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

PART 4 - Eligibility: Care component and Mobility Component

Care component criterion: lowest, middle or highest rate care component

12.—(1) Subject to regulation 25 (determinations of awards of individuals over relevant age) and regulation 26 (special rules for terminal illness) and regulation 27 (middle rate of care component when undergoing dialysis), an individual satisfies the care component criterion in respect of any period throughout which at least one of the conditions is satisfied—

(a) the individual is so severely disabled physically or mentally that they require in connection with their bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods),

(b) the individual is so severely disabled physically or mentally that they cannot prepare a cooked meal for themselves if they have the ingredients,

(c) the individual is so severely disabled physically or mentally that they require from another person—

(i) frequent attention throughout the day in connection with their bodily functions, or

(ii) continual supervision throughout the day in order to avoid substantial danger to the individual or others, or

(d) the individual is so severely disabled physically or mentally that they require—

(i) prolonged or repeated attention from another person at night in connection with their bodily functions, or

(ii) another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over the individual at night in order to avoid substantial danger to the individual or others.

(2) An individual who satisfies the relevant component of the care criterion in paragraph (1) before reaching the relevant age is not entitled to the care component unless—

(a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy at least one of the conditions mentioned in paragraph (1), and

(b) the individual is likely to continue to satisfy at least one of those conditions throughout the period of 26 weeks beginning with that date.

(3) An individual who only satisfies the relevant component of the care criterion in paragraph (1) after reaching the relevant age is not entitled to the care component unless—

(a) throughout the period of 26 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy at least one of the conditions mentioned in paragraph (1), and

(b) the individual is likely to continue to satisfy at least one of those conditions throughout the period of 26 weeks beginning with that date.

(4) Subject to regulations 7(6) (transfer determination), 10(8)(d) (change of circumstances reported prior to transfer), 25 (determinations of awards of individuals over relevant age) 26 (special rules for terminal illness) and 27 (middle rate of care component when undergoing dialysis), the amount of the care component that an individual is entitled to be given for each week in the period for which they are awarded that component is—

(a) the highest rate (see regulation 38(1)(c) (component rates)), by virtue of having satisfied or being likely to satisfy one of the conditions mentioned in paragraph (1)(c) and one of the conditions mentioned in paragraph (1)(d) —

(i) throughout both the period mentioned in paragraph (2)(a) and the period mentioned in paragraph (2)(b) if the individual satisfied or was likely to satisfy those conditions mentioned in paragraph (1)(c) or (1)(d) before reaching the relevant age,

(ii) throughout both the period mentioned in paragraph (3)(a) and the period mentioned in paragraph (3)(b) if the individual only satisfied those conditions after reaching the relevant age,

(b) the middle rate (see regulation 38(1)(b)), by virtue of having satisfied or being likely to satisfy one of the conditions mentioned in paragraph (1)(c) or one of the conditions mentioned in paragraph (1)(d) —

(i) throughout both the period mentioned in paragraph (2)(a) and the period mentioned in paragraph (2)(b) if the individual satisfied that condition before reaching the relevant age,

(ii) throughout both the period mentioned in paragraph (3)(a) and the period mentioned in paragraph (3)(b) if the individual only satisfied or was likely to satisfy that condition after reaching the relevant age, and

(c) (determination of an award after the person has reached the relevant age) the lowest rate (see regulation 38(1)(a)) in any other case

(5) In this regulation—

(a) “attention” means the provision of personal care, prompting or motivation in relation to bodily functions or assistance with communication needs,

(b) “day” is to be construed in relation to the ordinary domestic routine of the household in which the individual lives,

(c) “night” is to be construed in relation to the ordinary domestic routine of the household in which the individual lives,

(d) “require” means reasonably require and cognate expressions are to be construed accordingly, and

(e) “supervision” means the precautionary or anticipatory presence of another person to monitor an individual’s physical, mental or emotional health including monitoring for obstacles or dangerous places or situations.

Mobility requirements: lower rate mobility component

13.—(1) Subject to regulation 7(6) (transfer determination), regulation 25 (determinations of awards of individuals over relevant age) and regulation 26 (special rules for terminal illness), an individual is entitled to the mobility component at the lower rate (see regulation 38(2)(a) (component rates)) if the individual satisfies the condition set out in paragraph (2).

(2) The condition referred to in paragraph (1) is that the individual, though able to walk, cannot move around outdoors without requiring guidance or supervision from another person most of the time as a result of a physical or mental impairment.

(3) When determining whether the individual satisfies the condition in paragraph (2), no account is to be taken of any ability which the individual has to use routes with which they are familiar, without guidance or supervision from another person.

(4) An individual who satisfies or is likely to satisfy the condition set out in paragraph (2) before reaching the relevant age is not entitled to the lower rate of the mobility component unless—

(a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy the condition mentioned in paragraph (2), and

(b) the individual is likely to continue to satisfy the condition mentioned in paragraph (2) throughout the period of 26 weeks beginning with that date.

