Adult disability payment: consultation

Annex B: Outline of the Disability Assistance for Working Age People regulations

1. The legislative framework for Scottish social security is intended to be simple and accessible. The Social Security (Scotland) Act 2018 sets out an over-arching legislative framework and describes the different types of assistance the Scottish Government should provide. The draft Disability Assistance for Working Age People (Scotland) Regulations describe the detailed criteria, rules and processes for delivery of Adult Disability Payment.

Part 1: Introductory and Interpretation (regulations 1 and 2)

2. These provisions set out when the regulations will come into force, and will include details of when a pilot scheme will commence delivery. They also provide interpretations for the key terms used throughout the regulations. Specific terms defined through case law have been added here to ensure that existing Personal Independence Payment case law is reflected in the interpretation of these regulations, for example, the definition of aid or appliance. Other terms and phrases used specifically in other provisions have been defined within the relevant regulation itself. An additional interpretation section has been included at Schedule 1 in relation to the activities and descriptors.

Q 1: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 2: If you have any further comments please provide them here.

Part 2: Disability Assistance for Working Age People Overview (regulation 3)

3. This regulation provides that a client is entitled to Adult Disability Payment when they meet the following eligibility rules:

• the daily living component criteria;
• the mobility component criteria;
• the required period condition;
• the residence and presence conditions; and
• the age criteria.

4. Adult Disability Payment will consist of a daily living component and a mobility component and a person may be entitled to either component or both.

5. The provisions make clear that unless otherwise stated individuals will require to make an application. They also indicate that there are special rules on entitlement relating to both age and terminal illness to be found later in the regulations.

6. The provisions here further describe circumstances where a person cannot be entitled to Adult Disability Payment. These are where the client is in receipt of Child Disability Payment , Disability Living Allowance, Personal Independence Payment, or Armed Forces Independence Payment.

7. Additionally, a person who is, in terms of regulation 20 of the draft, habitually resident outside of the UK is not entitled to the daily living component unless the United Kingdom is the competent state for them. Regulation 20 more extensively covers how persons falling within this category may be identified and the international instruments which apply in this regard

Q 3: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 4: If you have any further comments please provide them here.

Part 3: Eligibility – Daily Living Component and Mobility Component (regulations 4 – 9)

Daily Living Component and Mobility Component (regulations 4 and 5)

8. These regulations prescribe that an individual is entitled to the daily living and/or mobility component of Adult Disability Payment at the standard rate if (a) their ability to carry out the daily living and/or mobility activities is limited by their physical or mental health condition or conditions, and (b) they meet the required period condition.

9. They also prescribe that an individual is entitled to the daily living and/or mobility component at the enhanced rate if (a) their ability to carry out the daily living and/or mobility activities is severely limited by their physical or mental health condition or conditions, and (b) they meet the required period condition.

10. Where a person meets the eligibility criteria for both the standard and enhanced rate of a component, they will be awarded the enhanced rate.

11. It is additionally stated that the daily living and mobility activities may be found in schedule 1, and that the rates of payment may be found in regulation 33.

Q 5: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 6: If you have any further comments please provide them here.

Determination of ability to carry out activities (regulation 6)

12. This provision explains that the determination about a person's ability to carry out daily living or mobility activities will be assessed with reference to any aid or appliance that the person could reasonably be expected to wear or use, regardless of whether they actually do or not.

13. For example, a client with a disability which impacts on their balance could reasonably be expected to use a grab rail to reduce their risk of falling when getting in and out of the bath. However, if the client also has arthritis in their hands which causes pain and affects their ability to grip, then it would not be reasonable to expect them to use a grab rail.

14. The regulations state that a person can carry out an activity (as set out in Schedule 1) if they can do so:

• Safely - this means in a manner unlikely to cause harm to them or to another person, either during or after completion of the activity. This includes consideration of the likelihood and severity of the consequences of the harm;
• To an acceptable standard – this means to a standard that is reasonably expected for the activity, taking account of the impact on the individual of carrying out the activity to that standard;
• Repeatedly – this means as often as the activity is reasonably required to be completed; and
• Within a reasonable time period – this means no more than twice as long as the maximum period that an individual without a physical or mental health condition or conditions would normally take to complete the same activity.

Scoring for daily living and mobility activities (regulations 7 and 8)

15. These regulations prescribe that the score a person obtains in relation to daily living and mobility activities will be determined by adding together the number of points scored under each activity. Only points scored in the daily living activities will count toward the daily living component and likewise only those scored for mobility activities will count toward the mobility component.

