SCHEDULE 1
PART 1Short-term assistance
Entitlement to short-term assistance
1.
(1)
Subject to sub-paragraphs (5) and (6), an individual who is, or was, entitled to Scottish Adult Disability Living Allowance 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of the individual’s entitlement to Scottish Adult Disability Living Allowance (“the earlier determination”) has been superseded by—
(i)
a determination under section 37 (duty to make determination) of the 2018 Act, or
(ii)
if the earlier determination is a—
(aa)
transfer determination under paragraph 7 of schedule 1 (determination without application of entitlement to Scottish Adult Disability Living Allowance),
(bb)
determination without application of an individual’s entitlement to Scottish Adult Disability Living Allowance under paragraph 12 of schedule 1 (reinstatement of entitlement to Scottish Adult Disability Living Allowance within a year),
(cc)
determination without application of an individual’s entitlement to Scottish Adult Disability Living Allowance under paragraph 13 of schedule 1 (request for Scottish Adult Disability Living Allowance when an award of Disability Living Allowance has ended),
(dd)
determination without application of an individual’s entitlement to Scottish Adult Disability Living Allowance under regulation 47 (individuals to whom Disability Living Allowance is paid before moving to Scotland),
a determination under section 43 (duty to re-determine) or section 49 (First-tier Tribunal’s power to determine entitlement) 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the earlier determination being superseded as mentioned in sub-paragraph (1)(a), or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 Scottish Adult Disability Living Allowance 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 Scottish Adult Disability Living Allowance, or
(iv)
is entitled to less Scottish Adult Disability Living Allowance than they were under the earlier determination,
(c)
the individual’s entitlement to Scottish Adult Disability Living Allowance is under review within the meaning of—
(i)
paragraph 1(2) of schedule 10 of the 2018 Act, or
(ii)
sub-paragraph (2), and
(d)
the individual—
(i)
continues to meet the conditions as to residence and presence set out in Part 4 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 48 (individuals in respect of whom Scottish Adult Disability Living Allowance is paid at the time of moving to another part of the United Kingdom).
(2)
An individual’s entitlement to Scottish Adult Disability Living Allowance is under review in terms of sub-paragraph (1)(c)(ii) if—
(a)
(b)
the First-tier Tribunal for Scotland decide not to uphold a determination of an individual’s entitlement to Scottish Adult Disability Living Allowance in an appeal under section 46 of the 2018 Act and the First-tier Tribunal for Scotland are to make a determination of the individual’s entitlement to Scottish Adult Disability Living Allowance under section 49 of the 2018 Act.
(3)
Where—
(a)
an individual’s entitlement to Scottish Adult Disability Living Allowance is set aside after a review in terms of sub-paragraph (2)(a), and
(b)
the individual had previously been awarded short-term assistance on the basis that their entitlement to Scottish Adult Disability Living Allowance 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.
(4)
Where—
(a)
the First-tier Tribunal for Scotland set aside a decision by the Scottish Ministers not to accept a request for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance under the determination mentioned in sub-paragraph (1)(a)(i), and
(b)
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 determination referred to in sub-paragraph (1)(a)(i) was not under review,
the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.
(5)
An individual is not entitled to short-term assistance where the individual is no longer entitled to Scottish Adult Disability Living Allowance as a result of a subsequent determination made under regulation 43(b) (determination following change of circumstances etc.).
(6)
An individual to whom regulation 22(2) (effect of admission to a care home on ongoing entitlement to Scottish Adult Disability Living Allowance), regulation 23(2) (effect of admission to hospital on ongoing entitlement to Scottish Adult Disability Living Allowance), regulation 25(3) (effect of legal detention on ongoing entitlement to Scottish Adult Disability Living Allowance), or regulation 27(4) or (6) (entitlement beginning while in alternative accommodation) applies is not entitled to short-term assistance in respect of Scottish Adult Disability Living Allowance for which the value is to be £0 under those regulations.
