Legalize / United Kingdom / Scotland / Scottish-Statutory-Instrument

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

Type Scottish-Statutory-Instrument

Publication 2022-02-09

Last updated 2025-11-06

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(d) in any other case, on the date when the 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 10 — Determination of entitlement to Adult Disability Payment without application

Consideration of entitlement after specified period

47

The Scottish Ministers must make a determination of an individual’s entitlement to Adult 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[^f00067].

Determination following change of circumstances etc.

48

The Scottish Ministers must make a determination of an individual’s entitlement to Adult Disability Payment, without receiving an application, where the individual has an ongoing entitlement to Adult 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 Adult Disability Payment payable to the individual or which is likely to mean that the individual is no longer entitled to Adult Disability Payment,

(b) that the individual has died,

(c) of an alteration of the component or rate of award of Personal Independence Payment which the individual was entitled to immediately before the date of transfer to Adult Disability Payment in accordance with Part 3 of schedule 2 (transitional provisions) as a result of a decision made pursuant to—

(i) a revision under Part 2 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013[^f00068],

(ii) a supersession under Part 3 of those Regulations,

(iii) an appeal under section 12 of the Social Security Act 1998 (“the 1998 Act”)[^f00069],

(iv) a re-consideration under section 13 of the 1998 Act[^f00070], or

(v) an appeal to the Upper Tribunal under section 14 of the 1998 Act[^f00071],

(vi) a revision under article 10 of the Social Security (Northern Ireland) Order 1998[^f00072] (“the 1998 Order”),

(vii) a supersession under article 11 of the 1998 Order[^f00073],

(viii) an appeal under article 13 of the 1998 Order[^f00074], or

(ix) an appeal to the Commissioner under article 15 of the 1998 Order[^f00075],

(d) of an alteration of the component or rate of award of Personal Independence Payment which the individual was entitled to immediately before moving to Scotland in circumstances in which regulation 52 (individuals in respect of whom Personal Independence Payment 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 Part 2 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013,

(ii) a supersession under Part 3 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 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.

(e) 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 Adult Disability Payment in accordance with regulation 4 (determination without application of entitlement to Adult Disability Payment) of the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022, as a result of a decision made pursuant to—

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

(ii) a supersession under regulation 6 of the 1999 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 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 ,

(f) of an alteration of the component or rate of award of Scottish Adult Disability Living Allowance which the individual was entitled to immediately before the date on which the individual’s entitlement to Adult Disability Payment begins in accordance with Part 3A of schedule 2, as a result of—

(i) a re-determination under section 43 (duty to re-determine) of the 2018 Act,

(ii) a determination under section 49 (First-tier Tribunal’s power to determine entitlement) of the 2018 Act, or

(iii) a decision pursuant to an appeal to the Upper Tribunal under section 47 of the Tribunals (Scotland) Act 2014.

Determination following official error – underpayments

49

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

(a) they have previously made a determination of the individual’s entitlement to Adult 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 Adult 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 Adult 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 Adult 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

50

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

(a) they have previously made a determination of the individual’s entitlement to Adult 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 Adult 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 off the individual’s entitlement to Adult 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 Adult Disability Payment, and

(c) any other information available to them that is relevant to their consideration of whether the individual is entitled to Adult 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 having not been made after an assumption on the basis of which an earlier determination was made has proven to be wrong.

Determination to effect a deduction decision

51

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

(2) This paragraph applies where—

(a) regulation 44 (form of payment – giving Adult Disability Payment by way of deduction) allows Adult Disability Payment to be given to the individual by way of deduction, or

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

(b) vary any period for which the individual’s Adult 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

(4) The Scottish Ministers are to make a determination, without receiving an application, where an individual who is receiving Adult 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 Adult Disability Payment being given by way of deduction,

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

(c) wishes the Scottish Ministers to decrease the amount of their Adult 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 11 — Movement of individuals between Scotland and the rest of the United Kingdom

Individuals in respect of whom Personal Independence Payment is paid in another part of the United Kingdom immediately before moving to Scotland

52

(1) Where an individual—

(a) becomes resident in Scotland,

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

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

(2) Entitlement to Adult Disability Payment under paragraph (1) begins on the day after the day on which the individual’s entitlement to Personal Independence Payment 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 Adult Disability Payment is paid at the time of moving to another part of the United Kingdom

53

(1) Where the Scottish Ministers become aware that an individual who is entitled to Adult 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 15(1)(a) of being ordinarily resident in Scotland for a period of 13 weeks beginning in accordance with paragraph (4).

(2) Subject to Part 8 (effect of time spent in care homes, hospital and legal detention), where the Scottish Ministers become aware that an individual has moved or is to move to another part of the United Kingdom 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 Adult 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 on the date 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 Adult Disability Payment ceases, and

(b) regulation 50 (determination following error – overpayments) applies to any Adult Disability Payment paid to an individual in relation to a period after the end of that 13-week period.

PART 12 — Periods in respect of a re-determination request

Periods in respect of a re-determination request

54

(1) The period for requesting a re-determination of entitlement to Adult Disability Payment under section 41 of the 2018 Act (right to request re-determination) 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 Adult 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 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 13 — Provision of vehicles

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

55

(1) Where—

(a) an individual is entitled to the enhanced rate of the mobility component of Adult 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 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

56

(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 (duty to give assistance) of the 2018 Act, 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 55(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 paragraphs (1)(b) and (d) whether the agreement was entered into, or the consent given, by the appointee or by any other person.

