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

PART 3 - Transfer from Disability Living Allowance to Scottish Adult Disability Living Allowance

Relevant individuals eligible for transfer

5.—(1) An individual is eligible to have their entitlement to disability assistance transferred from an entitlement to Disability Living Allowance to an entitlement to Scottish Adult Disability Living Allowance when the individual—

(a) has an award of Disability Living Allowance and appears to the Scottish Ministers to be likely to be eligible for Scottish Adult Disability Living Allowance, and

(b) is aged 18 years or older.

(2) An individual who is eligible under paragraph (1) is a “relevant individual” for the purposes of these Regulations.

Notice of intention to transfer to Scottish Adult Disability Living Allowance

6.—(1) The Scottish Ministers are to notify each relevant individual of their intention to transfer that individual's entitlement to disability assistance from an entitlement to Disability Living Allowance to an entitlement to Scottish Adult Disability Living Allowance.

(2) Notice under paragraph (1) must—

(a) be given in a way that leaves the relevant individual with a record of the information which they can show to, or otherwise share with, others,

(b) inform the relevant individual that—

(i) they have been identified as a relevant individual for the purposes of transfer to Scottish Adult Disability Living Allowance,

(ii) the Scottish Ministers will make a determination, without receiving an application, to transfer the individual's entitlement to Disability Living Allowance to an entitlement to Scottish Adult Disability Living Allowance within a period to be specified within the notice (the individual will be notified when the determination is made and informed about their award and start date of Scottish Adult Disability Living Allowance), and

(iii) the individual's award of Disability Living Allowance will cease—

(aa) immediately before the award of Scottish Adult Disability Living Allowance begins, or

(bb) where a transferring individual was paid Disability Living Allowance one week in advance and 3 weekly in arrears, the date one week after the date their entitlement to Scottish Adult Disability Living Allowance begins.

(3) Where a notice under paragraph (1) is given—

(a) to a transferring individual who, before a transfer determination is made under regulation 7(1), ceases to be—

(i) ordinarily resident in Scotland, or

(ii) someone to whom regulation 16(3) (residence and presence conditions), regulation 18(1) (serving members of His Majesty’s forces, civil servants and their family members) or regulation 21(2) (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies, or

(b) in error where the individual is neither—

(i) ordinarily resident in Scotland, nor

(ii) an individual who is habitually resident in an EEA state, Gibraltar or Switzerland and has a genuine and sufficient link to Scotland,

the duty on the Scottish Ministers in regulation 7(1) does not apply.

(4) Where paragraph (3) applies in respect of an individual and a determination under regulation 7(1) has not been made, the Scottish Ministers are to notify the individual that the duty on the Scottish Ministers in regulation 7(1) does not apply.

(5) In paragraph (3), “sufficient link” means a link to Scotland that is sufficiently close that regulation 16(3) (residence and presence conditions) or 21(2) (persons residing outside the United Kingdom to whom a relevant EU regulation applies) would be incompatible with the applicable agreement mentioned in either of those regulations, if the relevant individual were not entitled to Scottish Adult Disability Living Allowance.

(6) An individual on whom the Scottish Ministers have served a notice of intention to transfer in accordance with paragraph (1) is a “transferring individual” for the purposes of these Regulations.

Determination without application of entitlement to Scottish Adult Disability Living Allowance

7.—(1) The Scottish Ministers are to make a determination in respect of a transferring individual, without receiving an application, of that individual's entitlement to Scottish Adult Disability Living Allowance (“a transfer determination”).

(2) Entitlement to Scottish Adult Disability Living Allowance under a transfer determination begins on the date specified in the notice of determination given to the transferring individual in accordance with section 40 of the 2018 Act.

(3) Subject to paragraph (5), the transfer determination is to be made on the basis of—

(a) such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the transferring individual's entitlement to Disability Living Allowance, and

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

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

(a) the individual—

(i) before receiving a notice under regulation 6(1), reported a change of circumstances to the Secretary of State for Work and Pensions, which had not been taken into account for the individual's entitlement to Disability Living Allowance, or

(ii) has, since receiving a notice under regulation 6(1), notified a change of circumstances to the Scottish Ministers, and

(b) following the transfer determination, a further determination is to be made under regulation 10 (change of circumstances).

(5) Subject to regulation 9 (terminal illness before transfer) and notwithstanding regulations 12(4) (care component), 13 and 14 (mobility component), 25 (determinations of awards of individuals over relevant age) and 27 (middle rate of care component when undergoing dialysis), a transfer determination must be made on the basis that the transferring individual is entitled to the components and rates of Scottish Adult Disability Living Allowance that are equivalent to those components and rates of Disability Living Allowance to which the individual was entitled immediately before the date of transfer.

