The Disability Assistance for Working Age People (Scotland) Regulations 2022

Regulation 2

SCHEDULE 1 S ADULT DISABILITY PAYMENT DETERMINATION

PART 1 S Interpretation

1.  In this schedule— S

“aided” means with—

(a)

the use of an aid or appliance, or

(b)

supervision, prompting or assistance,

“assistance” means physical intervention by another person and does not include speech,

“assistance dog” means a dog trained to guide or assist a person with a sensory impairment,

“basic verbal information” means information in the individual’s native language conveyed verbally in a simple sentence and excludes information that is not communicated orally or received aurally,

“basic written information” means signs, symbols and dates written or printed in standard size text in the individual’s native language,

“bathe” includes get into or out of an unadapted bath or shower,

“communication support” means support from a person trained or experienced in communicating with people in general, or the individual in particular, with specific communication needs, including interpreting verbal information into a non-verbal form and vice versa,

“complex budgeting decisions” means decisions involving—

(a)

calculating household and personal budgets,

(b)

managing and paying bills, and

(c)

planning future purchases,

“complex verbal information” means information in the individual’s native language conveyed verbally in either more than one sentence or one complicated sentence and excludes information that is not communicated orally or received aurally,

“complex written information” means more than one sentence of written or printed standard size text in the individual’s native language,

“cook” means heat food at or above waist height,

“dress” includes put on socks and shoes,

“engage socially” means—

(a)

interact with others in a contextually and socially appropriate manner,

(b)

understand body language, and

(c)

establish relationships,

“follow the route of a journey” means for an individual to navigate and make their way along a planned route to a planned destination,

“manage incontinence” means manage involuntary evacuation of the bowel or bladder, including using a collecting device or self-catheterisation, and clean oneself afterwards,

“manage medication” means take medication which improves the individual’s symptoms or health, or, take medication where failure to do so is likely to result in a deterioration in the individual’s health,

“manage therapy” means undertake therapy which improves the individual’s symptoms or health, or, undertake therapy where a failure to do so is likely to result in a deterioration in the individual’s health,

“medication” means medication to be taken at home which is prescribed or recommended by a—

(a)

registered—

(i)

medical practitioner,

(ii)

nurse,

(iii)

pharmacist, or

(b)

health professional who is registered by the Health and Care Professions Council,

“monitor a health condition” means—

(a)

detect significant changes in the individual’s health condition which are likely to lead to a deterioration in the individual’s health, and

(b)

take action advised by a—

(i)

registered medical practitioner,

(ii)

registered nurse, or

(iii)

health professional who is registered by the Health and Care Professions Council,

without which the individual’s health is likely to deteriorate,

“orientation aid” means a specialist aid designed to assist disabled people to follow a route safely,

“prepare”, in the context of food, means make food ready for cooking or eating,

“prompting” means reminding, encouraging or explaining by another person,

“psychological distress” means distress related to an enduring mental condition or an intellectual or cognitive impairment,

“read” includes read signs, symbols and words but does not include read Braille,

“simple budgeting decisions” means decisions involving—

(a)

calculating the cost of goods, and

(b)

calculating change required after a purchase,

“simple meal” means a cooked one-course meal for one using fresh ingredients,

“social support” means support from a person trained or experienced in assisting people in general, or the individual in particular, to engage in social situations,

“stand” means stand upright with at least one biological foot on the ground,

“supervision” means the continuous presence of another person for the purpose of ensuring an individual’s safety,

“take nutrition” means—

(a)

cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink, or

(b)

ingest nutrition by using a therapeutic source,

“therapeutic source” means parenteral or enteral tube feeding, using a rate-limiting device such as a delivery system or feed pump,

“therapy” means therapy to be undertaken at home which is prescribed or recommended by a—

(a)

registered—

(i)

medical practitioner,

(ii)

nurse, or

(iii)

pharmacist, or

(b)

health professional regulated by Health and Care Professions Council,

but does not include taking or applying, or otherwise receiving or administering, medication (whether orally, topically or by any other means), or any action which, in the individual’s case, falls within the definition of “monitor a health condition”,

“toilet needs” means—

(a)

getting on and off an unadapted toilet,

(b)

evacuating the bladder and bowel, and

(c)

cleaning oneself afterwards,

“unaided” means without—

(a)

the use or aid of an appliance, or

(b)

supervision, prompting or assistance,

“undress” includes take off socks and shoes.