(7)
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 of the individual’s entitlement to Scottish Adult Disability Living Allowance for the period to which the determination mentioned in sub-paragraph (1)(a)(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 a determination of the individual’s entitlement to Scottish Adult Disability Living Allowance 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, 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 Scottish Adult Disability Living Allowance for the period to which the determination mentioned in sub-paragraph (1)(a)(i) relates, on the day that decision is set aside by the First-tier Tribunal for Scotland,
(d)
where a request is made under section 48(1)(b) of the 2018 Act (deadline for appealing) for permission to appeal a determination of the individual’s entitlement to Scottish Adult Disability Living Allowance 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, on the day that request is made, or
(e)
where a decision of the First-tier Tribunal for Scotland under section 49 of the 2018 Act, in relation to a determination of the individual’s entitlement to Scottish Adult Disability Living Allowance 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 2014 Act (review of decisions) and the First-tier Tribunal for Scotland are to make a decision about the individual’s entitlement to Scottish Adult Disability Living Allowance under section 49 of the 2018 Act, on the day that the decision is set aside.
(8)
Regulation 49 (periods in respect of a re-determination request) applies to short-term assistance in the same way as it applies to Scottish Adult Disability Living Allowance.
(9)
In this Part of the schedule “the earlier determination” has the meaning given in sub-paragraph (1)(a).
Value and form
2.
(1)
The value of short-term assistance payable for any period is equal to V1-V2 where—
(a)
V1 is the value of the Scottish Adult Disability Living Allowance 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 Scottish Adult Disability Living Allowance 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 Scottish Adult Disability Living Allowance.
(2)
The form in which the short-term assistance is to be given is to be the same as the form in which Scottish Adult Disability Living Allowance 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 50(1) (payment of mobility component to authorised provided 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 50 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 39 (form of payment - giving Scottish Adult Disability Living Allowance by way of deduction), 44 (determination following official error – underpayments), 45 (determination following error – overpayments) and 46 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Scottish Adult Disability Living Allowance.
End of entitlement
3.
(1)
When an individual’s entitlement to short-term assistance is to end under paragraph (2), the Scottish Ministers are to make a determination without application.
(2)
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),
(b)
a re-determination of an individual’s entitlement to Scottish Adult Disability Living Allowance 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 determination under section 49 of the 2018 Act (First-tier Tribunal’s power to determine entitlement) in relation to the individual’s entitlement to Scottish Adult Disability Living Allowance for the period to which the determination mentioned in paragraph 1(1)(a)(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates,
(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 the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance for the period to which the determination mentioned in paragraph 1(1)(a)(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates, or
(e)
where the individual withdraws their application to bring an appeal against the determination of the individual’s entitlement to Scottish Adult Disability Living Allowance for the period to which the determination mentioned in paragraph 1(1)(a)(i) or the earlier determination mentioned in paragraph 1(1)(a)(ii) relates, on that day.
Reduction of Scottish Adult Disability Living Allowance where short-term assistance has been paid
4.
Where an individual has received short-term assistance for a period and a determination is subsequently made that the individual is entitled to Scottish Adult Disability Living Allowance for the same period, any payment of Scottish Adult Disability Living Allowance to be made as a result of the subsequent determination for that period—
(a)
where the individual is to be paid Scottish Adult Disability Living Allowance at the same rate as or a lower rate than any short-term assistance and any Scottish Adult Disability Living Allowance already paid to that individual for that period, is to be reduced to £0, and
(b)
in any other case, is to be reduced by any short-term assistance and any Scottish Adult Disability Living Allowance already paid to that individual for that period.
PART 2Transfer from Disability Living Allowance to Scottish Adult Disability Living Allowance
Relevant individuals
5.
In this Part, a “relevant individual” is an individual who—
(a)
has an award of Disability Living Allowance and appears to the Scottish Ministers to be likely to be eligible for Scottish Adult Disability Living Allowance, and
(b)
is at least 18 years of age.
Notice of intention to transfer to Scottish Adult Disability Living Allowance
6.
(1)
The Scottish Ministers are to notify each relevant individual of their intention to transfer that individual’s entitlement to disability assistance from an entitlement to Disability Living Allowance to an entitlement to Scottish Adult Disability Living Allowance.
