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

• (d) of an alteration of the rate of award of Disability Living Allowance which the individual was entitled to immediately before moving to Scotland in circumstances in which regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland) applies, 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,

• (ii) a supersession under regulation 6 of those Regulations,

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

• (iv) a re-consideration under section 13 of the 1998 Act,

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

• (vi) a revision under article 10 of the Social Security (Northern Ireland) Order 1998⁴⁹ (“the 1998 Order”),

• (vii) a supersession under article 11 of the 1998 Order⁵⁰,

• (viii) an appeal under article 13 of the 1998 Order⁵¹, or

• (ix) an appeal to the Commissioner under article 15 of the 1998 Order⁵².

Determination following official error - underpayments

32

• (1) The Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where—

• (a) they have previously made a determination of the individual’s entitlement to Child Disability Payment (“the original determination”),

• (b) they establish that, due to an official error, the original determination was incorrect resulting in the individual—

• (i) not being given an award of Child Disability Payment, or

• (ii) being given a lower award than that,

to which the individual was entitled,

• (c) the Scottish Ministers are not considering a request for a re-determination of the individual’s entitlement to the Payment, and

• (d) the individual has not appealed to the First-tier Tribunal for Scotland against the Scottish Ministers’ determination of the individual’s entitlement to Child Disability Payment.

• (2) In making a determination required by paragraph (1) the Scottish Ministers are to use—

• (a) the information—

• (i) provided in the application that led to the original determination,

• (ii) any other information they have obtained in connection with that application, and

• (b) any other information they have obtained in connection with the individual’s entitlement to Child Disability Payment.

• (3) In this regulation “official error” means an error made by someone acting on behalf of the Scottish Ministers or on behalf of a Minister of the Crown that was not materially contributed to by anyone else.

Determination following error - overpayments

33

• (1) The Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where—

• (a) they have previously made a determination of the individual’s entitlement to Child Disability Payment (“the original determination”),

• (b) they establish that, due to an error, the original determination was incorrect resulting in the individual being given—

• (i) an award of Child Disability Payment to which the individual was not entitled, or

• (ii) a higher award than that to which the individual was entitled.

• (c) the Scottish Ministers are not considering a request for a re-determination of the individual’s entitlement to the Payment, and

• (d) the individual has not made an appeal to the First-tier Tribunal for Scotland or Upper Tribunal against the Scottish Ministers’ determination of the individual’s entitlement to Child Disability Payment, that has not yet been determined.

• (2) In making a determination required by paragraph (1) the Scottish Ministers are to use—

• (a) the information—

• (i) provided in the application that led to the original determination, and

• (ii) any other information they have obtained in connection with that application,

• (b) any other information they have obtained in connection with the individual’s entitlement to Child Disability Payment, and

• (c) any other information available to them that is relevant to their consideration of whether the individual is entitled to Child Disability Payment.

• (3) In this regulation references to an “error” are to—

• (a) an error in the performance of a function conferred by these Regulations or the 2018 Act, including a determination being made—

• (i) wrongly, or

• (ii) correctly but on the basis of—

• (aa) incorrect information, or

• (bb) an assumption which proves to be wrong, or

• (b) a new determination not being made after an assumption on the basis of which an earlier determination was made has proved to be wrong.

Determination to effect a deduction decision

34

• (1) The Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where the circumstances in paragraphs (2) and (3) apply.

• (2) This paragraph applies where—

• (a) regulation 27 (form of payment - giving Child Disability Payment by way of deduction) allows Child Disability Payment to be given to the individual by way of deduction, or

• (b) Child Disability Payment is being given to the individual by way of deduction, and the Scottish Ministers consider that may no longer be appropriate.

• (3) This paragraph applies where the Scottish Ministers have decided to—

• (a) vary the amount of Child Disability Payment to be given by way of deduction (including introducing a deduction, where the full amount of Child Disability Payment was previously given as money),

• (b) vary any period for which the individual’s Child Disability Payment is to be given by way of deduction, that may have been specified in a previous determination of the individual’s entitlement, or

• (c) cease making deductions, and instead give the individual’s Child Disability Payment in the form of money.