Commencement Information

I1 Sch. 1 para. 1 in force at 21.3.2022, see reg. 1

PART 2 S Daily Living Activities

Commencement Information

I2 Sch. 1 Pt. 2 in force at 21.3.2022, see reg. 1

Column 1 Activity	Column 2 Descriptors	Column 3 Points
1. Preparing food.	a. Can prepare and cook a simple meal unaided.	0
	b. Needs to use an aid or appliance to be able to either prepare or cook a simple meal.	2
	c. Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave.	2
	d. Needs prompting to be able to either prepare or cook a simple meal.	2
	e. Needs supervision or assistance to either prepare or cook a simple meal.	4
	f. Cannot prepare and cook food.	8
2. Taking nutrition.	a. Can take nutrition unaided.	0
	b. Needs— (i) to use an aid or appliance to be able to take nutrition, or (ii) supervision to be able to take nutrition, or (iii) assistance to be able to cut up food.	2
	c. Needs a therapeutic source to be able to take nutrition.	2
	d. Needs prompting to be able to take nutrition.	4
	e. Needs assistance to be able to manage a therapeutic source to take nutrition.	6
	f. Cannot convey food and drink to their mouth and needs another person to do so.	10
3. Managing therapy or monitoring a health condition.	a. Either— (i) does not receive medication or therapy or need to monitor a health condition, or (ii) can manage medication or therapy or monitor a health condition unaided.	0
	b. Needs any one or more of the following— (i) to use an aid or appliance to be able to manage medication, (ii) supervision, prompting or assistance to be able to manage medication, (iii) supervision, prompting or assistance to be able to monitor a health condition.	1
	c. Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week.	2
	d. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.	4
	e. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 7 but no more than 14 hours a week.	6
	f. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 14 hours a week.	8
4. Washing and bathing.	a. Can wash and bathe unaided.	0
	b. Needs to use an aid or appliance to be able to wash or bathe.	2
	c. Needs supervision or prompting to be able to wash or bathe.	2
	d. Needs assistance to be able to wash either their hair or body below the waist.	2
	e. Needs assistance to be able to get in or out of an unadapted bath or shower.	3
	f. Needs assistance to be able to wash their body between the shoulders and waist.	4
	g. Cannot wash and bathe at all and needs another person to wash their entire body.	8
5. Managing toilet needs or incontinence.	a. Can manage toilet needs or incontinence unaided.	0
	b. Needs to use an aid or appliance to be able to manage toilet needs or incontinence.	2
	c. Needs supervision or prompting to be able to manage toilet needs.	2
	d. Needs assistance to be able to manage toilet needs.	4
	e. Needs assistance to be able to manage incontinence of either bladder or bowel.	6
	f. Needs assistance to be able to manage incontinence of both bladder and bowel.	8
6. Dressing and undressing.	a. Can dress and undress unaided.	0
	b. Needs to use an aid or appliance to be able to dress or undress.	2
	c. Needs either— (i) prompting to be able to dress, undress or determine appropriate circumstances for remaining clothed, or (ii) prompting or assistance to be able to select appropriate clothing.	2
	d. Needs assistance to be able to dress or undress their lower body.	2
	e. Needs assistance to be able to dress or undress their upper body.	4
	f. Cannot dress or undress at all.	8
7. Communicating verbally.	a. Can express and understand basic and complex verbal information unaided.	0
	b. Needs to use an aid or appliance to be able to speak or hear.	2
	c. Needs communication support to be able to express or understand complex verbal information.	4
	d. Needs communication support to be able to express or understand basic verbal information.	8
	e. Cannot express or understand verbal information at all even with communication support.	12
8. Reading and understanding signs, symbols and words.	a. Can read and understand basic and complex written information either unaided or using spectacles or contact lenses.	0
	b. Needs to use an aid or appliance, other than spectacles or contact lenses, to be able to read or understand either basic or complex written information.	2
	c. Needs prompting to be able to read or understand complex written information.	2
	d. Needs prompting to be able to read or understand basic written information.	4
	e. Cannot read or understand signs, symbols or words at all.	8
9. Engaging socially with other people face to face.	a. Can engage socially with other people unaided.	0
	b. Needs prompting to be able to engage socially with other people.	2
	c. Needs social support to be able to engage socially with other people.	4
	d. Cannot engage socially with other people due to such engagement causing either— (i) overwhelming psychological distress to the individual, or (ii) the individual to exhibit behaviour which would result in substantial risk of harm to the individual or another person.	8
10. Making budgeting decisions.	a. Can manage complex budgeting decisions unaided.	0
	b. Needs prompting or assistance to be able to make complex budgeting decisions.	2
	c. Needs prompting or assistance to be able to make simple budgeting decisions.	4
	d. Cannot make any budgeting decisions at all.	6

