The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023

Amendment of the Disability Assistance for Working Age People (Scotland) Regulations 2022

4.—(1) The Disability Assistance for Working Age People (Scotland) Regulations 2022(1) are amended in accordance with paragraphs (2) to (7).

(2) After regulation 20, (persons residing outside the United Kingdom to whom a relevant EU Regulation applies) insert—

“No entitlement to daily living component where UK is not competent state

20A.   An individual to whom a relevant EU Regulation applies is not entitled to the daily living component for a period unless during that period the United Kingdom is competent for payment of sickness benefits in cash to the individual for the purposes of the relevant EU Regulation in question.”.

(3) In regulation 46 (when a decrease in level or cessation of entitlement takes effect)(2), after paragraph (1)(a) insert—

“(aa) in the case of a determination without application under regulation 48(b), on the date of the individual’s death,”.

(4) In regulation 58 (applications by individuals entitled to Child Disability Payment)(3)—

(a) for paragraph (1), substitute—

“(1) This regulation applies where an individual who is entitled to Child Disability Payment submits the required data in terms of regulation 35(4) on a day on which the individual is still entitled to Child Disability Payment and makes an application for Adult Disability Payment—

(a) on a day on which the individual is still entitled to Child Disability Payment,

(b) on a day on which the individual is no longer entitled to Child Disability Payment, where that day falls within the period of 8 weeks starting on the day on which the individual submitted the required data, or

(c) on a day on which the individual is no longer entitled to Child Disability Payment, where that day is after the expiry of the 8 week period mentioned in sub-paragraph (b) and the Scottish Ministers are satisfied that there is good reason why the application was not made sooner.”.

(b) for paragraph (2), substitute—

“(2) Where, on the basis of that application, the Scottish Ministers make a determination of the individual’s entitlement to Adult Disability Payment (“Adult Disability Payment determination”), and on the date of that determination—

(a) the individual is still entitled to Child Disability Payment, the date on which their entitlement to Adult Disability Payment begins is to be—

(i) the day after the first day on which the individual is to be paid Child Disability Payment after the date of the Adult Disability Payment determination in accordance with regulation 25(b)(i) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, or

(ii) 7 days after the first day on which the individual is to be paid Child Disability Payment after the date of the Adult Disability Payment determination in accordance with regulation 25(b)(ii) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021,

(b) the individual is no longer entitled to Child Disability Payment, the date on which their entitlement to Adult Disability Payment begins is to be the date on which the Scottish Ministers make the Adult Disability Payment determination.”.

(5) In paragraph 8 of Part 3 of schedule 2 (notice of intention to transfer to Adult Disability Payment), for sub-paragraph (3) substitute—

“(3)  Where a notice under sub-paragraph (1) is given—

(a) to a transferring individual who, before a determination is made under paragraph 9(1), ceases to be ordinarily resident in Scotland, or

(b) in error where the individual is neither—

(i) ordinarily resident in Scotland, nor

(ii) an individual who is habitually resident in an EEA state, Gibraltar or Switzerland and has a genuine and sufficient link to Scotland,

the duty on the Scottish Ministers in paragraph 9(1) does not apply.”.

(6) In paragraph 12 of Part 3 of schedule 2 (change of circumstances)(4), for sub-paragraph (1) substitute—

“(1) The Scottish Ministers must make a determination of an individual’s entitlement to Adult Disability Payment (the “review determination”), without receiving an application, where—

(a) the individual, before a determination under paragraph 9(1) (the “transfer determination”) is made, reported a change of circumstances to the Secretary of State for Work and Pensions, which had not been taken into account for the individual’s entitlement to Personal Independence Payment,

(b) the Scottish Ministers have made a transfer determination, and

(c) the individual has not requested a re-determination under section 41 of the 2018 Act, or appealed under section 46 of the 2018 Act, in relation to the transfer determination.”.

(7) In paragraph 15 of Part 3 of schedule 2 (appointees)(5), after sub-paragraph (2) insert—

“(3)  The duty in sub-paragraph (2) does not apply where the Scottish Ministers have already appointed the person mentioned in sub-paragraph (1) to act on behalf of that transferring individual under section 85B of the 2018 Act.”.

(1)

S.S.I. 2022/54.

(2)

Regulation 46 was amended by S.S.I. 2022/217.

(3)

Regulation 58 was amended by S.S.I. 2022/217.

(4)

Paragraph 12 of Part 3 of schedule 2 was amended by S.S.I. 2022/217.

(5)

Paragraph 15 of Part 3 of schedule 2 was amended by S.I. 2021/804.