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

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

Consideration of entitlement after specified period

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

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

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

of the 2018 Act.

Determination following change of circumstances etc.

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

(a) of a change of circumstances, whether or not notified by the individual in accordance with section 56 of the 2018 Act, which would possibly result in an alteration to the component or rate of Child Disability Payment payable to the individual or which is likely to mean that the individual is no longer entitled to Child Disability Payment,

(b) that the individual has died,

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

(i) a revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”)(1),

(ii) a supersession under regulation 6(2) of the 1999 Regulations,

(iii) an appeal under section 12 of the Social Security Act 1998 (“the 1998 Act”)(3),

(iv) a re-consideration under section 13 of the 1998 Act(4), or

(v) an appeal to the Upper Tribunal under section 14 of the 1998 Act(5),

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

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

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

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

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

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

(vi) a revision under article 10 of the Social Security (Northern Ireland) Order 1998(6) (“the 1998 Order”),

(vii) a supersession under article 11 of the 1998 Order(7),

(viii) an appeal under article 13 of the 1998 Order(8), or

(ix) an appeal to the Commissioner under article 15 of the 1998 Order(9).

Determination following official error - underpayments

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

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

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

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

(ii) being given a lower award than that,

to which the individual was entitled,

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

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

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

(a) the information—

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

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

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

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

Determination following error - overpayments

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

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

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

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

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

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

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

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

(a) the information—

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

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

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

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

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

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

(i) wrongly, or

(ii) correctly but on the basis of—

(aa) incorrect information, or

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

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

Determination to effect a deduction decision

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

(2) This paragraph applies where—

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

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

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

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

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

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

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

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

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

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

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

(1)

S.I. 1999/991, regulation 3 was amended by S.I. 1999/1623, S.I. 1999/1662, S.I. 1999/2570, S.I. 1999/2677, S.I. 2000/897, S.I. 2002/428, S.I. 2002/1379, S.I. 2002/1703, S.I. 2003/916, S.I. 2003/1050, S.I. 2003/1886, S.I. 2005/337, S.I. 2005/2677, S.I. 2006/832, S.I. 2007/2470, S.I. 2007/2582, S.I. 2008/1554, S.I. 2008/2667, S.I. 2008/2683, S.I. 2009/659, S.I. 2009/1490, S.I. 2010/840, S.I. 2010/1160, S.I. 2011/2425, S.I. 2012/824, S.I. 2012/913, S.I. 2012/919, S.I. 2012/2568, S.I. 2012/2575, S.I. 2013/2380, 2014/1097, S.I. 2015/339, S.I. 2015/1985, S.I. 2016/1145, S.I. 2017/422 and S.I. 2017/1015.

(2)

Regulation 6 was amended by S.I. 1999/1623, S.I. 1999/2677, S.I. 2000/897, S.I. 2000/1596, S.I. 2001/1711, S.I. 2002/428, S.I. 2002/490, S.I. 2002/3019, S.I. 2003/1050, S.I. 2003/1886, S.I. 2003/2274, S.I. 2004/959, S.I. 2005/337, S.I. 2005/2677, S.I. 2008/1554, S.I. 2008/2667, S.I. 2008/2683, S.I. 2010/424, S.I. 2010/563, S.I. 2010/840, S.I. 2010/1160, S.I. 2012/1267, S.I. 2012/2568, S.I. 2014/1097, S.I. 2015/1985 and S.I. 2016/1145.

(3)

1998 c.14, amended by paragraph 25 of schedule 7 and paragraph 1 of schedule 10 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), S.I. 2008/2833, sections 102 and 105 of the Welfare Reform Act 2012 (c.5) and S.I. 2014/886.

(4)

Section 13 was amended by paragraph 26 of schedule 7 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and S.I. 2008/2833.

(5)

Section 14 was amended by paragraph 1 of schedule 10 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and S.I. 2008/2833.

(6)

S.I. 1998/1506. Article 10 was amended by S.I. 2015/2006.

(7)

Article 11 was amended by S.I. 1999/671 and S.I. 2015/2006.

(8)

Article 13 was amended by S.I. 1999/671, S.I. 2014/886, and 2015/2006.

(9)

Article 15 was amended by paragraph 22(1) of schedule 7 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c.4) and S.I. 1999/671.