PART 14 — Initial period for applications

Initial period for applications

57

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PART 15 — Applications for Adult Disability Payment by individuals entitled to Child Disability Payment

Applications by individuals entitled to Child Disability Payment

58

(1) This regulation applies where an individual who is entitled to Child Disability Payment submits the required data in terms of regulation 35(4) on a day on which the individual is still entitled to Child Disability Payment and makes an application for Adult Disability Payment—

(a) on a day on which the individual is still entitled to Child Disability Payment,

(b) on a day on which the individual is no longer entitled to Child Disability Payment, where that day falls within the period of 8 weeks starting on the day on which the individual submitted the required data, or

(c) on a day on which the individual is no longer entitled to Child Disability Payment, where that day is after the expiry of the 8 week period mentioned in sub-paragraph (b) and the Scottish Ministers are satisfied that there is good reason why the application was not made sooner.

(2) Where, on the basis of that application, the Scottish Ministers make a determination of the individual’s entitlement to Adult Disability Payment (“Adult Disability Payment determination”), and on the date of that determination—

(a) the individual is still entitled to Child Disability Payment, the date on which their entitlement to Adult Disability Payment begins is to be—

(i) the day after the first day on which the individual is to be paid Child Disability Payment after the date of the Adult Disability Payment determination in accordance with regulation 25(b)(i) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, or

(ii) 7 days after the first day on which the individual is to be paid Child Disability Payment after the date of the Adult Disability Payment determination in accordance with regulation 25(b)(ii) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021,

(b) the individual is no longer entitled to Child Disability Payment, the date on which their entitlement to Adult Disability Payment begins is to be the date on which the Scottish Ministers make the Adult Disability Payment determination.

(3) Where an individual receives a determination that they are entitled to a rate of Adult Disability Payment which is higher than the rate of Child Disability Payment they were entitled to immediately before their entitlement to Adult Disability Payment begins, paragraph (4) applies.

(4) The individual is to receive a payment equal to the value of Adult Disability Payment they would have received for the period specified in paragraph (5), reduced by the amount of Child Disability Payment that they were entitled to for the same period.

(5) The period specified for the purposes of paragraph (4) is the period between the date—

(a) their entitlement to Adult Disability Payment would have begun if this regulation did not apply to the individual, in terms of regulation 35(4) to (6), and

(b) their entitlement to Adult Disability Payment begins in terms of paragraph (2).

Determination without an application - terminal illness

59

(1) Where an individual is entitled to Child Disability Payment and has a terminal illness in terms of regulation 15 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021[^f00076], the Scottish Ministers are to make a determination of the individual’s entitlement to Adult Disability Payment, without receiving an application, where—

(a) the individual—

(i) has reached the age of 16, and

(ii) makes a request that the Scottish Ministers make a determination of their entitlement to Adult Disability Payment, or

(b) the individual—

(i) has reached the age of 18, and

(ii) has not informed the Scottish Ministers that they do not want to receive Adult Disability Payment.

(2) Where the Scottish Ministers make a determination under paragraph (1)—

(a) no judgement will be required in terms of regulation 26(7) and (8) (entitlement under special rules for terminal illness), and

(b) regulation 26 applies with the following modifications—

(i) for paragraph (4), read “The individual’s entitlement to the rates referred to in paragraph (1) begins on the date on which the Scottish Ministers make the determination in terms of regulation 58(1).”, and

(ii) paragraph (5) and (6) are omitted.

PART 16 — Transfer from Personal Independence Payment to Adult Disability Payment

Transfer from Personal Independence Payment to Adult Disability Payment

60

Part 3 of schedule 2 makes provision about transferring from Personal Independence Payment to Adult Disability Payment.

PART 17 — Qualifications and experience necessary to carry out assessments

Qualifications and experience necessary to carry out assessments

61

(1) A person is to be regarded as a suitably qualified person, within the meaning of section 13(1) of the 2018 Act, for the purpose of carrying out assessments if they satisfy the requirements specified in paragraph (2) or (4).

(2) A person is a suitably qualified person for the purpose of carrying out assessments under this paragraph if—

(a) the person meets one of the conditions under paragraph (3),

(b) the person has been employed in a capacity described in paragraph (3) in the provision to individuals of health care or social care services,

(c) where the assessment will involve consideration of the individual’s mental condition or conditions, the person’s employment in the provision of health care or social care services under paragraph (2)(b) included the provision of health care or social care services to individuals with mental conditions, and

(d) where the assessment will involve consideration of the individual’s learning disability or disabilities, the person’s employment in the provision of health care or social care services under paragraph (2)(b) included the provision of health care or social care services to individuals with learning disabilities.

(3) The conditions referred to in paragraph (2)(a) are that the person, at the time of carrying out the assessment—

(a) is an allied health professional with valid registration in the register maintained by the Health and Care Professions Council under article 5 of the Health Professions Order 2001[^f00077],

(b) is an adult, learning disability, or mental health nurse with valid registration in the register maintained by the Nursing and Midwifery Council under article 5 of the Nursing and Midwifery Order 2001[^f00078], or

(c) is a social worker with valid registration in the register maintained by the Scottish Social Services Council under section 44 of the Regulation of Care (Scotland) Act 2001[^f00079].