PART 3 S Mobility Activities

Commencement Information

I3 Sch. 1 Pt. 3 in force at 21.3.2022, see reg. 1

Column 1 Activity	Column 2 Descriptors	Column 3 Points
1. Planning and following journeys.	a. Can plan and follow the route of a journey unaided.	0
	b. Needs the prompting of another person to be able to undertake any journey to avoid overwhelming psychological distress to the individual.	4
	c. Cannot plan the route of a journey.	8
	d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.	10
	e. Cannot undertake any journey because it would cause overwhelming psychological distress to the individual.	10
	f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.	12
2. Moving around.	a. Can stand and then move more than 200 metres, either aided or unaided.	0
	b. Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided.	4
	c. Can stand and then move unaided more than 20 metres but no more than 50 metres either aided or unaided.	8
	d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres, either aided or unaided.	10
	e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided.	12
	f. Cannot, either aided or unaided,— (i) stand, or (ii) move more than 1 metre.	12

SCHEDULE 2 S

Regulation 2

PART 1 S Short-term assistance

Entitlement to short-term assistance S

1.—(1) Subject to sub-paragraph (2), an individual who is, or was, entitled to Adult Disability Payment under a determination made on the basis that the individual has ongoing entitlement is entitled to short-term assistance where—

(a) a determination of the individual’s entitlement to Adult Disability Payment (“earlier determination”) has been superseded by a subsequent determination (“subsequent determination”) which has the effect that the individual is—

(i) no longer entitled to Adult Disability Payment, or

(ii) entitled to a lower amount of Adult Disability Payment,

(b) the individual’s entitlement to Adult Disability Payment is under review within the meaning of—

(i) paragraph 1(2) of schedule 10 of the 2018 Act(1), or

(ii) sub-paragraph (2), and

(c) the individual—

(i) continues to meet the conditions as to residence and presence set out in Part 5, or

(ii) has transferred to become resident in another part of the United Kingdom, and the matter under review is the determination of entitlement for the 13-week period beginning in accordance with regulation 53(4) (individuals in respect of whom Adult Disability Payment is paid at the time of moving to another part of the United Kingdom).

(2) An individual’s entitlement to Adult Disability Payment is under review in terms of sub-paragraph (1)(b)(ii) if—

(a) a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the subsequent determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), is set aside after a review under section 43(2) of the Tribunals (Scotland) Act 2014(2) (“the 2014 Act”), and

(b) the First-tier Tribunal for Scotland decide not to uphold a determination of an individual’s entitlement to Adult Disability Payment in an appeal under section 46 of the 2018 Act and the First-tier Tribunal for Scotland are to make a determination of the individual’s entitlement to Adult Disability Payment under section 49 of the 2018 Act.

(3) Where—

(a) an individual’s entitlement to Adult Disability Payment is set aside after a review in terms of sub-paragraph (2)(a), and

(b) the individual had previously been awarded short-term assistance on the basis that their entitlement to Adult Disability Payment was under review by the First-tier Tribunal prior to it making the decision that has been set aside,

the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

(4) Where—

(a) the First-tier Tribunal for Scotland set aside a decision by the Scottish Ministers not to accept a request for a re-determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), and

(b) the Scottish Ministers had previously determined, pursuant to an application made by the individual, that the individual was not entitled to short-term assistance on the basis that the subsequent determination referred to in sub-paragraph (1)(a) was not under review,

the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

(5) An individual is not entitled to short-term assistance where the individual is no longer entitled to Adult Disability Payment as a result of a subsequent determination made under regulation 48(b) (determination following change of circumstances etc.).

(6) An individual to whom regulation 27(2) (effect of admission to a care home on ongoing entitlement to daily living component), regulation 28(2) (effect of admission to hospital on ongoing entitlement to Adult Disability Payment), regulation 30(3) (effect of legal detention on ongoing entitlement to daily living component), or regulation 32(2) (entitlement beginning while in alternative accommodation) applies is not entitled to short-term assistance in respect of the component or components for which the value is to be £0 under those regulations.

