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

PART 1 S Introductory and interpretation

Citation and commencement S

1.  These Regulations may be cited as the Disability Assistance for Children and Young People (Scotland) Regulations 2021 and come into force on 26 July 2021.

Commencement Information

I1 Reg. 1 in force at 26.7.2021, see reg. 1

Interpretation - general S

2.  In these Regulations—

“the 2018 Act” means the Social Security (Scotland) Act 2018,

[F1 “the ADP Regulations” means the Disability Assistance for Working Age People (Scotland) Regulations 2022,]

[F2 “Adult Disability Payment” means disability assistance for adults given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022,]

“armed forces independence payment” means the disability benefit paid in accordance with article 24A of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011(1),

“authorised provider of vehicles” means a supplier of vehicles for persons with disabilities approved under an accreditation scheme run by the Scottish Ministers,

“award” means that a determination has been made that an individual is entitled to be given assistance under section 24 of the 2018 Act in accordance with these Regulations, and cognate expressions are to be construed accordingly,

“bodily functions” means the normal actions of any organ of the body, including the brain, or of a number of organs acting together,

“care component” means the care component of Child Disability Payment within the meaning of regulation 11,

“care home” means an establishment which provides a care home service as defined in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010(2) and includes a residential educational establishment,

“Child Disability Payment” means disability assistance for children and young people given in accordance with section 31 of the 2018 Act,

“determination” or “determination of entitlement” has the meaning in section 25 of the 2018 Act,

“Disability Living Allowance” means a disability living allowance under—

(a)

section 71 of the Social Security Contributions and Benefits Act 1992(3), or

(b)

section 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992(4),

“EEA State” means—

(a)

any member state of the European Union, or

(b)

any other state that is party to the agreement on the European Economic Area signed at Oporto on 2 May 1992(5), together with the Protocol adjusting that Agreement signed at Brussels on 17 March 1993(6), as modified or supplemented from time to time,

“hospice” means a hospital or other institution whose primary function is to provide palliative care for persons resident there who are suffering from a progressive disease in its final stages other than—

(a)

a health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978(7)) in Scotland,

(b)

a health service hospital (within the meaning of section 275(1) of the National Health Service Act 2006(8)) in England,

(c)

a hospital in Wales vested in—

(i)

an NHS trust,

(ii)

a Local Health Board, or

(iii)

the Welsh Ministers,

for the purpose of functions under the National Health Service (Wales) Act 2006(9),

(d)

a hospital maintained or administered by the Defence Council(10), or

(e)

an institution similar to a hospital mentioned in any of the preceding paragraphs,

[F3 legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995,]

(a)

section 59A(11) of that Act, or

(b)

section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003(12), or

(c)

section 45A, 47 or 50(3) of the Mental Health Act 1983(13),

“mobility component” means the mobility component of Child Disability Payment within the meaning of regulations 12 and 13,

“personal independence payment” means personal independence payment under—

(a)

Part 4 of the Welfare Reform Act 2012(14), or

(b)

article 82 of the Welfare Reform (Northern Ireland) Order 2015(15),

“qualifying services” means accommodation, board and personal care,

“relevant EU Regulation” means—

(a)

one of the following Regulations—

(i)

Council Regulation (EC) No 1408/71 of 14 June 1971(16) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community,

(ii)

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004(17) on the coordination of social security systems, or

(b)

in relation to an individual to whom the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974(18) applies, a Regulation mentioned in paragraph (a) of this definition as it forms part of domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018(19),

“residential educational establishment” means a care home which provides education or training except for one where the costs of any qualifying services are borne wholly or partly out of public or local funds by virtue of—

(a)

[F4 section 485 of the Education Act 1996(3) or section 14 of the Education Act 2002(4) (which relate to grants and financial assistance for education),]

(b)

sections 49(20) or 73 of the Education (Scotland) Act 1980 (which relate respectively to the power of education authorities to assist persons to take advantage of educational facilities and the powers of the Secretary of State to make grants to education authorities and others),

(c)

section 65(21) of the Further and Higher Education Act 1992, sections 39 or 40 of the Higher Education and Research Act 2017(22) or sections 4 or 11 of the Further and Higher Education (Scotland) Act 2005(23) (which relate respectively to the funding of further education and the administration of funds), or

(d)

section 22 of the Teaching and Higher Education Act 1998(24),

[F5 “short-term assistance” means short-term assistance given in accordance with Part 1 of the schedule,]

“transferring individual” has the meaning set out in paragraph 7 of the schedule, and

“week” means a period of 7 days.

Textual Amendments

F1 Words in reg. 2 inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(2)

F2 Words in reg. 2 inserted (21.3.2022) by The Disability Assistance for Working Age People (Consequential and Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/31), regs. 1, 19(2) (with reg. 20)

F3 Words in reg. 2 substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 3(a)

F4 Words in reg. 2 substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 3(b)

F5 Words in reg. 2 inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(2)

Commencement Information

I2 Reg. 2 in force at 26.7.2021, see reg. 1

PART 2 S Disability assistance for children and young people

Overview S

3.—(1) An individual is entitled to Child Disability Payment in accordance with these Regulations if they meet the eligibility rules in—

(a) regulation 4 (age criteria),

(b) regulations 5 to 9 (residence and presence conditions, etc.),

(c) regulation 10 (entitlement to other benefits),

(d) one or more of the following—

(i) regulation 11 (care component criterion: lowest, middle and highest rate of care component),

(ii) regulation 12 (mobility requirements: lower rate mobility component),

(iii) regulation 13 (mobility requirements: higher rate mobility component),

(iv) regulation 15 (entitlement under special rules for terminal illness),

(v) regulation 16 (entitlement to care component when undergoing dialysis).

(2) Child Disability Payment is to consist of a care component and a mobility component.

(3) There are 3 weekly rates of the care component and 2 weekly rates of the mobility component and those rates are specified in regulation 23 (amount and form of Child Disability Payment).

Commencement Information

I3 Reg. 3 in force at 26.7.2021, see reg. 1

PART 3 S Eligibility

Age criteria S

4.—(1) Subject to [F6 paragraph (1A), (1B) [F7 , (1C)] and (2)], Child Disability Payment may be paid in respect of an individual who is aged at least 3 months and is under the age of 18 years.

[F8 (1A) Where regulation 15 (entitlement under special rules for terminal illness) applies, the requirement in paragraph (1) to be aged at least 3 months does not apply.]

[F9 (1B) Child Disability Payment may continue to be paid in respect of an individual who is over the age of 17 years—

(a) where they are an individual to whom regulation 15 (entitlement under special rules for terminal illness) applies,

(b) until the age of 19 years where the individual is a transferring individual in terms of Part 3 of the schedule, and reaches the age of 18 on or before 31 December 2023, except where paragraph (1C) applies,

(c) until the age of 19 years where they are an individual mentioned in regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland) who reaches the age of 18 on or before 31 December 2023, except where paragraph (1C) applies,

(d) where the individual does not fall within sub-paragraph (a), (b) or (c) and—

(i) they are awaiting a determination of their entitlement to Adult Disability Payment, or

(ii) a determination has been made that the individual is entitled to Adult Disability Payment but payment has not begun,

until the age of 19 years, or the individual becomes entitled to Adult Disability Payment in accordance with regulation 58(2)(a) of the ADP Regulations, whichever is earlier.

(1C) Where an individual falls within paragraph (1B)(b) or (c) and—

(a) a determination of their entitlement to Adult Disability Payment is made within the period of 4 weeks before the date on which the individual reaches the age of 19, and

(b) that determination is that the individual is entitled to Adult Disability Payment,

Child Disability Payment may continue to be paid in respect of the individual after they reach the age of 19 until the day before the day on which the individual becomes entitled to Adult Disability Payment in accordance with regulation 58(2)(a) of the ADP Regulations.]

