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

SCHEDULE 1 - PART 3A - Applications for Adult Disability Payment by individuals entitled to Scottish Adult Disability Living Allowance

Interpretation

15A. In this Part of the schedule—

“eligible individual” means an individual who is eligible under paragraph 15B for an interim award of Adult Disability Payment,

“interim award” means an award of entitlement to Adult Disability Payment under an interim determination,

“interim determination” means a determination required by paragraph 15C(1),

“review determination” means a determination required by paragraph 15H,

Eligible individuals

15B.—(1) An individual who—

(a) was under 65 years old on 8 April 2013, and

(b) has an ongoing entitlement to Scottish Adult Disability Living Allowance when they make an application for Adult Disability Payment

is eligible for an interim award of Adult Disability Payment in accordance with this Part of the schedule.

Determination of entitlement to Adult Disability Payment – interim award

15C.—(1) Upon receipt of an application for Adult Disability Payment by an eligible individual, the Scottish Ministers are to make a determination of the eligible individual’s entitlement to Adult Disability Payment.

(2) The interim determination must be made on the assumption that the eligible individual—

(a) other than Scottish Adult Disability Living Allowance, is not entitled to any of the benefits set out in regulation 4 (entitlement to other benefits), and

(b) meets the residence and presence conditions set out in regulations 16 to 23 (residence and presence conditions).

(3) Entitlement to Adult Disability Payment under an interim determination begins on the date specified in the notice of determination given to the individual in accordance with section 40 of the 2018 Act.

(4) Subject to sub-paragraph (6), the interim determination is to be made on the basis of—

(a) such information as the Scottish Ministers have received in respect of the individual's entitlement to Scottish Adult Disability Living Allowance, and

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

(5) Subject to paragraph 15G(special rules for terminal illness), a determination must be made in accordance with paragraph 15D (entitlement to Adult Disability Payment).

(6) The interim determination does not need to be made on the basis of the information mentioned in sub-paragraph (4)(b) where—

(a) the eligible individual—

(i) before making the application for Adult Disability Payment reported a change of circumstances to the Scottish Ministers which has not been taken into account for the individual’s entitlement to Scottish Adult Disability Living Allowance, or

(ii) has, since making the application for Adult Disability Payment, notified a change of circumstances to the Scottish Ministers, and

(b) following the interim determination , a review determination under paragraph 15H (review determination) is to be made.

(7) An interim determination may be made on the assumption that whatever can be discerned about the eligible individual's circumstances from the information mentioned in sub-paragraph (4) remains accurate on the date on which the determination is made.

Entitlement to Adult Disability Payment under an interim determination

15D.—(1) For the purposes of an interim determination in accordance with paragraph 15C, an individual may be awarded the daily living component of Adult Disability Payment at the transitional rate specified in paragraph 15E(1) instead of being awarded that component at the standard or the enhanced rate in accordance with regulation 5(2) or (3).

(2) An interim determination is to be made on the basis that an individual who had been entitled to the—

(a) lowest rate of the care component of Scottish Adult Disability Living Allowance immediately prior to making an application for Adult Disability Payment is entitled to the transitional rate of the daily living component of Adult Disability Payment,

(b) middle rate of the care component of Scottish Adult Disability Living Allowance immediately prior to making an application for Adult Disability Payment is entitled to the standard rate of the daily living component of Adult Disability Payment,

(c) highest rate of the care component of Scottish Adult Disability Living Allowance immediately prior to making an application for Adult Disability Payment is entitled to the enhanced rate of the daily living component of Adult Disability Payment,

(d) lower rate of the mobility component of Scottish Adult Disability Living Allowance immediately prior to making an application for Adult Disability Payment is entitled to the standard rate of the mobility component of Adult Disability Payment

(e) higher rate of the mobility component of Scottish Adult Disability Living Allowance immediately prior to making an application for Adult Disability Payment is entitled to the enhanced rate of the mobility component of Adult Disability Payment.

