This chapter looks at the effects of legal detention on entitlement to, and payment of, Child Disability Payment (CDP). The main effect is that individuals in receipt of the care component of CDP will be paid £nil for the care component after 28 days in legal detention (CDP regs, reg. 19(1) and (2)). The individual remains entitled to the CDP care component.

This is because the cost of meeting the care needs of individuals are met from public funds while they are in legal detention. For the purposes of determining payment of CDP, the last day in legal detention for individuals is the day before the day they are released.

Ongoing entitlement to, and payment of, the mobility component of CDP is unaffected when an individual is in legal detention.

This chapter relates to the unscheduled reviews chapter which explains both:

• when an unscheduled review should take place
• what a determination without application is.

Meaning of legal detention in legal custody

To determine entitlement to payment of the care component of CDP, legal detention refers to any detention in legal custody, in Scotland or in the rest of the UK

within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995 (CDP regs, reg. 2).

A child or young person in Scotland can be legally detained if they are either:

• detained in legal custody awaiting trial
• sentenced to imprisonment because of court proceedings.

This list is not exhaustive.

Detention in legal custody typically happens before or during legal proceedings. An individual can be taken into legal custody when:

• they are charged with a serious offence such as murder, rape or terrorism
• an individual has a history of offending
• there is the risk of the individual posing a danger to witnesses.

This list is not exhaustive.

A custodial sentence may be given to an individual who is convicted of an offence.

For the purposes of determining entitlement to CDP, legal detention does not include the following two situations:

• the individual is serving a custodial sentence and has been transferred from legal detention to hospital or hospice to receive treatment for a mental health condition
• the individual has been sentenced to legal detention, but first must go to hospital to receive treatment for a mental health condition before serving the rest of the custodial sentence.

In these situations, the individual should not be treated as being in legal detention. Payment of the care component of CDP should resume during any period spent in hospital or hospice (CDP amendment regs, reg. 11). To ensure this happens the case manager will need to make a determination without application (CDP regs, reg. 31(a)).

Case managers should seek advice if they are unsure whether an individual is in ‘legal detention’ for the purpose of determining entitlement to payment of the care component of CDP.