(2) [F10 Where an individual’s entitlement to Child Disability Payment is first determined on the basis of an application made in accordance with section 38 of the 2018 Act,] Child Disability Payment may only be paid in respect of an individual who is under the age of 16 years on the day on which entitlement begins in accordance with regulation 24 (when an application is to be treated as made and beginning of entitlement to assistance).

(3) Where an individual was born on 29 February, the individual’s birthday is to be taken to fall on 28 February in a year which is not a leap year.

Textual Amendments

F6 Words in reg. 4(1) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 4(a)

F7 Word in reg. 4(1) inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(3)(a)

F8 Reg. 4(1A)(1B) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 4(b)

F9 Reg. 4(1B)(1C) substituted for reg. 4(1B) (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(3)(b)

F10 Words in reg. 4(2) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 4(c)

Commencement Information

I4 Reg. 4 in force at 26.7.2021, see reg. 1

Residence and presence conditions S

5.—(1) An individual satisfies the residence and presence conditions where on any day that individual—

(a) is ordinarily resident in Scotland,

(b) is habitually resident in the common travel area,

[F11 (c) is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999,]

(d) is present in the common travel area, and

(e) has been present in the common travel area for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day.

(2) In the case of a child under the age of 6 months, paragraph (1) is to apply as if in sub-paragraph (e) for the reference to 26 weeks there was substituted a reference to 13 weeks.

(3) Where in any particular case a child has by virtue of paragraph (2) entitlement to the care component immediately before the day the child attains the age of 6 months, then until the child attains the age of 12 months, paragraph (1)(e) shall continue to apply in that child’s case as if for the reference to 26 weeks there was substituted a reference to 13 weeks.

(4) The residence condition set out in paragraph (1)(a) does not apply in relation to the care component where on any day the individual—

(a) is habitually resident in Ireland,

(b) has a genuine and sufficient link to Scotland, and

(c) is an individual—

(i) to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019(25), as modified from time to time in accordance with any provision of it, applies, and

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of long term care benefits.

(5) The reference in paragraph (4)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (4) would be incompatible with Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019.

[F12 (5A) Paragraph (1)(c) does not apply to a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 where they are a person who—

(a) is lawfully working in the United Kingdom and is a national of a state with which the United Kingdom has concluded an agreement which replaces in whole or in part an agreement under Article 217 of the Treaty on the Functioning of the European Union which has ceased to apply to, and in, the United Kingdom, providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory state and their families,

(b) is a member of the family of, and living with, a person specified in sub-paragraph (a), or

(c) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules, to be responsible for their maintenance and accommodation.]

(6) A relevant individual is treated as satisfying the residence and presence conditions set out in paragraph (1)(a), [F13 (b) and (d)] where on any day that individual is outside the common travel area—

(a) by reason of their capacity mentioned in paragraph (7)(b) provided that individual satisfied the residence and presence conditions set out in paragraph (1)(a), [F13 (b) and (d)] immediately prior to the start of their employment mentioned in paragraph (7)(b), or

(b) by reason of being a person mentioned in paragraph (7)(a) living with an individual to whom sub-paragraph (a) applies.

(7) A “relevant individual” in paragraph (6) means an individual who is—

(a) living with a person mentioned in sub-paragraph (b) and—

(i) is the child, step-child or a child in care of that person, or

(ii) is married to or in a civil partnership with that person, or is living together with that person as if they were married or in a civil partnership, or

(b) outside the common travel area in their capacity as a—

(i) serving member of Her Majesty’s forces, or

(ii) civil servant.

(8) An individual is to be treated as meeting the presence conditions set out in paragraphs (1)(d) and (e) for any period where that individual is—

(a) outside the common travel area in their capacity as an aircraft worker or mariner, or

(b) in employment prescribed for the purposes of section 120 (employment at sea (continental shelf operations)) of the Social Security Contributions and Benefits Act 1992(26) in connection with continental shelf operations.

(9) Where an individual—

(a) does not meet [F14 either or both of the presence conditions] set out in paragraph [F15 (1)(d) and (e)] on the date the application is received by the Scottish Ministers, and

(b) appears to the Scottish Ministers likely to meet [F16 both of those conditions], unless there is a change of circumstances, on a date not later than 3 months after the application was received,

the Scottish Ministers may choose the date within that 3 month period on which the application is to be treated as being made.

[F17 (10) The past presence condition in paragraph (1)(e) does not apply where an individual—

(a) has a terminal illness within the meaning of regulation 15, or

(b) is an individual described in paragraph (7).]

[F18 (10A) The habitual residence condition in paragraph (1)(b) and the past presence condition in paragraph (1)(e) do not apply where an individual—

(a) has leave to enter or remain in the United Kingdom granted under the immigration rules by virtue of—

(i) the Afghan Relocations and Assistance Policy, or

(ii) the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),

(b) has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-paragraph (a); F19 ...

(c) has leave granted under the Afghan Citizens Resettlement Scheme.

[F20 (d) has been granted refugee status or humanitarian protection under the immigration rules, F21 ...

(e) has leave to enter or remain in the United Kingdom as the dependant of a person granted refugee status or humanitarian protection under the immigration rules] F22 [F23 ...

(f) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, [F24 has a right] of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 F25 [F26 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act], where the individual—

(i) was residing in Ukraine immediately before 1 January 2022, and

(ii) left Ukraine in connection with the Russian invasion which took place on 24 February 2022]][F27 , [F28 or]

(g) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i) was residing in Sudan before 15 April 2023, and

(ii) left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan][F29 , or

(h) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i) was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, and

(ii) left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack]

[F30 (11) For the purposes of [F31 paragraph (10A)] —

(a) “immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971,

(b) “the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 2021.]

Textual Amendments

F11 Reg. 5(1)(c) substituted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(3)(a)

F12 Reg. 5(5A) inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(3)(b)

F13 Words in reg. 5(6) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 5(b)

F14 Words in reg. 5(9)(a) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 5(c)(i)

F15 Words in reg. 5(9)(a) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 5(c)(ii)

F16 Words in reg. 5(9)(b) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 5(d)

F17 Reg. 5(10) substituted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(3)(c)

F18 Reg. 5(10A) inserted (15.9.2021) by The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021 (S.S.I. 2021/320), regs. 1(1), 6(2)

F19 Word in reg. 5(10A)(b) omitted (9.2.2022) by virtue of The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(3)(d)(i)

F20 Reg. 5(10A)(d)(e) inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(3)(d)(ii)

F21 Word in reg. 5(10A)(d) omitted (22.3.2022 at 5.40 p.m.) by virtue of The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022 (S.S.I. 2022/108), regs. 1(1), 7(2)(a)

F22 Word in reg. 5(10A)(e) omitted (17.5.2023 at 5.54 p.m.) by virtue of The Social Security (Residence Requirements) (Sudan) (Scotland) Regulations 2023 (S.S.I. 2023/149), regs. 1(1), 7(2)(a)

F23 Reg. 5(10A)(f) and word inserted (22.3.2022 at 5.40 p.m.) by The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022 (S.S.I. 2022/108), regs. 1(1), 7(2)(b)

F24 Words in reg. 5(10A)(f) substituted (14.11.2022) by The Social Security (Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/336), regs. 1(1), 8(a)

F25 1971 c. 77. Section 2 was amended by section 39(2) of the British Nationality Act 1981 (c. 61) and S.I. 2019/745.