Amount and form and time of payment of Adult Disability Payment

15E.—(1) The weekly rate of payment of the daily living component of Adult Disability Payment is, where the individual is entitled to the transitional rate,[ £26.90].

(2) Where an award of Adult Disability Payment is made to an eligible individual, 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) weekly in advance, or

(iii) 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.

Effect of interim determination on entitlement to Scottish Adult Disability Living Allowance

15F. The individual’s award of Scottish Adult Disability Living Allowance will cease on—

(a) the date their entitlement to Adult Disability Payment begins,

(b) where paragraph 15G (special rules for terminal illness) applies, the date their entitlement to Adult Disability Payment would have begun had paragraph 15G(4) not applied to set an earlier date of entitlement.

Special rules for terminal illness – interim determinations

15G.—(1) Where Scottish Ministers become aware before they have made the interim determination that an eligible individual who wishes to apply for Adult Disability Payment has a terminal illness in terms of regulation 26(7), the interim determination must be made on the basis that the individual satisfies the conditions for the enhanced rate of the daily living component of Adult Disability Payment and—

(a) if the individual became terminally ill before reaching the relevant age, that the individual satisfies the conditions for the enhanced rate for the mobility component of Adult Disability Payment

(b) if the individual had reached the relevant age when they became terminally ill and made the application for Adult Disability Payment mentioned in paragraph 15B(1)(b) before 31 December 2027, that the individual satisfies the conditions for the enhanced rate for the mobility component of Adult Disability Payment, and

(c) if the individual had reached the relevant age when they became terminally ill and did not make the application for Adult Disability Payment mentioned in paragraph 15B(1)(b) before 31 December 2027, that the individual satisfies the conditions for—-

(i) the standard rate of the mobility component of Adult Disability Payment if the individual was entitled to the lower rate of the mobility component of Scottish Adult Disability Living Allowance immediately prior to making the application for Adult Disability Payment,

(ii) the enhanced rate of the mobility component of Adult Disability Payment if the individual was entitled to the higher rate of the mobility component of Scottish Adult Disability Living Allowance immediately prior to making the application for Adult Disability Payment, and

(iii) no mobility component of Adult Disability Payment if the individual was not entitled to the mobility component of Scottish Adult Disability Living Allowance immediately prior to making the application for Adult Disability Payment. .

(2) Where sub-paragraph (1) applies—

(a) paragraphs (4) to (6) of regulation 26 (special rules for terminal illness) do not apply, and

(b) the individual's entitlement to Adult Disability Payment will commence on whichever is the later of—

(i) the date the individual’s application for Adult Disability Payment was made, where the application included information about the individual’s terminal illness,

(ii) the date the Scottish Ministers become aware of the individual’s terminal illness (whether as a result of the individual notifying a change in circumstances or otherwise),

(iii) the day that the clinical judgement was made in accordance with regulation 26(7).

Review determination of entitlement to Adult Disability Payment

15H.—(1) The Scottish Ministers are to make a determination of an eligible individual's entitlement to Adult Disability Payment (a “review determination”) as soon as reasonably practicable after the interim determination.

(2) Sub-paragraph (1) does not apply—

(a) to individuals to whom paragraph 15G (special rules for terminal illness) applies, or

(b) where an individual has requested a re-determination under section 41 of the 2018 Act, or made an appeal under section 46 of the 2018 Act, in relation to the interim determination.

(3) Subject to paragraph 15J (when an increase in level of entitlement takes effect) and 15K (when a decrease in level or cessation of entitlement takes effect), entitlement to Adult Disability Payment under a review determination under sub-paragraph (1) begins on the date specified in the notice of determination given to the individual in accordance with section 40 of the 2018 Act.

