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

PART 11 - Determination of entitlement to Scottish Adult Disability Living Allowance without application

Consideration of entitlement after specified period

49. The Scottish Ministers must make a determination of an individual’s entitlement to Scottish Adult Disability Living Allowance, without receiving an application, after the end of the period specified (if any) in—

(a) the individual’s notice of determination under section 40 or notice of re-determination under section 44 (as the case may be), or

(b) a determination made by the First-tier Tribunal for Scotland under section 49,

of the 2018 Act(^[85]).

Determination following change of circumstance etc.

50. The Scottish Ministers must make a determination of an individual's entitlement to Scottish Adult Disability Living Allowance, without receiving an application, where the individual has an ongoing entitlement to Scottish Adult Disability Living Allowance and they become aware—

(a) of a change of circumstances, whether or not notified by the individual in accordance with section 56 of the 2018 Act, or where the Scottish Ministers become aware that a determination of an individual's entitlement was made in ignorance of a material fact, which would possibly result in an alteration to the component or rate of Scottish Adult Disability Living Allowance payable to the individual or which is likely to mean that the individual is no longer entitled to Scottish Adult Disability Living Allowance,

(b) that the individual has died,

(c) of an alteration of the component or rate of award of Disability Living Allowance to which the individual was entitled to immediately before the date of transfer to Scottish Adult Disability Living Allowance in accordance with Part 3 (transfer from Disability Living Allowance to Scottish Adult Disability Living Allowance) as a result of a decision made pursuant to—

(i) a revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”)(^[86]),

(ii) a supersession under regulation 6 of the 1999 Regulations(^[87]),

(iii) an appeal under section 12 of the Social Security Act 1998 ("the 1998 Act")(^[88]),

(iv) a re-consideration under section 13 of the 1998 Act(^[89]), or

(v) an appeal to the Upper Tribunal under section 14 of the 1998 Act(^[90]),

(vi) a revision under article 10 of the Social Security (Northern Ireland) Order 1998(^[91]) ("the 1998 Order"),

(vii) a supersession under article 11 of the 1998 Order(^[92]) ,

(viii) an appeal under article 13 of the 1998 Order(^[93]), or

(ix) an appeal to the Commissioner under article 15 of the 1998 Order(^[94]),

(d) of an alteration of the component or rate of award of Disability Living Allowance which the individual was entitled to immediately before moving to Scotland in circumstances in which regulation 54 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland) applies, as a result of a decision made pursuant to—

(i) a revision under regulation 3 of the 1999 Regulations,

(ii) a supersession under regulation 6 of the 1999 Regulations,

(iii) an appeal under section 12 of the 1998 Act,

(iv) a re-consideration under section 13 of the 1998 Act,

(v) an appeal to the Upper Tribunal under section 14 of the 1998 Act,

(vi) a revision under article 10 of the 1998 Order,

(vii) a supersession under article 11 of the 1998 Order,

(viii) an appeal under article 13 of the 1998 Order, or

(ix) an appeal to the Commissioner under article 15 of the 1998 Order.

Determination following official error – underpayments

51.—(1) The Scottish Ministers are to make a determination of an individual's entitlement to Scottish Adult Disability Living Allowance, without receiving an application, where—

(a) they have previously made a determination of the individual's entitlement to Scottish Adult Disability Living Allowance (“the original determination”),

(b) they establish that, due to an official error, the original determination was incorrect resulting in the individual—

(i) not being given an award of Scottish Adult Disability Living Allowance, or

(ii) being given a lower award than that,

to which the individual was entitled,

(c) the Scottish Ministers are not considering a request for a re-determination of the individual's entitlement to Scottish Adult Disability Living Allowance, and

(d) the individual has not appealed to the First-tier Tribunal for Scotland against the Scottish Ministers' determination of the individual's entitlement to Scottish Adult Disability Living Allowance.

(2) In making a determination required by paragraph (1) the Scottish Ministers are to use—

(a) the information which led to the original determination,

(b) information they have obtained in connection with the individual's entitlement to Scottish Adult Disability Living Allowance, and

(c) any other information available to them that is relevant to their consideration of whether the individual is entitled to Scottish Adult Disability Living Allowance.

(3) In this regulation, "official error" means an error made by someone acting on behalf of the Scottish Ministers or on behalf of a Minister of the Crown that was not materially contributed to by anyone else,

Determination following error – overpayments

52.—(1) The Scottish Ministers are to make a determination of an individual’s entitlement to Scottish Adult Disability Living Allowance, without receiving an application, where—

(a) they have previously made a determination of the individual’s entitlement to Scottish Adult Disability Living Allowance (“the original determination”),

(b) they establish that, due to an error, the original determination was incorrect resulting in the individual being given—

(i) an award of Scottish Adult Disability Living Allowance to which the individual was not entitled, or

(ii) a higher award than that to which the individual was entitled,

(c) the Scottish Ministers are not considering a request for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance, and

(d) the individual has not made an appeal to the First-tier Tribunal for Scotland or Upper Tribunal against the Scottish Ministers’ determination of the individual’s entitlement to Scottish Adult Disability Living Allowance, that has not yet been determined.

(2) In making a determination required by paragraph (1) the Scottish Ministers are to use—

(a) the information which led to the original determination,

(b) the information they have obtained in connection with the individual’s entitlement to Scottish Adult Disability Living Allowance, and

(c) any other information available to them that is relevant to their consideration of whether the individual is entitled to Scottish Adult Disability Living Allowance.

(3) In this regulation references to an “error” are to—

(a) an error in the performance of a function conferred by these Regulations or the 2018 Act, including a determination being made—

(i) wrongly, or

(ii) correctly but on the basis of—

(aa) incorrect information, or

(bb) an assumption which proves to be wrong, or

(b) a new determination having not been made after an assumption on the basis of which an earlier determination was made has proven to be wrong.

Determination to effect a deduction decision

53.—(1) The Scottish Ministers are to make a determination of an individual's entitlement to Scottish Adult Disability Living Allowance, without receiving an application, where the circumstances in paragraphs (2) and (3) apply.

(2) This paragraph applies where—

(a) regulation 46 (form of payment – giving Scottish Adult Disability Living Allowance by way of deduction) allows Scottish Adult Disability Living Allowance to be given to the individual by way of deduction, or

(b) Scottish Adult Disability Living Allowance is being given to the individual by way of deduction, and the Scottish Ministers consider that may no longer be appropriate.

(3) This paragraph applies where the Scottish Ministers have decided to—

(a) vary the amount of Scottish Adult Disability Living Allowance to be given by way of deduction (including introducing a deduction, where the full amount of Scottish Adult Disability Living Allowance was previously given as money),

(b) vary any period for which the individual's Scottish Adult Disability Living Allowance is to be given by way of deduction, that may have been specified in a previous determination of the individual's entitlement, or

(c) cease making deductions, and instead give the individual's Scottish Adult Disability Living Allowance in the form of money.

(4) The Scottish Ministers are to make a determination, without receiving an application, where an individual who is receiving Scottish Adult Disability Living Allowance by way of deduction under a previous determination of entitlement notifies the Scottish Ministers that the individual—

(a) withdraws their agreement to their Scottish Adult Disability Living Allowance being given by way of deduction,

(b) wishes the Scottish Ministers to increase the amount of their Scottish Adult Disability Living Allowance that is given by way of deduction,

(c) wishes the Scottish Ministers to decrease the amount of their Scottish Adult Disability Living Allowance that is given by way of deduction (including ceasing the deduction), or

(d) wishes the Scottish Ministers to amend the length of any period referred to in paragraph (3)(b).