F26 Words in reg. 5(10A)(f) inserted (14.11.2022) by The Social Security (Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/336), regs. 1(1), 8(b)

F27 Reg. 5(10A)(g) and word inserted (17.5.2023 at 5.54 p.m.) by The Social Security (Residence Requirements) (Sudan) (Scotland) Regulations 2023 (S.S.I. 2023/149), regs. 1(1), 7(2)(b)

F28 Word in reg. 5(10A)(f) omitted (S.) (26.10.2023 at 5.38 p.m.) by virtue of The Social Security (Residence and Presence Requirements) (Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights and Lebanon) (Scotland) Regulations 2023 (S.S.I. 2023/309), regs. 1(2), 7(2)(a)

F29 Reg. 5(10A)(h) and word inserted (S.) (26.10.2023 at 5.38 p.m.) by The Social Security (Residence and Presence Requirements) (Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights and Lebanon) (Scotland) Regulations 2023 (S.S.I. 2023/309), regs. 1(2), 7(2)(b)

F30 Reg. 5(11) substituted (15.9.2021) by The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021 (S.S.I. 2021/320), regs. 1(1), 6(3)

F31 Words in reg. 5(11) substituted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(3)(e)

Commencement Information

I5 Reg. 5 in force at 26.7.2021, see reg. 1

Interpretation - residence and presence conditions S

6.  In regulation 5—

“aircraft worker” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where—

(a)

the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mails carried on that aircraft, and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight,

but does not include a person in so far as that employment is as a serving member of Her Majesty’s forces,

“child in care” means—

(a)

under the law of Scotland, a child in respect of whom a relevant individual listed in regulation [F32 5(7)(b)] —

(i)

is a foster carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009(27),

(ii)

is a kinship carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009,

(iii)

has a kinship care order within the meaning of section 72 of the Children and Young People (Scotland) Act 2014(28), or

(b)

under the law of England and Wales and Northern Ireland, a child in respect of whom a person listed in regulation [F32 5(7)(b)] has a relationship equivalent to those listed in paragraph (a) under the law of Scotland,

F33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“civil servant” has the meaning given by section 1(4) of the Constitutional Reform and Governance Act 2010(29),

“common travel area” has the meaning given in section 1(3) of the Immigration Act 1971,

“mariner” means a person who is, or has been, in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—

(a)

the employment in that other capacity is for the purposes of that ship or vessel or its crew or any passengers or cargo or mails carried by the ship or vessel, and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on its voyage,

but does not include a person in so far as that employment is as a serving member of Her Majesty’s forces,

F34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“serving member of Her Majesty’s forces” means a member of a regular force or reserve force (“M”) as defined, in each case, by section 374 (definitions applying for purposes of the whole Act) of the Armed Forces Act 2006(30), unless—

(a)

M is under the age of 16,

(b)

M is committing an offence under section 8 of the Armed Forces Act 2006 (desertion),

(c)

the force concerned is one of Her Majesty’s naval forces which M locally entered at an overseas base without F35 ...—

(i)

[F36 previously being] an insured person under the National Insurance Act 1965(31), or

(ii)

[F37 paying or having previously paid one or more of the following classes of contributions under the Social Security Act 1975 or the Social Security Contributions and Benefits Act 1992—

(aa)

primary Class 1,

(bb)

Class 2, or

(cc)

Class 3, or]

(d)

the force concerned is one of Her Majesty’s military forces or Her Majesty’s air forces which M entered, or was recruited for, outside the United Kingdom and—

(i)

where that force is one of Her Majesty’s military forces, the depot for M’s unit is outside the United Kingdom, or

(ii)

where that force is one of Her Majesty’s air forces, M is liable under the terms of M’s engagement to serve only in a specified area outside the United Kingdom.

Textual Amendments

F32 Word in reg. 6 substituted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(4)

F33 Words in reg. 6 omitted (29.8.2022) by virtue of The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 18(2)(a)

F34 Words in reg. 6 omitted (29.8.2022) by virtue of The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 18(2)(b)

F35 Words in reg. 6 omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 6(a)

F36 Words in reg. 6(c)(i) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 6(b)

F37 Reg. 6(c)(ii) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 6(c)

Commencement Information

I6 Reg. 6 in force at 26.7.2021, see reg. 1

Temporary absence from the common travel area S

7.—(1) Where an individual is temporarily absent from the common travel area, the individual is to be treated as present in the common travel area for—

(a) the first 13 weeks of that absence for any reason, or

(b) the first 26 weeks of that absence where—

(i) after the first 13 weeks, the absence is in connection with arrangements made for the medical treatment of the individual for a disease or bodily or mental disablement which commenced before leaving the common travel area, and

(ii) the arrangements relate to medical treatment—

(aa) outside the common travel area,

(bb) during the period when the individual is temporarily absent from the common travel area, and

(cc) by, or under the supervision of, a person appropriately qualified to carry out that treatment.

(2) For the purposes of paragraph (1)—

(a) an individual is “temporarily absent” if, at the beginning of the period of absence, that absence is unlikely to exceed 52 weeks, and

(b) “medical treatment” means medical, surgical, psychological or rehabilitative treatment (including any course, diet or regimen).

Commencement Information

I7 Reg. 7 in force at 26.7.2021, see reg. 1

Persons residing in the United Kingdom to whom a relevant EU regulation applies S

8.  The past presence condition set out in regulation 5(1)(e) does not apply where on any day the individual is—

(a) ordinarily resident in Scotland,

(b) habitually resident in the United Kingdom,

(c) an individual—

(i) to whom the rules set out in a relevant EU regulation applies by virtue of—

(aa) Title III of Part 2 of the EU withdrawal agreement,

(bb) Part 3 or Article 23(4) of the Swiss citizens’ rights agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020) (“the 2020 Act”))(32),

(cc) Title III of the EEA EFTA separation agreement (as defined in section 39(1) of the 2020 Act), or

(dd) the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974(33),

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of sickness benefits in cash.

Commencement Information

I8 Reg. 8 in force at 26.7.2021, see reg. 1

Persons residing outside the United Kingdom to whom a relevant EU regulation applies S

9.—(1) The residence and presence conditions set out in regulation 5(1) do not apply in relation to the care component where on any day the individual satisfies the conditions in paragraph (2).

(2) The conditions referred to in paragraph (1) are that the individual must—

(a) be an individual—

(i) to whom the rules set out in a relevant EU regulation apply by virtue of—

(aa) Title III of Part 2 of the EU withdrawal agreement,

(bb) Part 3 or Article 23(4) of the Swiss citizens’ rights agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”)),

(cc) Title III of the EEA EFTA separation agreement (as defined in section 39(1) of the 2020 Act), or

(dd) the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974, and

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of sickness benefits in cash,

(b) be habitually resident in—

(i) Switzerland,

(ii) an EEA state, or

(iii) Gibraltar, and

(c) have a genuine and sufficient link to Scotland.

(3) The reference in paragraph (2)(c) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (2) would be incompatible with the applicable agreement mentioned in sub-paragraph (a)(i) of that paragraph.

Commencement Information

I9 Reg. 9 in force at 26.7.2021, see reg. 1

[F38 No entitlement to care component where UK is not competent state S

9A.   An individual to whom a relevant EU Regulation applies is not entitled to the care component for a period unless during that period the United Kingdom is competent for payment of sickness benefits in cash to the individual for the purposes of the relevant EU Regulation in question.]

Textual Amendments

F38 Reg. 9A inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(4)

Entitlement to other benefits S

10.  An individual is not entitled to Child Disability Payment while they are entitled to—

(a) Disability Living Allowance,

(b) Personal Independence Payment, F39 ...

(c) armed forces independence payment [F40 , or

(d) Adult Disability Payment].

Textual Amendments

F39 Word in reg. 10(b) omitted (21.3.2022) by virtue of The Disability Assistance for Working Age People (Consequential and Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/31), regs. 1, 19(3)(a) (with reg. 20)

F40 Reg. 10(d) and word inserted (21.3.2022) by The Disability Assistance for Working Age People (Consequential and Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/31), regs. 1, 19(3)(b) (with reg. 20)

Commencement Information

I10 Reg. 10 in force at 26.7.2021, see reg. 1

Care component criterion: lowest, middle or highest rate care component S

11.—(1) An individual satisfies the care component criterion in respect of any period throughout which at least one of the following conditions is satisfied—

(a) the individual is so severely disabled physically or mentally that they require in connection with their bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods),

(b) the individual is 16 years old or older and is so severely disabled physically or mentally that they cannot prepare a cooked main meal for themselves if they have the ingredients,

(c) the individual is so severely disabled physically or mentally that they require from another person—

(i) frequent attention throughout the day in connection with their bodily functions, or

(ii) continual supervision throughout the day in order to avoid substantial danger to the individual or others, or

(d) the individual is so severely disabled physically or mentally that they require—

(i) prolonged or repeated attention from another person [F41 at] night in connection with their bodily functions, or

(ii) another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over the individual [F41 at] night in order to avoid substantial danger to the individual or others.