• (4) The Scottish Ministers are to make a determination, without receiving an application, where an individual who is receiving Child Disability Payment by way of deduction under a previous determination of entitlement notifies the Scottish Ministers that the individual—

• (a) withdraws their agreement to their Child Disability Payment being given by way of deduction,

• (b) wishes the Scottish Ministers to increase the amount of their Child Disability Payment that is given by way of deduction,

• (c) wishes the Scottish Ministers to decrease the amount of their Child Disability Payment that is given by way of deduction (including ceasing the deduction), or

• (d) wishes the Scottish Ministers to amend the length of any period referred to in paragraph (3)(b).

PART 8 — Movement of individuals between Scotland and the rest of the United Kingdom

Individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland

35

• (1) Where an individual—

• (a) is under 18 years of age,

• (b) becomes resident in Scotland,

• (c) was resident in another part of the United Kingdom, and

• (d) was entitled to Disability Living Allowance immediately before the date of the move,

the Scottish Ministers are to make a determination without application of the individual’s entitlement to Child Disability Payment.

• (2) Entitlement to Child Disability Payment under paragraph (1) begins on the day after the day on which the individual’s entitlement to Disability Living Allowance ends .

• (3) In this regulation, “the date of the move” is the date when the individual becomes resident in Scotland as notified by the individual or otherwise communicated to the Scottish Ministers (whether the notification takes place before or after the date of the move).

Individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom

36

• (1) Where the Scottish Ministers become aware that an individual who is entitled to Child Disability Payment has moved or is to move to become ... resident in another part of the United Kingdom, the individual is to be treated as though the individual meets the condition under regulation 5(1)(a) of being ordinarily resident in Scotland for a period of 13 weeks beginning in accordance with paragraph (4) .

• (2) Subject to Part 5 (effect of time spent in care homes and in legal detention), where the Scottish Ministers become aware that an individual has moved or is to move to another part of the United Kingdom as mentioned in paragraph (1), they are to make a determination without application at the end of the 13-week period mentioned in paragraph (1) that the individual’s entitlement to Child Disability Payment is to terminate.

• (3) Where before the end of the 13-week period, the Scottish Ministers become aware that the individual is no longer to move to become ... resident in another part of the United Kingdom, ... the duty in paragraph (2) does not apply.

• (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.

• (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.

PART 9 — Periods in respect of a re-determination request

Periods in respect of a re-determination request

37

• (1) The period for requesting a re-determination of entitlement to Child Disability Payment under section 41 (right to request re-determination) of the 2018 Act is 42 days beginning with the day that the individual is informed, in accordance with section 40 of the 2018 Act (notice of determination), of the right to make the request.

• (2) In relation to determining entitlement to Child Disability Payment, the period allowed for re-determination (within the meaning of section 43 of the 2018 Act (duty to re-determine)) is 56 days beginning with—

• (a) the day that the request for a re-determination is received by the Scottish Ministers, ...

• (b) in a case where the request for a re-determination is received by the Scottish Ministers outwith the period prescribed in paragraph (1), the day on which it is decided by the Scottish Ministers or (as the case may be) the First-tier Tribunal for Scotland that the individual in question has a good reason for not requesting a re-determination sooner, 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.

PART 10 — Provision of vehicles

Payment of mobility component to authorised providers of vehicles for individuals with disabilities

38

• (1) Where—

• (a) an individual is entitled to the higher rate of the mobility component of Child Disability Payment, and

• (b) the individual has entered into an agreement with an authorised provider of vehicles for persons with disabilities for the hire or hire-purchase of a vehicle,

the Scottish Ministers may, with the consent of the individual, pay that component (in whole or in part) to the provider to be used to meet, or contribute towards meeting, the individual’s liability under the agreement.