16. A person will have limited ability to carry out daily living or mobility activities where they obtain a score of at least 8 points and will be awarded the standard rate. A person will have severely limited ability to carry out daily living or mobility activities where they obtain a score of at least 12 points and will be awarded the enhanced rate.

Scoring: further provision (regulation 9)

17. This is the regulation which details the "50% rule". The regulations prescribe that the descriptor which applies to a person in relation to each activity listed in schedule 1 is the descriptor which is satisfied on at least 50% of the days of the required period. If two or more descriptors are each satisfied on over 50% of the days, the descriptor which scores the higher or highest number of points will be awarded.

18. The regulation also prescribes that where no descriptor is satisfied on over 50% of the days of the required period, two or more descriptors which are satisfied less than 50% of the time can be added together to amount to over 50% of the time. The points for the descriptor which are satisfied for a greater proportion of the period will then be allocated. If, however, both or all of the descriptors are satisfied for the same proportion of the total period, the descriptor which has the highest number of points will be used.

19. A descriptor is satisfied on a day in the required period if the descriptor has been satisfied for any part of the day which is not minimal or fleeting.

Q 7: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 8: If you have any further comments please provide them here.

Part 4: The qualifying period conditions (regulations 10 – 13)

The required period condition: daily living component and mobility component (regulation 10 and 11)

20. These regulations define the required period condition which must be satisfied to be eligible for each of the components of Adult Disability Payment. This is the requirement that for the 13 weeks leading up to the "relevant date" (as later defined in the regulations) the individual must have limited or severely limited ability to carry out the daily living or mobility activities. The same must also be likely for the 39 weeks after that date.

The relevant date (regulation 12)

21. This regulation defines the relevant date for the purpose of the required period condition. Where the individual has made an application for Adult Disability Payment and a decision about it has not been made, the relevant date will usually be the date of the application. The date of the application is the date that the initial registration is completed online, or over the phone, to make an application. If when the application is made, the 13 week period described above has not yet been met, then the relevant date will be the date on which that condition will have been met.

22. Where the individual has already got an award of either or both components, the relevant date will be the date of that award.

23. This regulation is, however, subject to the following regulation, when payment is sought after an interval.

The relevant date: after an interval (regulation 13)

24. This regulation makes provision for individuals who have applied for Adult Disability Payment and had a previous award of Adult Disability Payment or Personal Independence Payment, which ended no more than 2 years before the date of the new application. The previous award must be for the same component or components (daily living and/or mobility) as the new application. The new application must also relate to a disability or health condition which is substantially the same as that on the basis of which the previous award was made, or relate to a new disability or health condition which has developed because of it. The regulation broadly provides that the relevant date, for the purposes of the required period condition, will not take account of the interval between the end of the previous award and the date on which the new application is made. This essentially means that the 13 week qualifying period condition does not apply.

25. This regulation also provides that where the previous award was of Personal Independence Payment, it is to be treated as an award of Adult Disability Payment, ensuring that the provision will apply for those coming to Adult Disability Payment after an interval having previously been in receipt of Personal Independence Payment.

Q 9: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 10: If you have any further comments please provide them here.

Part 5: Residence and Presence Conditions (regulations 14 – 21)

Residence and presence conditions (regulation 14)

26. The residence and presence conditions require that individuals must on any day:

• Be ordinarily resident in Scotland;
• Be habitually resident in the Common Travel Area (comprising the United Kingdom, Ireland, the Isle of Man, and the Channel Islands);
• Not be subject to immigration control; and
• Have been present in the United Kingdom for not less than 104 weeks out of the previous 156 (the 'past presence' test).

The rest of the regulations within this part then go on to detail circumstances in which all or part of these conditions may not apply, as follows.

Absence from the United Kingdom (regulation 15)

27. This regulation provides that an individual may remain entitled to Adult Disability Payment where they are temporarily absent from the United Kingdom for the first 13 weeks of that absence, for any reason. An absence is defined to be temporary too if, at the beginning, it is unlikely to exceed 52 weeks.

28. This regulation also provides that if a person has applied at a time when they have not been present in the United Kingdom for the required time (the 'past presence' test), but they will meet that condition no later than 13 weeks after making the application, a determination can be made that they are entitled to Adult Disability Payment from the day that the condition is satisfied.

