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The Disability Assistance for Children and Young People (Scotland) Regulations 2021

Type Scottish-Statutory-Instrument

Publication 2021-03-24

Last updated 2025-11-06

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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Made: 24th March 2021

Coming into force: 26th July 2021

In accordance with section 97(2) of that Act, the Scottish Ministers have informed the Scottish Commission on Social Security of their proposals, notified the Scottish Parliament that they have done so and made their proposals publicly available by such means as they consider appropriate.

PART 1 — Introductory and interpretation

Citation and commencement

1

These Regulations may be cited as the Disability Assistance for Children and Young People (Scotland) Regulations 2021 and come into force on 26 July 2021.

Interpretation - general

2

In these Regulations—

“the 2018 Act” means the Social Security (Scotland) Act 2018,

“the ADP Regulations” means the Disability Assistance for Working Age People (Scotland) Regulations 2022,

“Adult Disability Payment” means disability assistance for adults given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022,

“armed forces independence payment” means the disability benefit paid in accordance with article 24A of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011²,

“authorised provider of vehicles” means a supplier of vehicles for persons with disabilities approved under an accreditation scheme run by the Scottish Ministers,

“award” means that a determination has been made that an individual is entitled to be given assistance under section 24 of the 2018 Act in accordance with these Regulations, and cognate expressions are to be construed accordingly,

“bodily functions” means the normal actions of any organ of the body, including the brain, or of a number of organs acting together,

“care component” means the care component of Child Disability Payment within the meaning of regulation 11,

“care home” means an establishment which provides a care home service as defined in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010³ and includes a residential educational establishment,

“Child Disability Payment” means disability assistance for children and young people given in accordance with section 31 of the 2018 Act,

“determination” or “determination of entitlement” has the meaning in section 25 of the 2018 Act,

“Disability Living Allowance” means a disability living allowance under—section 71 of the Social Security Contributions and Benefits Act 1992⁴, orsection 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992⁵,

“EEA State” means—any member state of the European Union, orany other state that is party to the agreement on the European Economic Area signed at Oporto on 2 May 1992⁶, together with the Protocol adjusting that Agreement signed at Brussels on 17 March 1993⁷, as modified or supplemented from time to time,

“hospice” means a hospital or other institution whose primary function is to provide palliative care for persons resident there who are suffering from a progressive disease in its final stages other than—a health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978⁸) in Scotland,a health service hospital (within the meaning of section 275(1) of the National Health Service Act 2006⁹) in England,a hospital in Wales vested in—an NHS trust,a Local Health Board, orthe Welsh Ministers,for the purpose of functions under the National Health Service (Wales) Act 2006¹⁰, a hospital or similar institution under the Health and Personal Social Services (Northern Ireland) Order 1972 or the health and Personal Services (Northern Ireland) Order 1991, a hospital maintained or administered by the Defence Council¹¹, oran institution similar to a hospital mentioned in any of the preceding paragraphs,

legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995, section 59A¹² of that Act, orsection 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003¹³, orsection 45A, 47 or 50(3) of the Mental Health Act 1983¹⁴,

“mobility component” means the mobility component of Child Disability Payment within the meaning of regulations 12 and 13,

“personal independence payment” means personal independence payment under—Part 4 of the Welfare Reform Act 2012¹⁵, orarticle 82 of the Welfare Reform (Northern Ireland) Order 2015¹⁶,

“qualifying services” means accommodation, board and personal care,

“relevant EU Regulation” means—one of the following Regulations—Council Regulation (EC) No 1408/71 of 14 June 1971¹⁷ on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community,Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29April 2004¹⁸ on the coordination of social security systems, or in relation to an individual to whom the agreement constituted by the exchange of letters set out in the schedule of— the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974, orthe Social Security (Gibraltar) Order 2024,applies, a Regulation mentioned in paragraph (a) of this definition as it forms part of domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018,

“residential educational establishment” means a care home which provides education or training except for one where the costs of any qualifying services are borne wholly or partly out of public or local funds by virtue of— section 485 of the Education Act 1996⁴ or section 14 of the Education Act 2002⁵ (which relate to grants and financial assistance for education), sections 49¹⁹ or 73 of the Education (Scotland) Act 1980 (which relate respectively to the power of education authorities to assist persons to take advantage of educational facilities and the powers of the Secretary of State to make grants to education authorities and others),section 65²⁰ of the Further and Higher Education Act 1992, sections 39 or 40 of theHigher Education and Research Act 2017²¹ or sections 4 or 11 of the Further and Higher Education (Scotland) Act 2005²² (which relate respectively to the funding of further education and the administration of funds), orsection 22 of theTeaching and Higher Education Act 1998²³,

“short-term assistance” means short-term assistance given in accordance with Part 1 of the schedule,

“transferring individual” has the meaning set out in paragraph 7 of the schedule, and

“week” means a period of 7 days.