(2)
Notice under sub-paragraph (1) must—
(a)
be given in a way that leaves the relevant individual with a record of the information which they can show to, or otherwise share with, others,
(b)
inform the relevant individual that—
(i)
they have been identified as a relevant individual for the purposes of transfer to Scottish Adult Disability Living Allowance,
(ii)
the Scottish Ministers will make a determination, without receiving an application, to transfer the individual’s entitlement to Disability Living Allowance to an entitlement to Scottish Adult Disability Living Allowance within a period to be specified within the notice (the individual will be notified when the determination is made and informed about their award and start date of Scottish Adult Disability Living Allowance), and
(iii)
the individual’s award of Disability Living Allowance will cease—
(aa)
immediately before the award of Scottish Adult Disability Living Allowance begins, or
(bb)
where a transferring individual was paid Disability Living Allowance one week in advance and 3 weekly in arrears, the date one week after the date their entitlement to Scottish Adult Disability Living Allowance begins.
(3)
Where notice under sub-paragraph (1) is given—
(a)
to a transferring individual who, before a transfer determination is made under paragraph 7(1), ceases to be ordinarily resident in Scotland, or
(b)
in error where the individual is neither—
(i)
ordinarily resident in Scotland, nor
(ii)
an individual who is habitually resident in an EEA state, Gibraltar or Switzerland and has a genuine and sufficient link to Scotland,
the duty on the Scottish Ministers in paragraph 7(1) does not apply.
(4)
Where sub-paragraph (3) applies in respect of an individual and a determination under paragraph 7(1) has not been made, the Scottish Ministers are to notify the individual that the duty on the Scottish Ministers in paragraph 7(1) does not apply.
Determination without application of entitlement to Scottish Adult Disability Living Allowance
7.
(1)
The Scottish Ministers are to make a determination in respect of a transferring individual, without receiving an application, of that individual’s entitlement to Scottish Adult Disability Living Allowance (the “transfer determination”).
(2)
Entitlement to Scottish Adult Disability Living Allowance under the transfer determination begins on the date specified in the notice of determination given to the transferring individual in accordance with section 40 of the 2018 Act.
(3)
Subject to sub-paragraph (4), the transfer determination is to be made on the basis of—
(a)
such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the transferring individual’s entitlement to Disability Living Allowance, and
(b)
any other information available to the Scottish Ministers that appears to them to be relevant.
(4)
The transfer determination does not need to be made on the basis of the information mentioned in sub-paragraph (3)(b) where—
(a)
the individual—
(i)
before receiving a notice under paragraph 6(1), reported a change of circumstances to the Secretary of State for Work and Pensions, which had not been taken into account for the individual’s entitlement to Disability Living Allowance, or
(ii)
has, since receiving a notice under paragraph 6(1), notified a change of circumstances to the Scottish Ministers, and
(b)
following the transfer determination, a further determination is to be made under paragraph 10 (review determinations).
(5)
Subject to paragraph 9 (exceptions to paragraph 7(5)), a transfer determination must be made on the basis that the transferring individual is entitled to the components and rates of Scottish Adult Disability Living Allowance that are equivalent to those components and rates of Disability Living Allowance to which the individual was entitled immediately before the date of transfer.
(6)
A transfer determination—
(a)
may be made on the assumption that whatever can be discerned about the transferring individual’s circumstances from the information mentioned in sub-paragraph (3) remains accurate on the date on which the determination is made,
(b)
notwithstanding the generality of head (a), is to be made on the assumption that the conditions relating to the eligibility criteria set out in regulations 10 to 17 (residence and presence) are satisfied in the individual’s case, and
(c)
must be made not later than the end of the period specified within the notice under paragraph 6(1) unless the Scottish Ministers have—
(i)
good reason to extend that period,
(ii)
agreed the period for extension with the Secretary of State for Work and Pensions, and
(iii)
notified the transferring individual of the extension and the reason for it.
Effect of transfer determination on entitlement to Disability Living Allowance
8.