(4) A person is a suitably qualified person for the purpose of carrying out assessments under this paragraph if—

(a) the person has achieved a social care qualification to a minimum of Level 9 of the Scottish Credit and Qualifications Framework[^f00080],

(b) immediately prior to their employment for the purpose of carrying out assessments, the person was registered as a social service worker in the register maintained by the Scottish Social Services Council under section 44 of the Regulation of Care (Scotland) Act 2001,

(c) the person has been employed, in the provision to individuals of health care or social care services, as a social service worker with valid registration in the register maintained by the Scottish Social Services Council under section 44 of the Regulation of Care (Scotland) Act 2001,

(d) where the assessment will involve consideration of the individual’s mental condition or conditions, the person’s employment in the provision of health care or social care services under paragraph (4)(c) included the provision of health care or social care services to individuals with mental conditions, and

(e) where the assessment will involve consideration of the individual’s learning disability or disabilities, the person’s employment in the provision of health care or social care services under paragraph (4)(c) included the provision of health care or social care services to individuals with learning disabilities.

(5) In this regulation, “health and social care services” means services which require to be provided by an individual meeting the conditions under paragraph (3) or (4)(c).

PART 18 — Short-term assistance

Entitlement to short-term assistance

62

Part 1 of schedule 2 makes provision about short-term assistance.

PART 19 — Consequential amendment

Consequential amendment

63

The amendment specified in Part 4 of schedule 2 has effect.

PART 20 — Transitory provision

Transitory provision – initial period for applications

64

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Exclusion to transitory provision

65

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SCHEDULE 1 — ADULT DISABILITY PAYMENT DETERMINATION

PART 1 — Interpretation

1

In this schedule—

“aided” means with—the use of an aid or appliance, orsupervision, prompting or assistance,

“assistance” means physical intervention by another person and does not include speech,

“assistance dog” means a dog trained to guide or assist a person with a sensory impairment,

“basic verbal information” means information in the individual’s native language conveyed verbally in a simple sentence and excludes information that is not communicated orally or received aurally,

“basic written information” means signs, symbols and dates written or printed in standard size text in the individual’s native language,

“bathe” includes get into or out of an unadapted bath or shower,

“communication support” means support from a person trained or experienced in communicating with people in general, or the individual in particular, with specific communication needs, including interpreting verbal information into a non-verbal form and vice versa,

“complex budgeting decisions” means decisions involving—calculating household and personal budgets,managing and paying bills, andplanning future purchases,

“complex verbal information” means information in the individual’s native language conveyed verbally in either more than one sentence or one complicated sentence and excludes information that is not communicated orally or received aurally,

“complex written information” means more than one sentence of written or printed standard size text in the individual’s native language,

“cook” means heat food at or above waist height,

“dress” includes put on socks and shoes,

“engage socially” means—interact with others in a contextually and socially appropriate manner,understand body language, andestablish relationships,

“follow the route of a journey” means for an individual to navigate and make their way along a planned route to a planned destination,

“manage incontinence” means manage involuntary evacuation of the bowel or bladder, including using a collecting device or self-catheterisation, and clean oneself afterwards,

“manage medication” means take medication which improves the individual’s symptoms or health, or, take medication where failure to do so is likely to result in a deterioration in the individual’s health,

“manage therapy” means undertake therapy which improves the individual’s symptoms or health, or, undertake therapy where a failure to do so is likely to result in a deterioration in the individual’s health,

“medication” means medication to be taken at home which is prescribed or recommended by a—registered—medical practitioner,nurse,pharmacist, orhealth professional who is registered by the Health and Care Professions Council,

“monitor a health condition” means—detect significant changes in the individual’s health condition which are likely to lead to a deterioration in the individual’s health, andtake action advised by a—registered medical practitioner,registered nurse, orhealth professional who is registered by the Health and Care Professions Council,without which the individual’s health is likely to deteriorate,

“orientation aid” means a specialist aid designed to assist disabled people to follow a route safely,

“prepare”, in the context of food, means make food ready for cooking or eating,

“prompting” means reminding, encouraging or explaining by another person,

“psychological distress” means distress related to an enduring mental condition or an intellectual or cognitive impairment,

“read” includes read signs, symbols and words but does not include read Braille,

“simple budgeting decisions” means decisions involving—calculating the cost of goods, andcalculating change required after a purchase,

“simple meal” means a cooked one-course meal for one using fresh ingredients,

“social support” means support from a person trained or experienced in assisting people in general, or the individual in particular, to engage in social situations,

“stand” means stand upright with at least one biological foot on the ground,

“supervision” means the continuous presence of another person for the purpose of ensuring an individual’s safety,

“take nutrition” means—cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink, oringest nutrition by using a therapeutic source,

“therapeutic source” means parenteral or enteral tube feeding, using a rate-limiting device such as a delivery system or feed pump,

“therapy” means therapy to be undertaken at home which is prescribed or recommended by a—registered—medical practitioner,nurse, orpharmacist, orhealth professional regulated by Health and Care Professions Council,but does not include taking or applying, or otherwise receiving or administering, medication (whether orally, topically or by any other means), or any action which, in the individual’s case, falls within the definition of “monitor a health condition”,

“toilet needs” means—getting on and off an unadapted toilet,evacuating the bladder and bowel, andcleaning oneself afterwards,

“unaided” means without—the use or aid of an appliance, orsupervision, prompting or assistance,

“undress” includes take off socks and shoes.