• (2) The Scottish Ministers must cease to make payments to the provider in accordance with paragraph (1) in the event that—

• (a) the agreement is brought to an end in accordance with the terms of the agreement, or

• (b) the individual withdraws their consent.

Vehicles for persons with disabilities – powers of appointees

39

• (1) Where a person (an “appointee”) is appointed by the Scottish Ministers under the 2018 Act to act on an individual’s behalf in connection with the determination of the individual’s entitlement to assistance under section 24 of the 2018 Act (duty to give assistance), in addition to the powers conferred on the appointee by that Act the appointee can, on behalf of the individual—

• (a) enter into an agreement with an authorised provider of vehicles for the hire or hire-purchase of a vehicle,

• (b) terminate any such agreement,

• (c) for the purpose of regulation 38(1), give consent to the Scottish Ministers to pay (in whole or in part) the mobility component to which the individual is entitled to the provider, and

• (d) withdraw any such consent.

• (2) An appointee may exercise the powers conferred by paragraph (1)(b) and (d) whether the agreement was entered into, or the consent given, by the appointee or by any other person.

PART 11 — Initial period for applications

Initial period for applications

40

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

PART 12 — Transfer to Child Disability Payment

Transfer to Child Disability Payment

41

Part 3 of the schedule makes provision about transferring from Disability Living Allowance to Child Disability Payment.

PART 13 — Short-term assistance

Entitlement to short-term assistance

42

Part 1 of the schedule makes provision about short-term assistance.

PART 14 — Consequential amendment

Consequential amendment

43

The amendment specified in Part 4 of the schedule has effect.

PART 15 — Transitory provision

Transitory provision – initial period for applications

44

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

Exclusion to transitory provision

45

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

SCHEDULE

PART 1 — Short-term assistance

Entitlement to short-term assistance

1

• (1) Subject to sub-paragraph (2) or (3), an individual who is, or was, entitled to Child Disability Payment under a determination made on the basis that the individual has ongoing entitlement is entitled to short-term assistance where—

• (a) that determination of the individual’s entitlement to Child Disability Payment (“the earlier determination”) has been superseded by—

• (i) a determination under section 37 (duty to make a determination) of the 2018 Act, or

• (ii) if the earlier determination is a determination—

• (aa) of an application for Child Disability Payment,

• (bb) without application of an individual’s entitlement to Child Disability Payment under paragraph 9 of this schedule (determination without application of entitlement to Child Disability Payment),

• (cc) without application of an individual’s entitlement to Child Disability Payment under 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 determination under section 43 (Scottish Ministers’ duty to re-determine) or section 49 (First-tier Tribunal’s power to determine entitlement on appeal) of the 2018 Act

• (b) as a result of—

• (i) the earlier determination being superseded as mentioned in sub-paragraph (1)(a), or

• (ii) a later determination under section 43 or section 49 of the 2018 Act in relation to the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i), or the earlier determination mentioned in sub-paragraph (1)(a)(ii), relates,

the individual—

• (iii) is no longer entitled to Child Disability Payment, or

• (iv) is entitled to less Child Disability Payment than they were under the earlier determination,

• (c) 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

• (d) the individual—

• (i) continues to meet the conditions as to residence and presence set out in regulations 5 to 9A, or

• (ii) has transferred to become resident in another part of the United Kingdom, and the matter under review is the determination of entitlement for the 13-week period beginning in accordance with regulation 36 (individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom).

