Regulation 20 Entitlement under special rules for terminal illness
An individual who has a terminal illness is to be treated as satisfying the conditions for the highest rate of the care component in regulation 6(4)(a).
An individual who has a terminal illness—
before reaching the relevant age is to be treated as satisfying the conditions for the higher rate of the mobility component in regulation 8,
after reaching the relevant age is to be treated as satisfying the conditions for—
the higher rate of the mobility component in regulation 8 only if—
the individual was entitled to that rate immediately before they reached the relevant age, and
the entitlement results from substantially the same condition or conditions in respect of which the mobility component was previously given, or
the lower rate of the mobility component in regulation 7 only if—
the individual was entitled to that rate immediately before they reached the relevant age, and
the entitlement results from substantially the same condition or conditions in respect of which the mobility component was previously given.
Paragraphs (1) and (2) apply regardless of the period of time for which the individual has had the terminal illness.
An individual who had reached the relevant age when they became terminally ill is to be treated as satisfying the conditions referred to in regulations 7(4)(c) and 8(11)(c).
Subject to paragraphs (6) and (7), the individual’s entitlement to the rates referred to in paragraphs (1) and (2) begin on the date on which—
the Scottish Ministers become aware of the individual’s terminal illness (whether as a result of the individual notifying a change in circumstances or otherwise), where the individual was previously awarded, and has an ongoing entitlement to, Scottish Adult Disability Living Allowance, on the basis of a determination that the individual was entitled to the care component or mobility component or both in relation to a condition other than terminal illness, or
the clinical judgement was made in accordance with paragraphs (8) and (9) (“the judgement”),
whichever is the earlier.
Where the judgement mentioned in paragraph (5)(b) is dated not more than 26 weeks earlier than the date in paragraph (5)(a) (“the applicable date”), the Scottish Ministers have the power, when making their determination, to specify that an individual’s entitlement begins—
up to a maximum of 26 weeks prior to the applicable date, and
on or after the day these Regulations come into force.
Where the judgement mentioned in paragraph (5)(b)—
is dated more than 26 weeks earlier than the applicable date, and
an appropriate healthcare professional confirms that the judgement is still accurate by making a judgement in accordance with paragraphs (8) and (9),
an individual’s entitlement can only begin—
up to a maximum of 26 weeks prior to the applicable date, and
on or after the day these Regulations come into force.
For the purposes of these Regulations, an individual is to be regarded as having a terminal illness for the purpose of determining entitlement to Scottish Adult Disability Living Allowance if it is the clinical judgement of an appropriate healthcare professional that the individual has a progressive disease that can reasonably be expected to cause the individual’s death.
Subject to paragraph (10), an appropriate healthcare professional exercising the judgement described in paragraph (8) must have regard to the guidance prepared and made publicly available by the Chief Medical Officer of the Scottish Administration in accordance with paragraph 1(3) of schedule 5 of the 2018 Actf1.
Where regulation 15 (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies to the individual, an appropriate healthcare professional mentioned in paragraph (7)(b) need not have regard to the guidance mentioned in paragraph (9) where it would not be reasonable in the circumstances to insist on the judgement being formed with regard to that guidance.
In this regulation, “an appropriate healthcare professional” means—
a registered medical practitioner or a registered nurse who is—
involved in the diagnosis or care of the individual, and
acting in their professional capacity, or
where regulation 15 applies to the individual, a person who—
has equivalent qualifications to a registered medical practitioner or a registered nurse in an EEA state, Gibraltar or Switzerland,
is a member of the professional body equivalent to the General Medical Council or Nursing and Midwifery Council in that EEA state, Gibraltar or Switzerland, and
meets the requirements of sub-paragraph (a)(i) and (ii).
Where an individual has previously received Scottish Adult Disability Living Allowance or a benefit listed in paragraph (14)(a) for a period and a determination is subsequently made that the individual is entitled to Scottish Adult Disability Living Allowance at a higher rate for that period by virtue of this regulation, 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 the benefit listed in paragraph (14)(a) to which that individual was previously entitled for that period.
Where the 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) of schedule 1, any Disability Living Allowance payable to the transferring individual for that period is to be disregarded for the purposes of paragraph (12).
For the purpose of paragraph (12)—
the benefits are—
Adult Disability Payment
armed forces independence payment,
Attendance Allowance,
Disability Living Allowance,
Personal Independence Payment, or
Pension Age Disability Payment.
regulation 5 (entitlement to other benefits) and section 71(7) (disability living allowance) of the Social Security Contributions and Benefits Act 1992f2 are treated as omitted.
Annotations
Footnotes
- f1
-
Schedule 5 of the 2018 Act was amended by sections 11(2) of the 2020 Act.
- f2
-
1992 c. 4. Section 71 was amended by section 67(1) of the Welfare Reform and Pensions Act 1999 (c. 30), S.I. 2021/804 and S.I. 2022/335.