(1)
Where a transfer determination is made that the transferring individual is entitled to Scottish Adult Disability Living Allowance, the transferring individual’s entitlement to Disability Living Allowance will cease—
(a)
on the date their entitlement to Scottish Adult Disability Living Allowance begins,
(b)
where a transferring individual was paid Disability Living Allowance one week in advance and 3 weekly in arrears, on the date one week after the date their entitlement to Scottish Adult Disability Living Allowance begins, or
(c)
where paragraph 9 (exceptions to paragraph 7(5)) applies, on the date their entitlement to Scottish Adult Disability Living Allowance would have begun had paragraph 9(4) not applied to set an earlier date of entitlement.
(2)
Where sub-paragraph (1)(b) applies—
(a)
(b)
regulation 5(c) of these Regulations (entitlement to other benefits),
do not apply in respect of the first week of entitlement to Scottish Adult Disability Living Allowance.
Exceptions to paragraph 7(5)
9.
(1)
Where the Scottish Ministers have—
(a)
(b)
not received information from the Secretary of State for Work and Pensions that the transferring individual is terminally ill in terms of section 72(5) of the Social Security Contributions and Benefits Act 1992, but become aware, before they have made a transfer determination, that the transferring individual has a terminal illness in terms of regulation 20(8) (entitlement under special rules for terminal illness),
except where sub-paragraph (2) applies, the transfer determination must be made on the basis that the transferring individual satisfies the conditions for the highest rate of the care component and the higher rate of the mobility component of Scottish Adult Disability Living Allowance.
(2)
Where the transferring individual had reached the relevant age when they became terminally ill in terms of section 72(5) of the Social Security Contributions and Benefits Act 1992 or in terms of regulation 20(8), the restrictions in sub-paragraph (3) apply in relation to the transfer determination.
(3)
The restrictions referred to in sub-paragraph (2) are—
(a)
where the transferring individual was entitled to the mobility component of Disability Living Allowance at the lower rate immediately prior to the date of transfer, then regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers—
(i)
may only make an award for the lower rate of that component of Scottish Adult Disability Living Allowance, and
(ii)
may only make such an award where the entitlement results from substantially the same condition or conditions in respect of which the mobility component of Disability Living Allowance was given,
(b)
where the transferring individual was entitled to the mobility component of Disability Living Allowance at the higher rate immediately before the date of transfer, the Scottish Ministers may only award the higher rate of that component of Scottish Adult Disability Living Allowance where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Disability Living Allowance was given, and
(c)
where the transferring individual was not entitled to the mobility component of Disability Living Allowance immediately before the date of transfer, the Scottish Ministers may not award that component of Scottish Adult Disability Living Allowance at either the lower or higher rate.
(4)
Where sub-paragraphs (1) or (2) apply—
(a)
paragraphs (5) to (7) of regulation 20 do not apply, and
(b)
the transferring individual’s entitlement to Scottish Adult Disability Living Allowance will commence on whichever is the later of—
(i)
the date that these Regulations come into force,
(ii)
the day that the clinical judgement was made in accordance with regulation 20(8), or
(iii)
the day one year before the transfer determination was made.
(5)
Where sub-paragraph (1)(a) applies, paragraphs (8), (9) and (10) of regulation 20 are to be treated as satisfied for the transferring individual.
(6)
Where sub-paragraph (4)(b) applies—
(a)
(b)
regulation 5(c) of these Regulations (entitlement to other benefits),
do not apply in respect of the period between commencement of entitlement to Scottish Adult Disability Living Allowance and cessation of entitlement to Disability Living Allowance.
Review determinations
10.
(1)
The Scottish Ministers must make a determination of a transferring individual’s entitlement to Scottish Adult Disability Living Allowance (“the review determination”), without receiving an application, where—
(a)
the transferring individual—
(i)
before the transfer determination is made, reported a change of circumstances to the Secretary of State for Work and Pensions, which had not been taken into account for the transferring individual’s entitlement to Disability Living Allowance, or
(ii)
(b)
the Scottish Ministers have made a transfer determination, and
(c)
the transferring individual has not requested a re-determination under section 41 (right to request re-determination) of the 2018 Act, or appealed under section 46 (right to appeal to First-tier Tribunal against determination) of the 2018 Act, in relation to the transfer determination.
