Citation and commencement

1.  These Regulations may be cited as the Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 and come into force on 22 November 2021.

Amendment of the Disability Assistance for Children and Young People (Scotland) Regulations 2021

2.  The Disability Assistance for Children and Young People (Scotland) Regulations 2021( 2) are amended in accordance with regulations 3 to 20.

Amendment of regulation 2 (interpretation)

3.  In regulation 2 (interpretation)—

(a) for the definition of “legal detention” substitute—

“legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995( 3) , ”,

(b) in the definition of “residential educational establishment” for paragraph (a) substitute “section 485 of the Education Act 1996( 4) or section 14 of the Education Act 2002( 5) (which relate to grants and financial assistance for education),”.

Amendment of regulation 4 (age criteria)

4.  In regulation 4 (age criteria)—

(a) in paragraph (1) for “regulation 15 (entitlement under special rules for terminal illness)” substitute “paragraph (1A), (1B) and (2)”,

(b) after paragraph (1) insert—

“(1A)  Where regulation 15 (entitlement under special rules for terminal illness) applies, the requirement in paragraph (1) to be aged at least 3 months does not apply.

(1B)  Child Disability Payment may continue to be paid in respect of an individual who is over the age of 17 years—

(a) where they are an individual to whom regulation 15 (entitlement under special rules for terminal illness) applies,

(b) until the age of 19 years where—

(i) the individual is awaiting a determination of their entitlement to disability assistance for working age people under regulations made under section 31 of the 2018 Act,

(ii) they are an individual mentioned in regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland), or

(iii) they are a transferring individual in terms of Part 3 of the schedule. ”,

(c) at the beginning of paragraph (2) insert “Where an individual’s entitlement to Child Disability Payment is first determined on the basis of an application made in accordance with section 38 of the 2018 Act,”.

Amendment of regulation 5 (residence and presence conditions)

5.  In regulation 5 (residence and presence conditions)—

(a) in paragraph (1)(c) omit “for the purposes of entitlement to Child Disability Payment”,

(b) in paragraph (6) for “(b), (d) and (e)” in both places where it appears substitute “(b) and (d)”,

(c) in paragraph (9)(a)—

(i) for “the presence condition” substitute “either or both of the presence conditions”,

(ii) for “(1)(d)” substitute “(1)(d) and (e)”,

(d) in paragraph (9)(b) for “that condition” substitute “both of those conditions”,

(e) at the end of paragraph (10)(a) omit “or”,

(f) at the end of paragraph 10(b)(ii) insert—

• “, or

(c) is a person described in paragraph (7) ”.

Amendment of regulation 6 (interpretation - residence and presence conditions)

6.  In regulation 6 (interpretation - residence and presence conditions) in the definition of “serving member of Her Majesty’s forces” in paragraph (c)—

(a) in the opening text omit “previously being”,

(b) at the beginning of sub-paragraph (i) insert “previously being”,

(c) for sub-paragraph (ii) substitute—

“(ii) paying or having previously paid one or more of the following classes of contributions under the Social Security Act 1975( 6) or the Social Security Contributions and Benefits Act 1992( 7) —

(aa) primary Class 1,

(bb) Class 2, or

(cc) Class 3, or ”.

Amendment of regulation 11 (care component criterion: lowest, middle or highest rate care component)

7.  In regulation 11(1)(d) (care component criterion: lowest, middle or highest rate care component) for “throughout the” in both places it appears substitute “at”.

Amendment of regulation 13 (mobility requirements: higher rate mobility component)

8.  In regulation 13(10) (mobility requirements: higher rate mobility component), before “mobility” in the opening text insert “higher rate of the”.

Amendment of regulation 15 (entitlement under special rules for terminal illness)

9.  For regulation 15(10) (entitlement under special rules for terminal illness) substitute—

“(10)  Where an individual has previously received Child Disability Payment for a period and a determination is subsequently made that the same individual is entitled to Child Disability Payment 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 Child Disability Payment under the subsequent determination and the value of Child Disability Payment to which that individual was previously entitled for that period. ”.

Amendment of regulation 17 (effect of admission to a care home on ongoing entitlement to care component)

10.  In regulation 17 (effect of admission to a care home on ongoing entitlement to care component)—

(a) in paragraph (2) for “on and after” substitute “on the day after”,

(b) in paragraph (6) after “entitlement” insert “to care component”.