Absence from the United Kingdom including medical treatment (regulations 16)

29. This regulation provides that an individual may remain entitled to Adult Disability Payment for the first 26 weeks of an absence from the United Kingdom, where the absence is solely in connection with medical treatment for a disability or condition which the client had before leaving the United Kingdom.

Absence from the United Kingdom in special cases (regulation 17)

30. This regulation provides that an individual may also be treated as meeting the 'past presence' test where that individual is outside of the United Kingdom, in their capacity as a member of Her Majesty's forces, an aircraft worker, a mariner or in employment in connection with continental shelf operations. This is provided that the individual can demonstrated a genuine and sufficient link to Scotland. Each of these capacities is defined further within the regulation. This also applies to clients who are related to someone (as defined in the regulation) who is outside of the United Kingdom in such a capacity.

Serving members of Her Majesty's forces and their family members - further provision (regulation 18)

31. This regulation provides that individuals abroad, in their capacity as a serving member of the United Kingdom armed forces or a civil servant should be treated as meeting the requirements to be ordinarily resident in Scotland, habitually resident in the Common Travel Area, and having met the 'past presence' test, provided that the individual can demonstrate a genuine and sufficient link to Scotland. This also applies to clients who are related to someone (as defined in the regulation) who is outside of the United Kingdom in such a capacity.

Persons habitually resident in the United Kingdom (regulation 19)

32. This regulation dis-applies the residence and presence conditions where the individual is ordinarily resident in Scotland and habitually resident in the United Kingdom, provided that Title III of Part 2 of the withdrawal agreement (coordination of social security systems) applies, and the individual can demonstrate a genuine and sufficient link to Scotland.

Persons habitually resident outside the United Kingdom (regulation 20)

33. This regulation dis-applies the residence and presence conditions where an individual satisfies the conditions set out within this regulation. The set of conditions which shall apply will depend on where the individual is habitually resident. This regulation ensures that the provision on social security co-ordination in Title III of Part 2 of the EU withdrawal agreement is given effect to, along with that in Part III of the EEA EFTA separation agreement, Part 3 of the Swiss citizens' rights agreement, the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974, and the convention on social security between the UK and Ireland.

Refugees (regulation 21)

34. This regulation provides that individuals who have been granted refugee status or humanitarian protection are also exempted from the 'past presence' test.

Q 11: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 12: If you have any further comments please provide them here.

Part 6: Entitlement under Special Rules Relating to Age (regulations 22 – 25)

Age Criteria (regulation 22)

35. This section provides that only individuals who have reached age 16 are eligible for Adult Disability Payment. This regulation provides that individuals who are the relevant age (being state pension age) are not eligible for Adult Disability Payment for any period after they reach that age. This is, however, subject to the following regulation.

Persons of pensionable age: exceptions (regulation 23)

36. This regulation provides that existing entitlement to Adult Disability Payment can continue once a person reaches the relevant age. It also provides that an award can be made to individuals who applied for Adult Disability Payment before the relevant age but had not received a determination prior to reaching that age.

Adult disability payment after an interval and after reaching the relevant age (regulation 24)

37. This section makes changes to the way Regulation 13 (applications after an interval) operates for clients who have reached the relevant age. One key difference is that the interval between entitlement ending and a new application being made is reduced to 1 year. The other is that clients are only eligible for the enhanced rate of the mobility component of Adult Disability Payment if they were entitled to that same rate of the component under their previous award. Otherwise, they must be entitled to the mobility component at the standard rate.

Determination of an award after the person has reached the relevant age (regulation 25)

38. This regulation applies to individuals who have reached the relevant age and are in receipt of the mobility component of Adult Disability Payment. If a new determination of entitlement requires to be made, the mobility component may only continue to be awarded at the same rate, provided eligibility is based on substantially the same condition or conditions as the previous award. It cannot, however, be increased. It may be reduced if the individual no longer meets the eligibility criteria for the standard or enhanced rate. The regulation also provides that if an individual who has reached the relevant age had a mobility component award that ended no more than one year prior to the award being re-determined, the previous mobility component can be reinstated.

Q 13: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 14: If you have any further comments please provide them here.

Part 7: Entitlement Under Special Rules Related to Terminal illness (regulation 26)

Terminal Illness (regulation 26)

39. This regulation provides that individuals who are terminally ill and whose entitlement to Adult Disability Payment is to be determined. This can be on the basis of either a new application for Adult Disability Payment or a change in circumstances. These individuals are entitled to the enhanced rate of the daily living and mobility components of Adult Disability Payment. This is regardless of how long the individual has been terminally ill.