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

• (a) a decision of the First-Tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates, is set aside after a review under section 43(2) of the Tribunals (Scotland) Act 2014 (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 a determination of an individual’s entitlement to Child Disability Payment is set aside after a review in terms of sub-paragraph (1A)(a) and the individual had previously been awarded short-term assistance on the basis that their entitlement to Child Disability Payment was under review by the First-tier Tribunal prior to it making the decision that has been set aside, the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

• (1C) Where the First-tier Tribunal for Scotland set aside a decision by the Scottish Ministers not to accept a request for a re-determination of the individuals’ entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i) relates, and the Scottish Ministers had previously determined, pursuant to an application made by the individual, that the individual was not entitled to short-term assistance on the basis that the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i) relates was not under review, the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

• (2) An individual is not entitled to short-term assistance where the individual is no longer entitled to Child Disability Payment as a result of a subsequent determination made under—

• (a) regulation 31(a) (determination following change of circumstances etc.) where the change of circumstances is that the individual—

• (i) no longer meets the requirements of regulation 4 (age criteria), or

• (ii) is entitled to Adult Disability Payment under a determination—

• (aa) made pursuant to an application made by the individual in accordance with regulation 58 (applications by individuals entitled to Child Disability Payment), or

• (bb) made without receiving an application in accordance with regulation 59 (determination without application – terminal illness),

of the Disability Assistance for Working Age People (Scotland) Regulations 2022, or

• (b) regulation 31(b).

• (3) An individual to whom regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) , 18(2) (effect of legal detention on ongoing entitlement to care component) , or 20(2) (entitlement to care component beginning while in alternative accommodation) applies is not entitled to short-term assistance in respect of the care component of Child Disability Payment.

• (4) Where the Scottish Ministers have made a determination under section 37 of the 2018 Act (duty to make determination) that an individual is entitled to short-term assistance, entitlement to short-term assistance begins—

• (a) where a request is made under section 41 of the 2018 Act (right to request re-determination) for a re-determination ... of the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) relates, on the day that request is made,

• (b) where a notice of appeal is submitted under section 47 of the 2018 Act (initiating an appeal) against a determination of the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii), on the day that request is made,

• (c) where a decision of the Scottish Ministers is made not to accept a request for a re-determination of the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates (i) relates, on the day that decision is set aside by the First-tier Tribunal for Scotland, ...

• (d) where a request is made under section 48(1)(b) of the 2018 Act (deadline for appealing) for permission to appeal a determination of the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates, on the day that request is made

, or

• (e) where a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to a determination of the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates, 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 decision about 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.

• (6) In this part of the schedule “the earlier determination” has the meaning given in sub-paragraph (1)(a).

Value and form

2

• (1) The value of short-term assistance payable for any period is equal to V1-V2 where—

• (a) V1 is the value of the Child Disability Payment the individual would have been given in respect of the period under the earlier determination had the earlier determination not been superseded, and

• (b) V2 is the value of the Child Disability Payment that the individual is to be given in respect of the period under what is, at the time the individual becomes eligible for short-term assistance in respect of the period, the most recent determination of the individual’s entitlement to Child Disability Payment.

• (2) The form in which the short term assistance is to be given is to be the same as the form in which Child Disability Payment was given under the earlier determination.

• (3) Where the mobility component was being paid by the Scottish Ministers to an authorised provider of vehicles for persons with disabilities in accordance with regulation 38(1) (payment of mobility component to authorised provider of vehicles for individuals with disabilities) on the day before an individual’s entitlement to the mobility component ended as a result of a subsequent determination mentioned in paragraph 1(1)(a)—

• (a) the amount of short-term assistance that is payable in respect of the mobility component may be paid by the Scottish Ministers to the authorised provider, and

• (b) paragraphs (1) and (2) of regulation 38 apply to the payment of short-term assistance as they had applied to the payment of mobility component prior to the individual’s entitlement ending.

• (4) Regulations 25 (time of payment), 27 (form of payment - giving Child Disability Payment by way of deduction), 32 (determination following official error – underpayments), 33 (determination following error – overpayments) and 34 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Child Disability Payment.

End of entitlement

3

• (1) Entitlement to short-term assistance ends on the day—

• (a) a determination of an individual’s entitlement to short-term assistance is cancelled under section 26(2) of the 2018 Act (individual’s right to stop receiving assistance),

• (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),

• (c) the First-tier Tribunal for Scotland makes a determination under section 49 of the 2018 Act (First-tier Tribunal’s power to determine entitlement) in relation to ... the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates, ...

