Contents
- Part 1 Introductory and interpretation
- Part 2 Transfer to Adult Disability Payment
- 3 Notice of intention to transfer to Adult Disability Payment
- 4 Transfer determination without application of entitlement to Adult Disability Payment
- 5 Entitlement to Adult Disability Payment
- 6 Amount and form and time of payment of Adult Disability Payment
- 7 Effect of determination on entitlement to Disability Living Allowance
- 8 Periods in respect of a re-determination request in relation to a transfer determination
- 9 Special rules for terminal illness - exception to regulation 4(5)
- 10 Modification of the ADP Regulations: transferring individuals
- 11 Appointees
- Part 3 Review of entitlement to Adult Disability Payment
- Part 4 Miscellaneous amendments
Part 1 · Introductory and interpretation
1Citation, commencement and extent#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
2Interpretation#
In Parts 1, 2 and 3 of these Regulations—• “the 2018 Act” means the Social Security (Scotland) Act 2018,• “the ADP Regulations” means the Disability Assistance for Working Age People (Scotland) Regulations 2022,• “Adult Disability Payment” means disability assistance for adults given in accordance with the ADP Regulations,• “date of transfer” means the date when a transferring individual’s entitlement to Adult Disability Payment begins by virtue of a transfer determination,• “daily living component of Adult Disability Payment” has the same meaning as “daily living component” in regulation 2 of the ADP Regulations,• “Disability Living Allowance” means a disability living allowance under section 71 of the Social Security Contributions and Benefits Act 1992,• “mobility component of Adult Disability Payment” has the same meaning as “mobility component” in regulation 2 of the ADP Regulations,• “notice of intention to transfer” means the notice required by regulation 3,• “relevant individual” means an individual who—(a) has an award of Disability Living Allowance who appears to the Scottish Ministers to be likely to be eligible for Adult Disability Payment—(a) who has—(aa) notified a change of circumstances in terms of regulation 32 of the Social Security (Claims and Payments) Regulations 1987, or(bb) made a claim for personal independence payment in terms of regulation 4 of the Personal Independence Payment (Transitional Provisions) Regulations 2013,(b) whose award is due to be renewed, or(c) who has requested to be transferred to Adult Disability Payment after 29 August 2022,(b) was aged 16 years old or older but under 65 years old on 8 April 2013,(c) is—(a) ordinarily resident in Scotland, or(b) someone to whom regulation 15(3) (residence and presence conditions), regulation 17(1) (serving members of Her Majesty’s forces, civil servants and their family members) or regulation 20(2) of the ADP Regulations (persons residing outside the United Kingdom to whom a relevant EU Regulation applies) applies,• “review determination” means the determination required by regulation 12(1),• “transfer determination” means the determination required by regulation 4(1),• “transferred individual” means an individual whose entitlement to Adult Disability Payment is given under a transfer determination, and• “transferring individual” means an individual on whom the Scottish Ministers have served a notice of intention to transfer in accordance with regulation 3.
Part 2 · Transfer to Adult Disability Payment
3Notice of intention to transfer to Adult Disability Payment#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)a child accepted by the deceased as a member of the family.
(aa)regulation 27(5);
(bb)regulation 9 of the Maintenance Calculations and Special Cases Regulations (care provided in part by an authority); or
(iv)of LGPS employers;
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a)
(b)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(4)
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4Transfer determination without application of entitlement to Adult Disability Payment#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
(a)
(b)
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
(a)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(b)
(7)A claim made in accordance with paragraph (2) shall be treated, for the purposes of these Regulations, as if made on the date of the deceased’s death.
(a)
(b)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)a child accepted by the deceased as a member of the family.
5Entitlement to Adult Disability Payment#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(c)where—
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
(d)in the case of a person to whom regulation 8(4) refers, not later than 28 days after the day the applicant attains the age of 60 or, as the case may be, pensionable age.
(e)in a case where the qualifying benefit which ceased—
at the time the work condition is satisfied; and
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6Amount and form and time of payment of Adult Disability Payment#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)a child accepted by the deceased as a member of the family.
7Effect of determination on entitlement to Disability Living Allowance#
(1)
(a)
(b)
(c)where—
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
8Periods in respect of a re-determination request in relation to a transfer determination#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(c)where—
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
9Special rules for terminal illness - exception to regulation 4(5)#
(1)
(a)
(b)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)a child accepted by the deceased as a member of the family.
10Modification of the ADP Regulations: transferring individuals#
The ADP Regulations apply to a transferring individual on and after the date of transfer with the following modifications—
(a)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(b)
(i)a parent with care cares for one child only, and
(ii)after paragraph (3) there were inserted—“3A An individual is entitled to the daily living component at the transitional rate where regulation 5(2)(a) of the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 applies to the individual.”