40. The regulation also dis-applies the requirements to otherwise satisfy the daily living and mobility component criteria, including the required period conditions. It further dis-applies the 'past presence' test under the residence and presence requirements.

41. Individuals who meet the definition of having a terminal illness, as defined in the 2018 Act, are entitled to Adult Disability Payment from the date at which an appropriate healthcare professional makes a clinical judgement that they meet the definition, the date the client's application for Adult Disability Payment is made, or the day of notification of change in circumstances (whichever is earlier).

42. If a clinical judgement is dated up to 26 weeks prior to the date the individual's application or notification of change in circumstances is received, entitlement can only begin up to a maximum of 26 weeks before the date the application is received.

43. If the clinical judgement is dated more than 26 weeks prior to the date the client's application or notification of change in circumstances is received, an appropriate healthcare professional is required to confirm the judgement is still accurate, in order for entitlement to begin up to a maximum of 26 weeks before the date the application or notification of change in circumstances is received.

44. Entitlement cannot begin under these provisions before these regulations come into effect.

45. An individual is regarded as having a terminal illness if an appropriate healthcare professional makes a clinical judgement that they have a progressive disease that can reasonably be expected to cause their death, having taken account of the guidance prepared and made available by the Chief Medical Officer in terms of the 2018 Act.

46. In the circumstance though of persons habitually resident in an EEA State or Switzerland, the regulation provides that the appropriate healthcare professional need not take account of the Chief Medical Officer's guidance where it is not reasonable to do so.

47. The regulations define who can act as an 'appropriate healthcare professional'. This may be a registered medical practitioner (doctor) or a registered nurse, who is involved in the diagnosis or care of the patient, and acting in their professional capacity. A definition is also provided for when a person is habitually resident outside of the United Kingdom in terms of regulation 20 of the draft, to ensure that they additionally have equivalent qualifications in the place in which they are resident, and are a member of the professional body the General Medical Council or Nursing and Midwifery Council in that place.

48. Provision is also made that where an individual has an award of Child Disability Payment under special rules for terminal illness, no further clinical judgement will be required. Additionally, the provisions to be included within these regulations managing transfer of individuals from Child Disability Payment to Adult Disability Payment will apply.

49. Finally, this regulation also provides that if, due to a change in circumstances, a person who has been receiving Adult Disability Payment for a period is then determined to be entitled to receive it at a higher rate for that period, they will be paid the difference between what they have been paid and what the new rate determined.

Q 15: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 16: If you have any further comments please provide them here.

Part 8: Payability when person is residing in certain accommodation or is detained in custody (regulations 27 – 32)

Care home residents (regulation 27)

This regulation sets out how admission to a care home impacts the ongoing payment of the daily living component of Adult Disability Payment. Where such forms of alternative accommodation are publicly funded, the care needs of the individual are met by those funds and so the daily living component is deemed not to be required.

An individual will therefore not receive any payment in respect of the daily living component of Adult Disability Payment from the day after they have been resident in a care home for 28 days. The regulation also includes provisions to dis-apply this condition if the individual is under 18 and being looked after by a local authority, as defined in the regulation.

Hospital in-patients (regulation 28)

50. This regulation provides that when a person is undergoing medical or other treatment as an in-patient at a hospital or similar institution they will not receive payment of either component of Adult Disability Payment from the day after they have been resident in the hospital for 28 days. This does not apply however, if the individual was under the age of 18 on the day on which they entered the hospital or similar institution.

Exceptions: care homes and hospitals (regulation 29)

51. This regulation provides that the stoppage of payments does not take effect for the first 28 days of a period of time in a care home or hospital. It also provides that the stoppage will not apply where the individual is residing in a hospice and is terminally ill, and the Scottish Ministers have been informed of this.

52. This regulation also provides for certain exclusions from the 28 day rule where services are paid:

• Entirely from the funds of the individual to whom the services are provided;
• Partly out of the resources of the individual for whom the services are provided and partly out of the resources of another person (other than a local authority) or from a charity; or
• Entirely out of the resources of another person (other than a local authority) or from a charity.

