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

PART 7 - Entitlement under special rules for terminal illness and when undergoing dialysis

Entitlement under special rules for terminal illness

26.—(1) An individual who has a terminal illness is to be treated as satisfying the conditions for the highest rate of the care component of Scottish Adult Disability Living Allowance.

(2) An individual who is terminally ill before reaching the relevant age is to be treated as satisfying the conditions for the higher rate of the mobility component of Scottish Adult Disability Living Allowance.

(3) Paragraphs (1) and (2) apply regardless of the period of time for which the individual has had the terminal illness.

(4) An individual who had reached the relevant age when they became terminally ill is, subject to the restrictions in paragraph (5), to be treated as satisfying the conditions referred to in regulations 13(5) and 14(11) for any rate of mobility component to which they are entitled.

(5) The restrictions referred to in paragraph (4) are—

(a) where the individual was entitled to the mobility component of Scottish Adult Disability Living Allowance at the lower rate prior to becoming terminally ill, 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 given,

(b) where the individual was not entitled to the mobility component of Scottish Adult Disability Living Allowance prior to becoming terminally ill, the Scottish Ministers may not award that component at either the lower or higher rate.

(6) Subject to paragraphs (7) and (8), the individual’s entitlement to the rates referred to in paragraphs (1) and (2) begin on the date on which—

(a) 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), where the individual was previously awarded, and has an ongoing entitlement to, Scottish Adult Disability Living Allowance, on the basis of a determination that the individual was entitled to the care component or mobility component or both in relation to a condition other than terminal illness, or

(b) the clinical judgement was made in accordance with paragraphs (9) and (10) (“the judgement”),

whichever is the earlier.

(7) Where the judgement mentioned in paragraph (6)(b) is dated not more than 26 weeks earlier than the date in paragraph (6)(a) (“the applicable date”), the Scottish Ministers have the power, when making their determination, to specify that an individual’s entitlement begins—

(a) up to a maximum of 26 weeks prior to the applicable date, and

(b) on or after the day these Regulations come into force.

(8) Where the judgement mentioned in paragraph (6)(b)—

(a) is dated more than 26 weeks earlier than the date in paragraph (6)(a) (“the applicable date”), and

(b) an appropriate healthcare professional confirms that the judgement is still accurate by making a judgement in accordance with paragraphs (9) and (10),

an individual’s entitlement can only begin—

(c) up to a maximum of 26 weeks prior to the applicable date, and

(d) on or after the day these Regulations come into force.

(9) For the purpose of these Regulations, an individual is to be regarded as having a terminal illness for the purpose of determining entitlement to Scottish Adult Disability Living Allowance if it is the clinical judgement of an appropriate healthcare professional that the individual has a progressive disease that can reasonably be expected to cause the individual’s death.

(10) Subject to paragraph (11), an appropriate healthcare professional exercising the judgement described in paragraph (9) must have regard to the guidance prepared and made publicly available by the Chief Medical Officer of the Scottish Administration in accordance with paragraph 1(3) of schedule 5 of the 2018 Act(^[41]).

(11) Where regulation 21 (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies to the individual, an appropriate healthcare professional mentioned in paragraph (8)(b) need not have regard to the guidance mentioned in paragraph (10) where it would not be reasonable in the circumstances to insist on the judgement being formed with regard to that guidance.

(12) In this regulation, “an appropriate healthcare professional” means—

(a) a registered medical practitioner or a registered nurse who is—

(i) involved in the diagnosis or care of the individual, and

(ii) acting in their professional capacity, or

(b) where regulation 21 applies to the individual, a person who—

(i) has equivalent qualifications to a registered medical practitioner or a registered nurse in an EEA state, Gibraltar or Switzerland,

(ii) is a member of the professional body equivalent to the General Medical Council or Nursing and Midwifery Council in that EEA state, Gibraltar or Switzerland, and

(iii) meets the requirements of sub-paragraph (a)(i) and (ii).

(13) Where an individual has previously received Scottish Adult Disability Living Allowance or a benefit listed in paragraph (14)(a) for a period (during which, by virtue of regulation 6(2)(b)(iii)(bb), any payment of Disability Living Allowance which was paid for the same period as Scottish Adult Disability Living Allowance was also paid is disregarded) and a determination is subsequently made that the individual is entitled to Scottish Adult Disability Living Allowance at a higher rate for that period by virtue of this regulation, that individual will be entitled to the difference between the value of entitlement to Scottish Adult Disability Living Allowance under the subsequent determination and the value of Scottish Adult Disability Living Allowance or the benefit listed in paragraph (14)(a) to which that individual was previously entitled for that period.

(14) For the purpose of paragraph (13)—

(a) the benefits are—

(i) Adult Disability Payment

(ii) armed forces independence payment,

(iii) Attendance Allowance,

(iv) Disability Living Allowance,

(v) Personal Independence Payment, and

(vi) Pension Age Disability Payment.

(b) regulation 4 (entitlement to other benefits) and section 71(7) (disability living allowance) of the Social Security Contributions and Benefits Act 1992(^[42]) are treated as omitted .

Entitlement to middle rate of care component when undergoing dialysis

27.—(1) Except as provided in paragraph (3), an individual who suffers from renal failure and who is undergoing the treatment specified in paragraph (2) is treated as meeting one of the conditions—

(a) in regulation 12(1)(c) where they undergo renal dialysis by day,

(b) in regulation 12(1)(d) where they undergo renal dialysis by night,

(c) in either paragraph (1)(c) or paragraph (1)(d) of regulation 12, but not both, if they undergo renal dialysis by day and by night.

(2) The treatment referred to in paragraph (1) is the undergoing of renal dialysis—

(a) two or more times a week, and

(b) which either—

(i) is of a type which normally requires the attendance of or supervision by another person during the period of dialysis, or

(ii) which, because of the particular circumstances of their case, in fact requires another person, during the period of dialysis, to attend in connection with the bodily functions of the individual undergoing renal dialysis or to supervise that individual in order that they avoid substantial danger to themselves.

(3) Paragraph (1) does not apply to an individual undergoing the treatment specified in paragraph (2) where the treatment—

(a) is provided under the National Health Service (Scotland) Act of 1978(^[43]), the National Health Service Act of 2006(^[44]), or the National Health Service (Wales) Act of 2006(^[45]) or the Health and Personal Social Services (Northern Ireland) Order 1972(^[46]);

(b) is in a hospital or similar institution,

(c) is out-patient treatment, and

(d) takes place with the assistance of staff or the hospital or similar institution.

(4) In this regulation, a “hospital or similar institution” means—

(a) a health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978(^[47])) in Scotland,

(b) a health service hospital (within the meaning of section 275(1) of the National Health Service Act 2006(^[48])) in England,

(c) a hospital in Wales vest in—

(i) an NHS trust,

(ii) a Local Health Board, or

(iii) the Welsh Ministers,

(d) a hospital (within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Personal Social Services (Northern Ireland) Order 1991(^[49])) in Northern Ireland.

(5) For the purposes of determining whether an individual is to be treated as meeting one of the conditions specified in paragraph (1), any period of time where paragraph (3) applies to the individual can be included for the purposes of calculating the periods required by regulation 12 (2) and (3).

(6) In this regulation—

(a) “NHS trust” means a body established under section 18 of the National Health Service (Wales) Act 2006, and

(b) “Local Health Board” means a body established under section 11 of that Act.