(7) Where the Scottish Ministers have made a determination under section 37 of the 2018 Act (duty to make determination) that an individual is entitled to short-term assistance, entitlement to short-term assistance begins—

(a) where a request is made under section 41 of the 2018 Act (right to request re-determination) for a re-determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), on the day that request is made,

(b) where a notice of appeal is submitted under section 47 of the 2018 Act (initiating an appeal) against the determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), on the day that request is made,

(c) where a decision of the Scottish Ministers is made not to accept a request for a re-determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), on the day that decision is set aside by the First-tier Tribunal for Scotland,

(d) where a request is made under section 48(1)(b) of the 2018 Act (deadline for appealing) for permission to appeal the determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), on the day that request is made, or

(e) where a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the subsequent determination of the individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a), is set aside after a review under section 43(2) of the 2014 Act (review of decisions) and the First-tier Tribunal for Scotland are to make a determination of the individual’s entitlement to Adult Disability Payment under section 49 of the 2018 Act, on the day that the decision is set aside.

(8) Regulation 54 (periods in respect of a re-determination request) applies to short-term assistance in the same way as it applies to Adult Disability Payment.

Commencement Information

I4 Sch. 2 para. 1 in force at 21.3.2022, see reg. 1

Value and form S

2.—(1) The value of short-term assistance payable is to be the difference between the amount of Adult Disability Payment to which the individual was entitled under the earlier determination mentioned in paragraph 1(1)(a), and the amount of Adult Disability Payment the individual is entitled to under the subsequent determination mentioned in paragraph 1(1)(a).

(2) The form in which the short-term assistance is to be given is to be the same as the form in which Adult Disability Payment was given under the earlier determination.

(3) Where the mobility component was being paid by the Scottish Ministers to an authorised provider of vehicles for persons with disabilities in accordance with regulation 55(1) (payment of mobility component to authorised provider of vehicles for individuals with disabilities) on the day before an individual’s entitlement to the mobility component ended as a result of a subsequent determination mentioned in paragraph 1(1)(a)—

(a) the amount of short-term assistance that is payable in respect of the mobility component may be paid by the Scottish Ministers to the authorised provider, and

(b) paragraphs (1) and (2) of regulation 55 apply to the payment of short-term assistance as they had applied to the payment of mobility component prior to the individual’s entitlement ending.

(4) Regulations 44 (form of payment - giving Adult Disability Payment by way of deduction), 49 (determination following official error – underpayments), 50 (determination following error – overpayments) and 51 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Adult Disability Payment.

Commencement Information

I5 Sch. 2 para. 2 in force at 21.3.2022, see reg. 1

End of entitlement S

3.—(1) When an individual’s entitlement to short-term assistance is to end under sub-paragraph (2), the Scottish Ministers are to make a determination without application.

(2) Entitlement to short-term assistance ends on the day—

(a) a determination of an individual’s entitlement to short-term assistance is cancelled under section 26(2) of the 2018 Act (individual’s right to stop receiving assistance),

(b) a re-determination of an individual’s entitlement to Adult Disability Payment is made by the Scottish Ministers under section 43 of the 2018 Act (duty to re-determine),

(c) the First-tier Tribunal for Scotland makes a determination under section 49 of the 2018 Act (First-tier Tribunal’s power to determine entitlement) in relation to the subsequent determination of the individual’s entitlement to Adult Disability Payment mentioned in paragraph 1(1)(a),

(d) that the First-tier Tribunal for Scotland makes a determination to refuse permission under section 48(1)(b) of the 2018 Act (deadline for appealing) to bring an appeal against the subsequent determination of the individual’s entitlement to Adult Disability Payment mentioned in paragraph 1(1)(a), or

(e) where the individual withdraws their application to bring an appeal against the subsequent determination of the individual’s entitlement to Adult Disability Payment mentioned in paragraph 1(1)(a), on that day.

Commencement Information

I6 Sch. 2 para. 3 in force at 21.3.2022, see reg. 1

[F1 Reduction of Adult Disability Payment where short-term assistance is paid S

4.   Where an individual has received short-term assistance for a period and a determination is subsequently made that the individual is entitled to Adult Disability Payment for the same period, any payment of Adult Disability Payment to be made as a result of the subsequent determination for that period—

(a) where the individual is to be paid Adult Disability Payment at the same rate as or a lower rate than any short-term assistance and any Adult Disability Payment already paid to that individual for that period, is to be reduced to £0, and

(b) in any other case, is to be reduced by any short-term assistance and any Adult Disability Payment already paid to that individual for that period.]