Legal Detention (regulation 30)

53. This regulation provides that when an individual is undergoing legal detention within the United Kingdom, if they are aged 18 or over they will not receive payment of either component of Adult Disability Payment from the day after they have been detained for 28 days. If they are aged 16 or 17, they will not receive payment of the daily living component from the day after they have been detained for 28 days. It also provides that if an individual is legally detained on the day their entitlement to Adult Disability Payment starts they will not receive payment of either component of Adult Disability Payment until they are no longer detained.

54. After the conclusion of criminal proceedings if an individual is detained in a hospital or similar institution in the United Kingdom because they have a mental disorder they will be entitled to payment of either or both component of Adult Disability Payment. That is unless the individual satisfies one of the conditions set out in the regulation.

Periods of residence (regulation 31)

55. This section describes how periods of time spent in a care home, hospital and legal detention are to be calculated for the purpose of making a decision to stop or start payment of Adult Disability Payment.

56. For the purpose of calculating the 28 day period, both the day that someone enters these establishments and the day that they leave that accommodation are not to be counted as part of the calculation.

57. Where an individual takes leave from an establishment, both the day that the individual leaves and the day the individual returns to the accommodation are not to be counted as days resident in that form of accommodation.

58. Where immediately following one period of residence, the individual then commences another period of residence (which may be in a different kind of establishment to the first period), the earlier period of residence is deemed to end on the day the individual leaves the establishment.

59. Where an individual enters or returns to an establishment either by transferring from another care home, hospital or from legal detention, the day of transfer is counted as a day of residence in an establishment.

60. This regulation also clarifies that for hospitals and care homes, a period of residence may comprise two or more separate periods, provided that there is no more than 28 days between each period. For legal detention, however, there may be up to one year between periods if they can be combined.

61. Finally, this regulation provides that where an individual's payment of Adult Disability Payment has stopped as a result of this Part, when the period of residence ends they will receive a determination without needing to make an application, in order to determine their new entitlement.

Payment of Adult Disability Payment between two periods of residence (regulation 32)

62. This regulation applies when a person has taken a period of leave from a care home, hospital or legal detention. It requires that where leave is taken from a care home, the Scottish Ministers make a determination without application in respect of the daily living component of Adult Disability Payment in respect of the period of leave, where the individual has notified them of the leave and expects to return to the establishment within 28 days. Where leave is taken from legal detention or a hospital, the Scottish Ministers are required to make a determination without application in respect of both components of Adult Disability Payment in respect of the period of leave, where the individual has notified them of the leave and expects to return to the establishment within 28 days

63. If the leave comes ahead of the end of the period specified (if any) in the individual's notice of determination that the individual received before they entered the establishment, then the determination made for their period of leave must be at the same rate of the daily living component as at that earlier determination.

64. The period of leave begins on the day that the person goes on leave and ends on the day after the day they return to the establishment. Additionally, the regulation provides that if the person leaves the establishment permanently, they are no longer to be taken to be on leave when they have notified the Scottish Ministers and received a determination without application on that basis.

Q 17: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 18: If you have any further comments please provide them here.

Part 9 – Short Term Assistance

This part will make provision for Short Term Assistance in relation to Adult Disability Payment. Policy is not yet settled on this matter and no draft provisions are included for the purposes of this consultation.

Part 10 – Making of Applications and Payments (regulations 33 – 37)

Rate of Adult Disability Payment and Making Payments (regulation 33)

65. This section describes the weekly payment rates for Adult Disability Payment. These are the 2020/21 rates, which will be subject to yearly uprating before the regulations come into force:

Daily living component

• the standard rate, £58.70;
• the enhanced rate, £87.65.

Mobility component

• the standard rate, £23.30
• the enhanced rate, £62.25.

66. This regulation also provides that for any week that the individual is entitled to the daily living component of Adult Disability Payment and also Constant Attendance Allowance within the meaning of section 61 of the Social Security Act 1975, the amount of Adult Disability Payment is to be reduced by the amount of Constant Attendance Allowance. When the amount of Constant Attendance Allowance is equal to or greater than the amount of Adult Disability Payment, then Adult Disability Payment should be paid at £0.

67. This regulation also provides that Adult Disability Payment is only to be given in the form of money, except when the later regulation in relation to deduction decisions applies (see regulation 48).

Making Payments (regulation 34)

68. This regulation provides that where Adult Disability Payment is paid in respect of an individual, the Scottish Ministers may pay someone else (where appropriate) and the payment is to be used for the benefit of the client. If it is no longer appropriate to continue to pay such a person, then they may cease paying it to that person and pay it instead to someone else.