PART 2 — Daily Living Activities

*Column 1Activity***	*Column 2Descriptors***	*Column 3Points***
1. Preparing food.	a. Can prepare and cook a simple meal unaided.	0
1. Preparing food.	b. Needs to use an aid or appliance to be able to either prepare or cook a simple meal.	2
1. Preparing food.	c. Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave.	2
1. Preparing food.	d. Needs prompting to be able to either prepare or cook a simple meal.	2
1. Preparing food.	e. Needs supervision or assistance to either prepare or cook a simple meal.	4
1. Preparing food.	f. Cannot prepare and cook food.	8
2. Taking nutrition.	a. Can take nutrition unaided.	0
2. Taking nutrition.	b. Needs—(i) to use an aid or appliance to be able to take nutrition, or(ii) supervision to be able to take nutrition, or(iii) assistance to be able to cut up food.	2
2. Taking nutrition.	c. Needs a therapeutic source to be able to take nutrition.	2
2. Taking nutrition.	d. Needs prompting to be able to take nutrition.	4
2. Taking nutrition.	e. Needs assistance to be able to manage a therapeutic source to take nutrition.	6
2. Taking nutrition.	f. Cannot convey food and drink to their mouth and needs another person to do so.	10
3. Managing therapy or monitoring a health condition.	a. Either—(i) does not receive medication or therapy or need to monitor a health condition, or(ii) can manage medication or therapy or monitor a health condition unaided.	0
3. Managing therapy or monitoring a health condition.	b. Needs any one or more of the following—(i) to use an aid or appliance to be able to manage medication,(ii) supervision, prompting or assistance to be able to manage medication,(iii) supervision, prompting or assistance to be able to monitor a health condition.	1
3. Managing therapy or monitoring a health condition.	c. Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week.	2
3. Managing therapy or monitoring a health condition.	d. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.	4
3. Managing therapy or monitoring a health condition.	e. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 7 but no more than 14 hours a week.	6
3. Managing therapy or monitoring a health condition.	f. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 14 hours a week.	8
4. Washing and bathing.	a. Can wash and bathe unaided.	0
4. Washing and bathing.	b. Needs to use an aid or appliance to be able to wash or bathe.	2
4. Washing and bathing.	c. Needs supervision or prompting to be able to wash or bathe.	2
4. Washing and bathing.	d. Needs assistance to be able to wash either their hair or body below the waist.	2
4. Washing and bathing.	e. Needs assistance to be able to get in or out of an unadapted bath or shower.	3
4. Washing and bathing.	f. Needs assistance to be able to wash their body between the shoulders and waist.	4
4. Washing and bathing.	g. Cannot wash and bathe at all and needs another person to wash their entire body.	8
5. Managing toilet needs or incontinence.	a. Can manage toilet needs or incontinence unaided.	0
5. Managing toilet needs or incontinence.	b. Needs to use an aid or appliance to be able to manage toilet needs or incontinence.	2
5. Managing toilet needs or incontinence.	c. Needs supervision or prompting to be able to manage toilet needs.	2
5. Managing toilet needs or incontinence.	d. Needs assistance to be able to manage toilet needs.	4
5. Managing toilet needs or incontinence.	e. Needs assistance to be able to manage incontinence of either bladder or bowel.	6
5. Managing toilet needs or incontinence.	f. Needs assistance to be able to manage incontinence of both bladder and bowel.	8
6. Dressing and undressing.	a. Can dress and undress unaided.	0
6. Dressing and undressing.	b. Needs to use an aid or appliance to be able to dress or undress.	2
6. Dressing and undressing.	c. Needs either—(i) prompting to be able to dress, undress or determine appropriate circumstances for remaining clothed, or(ii) prompting or assistance to be able to select appropriate clothing.	2
6. Dressing and undressing.	d. Needs assistance to be able to dress or undress their lower body.	2
6. Dressing and undressing.	e. Needs assistance to be able to dress or undress their upper body.	4
6. Dressing and undressing.	f. Cannot dress or undress at all.	8
7. Communicating verbally.	a. Can express and understand basic and complex verbal information unaided.	0
7. Communicating verbally.	b. Needs to use an aid or appliance to be able to speak or hear.	2
7. Communicating verbally.	c. Needs communication support to be able to express or understand complex verbal information.	4
7. Communicating verbally.	d. Needs communication support to be able to express or understand basic verbal information.	8
7. Communicating verbally.	e. Cannot express or understand verbal information at all even with communication support.	12
8. Reading and understanding signs, symbols and words.	a. Can read and understand basic and complex written information either unaided or using spectacles or contact lenses.	0
8. Reading and understanding signs, symbols and words.	b. Needs to use an aid or appliance, other than spectacles or contact lenses, to be able to read or understand either basic or complex written information.	2
8. Reading and understanding signs, symbols and words.	c. Needs prompting to be able to read or understand complex written information.	2
8. Reading and understanding signs, symbols and words.	d. Needs prompting to be able to read or understand basic written information.	4
8. Reading and understanding signs, symbols and words.	e. Cannot read or understand signs, symbols or words at all.	8
9. Engaging socially with other people face to face.	a. Can engage socially with other people unaided.	0
9. Engaging socially with other people face to face.	b. Needs prompting to be able to engage socially with other people.	2
9. Engaging socially with other people face to face.	c. Needs social support to be able to engage socially with other people.	4
9. Engaging socially with other people face to face.	d. Cannot engage socially with other people due to such engagement causing either—(i) overwhelming psychological distress to the individual, or(ii) the individual to exhibit behaviour which would result in substantial risk of harm to the individual or another person.	8
10. Making budgeting decisions.	a. Can manage complex budgeting decisions unaided.	0
10. Making budgeting decisions.	b. Needs prompting or assistance to be able to make complex budgeting decisions.	2
10. Making budgeting decisions.	c. Needs prompting or assistance to be able to make simple budgeting decisions.	4
10. Making budgeting decisions.	d. Cannot make any budgeting decisions at all.	6