PART 2 — Disability assistance for children and young people

Overview

3

(1) An individual is entitled to Child Disability Payment in accordance with these Regulations if they meet the eligibility rules in—

(a) regulation 4 (age criteria),

(b) regulations 5 to 9 (residence and presence conditions, etc.),

(d) one or more of the following—

(i) regulation 11 (care component criterion: lowest, middle and highest rate of care component),

(ii) regulation 12 (mobility requirements: lower rate mobility component),

(iii) regulation 13 (mobility requirements: higher rate mobility component),

(iv) regulation 15 (entitlement under special rules for terminal illness),

(v) regulation 16 (entitlement to care component when undergoing dialysis).

(2) Child Disability Payment is to consist of a care component and a mobility component.

(3) There are 3 weekly rates of the care component and 2 weekly rates of the mobility component and those rates are specified in regulation 23 (amount and form of Child Disability Payment).

PART 3 — Eligibility

Age criteria

4

(1) Subject to paragraph (1A), (1B) , (1C) and (2), Child Disability Payment may be paid in respect of an individual who is aged at least 3 months and is under the age of 18 years.

(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 the individual is a transferring individual in terms of Part 3 of the schedule, and reaches the age of 18 on or before 31 December 2023, except where paragraph (1C) applies,

(c) until the age of 19 years where 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) who reaches the age of 18 on or before 31 December 2023, except where paragraph (1C) applies,

(d) where the individual does not fall within sub-paragraph (a), (b) or (c) and—

(i) they are awaiting a determination of their entitlement to Adult Disability Payment, or

(ii) a determination has been made that the individual is entitled to Adult Disability Payment but payment has not begun,

until the age of 19 years, or the individual becomes entitled to Adult Disability Payment in accordance with regulation 58(2)(a) of the ADP Regulations, whichever is earlier.

(1C) Where an individual falls within paragraph (1B)(b) or (c) and—

(a) a determination of their entitlement to Adult Disability Payment is made within the period of 4 weeks before the date on which the individual reaches the age of 19, and

(b) that determination is that the individual is entitled to Adult Disability Payment,

Child Disability Payment may continue to be paid in respect of the individual after they reach the age of 19 until the day before the day on which the individual becomes entitled to Adult Disability Payment in accordance with regulation 58(2)(a) of the ADP Regulations.

(2) 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 (other than where regulation 35 or 35A applies), Child Disability Payment may only be paid in respect of an individual who is under the age of 16 years on the day on which entitlement begins in accordance with regulation 24 (when an application is to be treated as made and beginning of entitlement to assistance).

(3) Where an individual was born on 29 February, the individual’s birthday is to be taken to fall on 28 February in a year which is not a leap year.

Residence and presence conditions

5

(1) An individual satisfies the residence and presence conditions where on any day that individual—

(a) is ordinarily resident in Scotland,

(b) is habitually resident in the common travel area,

(c) is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999,

(d) is present in the common travel area, and

(e) has been present in the common travel area for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day.

(2) In the case of a child under the age of 6 months, paragraph (1) is to apply as if in sub-paragraph (e) for the reference to 26 weeks there was substituted a reference to 13 weeks.

(3) Where in any particular case a child has by virtue of paragraph (2) entitlement to the care component immediately before the day the child attains the age of 6 months, then until the child attains the age of 12 months, paragraph (1)(e) shall continue to apply in that child’s case as if for the reference to 26 weeks there was substituted a reference to 13 weeks.

(4) The residence condition set out in paragraph (1)(a) does not apply in relation to the care component where on any day the individual—

(a) is habitually resident in Ireland,

(b) has a genuine and sufficient link to Scotland, and

(i) to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019²⁴, as modified from time to time in accordance with any provision of it, applies, and

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of long term care benefits.

(5) The reference in paragraph (4)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (4) would be incompatible with Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019.

(5A) Paragraph (1)(c) does not apply to a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 where they are a person who—

(a) is lawfully working in the United Kingdom and is a national of a state with which the United Kingdom has concluded an agreement which replaces in whole or in part an agreement under Article 217 of the Treaty on the Functioning of the European Union which has ceased to apply to, and in, the United Kingdom, providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory state and their families,

(b) is a member of the family of, and living with, a person specified in sub-paragraph (a), or

(c) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules, to be responsible for their maintenance and accommodation.

(6) A relevant individual is treated as satisfying the residence and presence conditions set out in paragraph (1)(a), (b) and (d) where on any day that individual is outside the common travel area—

(a) by reason of their capacity mentioned in paragraph (7)(b) provided that individual satisfied the residence and presence conditions set out in paragraph (1)(a), (b) and (d) immediately prior to the start of their employment mentioned in paragraph (7)(b), or

(b) by reason of being a person mentioned in paragraph (7)(a) living with an individual to whom sub-paragraph (a) applies.

(7) A “relevant individual” in paragraph (6) means an individual who is—

(a) living with a person mentioned in sub-paragraph (b) and—

(i) is the child, step-child or a child in care of that person, or

(ii) is married to or in a civil partnership with that person, or is living together with that person as if they were married or in a civil partnership, or

(b) outside the common travel area in their capacity as a—

(i) serving member of Her Majesty’s forces, or

(ii) civil servant.

