The Disability Assistance for Working Age People (Scotland) Regulations 2022

Made: 9th February 2022

Coming into force: 21st March 2022

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

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These Regulations may be cited as the Disability Assistance for Working Age People (Scotland) Regulations 2022 and come into force on 21 March 2022.

Interpretation

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In these Regulations—

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

• “Adult Disability Payment” means disability assistance for adults given in accordance with these Regulations,

• “aid or appliance”—means any object or device which—the individual needs to be able to perform an activity, andimproves, provides or replaces the individual’s impaired physical or mental function,includes an object or device which a person without a disability might choose to use for the same function,in relation to managing toilet needs includes the use of incontinence pads, andincludes a prosthesis,

• “armed forces independence payment” means the disability benefit paid in accordance with article 24A of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011[^f00002],

• “assessment” means an assessment as described in section 13(2) of the 2018 Act,

• “Attendance Allowance” means an attendance allowance under—section 64 of the Social Security Contributions and Benefits Act 1992, orsection 64 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992,

• “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,

• “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 2010[^f00004] and includes a residential educational establishment,

• “Child Disability Payment” means disability assistance for children and young people given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021[^f00005],

• “daily living component” means the daily living component of Adult Disability Payment within the meaning of regulation 5,

• “descriptor” means a descriptor in column 2 of the tables in Parts 2 and 3 of schedule 1,

• “determination” and “determination of entitlement” have the meaning of “determination of entitlement” 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 1992[^f00006], orsection 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00007],

• ...

• “immigration rules” means the rules laid before the United Kingdom Parliament under section 3(2) of the Immigration Act 1971[^f00009],

• “legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995[^f00010],

• ...

• “mobility component” means the mobility component of Adult Disability Payment within the meaning of regulation 6,

• “needs” where used in relation to an aid or appliance, or supervision, prompting or assistance from another person, means that it is reasonably required, though it may not have been available or provided,

• “Pension Age Disability Payment” means disability assistance for older people given in accordance with the Disability Assistance for Older People (Scotland) Regulations 2024,

• “Personal Independence Payment”—means personal independence payment under—Part 4 of the Welfare Reform Act 2012[^f00011], orarticle 82 of the Welfare Reform (Northern Ireland) Order 2015[^f00012], andincludes a concessionary payment made in lieu of personal independence payment under arrangements by the Secretary of State with the consent of the Treasury,

• “previous award” means an award of either or both components of Adult Disability Payment to which an individual has ceased to be entitled,

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

• “relevant date” means the date referred to in regulation 13 or, where applicable, regulation 14 or 23,

• “relevant EU Regulation” means—one of the following Regulations—Council Regulation (EC) No 1408/71 of 14 June 1971[^f00013] 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 2004[^f00014] 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 1996[^f00017] or section 14 of the Education Act 2002[^f00018] (which relate to grants in aid of educational services),sections 49 or 73 of the Education (Scotland) Act 1980[^f00019] (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 65 of the Further and Higher Education Act 1992[^f00020], sections 39 or 40 of the Higher Education and Research Act 2017[^f00021] or sections 4 or 11 of the Further and Higher Education (Scotland) Act 2005[^f00022] (which relate respectively to the funding of further education and the administration of funds), orsection 22 of the Teaching and Higher Education Act 1998[^f00023] (new arrangements for giving financial support to students),

• “Scottish Adult Disability Living Allowance” means disability assistance for adults given in accordance with the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025,

• “short-term assistance” means short-term assistance given in accordance with Part 1 of schedule 2 of these Regulations, and

• “week” means a period of 7 days.

PART 2 — Disability Assistance for Working Age People

Overview

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• (1) An individual is entitled to Adult Disability Payment in accordance with these Regulations if the individual meets the eligibility rules in—

• (a) regulation 4 (entitlement to other benefits),

• (b) regulations 15 to 21 (residence and presence conditions),

• (c) regulation 22 (age criteria), and

• (d) one or more of the following—

• (i) regulation 5 (daily living component),

• (ii) regulation 6 (mobility component),

• (iii) regulation 26 (entitlement under special rules for terminal illness).

