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

PART 10 - Making payments and duration of eligibility

Making Payments

36.—(1) Where Scottish Adult Disability Living Allowance is payable in respect of an individual, the Scottish Ministers may, where they consider it appropriate, make the payment to another person to be used for the benefit of the individual.

(2) Where the Scottish Ministers consider, for any reason, that it is no longer appropriate for a particular person who falls within paragraph (1) to continue to receive the payment, they may cease making payment to that person.

Amount and form of Scottish Adult Disability Living Allowance

37.—(1) The weekly rate of payment of the care component of Scottish Adult Disability Living Allowance is, where the individual is entitled to—

(a) the lowest rate, [£26.90],

(b) the middle rate, [£68.10], or

(c) the highest rate, [£101.75].

(2) The weekly rate of the mobility component of Scottish Adult Disability Living Allowance is, where the individual is entitled to—

(a) the lower rate, [£26.90], or

(b) the higher rate, [£71.00].

(3) Where an individual is entitled to payment of Scottish Adult Disability Living Allowance for a period shorter than one week, payment is to be made at one-seventh of the relevant weekly rate, for each day of entitlement.

(4) For any week where an individual is entitled to—

(a) the care component of Scottish Adult Disability Living Allowance, and

(b) payment of an amount in respect of constant attendance under section 104 of the Social Security Contributions and Benefits Act 1992(^[69]), section 104 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992(^[70]), or article 8 of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 2006(^[71]),

the amount of the care component of Scottish Adult Disability Living Allowance that is to be given to the individual is to be reduced by the amount paid under that section or article, as the case may be.

(5) For the purpose of calculating the amount of the care component of Scottish Adult Disability Living Allowance that is to be given to the individual in accordance with paragraph (4), where the amount in respect of constant attendance is equal to or greater than the amount of the care component of Scottish Adult Disability Living Allowance, the value of the care component of Scottish Adult Disability Living Allowance that is to be given to the individual is to be £0.

(6) For any week where an individual is entitled to—

(a) the mobility component of Scottish Adult Disability Living Allowance, and

(b) payment of War Pensioners’ Mobility Supplement within the meaning of—

(i) the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 (“1983 Order)(^[72]),

(ii) the Personal Injuries (Civilians) Scheme 1983(^[73]),

(iii) the 1983 Order by virtue of the War Pensions (Naval Auxiliary Personnel) Scheme 1964(^[74]),

(iv) the Pensions (Polish Forces) Scheme 1964(^[75]),

(v) the War Pensions (Mercantile Marine) Scheme 1964(^[76]), or

(vi) a Royal Warrant of 21 December 1964(^[77]) and an Order of His Majesty in relation to the Home Guard dated 22 December 1964(^[78]), or in relation to the Ulster Defence Regiment dated 4 January 1971(^[79]),

the amount of the mobility component of Scottish Adult Disability Living Allowance that is to be given to the individual is to be £0.

(7) Scottish Adult Disability Living Allowance is only to be given in the form of money, except as provided for by regulation 46 (Form of payment – giving Scottish Adult Disability Living Allowance by way of deduction).

Time of Payment

38. Where an award of Scottish Adult Disability Living Allowance is made, the Scottish Ministers are to make—

(a) the first payment of assistance on a date specified in the notice of determination, and

(b) any subsequent payment—

(i) 4 weekly in arrears,

(ii) where regulation 26 (entitlement under special rules for terminal illness) applies, weekly in advance,

(iii) weekly in advance where an individual previously received Disability Living Allowance weekly in advance, or

(iv) 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.

Continuing Eligibility

39.—(1) Subject to paragraphs (3) and (4), the determination that an individual is entitled to Scottish Adult Disability Living Allowance in respect of a period is to be made on the basis that the individual has an ongoing entitlement to Scottish Adult Disability Living Allowance after the end of that period, except where paragraph (2) applies.

(2) This paragraph applies where, after the end of the period mentioned in paragraph (1), the individual no longer satisfies the eligibility rules.

(3) A determination of ongoing entitlement is made on the basis that—

(a) the individual will continue to be entitled to Scottish Adult Disability Living Allowance for a fixed or indefinite period as specified in the notice of determination, and

(b) the decision that the individual is entitled to Scottish Adult Disability Living Allowance for each subsequent 4-week period is to be taken in accordance with these Regulations, on the strength of the assumptions set out in paragraph (4).

(4) The assumptions are that—

(a) the individual continues to satisfy the eligibility criteria which were satisfied to be entitled to Scottish Adult Disability Living Allowance under the determination mentioned in paragraph (1),

(b) the information on which the determination mentioned in paragraph (1) was made still applies and is relevant in the individual's case, and

(c) there is no change in circumstances of the individual which would require to be notified under section 56 (duty to notify change of circumstances) of the 2018 Act.

