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

PART 15 - Short-term assistance

Entitlement to short-term assistance

59.—(1) Subject to paragraph (2), an individual who is, or was, entitled to Scottish Adult Disability Living Allowance under a determination made on the basis that the individual has ongoing entitlement is entitled to short-term assistance where—

(a) that determination of the individual’s entitlement to Scottish Adult Disability Living Allowance (“the earlier determination”) has been superseded by—

(i) a determination under section 37 of the 2018 Act, or

(ii) if the earlier determination is a—

(aa) transfer determination under regulation 7 (determination without application of entitlement to Scottish Adult Disability Living Allowance),

(bb) determination under regulation 28 (reinstatement of entitlement to Scottish Adult Disability Living Allowance within a year),

(cc) determination under regulation 29 (request for award of Scottish Adult Disability Living Allowance within a year of end of Disability Living Allowance

(dd) determination without application of an individual’s entitlement to Scottish Adult Disability Living Allowance under regulation 54 (individuals to whom Disability Living Allowance is paid before moving to Scotland),

a determination under section 43 or section 49 of the 2018 Act,

(b) as a result of—

(i) the earlier determination being superseded as mentioned in paragraph (1)(a), or

(ii) a review within the meaning of—

(aa) paragraph 1(2) of schedule 10 of the 2018 Act, or

(bb) paragraph (2),

in relation to the individual’s entitlement to Scottish Adult Disability Living Allowance under the determination superseding the earlier determination as mentioned in paragraph (1)(a)(i) or the earlier determination in paragraph (1)(a)(ii)(aa) or (bb) or (cc) or (dd),

the individual—

(iii) is no longer entitled to Scottish Adult Disability Living Allowance, or

(iv) is entitled to less Scottish Adult Disability Living Allowance than they were under the earlier determination,

(c) the individual’s entitlement to Scottish Adult Disability Living Allowance is under review within the meaning of—

(i) paragraph 1(2) of schedule 10 of the 2018 Act, or

(ii) paragraph (2), and

(d) the individual—

(i) continues to meet the conditions as to residence and presence set out in Part 5 or

(ii) has transferred to become resident in another part of the United Kingdom, and the matter under review is the determination of entitlement for the 13-week period beginning in accordance with regulation 55 (individuals in respect of whom Scottish Adult Disability Living Allowance is paid at the time of moving to another part of the United Kingdom).

(2) An individual’s entitlement to Pension Age Disability Payment is under review in terms of paragraph (1)(b)(ii) and (1)(c)(ii) if—

(a) the First-tier Tribunal for Scotland makes a decision under section 49 of the 2018 Act, in relation to the individual’s entitlement to Scottish Adult Disability Living Allowance under the determination mentioned in paragraph (1)(a)(i) which superseded the earlier determination of the individual’s entitlement to Scottish Adult Disability Living Allowance or the earlier determination mentioned in paragraph (1)(a)(ii)(aa) or (bb),

(b) that decision is set aside after a review under section 43(2) of the Tribunals (Scotland) Act 2014(^[95]) (“the 2014 Act”), and

(c) the First-tier Tribunal for Scotland decide under section 44(2)(a) of the 2014 Act to re-decide the appeal under section 46 of the 2018 Act, and

(d) the First-tier Tribunal for Scotland have yet to make a decision under section 49 of the 2018 Act in relation to the appeal.

(3) Where—

(a) an individual’s entitlement to Scottish Adult Disability Living Allowance is set aside after a review in terms of paragraph (2)(b), and

(b) the individual had previously been awarded short-term assistance on the basis that their entitlement to Scottish Adult Disability Living Allowance was under review by the First-tier Tribunal prior to it making the decision that has been set aside,

the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

(4) Where—

(a) the First-tier Tribunal for Scotland set aside a decision by the Scottish Ministers not to accept a request for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance under the determination mentioned in paragraph (1)(a)(i), and

(b) the Scottish Ministers had previously determined, pursuant to an application made by the individual, that the individual was not entitled to short-term assistance on the basis that the determination referred to in paragraph (1)(a)(i) was not under review,

the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

(5) An individual is not entitled to short-term assistance where the individual is no longer entitled to Scottish Adult Disability Living Allowance as a result of a subsequent determination made under regulation 50(b) (determination following change of circumstances etc.).

(6) An individual to whom regulation 30(2) (effect of admission to a care home on ongoing entitlement to Scottish Adult Disability Living Allowance), regulation 31(2) (effect of admission to hospital on ongoing entitlement to Scottish Adult Disability Living Allowance), regulation 33(3) (effect of legal detention on ongoing entitlement to Scottish Adult Disability Living Allowance), or 35(2) or (3) (entitlement beginning while in alternative accommodation) applies is not entitled to short-term assistance in respect of Scottish Adult Disability Living Allowance for which the value is to be £0 under those regulations.

