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

PART 4 Entitlement under special rules for terminal illness and when undergoing dialysis

Entitlement under special rules for terminal illness

15.—(1) An individual who has a terminal illness is—

(a) to be treated as satisfying the conditions for the highest rate of the care component of Child Disability Payment in regulation 11(5)(a), and

(b) from the date on which the individual reaches the age of 3, to be treated as satisfying the conditions for the higher rate of the mobility component in regulation 13.

(2) Paragraph (1) applies regardless of—

(a) the period of time for which the individual has had the terminal illness, and

(b) any period of time spent by the individual in a hospital or hospice while in receipt of the assistance.

(3) Subject to paragraphs (4) and (5), the individual’s entitlement to the rates referred to in paragraph (1) begins on the date on which—

(a) the individual’s application for Child Disability Payment was made, where the application included information about the individual’s terminal illness,

(b) the Scottish Ministers became aware of the individual’s terminal illness (whether as a result of the individual notifying a change in circumstances or otherwise), where the individual was previously awarded, and has an ongoing entitlement to, Child Disability Payment, on the basis of a determination that the individual was entitled to the care component or the mobility component or both in relation to a condition other than terminal illness, or

(c) the clinical judgement was made in accordance with paragraphs (6) and (7) (“the judgement”),

whichever is the earlier.

(4) Where the judgement mentioned in paragraph (3)(c) is dated not more than 26 weeks earlier than whichever date in paragraph (3)(a) or (b) applies (“the relevant date”), the Scottish Ministers have the power, when making their determination, to specify that an individual’s entitlement begins—

(a) up to a maximum of 26 weeks prior to the relevant date, and

(b) on or after the day these Regulations come into force.

(5) Where the judgement mentioned in paragraph (3)(c)—

(a) is dated more than 26 weeks earlier than whichever date in paragraph (3)(a) or (b) applies (“the relevant date”), and

(b) an appropriate healthcare professional confirms that the judgement is still accurate by making a judgement in accordance with paragraphs (6) and (7),

an individual’s entitlement can only begin—

(c) up to a maximum of 26 weeks prior to the relevant date, and

(d) on or after the day these Regulations come into force.

(6) For the purpose of this regulation, an individual is to be regarded as having a terminal illness for the purpose of determining entitlement to Child Disability Payment if it is the judgement of an appropriate healthcare professional that the individual has a progressive disease that can reasonably be expected to cause the individual’s death.

(7) Subject to paragraph (8), an appropriate healthcare professional exercising the judgement described in paragraph (6) must have regard to the guidance prepared and made publicly available by the Chief Medical Officer of the Scottish Administration in accordance with paragraph 1(3) of schedule 5 of the 2018 Act.

(8) Where regulation 9 (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies to the individual, an appropriate healthcare professional mentioned in paragraph (9)(b) need not have regard to the guidance mentioned in paragraph (7) where it would not be reasonable in the circumstances to insist on the judgement being formed with regard to that guidance.

(9) In this regulation, “an appropriate healthcare professional” means—

(a) a registered medical practitioner or a registered nurse who is—

(i) involved in the diagnosis or care of the individual, and

(ii) acting in their professional capacity, or

(b) where regulation 9 applies to the individual, a person who—

(i) has equivalent qualifications to a registered medical practitioner or a registered nurse in an EEA state, Gibraltar or Switzerland,

(ii) is a member of the professional body equivalent to the General Medical Council or Nursing and Midwifery Council in that EEA state, Gibraltar or Switzerland, and

(iii) meets the requirements of sub-paragraph (a)(i) and (ii).

(10) Where an individual has received Child Disability Payment for a period and a determination is subsequently made that that individual is entitled to Child Disability Payment at a higher rate for that period by virtue of this regulation, any payment of Child Disability Payment to be made for that period will be reduced by any Child Disability Payment already paid to that individual for that period.

Entitlement to care component when undergoing dialysis

16.—(1) Subject to paragraph (5), an individual who is at least 3 months old is to be treated as satisfying the conditions for the care component in regulation 11 (care component criterion: lowest, middle or highest rate of care component) where the individual undergoes renal dialysis—

(a) where at least one of the conditions in paragraph (2) is met, and

(b) at least twice a week,

as a consequence of a disability or physical impairment.

(2) The conditions are that—

(a) the renal dialysis is of a type which normally requires the attendance or supervision of another person, or

(b) due to particular circumstances, the individual requires another person to attend—

(i) in connection with the individual’s bodily functions, or

(ii) to supervise the individual in order to avoid substantial danger to the individual,

during the period of the dialysis.

(3) Where the renal dialysis mentioned in paragraph (2) takes place by day or at night, the individual is entitled to the middle rate care component.

(4) Where the renal dialysis mentioned in paragraph (2) takes place both by day and at night, the individual is entitled to the highest rate care component.

(5) An individual is not entitled to the care component unless—

(a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy the requirements in paragraph (1) as read with paragraph (2), and

(b) the individual is likely to continue to satisfy those requirements throughout the period of 26 weeks beginning with that date.