When an application is treated as made and beginning of entitlement to assistance (regulation 35)

69. Here, the regulations provide that an application is to be treated as made on the day that it is received by the Scottish Ministers. It also provides that Scottish Ministers may, in certain situations, treat an application as having been made on a date that is different to the date it is received. This is important to ensure that, for instance, applications made in advance of meeting certain criteria are determined with an entitlement date set on the date those criteria will be met, rather than making a determination that the client is not entitled and requiring them to make a new application for assistance at a later date.

70. The regulation then details when entitlement should be taken to begin. In most cases the date of entitlement is to be identified on the basis of the following:

• where an application is made within 8 weeks of the day on which the full name and date of birth ("the required data") is submitted entitlement begins on that date;
• where an application is made outwith the period of 8 weeks from the day on which the required data is submitted entitlement begins on the day that the Scottish Ministers identify;
• If, however, the Scottish Ministers are satisfied that there is a good reason why the application was made outwith the 8 week period, they may treat it as having been made within that period.

71. Where an individual is in legal detention, these rules of entitlement must take account of the fact that the application is to be treated as made on the day after the day when that individual's detention ends.

72. This regulation finally defines the period covered by an application for Adult Disability Payment. Section 38(3) of the 2018 Act provides that once a person has made an application in relation to a period and a determination of entitlement has been made, they cannot make another application for that type of assistance in respect of the same period. For Adult Disability Payment the period depends on when the application has been treated as made. If that is on the day that it is received by the Scottish Ministers, then the period begins on that day and ends on the day that the determination of entitlement is made. If alternatively, the application is treated as made on another day identified by the Scottish Ministers then the period is deemed to begin on the day before the determination is made and ends on the day on which the determination is made.

Time of Payment (regulation 36)

73. Adult Disability Payment will be paid 4-weekly in arrears or, for clients applying under special rules for terminal illness, weekly in advance.

Continuing Eligibility (regulation 37)

74. Entitlement to Adult Disability Payment may be made on the basis that the individual has ongoing entitlement to assistance.

Q 19: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 20: If you have any further comments please provide them here.

Part 11: Qualifications and Experience Necessary to Carry out Assessments (regulation 38)

75. Where an assessment (known as a consultation) is necessary to determine entitlement to Adult Disability Payment, it will be carried out by a practitioner. The following requirements will apply for someone to be a practitioner:

• They have been employed for a cumulative period of at least two years, in the direct provision to individuals of health care or social care services;
• Where the assessment will involve consideration of the individual's mental health condition or conditions, their employment in the provision of health care or social care services was directly provided to individuals with mental health conditions
• Where the assessment will involve consideration of the individual's learning disability or disabilities, their employment in the provision of health care or social care services was directly provided to individuals with learning disabilities.

Q 21: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 22: If you have any further comments please provide them here.

Part 12: Determinations of entitlement to Adult Disability Payment without application (regulations 39 – 43)

Consideration of entitlement after specified period (regulation 39)

76. This regulation provides for a determination without application to be made at the point where an individual's award of Adult Disability Payment is to be reviewed. The 'light touch review' date will have been set at the time the award was made and the client's entitlement to Adult Disability Payment continues while the review is being carried out. Information on the review process will be set out in guidance.

Other situations requiring a determination without an application (regulation 40)

77. A determination without an application being received from an individual must be made by the Scottish Ministers in the following circumstances:

• a) The required data has been submitted in order to construct a record for the individual (ie. their name and date of birth), but no application is subsequently received;
• b) Whilst they are already in receipt of Adult Disability Payment, during the period of that determination, the Scottish Ministers become aware that:
  • i. There is a change of circumstances which could possibly result in a change in the level of Adult Disability Payment paid to the individual, or require it to stop;
  • ii. The individual has died;
  • iii. A determination about the individual's entitlement was made in ignorance of, or by mistake as to, a material fact which existed at the time the determination was made;
  • iv. There is an alteration of the level of Personal Independence Payment which an individual was in receipt of immediately before transferring to Adult Disability Payment, by way of a revisions, supersession or appeal;
  • v. A person has been admitted to a care home, hospital, legal detention for a period of 28 days or more;
  • vi. The individual has a liability to Scottish Ministers for assistance given in error;
  • vii. As a result of the individual having received Personal Independence Payment at an incorrect rate elsewhere in the United Kingdom before transferring to Scotland, the individual is liable for overpayment of Personal Independence Payment;
  • viii. The a clinical judgement has been made that the individual is terminally ill;
  • ix. As a result of the eligibility criteria for Adult Disability Payment having been altered, the individual's entitlement may have changed;
  • x. Where an individual has been on leave from a hospital, care home or legal detention and notify the Scottish Ministers that they have left the establishment permanently;
  • xi. That the individual is no longer resident in a care home, hospital or legal detention, and so their entitlement requires to be redetermined.
• c) The Scottish Ministers are informed that an individual in respect of whom Adult Disability Payment is payable has transferred to Scotland from another part of the United Kingdom, or from another part of the United Kingdom to Scotland.