PART 3 — Mobility Activities

Column 1Activity	Column 2Descriptors	Column 3Points
1. Planning and following journeys.	a. Can plan and follow the route of a journey unaided.	0
1. Planning and following journeys.	b. Needs the prompting of another person to be able to undertake any journey to avoid overwhelming psychological distress to the individual.	4
1. Planning and following journeys.	c. Cannot plan the route of a journey.	8
1. Planning and following journeys.	d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.	10
1. Planning and following journeys.	e. Cannot undertake any journey because it would cause overwhelming psychological distress to the individual.	10
1. Planning and following journeys.	f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.	12
2. Moving around.	a. Can stand and then move more than 200 metres, either aided or unaided.	0
2. Moving around.	b. Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided.	4
2. Moving around.	c. Can stand and then move unaided more than 20 metres but no more than 50 metres either aided or unaided.	8
2. Moving around.	d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres, either aided or unaided.	10
2. Moving around.	e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided.	12
2. Moving around.	f. Cannot, either aided or unaided,—(i) stand, or(ii) move more than 1 metre.	12

SCHEDULE 2

PART 1 — Short-term assistance

Entitlement to short-term assistance

1

(1) Subject to sub-paragraph (5) and (6), an individual who is, or was, entitled to 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 Adult Disability Payment (“the earlier determination”) has been superseded by—

(i) a determination under section 37 of the 2018 Act, or

(ii) if the earlier determination is a determination—

(aa) of an application for Adult Disability Payment,

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

(cc) without application of an individual’s entitlement to Adult Disability Payment under regulation 52 (individuals in respect of whom Personal Independence Payment is paid in another part of the United Kingdom immediately before moving to Scotland),

(dd) without application of an individual’s entitlement to Adult Disability payment under regulation 4 (transfer determination without application of entitlement to Adult Disability Payment) of the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022,

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 Adult 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 Adult Disability Payment, or

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

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

(ii) sub-paragraph (2), and

(d) the individual—

(i) continues to meet the conditions as to residence and presence set out in Part 5, 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 53 (individuals in respect of whom Adult Disability Payment is paid at the time of moving to another part of the United Kingdom).

(2) An individual’s entitlement to Adult 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 Adult 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[^f00084] (“the 2014 Act”), and

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

(3) Where—

(a) an individual’s entitlement to Adult Disability Payment is set aside after a review in terms of sub-paragraph (2)(a), and

(b) the individual had previously been awarded short-term assistance on the basis that their entitlement to Adult 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.

(4) Where—

(a) 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 individual’s entitlement to Adult Disability Payment mentioned in sub-paragraph (1)(a)(i), and

(b) 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 determination mentioned in sub-paragraph (1)(a)(i) was not under review,

the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.

(5) An individual is not entitled to short-term assistance where the individual is no longer entitled to Adult Disability Payment as a result of a subsequent determination made under regulation 48(b) (determination following change of circumstances etc.).

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

(6) An individual to whom regulation 27(2) (effect of admission to a care home on ongoing entitlement to daily living component), regulation 28(2) (effect of admission to hospital on ongoing entitlement to Adult Disability Payment), regulation 30(3) (effect of legal detention on ongoing entitlement to daily living component), or regulation 32(2) (entitlement beginning while in alternative accommodation) applies is not entitled to short-term assistance in respect of the component or components for which the value is to be £0 under those regulations.

(7) 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 Adult Disability Payment for the period to which the determination mentioned in sub-paragraph (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 Adult 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, 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 Adult Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(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 Adult 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, 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 Adult 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 2014 Act (review of decisions) and the First-tier Tribunal for Scotland are to make a decision about the individual’s entitlement to Adult Disability Payment for the period to which the determination under section 49 of the 2018 Act, on the day that the decision is set aside.

(8) Regulation 54 (periods in respect of a re-determination request) applies to short-term assistance in the same way as it applies to Adult Disability Payment.

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 Adult 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 Adult 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 Adult 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 Adult 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 55(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 55 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 44 (form of payment - giving Adult Disability Payment by way of deduction), 49 (determination following official error – underpayments), 50 (determination following error – overpayments) and 51 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Adult Disability Payment.

End of entitlement

3

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

(2) 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 Adult 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 Adult 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 the ... determination of the individual’s entitlement to Adult 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 the ... determination of the individual’s entitlement to Adult 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, on that day.