(2) No condition mentioned in paragraph (1) is to be taken to be satisfied unless—

(a) the individual has requirements of a description mentioned in the condition substantially in excess of the normal requirements of a person of the same age, or

(b) the individual has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of the individual’s age and in normal physical and mental health would not have.

(3) 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 at least one of the conditions mentioned in paragraph (1) as read with paragraph (2), and

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

(4) In the case of an individual who is under the age of 16 on the date on which the award of the care component would begin, paragraph (2) only applies in relation to so much of any period mentioned in that paragraph as falls before the day on which the individual reaches the age of 16.

(5) The amount of the care component that an individual is entitled to be given for each week in the period for which they are awarded that component is—

(a) the highest rate (see regulation 23(1)(a)), if the individual falls within paragraph (3) by virtue of having satisfied or being likely to satisfy both the conditions mentioned in paragraph (1)(c) and (d) above throughout both the period mentioned in paragraph (3)(a) and that mentioned in paragraph (3)(b),

(b) the middle rate (see regulation 23(1)(b)), if the individual falls within paragraph (3) by virtue of having satisfied or being likely to satisfy one of those conditions mentioned in paragraph (1)(c) or (d) throughout both those periods, and

(c) the lowest rate (see regulation 23(1)(c)) in any other case.

(6) In paragraph (1)—

(a) references to “day” and “night” are to be construed in relation to the ordinary domestic routine of the household in which the individual lives, and

(b) “attention” means the provision of personal care, prompting or motivation in relation to bodily functions or assistance with communication needs.

(7) In paragraph (1) and regulation 12, “supervision” means the precautionary or anticipatory presence of another person to monitor an individual’s physical, mental or emotional health including monitoring for obstacles or dangerous places or situations.

(8) In this regulation and regulations 12 and 13, “require” means reasonably require and cognate expressions are to be construed accordingly.

Textual Amendments

F41 Word in reg. 11(1)(d) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 7

Commencement Information

I11 Reg. 11 in force at 26.7.2021, see reg. 1

Mobility requirements: lower rate mobility component S

12.—(1) An individual aged 5 years or more is entitled to be given the mobility component at the lower rate (see regulation 23(2)(b)) if the individual satisfies the condition set out in paragraph (2).

(2) The condition referred to in paragraph (1) is that the individual, though able to walk, cannot move around outdoors without requiring guidance or supervision from another person most of the time as a result of a physical or mental impairment.

(3) The guidance or supervision required must be—

(a) substantially in excess of the normal requirements of a person of the same age, or

(b) of such a description which younger persons in normal physical and mental health may also require but which persons of the individual’s age and in normal physical and mental health would not require.

(4) In the case of an individual who is under the age of 16 on the date on which the award of the mobility component would begin, paragraph (3) only applies in relation to so much of any period mentioned in that paragraph as falls before the day on which the individual reaches the age of 16.

(5) Whether the individual satisfies the condition in paragraph (2), no account is to be taken of any ability which the individual has to use routes with which they are familiar, without guidance or supervision from another person.

(6) An individual is not entitled to the lower rate of the mobility 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 condition mentioned in paragraph (2), and

(b) the individual is likely to continue to satisfy the condition mentioned in paragraph (2) throughout the period of 26 weeks beginning with that date.

(7) In this regulation, “guidance” means direction or leading by physical means or verbal suggestion or persuasion.

Commencement Information

I12 Reg. 12 in force at 26.7.2021, see reg. 1

Mobility requirements: higher rate mobility component S

13.—(1) An individual aged 3 years or more is entitled to be given the mobility component at the higher rate (see regulation 23(2)(a)) if the individual satisfies at least one of the conditions mentioned in paragraph (2).

(2) The conditions referred to in paragraph (1) are—

(a) taking account of the individual’s physical condition as a whole, the individual’s condition is such that, without having regard to the nature of the location where the individual resides—

(i) the individual is unable to walk,

(ii) the individual’s ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which the individual can make progress on foot without severe discomfort, that the individual is virtually unable to walk, or

(iii) the exertion required to walk would constitute a danger to the individual’s life, or would be likely to lead to a serious deterioration in the individual’s health, from which there would no recovery, or from which recovery would take a significant period of time,

(b) the individual has no legs or no feet (regardless of the use of artificial limbs),

(c) the individual has a severe visual impairment,

(d) the individual is blind and deaf,

(e) the individual has a severe mental impairment and severe behavioural difficulties and satisfies both of the conditions mentioned in regulation 11(1)(c) and (d).

(3) Where paragraph (2)(a) applies in relation to an individual, the test of being unable or virtually unable to walk is not met where the individual—

(a) is not unable or virtually unable to walk with the use of an artificial limb or artificial aid which the individual normally wears or uses, or

(b) would not be unable or virtually unable to walk if the individual wore or used an artificial limb or artificial aid which is suitable to the individual’s circumstances.

(4) Paragraph (3) is not relevant for the purpose of determining whether an individual is to be taken to satisfy the conditions set out in paragraphs (2)(b) to (e).

(5) An individual is to be taken to have a severe visual impairment, for the purpose of paragraph (2)(c), if the individual has a severe visual impairment fulfilling the definition given by the Visual Impairment Network for Children and Young People(34).

(6) An individual is taken to be blind and deaf, for the purpose of paragraph (2)(d), if the individual is—

(a) blind where the loss of vision amounts to an absolute loss of vision,

(b) deaf where loss of hearing when using any artificial aid which they habitually use or which is suitable in their case amounts to not less than 80% on a scale where 100% represents absolute deafness, and

(c) unable, without the assistance of another person, to walk to any intended or required destination while out of doors.

(7) An individual is to be taken to have a severe mental impairment, for the purpose of paragraph (2)(e), if the individual has a severe impairment of intelligence and social functioning resulting from—

(a) a state of arrested development as a result of a failure of the individual’s brain to grow or develop in the way normally expected, or

(b) a deficiency in the functionality of the brain as a result of its incomplete physical development.

(8) An individual is to be taken to have severe behavioural difficulties, for the purpose of paragraph (2)(e), if the individual exhibits disruptive behaviour which—

(a) is extreme,

(b) regularly requires another person to intervene in order to prevent or reduce the likelihood of physical injury to the individual or another person, and

(c) is so unpredictable that another person requires to be awake and watching over the individual while the individual is awake.

(9) In paragraph (8)(b), reference to another person intervening relates to the provision of care and support of, or treatment provided to, the individual.

(10) An individual is not entitled to the [F42 higher rate of the] mobility 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 one of the conditions mentioned in paragraph (2), and

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

Textual Amendments

F42 Words in reg. 13(10) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 8

Commencement Information

I13 Reg. 13 in force at 26.7.2021, see reg. 1

Exclusion of entitlement to mobility component S

14.  An individual is not entitled to the mobility component of Child Disability Payment for a period unless, during most of that period, the individual’s physical or mental condition is such that they are able, from time to time, to benefit from assistance for movement.

Commencement Information

I14 Reg. 14 in force at 26.7.2021, see reg. 1

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

Entitlement under special rules for terminal illness S

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).

[F43 (10) Where an individual has previously received Child Disability Payment for a period and a determination is subsequently made that the same individual is entitled to Child Disability Payment at a higher rate for that period by virtue of this regulation, that individual will be entitled to the difference between the value of entitlement to Child Disability Payment under the subsequent determination and the value of Child Disability Payment to which that individual was previously entitled for that period.]

Textual Amendments

F43 Reg. 15(10) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 9

Commencement Information

I15 Reg. 15 in force at 26.7.2021, see reg. 1

Entitlement to care component when undergoing dialysis S

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.