Determination following official error – underpayments (regulation 41)

78. Scottish Ministers must make a determination without application where they have previously made a determination of entitlement to Adult Disability Payment, and they establish that due to an official error the determination was incorrect resulting in the individual not receiving the award they were entitled to, or receiving a lower award. The official error in the case of an underpayment is an error made by the Scottish Ministers or a Minister of the Crown which was not materially contributed to by anyone else.

79. This provision will also extend to cases of underpayment of short-term assistance (the provisions for which have not yet been drafted within the regulations).

Determination following error – overpayments (regulation 42)

80. This provision is similar to that for underpayments, however a determination without application must be made in this case where due to error, the determination resulted either in the individual receiving an award to which they were not entitled or a higher award than they were entitled to. Additionally, 'error' in this case is not limited to errors by the Scottish Ministers or a Minister of the Crown which was not materially contributed to by anyone else. It also extends to also include where an error was made wrongly, correctly but on the basis of incorrect information or an assumption which proves to be wrong, or where a new determination has not been made after an assumption on the basis of which an earlier determination was made has provide to be wrong.

81. This provision will also extend to cases of overpayment of short-term assistance (the provisions for which have not yet been drafted within the regulations).

When changes in entitlement take effect (regulation 43)

82. This provision describes the point in time at which determinations made as a result of a determination without application are applied in a range of scenarios.

83. In the case of an increase in the rate of award of Personal Independence Payment that the individual received at the point of transferring to Scotland as part of a cross-border move, changed entitlement begins on the date of the individual's first determination of entitlement to Adult Disability Payment.

84. Where the determination was previously based on an official error or error, the changed entitlement will begin on the date that the Scottish Ministers become aware of the official error, error or facts material to the earlier determination.

85. In the case of a determination without application other than in these two scenarios, the changed entitlement begins on the day when:

• Where the determination was made in connection with a change in circumstances, which the individual reports within four weeks of the change occurring, the date the individual qualifies for a higher rate of the daily living or mobility component;
• Where the individual reports the change after four weeks but before 56 weeks, on the date when the individual reports the change; or
• In any other case, the date on which the Scottish Ministers make the determination.

86. Where the Scottish Ministers consider it would be unjust not to do so, they may set an earlier date, except where the change has resulted from a change in the law. This is consistent with the principle that the law is generally not intended to have retrospective effect.

87. Where the amount of Adult Disability Payment payable is decreased, or entitlement ceases, the change in entitlement begins:

• Where the individual has notified the Scottish Ministers of a change of circumstances, on the date of the determination; or
• in all other cases, on the date of the change in circumstances, or if that is not known, the date on which the Scottish Ministers became aware of the change.

88. Discretion is afforded for both scenarios above to alter the date on which the change in entitlement takes effect where in all the circumstances the Scottish Ministers consider that it would be unjust not to do so.

Q 23: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 24: If you have any further comments please provide them here.

Part 13 - Periods in respect of a re-determination request

Periods in respect of a re-determination request (regulation 44)

89. This regulation prescribes the period for requesting a re-determination of entitlement as 42 days, starting from the day after Scottish Ministers make a determination of entitlement.

90. It prescribes the period for Scottish Ministers to make a re-determination of entitlement as 56 days, beginning with the day Scottish Ministers receive the request for a re-determination.

Q 25: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 26: If you have any further comments please provide them here.

Part 14: Provision of vehicles (regulation 45)

91. The Scottish Government has introduced the Accessible Vehicle and Equipment Scheme - an accreditation framework that allows accredited providers of accessible cars, scooters and powered wheelchairs to receive the direct transfer of the mobility component of Adult Disability Payment.