Amendment of regulation 18 (effect of legal detention on ongoing entitlement to care component)

11.  In regulation 18 (effect of legal detention on ongoing entitlement to care component)—

(a) after paragraph (1) insert—

“(1A)  For the purposes of this regulation, an individual is to be treated as though they are not in legal detention on any day on which they are an in-patient in a hospital or hospice. ”,

(b) in paragraph (2) for “On and after” substitute “On the day after”.

Amendment of regulation 20 (entitlement beginning while in alternative accommodation)

12.  In regulation 20 (entitlement beginning while in alternative accommodation)—

(a) the heading becomes “Entitlement to care component beginning while in alternative accommodation”,

(b) in paragraph (1) after “to” insert “the care component of”,

(c) in paragraph (2) after “care” in the first place where it appears insert “home”.

Amendment of regulation 28 (when an increase in level of entitlement takes effect)

13.  In regulation 28 (when an increase in level of entitlement takes effect)—

(a) in the opening text of paragraph (1) for “changed entitlement begins” substitute “change takes effect”,

(b) in paragraph (1)(a) for “31(d)” substitute “31(c) or (d)”,

(c) in paragraph (1)(b)—

(i) omit “as a result of the individual reporting a change”,

(ii) for heads (i) to (iii) substitute—

“(i) if as a result of the individual reporting the change—

(aa) if the individual reports the change within one month of the change occurring, the individual first satisfies the requirements for a higher rate of the care or mobility component,

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

(cc) in any other case, the individual reports the change,

(ii) if as a result of the Scottish Ministers becoming aware that an earlier determination of an individual’s entitlement was made in ignorance of a material fact, on the date when the Scottish Ministers make the determination. ”,

(d) after paragraph (2) insert—

“(2A)  Where an individual has previously received Child Disability Payment for a period and a determination without application has been subsequently made that the same individual is entitled to Child Disability Payment at a higher rate for that period, that individual will be entitled to the difference between the value of entitlement to Child Disability Payment under the subsequent determination and the value of Child Disability Payment to which that individual was previously entitled for that period. ”.

Amendment of regulation 29 (when a decrease in level or cessation of entitlement takes effect)

14.  In regulation 29(1) (when a decrease in level or cessation of entitlement takes effect)—

(a) in the opening text for “changed entitlement begins” substitute “change takes effect”,

(b) in sub-paragraph (a) for “31(d)” substitute “31(c) or (d)”,

(c) in sub-paragraph (b)—

(i) for “regulation” substitute “regulation 30 or”,

(ii) for “when” substitute “on which”,

(iii) for head (i) substitute—

“(i) where the individual was required to notify a change under section 56 of the 2018 Act, if the individual—

(aa) knowingly fails to notify a change, or

(bb) fails to notify the change as soon as reasonably practicable after it occurred,

the individual should have notified the Scottish Ministers of the change, ”.

Amendment of regulation 31 (determination following change of circumstances etc.)

15.  In regulation 31 (determination following change of circumstances etc.)—

(a) in paragraph (a) after “Act,” insert “or where the Scottish Ministers become aware that a determination of an individual’s entitlement was made in ignorance of a material fact,”

(b) in paragraph (c)—

(i) in sub-paragraph (iv) omit “or”,

(ii) after sub-paragraph (v) insert—

“(vi) a revision under article 10 of the Social Security (Northern Ireland) Order 1998( 8) (“ the 1998 Order ”),

(vii) a supersession under article 11 of the 1998 Order( 9) ,

(viii) an appeal under article 13 of the 1998 Order( 10) , or

(ix) an appeal to the Commissioner under article 15 of the 1998 Order( 11) , ”.

Amendment of regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland)

16.  In regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland)—

(a) in paragraph (2) for “Disability Living Allowance ceases to be paid in respect of the individual” substitute “the individual’s entitlement to Disability Living Allowance ends”,

(b) in paragraph (3) after “as notified by the individual” insert “or otherwise communicated”.