Reduction of payment of Adult 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 Adult Disability Payment for the same period, any payment of Adult Disability Payment to be made as a result of the subsequent determination for that period—

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

(b) in any other case, is to be reduced by any short-term assistance and any Adult 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 from Personal Independence Payment to Adult Disability Payment

Interpretation

7

In this Part of the schedule—

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

“relevant individual” means an individual—who has an award of Personal Independence Payment who appears to the Scottish Ministers to be likely to be eligible for Adult Disability Payment, andwho is—ordinarily resident in Scotland, orsomeone to whom regulation 15(3) (residence and presence conditions) or 20(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 15(3) or 20(2) would be incompatible with the applicable agreement mentioned in that regulation, if the relevant individual were not entitled to Adult Disability Payment,

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

“transferring individual” means an 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 Adult 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 Personal Independence Payment to an entitlement to Adult 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 Adult Disability Payment,

(ii) the Scottish Ministers will make a determination, without receiving an application, to transfer the individual’s entitlement to Personal Independence Payment to an entitlement to Adult Disability Payment within a period to be specified within the notice (the individual will be notified when the determination is made and informed about their award and start date of Adult Disability Payment), and

(iii) the individual’s award of Personal Independence Payment will cease immediately before the award of Adult 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 Adult Disability Payment

9

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

(2) Entitlement to Adult 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[^f00085].

(3) Subject to sub-paragraph (4), 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 Personal Independence Payment, and

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

(4) The determination under sub-paragraph (1) does not need to be made on the basis of the information mentioned in sub-paragraph (3)(b) where—

(a) the individual—

(i) before receiving a notice under paragraph 8(1), reported a change of circumstances to the Secretary of State for Work and Pensions, which has not been taken into account for the individual’s entitlement to Personal Independence Payment, or

(ii) has, since receiving a notice under paragraph 8(1), notified a change of circumstances to the Scottish Ministers, and

(b) following the determination under sub-paragraph (1) a further determination is to be made under paragraph 12.

(5) 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 Adult Disability Payment that are equivalent to those components and rates of Personal Independence Payment to which the individual was entitled immediately before the date of transfer.

(6) 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 15 to 21 (residence and presence conditions etc.) are satisfied in the individual’s case, and

(c) must be made not later than the end of the period specified within 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 Personal Independence Payment

10

(1) Where a determination is made under paragraph 9(1) that the transferring individual is entitled to Adult Disability Payment, the transferring individual’s entitlement to Personal Independence Payment will cease on—

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

(b) where a transferring individual was paid Personal Independence Payment one week in advance and 3 weekly in arrears, the date one week after the date their entitlement to Adult Disability Payment begins, or

(c) where paragraph 11 applies, the date their entitlement to Adult Disability Payment would have begun had paragraph 11(2) not applied to set an earlier date of entitlement.

(2) Where paragraph (1)(b) applies—

(a) section 77(4) (personal independence payment) of the Welfare Reform Act 2012, and

(b) regulation 4(e) of these Regulations (entitlement to other benefits),

do not apply in respect of the first week of entitlement to Adult Disability Payment.

Exceptions to paragraph 9(5)

11

(1) Where the Scottish Ministers have—

(a) 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[^f00086] immediately before the date of transfer, or

(b) 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 a transferring individual has a terminal illness in terms of regulation 26(7),

except where sub-paragraph (1A) applies, the determination made under paragraph 9(1) must be made on the basis that the transferring individual satisfies the conditions for the enhanced rate of both the daily living component and the mobility component of Adult Disability Payment.

(1A) Where the transferring individual reached the relevant age as defined in regulation 22(2) when they became terminally ill under section 82 of the Welfare Reform Act 2012 or in terms of regulation 26(7), the restrictions in sub-paragraph (1B) apply in relation to the determination under paragraph 9(1).

(1B) The restrictions referred to in sub-paragraph (1A) are—

(a) where the transferring individual was entitled to the mobility component of Personal Independence Payment at the standard rate immediately before the date of transfer, then regardless of whether the award would otherwise have been for the enhanced rate, the Scottish Ministers—

(i) may only make an award for the standard rate of that component, and

(ii) may only make such an award where the entitlement results from substantially the same condition or conditions in respect of which the mobility component of Personal Independence payment was given,

(b) where the transferring individual was entitled to the mobility component of Personal Independence Payment at the enhanced rate immediately before the date of transfer, the Scottish Ministers may only award that rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Personal Independence Payment was given,

(c) where the transferring individual was not entitled to the mobility component of Personal Independence Payment immediately before the date of transfer, the Scottish Ministers may not award that component at either the standard or enhanced rate.

(2) Where sub-paragraph (1) or (1A) applies—

(a) paragraphs (4) to (6) of regulation 26 do not apply, and

(b) the transferring individual’s entitlement to Adult Disability Payment will commence on whichever is the later of—

(i) the date that these Regulations come into force,

(ii) the day that the clinical judgement was made in accordance with regulation 26(7), or

(iii) the day one year before the determination was made in accordance with paragraph 9(1).