Textual Amendments

F1 Sch. 2 para. 4 substituted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(12)

Regulation 57

PART 2 S Initial period for applications

Initial period for applications S

5.—(1) These Regulations apply to an individual who is resident in one of the local authority areas mentioned in paragraph 6 when the individual makes an application for Adult Disability Payment during the initial period for applications.

(2) An individual who is awarded Adult Disability Payment pursuant to an application made during the initial period for applications will continue to be entitled if that person moves to another local authority area in Scotland.

Commencement Information

I7 Sch. 2 para. 5 in force at 21.3.2022, see reg. 1

Local authority areas for initial period for applications S

6.  The local authority areas specified for the purposes of regulation 64 are—

(a) in phase 1, Perthshire and Kinross, City of Dundee and Western Isles,

(b) in phase 2, Perthshire and Kinross, City of Dundee, Western Isles, Angus, North Lanarkshire and South Lanarkshire,

(c) in phase 3, Perthshire and Kinross, City of Dundee, Western Isles, Angus, North Lanarkshire, South Lanarkshire, Fife, City of Aberdeen, Aberdeenshire, Moray, North Ayrshire, East Ayrshire and South Ayrshire.

Commencement Information

I8 Sch. 2 para. 6 in force at 21.3.2022, see reg. 1

Regulation 60

PART 3 S Transfer from Personal Independence Payment to Adult Disability Payment

Interpretation S

7.  In this Part of the schedule—

“date of transfer” means the date when a transferring individual’s entitlement to Adult Disability Payment begins by virtue of a determination made under paragraph 9(1),

“relevant individual” means an individual—

(a)

who has an award of Personal Independence Payment who appears to the Scottish Ministers to be likely to be eligible for Adult Disability Payment, and

(b)

who is—

(i)

ordinarily resident in Scotland, or

(ii)

someone to whom regulation 15(3) (residence and presence conditions) or 20(2) (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies,

“sufficient” means a link to Scotland that is sufficiently close that regulations 15(3) or 20(2) would be incompatible with the applicable agreement mentioned in that regulation, if the relevant individual were not entitled to Adult Disability Payment,

“transfer notice” means the notice required by paragraph 8, and

“transferring individual” means [F2 an individual] on whom the Scottish Ministers have served a notice of intention to transfer in accordance with paragraph 8.

Textual Amendments

F2 Words in sch. 2 para. 7 substituted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(a)

Commencement Information

I9 Sch. 2 para. 7 in force at 21.3.2022, see reg. 1

Notice of intention to transfer to Adult Disability Payment S

8.—(1) The Scottish Ministers are to notify each relevant individual of their intention to transfer that individual’s entitlement to disability assistance from an entitlement to Personal Independence Payment to an entitlement to Adult Disability Payment.

(2) Notice under sub-paragraph (1) must—

(a) be given in a way that leaves the relevant individual with a record of the information which they can show to, or otherwise share with, others,

(b) inform the relevant individual that—

(i) they have been identified as a relevant individual for the purposes of transfer to Adult Disability Payment,

(ii) the Scottish Ministers will make a determination, without receiving an application, to transfer the individual’s entitlement to Personal Independence Payment to an entitlement to Adult Disability Payment within a period to be specified within the notice (the individual will be notified when the determination is made and informed about their award and start date of Adult Disability Payment), and

(iii) the individual’s award of Personal Independence Payment will cease immediately before the award of Adult Disability Payment begins.

[F3 (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.]

(4) Where sub-paragraph (3) applies in respect of an individual and a determination under paragraph 9(1) has not been made, the Scottish Ministers are to notify the individual that the duty on the Scottish Ministers in paragraph 9(1) does not apply.

Textual Amendments

F3 Sch. 2 para. 8(3) substituted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 4(5)

Commencement Information

I10 Sch. 2 para. 8 in force at 21.3.2022, see reg. 1

Determination without application of entitlement to Adult Disability Payment S

9.—(1) The Scottish Ministers are to make a determination in respect of a transferring individual, without receiving an application, of that individual’s entitlement to Adult Disability Payment.

(2) Entitlement to Adult Disability Payment under a determination under sub-paragraph (1) begins on the date specified in the notice of determination given to the transferring individual in accordance with section 40 of the 2018 Act(3).

(3) Subject to sub-paragraph (4), the determination under sub-paragraph (1) is to be made on the basis of—

(a) such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the transferring individual’s entitlement to Personal Independence Payment, and

(b) any other information available to the Scottish Ministers that appears to them to be relevant.