Commencement Information

I16 Reg. 16 in force at 26.7.2021, see reg. 1

PART 5 S Effect of time spent in care homes and in legal detention

Effect of admission to a care home on ongoing entitlement to care component S

17.—(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Child Disability Payment, becomes a resident of a care home.

(2) Subject to paragraphs (4) and (5), [F44 on the day after] the day on which the individual has been resident in a care home for 28 days, and for so long as the individual continues to reside in such a home, the value of the care component of Child Disability Payment that is to be given to the individual is £0 instead of the values set out in regulation 23 (amount and form of Child Disability Payment).

(3) The 28 days referred to in paragraph (2) may comprise two or more separate periods, provided that there is no more than 28 days between each period.

(4) Paragraph (2) does not apply to a resident in a care home, where the full costs of any qualifying services are met—

(a) entirely out of the resources of the individual for whom the qualifying services are provided,

(b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or

(c) entirely out of the resources of another person (other than a local authority) or assistance from a charity.

(5) For the purposes of this regulation, an individual is not resident in a care home during any period when the individual is being looked after by a local authority and—

(a) has been placed temporarily in a private dwelling with a family, relative or some other suitable person while—

(i) under the age of 16, or

(ii) aged between 16 and 18 and receiving services under Part II of the Children (Scotland) Act 1995(35) by virtue of being a child in need within the meaning of section 93(4)(a)(ii) (impairment of health), or 93(4)(a)(iii) (disability) of that Act, or

(b) is accommodated in a care home outside the United Kingdom, where the costs of any qualifying services are met [F45 wholly or partly] by a local authority exercising its powers under section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004(36).

(6) For the purposes of this regulation and regulation 20 (entitlement [F46 to care component] beginning while in alternative accommodation), reference to an individual being “looked after by a local authority” is to be construed, as the case may be, in accordance with—

(a) section 17(6) of the Children (Scotland) Act 1995(37),

(b) section 105(4) of the Children Act 1989(38), or

(c) article 25 of the Children (Northern Ireland) Order 1995(39).

Textual Amendments

F44 Words in reg. 17(2) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 10(a)

F45 Words in reg. 17(5)(b) inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(5)

F46 Words in reg. 17(6) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 10(b)

Commencement Information

I17 Reg. 17 in force at 26.7.2021, see reg. 1

Effect of legal detention on ongoing entitlement to care component S

18.—(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Child Disability Payment is in legal detention.

[F47 (1A) For the purposes of this regulation, an individual is to be treated as though they are not in legal detention on any day on which they are an in-patient in a hospital or hospice.]

(2) [F48 On the day after] the day on which an individual has been in legal detention for 28 days, and for so long as the individual continues to be in legal detention, the value of the care component of Child Disability Payment that is to be given to the individual is to be £0, instead of the values set out in regulation 23 (amount and form of Child Disability Payment).

Textual Amendments

F47 Reg. 18(1A) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 11(a)

F48 Words in reg. 18(2) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 11(b)

Commencement Information

I18 Reg. 18 in force at 26.7.2021, see reg. 1

Calculation of periods of time spent in a care home or in legal detention S

19.—(1) Subject to paragraphs (2) and (3), a period during which an individual is resident in a care home for the purpose of regulation 17 or in legal detention for the purpose of regulation 18 is to be taken to—

(a) begin on the day after the day on which the individual enters the care home or legal detention, and

(b) end on the day before the day on which the individual leaves the care home or legal detention.

(2) Where an individual who is resident in a care home takes a period of leave from the home, the days on which the individual begins and returns from leave are not to be counted as days of residence in the home.

(3) Days constituting a period of leave are not to be counted as days of residence in a care home.

(4) Where an individual enters or returns to a care home as a result of a transfer from a hospital or a hospice, or from another care home, the day of transfer is to be counted as a day of residence in a care home.

(5) Where an individual enters legal detention as a result of a transfer from a hospital or a hospice, or from a care home, the day of transfer is to be counted as a day in legal detention.

Commencement Information

I19 Reg. 19 in force at 26.7.2021, see reg. 1

[F49 Entitlement to care component beginning while in alternative accommodation] S

20.—(1) This regulation applies where an individual is resident in a care home or in legal detention on the day on which entitlement to [F50 the care component of] Child Disability Payment begins.

(2) On and after that day, and for so long as the individual continues to reside in a care [F51 home] , or be in legal detention, the value of the care component of Child Disability Payment that is to be given to the individual is £0 instead of the values set out in regulation 23 (amount and form of Child Disability Payment).

(3) Paragraphs (1) and (2) do not apply where the costs of any qualifying services whilst resident in a care home are met—

(a) entirely out of the resources of the individual for whom the qualifying services are provided,

(b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or

(c) entirely out of the resources of another person (other than a local authority) or assistance from a charity.

(4) For the purposes of this regulation an individual is not resident in a care home during any period when the individual is being looked after by a local authority and—

(a) has been placed temporarily in a private dwelling with a family, relative or some other suitable person while—

(i) under the age of 16,

(ii) aged between 16 and 18 and receiving services under Part II of the Children (Scotland) Act 1995 by virtue of being a child in need within the meaning of section 93(4)(a)(ii) (impairment of health), or 93(4)(a)(iii) (disability) of that Act, or

(b) is accommodated in a care home outside the United Kingdom, where the costs of any qualifying services are met [F52 wholly or partly] by a local authority exercising its powers under section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004.

Textual Amendments

F49 reg. 20 heading substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 12(a)

F50 Words in reg. 20(1) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 12(b)

F51 Word in reg. 20(2) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 12(c)

F52 Words in reg. 20(4)(b) inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(6)

Commencement Information

I20 Reg. 20 in force at 26.7.2021, see reg. 1

Entitlement to care component of Child Disability Payment while an in-patient S

21.  For the avoidance of doubt, any period when an individual is an in-patient in a hospice or hospital, has no effect on the individual’s entitlement to the care component of Child Disability Payment.

Commencement Information

I21 Reg. 21 in force at 26.7.2021, see reg. 1

PART 6 S Making of applications and payments and duration of eligibility

Making payments S

22.—(1) Where Child Disability Payment is payable in respect of an individual, the Scottish Ministers may, where they consider it appropriate, make the payment to another person to be used for the benefit of the individual.

(2) Where the Scottish Ministers consider, for any reason, that it is no longer appropriate for a particular person who falls within paragraph (1) to continue to receive the payment, they may cease making payment to that person.

Commencement Information

I22 Reg. 22 in force at 26.7.2021, see reg. 1

Amount and form of Child Disability Payment S

23.—(1) The weekly rate of payment of the care component is where the individual is entitled to—

(a) the highest rate, [F53 £101.75],

(b) the middle rate, [F54 £68.10], or

(c) the lowest rate, [F55 £26.90].

(2) The weekly rate of payment of the mobility component is where the individual is entitled to—

(a) the higher rate, [F56 £71.00], or

(b) the lower rate, [F57 £26.90].

(3) Where an individual is entitled to payment of the care component or the mobility component for a period shorter than one week, payment of that component is to be made at one-seventh of the relevant weekly rate, for each day of entitlement.

(4) For any week where an individual is entitled to—

(a) the care component of Child Disability Payment, and

(b) payment of an amount in respect of constant attendance under [F58 section 104 of the Social Security Contributions and Benefits Act 1992],

the amount of the care component of Child Disability Payment that is to be given to the individual is to be reduced by the amount paid under that section.

(5) For the purpose of calculating the amount of the care component that is to be given to the individual, in accordance with paragraph (4), where the amount in respect of constant attendance is equal to or greater than the amount of the care component of Child Disability Payment the value of Child Disability Payment that is to be given to the individual is to be £0.