• (d) that the First-tier Tribunal for Scotland makes a determination to refuse permission under section 48(1)(b) of the 2018 Act (deadline for appealing) to bring an appeal against a determination of the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates , or

• (e) where the individual withdraws their application to bring an appeal against a determination of the individual’s entitlement to Child Disability Payment or the period to which the determination mentioned in paragraph 1(1)(a) (i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates, on that day.

• (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.

Reduction of payment of Child Disability Payment where short-term assistance is paid

4

Where an individual has received short-term assistance for a period and a determination is subsequently made that the individual is entitled to Child Disability Payment for the same period, any payment of Child Disability Payment to be made as a result of the subsequent determination for that period—

• (a) where the individual is to be paid Child Disability Payment at the same rate as or a lower rate than any short-term assistance and any Child Disability Payment already paid to that individual for that period, is to be reduced to £0,

• (b) in any other case, is to be reduced by any short-term assistance and any Child Disability Payment already paid to that individual for that period.

PART 2 — Initial period for applications

Initial period for applications

5

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

Local authority areas for initial period for applications

6

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

PART 3 — Transfer to Child Disability Payment

Interpretation

7

In this Part of the schedule—

• “date of transfer” means the date when a transferring individual’s entitlement to Child Disability Payment begins by virtue of a determination made under paragraph 9(1),

• “relevant individual” means an individual—who has an award of Disability Living Allowance who appears to the Scottish Ministers to be likely to be eligible for Child Disability Payment,who is—ordinarily resident in Scotland, orsomeone to whom regulation 5(4) (residence and presence conditions) or 9(2) (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies,

• “sufficient” means a link to Scotland that is sufficiently close that regulations 5(4) or 9(2) would be incompatible with the applicable agreement mentioned in that regulation, if the relevant individual were not entitled to Child Disability Payment,

• “transfer notice” means the notice required by paragraph 8, and

• “transferring individual” means a relevant individual on whom the Scottish Ministers have served a notice of intention to transfer in accordance with paragraph 8.

Notice of intention to transfer to Child Disability Payment

8

• (1) The Scottish Ministers are to notify each relevant individual of their intention to transfer that individual’s entitlement to disability assistance from an entitlement to Disability Living Allowance to an entitlement to Child Disability Payment.

• (2) Notice under sub-paragraph (1) must—

• (a) be given in a way that leaves the relevant individual with a record of the information which they can show to, or otherwise share with, others,

• (b) inform the relevant individual that—

• (i) they have been identified as a relevant individual for the purposes of transfer to Child Disability Payment,

• (ii) the Scottish Ministers will make a determination without application to transfer the individual’s entitlement to Disability Living Allowance to an entitlement to Child Disability Payment within 17 weeks of the date of the notice (the individual will be notified when the determination is made and informed about their award and start date of Child Disability Payment), and

• (iii) the individual’s award of Disability Living Allowance will cease immediately before the award of Child Disability Payment begins.

• (3) Where a notice under sub-paragraph (1) is given—

• (a) to a transferring individual who, before a determination is made under paragraph 9(1), ceases to be ordinarily resident in Scotland, or

• (b) in error where the individual is neither—

• (i) ordinarily resident in Scotland, nor

• (ii) an individual who is habitually resident in an EEA state, Gibraltar or Switzerland and has a genuine and sufficient link to Scotland,

the duty on the Scottish Ministers in paragraph 9(1) does not apply.

• (4) Where sub-paragraph (3) applies in respect of an individual and a determination under paragraph 9(1) has not been made, the Scottish Ministers are to notify the individual that the duty on the Scottish Ministers in paragraph 9(1) does not apply.