Amendment of regulation 36 (individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom)

17.  In regulation 36 (individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom)—

(a) in paragraph (1)—

(i) for “are notified” substitute “become aware”,

(ii) omit “ordinarily” in the first place where it appears,

(iii) after “condition” insert “under regulation 5(1)(a)”,

(iv) for “with the date of the move” substitute “in accordance with paragraph (4)”,

(b) in paragraph (2) for “receive notification” substitute “become aware that an individual has moved or is to move to another part of the United Kingdom as”,

(c) in paragraph (3)—

(i) for “are notified” substitute “become aware”,

(ii) omit “ordinarily”,

(iii) omit “the notification mentioned in paragraph (1) is to be treated as not having been made and”,

(d) for paragraph (4) substitute—

“(4)  The 13-week period mentioned in paragraph (1) begins—

(a) if the Scottish Ministers become aware that the individual is to become resident in another part of the United Kingdom, on the date the individual ceases to be ordinarily resident in Scotland,

(b) if the Scottish Ministers become aware after the date when the individual becomes resident in another part of the United Kingdom, but before they have been resident there for 13 weeks, on the date the individual notifies the Scottish Ministers of the move, or

(c) in any other case, on the date that the individual ceases to be ordinarily resident in Scotland. ”,

(e) for paragraph (5) substitute—

“(5)  On the day after the 13-week period specified in paragraph (4) ends—

(a) entitlement to Child Disability Payment ends, and

(b) regulation 33 (determination following error – overpayments) applies to any Child Disability Payment paid to an individual in relation to a period after the end of that 13-week period. ”.

Amendment of regulation 37 (Periods in respect of a re-determination request)

18.  In regulation 37(2) (periods in respect of a re-determination request)—

(a) at the end of sub-paragraph (a) omit “or”,

(b) at the end of sub-paragraph (b) insert—

“, or

(c) in a case where the Scottish Ministers have informed the individual of their decision that the request for a re-determination was not made in such form as the Scottish Ministers require, the day on which it is subsequently decided by the First-Tier Tribunal for Scotland that the individual in question has made the request in such form as the Scottish Ministers require ”.

Amendment of Part 1 of the schedule (short-term assistance)

19.—(1) In paragraph 1 of the schedule (entitlement to short-term assistance)—

(a) in sub-paragraph (1)—

(i) for head (b) substitute—

“(b) the individual’s entitlement to Child Disability Payment is under review within the meaning of—

(i) paragraph 1(2) of schedule 10 of the 2018 Act, or

(ii) sub-paragraph (1A), and ”,

(ii) in head (c)(ii)—

(aa) omit “ordinarily”,

(bb) omit “with the date of the transfer”,

(cc) after “36” insert “(4)”,

(b) after sub-paragraph (1) insert—

“(1A)  An individual’s entitlement to Child Disability Payment is under review in terms of sub-paragraph (1)(b)(ii) if—

(a) a decision of the First-Tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the subsequent determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), is set aside after a review under section 43(2) of the Tribunals (Scotland) Act 2014( 12) (review of decisions), and

(b) the First-Tier Tribunal for Scotland decides not to uphold a determination of an individual’s entitlement to Child Disability Payment in an appeal under section 46 of the 2018 Act and the First-Tier Tribunal for Scotland is to make a determination of the individual’s entitlement to Child Disability Payment under section 49 of the 2018 Act.

(1B)  Where an individual’s entitlement to Child Disability Payment is set aside after a review in terms of sub-paragraph (1A)(a), the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance. ”,

(c) in sub-paragraph (3)—

(i) for “or 18(2)” substitute “, 18(2)”,

(ii) before “applies” insert “, or 20(2) (entitlement to care component beginning while in alternative accommodation)”,

(d) in sub-paragraph (4)—

(i) in head (a) omit “of the determination”,

(ii) at the end of head (c) omit “or”,

(iii) at the beginning of head (d) insert “where”,

(iv) at the end of head (d) insert—

• “, or

(e) where a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the subsequent determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), is set aside after review under section 43(2) of the Tribunals (Scotland) Act 2014 (review of decisions) and the First-tier Tribunal for Scotland is to make a determination of the individual’s entitlement to Child Disability Payment under section 49 of the 2018 Act, on the day that the decision is set aside.

(5)  Regulation 37 (periods in respect of a re-determination request) applies to short-term assistance in the same way as it applies to Child Disability Payment. ”.

(2) In paragraph 3 of the schedule (end of entitlement)—

(a) in sub-paragraph (1)—

(i) for head (b) substitute—

“(b) a re-determination of an individual’s entitlement to Child Disability Payment is made by the Scottish Ministers under section 43 of the 2018 Act (duty to re-determine), ”,

(ii) in head (c) for “decision” substitute “determination”,

(iii) at the end of head (c) omit “or”,

(iv) at the end of head (d) insert—

“, or

(e) where the individual withdraws their application to bring an appeal against the subsequent determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), on that day. ”,

(b) for sub-paragraph (2) substitute—

“(2)  Where an individual’s entitlement to short-term assistance is to end under sub-paragraph (1), the Scottish Ministers are to make a determination without application. ”.

