Social Security (Scotland) Act 2018

SCHEDULE 5 DISABILITY ASSISTANCE REGULATIONS

(introduced by section 31)

PART 1 ELIGIBILITY

CHAPTER 1 ELIGIBILITY IS TO DEPEND ON HAVING, OR HAVING HAD, A DISABILITY

1 (1) The regulations must be framed so that (subject to any provision of the kind described in paragraph 2) an individual’s eligibility in respect of a given period depends on the individual having, during that period—

(a) a physical or mental impairment that―

(i) has a significant and not short-term adverse effect on the individual’s ability to carry out normal day-to-day activities, or

(ii) otherwise gives rise to a significant and not short-term need, or

(b) a terminal illness.

(2) The regulations must provide that an individual is to be regarded as having a terminal illness for the purpose of determining entitlement to disability assistance if, having had regard to the guidance mentioned in sub-paragraph (3), it is the clinical judgement of a registered medical practitioner that the individual has a progressive disease that can reasonably be expected to cause the individual’s death.

(3) The Chief Medical Officer of the Scottish Administration is—

(a) following consultation with registered medical practitioners, to prepare and from time to time revise, and

(b) to make publicly available by such means as the Chief Medical Officer considers appropriate,

guidance that sets out when a progressive disease can reasonably be expected to cause an individual’s death for the purpose of determining entitlement to disability assistance.

2 (1) The regulations may be framed so that, despite the criterion described in paragraph 1(1) not being fulfilled in respect of a given period, an individual may nevertheless be eligible in respect of that period.

(2) Where the regulations allow an individual to be eligible in respect of a period in relation to which the criterion described in paragraph 1(1) is not fulfilled, they must be framed so that the individual’s eligibility depends on the individual having had, during some other period, a physical or mental impairment of the kind described in paragraph 1(1)(a).

CHAPTER 2 FURTHER CRITERIA

Nature and extent of disability and needs

3 The regulations may make an individual’s eligibility depend on the nature and extent of—

(a) the individual’s impairment,

(b) the needs of the individual in consequence of the impairment.

Residence and presence

4 The regulations may make an individual’s eligibility depend on the individual being resident and present in a particular place.

Age

5 The regulations may make an individual’s eligibility depend on the individual’s age.

Financial circumstances

6 Subject to paragraph 7, the regulations may not make an individual’s eligibility depend on the financial circumstances of either or both—

(a) the individual, and

(b) anyone who lives with the individual.

Receipt of, or eligibility for, other types of State assistance

7 The regulations may make an individual’s eligibility depend on the individual—

(a) being, or not being, in receipt of another type of assistance (whether under this Act or another enactment),

(b) being, or not being, eligible or entitled to receive such assistance.

Application within specified period

8 The regulations may provide that an individual ceases to be eligible in respect of a given period unless, by a deadline specified in the regulations—

(a) the individual has applied for disability assistance in respect of the period, or

(b) the Scottish Ministers have become required to make a determination of the individual’s entitlement to disability assistance in respect of the period by regulations under section 52.

CHAPTER 3 SPECIAL RULES FOR TERMINAL ILLNESS CASES

No minimum period

9 The regulations may not make the eligibility of an individual who has a terminal illness depend on the individual having had the illness for any length of time.

No requirement for assessment

10 The regulations may not make the eligibility of an individual who has a terminal illness depend on the individual producing any evidence of that fact beyond a diagnosis by a registered medical practitioner.

Eligibility from date of application

11 The regulations must be framed so that an individual who applies for disability assistance on the basis of having a terminal illness, and does have a terminal illness, is eligible, at the latest, from the day the application is made.

Entitlement to maximum amount

12 The regulations must be framed so that an individual who is eligible by reason of having a terminal illness is entitled to the maximum amount of the assistance that the individual is eligible for.

PART 2 ASSISTANCE TO BE GIVEN

CHAPTER 1 VALUE

Nature and extent of disability

13 The regulations may make the value of the disability assistance that is to be given to an individual depend on the nature and extent of―

(a) the individual’s impairment,

(b) the needs of the individual in consequence of the impairment.

Age

14 The regulations may make the value of the disability assistance that is to be given to an individual depend on the individual’s age.

CHAPTER 2 FORM

Meeting liabilities

15 The regulations may provide for the disability assistance that is to be given to an individual to be given (in whole or in part) by way of—

(a) payment to another person in order to meet, or contribute towards meeting, any liability the individual has to that person,

(b) deduction from any liability the individual has to the Scottish Ministers under section 63.

Payment to someone else

16 The regulations may provide that, if the Scottish Ministers consider it appropriate in the circumstances, the disability assistance that is to be given to an individual may be given (in whole or in part) by way of payment to another person who is to use the payment to benefit the individual entitled to the assistance.

Restriction on giving assistance in a form other than money

17 (1) The regulations may allow disability assistance to be given to an individual in a form other than money only if the individual (or a person acting on the individual’s behalf) has agreed to the assistance being given in that form.

(2) If the regulations include provision of the kind mentioned in sub-paragraph (1), they must allow an individual (or a person acting on the individual’s behalf) to withdraw agreement to being given disability assistance in a form other than money at any time.

(3) Despite sub-paragraph (1), the regulations may provide for disability assistance to be given (in whole or in part) by way of deduction, at a reasonable level, from any liability the individual has to the Scottish Ministers under section 63 if the individual has unreasonably refused to agree to the assistance being given in that form.

(4) For the purpose of sub-paragraph (3), “reasonable level” means a level that is reasonable having regard to the financial circumstances of the individual.

Restriction on lump sums

18 The regulations may not provide for the disability assistance that is to be given to an individual to be given by way of a lump-sum payment where the individual’s entitlement arises on account of the individual having, or having had—

(a) pneumoconiosis,

(b) byssinosis,

(c) diffuse mesothelioma,

(d) bilateral diffuse pleural thickening, or

(e) primary carcinoma of the lung where there is accompanying evidence of—

(i) asbestosis,

(ii) bilateral diffuse pleural thickening, or

(iii) both.

PART 3 FINAL PROVISIONS

Generality of enabling power unaffected

19 Nothing in this schedule, apart from the following provisions, is to be taken to limit what may be prescribed in the regulations—

(a) Chapter 1 of Part 1,

(b) paragraph 6 in Chapter 2 of Part 1,

(c) Chapter 3 of Part 1,

(d) paragraphs 17 and 18 in Chapter 2 of Part 2.

Interpretation

20 In this schedule—

• “eligibility” means eligibility for disability assistance and “eligible” means eligible for disability assistance,

• “the regulations” means regulations under section 31(2).