(6) For any week where an individual is entitled to—

(a) the mobility component of Child Disability Payment, and

(b) payment of War Pensioners’ Mobility Supplement within the meaning of—

(i) the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 (“1983 Order”)(40),

(ii) the Personal Injuries (Civilians) Scheme 1983(41),

(iii) the 1983 Order by virtue of the War Pensions (Naval Auxiliary Personnel) Scheme 1964(42),

(iv) the Pensions (Polish Forces) Scheme 1964(43),

(v) the War Pensions (Mercantile Marine) Scheme 1964(44), or

(vi) an Order of Her Majesty in relation to the Home Guard dated 21 December 1964 or 22 December 1964, or in relation to the Ulster Defence Regiment dated 4 January 1971,

the amount of the mobility component of Child Disability Payment that is to be given to the individual is to be £0.

(7) For each week in the period of 8 weeks ending with the death of the individual—

(a) the amount of Child Disability Payment that is to be given to that individual is the relevant weekly rate of each component to which the individual is entitled in that week, multiplied by two, and

(b) any provision in these Regulations reducing the amount to £0 has no effect.

(8) Child Disability Payment may only be given as money, except as provided for by regulation 27(1) (form of payment – giving Child Disability Payment by way of deduction).

Textual Amendments

F53 Sum in reg. 23(1)(a) substituted (10.4.2023) by The Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/111), regs. 1(4), 7(2)(a)

F54 Sum in reg. 23(1)(b) substituted (10.4.2023) by The Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/111), regs. 1(4), 7(2)(b)

F55 Sum in reg. 23(1)(c) substituted (10.4.2023) by The Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/111), regs. 1(4), 7(2)(c)

F56 Sum in reg. 23(2)(a) substituted (10.4.2023) by The Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/111), regs. 1(4), 7(2)(d)

F57 Sum in reg. 23(2)(b) substituted (10.4.2023) by The Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/111), regs. 1(4), 7(2)(e)

F58 Words in reg. 23(4)(b) substituted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(7)

Commencement Information

I23 Reg. 23 in force at 26.7.2021, see reg. 1

When an application is to be treated as made and beginning of entitlement to assistance S

24.—(1) An application for Child Disability Payment is to be treated as made—

(a) on the day it is received by the Scottish Ministers, or

(b) if applicable, on the day identified by the Scottish Ministers in accordance with paragraph (2).

(2) If, before making a determination on the basis of an application, the Scottish Ministers consider that the individual in respect of whom the application is made—

(a) would not satisfy the requirement in—

(i) regulation 4 (age criteria),

(ii) regulations 5 to 9 (residence and presence conditions etc.),

F59 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv) regulation 11 (care component criterion: lowest, middle or highest rate of care component),

(v) regulation 12 (mobility requirements: lower rate mobility component),

(vi) regulation 13 (mobility requirements: higher rate mobility component), or

(vii) regulation 16 (entitlement to care component when undergoing dialysis),

if the application were treated as made on the day it was received, and

(b) would likely be entitled to receive Child Disability Payment if those requirements were satisfied within a 13-week period beginning on the day it was received,

the Scottish Ministers may choose the date within that 13 week period on which the application is to be treated as having been made.

(3) Where, on the basis of an application, a determination is made that an individual is entitled to Child Disability Payment, the date on which entitlement begins is to be identified in accordance with paragraphs (4) to (6).

(4) Where an application is made within 6 weeks of the day on which the full name and date of birth of an individual (“the required data”) is submitted by, or on behalf of, the individual to the Scottish Ministers for the purpose of an application for Child Disability Payment, entitlement begins on whichever is the later of the day—

(a) on which the required data was submitted, or

(b) identified in accordance with paragraph (2).

(5) Subject to paragraph (6), where an application is made after the 6 week period described in paragraph (4), entitlement begins on the day on which the application is treated as having been made in accordance with paragraph (1).

(6) Where the Scottish Ministers are satisfied that there is good reason why an application was made after the 6 week period described in paragraph (4), they may treat the application as having been made within that period.

(7) For the purposes of section 38(3) (application for assistance) of the 2018 Act, the period covered by an application for Child Disability Payment—

(a) under paragraph (1)(a)—

(i) begins on the day on which the application is treated as having been made, and

(ii) ends on the day on which the determination of entitlement is made, and

(b) under paragraph (1)(b)—

(i) is deemed to begin on the day before the determination is made provided that the requirements are satisfied, and

(ii) ends on the day on which the determination is made.

Textual Amendments

F59 Reg. 24(2)(a)(iii) omitted (9.2.2022) by virtue of The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(8)

Commencement Information

I24 Reg. 24 in force at 26.7.2021, see reg. 1

Time of payment S

25.  Where an award of Child Disability Payment is made, the Scottish Ministers are to make—

(a) the first payment of assistance on a date specified in the notice of determination, and

(b) any subsequent payment—

(i) 4 weekly in arrears, or

(ii) where regulation 15 (entitlement under special rules for terminal illness) applies, weekly in advance.

Commencement Information

I25 Reg. 25 in force at 26.7.2021, see reg. 1

Continuing eligibility S

26.—(1) Subject to paragraphs (3) and (4), a determination that an individual is entitled to Child Disability Payment in respect of a period is to be made on the basis that the individual has an ongoing entitlement to Child Disability Payment after the end of that period, except where paragraph (2) applies.

(2) This paragraph applies where, after the end of the period mentioned in paragraph (1), the individual no longer satisfies the eligibility rules.

(3) A determination of ongoing entitlement is made on the basis that—

(a) the individual will continue to be entitled to Child Disability Payment for a fixed or indefinite period as specified in the notice of determination, and

(b) the decision that the individual is entitled to Child Disability Payment for each subsequent 4-week period is to be taken in accordance with these Regulations, on the strength of the assumptions set out in paragraph (4).

(4) The assumptions are that—

(a) the individual continues to satisfy the eligibility criteria which were satisfied to be entitled to Child Disability Payment under the determination mentioned in paragraph (1),

(b) the information on which the determination mentioned in paragraph (1) was made still applies and is relevant in the individual’s case, and

(c) there is no change in circumstances of the individual which would require to be notified under section 56 (duty to notify change of circumstances) of the 2018 Act.

Commencement Information

I26 Reg. 26 in force at 26.7.2021, see reg. 1

[F60 Circumstances in which assistance may be suspended S

26A.— (1) The Scottish Ministers may decide that an individual who has an ongoing entitlement to Child Disability Payment in respect of a period by virtue of regulation 26 is not to become entitled to be given some or all of either component or both components of that assistance at the time at which the individual otherwise would in accordance with that regulation, as read with regulation 25 (time of payment) (referred to in these Regulations as a decision to suspend the individual’s Child Disability Payment).

(2) Where such a decision is made in respect of an individual, payments of Child Disability Payment to that individual are to be suspended until such time as the Scottish Ministers decide that the individual is once again to become entitled to be given Child Disability Payment.

(3) The Scottish Ministers may decide to suspend an individual’s Child Disability Payment only in the circumstances where—

(a) section 54(1A) of the 2018 Act applies,

(b) the Scottish Ministers have made arrangements (whether under section 85A of the 2018 Act, section 85B of the 2018 Act or otherwise) for a person to receive the Child Disability Payment on the individual’s behalf, and the Scottish Ministers consider that it is necessary to suspend the Child Disability Payment—

(i) in order to protect the individual from the risk of financial abuse, or

(ii) because the person with whom the Scottish Ministers have made arrangements is unable to continue to receive the Child Disability Payment, or

(c) the individual has reached the age of 16 years and there is no arrangement to make that payment to—

(i) the individual, or

(ii) another person to be used for the benefit of the individual.

(4) In this regulation “financial abuse” includes—

(a) having money or other property stolen,

(b) being defrauded,

(c) being put under pressure in relation to money or other property,

(d) having money or other property misused.

Textual Amendments

F60 Regs. 26A-26F inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(9)

Having regard to financial circumstances S

26B.   The Scottish Ministers must have regard to an individual’s financial circumstances prior to making a decision to suspend payment to the individual of some or all of either component or both components of Child Disability Payment.