(4) The review determination under sub-paragraph (1) is to be made on the basis of any information that—

(a) the Scottish Ministers have received in respect of the individual's entitlement to Scottish Adult Disability Living Allowance,

(b) was provided in the individual’s application for Adult Disability Payment,

(c) the Scottish Ministers requested from the individual, and

(d) is available to the Scottish Ministers that appears to them to be relevant.

(5) Where—

(a) the eligible individual reported a change of circumstances to the Scottish Ministers whether before the eligible individual made the application for Adult Disability Payment or after making the application,

(b) the change of circumstances had not been taken into account for the individual’s entitlement to Scottish Adult Disability Living Allowance, and

(c) the Scottish Ministers have made a transfer determination without taking the change in circumstances into account

the change of circumstances is not to be regarded as relating to the eligible individual’s entitlement to Scottish Adult Disability Living Allowance and is to be taken into consideration by the Scottish Ministers in making the review determination.

(6) Where the eligible individual has reached the relevant age before the review determination under sub-paragraph (1), and the eligible individual made the application for Adult Disability Payment before 31 December 2027, the eligible individual will be treated as being under the relevant age for the purposes of the review determination.

Time of payment

15I.—(1) Where an award of Adult Disability Payment is made under a review determination, 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) weekly in advance, or

(iii) 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.

When an increase in level of entitlement takes effect

15J.—(1) Subject to regulation 35(4) to (6) (beginning of entitlement to assistance), where, as a result of a review determination, the amount of Adult Disability Payment payable in respect of an individual is increased, or their entitlement to a component is awarded, entitlement to the increased award or the component begins on the date identified in accordance with regulation 35 (4) to (6) as applied to the eligible individual’s application for Adult Disability Payment

(2) Where an individual has previously received Adult Disability Payment for a period under an interim determination and a review determination has subsequently been made that the same individual is entitled to Adult Disability Payment at a higher rate for the period starting on the date identified in accordance with regulation 35(4) to (6) and ending on the date of the review determination, that individual is entitled to be paid the difference between the value of entitlement to Adult Disability Payment under the review determination and—

(i) the value of Adult Disability Payment to which that individual was previously entitled under the interim determination, and

(ii) the value of the Scottish Adult Disability Living Allowance to which that individual was previously entitled between the date identified in accordance with regulation 35(4) to (6) and the interim determination.

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When a decrease in level or cessation of entitlement takes effect

15K.—(1) Where an individual's entitlement to Adult Disability Payment is determined in the review determination to be at a lower rate than, or the same rate as awarded by, the interim determination, entitlement under the review determination will take effect on the day that the Scottish Ministers make the review determination.

(2) Where sub-paragraph (1) applies, regulation 46 (when a decrease in level or cessation of entitlement takes effect).

Modification of these regulations: eligible individuals

15L.—(1) These Regulations apply to an eligible individual on and after the date of the interim determination with the following modifications—

(a) regulation 3(3) (overview) is to be read as if—

(i) ”for “2 weekly rates of the daily living component” there were substituted “3 weekly rates of the daily living component”, and

(ii) after “(amount and form of Adult Disability Payment)” there were inserted “and paragraph 15E of schedule 2”,

(b) regulation 5 (daily living component) is to be read as if—

(i) in paragraph (1) after “the enhanced rate” there were inserted “or, where the individual is an eligible individual as defined in paragraph 15A of schedule 2, at the transitional rate,

(ii) after paragraph (3) there were inserted—

(3A) An individual is entitled to the daily living component at the transitional rate where paragraph 15D(2)(a) of schedule 2 applies to the individual.,

(iii) and after paragraph (4)(c) there were inserted—

“(d) “the transitional rate” in relation to the daily living component means the weekly rate of the daily living component set in paragraph 15E (1) of schedule 2,”

(c) regulations 35 (when application is made and entitlement begins) 36 (time of payment), 45 (when an increase in level of entitlement takes effect) and 46 (when a decrease or cessation in entitlement takes effect) are treated as omitted.