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—S
(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 [F1an appropriate healthcare professional] that the individual has a progressive disease that can reasonably be expected to cause the individual's death.
[F2(2A)The regulations may provide that, in the situation mentioned in sub-paragraph (2B), an individual who is not resident in the United Kingdom is to be regarded as having a terminal illness despite the clinical judgement described in sub-paragraph (2) not having been formed with regard to the guidance mentioned in sub-paragraph (3).
(2B)The situation referred to in sub-paragraph (2A) is that it would not be reasonable in the circumstances to insist on a clinical judgement being provided that has been formed with regard to the guidance.
(2C)The regulations are to define “appropriate healthcare professional” for the purpose of determining entitlement to disability assistance on the basis of an individual having a terminal illness.
(2D)In defining “appropriate healthcare professional” the regulations—
(a)must provide that being a registered medical practitioner or registered nurse is a requirement for being an appropriate healthcare professional,
(b)may provide that being a registered member of a healthcare profession otherwise than as mentioned in paragraph (a) is a requirement for being an appropriate healthcare professional,
(c)may include additional requirements that a person must satisfy in order to be an appropriate healthcare professional, including by reference to a person's—
(i)skills, training, qualifications and experience,
(ii)professional relationship to the individual in question,
(iii)being authorised to act as an appropriate healthcare professional in relation to the individual in question by—
(A)a Health Board constituted under section 2(1)(a) of the National Health Service (Scotland) Act 1978,
(B)a Special Health Board constituted under section 2(1)(b) of that Act,
(C)the Scottish Ministers.
(d)may make different provision about the requirements for being an appropriate healthcare professional for the purposes of determining the entitlement to disability assistance of individuals who are resident in the United Kingdom and those who are not.]
[F3(3)The Chief Medical Officer of the Scottish Administration is—
(a)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.
(4)Before preparing or revising guidance under sub-paragraph (3), the Chief Medical Officer must consult appropriate healthcare professionals (as defined in sub-paragraph (2C)) who are registered in the United Kingdom as members of a healthcare profession.]
Textual Amendments
F1Words in sch. 5 para. 1(2) substituted (26.7.2021) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 11(2)(a)(i), 18(2)(3); S.S.I. 2021/232, reg. 2(e)
F2Sch. 5 para. 1(2A)-(2D) inserted (26.7.2021) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 11(2)(a)(ii), 18(2)(3); S.S.I. 2021/232, reg. 2(e)
F3Sch. 5 para. 1(3)(4) substituted for sch. 5 para. 1(3) (26.7.2021) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 11(2)(a)(iii), 18(2)(3); S.S.I. 2021/232, reg. 2(e)
Commencement Information
I1Sch. 5 para. 1 in force at 8.10.2020 by S.S.I. 2020/295, reg. 2(c)