(8) An individual is to be treated as meeting the presence conditions set out in paragraphs (1)(d) and (e) for any period where that individual is—

(a) outside the common travel area in their capacity as an aircraft worker or mariner, or

(b) in employment prescribed for the purposes of section 120 (employment at sea (continental shelf operations)) of the Social Security Contributions and Benefits Act 1992²⁵ in connection with continental shelf operations.

(9) Where an individual—

(a) does not meet either or both of the presence conditions set out in paragraph (1)(d) and (e) on the date the application is received by the Scottish Ministers, and

(b) appears to the Scottish Ministers likely to meet both of those conditions, unless there is a change of circumstances, on a date not later than 3 months after the application was received,

the Scottish Ministers may choose the date within that 3 month period on which the application is to be treated as being made.

(10) The past presence condition in paragraph (1)(e) does not apply where an individual—

(a) has a terminal illness within the meaning of regulation 15, or

(b) is an individual described in paragraph (7).

(10A) The habitual residence condition in paragraph (1)(b) and the past presence condition in paragraph (1)(e) do not apply where an individual—

(a) has leave to enter or remain in the United Kingdom granted under the immigration rules by virtue of—

(i) the Afghan Relocations and Assistance Policy, or

(ii) the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),

(b) has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-paragraph (a); ...

(d) has been granted refugee status or humanitarian protection under the immigration rules, ...

(e) has leave to enter or remain in the United Kingdom as the dependant of a person granted refugee status or humanitarian protection under the immigration rules ...

(f) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i) was residing in Ukraine immediately before 1 January 2022, and

(ii) left Ukraine in connection with the Russian invasion which took place on 24 February 2022, or

(g) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i) was residing in Sudan before 15 April 2023, and

(ii) left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan, ...

(h) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i) was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, and

(ii) left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack ,

(i) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i) was residing in Israel, the Occupied Palestinian Territories (the West Bank, including East Jerusalem, and Gaza) or the occupied Golan Heights immediately before 13 June 2025,

(ii) left Israel, the Occupied Palestinian Territories or the occupied Golan Heights in connection with the escalation of violence between Israel and Iran that began on that date, and

(iii) arrived in the United Kingdom on or before 13 December 2025, or

(j) has been granted, or is deemed to have been granted, leave outside the immigration rules.

(11) For the purposes of paragraph (10A) —

(a) “immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971,

(b) “the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 2021.

Interpretation - residence and presence conditions

6

In regulation 5—

“aircraft worker” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where—the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mails carried on that aircraft, andthe contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight,but does not include a person in so far as that employment is as a serving member of Her Majesty’s forces,

“child in care” means—under the law of Scotland, a child in respect of whom a relevant individual listed in regulation 5(7)(b) —is a foster carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009²⁶,is a kinship carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009,has a kinship care order within the meaning of section 72 of the Children and Young People (Scotland) Act 2014²⁷, orunder the law of England and Wales and Northern Ireland, a child in respect of whom a person listed in regulation 5(7)(b) has a relationship equivalent to those listed in paragraph (a) under the law of Scotland,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“civil servant” has the meaning given by section 1(4) of the Constitutional Reform and Governance Act 2010²⁸,

“common travel area” has the meaning given in section 1(3) of the Immigration Act 1971,

“mariner” means a person who is, or has been, in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—the employment in that other capacity is for the purposes of that ship or vessel or its crew or any passengers or cargo or mails carried by the ship or vessel, andthe contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on its voyage,but does not include a person in so far as that employment is as a serving member of Her Majesty’s forces,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“serving member of Her Majesty’s forces” means a member of a regular force or reserve force (“M”) as defined, in each case, by section 374 (definitions applying for purposes of the whole Act) of the Armed Forces Act 2006²⁹, unless—M is under the age of 16,M is committing an offence under section 8 of the Armed Forces Act 2006 (desertion),the force concerned is one of Her Majesty’s naval forces which M locally entered at an overseas base without ...— previously being an insured person under the National Insurance Act 1965³⁰, orpaying or having previously paid one or more of the following classes of contributions under the Social Security Act 1975 or the Social Security Contributions and Benefits Act 1992—primary Class 1,Class 2, orClass 3, orthe force concerned is one of Her Majesty’s military forces or Her Majesty’s air forces which M entered, or was recruited for, outside the United Kingdom and—where that force is one of Her Majesty’s military forces, the depot for M’s unit is outside the United Kingdom, orwhere that force is one of Her Majesty’s air forces, M is liable under the terms of M’s engagement to serve only in a specified area outside the United Kingdom.

Temporary absence from the common travel area

7

(1) Where an individual is temporarily absent from the common travel area, the individual is to be treated as present in the common travel area for—

(a) the first 13 weeks of that absence for any reason, or

(b) the first 26 weeks of that absence where—

(i) after the first 13 weeks, the absence is in connection with arrangements made for the medical treatment of the individual for a disease or bodily or mental disablement which commenced before leaving the common travel area, and

(ii) the arrangements relate to medical treatment—

(aa) outside the common travel area,

(bb) during the period when the individual is temporarily absent from the common travel area, and

(cc) by, or under the supervision of, a person appropriately qualified to carry out that treatment.

