SCHEDULE 1
PART 2Transfer from Disability Living Allowance to Scottish Adult Disability Living Allowance
Exceptions to paragraph 7(5)
9.
(1)
Where the Scottish Ministers have—
(a)
(b)
not received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 72(5) of the Social Security Contributions and Benefits Act 1992, but become aware, before they have made a transfer determination, that the transferring individual has a terminal illness in terms of regulation 20(8) (entitlement under special rules for terminal illness),
except where sub-paragraph (2) applies, the transfer determination must be made on the basis that the transferring individual satisfies the conditions for the highest rate of the care component and the higher rate of the mobility component of Scottish Adult Disability Living Allowance.
(2)
Where the transferring individual had reached the relevant age when they became terminally ill in terms of section 72(5) of the Social Security Contributions and Benefits Act 1992 or in terms of regulation 20(8), the restrictions in sub-paragraph (3) apply in relation to the transfer determination.
(3)
The restrictions referred to in sub-paragraph (2) are—
(a)
where the transferring individual was entitled to the mobility component of Disability Living Allowance at the lower rate immediately prior to the date of transfer, then regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers—
(i)
may only make an award for the lower rate of that component of Scottish Adult Disability Living Allowance, 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 Disability Living Allowance was given,
(b)
where the transferring individual was entitled to the mobility component of Disability Living Allowance at the higher rate immediately before the date of transfer, the Scottish Ministers may only award the higher rate of that component of Scottish Adult Disability Living Allowance where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Disability Living Allowance was given, and
(c)
where the transferring individual was not entitled to the mobility component of Disability Living Allowance immediately before the date of transfer, the Scottish Ministers may not award that component of Scottish Adult Disability Living Allowance at either the lower or higher rate.
(4)
Where sub-paragraphs (1) or (2) apply—
(a)
paragraphs (5) to (7) of regulation 20 do not apply, and
(b)
the transferring individual’s entitlement to Scottish Adult Disability Living Allowance 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 20(8), or
(iii)
the day one year before the transfer determination was made.
(5)
Where sub-paragraph (1)(a) applies, paragraphs (8), (9) and (10) of regulation 20 are to be treated as satisfied for the transferring individual.
(6)
Where sub-paragraph (4)(b) applies—
(a)
(b)
regulation 5(c) of these Regulations (entitlement to other benefits),
do not apply in respect of the period between commencement of entitlement to Scottish Adult Disability Living Allowance and cessation of entitlement to Disability Living Allowance.