Amendment of part 3 of the schedule (transfer to Child Disability Payment)

20.—(1) In paragraphs 8(2)(b)(ii) (notice of intention to transfer to Child Disability Payment) and 9(5)(c) (determination without application of entitlement to Child Disability Payment) of the schedule, for “13” substitute “17”,

(2) For paragraph 10 of the schedule (effect of determination on entitlement to Disability Living Allowance) substitute—

“10.   Where a determination is made under paragraph 9 that the transferring individual is entitled to Child Disability Payment, the transferring individual’s entitlement to Disability Living Allowance will end on—

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

(b) where paragraph 11 applies, the date of the determination under paragraph 9(1), or

(c) where paragraph 12(1) applies, the date their entitlement to Child Disability Payment would have begun had paragraph 12(2) not applied to set an earlier date of entitlement. ”.

(3) In paragraph 11 of the schedule (exceptions to paragraph 9(4))—

(a) the opening text becomes sub-paragraph (1),

(b) for head (a) substitute—

“(a) where the Scottish Ministers have—

(i) received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 82 of the Welfare Reform Act 2012( 13) immediately before the date of transfer, or

(ii) not received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 82 of the Welfare Reform Act 2012, but become aware, before they have made a determination under paragraph 9(1), that the individual has a terminal illness in terms of regulation 15(6) (entitlement under special rules for terminal illness),

the determination made under paragraph 9(1) must be made on the basis that the transferring individual satisfies the conditions for the higher rate of the mobility component and highest rate of the care component of Child Disability Payment, ”,

(c) in head (c)—

(i) for “either component” in the first place where it appears substitute “one or both components”,

(ii) for “requirement in section 72(1A)(b)” substitute “requirements in either or both sections 72(1A)(b) or 73(4A)”,

(iii) after “components” insert “as the case may be”,

(d) in head (d)—

(i) for “to—” substitute “to the higher rate of the mobility component of Child Disability Payment where the individual was either not entitled to the mobility component of Disability Living Allowance or entitled to the lower rate of that component.”,

(ii) omit heads (i) and (ii),

(e) after sub-paragraph (1) insert—

“(2)  Where sub-paragraph (1)(a) applies—

(a) paragraphs (7), (8) and (9) of regulation 15 (entitlement under special rules for terminal illness) are to be treated as satisfied for the individual, and

(b) the beginning of their entitlement is to be determined in terms of regulation 15(3), as modified by paragraph 13(zb).

(3)  Where a transferring individual mentioned in sub-paragraph (1)(b), (c) or (d) whose entitlement to Child Disability Payment is determined under paragraph 9(1) to be at a higher value than their entitlement to Disability Living Allowance paid immediately before that determination, entitlement is to begin before the date of that determination but not before the later of—

(a) the date on which—

(i) sub-paragraph (1)(b) or (d) applies to a transferring individual by virtue of evidence supplied in relation to the transferring individual which is satisfactory to the Scottish Ministers, or

(ii) where sub-paragraph (1)(c) applies, when the transferring individual reaches the age of 16,

(b) 11 October 2021.

(4)  Where an individual has previously received Disability Living Allowance for a period and a determination is subsequently made that the same individual is entitled to Child Disability Payment at a higher rate for that period by virtue of this paragraph, that individual will be entitled to the difference between the value of entitlement to Child Disability Payment under the subsequent determination and the value of Disability Living Allowance to which that individual was previously entitled for that period. ”.

(4) In paragraph 12 of the schedule—

(a) the existing text becomes sub-paragraph (1),

(b) after sub-paragraph (1) insert—

“(2)  Entitlement to the mobility component of Child Disability Payment of a transferring individual mentioned in sub-paragraph (1) is to begin before the date of the determination without application made under regulation 5(1) but not before the later of the date on which—

(a) the suspension of payment of the mobility component of Disability Living Allowance began,

(b) 11 October 2021.