(5) An individual who only satisfies the condition set out in paragraph (2) after reaching the relevant age is not entitled to the lower rate of the mobility component unless—

(a) throughout the period of 26 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy the condition mentioned in paragraph (2), and

(b) the individual is likely to continue to satisfy the condition mentioned in paragraph (2) throughout the period of 26 weeks beginning with that date.

(6) In this regulation,

(i) “guidance” means direction or leading by physical means or verbal suggestion or persuasion, and

(ii) “require” means reasonably require and cognate expressions are to be construed accordingly, and

(iii) “supervision” means the precautionary or anticipatory presence of another person to monitor an individual’s physical, mental or emotional health including monitoring for obstacles or dangerous places or situations.

Mobility requirements: higher rate mobility component

14.—(1) Subject to regulation 7(6) (transfer determination), regulation 25 (determinations of awards of individuals over relevant age) and regulation 26 (special rules for terminal illness), an individual is entitled to be given the mobility component at the higher rate (see regulation 38(2)(b) (component rates)) if the individual satisfies at least one of the conditions mentioned in paragraph (2).

(2) The conditions referred to in paragraph (1) are—

(a) taking into account the individual’s condition as a whole, the individual’s condition is such that, without having regard to the nature of the location where the individual resides—

(i) the individual is unable to walk,

(ii) the individual’s ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which the individual can make progress on foot without severe discomfort, that the individual is virtually unable to walk, or

(iii) the exertion required to walk would constitute a danger to the individual’s life, or would be likely to lead to a serious deterioration in the individual’s health, from which there would be no recovery, or from which recovery would take a significant period of time,

(b) the individual has no legs or feet (regardless of the use of artificial limbs),

(c) the individual has a severe visual impairment,

(d) the individual is blind and deaf,

(e) the individual has a severe mental impairment and severe behavioural difficulties and satisfies both of the conditions mentioned in regulation 12(1)(c) and (1)(d) (care component).

(3) Where paragraph (2)(a) applies in relation to an individual, the test of being unable or virtually unable to walk is not met where the individual—

(a) is not unable or virtually unable to walk with the use of an artificial limb or artificial aid which the individual normally wears or uses, or

(b) would not be unable or virtually unable to walk if the individual wore or used an artificial aid which is suitable for the individual’s circumstances.

(4) Paragraph (3) is not relevant for the purpose of determining whether an individual is to be taken to satisfy the conditions set out in paragraphs (2)(b) to (e).

(5) An individual is to be taken to have a severe visual impairment, for the purposes of paragraph (2)(c), if—

(a) the individual has visual acuity, with appropriate corrective lenses if necessary, of less than 3/60, or

(b) the individual has visual acuity of 3/60 or more, but less than 6/60, with appropriate corrective lenses if necessary, a complete loss of peripheral visual field and a central visual field of no more than 10 degrees in total.

(6) An individual is taken to be blind and deaf, for the purpose of paragraph (2)(d), if the individual is—

(a) blind where the loss of vision amounts to an absolute loss of vision,

(b) deaf where the loss of hearing when using any artificial aid which they habitually use or which is suitable in their case amounts to not less than 80% on a scale where 100% represents absolute deafness, and

(c) unable, without the assistance of another person, to walk to any intended or required destination while out of doors.

(7) An individual is to be taken to have a severe mental impairment, for the purpose of paragraph 2(e), if the individual has a severe impairment of intelligence and social functioning resulting from—

(a) a state of arrested development as a result of a failure of the individual’s brain to grow or develop in the way normally expected, or

(b) a deficiency in the functionality of the brain as a result of its incomplete physical development.

(8) An individual is to be taken to have severe behavioural difficulties, for the purpose of paragraph 2(e), if the individual exhibits disruptive behaviour which—

(a) is extreme,

(b) regularly requires another person to intervene in order to prevent or reduce the likelihood of physical injury to the individual or another person, and

(c) is so unpredictable that another person requires to be awake and watching over the individual while the individual is awake.

(9) In paragraph 8(b), reference to another person intervening relates to the provision of care and support of, or treatment provided to, the individual.

(10) An individual who satisfies or is likely to satisfy one of the conditions set out in paragraph (2) before reaching the relevant age is not entitled to the higher rate of the mobility component unless—

(a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy one of the conditions mentioned in paragraph (2), and

(b) the individual is likely to continue to satisfy one of those conditions throughout the period of 26 weeks beginning with that date.

(11) An individual who only satisfies or is likely to satisfy one of the conditions set out in paragraph (2) after reaching the relevant age is not entitled to the higher rate of the mobility component unless—

(a) throughout the period of 26 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy one of the conditions mentioned in paragraph (2), and

(b) the individual is likely to continue to satisfy one of those conditions throughout the period of 26 weeks beginning with that date.

(12) In this regulation, “require” means reasonably require and cognate expressions are to be construed accordingly.

Exclusion of entitlement to mobility component

15.—(1) An individual is not entitled to the mobility component of Scottish Adult Disability Living Allowance for a period unless, during most of that period, the individual’s physical or mental condition is such that they are able, from time to time, to benefit from assistance for movement.