(7) Where the Scottish Ministers have made a determination under section 37 of the 2018 Act (duty to make determination) that an individual is entitled to short-term assistance, entitlement to short-term assistance begins—

(a) where a request is made under section 41 of the 2018 Act (right to request re-determination) for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph (1)(a)(i), on the day that request is made,

(b) where a notice of appeal is submitted under section 47 of the 2018 Act (initiating an appeal) against the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph (1)(a)(i) or the earlier determination mentioned in paragraph (1)(a)(ii)(aa) or (bb) or (cc) or (dd), on the day that request is made,

(c) where a decision of the Scottish Ministers is made not to accept a request for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph (1)(a)(i), on the day that decision is set aside by the First-tier Tribunal for Scotland,

(d) where a request is made under section 48(1)(b) of the 2018 Act (deadline for appealing) for permission to appeal the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph (1)(a)(i) or the earlier determination mentioned in paragraph (1)(a)(ii)(aa) or (bb) or (cc) or (dd), on the day that request is made, or

(e) where a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph (1)(a)(i) or the earlier determination mentioned in paragraph (1)(a)(ii)(aa) or (bb) or (cc) or (dd), is set aside after a review under section 43(2) of the 2014 Act (review of decisions) and the First-tier Tribunal for Scotland are to make a decision about the individual’s entitlement to Scottish Adult Disability Living Allowance under section 49 of the 2018 Act, on the day that the decision is set aside.

(8) Regulation 56 (periods in respect of a re-determination request) applies to short-term assistance in the same way as it applies to Scottish Adult Disability Living Allowance.

Value and form

60.—(1) The value of short-term assistance payable for any period is equal to V1-V2 where—

(a) V1 is the value of the Scottish Adult Disability Living Allowance the individual would have been given in respect of the period under the earlier determination had the earlier determination not been superseded, and

(b) V2 is the value of the Scottish Adult Disability Living Allowance that the individual is to be given in respect of the period under what is, at the time the individual becomes eligible for short-term assistance in respect of the period, the most recent determination of the individual’s entitlement to Scottish Adult Disability Living Allowance.

(2) The form in which the short-term assistance is to be given is to be the same as the form in which Scottish Adult Disability Living Allowance was given under the earlier determination.

(3) Regulations 46 (form of payment - giving Scottish Adult Disability Living Allowance by way of deduction), 51 (determination following official error – underpayments), 52 (determination following error – overpayments) and 53 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Scottish Adult Disability Living Allowance.

End of entitlement

61.—(1) When an individual’s entitlement to short-term assistance is to end under paragraph (2), the Scottish Ministers are to make a determination without application.

(2) Entitlement to short-term assistance ends on the day—

(a) a determination of an individual’s entitlement to short-term assistance is cancelled under section 26(2) of the 2018 Act (individual’s right to stop receiving assistance),

(b) a re-determination of an individual’s entitlement to Scottish Adult Disability Living Allowance is made by the Scottish Ministers under section 43 of the 2018 Act (duty to re-determine),

(c) the First-tier Tribunal for Scotland makes a determination under section 49 of the 2018 Act (First-tier Tribunal’s power to determine entitlement) in relation to the individual’s entitlement to Scottish Adult Disability Living Allowance under the determination mentioned in paragraph 1(1)(a)(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii)(aa) or (bb) or (cc) or (dd),

(d) that the First-tier Tribunal for Scotland makes a determination to refuse permission under section 48(1)(b) of the 2018 Act (deadline for appealing) to bring an appeal against the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph 1(1)(a)(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii)(aa) or (bb) or (cc) or (dd), or

(e) where the individual withdraws their application to bring an appeal against the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance mentioned in paragraph 1(1)(a) or the earlier determination mentioned in paragraph 1(1)(a)(ii)(aa) or (bb) or (cc) or (dd), on that day.

Reduction of Scottish Adult Disability Living Allowance where short-term assistance has been paid

62. Where an individual has received short-term assistance for a period and a determination is subsequently made that the individual is entitled to Scottish Adult Disability Living Allowance for the same period, any payment of Scottish Adult Disability Living Allowance to be made as a result of the subsequent determination for that period—

(a) where the individual is to be paid Scottish Adult Disability Living Allowance at the same rate as or a lower rate than any short-term assistance and any Scottish Adult Disability Living Allowance already paid to that individual for that period, is to be reduced to £0, and

(b) in any other case, is to be reduced by any short-term assistance and any Scottish Adult Disability Living Allowance already paid to that individual for that period.