(4) The determination under sub-paragraph (1) does not need to be made on the basis of the information mentioned in sub-paragraph (3)(b) where—

(a) the individual—

(i) before receiving a notice under paragraph 8(1), reported a change of circumstances to the Secretary of State for Work and Pensions, which has not been taken into account for the individual’s entitlement to Personal Independence Payment, or

(ii) has, since receiving a notice under paragraph 8(1), notified a change of circumstances to the Scottish Ministers, and

(b) following the determination under sub-paragraph (1) a further determination is to be made under paragraph 12.

(5) Subject to paragraph 11, a determination under sub-paragraph (1) must be made on the basis that the transferring individual is entitled to the components and rates of Adult Disability Payment that are equivalent to those components and rates of Personal Independence Payment to which the individual was entitled immediately before the date of transfer.

(6) A determination under sub-paragraph (1)—

(a) may be made on the assumption that whatever can be discerned about the transferring individual’s circumstances from the information mentioned in sub-paragraph (3) remains accurate on the date on which the determination is made,

(b) notwithstanding the generality of head (a), is to be made on the assumption that the conditions relating to residence and presence set out in regulations 15 to 21 (residence and presence conditions etc.) are satisfied in the individual’s case, and

(c) must be made not later than the end of the period specified within the notice under paragraph 8(1) unless the Scottish Ministers have—

(i) good reason to extend that period,

(ii) agreed the period for extension with the Secretary of State for Work and Pensions, and

(iii) notified the transferring individual of the extension and the reason for it.

Commencement Information

I11 Sch. 2 para. 9 in force at 21.3.2022, see reg. 1

[F4 Effect of determination on entitlement to Personal Independence Payment S

10.— (1) Where a determination is made under paragraph 9(1) that the transferring individual is entitled to Adult Disability Payment, the transferring individual’s entitlement to Personal Independence Payment will cease on—

(a) the date their entitlement to Adult Disability Payment begins,

(b) where a transferring individual was paid Personal Independence Payment one week in advance and 3 weekly in arrears, the date one week after the date their entitlement to Adult Disability Payment begins, or

(c) where paragraph 11 applies, the date their entitlement to Adult Disability Payment would have begun had paragraph 11(2) not applied to set an earlier date of entitlement.

(2) Where paragraph (1)(b) applies—

(a) section 77(4) (personal independence payment) of the Welfare Reform Act 2012, and

(b) regulation 4(e) of these Regulations (entitlement to other benefits),

do not apply in respect of the first week of entitlement to Adult Disability Payment.]

Textual Amendments

F4 Sch. 2 para. 10 substituted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(b)

Exceptions to paragraph 9(5) S

11.—(1) Where the Scottish Ministers have—

(a) received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 82 of the Welfare Reform Act 2012(4) immediately before the date of transfer, or

(b) not received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 82 of the Welfare Reform Act 2012, but become aware, before they have made a determination under paragraph 9(1), that a transferring individual has a terminal illness in terms of regulation 26(7),

[F5 except where sub-paragraph (1A) applies,] the determination made under paragraph 9(1) must be made on the basis that the transferring individual satisfies the conditions for the enhanced rate of both the daily living component and the mobility component of Adult Disability Payment.

[F6 (1A) Where the transferring individual reached the relevant age as defined in regulation 22(2) when they became terminally ill under section 82 of the Welfare Reform Act 2012 or in terms of regulation 26(7), the restrictions in sub-paragraph (1B) apply in relation to the determination under paragraph 9(1).

(1B) The restrictions referred to in sub-paragraph (1A) are—

(a) where the transferring individual was entitled to the mobility component of Personal Independence Payment at the standard rate immediately before the date of transfer, then regardless of whether the award would otherwise have been for the enhanced rate, the Scottish Ministers—

(i) may only make an award for the standard rate of that component, and

(ii) may only make such an award where the entitlement results from substantially the same condition or conditions in respect of which the mobility component of Personal Independence payment was given,

(b) where the transferring individual was entitled to the mobility component of Personal Independence Payment at the enhanced rate immediately before the date of transfer, the Scottish Ministers may only award that rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Personal Independence Payment was given,

(c) where the transferring individual was not entitled to the mobility component of Personal Independence Payment immediately before the date of transfer, the Scottish Ministers may not award that component at either the standard or enhanced rate.]