92. Where an individual (or someone who has authority to act on their behalf) enters into a lease agreement for an accessible vehicle, the mobility component of their Adult Disability Payment award will be transferred directly to the provider to pay for the vehicle lease. These leases will be zero-rated for VAT purposes, will be at significantly lower rates than the mainstream market, and no clients will be required to undergo a credit check to access credit.

93. It sets out that the transfer of the mobility component should stop if the lease agreement is brought to an end.

94. It defines an 'authorised provider of vehicles' as a supplier of vehicles for disabled people accredited as part of the Scottish Government's Accessible Vehicle and Equipment Scheme framework.

Q 27: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 28: If you have any further comments please provide them here.

Part 15 – Transfer from Child Disability Payment to Adult Disability Payment

95. This part will make provision for transfer of individuals from receiving Child Disability Payment to Adult Disability Payment. Policy is not yet settled on this matter and no draft provisions are included for the purposes of this consultation.

Part 16 – Transfer of Cases between Scotland and the rest of the United Kingdom

96. This part will make provision for transfer of cases between Scotland and the rest of the United Kingdom. Policy is not yet settled on this matter and no draft provisions are included for the purposes of this consultation.

Part 17 – Liability for Overpayment (regulation 46 and 47)

Liability for assistance given in error (regulation 46)

97. This regulation sets out the rules relating to recovery of overpayments. It provides that an individual's Adult Disability Payment (or, as the case may be, Short Term Assistance) may be given in whole or part by way of a deduction from their liability for overpayment. The individual's agreement to the deduction and the amount deducted is required, unless agreement is unreasonably withheld.

98. The term 'reasonable level' in this provision takes into account the individual's financial circumstances. Liability is limited to the difference in value between what was actually paid, and what should have been paid had the error not been made. Where assistance is given in a form other than money, its value is what giving that assistance cost the Scottish Ministers.

Determination to effect a deduction decision (regulation 47)

99. This regulation describes how Scottish Ministers must make a determination without an application of an individual's entitlement to Adult Disability Payment or Short Term Assistance, or both, where it is possible for the individual to be paid by way of deduction, or they have previously been paid by way of deduction and this may no longer be appropriate.

100. It sets out that a determination without application may be made to:

• Increase or decrease the amount of a deduction;
• Amend the length of the period that deductions are to apply; or
• Stop making deductions.

101. It also sets out that a client may:

• Withdraw their agreement to deductions;
• Request to increase the amount deducted;
• Request to decrease the amount deducted; or
• Request to amend the length of the period the deductions are to apply.

102. Where any of these actions are taken by the client, the Scottish Ministers will make a determination without an application on the matter.

Q 29: Do you agree the regulations reflect this policy intent? Yes/No/Don't Know

Q 30: If you have any further comments please provide them here.

Part 18 – Pilot Scheme

103. This part will make provision for the Pilot Scheme for Adult Disability Payment. Policy is not yet settled on this matter and no draft provisions are included for the purposes of this consultation.

Part 19 – Consequential Amendments

104. This part will make provision for any consequential amendments to be made within these principal regulations. Policy is not yet settled on this matter and no draft provisions are included for the purposes of this consultation.

Schedule 1 – Adult Disability Assistance Determination

105. This schedule provides the tables detailing the activities, descriptors and scores to be allocated for each of the Daily Living Activities (Part 2) and Mobility Activities (Part 3) for Adult Disability Payment. These are drawn from the Activities and scores allocated for Personal Independence Payment. There are some changes to reflect significant developments in case law which have effected how the criteria has been applied for Personal Independence Payment. Part 1 of the Schedule offers interpretations of the terms relevant to the activities and descriptors.

Q 31: If you have any comments on Schedule 1 please provide them here.

Schedule 2 – Members of Her Majesty's Forces: Excluded Persons

106. This schedule defines the persons who are excluded from the definition of Members of Her Majesty's forces, for the purposes of the regulations.

Q 32: If you have any comments on Schedule 2 please provide them here.

A third schedule may also be added in later versions of the regulations, relating to the provisions on Short Term Assistance and the Pilot Scheme.

Q 33: If you have any comments about the proposed review of Adult Disability Payment please provide them here.

Q 34: If you have any comments about the impact assessments please provide them here.

Q 35: If there is anything else you would like to tell us about the regulations, impact assessments or Adult Disability Payment in general, please do so here.