Textual Amendments

F60 Regs. 26A-26F inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(9)

Information to be given following suspension S

26C.— (1) Having made a decision to suspend an individual’s Child Disability Payment, the Scottish Ministers must inform the individual of—

(a) their decision to suspend the individual’s Child Disability Payment,

(b) the reasons for their decision,

(c) any steps which might be taken by the individual in order for the Scottish Ministers to consider ending the suspension, and

(d) the individual’s right under regulation 26D to require the Scottish Ministers to review their decision.

(2) The Scottish Ministers must fulfil their duty under paragraph (1) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Textual Amendments

F60 Regs. 26A-26F inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(9)

Right to review suspension S

26D.— (1) An individual may require the Scottish Ministers to review a decision to suspend that individual’s Child Disability Payment.

(2) The Scottish Ministers must—

(a) complete a review mentioned in paragraph (1) within 31 days beginning with the day on which they received notice from the individual requiring them to review their decision,

(b) inform the individual of the outcome of the review including the reasons for it.

(3) The Scottish Ministers must fulfil their duty under paragraph (2)(b) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Textual Amendments

F60 Regs. 26A-26F inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(9)

Ending a suspension S

26E.   The Scottish Ministers are to make a decision to end a suspension where—

(a) the individual provides the information requested under section 54(1) of the 2018 Act and the Scottish Ministers consider that they do not require to make a determination without application,

(b) regulation 26A(3)(a) applies and the Scottish Ministers make a determination without application under regulation 30 (consideration of entitlement after specified period), 31 (determination following change of circumstances, etc.), 32 (determination following official error – underpayments), 33 (determination following error – overpayments) or 34 (determination to effect a deduction decision),

(c) the Scottish Ministers make a determination under section 54(2) of the 2018 Act,

(d) the circumstances mentioned in regulation 26A(3)(b) or (c) no longer apply, or

(e) the Scottish Ministers consider it appropriate in the circumstances, including having regard to the financial circumstances of the individual.

Textual Amendments

F60 Regs. 26A-26F inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(9)

Effect of suspension ending S

26F.   When—

(a) the suspension of an individual’s Child Disability Payment ends, and

(b) under the latest determination of the individual’s entitlement to Child Disability Payment relating to the period of the suspension the individual would have become entitled to be given Child Disability Payment during that period,

the individual is immediately to be given the Child Disability Payment that the individual would have become entitled to be given under the determination during the period of suspension.]

Textual Amendments

F60 Regs. 26A-26F inserted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(9)

Form of payment – giving Child Disability Payment by way of deduction S

27.—(1) Where an individual has a liability to the Scottish Ministers under section 63 of the 2018 Act (liability for assistance given in error), the individual’s payment of Child Disability Payment may be given (in whole or in part) by way of deduction, at a reasonable level, from that liability either—

(a) with the agreement of the individual, or

(b) without the individual’s agreement, where the individual has unreasonably refused to agree to the assistance being given in that form.

(2) For the purpose of paragraph (1), “reasonable level” means a level that is reasonable having regard to the financial circumstances of the individual.

Commencement Information

I27 Reg. 27 in force at 26.7.2021, see reg. 1

When an increase in level of entitlement takes effect S

28.—(1) Where, as a result of a determination without an application, the amount of Child Disability Payment payable in respect of an individual is increased or their entitlement to a component is awarded, the [F61 change takes effect] —

(a) in the case of an increase pursuant to a determination made under regulation [F62 31(c) or (d)] (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

(b) in the case of an award of entitlement to a component or an increase pursuant to a determination made in accordance with regulation 31(a) F63 ... that affects their eligibility under regulation 11 (care component criterion: lowest, middle or highest rate of care component), 12 (mobility requirements: lower rate mobility component) or 13 (mobility requirements: higher rate mobility component), on the date when—

[F64 (i) if as a result of the individual reporting the change—

(aa) if the individual reports the change within one month of the change occurring, the individual first satisfies the requirements for a higher rate of the care or mobility component,

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

(cc) in any other case, the individual reports the change,

(ii) if as a result of the Scottish Ministers becoming aware that an earlier determination of an individual’s entitlement was made in ignorance of a material fact, on the date when the Scottish Ministers make the determination.]

(c) in the case of an earlier determination which was based on official error within the meaning of regulation 32 (determination following official error - underpayments) or on error within the meaning of regulation 33 (determination following error – overpayments), begins on the date when the earlier determination took effect, or

[F65 (ca) in the case of a determination made in accordance with regulation 31(a), where the period that an individual has been—

(i) for the purpose of regulation 17, resident in a care home,

(ii) for the purposes of regulation 18, in legal detention, or

(iii) for the purposes of regulation 20, resident in a care home or in legal detention,

has come to an end, on the day on which the individual leaves that place, or]

(d) in any other case, on the date when 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 an earlier date for the purposes of paragraph 1(b), (c) or (d).

[F66 (2A) Where an individual has previously received Child Disability Payment for a period and a determination without application has been subsequently made that the same individual is entitled to Child Disability Payment at a higher rate for that period, that individual will be entitled to the difference between the value of entitlement to Child Disability Payment under the subsequent determination and the value of Child Disability Payment to which that individual was previously entitled for that period.]

(3) This regulation does not apply to an individual to whom regulation 15 (entitlement under special rules for terminal illness) applies.

Textual Amendments

F61 Words in reg. 28(1) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 13(a)

F62 Words in reg. 28(1)(a) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 13(b)

F63 Words in reg. 28(1)(b) omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 13(c)(i)

F64 Reg. 28(1)(b)(i)(ii) substituted for reg. 28(1)(b)(i)-(iii) (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 13(c)(ii)

F65 Reg. 28(1)(ca) inserted (29.8.2022) by The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (S.S.I. 2022/217), regs. 1(1), 18(3)

F66 Reg. 28(2A) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 13(d)

Commencement Information

I28 Reg. 28 in force at 26.7.2021, see reg. 1

When a decrease in level or cessation of entitlement takes effect S

29.—(1) Where, as a result of a determination without an application, the amount of Child Disability Payment payable in respect of an individual is decreased or their entitlement to a component is ceased, the [F67 change takes effect] —

(a) in the case of a decrease pursuant to a determination made under regulation [F68 31(c) or (d)] (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

[F69 (aa) in the case of a determination without application under regulation 31(b), on the date of the individual’s death,]

(b) in the case of a determination without application under [F70 regulation 30 or] 31(a), on the date [F71 on which] —

[F72 (i) where the individual was required to notify a change under section 56 of the 2018 Act, if the individual—

(aa) knowingly fails to notify a change, or

(bb) fails to notify the change as soon as reasonably practicable after it occurred,

the individual should have notified the Scottish Ministers of the change,]

[F73 (ia) where the Scottish Ministers make a determination that the individual is entitled to Adult Disability Payment, on the day that the entitlement to Adult Disability Payment begins in terms of regulation 58 of the ADP Regulations,]

(ii) in any other case, the Scottish Ministers make the determination,

(c) in the case of an earlier determination which was based on official error within the meaning of regulation 32 (determination following official error - underpayments) or on error within the meaning of regulation 33 (determination following error – overpayments), begins on the date when the earlier determination took effect,

(d) in any other case, on the date when 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).

Textual Amendments

F67 Words in reg. 29(1) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 14(a)

F68 Words in reg. 29(1)(a) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 14(b)

F69 Reg. 29(1)(aa) inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(5)(a)

F70 Words in reg. 29(1)(b) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 14(c)(i)

F71 Words in reg. 29(1)(b) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 14(c)(ii)

F72 Reg. 29(1)(b)(i) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 14(c)(iii)

F73 Reg. 29(1)(b)(ia) inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(5)(b)

Commencement Information

I29 Reg. 29 in force at 26.7.2021, see reg. 1

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

Consideration of entitlement after specified period S

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.

Commencement Information

I30 Reg. 30 in force at 26.7.2021, see reg. 1

Determination following change of circumstances etc. S

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, [F74 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 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”)(45),

(ii) a supersession under regulation 6(46) of the 1999 Regulations,

(iii) an appeal under section 12 of the Social Security Act 1998 (“the 1998 Act”)(47),

(iv) a re-consideration under section 13 of the 1998 Act(48), F75 ...