(2) Where sub-paragraph (1) [F7 or (1A)] applies—

(a) paragraphs (4) to (6) of regulation 26 do not apply, and

(b) the transferring individual’s entitlement to Adult Disability Payment will commence on whichever is the later of—

(i) the date that these Regulations come into force,

(ii) the day that the clinical judgement was made in accordance with regulation 26(7), or

(iii) the day one year before the determination was made in accordance with paragraph 9(1).

Textual Amendments

F5 Words in sch. 2 para. 11(1) inserted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(c)(i)

F6 Sch. 2 para. 11(1A)(1B) inserted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(c)(ii)

F7 Words in sch. 2 para. 11(2) inserted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(c)(iii)

Commencement Information

I12 Sch. 2 para. 11 in force at 21.3.2022, see reg. 1

Change of Circumstances S

12.— [F8 (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.]

(2) The review determination is to be made as soon as reasonably practicable after the transfer determination.

(3) The change of circumstance notified under sub-paragraph (1)—

(a) is not to be regarded as relating to the individual’s entitlement to Personal Independence Payment, and

(b) is to be taken into consideration by the Scottish Ministers in making the review determination.

(4) Where a transferring individual’s entitlement to Adult Disability Payment is determined in the review determination to be at a higher rate than the transfer determination, entitlement will begin—

(a) if the individual notifies the change—

(i) within one month of the change occurring, the date when the individual first satisfies the requirements for a higher rate of the [F9 daily living] or mobility component,

(ii) within more than one month but not more than 13 months of the change occurring, the date when the individual first satisfies the requirements for a higher rate of the [F10 daily living] or mobility component, but only if the Scottish Ministers consider that the individual had good reason for not notifying the change within one month,

(iii) in any other case, from the date of notification of the change, or

(b) if the date under sub-paragraph 4(a) is before these Regulations come into force, the date that these Regulations come into force.

(5) Where a transferring individual’s entitlement to Adult Disability Payment is determined in the review determination to be at a lower rate than or at the same rate as awarded by the transfer determination, entitlement under the review determination will take effect on the day that the Scottish Ministers make the review determination.

(6) Where an individual has previously received Personal Independence Payment or Adult Disability Payment for a period and a review determination is subsequently made that the same individual is entitled to Adult Disability Payment at a higher rate for that period by virtue of this paragraph, that individual will be entitled to the difference between the value of entitlement to Adult Disability Payment under the review determination and the value of Personal Independence Payment or Adult Disability Payment to which that individual was previously entitled for that period.

[F11 (7) Where the change of circumstance notified under sub-paragraph (1) occurred after the person had reached the relevant age as defined in regulation 22(2), the restrictions in sub-paragraph (8) will apply in relation to the determination under sub-paragraph (1).

(8) The restrictions referred to in sub-paragraph (7) are—

(a) where the transfer determination awarded the mobility component at the standard rate then, regardless of whether the award would have otherwise been for the enhanced rate, the Scottish Ministers—

(i) may only make an award for the standard rate of that component, and

(ii) may only make such an award where entitlement results from substantially the same condition or conditions in respect of which the mobility component in the transfer determination was given,

(b) where the transfer determination awarded the mobility component at the enhanced rate, the Scottish Ministers may only award that rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component in the transfer determination was given,

(c) where the transfer determination did not include an award of the mobility component, the Scottish Ministers may not award that component at either the standard or enhanced rate.]

Textual Amendments

F8 Sch. 2 para. 12(1) substituted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 4(6)

F9 Words in sch. 2 para. 12(4)(a)(i) substituted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(d)(i)

F10 Words in sch. 2 para. 12(4)(a)(ii) substituted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(d)(ii)

F11 Sch. 2 para. 12(7)(8) inserted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(d)(iii)

Commencement Information

I13 Sch. 2 para. 12 in force at 21.3.2022, see reg. 1

Effect of legal detention on payment of the mobility component: 16 and 17 year olds S

13.—(1) Sub-paragraph (2) and (3) apply where a transferring individual—

(a) is aged 16 or 17 on the date of transfer,

(b) was in legal detention immediately before the date of transfer, and

(c) was entitled to the mobility component of Personal Independence Payment immediately before the date of transfer.

(2) Entitlement to the mobility component of Adult Disability Payment of a transferring individual mentioned in sub-paragraph (1) is to begin before the date of the determination under paragraph 9(1) but not before 13 June 2022.