Determination without application of entitlement to Child Disability Payment

9

• (1) The Scottish Ministers are to make a determination without application in respect of a transferring individual of that individual’s entitlement to Child Disability Payment.

• (2) Entitlement to Child Disability Payment under a determination under sub-paragraph (1) begins on the date specified in the notice of determination given to the transferring individual in accordance with section 40 of the 2018 Act.

• (3) The determination under sub-paragraph (1) is to be made on the basis of—

• (a) such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the transferring individual’s entitlement to Disability Living Allowance, and

• (b) any other information available to the Scottish Ministers that appears to them to be relevant.

• (4) Subject to paragraph 11, a determination under sub-paragraph (1) must be made on the basis that the transferring individual is entitled to the components and rates of Child Disability Payment that are equivalent to those components and rates of Disability Living Allowance to which the individual was entitled immediately before the date of transfer.

• (5) A determination under sub-paragraph (1)—

• (a) may be made on the assumption that whatever can be discerned about the transferring individual’s circumstances from the information mentioned in sub-paragraph (3) remains accurate on the date on which the determination is made,

• (b) notwithstanding the generality of head (a), is to be made on the assumption that the conditions relating to residence and presence set out in regulations 5 to 9 (residence and presence conditions etc.) are satisfied in the individual’s case, and

• (c) must be made not later than 17 weeks after the date of the notice under paragraph 8(1) unless the Scottish Ministers have—

• (i) good reason to extend that period,

• (ii) agreed the period for extension with the Secretary of State for Work and Pensions, and

• (iii) notified the transferring individual of the extension and the reason for it.

Effect of determination on entitlement to Disability Living Allowance

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.

Exceptions to paragraph 9(4)

11

• (1) The following circumstances are exceptions to paragraph 9(4)—

• (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 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,

• (b) a transferring individual who is not awarded the care component of Disability Living Allowance and meets the condition in regulation 11(1)(b) (care component criterion: lowest, middle or highest rate of care component) is entitled to the lowest rate of the care component of Child Disability Payment,

• (c) a transferring individual whose entitlement to one or both components of Disability Living Allowance was affected because they were under 16 and did not meet the requirements in either or both sections 72(1A)(b) or 73(4A) of the Social Security Contributions and Benefits Act 1992⁵³, who is aged 16 or over is entitled to an increased rate of either component or both components as the case may be of Child Disability Payment, and

• (d) a transferring individual, whose entitlement to the mobility component of Disability Living Allowance was affected by not meeting the requirement of regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991⁵⁴, who meets the condition in regulation 13(5) (mobility requirements: higher rate mobility component), is entitled 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.

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

Effect of legal custody on payment of the mobility component

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• (1) Where a transferring individual is in legal detention immediately before the date of transfer and payment of the mobility component of Disability Living Allowance is suspended under regulation 3 of the Social Security (General Benefit) Regulations 1982⁵⁵, the mobility component of Child Disability Payment is to be paid at the rate equivalent to the rate of Disability Living Allowance paid to the transferring individual immediately prior to the suspension.

• (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.

Modification of these Regulations: transferring individuals

13

These Regulations apply to a transferring individual on and after the date of transfer with the following modifications—

• (za) where paragraph 11(2), 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.

• (a) regulation 17 (effect of admission to a care home on ongoing entitlement to care component) and regulation 18 (effect of legal detention on ongoing entitlement to care component) are to be read as if the period of 28 days begins on the date of transfer, ...

• (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

• (b) regulation 24 (when an application is to be treated as made and beginning of entitlement to assistance) is treated as omitted , and

• (c) regulation 25 (time of payment) is to be read as if for paragraph (b) there were substituted—

(b) any subsequent payment— (i) 4 weekly in arrears, (ii) weekly in advance, or (iii) where the Scottish Ministers consider that it would be unjust not to do so, at such intervals as may be specified in the notice ofdetermination.

