Date Legislation considered: 15 July 2022
Date Legislation in Force: 29 August 2022
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment/ Social Security
What does the legislation do?
The policy note accompanying The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (“these Regulations”) provides a brief background to the purpose of these regulations. It states:
“This instrument sets out provisions for transferring the awards of individuals in Scotland and currently in receipt of Disability Living Allowance, who were over 16 and under 65 and in receipt of Disability Living Allowance at the introduction of Personal Independence Payment on 08 April 2013, to Social Security Scotland and onto Adult Disability Payment.”
The Social Security (Scotland) Act 2018 established powers for the Scottish Ministers to provide different forms of assistance to individuals. The Disability Assistance for Working Age People (Scotland) Regulations 2022 (“the ADP Regulations”) (see IMA report) set out eligibility criteria for Adult Disability Payment and provided for the transfer of individuals who live in Scotland and receive Personal Independence Payments to instead receive ADP.
These Regulations provide for the transfer of individuals who live in Scotland and receive UK Disability Living Allowance to instead receive Adult Disability Payment (subject to meeting certain conditions). The regulations set out the process for that transfer.
Scottish Ministers will identify individuals who will have their awards transferred from Working Age Disability Living Allowance to Adult Disability Payment using the residential address held by the Department for Work and Pensions in the individual’s Disability Living Allowance record. An individual will be assumed to meet the residence and presence conditions for Adult Disability Payment at the point of transfer if they have a Scottish postcode. If Scottish Ministers determine after transfer that an individual should not have transferred because they fail to meet the residence and presence conditions, a further determination without application will be made that will nullify the case transfer Adult Disability Payment determination and the resulting entitlement. This will also nullify the termination of the Disability Living Allowance award.
However, regulation 3(3) caters for where a notice of intention to transfer has been given in error where an individual is neither ordinarily resident in Scotland nor habitually resident in an EEA state, Gibraltar or Switzerland and has a “genuine and sufficient link to Scotland”. The meaning of a “sufficient link to Scotland” is explained at regulation 3(5) by reference to the definitions contained at regulations 15(3) and 20(2) of the ADP Regulations.
Regulation 15(3) creates residence and presence conditions (in Scotland and the Common Travel Area) that could cause difficulties for some EU and EEA citizens. However, the exceptions established in regulation 20(2) allows for citizens protected by social security coordination rights contained in the Withdrawal Agreement and EEA EFTA Separation Agreement (“the Agreements”) to not have to reside in Scotland if they have previously been residing in Switzerland, an EEA State or Gibraltar, in order to have a sufficient link to Scotland. EEA State includes any members state of the European Union also.
Regulation 4 sets out how the transfer determination will be carried out. The determination will be made on the basis that the residence and presence conditions of eligibility to Adult Disability Payment (as set out in regulations 15-21 of the ADP Regulations) are met by the individual subject of the transfer.
Regulation 19 of these Regulations amends regulation 2 of the ADP Regulations with the deletion of the definition “EU withdrawal agreement” from the definitions section on the basis that the definition is unnecessary. This does not affect any matters within the remit of the IMA.
The IMA raised concerns that the eligibility rules contained in the ADP Regulations do not make it clear that applicants to the EU Settlement Scheme after 30 June 2021, including joining family members of EU and EEA EFTA citizens whose application has not been processed, are eligible for ADP.
In the case of transfer determinations under these Regulations, it is clear that the determination must be made on the basis of an assumption that an individual meets the residence and presence conditions in regulations 15 to 21 of the ADP Regulations (which do not expressly provide for late applicants and joining family members).
Therefore while the assumption would mean that anyone in receipt of Disability Living Allowance would not be subject of further checks of their meeting of residence and presence conditions, there is a small possibility that the assumption could be rebutted if information is provided regarding their eligibility (see regulation 4(4)). The position of late applicants and joining family members could therefore be relevant in some transfer determinations.
This raises a question as to whether these Regulations fully implement Part 2 of the Agreements, in particular Articles 18(1)(b) and 18(2) and (3) of the Withdrawal Agreement and Articles 17(1)(b) and 17(2) and (3) of the EEA EFTA Separation Agreement.
In correspondence between the IMA and officials at the Scottish Government, officials have stated that as late applicants and joining family members are not treated as subject to immigration control in terms of section 115(9) of the Immigration Act, while their EUSS application is processed and after a successful application they would satisfy the requirements of regulation 15(1)(c) of the ADP Regulations, and that “as a result this would not present any barrier to their transfer determination progressing”.
Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.
 The initial notice can be made in accordance with Regulation 3 of The Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 but Regulation 3 (3) redresses the issue of a wrongful notice should the recipient fail the residence or presence condition.
 ‘Ordinarily resident’ has not been defined in the legislation but has a generally accepted meaning which has been provided by the courts. It broadly means a person’s abode in a particular place or country which has been adopted voluntarily for a settled purpose, whether short or long in duration. A settled purpose could include education, business, employment, health or family.
 ‘Habitually resident is not defined in the legislation but the courts have provided some guidance as to its meaning. In very basic terms it requires two components to be met: (1) the person must have resided in the place for an appreciable period of time (which could be a period of one month), and (2) the person must have a settled intention to reside in the place.
 It should also be noted that joining family members are not treated as subject to immigration control in terms of section 115(9) during their first three months after arrival in the UK.