(3) Where the transferring individual has received payment of the mobility component of Personal Independence Payment for any period after the date on which their entitlement to the mobility component of Adult Disability Payment commences under sub-paragraph (2), any payment of Adult Disability Payment to be made for that period is to be reduced by the amount already paid to the transferring individual for the mobility component of Personal Independence Payment for that period.

Commencement Information

I14 Sch. 2 para. 13 in force at 21.3.2022, see reg. 1

Modification of these Regulations: transferring individuals S

14.  These Regulations apply to a transferring individual on and after the date of transfer with the following modifications—

(a) regulation 32 (entitlement beginning while in alternative accommodation) is to be read as if—

(i) in paragraph (1) after “begins” there are the words “in terms of Part 3 of schedule 2”, and

(ii) in paragraph (2) for “that day” reads “the day on which the individual has been entitled to Adult Disability Payment for 28 days”,

(b) regulation 35 (when an application is to be treated as made and beginning of entitlement to assistance) is treated as omitted,

[F12 (ba) in regulation 36, for sub-paragraph (b), substitute—

“(b) any subsequent payment—

(i) 4 weekly in arrears,

(ii) weekly in advance, or

(iii) where the Scottish Ministers consider that it would be unjust not to do so, at such intervals as may be specified in the notice of determination.”,]

(c) in regulation 45—

(i) for paragraph (4) substitute—

“(4) Where an individual has previously received Adult Disability Payment or Personal Independence Payment for a period and a determination without application has subsequently been made that the individual is entitled to Adult Disability Payment at a higher rate for that period, the individual will be entitled to the difference between the value of entitlement to Adult Disability Payment under the subsequent determination and the value of Adult Disability Payment or Personal Independence Payment to which that individual was previously entitled for that period.”,

(ii) where regulation 45(4) as substituted by sub-paragraph (1) applies, for the period between the date when the individual’s entitlement to a higher rate of Adult Disability Payment begins and the date of the determination under regulation 46, regulation 4 (entitlement to other benefits) is treated as omitted, and

(d) where paragraph 11, 12(6) or 13(3) applies, for the period between the date when entitlement to Adult Disability Payment begins and the date of the determination under paragraph 9(1), regulation 4 (entitlement to other benefits) is treated as omitted.

Textual Amendments

F12 Sch. 2 para. 14(ba) inserted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 19(13)(e)

Commencement Information

I15 Sch. 2 para. 14 in force at 21.3.2022, see reg. 1

Appointees S

15.—(1) A person appointed by the Secretary of State for Work and Pensions under regulation 57 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013(5) to receive Personal Independence Payment on behalf of a transferring individual is to be treated on and after the date of transfer as though appointed by the Scottish Ministers to act on behalf of that transferring individual under section 85B of the 2018 Act(6).

(2) As soon as reasonably practicable after the date of transfer, the Scottish Ministers must—

(a) consider whether the conditions for making an appointment in respect of the transferring individual are met (having regard to section 85B(3) of the 2018 Act),

(b) consider whether to terminate the appointment that is treated as having been made by virtue of sub-paragraph (1) and terminate it if they consider it appropriate, and

(c) if they have terminated an appointment in pursuance of head (b), appoint under section 85B of the 2018 Act another person to act on the transferring individual’s behalf if they consider it appropriate to do so.

[F13 (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.]

Textual Amendments

F13 Sch. 2 para. 15(3) inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 4(7)

Commencement Information

I16 Sch. 2 para. 15 in force at 21.3.2022, see reg. 1

Regulation 63

PART 4 S Consequential amendments

16.—(1) The Social Security Contributions and Benefits Act 1992(7) is amended in accordance with paragraph (2). S

(2) In section 70(2)(8) (invalid care allowance), for “disability assistance by virtue of entitlement to the care component at the middle or highest rate under regulations made under section 31 of the Social Security (Scotland) Act 2018” substitute “adult disability payment by virtue of entitlement to the daily living component at the standard or enhanced rate or child disability payment by virtue of entitlement to the care component at the middle or highest rate”.

Commencement Information

I17 Sch. 2 para. 16 in force at 21.3.2022, see reg. 1

(1)

2018 asp 9.

(2)

2014 asp 10.

(3)

2018 asp 9.

(4)

2012 c. 5.

(5)

S.I. 2013/380, amended by S.I. 2021/804.

(6)

2018 asp 9. Section 85B was inserted by section 2(4) of the Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18).

(7)

1992 c. 4.

(8)

Subsection (2) was amended by S.I. 2013/388, S.I. 2013/796 and S.S.I. 2021/174.