Change of Circumstances

12

(1) The Scottish Ministers must make a determination of an individual’s entitlement to Adult Disability Payment (the “review determination”), without receiving an application, where—

(a) the individual, before a determination under paragraph 9(1) (the “transfer determination”) is made, reported a change of circumstances to the Secretary of State for Work and Pensions, which had not been taken into account for the individual’s entitlement to Personal Independence Payment,

(b) the Scottish Ministers have made a transfer determination, and

(c) the individual has not requested a re-determination under section 41 of the 2018 Act, or appealed under section 46 of the 2018 Act, in relation to the transfer determination.

(2) The review determination is to be made as soon as reasonably practicable after the transfer determination.

(3) The change of circumstance notified under sub-paragraph (1)—

(a) is not to be regarded as relating to the individual’s entitlement to Personal Independence Payment, and

(b) is to be taken into consideration by the Scottish Ministers in making the review determination.

(4) Where a transferring individual’s entitlement to Adult Disability Payment is determined in the review determination to be at a higher rate than the transfer determination, entitlement will begin—

(a) if the individual notifies the change—

(i) within one month of the change occurring, the date when the individual first satisfies the requirements for a higher rate of the daily living or mobility component,

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

(iii) in any other case, from the date of notification of the change, or

(b) if the date under sub-paragraph 4(a) is before these Regulations come into force, the date that these Regulations come into force.

(5) Where a transferring individual’s entitlement to Adult Disability Payment is determined in the review determination to be at a lower rate than or at the same rate as awarded by the transfer determination, entitlement under the review determination will take effect on the day that the Scottish Ministers make the review determination.

(6) Where an individual has previously received Personal Independence Payment or Adult Disability Payment for a period and a review determination is subsequently made that the same individual is entitled to Adult 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 Adult Disability Payment under the review determination and the value of Personal Independence Payment or Adult Disability Payment to which that individual was previously entitled for that period.

(7) Where the change of circumstance notified under sub-paragraph (1) occurred after the person had reached the relevant age as defined in regulation 22(2), the restrictions in sub-paragraph (8) will apply in relation to the determination under sub-paragraph (1).

(8) The restrictions referred to in sub-paragraph (7) are—

(a) where the transfer determination awarded the mobility component at the standard rate then, regardless of whether the award would have otherwise been for the enhanced rate, the Scottish Ministers—

(i) may only make an award for the standard rate of that component, and

(ii) may only make such an award where entitlement results from substantially the same condition or conditions in respect of which the mobility component in the transfer determination was given,

(b) where the transfer determination awarded the mobility component at the enhanced rate, the Scottish Ministers may only award that rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component in the transfer determination was given,

(c) where the transfer determination did not include an award of the mobility component, the Scottish Ministers may not award that component at either the standard or enhanced rate.

Effect of legal detention on payment of the mobility component: 16 and 17 year olds

13

(1) Sub-paragraph (2) and (3) apply where a transferring individual—

(a) is aged 16 or 17 on the date of transfer,

(b) was in legal detention immediately before the date of transfer, and

(2) Entitlement to the mobility component of Adult Disability Payment of a transferring individual mentioned in sub-paragraph (1) is to begin before the date of the determination under paragraph 9(1) but not before 13 June 2022.

(3) Where the transferring individual has received payment of the mobility component of Personal Independence Payment for any period after the date on which their entitlement to the mobility component of Adult Disability Payment commences under sub-paragraph (2), any payment of Adult Disability Payment to be made for that period is to be reduced by the amount already paid to the transferring individual for the mobility component of Personal Independence Payment for that period.

Modification of these Regulations: transferring individuals

14

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

(a) regulation 32 (entitlement 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 schedule 2”, and

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

(b) regulation 35 (when an application is to be treated as made and beginning of entitlement to assistance) is treated as omitted,

(ba) in regulation 36, for sub-paragraph (b), substitute—

(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 of determination.

(i) for paragraph (4) substitute—

(4) Where an individual has previously received Adult Disability Payment or Personal Independence Payment for a period and a determination without application has subsequently been made that the individual is entitled to Adult Disability Payment at a higher rate for that period, the individual will be entitled to the difference between the value of entitlement to Adult Disability Payment under the subsequent determination and the value of Adult Disability Payment or Personal Independence Payment to which that individual was previously entitled for that period.

(ii) where regulation 45(4) as substituted by sub-paragraph (1) applies, for the period between the date when the individual’s entitlement to a higher rate of Adult Disability Payment begins and the date of the determination under regulation 46, regulation 4 (entitlement to other benefits) is treated as omitted, and

(d) where paragraph 11, 12(6) or 13(3) applies, for the period between the date when entitlement to Adult Disability Payment begins and the date of the determination under paragraph 9(1), regulation 4 (entitlement to other benefits) is treated as omitted.

Appointees

15

(1) A person appointed by the Secretary of State for Work and Pensions under regulation 57 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013[^f00087] to receive Personal Independence Payment 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 85B of the 2018 Act[^f00088].

(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 section 85B(3) of the 2018 Act),

(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 85B 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 85B of the 2018 Act.

PART 4 — Consequential amendments

16

(1) The Social Security Contributions and Benefits Act 1992[^f00089] is amended in accordance with paragraph (2).

(2) In section 70(2)[^f00090] (invalid care allowance), for “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” substitute “adult disability payment by virtue of entitlement to the daily living component at the standard or enhanced rate or child disability payment by virtue of entitlement to the care component at the middle or highest rate”.

