The Draft Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2024 - draft

PART 9 - Effect of time spent in care homes, hospital and legal detention

Effect of admission to a care home on ongoing entitlement to care component

30.—(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Scottish Adult Disability Living Allowance becomes a resident of a care home.

(2) Subject to paragraphs (4) and (5) and regulation 32 (hospices), on the day after the day on which the individual has been resident in a care home for 28 days, and for so long as the individual continues to reside in such a home, the value of the care component of Scottish Adult Disability Living Allowance that is to be given to the individual is to be £0 instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance).

(3) The 28 days referred to in paragraph (2) may comprise two or more separate periods, provided that there is no more than 28 days between each period.

(4) Paragraph (2) does not apply to a resident in a care home, where the full costs of any qualifying services are met—

(a) entirely out of the resources of the individual for whom the qualifying services are provided,

(b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or

(c) entirely out of the resources of another person (other than a local authority) or assistance from a charity.

(5) Entitlement to be paid the mobility component of Scottish Adult Disability Living Allowance continues for as long as the individual is eligible.

Effect of admission to hospital on ongoing entitlement to Scottish Adult Disability Living Allowance

31.—(1) This regulation applies where an individual who has an ongoing entitlement to either component of Scottish Adult Disability Living Allowance—

(a) is undergoing medical or other treatment as an in-patient at a hospital or similar institution, and

(b) any of the costs of the treatment, accommodation and any related services provided for them are borne out of public funds.

(2) Subject to paragraph (5), paragraph (6) and regulation 32 (hospices), on the day after the day on which the individual has been an in-patient in a hospital or other similar institution for 28 days, and for so long as the individual continues to be an in-patient in such an institution, the value of each component of Scottish Adult Disability Living Allowance that is to be given to the individual is £0 instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance).

(3) The 28 days referred to in paragraph (2) may comprise two or more separate periods, provided that there is no more than 28 days between each period.

(4) For the purposes of paragraph (1), the costs of treatment, accommodation or any related services are borne out of public funds if the individual is undergoing medical or other treatment as an in-patient in—

(a) a hospital or similar institution under—

(i) the National Health Service Act 2006(^[57]),

(ii) the National Health Service (Wales) Act 2006(^[58]), or

(iii) the National Health Service (Scotland) Act 1978(^[59]), or

(iv) the Health and Personal Social Services (Northern Ireland) Order 1972(^[60]) or the Health and Personal Social Services (Northern Ireland) Order 1991(^[61]),

(b) a hospital or similar institution maintained or administered by the Defence Council(^[62]).

(5) This regulation does not apply to an individual who was under the age of 18 on the day on which they began their current period undergoing medical or other treatment as an in-patient at a hospital or similar institution.

(6) Subject to paragraph (7), where an individual began their current period undergoing medical or other treatment as an in-patient at a hospital or similar institution on or before 31 July 1995 and has since 31 July 1995 been in receipt of the mobility component of Disability Living Allowance or Scottish Adult Disability Living Allowance that individual may continue to receive the mobility component at the lower rate until such time as paragraph (1) first ceases to apply to them for more than 28 consecutive days.

(7) Paragraph (6) shall not apply where on 31 July 1996, an individual is detained under Part II or Part III of the Mental Health Act 1983(^[63]) or Part 5,6, or 7 or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003(^[64]) or section 52D or 52M of the Criminal Procedure (Scotland) Act 1995(^[65]).

Exception: Hospices

32.—(1) Regulations 30(2) and 31(2) do not apply where the individual is residing in a hospice and has a terminal illness.

(2) In this regulation, “hospice” means a hospital or other institution whose primary function is to provide palliative care for persons resident there who are suffering from a progressive disease in its final stages, other than—

(a) a health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978(^[66])) in Scotland,

(b) a health service hospital (within the meaning of section 275(1) of the National Health Service Act 2006(^[67])) in England,

(c) a hospital in Wales vested in—

(i) an NHS trust,

(ii) a Local Health Board, or

(iii) the Welsh Ministers,

for the purpose of functions under the National Health Service (Wales) Act 2006(^[68]),

(d) a hospital or similar institution within the meaning of Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Personal Social Services (Northern Ireland) Order 1991,

(e) a hospital maintained or administered by the Defence Council, or

(f) an institution similar to a hospital mentioned in any of the preceding sub-paragraphs.

(3) In this regulation—

(a) “NHS trust” means a body established under section 18 of the National Health Service (Wales) Act 2006, and

(b) “Local Health Board” means a body established under section 11 of that Act.

Effect of legal detention on ongoing entitlement to Scottish Adult Disability Living Allowance

33.—(1) This regulation applies where an individual who has an ongoing entitlement to Scottish Adult Disability Living Allowance begins a period of legal detention.

(2) For the purposes of this regulation, an individual is to be treated as though they are not in legal detention on any day on which they are an in-patient in a hospital or in a hospice.

(3) On the day after the day on which the individual has been in legal detention for 28 days, and for so long as the individual continues to be in legal detention, instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance), the value of each component of Scottish Adult Disability Living Allowance that is to be given to the individual is to be £0.

(4) The 28 days referred to in paragraph (3) may comprise two or more separate periods, provided there is no more than one year between each period.

(5) Paragraph (3) of this regulation does not apply to an individual where—

(a) the individual is undergoing legal detention outside the United Kingdom, and

(b) in similar circumstances in Scotland, the individual would have been excepted from the application of that paragraph by virtue of the operation of any provision of this regulation.

Calculation of periods of time spent in a care home, hospital or legal detention

34.—(1) Subject to paragraphs (3) to (6), a period during which an individual is—

(a) resident in a care home for the purpose of regulation 30,

(b) an in-patient in a hospital or similar institution for the purpose of regulation 31,

(c) in legal detention for the purpose of regulation 33, or

(d) resident in a care home, an in-patient in a hospital or similar institution, or in legal detention for the purposes of regulation 35,

is to be determined in accordance with this regulation.

