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

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Regulation 42

PART 1SShort-term assistance

Entitlement to short-term assistanceS

1.—[F1(1) Subject to sub-paragraph (2) or (3), an individual who is, or was, entitled to Child Disability Payment under a determination made on the basis that the individual has ongoing entitlement is entitled to short-term assistance where—

(a)that determination of the individual’s entitlement to Child Disability Payment (“the earlier determination”) has been superseded by—

(i)a determination under section 37 (duty to make a determination) of the 2018 Act, or

(ii)if the earlier determination is a determination—

(aa)of an application for Child Disability Payment,

(bb)without application of an individual’s entitlement to Child Disability Payment under paragraph 9 of this schedule (determination without application of entitlement to Child Disability Payment),

(cc)without application of an individual’s entitlement to Child Disability Payment under regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland),

a determination under section 43 (Scottish Ministers’ duty to re-determine) or section 49 (First-tier Tribunal’s power to determine entitlement on appeal) of the 2018 Act

(b)as a result of—

(i)the earlier determination being superseded as mentioned in sub-paragraph (1)(a), or

(ii)a later determination under section 43 or section 49 of the 2018 Act in relation to the individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i), or the earlier determination mentioned in sub-paragraph (1)(a)(ii), relates,

the individual—

(iii)is no longer entitled to Child Disability Payment, or

(iv)is entitled to less Child Disability Payment than they were under the earlier determination,

(c)the individual’s entitlement to Child Disability Payment is under review within the meaning of—

(i)paragraph 1(2) of schedule 10 of the 2018 Act, or

(ii)sub-paragraph (1A), and

(d)the individual—

(i)continues to meet the conditions as to residence and presence set out in regulations 5 to 9A, or

(ii)has transferred to become resident in another part of the United Kingdom, and the matter under review is the determination of entitlement for the 13-week period beginning in accordance with regulation 36 (individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom).]

[F2(1A) An individual’s entitlement to Child Disability Payment is under review in terms of sub-paragraph [F3(1)(c)(ii)] if—

(a)a decision of the First-Tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to the [F4individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates], is set aside after a review under section 43(2) of the Tribunals (Scotland) Act 2014 (review of decisions), and

(b)the First-Tier Tribunal for Scotland decides not to uphold a determination of an individual’s entitlement to Child Disability Payment in an appeal under section 46 of the 2018 Act and the First-Tier Tribunal for Scotland is to make a determination of the individual’s entitlement to Child Disability Payment under section 49 of the 2018 Act.

(1B) Where [F5a determination of] an individual’s entitlement to Child Disability Payment is set aside after a review in terms of sub-paragraph (1A)(a) [F6and the individual had previously been awarded short-term assistance on the basis that their entitlement to Child Disability Payment was under review by the First-tier Tribunal prior to it making the decision that has been set aside,] the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.]

[F7(1C) Where the First-tier Tribunal for Scotland set aside a decision by the Scottish Ministers not to accept a request for a re-determination of [F8the individuals’ entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i) relates], and the Scottish Ministers had previously determined, pursuant to an application made by the individual, that the individual was not entitled to short-term assistance on the basis that the [F9individual’s entitlement to Child Disability Payment for the period to which the determination mentioned in sub-paragraph (1)(a)(i) relates] was not under review, the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.]

[F10(2) An individual is not entitled to short-term assistance where the individual is no longer entitled to Child Disability Payment as a result of a subsequent determination made under—

(a)regulation 31(a) (determination following change of circumstances etc.) where the change of circumstances is that the individual—

(i)no longer meets the requirements of regulation 4 (age criteria), or

(ii)is entitled to Adult Disability Payment under a determination—

(aa)made pursuant to an application made by the individual in accordance with regulation 58 (applications by individuals entitled to Child Disability Payment), or

(bb)made without receiving an application in accordance with regulation 59 (determination without application – terminal illness),

of the Disability Assistance for Working Age People (Scotland) Regulations 2022, or

(b)regulation 31(b).]

(3) An individual to whom regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) [F11, 18(2)] (effect of legal detention on ongoing entitlement to care component) [F12, or 20(2) (entitlement to care component beginning while in alternative accommodation)] applies is not entitled to short-term assistance in respect of the care component of Child Disability Payment.

(4) Where the Scottish Ministers have made a determination under section 37 of the 2018 Act (duty to make determination) that an individual is entitled to short-term assistance, entitlement to short-term assistance begins—

(a)where a request is made under section 41 of the 2018 Act (right to request re-determination) for a re-determination F13... of the individual’s entitlement to Child Disability Payment [F14for the period to which the determination] mentioned in paragraph 1(1)(a) [F15(i) relates], on the day that request is made,

(b)where a notice of appeal is submitted under section 47 of the 2018 Act (initiating an appeal) against [F16a determination] of the individual’s entitlement to Child Disability Payment [F14for the period to which the determination] mentioned in paragraph 1(1)(a) [F17(i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii)], on the day that request is made,

(c)where a decision of the Scottish Ministers is made not to accept a request for a re-determination of the individual’s entitlement to Child Disability Payment [F14for the period to which the determination] mentioned in paragraph 1(1)(a) [F17(i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates] [F18(i) relates], on the day that decision is set aside by the First-tier Tribunal for Scotland, F19...

