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

Made: 24th March 2021

Coming into force: 26th July 2021

In accordance with section 97(2) of that Act, the Scottish Ministers have informed the Scottish Commission on Social Security of their proposals, notified the Scottish Parliament that they have done so and made their proposals publicly available by such means as they consider appropriate.

PART 1 — Introductory and interpretation

Citation and commencement

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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.

Interpretation - general

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In 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 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[^f00002],

• “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[^f00003] 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—section 71 of the Social Security Contributions and Benefits Act 1992[^f00004], orsection 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00005],

• “EEA State” means—any member state of the European Union, orany other state that is party to the agreement on the European Economic Area signed at Oporto on 2 May 1992[^f00006], together with the Protocol adjusting that Agreement signed at Brussels on 17 March 1993[^f00007], 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 health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978[^f00008]) in Scotland,a health service hospital (within the meaning of section 275(1) of the National Health Service Act 2006[^f00009]) in England,a hospital in Wales vested in—an NHS trust,a Local Health Board, orthe Welsh Ministers,for the purpose of functions under the National Health Service (Wales) Act 2006[^f00010], a hospital or similar institution under the Health and Personal Social Services (Northern Ireland) Order 1972 or the health and Personal Services (Northern Ireland) Order 1991, a hospital maintained or administered by the Defence Council[^f00011], oran institution similar to a hospital mentioned in any of the preceding paragraphs,

• legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995, section 59A[^f00013] of that Act, orsection 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003[^f00014], orsection 45A, 47 or 50(3) of the Mental Health Act 1983[^f00015],

• “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—Part 4 of the Welfare Reform Act 2012[^f00016], orarticle 82 of the Welfare Reform (Northern Ireland) Order 2015[^f00017],

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

• “relevant EU Regulation” means—one of the following Regulations—Council Regulation (EC) No 1408/71 of 14 June 1971[^f00018] on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community,Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29April 2004[^f00019] on the coordination of social security systems, or 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, orthe Social Security (Gibraltar) Order 2024,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,

• “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— section 485 of the Education Act 1996[^f00004] or section 14 of the Education Act 2002[^f00005] (which relate to grants and financial assistance for education), sections 49[^f00025] 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),section 65[^f00026] of the Further and Higher Education Act 1992, sections 39 or 40 of theHigher Education and Research Act 2017[^f00027] or sections 4 or 11 of the Further and Higher Education (Scotland) Act 2005[^f00028] (which relate respectively to the funding of further education and the administration of funds), orsection 22 of theTeaching and Higher Education Act 1998[^f00029],

• “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.

PART 2 — Disability assistance for children and young people

Overview

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• (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).

PART 3 — Eligibility

Age criteria

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• (1) Subject to paragraph (1A), (1B) , (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.

• (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.

• (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) 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 (other than where regulation 35 or 35A applies), 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.

Residence and presence conditions

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• (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,

• (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[^f00031], 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.

• (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), (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), (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[^f00032] in connection with continental shelf operations.

• (9) Where an individual—

• (a) does not meet either or both of the presence conditions set out in paragraph (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 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.

• (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).

• (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); ...

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

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

• (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 ...

• (f) 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 Ukraine immediately before 1 January 2022, and

• (ii) left Ukraine in connection with the Russian invasion which took place on 24 February 2022, 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—