Regulation 40 When an increase in level of entitlement takes effect

(1)

Where, as a result of a determination without an application, the amount of Scottish Adult Disability Living Allowance payable in respect of an individual is increased or their entitlement to a component is awarded, the change takes effect—

(a)

in the case of an increase pursuant to a determination made under regulation 43(c) or 43(d) (determination following change of circumstance etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual,

(b)

in the case of an award of entitlement to a component or an increase pursuant to a determination made in accordance with regulation 43(a) that affects their eligibility under regulation 6 (care component criterion: lowest, middle or highest rate care component), 7 (mobility requirements: lower rate mobility component) or 8 (mobility requirements: higher rate mobility component), on the date when—

(i)

if as a result of the individual reporting the change—

(aa)

if the individual reports the change within one month of the change occurring, the individual first satisfies the requirements for a higher rate of the care component or mobility component,

(bb)

if the individual reports the change within more than one month but not more than 13 months of the change occurring, the individual first satisfies the requirements for a higher rate of the care component or the mobility component, but only if the Scottish Ministers consider that the individual had good reason for not notifying the change within one month, or

(cc)

in any other case the date the individual reports the change or the date the individual first satisfies the requirements for a higher rate of the care component or mobility component, whichever is later.

(ii)

if as a result of the Scottish Ministers becoming aware that a determination of an individual’s entitlement was made in ignorance of a material fact, on the date when the Scottish Ministers make the determination,

(c)

in the case of an earlier determination which was based on official error within the meaning of regulation 44 (determination following official error – underpayments) or on error within the meaning of regulation 45 (determination following error – overpayments), on the date when the earlier determination took effect,

(d)

in the case of a determination made in accordance with regulation 43(a), where the period that an individual has been—

(i)

resident in a care home for the purpose of regulation 22 (effect of admission to a care home on ongoing entitlement to care component),

(ii)

an in-patient in hospital or similar institution for the purpose of regulation 23 (effect of admission to hospital on ongoing entitlement to Scottish Adult Disability Living Allowance),

(iii)

in legal detention for the purpose of regulation 25 (effect of legal detention on ongoing entitlement to Scottish Adult Disability Living Allowance), or

(iv)

resident in a care home, an in-patient in a hospital or similar institution, or in legal detention for the purposes of regulation 27 (entitlement beginning while in alternative accommodation),

has come to an end, on the day on which the individual leaves the place, or

(e)

in any other case, on the date when the Scottish Ministers make the determination.

(2)

Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set an earlier date for the purposes of paragraph (1)(b), (c), (d) or (e).

(3)

This regulation does not apply to an individual to whom regulation 20 (entitlement under special rules for terminal illness) applies.

(4)

Where an 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.

(5)

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) of schedule 1 (effect of transfer determination on entitlement to Disability Living Allowance), any Disability Living Allowance payable to the transferring individual for that period is to be disregarded for the purposes of paragraph (4).

(6)

Where paragraph (4) applies, for the period between the date when the individual’s entitlement to a higher rate of Scottish Adult Disability Living Allowance begins and the date of the determination under regulations 42 to 46, regulation 5 (entitlement to other benefits) and section 71(7) (disability living allowance) of the Social Security Contributions and Benefits Act 1992^f1, are treated as omitted.

Annotations

Footnotes

f1: 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.