Paragraph 10 Review determinations
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—
the transferring individual—
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
did not meet the condition in regulation 12(1A) (entitlement to the mobility component) of the Social Security (Disability Living Allowance) Regulations 1991f1, but the Scottish Ministers become aware that immediately before the date of transfer, the individual would have met the condition in regulation 8(5)(c) (mobility requirements: higher rate mobility component),
the Scottish Ministers have made a transfer determination, and
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.
The review determination is to be made as soon as reasonably practicable after the transfer determination.
The change of circumstance referred to in sub-paragraph (1)(a)(i)—
is not to be regarded as relating to the transferring individual’s entitlement to Disability Living Allowance, and
is to be taken into consideration by the Scottish Ministers in making the review determination.
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—
if the transferring individual notifies a change of circumstances—
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,
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,
in any other case, the date of notification of the change, or
if sub-paragraph (1)(a)(ii) applies, the later of—
the date on which the transferring individual first satisfies the condition in regulation 8(5)(c), or
the date one year before the date on which the review determination is made,
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.
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.
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).
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.
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.
The restrictions referred to in sub-paragraph (8) are—
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—
may only make an award for the lower rate of that component, and
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,
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,
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,
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.
Where—
sub-paragraph (1)(a)(ii) apples to the individual,
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
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.
Annotations
Footnotes
- f1
-
S.I. 1991/2890. Regulation 12(1A) was inserted by S.I. 2010/1651.