Appointees

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• (1) A person appointed by the Secretary of State for Work and Pensions under regulation 33 or 43 of the Social Security (Claims and Payments) Regulations 1987⁵⁶ to receive Disability Living Allowance on behalf of a transferring individual is to be treated on and after the date of transfer as though appointed by the Scottish Ministers to act on behalf of that transferring individual under section 58 (or 85B⁵⁷) or 85A of the 2018 Act.

• (2) As soon as reasonably practicable after the date of transfer, the Scottish Ministers must—

• (a) consider whether the conditions for making an appointment in respect of the transferring individual are met (having regard to whichever of section 58(4), 85A(3) or 85B(3) of the 2018 Act applies in the transferring individual’s case),

• (b) consider whether to terminate the appointment that is treated as having been made by virtue of sub-paragraph (1) and terminate it if they consider it appropriate, and

• (c) if they have terminated an appointment in pursuance of head (b), appoint under section 58 (or 85B) or 85A of the 2018 Act another person to act on the transferring individual’s behalf if they consider it appropriate to do so.

• (3) The duty in sub-paragraph (2) does not apply where the Scottish Ministers have already appointed the person mentioned in sub-paragraph (1) to act on behalf of that transferring individual under section 85A or 85B of the 2018 Act.

PART 4 — Consequential amendment

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• (1) The Social Security Contributions and Benefits Act 1992⁵⁸ is amended in accordance with paragraph (2).

• (2) In section 70(2)⁵⁹ (invalid care allowance), after “enhanced rate” insert “or disability assistance by virtue of entitlement to the care component at the middle or highest rate under regulations made under section 31 of the Social Security (Scotland) Act 2018”.

Signed

SHIRLEY-ANNE SOMERVILLE — A member of the Scottish Government — 2021-03-24

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations make provision for Child Disability Payment which is a type of disability assistance given by the Scottish Ministers under section 31 of the Social Security (Scotland) Act 2018.

Part 2 provides an overview of arrangements for payment of disability assistance for children and young people (“Child Disability Payment”).

Part 3 deals with eligibility for the assistance on account of having a disability, including age criteria, residence and presence conditions, entitlement to other benefits, care component criterion and mobility requirements.

Part 4 sets out rules of entitlement to the assistance on account of having a terminal illness, and when undergoing dialysis at home.

Part 5 deals with the effect on entitlement to the care component of the assistance of residence when in a care home or hospital or in legal detention.

Part 6 deals with the making of applications, payments, the amount and form of Child Disability Payment and ongoing eligibility. It also provides for when increases or decreases of entitlement take effect and giving assistance by way of deduction.

Part 7 deals with reconsideration of entitlement, where an award of assistance has already been made and is being revisited. It provides for determinations without application to be made where a specified period has elapsed, there is a change in circumstances, to address error or official error or to effect a deduction decision.

Part 8 deals with the situation where people in receipt of the assistance, and the DWP equivalent, move to and from Scotland, from other parts of the United Kingdom.

Part 9 provides for time periods for dealing with requests for re-determination of entitlement.

Part 10 makes provision for the Scottish Ministers to make payment to suppliers of adapted vehicles, with whom recipients of the assistance have entered agreements for hire or hire purchase. These suppliers must be accredited according to a scheme operated by the Scottish Ministers.

Part 11 and Part 2 of the schedule makes provision for an initial period for applications to take place before the rollout of the assistance.

Part 12 and Part 3 of the schedule makes provision to transfer individuals who are awarded Disability Living Allowance to become entitled to Child Disability Payment.

Part 13 and Part 1 of the schedule deals with entitlement to short term assistance, to bridge the gap, in the event that entitlement to the assistance is reduced or removed. This is payable, in certain circumstances, during the time when the change in entitlement is being challenged but the outcome is not yet known.

Part 14 and Part 4 of the schedule makes provision for a consequential amendment to the Social Security Contributions and Benefits Act 1992.

Part 15 deals with an initial period for applications by way of transitory provision.

Footnotes

Editorial notes