Draft Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022: SCoSS scrutiny report

Annex 2 - The draft Regulations

The draft Regulations are composed of 18 provisions:

Regulation 1 states the title and commencement date.

Regulation 2 defines key terms that appear in subsequent regulations.

Regulation 3 requires Social Security Scotland to contact each adult DLA claimants identified as a 'relevant person' for migration to ADP, explaining the process. A 'relevant person' is defined in Regulation 2 as someone who is in receipt of DLA, appears likely to be eligible for ADP, was aged between 16 and 65 in April 2013 and meets the normal requirements of residence in or sufficient link to Scotland.

Regulation 4 requires Social Security Scotland, having fulfilled its duty under Regulation 3, to complete a determination without application of the relevant individual's (now the 'transferring individual') entitlement to ADP. The normal upper limit for new ADP claims – state pensionable age – does not apply to transferring individuals.

Regulation 5 stipulates that the determination under Regulation 4 must be made on the basis that:

Transferring individuals previously entitled to the care component of DLA at the lowest rate become entitled to the newly-created lowest rate of the ADP daily living component.

Transferring individuals previously entitled to the care component of DLA at the middle or highest rate respectively become entitled to the daily living component of ADP at the standard or enhanced rate.

Transferring individuals previously entitled to the mobility component of DLA at the lower or higher rate respectively become entitled to the mobility component of ADP at the standard or enhanced rate.

Regulation 6 specifies the rate of payment of the lowest rate daily living component, which is equivalent to the lowest rate care component of DLA.

Regulation 7 specifies that a transferring individual's DLA award terminates on the date that the ADP award commences.

Regulation 8 sets an extended period of 182 days for Social Security Scotland to complete any redetermination requests from transferring individuals (the normal period for ADP redeterminations is 56 days).

Regulation 9 allows a transferring individual with a terminal illness to move directly to the highest rate of each ADP component, regardless of the level of their previous DLA award.

Regulation 10 makes some procedural amendments to the ADP Regulations as they apply to transferring individuals only. Notably, a transferring individual who is resident in an institution can receive ADP for 28 days before their award is reduced to £0, even if they are receiving a DLA award of £0 at the point of transfer.

Regulation 11 provides that existing appointees who act on behalf of transferring individuals in connection with their DLA claims will provisionally remain in this role until Social Security Scotland has determined whether the individual continues to require an appointee and, if so, whom to appoint.

Regulation 12 requires Social Security Scotland to review the ADP entitlement of each transferring individual, other than those with a terminal illness, within 12 months of transfer (the Scottish Government has informed SCoSS that in practice this review will take place as soon as possible).

Regulation 13 provides that a transferring individual will continue to receive ADP on the same payment pattern (four-weekly or weekly) as that for their DLA award.

Regulation 14 clarifies that any change of circumstances notified to either the DWP or Social Security Scotland should be treated as relevant to the review, as long as it has not already been taken into account in a review of a DLA award.

Regulation 15 specifies that, where the post-transfer review results in a higher award, the effective date for the increase is the date of transfer. This means the increased payment would be backdated.

Regulation 16 specifies that, where the post-transfer review results in a lower award or termination of entitlement, the effective date is the date of the review determination. This means that payments made in the interim would not be treated as overpayments.

Regulation 17 deletes definitions of civil partnership and living as if civil partners from the part of the Child Disability Payment Regulations dealing with residence and presence conditions.

Regulation 18 deletes several other definitions from the ADP Regulations and corrects a previous omission of reference to the descriptors for mobility activities.