(2) Such a period is to be taken to—

(a) begin on the day after the day on which the individual enters the place, and

(b) end on the day before the day on which the individual leaves the place.

(3) Where an individual takes a period of leave from a place mentioned in paragraph (1), the days on which the individual begins and returns from leave are not be counted as days of residence in that place.

(4) Days constituting a period of leave are not to be counted as days of residence in a place.

(5) Where an individual enters a place (“the second place”) under paragraph (1) as a result of transfer from another place (“the first place”) under that paragraph—

(a) the day of transfer is to be counted as a day of residence in the second place, and

(b) for the purpose of calculating when the individual has been in the second place for 28 days for the purposes of regulations 30(3) and 31(3), 33(4) and 35(5)—

(i) the days that they were resident in the first place are to be treated as days of residence in the second place,

(ii) if they were resident in the first place for more than 28 days, the individual is to be treated as though they have been resident in the second place for 28 days on the day before the day of transfer, and

(c) the period of residence in the first place is deemed to end on the day on which the period of residence in the second place ends.

(6) For the purposes of this regulation, “days of residence” means—

(a) days resident in a care home in terms of regulation 30 or 35,

(b) days as in-patient hospital or similar institution in terms of regulation 31 or 35, and

(c) days in legal detention in terms of regulation 33 or 35.

Entitlement beginning while in alternative accommodation

35.—(1) This regulation applies where an individual is resident in a care home, an in-patient in a hospital or similar institution, or in legal detention on the day on which their entitlement to Scottish Adult Disability Living Allowance begins as a result of a transfer determination.

(2) Where an individual is in legal detention when their entitlement to Scottish Adult Disability Living Allowance begins as a result of a transfer determination, on the day after the day on which the individual has been in legal detention for a period of 28 days after the date the individual becomes entitled to Scottish Adult Disability Living Allowance, and for so long as the individual continues to be in legal detention, instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance), the individual is to be given the value of £0 in respect of each component of Scottish Adult Disability Living Allowance.

(3) Where an individual has been resident in a care home, an in-patient in a hospital or similar institution for a period of 28 days or more when their entitlement to Scottish Adult Disability Living Allowance begins—

(a) for so long as the individual continues to reside in a care home or is an in-patient in a hospital or similar institution, instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance), the individual is to be given the value of £0—

(i) where the individual is resident in a care home, in respect of the care component of Scottish Adult Disability Living Allowance,

(ii) where the individual is—

(aa) undergoing medical or other treatment as an in-patient in a hospital or similar institution, and

(bb) any of the costs of the treatment, accommodation and any related services provided for them are borne out of public funds within the meaning of regulation 31(4) (effect of admission to hospital on rate of entitlement),

in respect of each component of Scottish Adult Disability Living Allowance.

(4) Where, on the day on which their entitlement to Scottish Adult Disability Allowance begins, an individual has been resident in a care home or an in-patient in a hospital or similar institution for a period of less than 28 days—

(a) on the day after the day on which the individual has been resident in a care home or is an in-patient in a hospital or similar institution for more than 28 days, and for so long as the individual continues to reside in a care home or is an in-patient in a hospital or similar institution instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance), the individual is to be given the value of £0—

(i) where the individual is resident in a care home, in respect of the care component of Scottish Adult Disability Living Allowance, and

(ii) where the individual is—

(aa) undergoing medical or other treatment as an in-patient in a hospital or similar institution, and

(bb) any of the costs of the treatment, accommodation and any related services provided for them are borne out of public funds within the meaning of regulation 30(4),

in respect of each component of Scottish Adult Disability Living Allowance.

(5) Where an individual is resident in a care home, an in-patient in a hospital or similar institution, or in legal detention on the day on which their entitlement to Scottish Adult Disability Living Allowance begins as a result of a determination under regulation 28 (reinstatement of entitlement to Scottish Adult Disability Living Allowance within a year), regulation 29 (request for award of Scottish Adult Disabiltiy living Allowance within a year of end of Disability Living Allowance) or regulation 54 (crossborder moves), for so long as the individual continues to reside in a care home or is an in-patient in a hospital or similar institution, instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance), the individual is to be given the value of £0—

(i) where the individual is resident in a care home, in respect of the care component of Scottish Adult Disability Living Allowance,

(ii) where the individual is—

(aa) undergoing medical or other treatment as an in-patient in a hospital or similar institution, and

(bb) any of the costs of the treatment, accommodation and any related services provided for them are borne out of public funds within the meaning of regulation 31(4) (effect of admission to hospital on rate of entitlement),

in respect of each component of Scottish Adult Disability Living Allowance.

(6) Where an individual is in legal detention on the day on which their entitlement to Scottish Adult Disability Living Allowance begins as a result of a determination under regulation 28, 29 or 54, and for so long as the individual continues to be in legal detention, instead of the values set out in regulation 37 (amount and form of Scottish Adult Disability Living Allowance), the individual is to be given the value of £0 in respect of each component of Scottish Adult Disability Living Allowance.

(7) The 28 days referred to in paragraphs (2) to (4) may comprise two or more separate periods, provided that there is no more than 28 days between each period.

(8) Paragraphs (2) to (4) are to be applied on the basis of—

(a) such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions, and

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

(9) Paragraphs (3) and (4) do not apply where the individual is a resident in a care home, and the full costs of any qualifying services are met—

(a) entirely out of the resources of the individual for whom the qualifying services are provided,

(b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or

(c) entirely out of the resources of another person (other than a local authority) or assistance from a charity.