(2) For the purposes of paragraph (1)—

(a) an individual is “temporarily absent” if, at the beginning of the period of absence, that absence is unlikely to exceed 52 weeks, and

(b) “medical treatment” means medical, surgical, psychological or rehabilitative treatment (including any course, diet or regimen).

Persons residing in the United Kingdom to whom a relevant EU regulation applies

8

The past presence condition set out in regulation 5(1)(e) does not apply where on any day the individual is—

(a) ordinarily resident in Scotland,

(b) habitually resident in the United Kingdom,

(i) to whom the rules set out in a relevant EU regulation applies by virtue of—

(aa) Title III of Part 2 of the EU withdrawal agreement,

(bb) Part 3 or Article 23(4) of the Swiss citizens’ rights agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020) (“the 2020 Act”))³¹,

(cc) Title III of the EEA EFTA separation agreement (as defined in section 39(1) of the 2020 Act), ...

(dd) the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974³², or

(ee) the agreement constituted by the exchange of letters set out in the schedule of the Social Security (Gibraltar) Order 2024, and

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of sickness benefits in cash.

Persons residing outside the United Kingdom to whom a relevant EU regulation applies

9

(1) The residence and presence conditions set out in regulation 5(1) do not apply in relation to the care component where on any day the individual satisfies the conditions in paragraph (2).

(2) The conditions referred to in paragraph (1) are that the individual must—

(a) be an individual—

(i) to whom the rules set out in a relevant EU regulation apply by virtue of—

(aa) Title III of Part 2 of the EU withdrawal agreement,

(bb) Part 3 or Article 23(4) of the Swiss citizens’ rights agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”)),

(cc) Title III of the EEA EFTA separation agreement (as defined in section 39(1) of the 2020 Act), ...

(dd) the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974, or

(ee) the agreement constituted by the exchange of letters set out in the schedule of the Social Security (Gibraltar) Order 2024, and

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of sickness benefits in cash,

(b) be habitually resident in—

(i) Switzerland,

(ii) an EEA state, or

(iii) Gibraltar, and

(3) The reference in paragraph (2)(c) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (2) would be incompatible with the applicable agreement mentioned in sub-paragraph (a)(i) of that paragraph.

Entitlement to other benefits

10

An individual is not entitled to Child Disability Payment while they are entitled to—

(a) Disability Living Allowance,

(b) Personal Independence Payment, ...

(d) Adult Disability Payment.

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

11

(1) An individual satisfies the care component criterion in respect of any period throughout which at least one of the following 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 16 years old or older and is so severely disabled physically or mentally that they cannot prepare a cooked main meal for themselves if they have the ingredients,

(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) No condition mentioned in paragraph (1) is to be taken to be satisfied unless—

(a) the individual has requirements of a description mentioned in the condition substantially in excess of the normal requirements of a person of the same age, or

(b) the individual has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of the individual’s age and in normal physical and mental health would not have.

(3) An individual 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) as read with paragraph (2), 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) In the case of an individual who is under the age of 16 on the date on which the award of the care component would begin, paragraph (2) only applies in relation to so much of any period mentioned in that paragraph as falls before the day on which the individual reaches the age of 16.

(5) 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 23(1)(a)), if the individual falls within paragraph (3) by virtue of having satisfied or being likely to satisfy both the conditions mentioned in paragraph (1)(c) and (d) above throughout both the period mentioned in paragraph (3)(a) and that mentioned in paragraph (3)(b),

(b) the middle rate (see regulation 23(1)(b)), if the individual falls within paragraph (3) by virtue of having satisfied or being likely to satisfy one of those conditions mentioned in paragraph (1)(c) or (d) throughout both those periods, and

(6) In paragraph (1)—

(a) references to “day” and “night” are to be construed in relation to the ordinary domestic routine of the household in which the individual lives, and

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

(7) In paragraph (1) and regulation 12, “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.

(8) In this regulation and regulations 12 and 13, “require” means reasonably require and cognate expressions are to be construed accordingly.

Mobility requirements: lower rate mobility component

12

(1) An individual aged 5 years or more is entitled to be given the mobility component at the lower rate (see regulation 23(2)(b)) 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) The guidance or supervision required must be—

(a) substantially in excess of the normal requirements of a person of the same age, or

(b) of such a description which younger persons in normal physical and mental health may also require but which persons of the individual’s age and in normal physical and mental health would not require.

(4) In the case of an individual who is under the age of 16 on the date on which the award of the mobility component would begin, paragraph (3) only applies in relation to so much of any period mentioned in that paragraph as falls before the day on which the individual reaches the age of 16.

(5) 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.

(6) An individual 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.

(7) In this regulation, “guidance” means direction or leading by physical means or verbal suggestion or persuasion.