(6) A transfer determination—

(a) may be made on the assumption that whatever can be discerned about the transferring individual's circumstances from the information mentioned in paragraph (4) remains accurate on the date on which the determination is made,

(b) notwithstanding the generality of head (a), is to be made on the assumption that the conditions relating to the eligibility criteria set out in regulations 16 to 23 (residence and presence) are satisfied in the individual's case, and

(c) must be made not later than the end of the period specified within the notice under regulation 6(1) unless the Scottish Ministers have—

(i) good reason to extend that period,

(ii) agreed the period for extension with the Secretary of State for Work and Pensions, and

(iii) notified the transferring individual of the extension and the reason for it.

Effect of transfer determination on entitlement to Disability Living Allowance

8.—(1) Where a transfer determination is made that the transferring individual is entitled to Scottish Adult Disability Living Allowance, the transferring individual's entitlement to Disability Living Allowance will cease on—

(a) the date their entitlement to Scottish Adult Disability Living Allowance begins,

(b) where a transferring individual was paid Disability Living Allowance one week in advance and 3 weekly in arrears, the date one week after the date their entitlement to Scottish Adult Disability Living Allowance begins, or

(c) where regulation 9 (exceptions for terminal illness before transfer) applies, the date their entitlement to Scottish Adult Disability Living Allowance would have begun had regulation 8(4) not applied to set an earlier date of entitlement.

(2) Where paragraph (1)(b) applies—

(a) section 71(7) (disability living allowance) of the Social Security Contributions and Benefits Act 1992(^[19]), and

(b) regulation 4(c) (entitlement to other benefits),

do not apply in respect of the first week of entitlement to Scottish Adult Disability Living Allowance.

Exceptions to regulation 7 for terminal illness before transfer

9.—(1) Where the Scottish Ministers have—

(a) received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 72(5) (terminal illness) of the Social Security Contributions and Benefits Act 1992(^[20]) immediately before the date of transfer, or

(b) not received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 72(5) of the Social Security Contributions and Benefits Act 1992, but become aware, before they have made a transfer determination, that the transferring individual has a terminal illness in terms of regulation 26(9) (entitlement under special rules for terminal illness),

the transfer determination must be made on the basis that the transferring individual satisfies the conditions for the highest rate of care component and, except where the restrictions referred to in paragraph (2) apply, the higher rate of mobility component of Scottish Adult Disability Living Allowance.

(2) Where the transferring individual, on or after reaching the relevant age, becomes terminally ill under section 72(5) of the Social Security Contributions and Benefits Act 1992 or in terms of regulation 26(9), the restrictions in paragraph (3) apply in relation to the transfer determination.

(3) The restrictions referred to in paragraph (2) are—

(a) where the transferring individual was entitled to the mobility component of Disability Living Allowance at the lower rate immediately prior to the date of transfer, then regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers—

(i) may only make an award for the lower rate of that component, and

(ii) may only make such an award where the entitlement results from substantially the same condition or conditions in respect of which the mobility component of Disability Living Allowance was given,

(b) where the transferring individual was entitled to the mobility component of Disability Living Allowance at the higher rate immediately before the date of transfer, the Scottish Ministers

(i) may not award the lower rate of that component, and

(ii) may only award the higher rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component of —Disability Living Allowance was given, and

(c) where the transferring individual was not entitled to the mobility component of Disability Living Allowance immediately before the transfer date, the Scottish Ministers may not award that component at either the lower or higher rate.

(4) Where paragraphs (1) applies—

(a) paragraphs (6) to (8) of regulation 26 do not apply, and

(b) the transferring individual’s entitlement to Scottish Adult Disability Living Allowance will commence on whichever is the later of—

(i) the date that these Regulations come into force,

(ii) the day that the clinical judgement was made in accordance with regulation 26(9), or

(iii) the day one year before the transfer determination was made.

(5) Where paragraph (1)(a) applies, paragraphs (9), (10) and (11) of regulation 26 (entitlement under special rules for terminal illness) are to be treated as satisfied for the transferring individual.

(6) Where a transferring individual has previously received a benefit listed in regulation 4 for a period and the transfer determination determines that the transferring individual is entitled to Scottish Adult Disability Living Allowance at a higher rate for that period by virtue of this regulation, that transferring individual will be entitled to the difference between the value of entitlement to Scottish Adult Disability Living Allowance under the transfer determination and the value of the benefits listed in regulation 4 to which that transferring individual was previously entitled for that period (but disregarding the payment of Disability Living Allowance during any period for which both Disability Living Allowance and Scottish Adult Disability Living Allowance is paid by virtue of regulation 6(2)(b)(iii)(bb)).

(7) Where paragraph (4) applies—

(a) section 71(7) (disability living allowance) of the Social Security Contributions and Benefits Act 1992(^[21]), and

(b) regulation 4(c) of these Regulations (entitlement to other benefits),

do not apply in respect of the period between commencement of entitlement to Scottish Adult Disability Living Allowance and cessation of entitlement to Disability Living Allowance.