(3)  Where a transferring individual is in legal detention immediately before the date of transfer and entitlement to Child Disability Payment is determined under paragraph 9(1) to be at a higher rate than the Disability Living Allowance paid immediately before that determination, paragraph 11(4) does not apply for the purposes of determining the amount of the mobility component to be paid. ”.

(5) In paragraph 13 of the schedule (modification of these regulations: transferring individuals)—

(a) before sub-paragraph (a) insert—

“(za) where paragraph 11(3) or 12(2) applies, for the period between the date when entitlement to Child Disability Payment begins and the date of the determination under paragraph 9(1), regulation 10 (entitlement to other benefits) is treated as omitted,

(zb) regulation 15 (entitlement under special rules for terminal illness) is to be read as if—

(i) paragraph (3)(a) reads “the individual transferred by virtue of a determination under paragraph 9(1) (“the date of transfer”)”, where that determination is made in accordance with paragraph 11(1)(a) of the schedule”,

(ii) paragraph (3)(b) is omitted,

(iii) in paragraphs (4) and (5) for “whichever date in paragraph (3)(a) or (b) applies” reads “the date in paragraph (3)(a),

(iv) paragraph (10) reads “Where an individual has previously received Child Disability Payment or Disability Living Allowance for a period and a determination is subsequently made that the same individual is entitled to Child Disability Payment 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 Child Disability Payment under the subsequent determination and the value of Child Disability Payment or Disability Living Allowance to which that individual was previously entitled for that period. ”,

(b) after sub-paragraph (a) insert—

“(aa) regulation 20 (entitlement to care component beginning while in alternative accommodation) is to be read as if—

(i) in paragraph (1) after “begins” there are the words “in terms of part 3 of the schedule”,

(ii) in paragraph (2) “that day” reads “the day on which the individual has been entitled to Child Disability Payment for 28 days ”.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (“ the Principal Regulations”). The Regulations come into force on 22 November 2021.

Regulation 3 amends regulation 2 of the Principal Regulations to amend the definitions of “legal detention” and “residential educational establishment”.

Regulations 4, 5 and 6 make amendments to eligibility rules for the assistance in Part 1 of the Principal Regulations. The amendments are in relation to age criteria and residence and presence conditions.

Regulations 7 and 8 make amendments to regulations 11 and 13 of the Principal Regulations in relation to care component criterion and mobility requirements.

Regulation 9 amends regulation 15 of the Principal Regulations to clarify that the reduction will be the difference between the different levels of entitlement rather than payment.

Regulations 10, 11 and 12 make amendments to Part 5 of the Principal Regulations in relation to effect of time spent in care homes and in legal detention. The amendments clarify that payment of the care component will stop on the day after the 28th day where an individual becomes resident in a care home or is in legal detention. The amendment to regulation 18 of the Principal Regulations clarifies that for the purposes of this regulation, an individual is to be treated as though they are not in legal detention on any day on which they are an in-patient in a hospital or hospice.

Regulations 13 and 14 make amendments to regulations 28 and 29 of the Principal Regulations to clarify when an increase in level of entitlement takes effect and when a decrease in level or cessation of entitlement takes effect.

Regulation 15 amends regulation 31 of the Principal Regulations to provide that the Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where they become aware that a determination was made in ignorance of a material fact. It also extends the list of decisions that may alter the rate of award of Disability Living Allowance listed in regulation 31(d).

Regulations 16 and 17 make amendments to Part 8 of the Principal Regulations in relation to movement of individuals between Scotland and the rest of the United Kingdom. The amendments make provision for where an individual does not notify the Scottish Ministers of their move. The amendments clarify when entitlement to Child Disability Payment ceases for individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom.

Regulation 18 amends regulation 37 of the Principal Regulations to clarify when the period for re-determination begins in a case where the First-tier Tribunal has decided that a request for re-determination has been validly made.

Regulation 19 amends Part 1 of the schedule of the Principal Regulations to extend the scenarios where short-term assistance is payable, clarifies which determination terminates short-term assistance and provides that the periods in respect of a re-determination request set out in regulation 37 applies to short-term assistance in the same way as it applies to Child Disability Payment. It also makes other minor and consequential amendments.

Regulation 20 amends Part 3 of the schedule of the Principal Regulations to make miscellaneous amendments in relation to case transfer provisions.

A Business and Regulatory Impact Assessment has been prepared in relation to these Regulations and placed in the Scottish Parliament Information Centre. Copies are available on line at www.legislation.gov.uk.