Mobility requirements: higher rate mobility component

13

(1) An individual aged 3 years or more is entitled to be given the mobility component at the higher rate (see regulation 23(2)(a)) 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 account of the individual’s physical 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 no recovery, or from which recovery would take a significant period of time,

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

(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 11(1)(c) and (d).

(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 limb or artificial aid which is suitable to 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 purpose of paragraph (2)(c), if the individual has a severe visual impairment fulfilling the definition given by the Visual Impairment Network for Children and Young People³³.

(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 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 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.

Exclusion of entitlement to mobility component

14

An individual is not entitled to the mobility component of Child Disability Payment 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.

PART 4 — Entitlement under special rules for terminal illness and when undergoing dialysis

Entitlement under special rules for terminal illness

15

(1) An individual who has a terminal illness is—

(a) to be treated as satisfying the conditions for the highest rate of the care component of Child Disability Payment in regulation 11(5)(a), and

(b) from the date on which the individual reaches the age of 3, to be treated as satisfying the conditions for the higher rate of the mobility component in regulation 13.

(2) Paragraph (1) applies regardless of—

(a) the period of time for which the individual has had the terminal illness, and

(b) any period of time spent by the individual in a hospital or hospice while in receipt of the assistance.

(3) Subject to paragraphs (4) and (5), the individual’s entitlement to the rates referred to in paragraph (1) begins on the date on which—

(a) the individual’s application for Child Disability Payment was made, where the application included information about the individual’s terminal illness,

(b) the Scottish Ministers became 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, Child Disability Payment, on the basis of a determination that the individual was entitled to the care component or the mobility component or both in relation to a condition other than terminal illness, or

whichever is the earlier.

(4) Where the judgement mentioned in paragraph (3)(c) is dated not more than 26 weeks earlier than whichever date in paragraph (3)(a) or (b) applies (“the relevant 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 relevant date, and

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

(5) Where the judgement mentioned in paragraph (3)(c)—

(a) is dated more than 26 weeks earlier than whichever date in paragraph (3)(a) or (b) applies (“the relevant date”), and

(b) an appropriate healthcare professional confirms that the judgement is still accurate by making a judgement in accordance with paragraphs (6) and (7),

an individual’s entitlement can only begin—

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

(6) For the purpose of this regulation, an individual is to be regarded as having a terminal illness for the purpose of determining entitlement to Child Disability Payment if it is the judgement of an appropriate healthcare professional that the individual has a progressive disease that can reasonably be expected to cause the individual’s death.

(7) Subject to paragraph (8), an appropriate healthcare professional exercising the judgement described in paragraph (6) 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.

(8) Where regulation 9 (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies to the individual, an appropriate healthcare professional mentioned in paragraph (9)(b) need not have regard to the guidance mentioned in paragraph (7) where it would not be reasonable in the circumstances to insist on the judgement being formed with regard to that guidance.

(9) 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 9 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).

(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.

Entitlement to care component when undergoing dialysis

16

(1) Subject to paragraph (5), an individual who is at least 3 months old is to be treated as satisfying the conditions for the care component in regulation 11 (care component criterion: lowest, middle or highest rate of care component) where the individual undergoes renal dialysis—

(a) where at least one of the conditions in paragraph (2) is met, and

(b) at least twice a week,

as a consequence of a disability or physical impairment.

(2) The conditions are that—

(a) the renal dialysis is of a type which normally requires the attendance or supervision of another person, or

(b) due to particular circumstances, the individual requires another person to attend—

(i) in connection with the individual’s bodily functions, or

(ii) to supervise the individual in order to avoid substantial danger to the individual,

during the period of the dialysis.

(3) Where the renal dialysis mentioned in paragraph (2) takes place by day or at night, the individual is entitled to the middle rate care component.

(4) Where the renal dialysis mentioned in paragraph (2) takes place both by day and at night, the individual is entitled to the highest rate care component.

(5) An individual 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 the requirements in paragraph (1) as read with paragraph (2), and

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

PART 5 — Effect of time spent in care homes and in legal detention

Effect of admission to a care home on ongoing entitlement to care component

17

(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Child Disability Payment, becomes a resident of a care home.

(2) Subject to paragraphs (4) and (5), on the day after the day on which the individual has been resident in a care home for 28 days, and for so long as the individual continues to reside in such a home, the value of the care component of Child Disability Payment that is to be given to the individual is £0 instead of the values set out in regulation 23 (amount and form of Child Disability Payment).

(3) The 28 days referred to in paragraph (2) may comprise two or more separate periods, provided that there is no more than 28 days between each period.

(4) Paragraph (2) does not apply to a resident in a care home, where the full costs of any qualifying services are met—

(a) entirely out of the resources of the individual for whom the qualifying services are provided,

(b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or

(5) For the purposes of this regulation, an individual is not resident in a care home during any period when the individual is being looked after by a local authority and—

(a) has been placed temporarily in a private dwelling with a family, relative or some other suitable person while—

(i) under the age of 16, or

(ii) aged between 16 and 18 and receiving services under Part II of the Children (Scotland) Act 1995³⁴ by virtue of being a child in need within the meaning of section 93(4)(a)(ii) (impairment of health), or 93(4)(a)(iii) (disability) of that Act, or

(b) is accommodated in a care home outside the United Kingdom, where the costs of any qualifying services are met wholly or partly by a local authority exercising its powers under section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004³⁵.