Change of circumstances reported prior to transfer

10.—(1) The Scottish Ministers must make a determination of a transferring individual's entitlement to Scottish Adult Disability Living Allowance ("the review determination"), without receiving an application, where—

(a) the transferring individual —

(i) before receiving a notice under regulation 6(1) (notice of intention to transfer), reported a change of circumstances to the Secretary of State for Work and Pensions, which had not been taken into account for the transferring individual’s entitlement to Disability Living Allowance, or

(ii) has, since receiving a notice under regulation 6(1), notified a change of circumstances to the Scottish Ministers,

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

(c) the transferring individual has not requested a re-determination under section 41 of the 2018 Act, or an appeal under section 46 of the 2018 Act, in relation to the transfer determination.

(2) The review determination is to be made as soon as reasonably practicable after—

(a) the transfer determination, or

(b) the Scottish Ministers become aware of the change in circumstances,

whichever is the later.

(3) The change of circumstance referred to in paragraph (1)—

(a) is not to be regarded as relating to the transferring individual's entitlement to Disability Living Allowance, and

(b) is to be taken into consideration by the Scottish Ministers in making the review determination.

(4) Where, as a result of the review determination, a transferring individual's entitlement to Scottish Adult Disability Living Allowance is at a higher rate than the transfer determination, entitlement will begin—

(a) if the transferring individual notifies the change—

(i) within one month of the change occurring, on the date when the transferring individual first satisfies the requirements for a higher rate of the care component or mobility component,

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

(iii) in any other case, on the date of notification of the change, or

(b) if the date under paragraph 4(a) is before these Regulations come into force, the date that these Regulations come into force.

(5) Where a transferring individual's entitlement to Scottish Adult Disability Living Allowance is determined in the review determination to be at a lower amount or the same amount as awarded by the transfer determination, or to have fewer components, entitlement under the review determination will take effect on the day that the Scottish Ministers make the review determination.

(6) Where a transferring individual has previously received Disability Living Allowance or Scottish Adult Disability Living Allowance for a period and a review determination is subsequently made that the same transferring individual is entitled to Scottish Adult Disability Living Allowance at a higher rate for that period by virtue of paragraph (4), that transferring individual will be entitled to the difference between the value of entitlement to Scottish Adult Disability Living Allowance under the review determination and the value of Disability Living Allowance or Scottish Adult Disability Living Allowance to which that transferring individual was previously entitled for that period (but disregarding the payment of Disability Living Allowance during any period for which both Disability Living Allowance and Scottish Adult Disability Living Allowance is paid by virtue of regulation 6(2)(b)(iii)(bb)).

(7) Where the change of circumstance notified under paragraph (1) occurred after the transferring individual had reached the relevant age, the restrictions in paragraph (8) will apply in relation to the determination under paragraph (1).

(8) The restrictions referred to in paragraph (7) are—

(a) where the transfer determination awarded the mobility component at the lower rate then, regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers—

(i) may only make an award for the lower rate of that component, and

(ii) may only make such an award where the entitlement results from substantially the same condition or conditions in respect of which the mobility component of Scottish Adult Disability Living Allowance was previously given,

(b) where the transfer determination awarded the mobility component at the higher rate, the Scottish Ministers—

(i) may not award the lower rate of that component, and

(ii) may only award the higher rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Scottish Adult Disability Living Allowance was given,

(c) where the transfer determination did not include an award of the mobility component, the Scottish Ministers may not award that component at either the lower or higher rate,

(d) unless the transfer determination awarded the care component award at the lowest rate then, regardless of whether the previous award was for the highest or middle rate of the care component, and regardless of whether the award would otherwise have been for the lowest rate, the Scottish Ministers may not award the lowest rate of the care component.

Appointees

11.—(1) A person appointed by the Secretary of State for Work and Pensions under regulation 33 of the Social Security (Claims and Payments) Regulations 1987(^[22]) to receive Disability Living Allowance on behalf of a transferring individual is to be treated on and after the date of transfer as though appointed by the Scottish Ministers to act on behalf of that individual under section 85B (appointees for adults) of the 2018 Act(^[23]).

(2) As soon as reasonably practicable after the date of transfer, the Scottish Ministers must—

(a) consider whether the conditions for making an appointment in respect of the individual are met (having regard to section 85B(3) of the 2018 Act),

(b) consider whether to terminate the appointment that is treated as having been made by virtue of paragraph (1) and terminate it if they consider it appropriate, and

(c) if they have terminated an appointment in pursuance of head (b), appoint under section 85B of the 2018 Act another person to act on the individual's behalf if they consider it appropriate to do so.

(3) The duty in paragraph (2) does not apply where the Scottish Ministers have already appointed the person mentioned in paragraph (1) to act on behalf of that individual under section 85B of the 2018 Act.