Circumstances in which assistance may be suspended

40.—(1) The Scottish Ministers may decide that an individual who has an ongoing entitlement to Scottish Adult Disability Living Allowance in respect of a period by virtue of regulation 39 (continuing eligibility) is not to become entitled to be given some or all of either component or both components of that assistance at the time at which the individual otherwise would in accordance with that regulation, as read with regulation 38 (time of payment) (referred to in these Regulations as a decision to suspend the individual's Scottish Adult Disability Living Allowance).

(2) Where such a decision is made in respect of an individual, payments of Scottish Adult Disability Living Allowance to that individual are to be suspended until such a time as the Scottish Ministers decide that the individual is once again to become entitled to be given Scottish Adult Disability Living Allowance.

(3) The Scottish Ministers may decide to suspend an individual's Scottish Adult Disability Living Allowance only in the circumstances where—

(a) section 54(1A) of the 2018 Act(^[80]) applies, or

(b) the Scottish Ministers have made arrangements (whether under section 85B of the 2018 Act(^[81]) or otherwise) for a person to receive the Scottish Adult Disability Living Allowance on the individual's behalf, and the Scottish Ministers consider that it is necessary to suspend the Scottish Adult Disability Living Allowance—

(i) in order to protect the individual from the risk of financial abuse, or

(ii) because the person with whom the Scottish Ministers have made arrangements is unable to continue to receive the Scottish Adult Disability Living Allowance.

(4) In this regulation, "financial abuse" includes—

(a) having money or other property stolen,

(b) being defrauded,

(c) being put under pressure in relation to money or other property,

(d) having money or other property misused.

Having regard to financial circumstances

41. The Scottish Ministers must have regard to an individual's financial circumstances prior to making a decision to suspend payment to the individual of some or all of either component or both components of Scottish Adult Disability Living Allowance.

Information to be given following suspension

42.—(1) Having made a decision to suspend an individual’s Scottish Adult Disability Living Allowance, the Scottish Ministers must inform the individual of—

(a) their decision to suspend the individual’s Scottish Adult Disability Living Allowance,

(b) the reasons for their decision,

(c) any steps which might be taken by the individual in order for the Scottish Ministers to consider ending the suspension, and

(d) the individual’s right under regulation 43 to require the Scottish Ministers to review their decision to suspend the individual’s Scottish Adult Disability Living Allowance.

(2) The Scottish Ministers must fulfil their duty under paragraph (1) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Right to review suspension

43.—(1) An individual may require the Scottish Ministers to review their decision to suspend that individual’s Scottish Adult Disability Living Allowance.

(2) The Scottish Ministers must—

(a) complete a review mentioned in paragraph (1) within 31 days beginning with the day when they received notice from the individual requiring them to review their decision,

(b) inform the individual of the outcome of the review including reasons for their decision.

(3) The Scottish Ministers must fulfil their duty under paragraph (2)(b) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Ending a suspension

44. The Scottish Ministers are to make a decision to end a suspension where—

(a) the individual provides the information requested under section 54(1) of the 2018 Act(^[82]) and the Scottish Ministers consider that they do not require to make a determination without application,

(b) regulation 38(3)(a) (continuing eligibility) applies and the Scottish Ministers make a determination without application under regulation 49 (consideration of entitlement after specified period), 50 (determination following change of circumstances, etc.), 51 (determination following official error – underpayments), 52 (determination following error – overpayments) or 53 (determination to effect a deduction decision),

(c) the Scottish Ministers make a determination under section 54(2) of the 2018 Act(^[83]),

(d) the circumstances mentioned in regulation 38(3)(b) no longer apply, or

(e) the Scottish Ministers consider it appropriate in the circumstances, including having regard to the financial circumstances of the individual.

Effect of suspension ending

45. When—

(a) the suspension of an individual’s Scottish Adult Disability Living Allowance ends, and

(b) under the latest determination of the individual’s entitlement to Scottish Adult Disability Living Allowance relating to the period of the suspension the individual would have become entitled to be given Scottish Adult Disability Living Allowance during that period,

the individual is immediately to be given the Scottish Adult Disability Living Allowance that the individual would have become entitled to be given under the determination during the period of suspension.

Form of payment – giving Scottish Adult Disability Living Allowance by way of deduction

46.—(1) Where an individual has a liability to the Scottish Ministers under section 63 of the 2018 Act (liability for assistance given in error), the individual’s payment of Scottish Adult Disability Living Allowance may be given (in whole or in part) by way of deduction, at a reasonable level, from that liability either—

(a) with the agreement of the individual, or

(b) without the individual’s agreement, where the individual has unreasonably refused to agree to the assistance being given in that form.