(6) For the purposes of this regulation and regulation 20 (entitlement to care component beginning while in alternative accommodation), reference to an individual being “looked after by a local authority” is to be construed, as the case may be, in accordance with—

(a) section 17(6) of the Children (Scotland) Act 1995³⁶,

(b) section 105(4) of the Children Act 1989³⁷, or

Effect of legal detention on ongoing entitlement to care component

18

(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Child Disability Payment is in legal detention.

(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.

(2) On the day after the day on which an individual has been in legal detention for 28 days, and for so long as the individual continues to be in legal detention, the value of the care component of Child Disability Payment that is to be given to the individual is to be £0, instead of the values set out in regulation 23 (amount and form of Child Disability Payment).

Calculation of periods of time spent in a care home or in legal detention

19

(1) Subject to paragraphs (2) and (3), a period during which an individual is resident in a care home for the purpose of regulation 17 or in legal detention for the purpose of regulation 18 is to be taken to—

(a) begin on the day after the day on which the individual enters the care home or legal detention, and

(b) end on the day before the day on which the individual leaves the care home or legal detention.

(2) Where an individual who is resident in a care home takes a period of leave from the home, the days on which the individual begins and returns from leave are not to be counted as days of residence in the home.

(3) Days constituting a period of leave are not to be counted as days of residence in a care home.

(4) Where an individual enters or returns to a care home as a result of a transfer from a hospital or a hospice, or from another care home, the day of transfer is to be counted as a day of residence in a care home.

(5) Where an individual enters legal detention as a result of a transfer from a hospital or a hospice, or from a care home, the day of transfer is to be counted as a day in legal detention.

Entitlement beginning while in alternative accommodation

20

(1) This regulation applies where an individual is resident in a care home or in legal detention on the day on which entitlement to the care component of Child Disability Payment begins.

(2) On and after that day, and for so long as the individual continues to reside in a care home , or be in legal detention, the value of the care component of Child Disability Payment that is to be given to the individual is £0 instead of the values set out in regulation 23 (amount and form of Child Disability Payment).

(3) Paragraphs (1) and (2) do not apply where the costs of any qualifying services whilst resident in a care home are met—

(a) entirely out of the resources of the individual for whom the qualifying services are provided,

(b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or

(4) For the purposes of this regulation an individual is not resident in a care home during any period when the individual is being looked after by a local authority and—

(a) has been placed temporarily in a private dwelling with a family, relative or some other suitable person while—

(i) under the age of 16,

(ii) aged between 16 and 18 and receiving services under Part II of the Children (Scotland) Act 1995 by virtue of being a child in need within the meaning of section 93(4)(a)(ii) (impairment of health), or 93(4)(a)(iii) (disability) of that Act, or

(b) is accommodated in a care home outside the United Kingdom, where the costs of any qualifying services are met wholly or partly by a local authority exercising its powers under section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004.

Entitlement to care component of Child Disability Payment while an in-patient

21

For the avoidance of doubt, any period when an individual is an in-patient in a hospice or hospital, has no effect on the individual’s entitlement to the care component of Child Disability Payment.

PART 6 — Making of applications and payments and duration of eligibility

Making payments

22

(1) Where Child Disability Payment is payable in respect of an individual, the Scottish Ministers may, where they consider it appropriate, make the payment to another person to be used for the benefit of the individual.

(2) Where the Scottish Ministers consider, for any reason, that it is no longer appropriate for a particular person who falls within paragraph (1) to continue to receive the payment, they may cease making payment to that person.

Amount and form of Child Disability Payment

23

(1) The weekly rate of payment of the care component is where the individual is entitled to—

(a) the highest rate, £110.40,

(b) the middle rate, £73.90, or

(2) The weekly rate of payment of the mobility component is where the individual is entitled to—

(a) the higher rate, £77.05, or

(b) the lower rate, £29.20.

(3) Where an individual is entitled to payment of the care component or the mobility component for a period shorter than one week, payment of that component is to be made at one-seventh of the relevant weekly rate, for each day of entitlement.

(4) For any week where an individual is entitled to—

(a) the care component of Child Disability Payment, and

(b) payment of an amount in respect of constant attendance under section 104 of the Social Security Contributions and Benefits Act 1992,

the amount of the care component of Child Disability Payment that is to be given to the individual is to be reduced by the amount paid under that section.

(5) For the purpose of calculating the amount of the care component that is to be given to the individual, in accordance with paragraph (4), where the amount in respect of constant attendance is equal to or greater than the amount of the care component of Child Disability Payment the value of Child Disability Payment that is to be given to the individual is to be £0.