• (2) Adult Disability Payment is to consist of a daily living component and a mobility component.

• (3) There are 2 weekly rates of the daily living component and 2 weekly rates of the mobility component and those rates are specified in regulation 34 (amount and form of Adult Disability Payment).

Entitlement to other benefits

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

• (a) armed forces independence payment,

• (b) Attendance Allowance,

• (ba) Pension Age Disability Payment,

• (c) Child Disability Payment,

• (d) Disability Living Allowance, ...

• (e) Personal Independence Payment , or

• (f) Scottish Adult Disability Living Allowance.

PART 3 — Eligibility: Daily Living Component and Mobility Component

Daily Living Component

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• (1) An individual may be awarded the daily living component at either the standard rate or the enhanced rate.

• (2) An individual is entitled to the daily living component at the standard rate if—

• (a) the individual’s ability to carry out daily living activities is limited by the individual’s physical or mental condition or conditions, and

• (b) the individual meets the required period condition in accordance with regulation 11.

• (3) An individual is entitled to the daily living component at the enhanced rate if—

• (a) the individual’s ability to carry out daily living activities is severely limited by the individual’s physical or mental condition or conditions, and

• (b) the individual meets the required period condition in accordance with regulation 11.

• (4) For the purpose of these Regulations—

• (a) “daily living activities” are the activities set out in column 1 of the table in Part 2 of schedule 1, and “a daily living activity” is to be construed accordingly,

• (b) “the standard rate” in relation to the daily living component means the weekly rate of the daily living component set in regulation 34(1)(a),

• (c) “the enhanced rate” in relation to the daily living component means the weekly rate of the daily living component set in regulation 34(1)(b),

• (5) Whether a person has limited or severely limited ability to carry out daily living activities is to be determined in accordance with regulation 8 (scoring for daily living activities).

Mobility Component

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• (1) An individual may be awarded the mobility component at either the standard rate or the enhanced rate.

• (2) An individual is entitled to the mobility component at the standard rate if—

• (a) the individual’s ability to carry out mobility activities is limited by the individual’s physical or mental condition or conditions, and

• (b) the individual meets the required period condition in accordance with regulation 12.

• (3) A individual is entitled to the mobility component at the enhanced rate if—

• (a) the individual’s ability to carry out mobility activities is severely limited by the individual’s physical or mental condition or conditions, and

• (b) the individual meets the required period condition in accordance with regulation 12.

• (4) For the purpose of these Regulations—

• (a) “mobility activities” are the activities set out in column 1 of the table in Part 3 of schedule 1, and “a mobility activity” is to be construed accordingly,

• (b) “the standard rate” in relation to the mobility component means the weekly rate of the mobility component set in regulation 34(2)(a),

• (c) “the enhanced rate” in relation to the mobility component means the weekly rate of the mobility component set in regulation 34(2)(b),

• (5) Whether a person has limited or severely limited ability to carry out mobility activities is to be determined in accordance with regulation 9 (scoring for mobility activities).

Determination of ability to carry out activities

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• (1) An individual’s ability to carry out a daily living activity or mobility activity is to be determined—

• (a) on the basis of the individual’s ability whilst wearing or using any aid or appliance which the individual normally wears or uses, or

• (b) as if the individual were wearing or using any aid or appliance which the individual could reasonably be expected to wear or use.

• (2) An individual’s ability to carry out an activity is to be determined—

• (a) by reference to the descriptors for the activity set out in column 2 of the table in Part 2 of schedule 1 or, as the case may be, column 2 of the table in Part 3 of schedule 1, and

• (b) on the basis of which descriptor applies for the individual to be able to carry out the activity—

• (i) safely,

• (ii) to an acceptable standard,

• (iii) repeatedly, and

• (iv) within a reasonable time period.

