases, and the biases that exist in society in general

Related reading

• Unconscious bias: Imperial College London(link is external) (resource)

Decisions that are compatible with individual’s existing rights

Individuals have certain legal rights which existed before the law on entitlement to ADP was created. For example, the rights provided by the European Convention on Human Rights.

This decision-making guidance, and the law on ADP has been designed to respect these existing legal rights. To make sure that you protect an individual’s legal rights you must follow the decision-making guidance, the operational guidance and the guidance on processing personal information in accordance with the UK GDPR.

Unreasonable and irrational decisions

Even if you consider both:

• all the relevant information
• no irrelevant information 

decisions can still be unreasonable and irrational.

This is the case if the decision you have made is one that no-one acting reasonably could make based on the circumstances of that case. You have to justify all your decisions with reasons which clearly and logically explain how you reached that decision.

Sometimes this reasoning can show a misunderstanding of the relevant rules. In this case, the decision would not be reasonable. This is true even if someone could apply the rules correctly and reach the same outcome.

Since the reasoning would not be clear and logical, the decision is out of step with the principles of decision-making.

For example, a case manager determines that an individual is not entitled to any points under activity 4 on the basis that the individual manages washing and bathing independently. They justify this decision by explaining that the client, who has bilateral hip and knee arthritis, has stated that they can use their walk-in shower independently.

However, the activity covers both the use of shower and bath. The case manager has therefore failed to consider that, due to their condition, it is highly likely that the client will be unable to climb into a bathtub without aids or assistance. This client therefore would not be considered able to perform this activity to an acceptable standard, without the use of aids such as a bath board, non-slip mats and grabrails, or assistance.

Instead of scoring 0 points for this activity, the case manager should have clarified whether the client has adequate range of movement in their hips and knees, along with sufficient power to use aids reliably on their own. This would allow the case manager to score 2 points for this activity. If the client does not have adequate movement range and strength for using aids, the case manager should have determined that it is more likely than not that they need assistance in and out the bath and shower, and should have scored this activity with 3 points.

The reasoning you set out in the decision report for the individual should give them confidence that you have

• applied the correct rules to the facts of the case
• taken all relevant factors into account
• not taken any irrelevant factors into account.

Why are good decisions important?

We are aiming to get all our decisions right first time.

Making appropriate and correct decisions means that

• disabled people receive the right support from first decision, without having to challenge our decision
• we don’t have to review decisions through the re-determinations and appeals process, which saves time and resources for both disabled people and Social Security Scotland
• disabled people’s trust in our core principles – dignity, fairness, and respect – will grow stronger over time
• we can reach some of the most vulnerable people in Scotland and reduce stigma.