(2)
The review determination is to be made as soon as reasonably practicable after the transfer determination.
(3)
The change of circumstance referred to in sub-paragraph (1)(a)(i)—
(a)
is not to be regarded as relating to the transferring individual’s entitlement to Disability Living Allowance, and
(b)
is to be taken into consideration by the Scottish Ministers in making the review determination.
(4)
Where a transferring individual’s entitlement to Scottish Adult Disability Living Allowance is determined in the review determination to be at a higher rate than the transfer determination, entitlement will begin on—
(a)
if the transferring individual notifies a change of circumstances—
(i)
within one month of the change occurring, the date when the transferring individual first satisfies the requirements for a higher rate of the care component or mobility component,
(ii)
within more than one month but not more than 13 months of the change occurring, the date when the transferring individual first satisfies the requirements for a higher rate of the care component or mobility component, but only if the Scottish Ministers consider that the transferring individual had good reason for not notifying the change within one month,
(iii)
in any other case, the date of notification of the change, or
(b)
if sub-paragraph (1)(a)(ii) applies, the later of—
(i)
the date on which the transferring individual first satisfies the condition in regulation 8(5)(c), or
(ii)
the date one year before the date on which the review determination is made,
(c)
if the date under sub-paragraph (4)(a) or (b) is before these Regulations come into force, the date that these Regulations come into force.
(5)
Where a transferring individual has previously received Scottish Adult Disability Living Allowance or Disability Living Allowance for a period and a determination without application has subsequently been made that the individual is entitled to Scottish Adult Disability Living Allowance at a higher rate for that period, the individual will be entitled to the difference between the value of entitlement to Scottish Adult Disability Living Allowance under the subsequent determination and the value of Scottish Adult Disability Living Allowance or Disability Living Allowance to which that individual was previously entitled for that period.
(6)
Where the transferring individual has received Scottish Adult Disability Living Allowance and Disability Living Allowance for the same period in the circumstances described in paragraph 8(1)(b) (effect of transfer determination on entitlement to Disability Living Allowance) of schedule 1, any Disability Living Allowance payable to the transferring individual for that period is to be disregarded for the purposes of sub-paragraph (5).
(7)
Where a transferring individual’s entitlement to Scottish Adult Disability Living Allowance is determined in the review determination to be at a lower rate or the same rate as awarded by the transfer determination, entitlement under the review determination will take effect on the day that the Scottish Ministers make the review determination.
(8)
Where the change of circumstance notified under sub-paragraph (1)(a)(i) occurred after the transferring individual had reached the relevant age, the restrictions in sub-paragraph (9) will apply in relation to the review determination.
(9)
The restrictions referred to in sub-paragraph (8) are—
(a)
where the transfer determination awarded the mobility component at the lower rate then, regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers—
(i)
may only make an award for the lower rate of that component, and
(ii)
may only make such an award where the entitlement results from substantially the same condition or conditions in respect of which the mobility component in the transfer determination was given,
(b)
where the transfer determination awarded the mobility component at the higher rate, the Scottish Ministers may only award the higher rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Scottish Adult Disability Living Allowance was given,
(c)
where the transfer determination did not include an award of the mobility component, the Scottish Ministers may not award that component at either the lower or higher rate,
(d)
the Scottish Ministers may only award the lowest rate of the care component if the transfer determination awarded the care component at the lowest rate.
(10)
Where—
(a)
sub-paragraph (1)(a)(ii) apples to the individual,
(b)
the individual would otherwise be entitled to the mobility component at the higher rate only on the basis that they meet the condition at regulation 8(5)(c), and
(c)
the individual has reached the relevant age,
the Scottish Ministers may only award the higher rate if the individual met the condition at regulation 8(5)(c) immediately before reaching the relevant age.
Appointees
11.