• (3) In this regulation—

• (a) “safely” means in a manner unlikely to cause harm to the individual or to another person, either during or after completion of the activity, with consideration given to—

• (i) the likelihood of harm, and

• (ii) the severity of the consequences of that harm,

• (b) “to an acceptable standard” means to a reasonable standard for the activity, taking account of the impact on the individual of carrying out the activity to that standard,

• (c) “repeatedly” means as often as the activity is reasonably required to be completed, and

• (d) “reasonable time period” means no more than twice as long as the maximum period that an individual without a physical or mental condition or conditions which limits that individual’s ability to carry out the activity in question would normally take to complete that activity.

Scoring for daily living activities

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• (1) The score an individual obtains in relation to daily living activities is determined by adding together the number of points (if any) awarded for each activity listed in column 1 of the table in Part 2 of schedule 1.

• (2) For the purpose of paragraph (1), the number of points awarded to an individual for each activity listed in column 1 of the table is the number shown in column 3 of the table against whichever of the descriptors set out in column 2 of the table for the activity applies to the individual by virtue of regulation 10.

• (3) For the purposes of regulation 5, an individual has—

• (a) limited ability to carry out daily living activities where the individual obtains a score of at least 8 points and no more than 11 points in relation to daily living activities,

• (b) severely limited ability to carry out daily living activities where the individual obtains a score of at least 12 points in relation to daily living activities.

Scoring for mobility activities

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• (1) The score an individual obtains in relation to mobility activities is determined by adding together the number of points (if any) awarded for each activity listed in column 1 of the table in Part 3 of schedule 1.

• (2) For the purpose of paragraph (1), the number of points awarded to an individual for each activity listed in column 1 of the table is the number shown in column 3 of the table against whichever of the descriptors set out in column 2 of the table for the activity applies to the individual by virtue of regulation 10.

• (3) For the purposes of regulation 6, an individual has—

• (a) limited ability to carry out mobility activities where the individual obtains a score of at least 8 points and no more than 11 points in relation to mobility activities,

• (b) severely limited ability to carry out mobility activities where the individual obtains a score of at least 12 points in relation to mobility activities.

Scoring: further provision

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• (1) The descriptor which applies to an individual in relation to each activity in the tables referred to in regulations 8(2) and 9(2) is—

• (a) where one descriptor is satisfied on over 50% of the days of the required period, that descriptor,

• (b) where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points, and

• (c) where no descriptor is satisfied on over 50% of the days of the required period but two or more descriptors (other than a descriptor which scores 0 points) are satisfied for periods which, when added together, amount to over 50% of the days of the required period—

• (i) the descriptor which is satisfied for the greater or greatest proportion of days of the required period, or

• (ii) where both or all descriptors are satisfied for the same proportion, the descriptor which scores the higher or highest number of points.

• (2) For the purposes of paragraph (1), a descriptor is satisfied on a day in the required period if the descriptor has been satisfied for any part of the day which is not minimal or fleeting.

• (3) In these Regulations, “required period” means—

• (a) where an individual’s entitlement to Adult Disability Payment falls to be determined, the period of 13 weeks ending with the relevant date together with—

• (i) in relation to an application after an interval (see regulations 14 and 23), the period of 39 weeks beginning with the date on which that application is made,

• (ii) in relation to any other application, the period of 39 weeks beginning with the day after the relevant date.

• (b) where Adult Disability Payment has been awarded to an individual—

• (i) during the period of 13 weeks following a determination of entitlement in the circumstances where regulation 14 or 23 applies, the period of 13 weeks ending with the relevant date together with, for each day of the award, the period of 39 weeks beginning with the day after each day of the award,

• (ii) in any other case, for each day of the award, the period of 13 weeks ending with that day of the award together with the period of 39 weeks beginning with the day after that date.

PART 4 — Required Period Condition

Required Period Condition: daily living component

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