(2) For the purpose of paragraph (1), “reasonable level” means a level that is reasonable having regard to the financial circumstances of the individual.

When an increase in level of entitlement takes effect

47.—(1) Where, as a result of a determination without an application, the amount of Scottish Adult Disability Living Allowance payable in respect of an individual is increased or their entitlement to a component is awarded, the change takes effect—

(a) in the case of an increase pursuant to a determination made under regulation 50(c) or 50(d) (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

(b) in the case of an award of entitlement to a component or an increase pursuant to a determination made in accordance with regulation 50(a) that affects their eligibility under regulations 12 (care component), 13(lower mobility component) or 14 (higher mobility component), subject to sub-paragraph (b)(ii), on the date when—

(i) if as a result of the individual reporting the change—

(aa) if the individual reports the change within one month of the change occurring, the individual first satisfies the requirements for a higher rate of the care component or mobility component or for the additional component,

(bb) if the individual reports the change within more than one month but not more than 13 months of the change occurring, the individual first satisfies the requirements for a higher rate of the care component or the mobility component or for the additional component, but only if the Scottish Ministers consider that the individual had good reason for not notifying the change within one month, or

(cc) in any other case the date the individual reports the change or the date the individual first satisfies the requirements for a higher rate of the care component or mobility component or for the additional component, whichever is later.

(ii) if the date under sub-paragraph (b)(i) is before these Regulations come into force, the date that these Regulations come into force

(iii) if as a result of the Scottish Ministers becoming aware that a determination of an individual’s entitlement was made in ignorance of a material fact, on the date when the Scottish Ministers make the determination.

(c) in the case of an earlier determination which was based on official error within the meaning of regulation 51 (determination following official error – underpayments) or on error within the meaning of regulation 52 (determination following error – overpayments), on the date when the earlier determination took effect,

(d) in the case of a determination made in accordance with regulation 50(a), where the period that an individual has been—

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

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

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

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

has come to an end, on the day on which the individual leaves the place, or

(e) in any other case, on the date when the Scottish Ministers make the determination.

(2) Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set an earlier date for the purposes of paragraph (1)(b), (c), (d) or (e).

(3) This regulation does not apply to an individual to whom regulation 26 (entitlement under special rules for terminal illness) applies.

(4) Where an individual has previously received Scottish Adult Disability Living Allowance or Disability Living Allowance for a period and a determination without application has subsequently been made that the same individual is entitled to Scottish Disability Living Allowance at a higher rate for that period or an additional component, that individual will be entitled to the difference between the value of entitlement to Scottish Adult Disability Living Allowance under the subsequent determination and the value of Scottish Adult Disability Living Allowance or Disability Living Allowance to which that individual was previously entitled for that period (but disregarding any payment of Disability Living Allowance which was paid for the same period as Scottish Adult disability Living Allowance was also paid by virtue of regulation 6(2)(b)(iii)(bb)).

(5) Where paragraph (4) applies, or the period between the date when the individual’s entitlement to a higher rate of Scottish Adult Disability Living Allowance begins and the date of the determination under regulations 49 to 53, regulation 4 (entitlement to other benefits) and section 71(7) (disability living allowance) of the Social Security Contributions and Benefits Act 1992(^[84]), are treated as omitted

When a decrease in level or cessation of entitlement takes effect

48.—(1) Where, as a result of determination without an application, the amount of Scottish Adult Disability Living Allowance payable in respect of an individual is decreased or their entitlement to a component is ceased, the change takes effect—

(a) in the case of a decrease pursuant to a determination made under regulation 50(c) or 50(d) (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

(b) in the case of a determination without application under regulation 50(b), on the date of the individual’s death,

(c) in the case of a determination without application under regulation 49 or 50(a) on the date—

(i) where the individual was required to notify a change under section 56 of the 2018 Act, if the individual—

(aa) knowingly fails to notify a change, or

(bb) fails to notify the change as soon as reasonably practicable after it occurred,

the individual should have notified the Scottish Ministers of the change, or

(ii) in any other case, the Scottish Ministers make the determination,

(d) in the case of an earlier determination which was based on official error within the meaning of regulation 51 (determination following official error – underpayments) or on error within the meaning of regulation 52 (determination following error – overpayments), on the date when the earlier determination took effect,

(e) in any other case, on the date when the Scottish Ministers make the determination.

(2) Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set a later date for the purposes of paragraph (1)(b), (c), (d) or (e).