(iii)after paragraph (4)(c) there were inserted—“d “the transitional rate” in relation to the daily living component means the weekly rate of the daily living component set in regulation 6(1) of the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022”
(c)where—
(i)a parent with care cares for one child only, and
(ii)that child dies,
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
(d)in the case of a person to whom regulation 8(4) refers, not later than 28 days after the day the applicant attains the age of 60 or, as the case may be, pensionable age.
(e)in a case where the qualifying benefit which ceased—
at the time the work condition is satisfied; and
(f)
(g)any other period which he is entitled to count as such under Schedule C5.
(h)“transfer arrangement” means a contract or other arrangement made with a transferor LGPS employer for the provision of, or making available of, services or assets, for the purposes of or in connection with the exercise of a function of that transferor LGPS employer; and
(i)“transferor LGPS employer” means an authority or body which is a LGPS employer.
11Appointees#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(c)where—
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part 3 · Review of entitlement to Adult Disability Payment
12Review determination without application of entitlement to Adult Disability Payment#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
(a)
(b)
(c)where—
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
13Time of payment#
Where an award of Adult Disability Payment is made under a review determination, the Scottish Ministers are to make—
(a)
(b)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)a child accepted by the deceased as a member of the family.
14Change of circumstances#
Where the Scottish Ministers are making a review determination of an individual’s entitlement to Adult Disability Payment, where the individual, before a 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 individual’s entitlement to Disability Living Allowance, the change of circumstances—
(a)
(b)
15When an increase in level of entitlement takes effect#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16When a decrease in level or cessation of entitlement takes effect#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
Part 4 · Miscellaneous amendments
17Amendment of the Personal Independence Payment (Transitional Provisions) Regulations 2013#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18Amendment of the Disability Assistance for Children and Young People (Scotland) Regulations 2021#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(3)In regulation 28 (when an increase in level of entitlement takes effect), after paragraph (1)(c) insert—“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, oriii 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”
(4)In Part 1 of the schedule (short-term assistance), for paragraph 4 substitute—“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.”
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a)
(b)
(c)after sub-paragraph (b) insert—“, andc regulation 25 (time of payment) is to be read as if for paragraph (b) there were substituted—b any subsequent payment—i 4 weekly in arrears,ii weekly in advance, oriii where the Scottish Ministers consider that it would be unjust not to do so, at such intervals as may be specified in the notice ofdetermination.”
19Amendment of the Disability Assistance for Working Age People (Scotland) Regulations 2022#
(1)
(2)Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.
(a)
(b)
(c)after the definition of “week” there shall be added—“• “widowed parent’s allowance” means an allowance referred to in section 39A of the Contributions and Benefits Act.”
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
(a)
(b)
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a)
(b)at the end of paragraph (3) (c) omit “.” and insert—“; andd any particular person of whom it is aware, who is likely to be affected by, or has an interest in, the regulation 22 notice.”
(6)
(a)
(b)
(c)in paragraph (3), after sub-paragraph (b), insert—“c where the original award did not include an award of the mobility component, the Scottish Ministers may not award that component at either the standard or enhanced rate.”
(7)For regulation 26(3) (entitlement under special rules for terminal illness), substitute—“3 An individual to whom this regulation applies is to be treated as though—a they have obtained the maximum points for each activity listed in column 1 of the tables in Part 2 and Part 3 of schedule 1, andb they have satisfied regulations 5(3) and 6(3).”
(8)
(a)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(b)
(c)where—
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)a child accepted by the deceased as a member of the family.
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
(d)after paragraph (1)(c), insert—“ca in the case of a determination made in accordance with regulation 48(a), where the period that an individual has been—i resident in a care home for the purpose of regulation 27,ii an in-patient in hospital or similar institution for the purpose of regulation 28,iii in legal detention for the purpose of regulation 30, oriv resident in a care home, an in-patient in a hospital or similar institution, or in legal detention for the purposes of regulation 32,has come to an end, on the day on which the individual leaves the place, or”
(9)Where a person making a surrender under regulation D14—
(a)
(i)a parent with care cares for one child only, and
(ii)that child dies,
(b)
references in paragraph (8) to the retirement pension are references to the retirement pension which would become payable if he were to cease to hold his employment on the day on which the surrender takes effect.
(10)In regulation 48 (determination following change of circumstances etc.), after paragraph (d) insert—“e 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 Adult Disability Payment in accordance with regulation 4 (determination without application of entitlement to Adult Disability Payment) of the Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022, as a result of a decision made pursuant to—i revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”),ii a supersession under regulation 6 of the 1999 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 (“the 1998 Order”),vii a supersession under article 11 of the 1998 Order,viii an appeal under article 13 of the 1998 Order, orix an appeal to the Commissioner under article 15 of the 1998 Order.”