(6) For any week where an individual is entitled to—

(a) the mobility component of Child Disability Payment, and

(b) payment of War Pensioners’ Mobility Supplement within the meaning of—

(i) the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 (“1983 Order”)³⁹,

(ii) the Personal Injuries (Civilians) Scheme 1983⁴⁰,

(iii) the 1983 Order by virtue of the War Pensions (Naval Auxiliary Personnel) Scheme 1964⁴¹,

(iv) the Pensions (Polish Forces) Scheme 1964⁴²,

(v) the War Pensions (Mercantile Marine) Scheme 1964⁴³, or

(vi) an Order of Her Majesty in relation to the Home Guard dated 21 December 1964 or 22 December 1964, or in relation to the Ulster Defence Regiment dated 4 January 1971,

the amount of the mobility component of Child Disability Payment that is to be given to the individual is to be £0.

(7) For each week in the period of 8 weeks ending with the death of the individual—

(a) the amount of Child Disability Payment that is to be given to that individual is the relevant weekly rate of each component to which the individual is entitled in that week, multiplied by two, and

(b) any provision in these Regulations reducing the amount to £0 has no effect.

(8) Child Disability Payment may only be given as money, except as provided for by regulation 27(1) (form of payment – giving Child Disability Payment by way of deduction).

When an application is to be treated as made and beginning of entitlement to assistance

24

(1) An application for Child Disability Payment is to be treated as made—

(a) on the day it is received by the Scottish Ministers, or

(b) if applicable, on the day identified by the Scottish Ministers in accordance with paragraph (2).

(2) If, before making a determination on the basis of an application, the Scottish Ministers consider that the individual in respect of whom the application is made—

(a) would not satisfy the requirement in—

(i) regulation 4 (age criteria),

(ii) regulations 5 to 9 (residence and presence conditions etc.),

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(v) regulation 12 (mobility requirements: lower rate mobility component),

(vi) regulation 13 (mobility requirements: higher rate mobility component), or

(vii) regulation 16 (entitlement to care component when undergoing dialysis),

if the application were treated as made on the day it was received, and

(b) would likely be entitled to receive Child Disability Payment if those requirements were satisfied within a 13-week period beginning on the day it was received,

the Scottish Ministers may choose the date within that 13 week period on which the application is to be treated as having been made.

(3) Where, on the basis of an application (other than where regulation 35 or 35A applies), a determination is made that an individual is entitled to Child Disability Payment, the date on which entitlement begins is to be identified in accordance with paragraphs (4) to (6).

(4) Where an application is made within 6 weeks of the day on which the full name and date of birth of an individual (“the required data”) is submitted by, or on behalf of, the individual to the Scottish Ministers for the purpose of an application for Child Disability Payment, entitlement begins on whichever is the later of the day—

(a) on which the required data was submitted, or

(b) identified in accordance with paragraph (2).

(5) Subject to paragraph (6), where an application is made after the 6 week period described in paragraph (4), entitlement begins on the day on which the application is treated as having been made in accordance with paragraph (1).

(6) Where the Scottish Ministers are satisfied that there is good reason why an application was made after the 6 week period described in paragraph (4), they may treat the application as having been made within that period.

(7) For the purposes of section 38(3) (application for assistance) of the 2018 Act, the period covered by an application for Child Disability Payment—

(a) under paragraph (1)(a)—

(i) begins on the day on which the application is treated as having been made, and

(ii) ends on the day on which the determination of entitlement is made, and

(b) under paragraph (1)(b)—

(i) is deemed to begin on the day before the determination is made provided that the requirements are satisfied, and

(ii) ends on the day on which the determination is made.

Time of payment

25

Where an award of Child Disability Payment is made, the Scottish Ministers are to make—

(a) the first payment of assistance on a date specified in the notice of determination, and

(b) any subsequent payment—

(i) 4 weekly in arrears, or

(ii) where regulation 15 (entitlement under special rules for terminal illness) applies, weekly in advance.

Continuing eligibility

26

(1) Subject to paragraphs (3) and (4), a determination that an individual is entitled to Child Disability Payment in respect of a period is to be made on the basis that the individual has an ongoing entitlement to Child Disability Payment after the end of that period, except where paragraph (2) applies.

(2) This paragraph applies where, after the end of the period mentioned in paragraph (1), the individual no longer satisfies the eligibility rules.

(3) A determination of ongoing entitlement is made on the basis that—

(a) the individual will continue to be entitled to Child Disability Payment for a fixed or indefinite period as specified in the notice of determination, and

(b) the decision that the individual is entitled to Child Disability Payment for each subsequent 4-week period is to be taken in accordance with these Regulations, on the strength of the assumptions set out in paragraph (4).

(4) The assumptions are that—

(a) the individual continues to satisfy the eligibility criteria which were satisfied to be entitled to Child Disability Payment under the determination mentioned in paragraph (1),

(b) the information on which the determination mentioned in paragraph (1) was made still applies and is relevant in the individual’s case, and

(c) there is no change in circumstances of the individual which would require to be notified under section 56 (duty to notify change of circumstances) of the 2018 Act.