(1)
(2)
As soon as reasonably practicable after the date of transfer, the Scottish Ministers must—
(a)
consider whether the conditions for making an appointment in respect of the individual are met (having regard to section 85B(3) of the 2018 Act),
(b)
consider whether to terminate the appointment that is treated as having been made by virtue of sub-paragraph (1) and terminate it if they consider it appropriate, and
(c)
if they have terminated an appointment in pursuance of head (b), appoint under section 85B of the 2018 Act another person to act on the individual’s behalf if they consider it appropriate to do so.
(3)
The duty in sub-paragraph (2) does not apply where the Scottish Ministers have already appointed the person mentioned in sub-paragraph (1) to act on behalf of that individual under section 85B of the 2018 Act.
PART 3Reinstatement of entitlement within a year
Reinstatement of entitlement to Scottish Adult Disability Living Allowance within a year
12.
(1)
The Scottish Ministers must make a determination of an individual’s entitlement to Scottish Adult Disability Living Allowance, without receiving an application, where—
(a)
an individual makes a request for a determination of their entitlement to Scottish Adult Disability Living Allowance, and
(b)
the individual had a previous award of Scottish Adult Disability Living Allowance which ended not more than one year before the date on which the request was made.
(2)
A request under sub-paragraph (1)(a) must be—
(a)
made to the Scottish Ministers in such form, and
(b)
accompanied by such evidence,
as the Scottish Ministers require.
(3)
In making a determination required by sub-paragraph (1) the Scottish Ministers are to use—
(a)
the information provided in the request for entitlement to be reinstated,
(b)
any information they have obtained in connection with the individual’s entitlement to Scottish Adult Disability Living Allowance, and
(c)
any other information available to them that is relevant to their consideration of the individual’s entitlement to Scottish Adult Disability Living Allowance.
(4)
The Scottish Ministers may only make an award of a component of Scottish Adult Disability Living Allowance under this paragraph if the entitlement results from substantially the same condition or conditions in respect of which the relevant component of Scottish Adult Disability Living Allowance was previously given.
(5)
The duty on the Scottish Ministers to make a determination without application mentioned in sub-paragraph (1) does not apply where—
(a)
the Scottish Ministers are considering a request for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance,
(b)
the individual has made an appeal to the First-tier Tribunal for Scotland or Upper Tribunal against the Scottish Ministers’ determination of the individual’s entitlement to Scottish Adult Disability Living Allowance ending the individual’s entitlement and the appeal has not yet been determined,
(c)
during the period between the end of the award mentioned in sub-paragraph (1)(a) and the date of determination required by sub-paragraph (2)—
(i)
(ii)
(6)
In relation to a determination under sub-paragraph (1), the period referred to within, as the case may be—
(a)
regulation 6(2)(a) (care component criterion: lowest, middle or highest rate care component),
(b)
regulation 6(3),
(c)
regulation 7(4)(a) (mobility requirements: lower rate mobility component), or
(d)
regulation 8(11)(a) (mobility requirements: higher rate mobility component),
is to be taken to be the period, of the relevant number of weeks referred to in that particular regulation, immediately preceding the day on which the individual’s previous award of Scottish Adult Disability Living Allowance ended.
(7)
Where a determination is to be made under this paragraph in relation to someone who was under the relevant age when their award referred to in sub-paragraph (1)(b) ended, the individual is to be treated as under the relevant age for the purposes of regulation 6.
(8)
The restrictions in sub-paragraph (9) apply in relation to the determination referred to in sub-paragraph (1) where the individual has reached the relevant age before the start of the period referred to in sub-paragraph (1)(b).
(9)
The restrictions referred to in sub-paragraph (8) are—
(a)
where the previous award referred to in sub-paragraph (1)(b) contains a mobility component award for the lower rate then, regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers may only make an award for the lower rate of that component,
(b)
where the previous award referred to in sub-paragraph (1)(b) does not include an award of the mobility component, the Scottish Ministers may not award that component at either the higher or lower rate.
(10)
Where an award is made under this paragraph, entitlement will begin on the date the individual made the request under sub-paragraph (1)(a).
Request for Scottish Adult Disability Living Allowance when an award of Disability Living Allowance has ended
13.