(d)[F20where] a request is made under section 48(1)(b) of the 2018 Act (deadline for appealing) for permission to appeal [F21a determination] of the individual’s entitlement to Child Disability Payment [F14for the period to which the determination] mentioned in paragraph 1(1)(a) [F22(i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates], on the day that request is made

[F23, or

(e)where a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to [F24a] determination of the individual’s entitlement to Child Disability Payment [F14for the period to which the determination] mentioned in paragraph 1(1)(a) [F25(i) or the earlier determination mentioned in sub-paragraph (1)(a)(ii) relates], is set aside after review under section 43(2) of the Tribunals (Scotland) Act 2014 (review of decisions) and the First-tier Tribunal for Scotland is to [F24make a decision about] the individual’s entitlement to Child Disability Payment under section 49 of the 2018 Act, on the day that the decision is set aside.]

[F26(5) Regulation 37 (periods in respect of a re-determination request) applies to short-term assistance in the same way as it applies to Child Disability Payment.]

[F27(6) In this part of the schedule “the earlier determination” has the meaning given in sub-paragraph (1)(a).]

Textual Amendments

Commencement Information

I1Sch. para. 1 in force at 26.7.2021, see reg. 1

Value and formS

2.—[F28(1) The value of short-term assistance payable for any period is equal to V1-V2 where—

(a)V1 is the value of the Child Disability Payment the individual would have been given in respect of the period under the earlier determination had the earlier determination not been superseded, and

(b)V2 is the value of the Child Disability Payment that the individual is to be given in respect of the period under what is, at the time the individual becomes eligible for short-term assistance in respect of the period, the most recent determination of the individual’s entitlement to Child Disability Payment.]

(2) The form in which the short term assistance is to be given is to be the same as the form in which Child Disability Payment was given under the earlier determination.

(3) Where the mobility component was being paid by the Scottish Ministers to an authorised provider of vehicles for persons with disabilities in accordance with regulation 38(1) (payment of mobility component to authorised provider of vehicles for individuals with disabilities) on the day before an individual’s entitlement to the mobility component ended as a result of a subsequent determination mentioned in paragraph 1(1)(a)—

(a)the amount of short-term assistance that is payable in respect of the mobility component may be paid by the Scottish Ministers to the authorised provider, and

(b)paragraphs (1) and (2) of regulation 38 apply to the payment of short-term assistance as they had applied to the payment of mobility component prior to the individual’s entitlement ending.

(4) Regulations [F2925 (time of payment),] 27 (form of payment - giving Child Disability Payment by way of deduction), 32 (determination following official error – underpayments), 33 (determination following error – overpayments) and 34 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Child Disability Payment.

Textual Amendments

Commencement Information

I2Sch. para. 2 in force at 26.7.2021, see reg. 1

End of entitlementS

3.—(1) Entitlement to short-term assistance ends on the day—

(a)a determination of an individual’s entitlement to short-term assistance is cancelled under section 26(2) of the 2018 Act (individual’s right to stop receiving assistance),

[F30(b)a re-determination of an individual’s entitlement to Child Disability Payment is made by the Scottish Ministers under section 43 of the 2018 Act (duty to re-determine),]

(c)the First-tier Tribunal for Scotland makes a [F31determination] under section 49 of the 2018 Act (First-tier Tribunal’s power to determine entitlement) in relation to F32... the individual’s entitlement to Child Disability Payment [F33for the period to which the determination] mentioned in paragraph 1(1)(a) [F34(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates], F35...

(d)that the First-tier Tribunal for Scotland makes a determination to refuse permission under section 48(1)(b) of the 2018 Act (deadline for appealing) to bring an appeal against [F36a] determination of the individual’s entitlement to Child Disability Payment [F37for the period to which the determination] mentioned in paragraph 1(1)(a) [F38(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates] [F39, or

(e)where the individual withdraws their application to bring an appeal against [F40a] determination of the individual’s entitlement to Child Disability Payment [F41or the period to which the determination] mentioned in paragraph 1(1)(a) [F42(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates], on that day.]

[F43(2) Where an individual’s entitlement to short-term assistance is to end under sub-paragraph (1), the Scottish Ministers are to make a determination without application.]

Textual Amendments

Commencement Information

I3Sch. para. 3 in force at 26.7.2021, see reg. 1

[F44Reduction of payment of Child Disability Payment where short-term assistance is paidS

4.  Where an individual has received short-term assistance for a period and a determination is subsequently made that the individual is entitled to Child Disability Payment for the same period, any payment of Child Disability Payment to be made as a result of the subsequent determination for that period—

(a)where the individual is to be paid Child Disability Payment at the same rate as or a lower rate than any short-term assistance and any Child Disability Payment already paid to that individual for that period, is to be reduced to £0,

(b)in any other case, is to be reduced by any short-term assistance and any Child Disability Payment already paid to that individual for that period.]

Textual Amendments

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