(11)In regulation 58(3) (applications by individuals entitled to Child Disability Payment), substitute—“3 Where an individual receives a determination that they are entitled to a rate of Adult Disability Payment which is higher than the rate of Child Disability Payment they were entitled to immediately before their entitlement to Adult Disability Payment begins, paragraph (4) applies.4 The individual is to receive a payment equal to the value of Adult Disability Payment they would have received for the period specified in paragraph (5), reduced by the amount of Child Disability Payment that they were entitled to for the same period.5 The period specified for the purposes of paragraph (4) is the period between the date—a their entitlement to Adult Disability Payment would have begun if this regulation did not apply to the individual, in terms of regulation 35(4) to (6), andb their entitlement to Adult Disability Payment begins in terms of paragraph (2).”
(12)In Part 1 of schedule 2 (short-term assistance), for paragraph 4 (reduction of payment of adult disability payment where short-term assistance is paid), substitute—“4 Where an individual has received short-term assistance for a period and a determination is subsequently made that the individual is entitled to Adult Disability Payment for the same period, any payment of Adult Disability Payment to be made as a result of the subsequent determination for that period—a where the individual is to be paid Adult Disability Payment at the same rate as or a lower rate than any short-term assistance and any Adult Disability Payment already paid to that individual for that period, is to be reduced to £0, andb in any other case, is to be reduced by any short-term assistance and any Adult Disability Payment already paid to that individual for that period.”
(13)Any question which may arise between the Committee and any other party to an admission agreement relating to the construction of the agreement or to the rights and obligations under that agreement shall be referred in writing for determination to the Department.
(a)
(b)for paragraph 10 (effect of determination on entitlement to Personal Independence Payment) substitute—“10 1 Where a determination is made under paragraph 9(1) that the transferring individual is entitled to Adult Disability Payment, the transferring individual’s entitlement to Personal Independence Payment will cease on—a the date their entitlement to Adult Disability Payment begins,b where a transferring individual was paid Personal Independence Payment one week in advance and 3 weekly in arrears, the date one week after the date their entitlement to Adult Disability Payment begins, orc where paragraph 11 applies, the date their entitlement to Adult Disability Payment would have begun had paragraph 11(2) not applied to set an earlier date of entitlement.2 Where paragraph (1)(b) applies—a section 77(4) (personal independence payment) of the Welfare Reform Act 2012, andb regulation 4(e) of these Regulations (entitlement to other benefits),do not apply in respect of the first week of entitlement to Adult Disability Payment.”
(c)where—
(i)a parent with care cares for one child only, and
(ii)after sub-paragraph (1), insert—“1A Where the transferring individual reached the relevant age as defined in regulation 22(2) when they became terminally ill under section 82 of the Welfare Reform Act 2012 or in terms of regulation 26(7), the restrictions in sub-paragraph (1B) apply in relation to the determination under paragraph 9(1).1B The restrictions referred to in sub-paragraph (1A) are—a where the transferring individual was entitled to the mobility component of Personal Independence Payment at the standard rate immediately before the date of transfer, then regardless of whether the award would otherwise have been for the enhanced rate, the Scottish Ministers—i may only make an award for the standard rate of that component, andii 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 Personal Independence payment was given,b where the transferring individual was entitled to the mobility component of Personal Independence Payment at the enhanced rate immediately before the date of transfer, the Scottish Ministers may only award that rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component of Personal Independence Payment was given,c where the transferring individual was not entitled to the mobility component of Personal Independence Payment immediately before the date of transfer, the Scottish Ministers may not award that component at either the standard or enhanced rate.”
(iii)a child accepted by the deceased as a member of the family.
in the period not exceeding 12 months which begins on the date the child died and throughout which he was entitled to a relevant benefit; or
(d)in the case of a person to whom regulation 8(4) refers, not later than 28 days after the day the applicant attains the age of 60 or, as the case may be, pensionable age.
(i)a parent with care cares for one child only, and
(ii)that child dies,
(iii)after sub-paragraph (6) insert—“7 Where the change of circumstance notified under sub-paragraph (1) occurred after the person had reached the relevant age as defined in regulation 22(2), the restrictions in sub-paragraph (8) will apply in relation to the determination under sub-paragraph (1).8 The restrictions referred to in sub-paragraph (7) are—a where the transfer determination awarded the mobility component at the standard rate then, regardless of whether the award would have otherwise been for the enhanced rate, the Scottish Ministers—i may only make an award for the standard rate of that component, andii may only make such an award where 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 enhanced rate, the Scottish Ministers may only award that rate of that component where entitlement results from substantially the same condition or conditions in respect of which the mobility component in the transfer determination 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 standard or enhanced rate.”
(e)in paragraph 14 (modification of these regulations: transferring individuals), after sub-paragraph (b), insert—“ba in regulation 36, for sub-paragraph (b), substitute—b any subsequent payment—i 4 weekly in arrears,ii weekly in advance, oriii where the Scottish Ministers consider that it would be unjust not to do so, at such intervals as may be specified in the notice of determination.”
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