(1)
The Scottish Ministers must make a determination of an individual’s entitlement to Scottish Adult Disability Living Allowance, without receiving an application, where—
(a)
an individual makes a request for a determination of their entitlement to Scottish Adult Disability Living Allowance,
(b)
the individual has a previous award of Disability Living Allowance—
(i)
which ended not more than one year before the date on which the request was made, and
(ii)
that is not the subject of a challenge raised under—
(aa)
(bb)
regulation 6 (supersession of decisions) of the 1999 Regulations,
(cc)
(dd)
section 13 (redetermination etc. of appeals by tribunal) of the 1998 Act,
(ee)
section 14 (appeal from First-tier Tribunal to Upper Tribunal) of the 1998 Act,
(ff)
(gg)
article 11 (decisions superseding earlier decisions) of the 1998 Order,
(hh)
article 13 (appeal to appeal tribunal) of the 1998 Order, or
(ii)
article 15 (appeal from tribunal to commissioner) of the 1998 Order.
(2)
A request under sub-paragraph (1)(a) must be—
(a)
made to the Scottish Ministers in such form, and
(b)
accompanied by such evidence,
as the Scottish Ministers require.
(3)
In making a determination required by sub-paragraph (1) the Scottish Ministers are to use—
(a)
the information provided in the request for entitlement,
(b)
such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the individual’s entitlement to Disability Living Allowance, and
(c)
any other information available to them that is relevant to their consideration of the individual’s entitlement to Scottish Adult Disability Living Allowance.
(4)
The Scottish Ministers may only make an award of a component of Scottish Adult Disability Living Allowance under this regulation if the entitlement results from substantially the same condition or conditions in respect of which the relevant component of Disability Living Allowance was previously given.
(5)
The duty on the Scottish Ministers to make a determination without application mentioned in sub-paragraph (1) does not apply where—
(a)
the Scottish Ministers are considering a request for a re-determination of the individual’s entitlement to Scottish Adult Disability Living Allowance,
(b)
the individual has made an appeal to the First-tier Tribunal for Scotland or Upper Tribunal against the Scottish Ministers’ determination of the individual’s entitlement to Scottish Adult Disability Living Allowance ending the individual’s entitlement and the appeal has not yet been determined,
(c)
(d)
during the period between the end of the award mentioned in sub-paragraph (1)(b) and the date of determination required by sub-paragraph (1)—
(i)
(ii)
(iii)
the Scottish Ministers have determined the individual’s entitlement to Scottish Adult Disability Living Allowance under Part 2 of schedule 1 of these Regulations.
(6)
In relation to a determination under sub-paragraph (1), the period referred to within—
(a)
regulation 6(2)(a) (care component criterion: lowest, middle or highest rate care component),
(b)
regulation 6(3),
(c)
regulation 7(4)(a) (mobility requirements: lower rate mobility component),
(d)
regulation (8)(11)(a) (mobility requirements: higher rate mobility component),
is to be taken to be the period, of the relevant number of weeks referred to in that particular regulation, immediately preceding the day on which the individual’s previous award of Disability Living Allowance ended.
(7)
Where a determination is to be made under this paragraph in relation to someone who was under the relevant age when their award referred to in sub-paragraph (1)(b) ended, the individual is to be treated as under the relevant age for the purposes of regulation 6.
(8)
The restrictions in sub-paragraph (9) apply in relation to the determination referred to in sub-paragraph (1) where the individual has reached the relevant age before the start of the period referred to in sub-paragraph (1)(b)(i).
(9)
The restrictions referred to in sub-paragraph 8 are—
(a)
where the previous award referred to in sub-paragraph (1)(b) contains a mobility component award for the lower rate then, regardless of whether the award would otherwise have been for the higher rate, the Scottish Ministers may only make an award for the lower rate of that component,
(b)
where the previous award referred to in sub-paragraph (1)(b) does not include an award of the mobility component, the Scottish Ministers may not award that component at either the higher or lower rate.
(10)
Where an award is made under this paragraph, entitlement will begin on the date the individual made the request under sub-paragraph (1)(a).