(v) an appeal to the Upper Tribunal under section 14 of the 1998 Act(49),

[F76 (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,]

(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(50) (“the 1998 Order”),

(vii) a supersession under article 11 of the 1998 Order(51),

(viii) an appeal under article 13 of the 1998 Order(52), or

(ix) an appeal to the Commissioner under article 15 of the 1998 Order(53).

Textual Amendments

F74 Words in reg. 31(a) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 15(a)

F75 Word in reg. 31(c)(iv) omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 15(b)(i)

F76 Regs. 31(c)(vi)-(ix) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 15(b)(ii)

Commencement Information

I31 Reg. 31 in force at 26.7.2021, see reg. 1

Determination following official error - underpayments S

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, [F77 and]

(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.

Textual Amendments

F77 Word in reg. 32(2)(a) substituted (9.2.2022) by The Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (S.S.I. 2022/41), regs. 1, 3(10)

Commencement Information

I32 Reg. 32 in force at 26.7.2021, see reg. 1

Determination following error - overpayments S

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.

Commencement Information

I33 Reg. 33 in force at 26.7.2021, see reg. 1

Determination to effect a deduction decision S

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 [F78 Payment] 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).

Textual Amendments

F78 Word in reg. 34(3)(b) inserted (20.11.2023) by The Disability Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/346), regs. 1, 3(6)

Commencement Information

I34 Reg. 34 in force at 26.7.2021, see reg. 1

PART 8 S Movement of individuals between Scotland and the rest of the United Kingdom

Individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland S

35.—(1) Where an individual—

(a) is under 18 years of age,

(b) becomes resident in Scotland,

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

(d) was entitled to Disability Living Allowance immediately before the date of the move,

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

(2) Entitlement to Child Disability Payment under paragraph (1) begins on the day after the day on which [F79 the individual’s entitlement to Disability Living Allowance 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 [F80 or otherwise communicated] to the Scottish Ministers (whether the notification takes place before or after the date of the move).

Textual Amendments

F79 Words in reg. 35(2) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 16(a)

F80 Words in reg. 35(3) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 16(b)

Commencement Information

I35 Reg. 35 in force at 26.7.2021, see reg. 1

Individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom S

36.—(1) Where the Scottish Ministers [F81 become aware] that an individual who is entitled to Child Disability Payment has moved or is to move to become F82 ... resident in another part of the United Kingdom, the individual is to be treated as though the individual meets the condition [F83 under regulation 5(1)(a)] of being ordinarily resident in Scotland for a period of 13 weeks beginning [F84 in accordance with paragraph (4)] .

(2) Subject to Part 5 (effect of time spent in care homes and in legal detention), where the Scottish Ministers [F85 become aware that an individual has moved or is to move to another part of the United Kingdom as] 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 Child Disability Payment is to terminate.

(3) Where before the end of the 13-week period, the Scottish Ministers [F86 become aware] that the individual is no longer to move to become F87 ... resident in another part of the United Kingdom, F88 ... the duty in paragraph (2) does not apply.

[F89 (4) The 13-week period mentioned in paragraph (1) begins—

(a) if the Scottish Ministers become aware that the individual is to become resident in another part of the United Kingdom, on the date the individual ceases to be ordinarily resident in Scotland,

(b) if the Scottish Ministers become aware after the date when the individual becomes resident in another part of the United Kingdom, but before they have been resident there for 13 weeks, on the date the individual notifies the Scottish Ministers of the move, or

(c) in any other case, on the date that the individual ceases to be ordinarily resident in Scotland.]

[F90 (5) On the day after the 13-week period specified in paragraph (4) ends—

(a) entitlement to Child Disability Payment ends, and

(b) regulation 33 (determination following error – overpayments) applies to any Child Disability Payment paid to an individual in relation to a period after the end of that 13-week period.]

Textual Amendments

F81 Words in reg. 36(1) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(a)(i)

F82 Word in reg. 36(1) omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(a)(ii)

F83 Words in reg. 36(1) inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(a)(iii)

F84 Words in reg. 36(1) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(a)(iv)

F85 Words in reg. 36(2) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(b)

F86 Words in reg. 36(3) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(c)(i)

F87 Word in reg. 36(3) omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(c)(ii)

F88 Words in reg. 36(3) omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(c)(iii)

F89 Reg. 36(4) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(d)

F90 Reg. 36(5) substituted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 17(e)

Commencement Information

I36 Reg. 36 in force at 26.7.2021, see reg. 1

PART 9 S Periods in respect of a re-determination request

Periods in respect of a re-determination request S

37.—(1) The period for requesting a re-determination of entitlement to Child Disability Payment under section 41 (right to request re-determination) of the 2018 Act 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 Child 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, F91 ...

(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[F92 , or

(c) in a case where the Scottish Ministers have informed the individual of their decision that the request for a 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].

Textual Amendments

F91 Word in reg. 37(2)(a) omitted (22.11.2021) by virtue of The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 18(a)

F92 Reg. 37(2)(c) and word inserted (22.11.2021) by The Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021 (S.S.I. 2021/416), regs. 1, 18(b)

Commencement Information

I37 Reg. 37 in force at 26.7.2021, see reg. 1

PART 10 S Provision of vehicles

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

38.—(1) Where—

(a) an individual is entitled to the higher rate of the mobility component of Child 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 to the provider 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.

Commencement Information

I38 Reg. 38 in force at 26.7.2021, see reg. 1

Vehicles for persons with disabilities – powers of appointees S

39.—(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 of the 2018 Act (duty to give assistance), 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 38(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 paragraph (1)(b) and (d) whether the agreement was entered into, or the consent given, by the appointee or by any other person.

Commencement Information

I39 Reg. 39 in force at 26.7.2021, see reg. 1

PART 11 S Initial period for applications

Initial period for applications S

40.  Part 2 of the schedule makes provision about the initial period for applications.

Commencement Information

I40 Reg. 40 in force at 26.7.2021, see reg. 1

PART 12 S Transfer to Child Disability Payment

Transfer to Child Disability Payment S

41.  Part 3 of the schedule makes provision about transferring from Disability Living Allowance to Child Disability Payment.

Commencement Information

I41 Reg. 41 in force at 26.7.2021, see reg. 1

PART 13 S Short-term assistance

Entitlement to short-term assistance S

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

Commencement Information

I42 Reg. 42 in force at 26.7.2021, see reg. 1

PART 14 S Consequential amendment

Consequential amendment S

43.  The amendment specified in Part 4 of the schedule has effect.

Commencement Information

I43 Reg. 43 in force at 26.7.2021, see reg. 1

PART 15 S Transitory provision

Transitory provision – initial period for applications S

44.—(1) During the initial period for applications, in addition to meeting the residence and presence conditions in regulation 5, an individual must be resident in one of the local authority areas specified in paragraph 6 of Part 2 of the schedule on the date their application is received by the Scottish Ministers.

(2) In this regulation and in Part 2 of the schedule, “initial period for applications” means the period beginning with 26 July 2021 and ending with 21 November 2021.

Commencement Information

I44 Reg. 44 in force at 26.7.2021, see reg. 1

Exclusion to transitory provision S

45.—(1) An individual who has made a claim for Disability Living Allowance prior to 26 July 2021 which has not yet been decided is not entitled to be paid Child Disability Payment during the initial period for applications.

(2) In paragraph (1) a claim for Disability Living Allowance is decided if it has—

(a) been decided by the Secretary of State under section 8 (decisions by Secretary of State) of the Social Security Act 1998(54),

(b) been withdrawn in accordance with regulation 5(2) of the Social Security (Claims and Payments) Regulations 1987(55), or

(c) otherwise is no longer to be decided by the Secretary of State as mentioned in sub-paragraph (a).

Commencement Information

I45 Reg. 45 in force at 26.7.2021, see reg. 1

SHIRLEY-ANNE SOMERVILLE

A member of the Scottish Government

St Andrew’s House,

Edinburgh