Signed

BEN MACPHERSON — Authorised to sign by the Scottish Ministers — 2022-02-09

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations make provision for Adult 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 working age people (“Adult Disability Payment”).

Part 3 sets out the eligibility criteria for the daily living component and the mobility component of Adult Disability Payment.

Part 4 sets out the required period condition for entitlement to the daily living component and mobility component.

Part 5 sets out the residence and presence conditions for entitlement to the assistance.

Part 6 sets out the entitlement rules relating to age.

Part 7 sets out the rules for entitlement to the assistance on account of having a terminal illness.

Part 8 sets out the effects on payment of the assistance when an individual is resident in a care home, hospital or legal detention.

Part 9 deals with the making of applications, payments, the amount and form of Adult Disability Payment and ongoing eligibility. It also provides for circumstances in which assistance may be suspended, when increases or decreases of entitlement take effect, and giving assistance by way of deduction.

Part 10 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 resulting in overpayments, official errors resulting in underpayments, or to effect a deduction decision.

Part 11 provides for the situation where people in Scotland in receipt of Adult Disability Payment move to another part of the United Kingdom, or people in another part of the United Kingdom in receipt of the equivalent assistance, Personal Independence Payment, move to Scotland.

Part 12 provides for time periods for dealing with requests for re-determination of entitlement.

Part 13 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 14 and Part 2 of schedule 2 make provision for an initial period for applications to take place before the full rollout of the assistance.

Part 15 deals with applications for Adult Disability Payment made by individuals who are in receipt of Child Disability Payment . It also provides for a determination of entitlement to Adult Disability Payment without an application where an individual is in receipt of Child Disability Payment and is terminally ill.

Part 16 and Part 3 of schedule 2 make provision to transfer individuals who meet the residence and presence conditions and are awarded Personal Independence Payment to become entitled to Adult Disability Payment.

Part 17 sets out the qualifications and experience necessary to carry out assessments, where these are required to determine an individual’s entitlement to receive the assistance.

Part 18 and Part 1 of schedule 2 deal 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 19 and Part 4 of schedule 2 make provision for a consequential amendment to the Social Security Contributions and Benefits Act 1992.

Part 20 makes further provision for the initial period for applications by way of transitory provisions.

Schedule 1 sets out the activities, descriptors and points to be applied when determining an individual’s entitlement to the daily living component and mobility component of the assistance.

Footnotes

[^f00001]: 2018 asp 9 (“the 2018 Act”). Schedules 5, 10 and 11 of the 2018 Act, respectively make provision about the exercise of powers under sections 31, 36 and 51. Section 51 of the 2018 Act was amended by section 12(2) of the Social Security and Tribunal Membership (Scotland) Act 2020 (“the 2020 Act”). Schedule 5 of the 2018 Act was amended by sections 11(2)(a) and 13(3) of the 2020 Act. Schedule 11 of the 2018 Act was inserted by section 12(4) of the 2020 Act. The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). The Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act.

[^f00002]: S.I. 2011/517, amended by S.I. 2013/436, S.I. 2017/247 and S.I. 2021/285.

[^f00004]: 2010 asp 8.

[^f00005]: S.S.I. 2021/174, amended by S.S.I. 2021/122, S.S.I. 2021/320 and S.S.I. 2021/416.

[^f00006]: 1992 c. 4. Section 71 was amended by section 67(1) of the Welfare Reform and Pensions Act 1999 (c. 30) and S.I. 2021/804.

[^f00007]: 1992 c. 7. Section 71 was amended by S.I. 1999/3147.

[^f00009]: 1971 c. 77.

[^f00010]: 1995 c. 46. Section 295 was amended by section 24(2) of the Criminal Justice (Scotland) Act 2003 (asp 7).

[^f00011]: 2012 c. 5.

[^f00012]: S.I. 2015/2006.

[^f00013]: OJ L 28, 30.1.1997, p.1.

[^f00014]: OJ L 166, 30.4.2004, p.1.

[^f00017]: 1996 c. 56. Section 485 was amended by S.I. 2010/1158.

[^f00018]: 2002 c. 32. Section 14 was amended by section 59(2), (3) and (4) of the Children Act 2004 (c. 31), paragraph 23(2) and (3) of schedule 14 of Education Act 2005 (c. 18), section 15(2) of the Education Act 2011 (c. 21), S.I. 2010/1158 and S.I. 2019/1027.

[^f00019]: 1989 c. 39. Section 49 was amended by paragraph 8(9) of schedule 10 of the Self-Governing Schools etc. (Scotland) Act 1989 (c. 39) and section 5(1) of the Schools (Health Promotion and Nutrition) (Scotland) Act 2007 (asp 15). Section 73 was amended by section 3(2) of the Education (Graduate Endowment and Student Support) (Scotland) Act 2001 (asp 6).

[^f00020]: 1992 c. 13. Section 65 was amended by section 27 of the Teaching and Higher Education Act 1998 (c. 30), section 34(1) of the Special Educational Needs and Disability Act 2001 (c. 10), paragraph 15 of schedule 11 of the Higher Education and Research Act 2017 (c. 29) and S.I. 2010/1158.

[^f00021]: 2017 c. 29.

[^f00022]: 2005 asp 6. Sections 4 and 11 were amended by paragraph 8 of schedule 1 of the Post-16 Education (Scotland) Act 2013 (asp 12).

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