Form of payment – giving Child Disability Payment by way of deduction

27

(1) Where an individual has a liability to the Scottish Ministers under section 63 of the 2018 Act (liability for assistance given in error), the individual’s payment of Child Disability Payment may be given (in whole or in part) by way of deduction, at a reasonable level, from that liability either—

(a) with the agreement of the individual, or

(b) without the individual’s agreement, where the individual has unreasonably refused to agree to the assistance being given in that form.

(2) For the purpose of paragraph (1), “reasonable level” means a level that is reasonable having regard to the financial circumstances of the individual.

When an increase in level of entitlement takes effect

28

(1) Where, as a result of a determination without an application, the amount of Child Disability Payment payable in respect of an individual is increased or their entitlement to a component is awarded, the change takes effect —

(a) in the case of an increase pursuant to a determination made under regulation 31(c) or (d) (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

(b) in the case of an award of entitlement to a component or an increase pursuant to a determination made in accordance with regulation 31(a) ... that affects their eligibility under regulation 11 (care component criterion: lowest, middle or highest rate of care component), 12 (mobility requirements: lower rate mobility component) or 13 (mobility requirements: higher rate mobility component), on the date when—

(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.

(c) in the case of an earlier determination which was based on official error within the meaning of regulation 32 (determination following official error - underpayments) or on error within the meaning of regulation 33 (determination following error – overpayments), begins on the date when the earlier determination took effect, or

(ca) in the case of a determination made in accordance with regulation 31(a), where the period that an individual has been—

(i) for the purpose of regulation 17, resident in a care home,

(ii) for the purposes of regulation 18, in legal detention, or

(iii) for the purposes of regulation 20, resident in a care home or in legal detention,

has come to an end, on the day on which the individual leaves that place, or

(d) in any other case, on the date when Scottish Ministers make the determination.

(2) Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set an earlier date for the purposes of paragraph 1(b), (c) or (d).

(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.

(3) This regulation does not apply to an individual to whom regulation 15 (entitlement under special rules for terminal illness) applies.

When a decrease in level or cessation of entitlement takes effect

29

(1) Where, as a result of a determination without an application, the amount of Child Disability Payment payable in respect of an individual is decreased or their entitlement to a component is ceased, the change takes effect —

(a) in the case of a decrease pursuant to a determination made under regulation 31(c) or (d) (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

(aa) in the case of a determination without application under regulation 31(b), on the date of the individual’s death,

(b) in the case of a determination without application under regulation 30 or 31(a), on the date on which —

(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,

(ia) where the Scottish Ministers make a determination that the individual is entitled to Adult Disability Payment, on the day that the entitlement to Adult Disability Payment begins in terms of regulation 58 of the ADP Regulations,

(ib) where the Scottish Ministers have—

(aa) made a decision to suspend the individual’s Child Disability Payment in terms of regulation 26A(1) and (3)(a), and

(bb) subsequently made the determination on the basis that the eligibility rules for Child Disability Payment are not satisfied, as provided for by section 54(2) of the 2018 Act,

the individual’s Child Disability Payment was suspended, or

(ii) in any other case, the Scottish Ministers make the determination,

(c) in the case of an earlier determination which was based on official error within the meaning of regulation 32 (determination following official error - underpayments) or on error within the meaning of regulation 33 (determination following error – overpayments), begins on the date when the earlier determination took effect,

(d) in any other case, on the date when Scottish Ministers make the determination.

(2) Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set a later date for the purposes of paragraph 1(b), (c) or (d).

PART 7 — Re-consideration of entitlement to Child Disability Payment: determination without application

Consideration of entitlement after specified period

30

The Scottish Ministers must make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, after the end of the period specified (if any) in—

(a) the individual’s notice of determination under section 40 or notice of re-determination under section 44 (as the case may be), or

(b) a determination made by the First-tier Tribunal for Scotland under section 49,

of the 2018 Act.

Determination following change of circumstances etc.

31

The Scottish Ministers must make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where the individual has an ongoing entitlement to Child Disability Payment and they become aware—

(a) of a change of circumstances, whether or not notified by the individual in accordance with section 56 of the 2018 Act, or where the Scottish Ministers become aware that a determination of an individual’s entitlement was made in ignorance of a material fact, which would possibly result in an alteration to the component or rate of Child Disability Payment payable to the individual or which is likely to mean that the individual is no longer entitled to Child Disability Payment,

(b) that the individual has died,

(c) of an alteration of the component or rate of award of Disability Living Allowance which the individual was entitled to immediately before the date of transfer to Child Disability Payment in accordance with Part 3 of the schedule (transitional provisions), as a result of a decision made pursuant to—

(i) a revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”)⁴⁴,

(ii) a supersession under regulation 6⁴⁵ of the 1999 Regulations,

(iii) an appeal under section 12 of the Social Security Act 1998 (“the 1998 Act”)⁴⁶,

(iv) a re-consideration under section 13 of the 1998 Act⁴⁷, ...

(v) an appeal to the Upper Tribunal under section 14 of the 1998 Act⁴⁸,

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

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

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

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

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