Click to edit SEO parameters
Leaving legal detention
The date that an individual leaves legal detention is not counted as a day in legal detention (ADP regs, reg. 31(2)(b))
The 28 days of continued entitlement to payment of ADP can comprise of more than one period. If an individual leaves legal detention but enters again in one year or less, those 2 periods can be linked. This means if an individual is in legal detention for at least 28 days, is released and convicted again within a year, their entitlement to payment would stop on the first day of their second period in legal detention (ADP regs, reg. 30(4)).
Release on license
Release on license means an individual leaves prison after completing a specified part of their original sentence. All cases of release on license come with conditions and the individual can be returned to prison if they breach these conditions.
An individual released on license, including temporary license, is no longer in legal detention. Upon release, payment of the ADP components can begin again if the individual continues to meet the eligibility criteria.
Early release schemes include:
- parole is where the prisoner is released on the recommendation of the Parole Board for Scotland after completing a specified part of their original sentence
- Home Detention Curfew (HDC) is commonly referred to as "tagging". A prisoner is released on license before their release date. They must wear an electronic tag as part of their release conditions and remain at home during agreed periods of the day.
- Supervised Release Order (SRO) is a period of supervision after a sentence of between 12 months and 4 years, where the court determines that there may be a risk to the public
Example: an individual is subject to a Home Detention Curfew
Karen is 19 and entitled to the standard rate of mobility component for ADP. She is taken into legal detention and is no longer entitled to payment of the mobility component after 28 days. She is released 6 months later but must wear an electronic tag and follow a strict curfew, as part of the conditions of her release.
Karen can start to receive payment of the mobility component of ADP now she is no longer in legal detention. This is because she is not imprisoned or held in legal custody. Instead, she is being monitored by an electronic tag to ensure she is at home when she should be.
Release on temporary license
In certain circumstances, individuals in legal detention may be allowed short periods of release on temporary license. The purpose of this is either:
- for compassionate reasons - such as terminal illness, bereavement or to support their dependents
- to help the individual improve their chances of resettlement after release.
Individuals released on temporary license are not imprisoned or detained in legal custody. This means they can be paid for both components of ADP. Payment of ADP components should resume during any period not spent in legal detention. To ensure this happens, the case manager will need to make a determination without application (ADP regs, reg. 48(a)). In calculating an individual’s entitlement in these circumstances, the days on which the individual begins the absence from and returns to legal detention are not to be counted as days in legal detention (ADP regs, reg. 31(3)).
Example: an individual who is entitled to the daily living component is released from legal detention on temporary licence
Connor is 18 and entitled to the standard rate of the daily living component of ADP. He is legally detained on 1 April and after 28 days, is no longer entitled to payments of the daily living component. He is released from legal detention on temporary licence for 50 days on 1 June.
Connor can start receiving payment of the daily living component of ADP starting from the day he leaves legal detention, because he notified Social Security Scotland within one month of the change of circumstances. Connor re- enters legal detention on 22 July for another 40 days.
Connor is no longer paid for the daily living component of ADP. Connor is released from legal detention permanently on 30 August. He can once again start receiving payment of the daily living component of ADP, because he notified Social Security Scotland within one month of the change of circumstances.
Individuals are expected to notify Social Security Scotland of any change in circumstance within one month of the change first occurring. In some circumstances, an individual may have good reason for not notifying within a month. More information on this can be found in the change of circumstances chapter.
Bail
Individuals can be released from legal custody on bail before or during legal proceedings. Individuals who are released on bail can be paid for both components of ADP because they are not in legal detention. Individuals who break the conditions of their bail and are legally detained will have:
- payments for both components of ADP stopped if they are over 18, after 28 days
- payment of the daily living component stopped if they are 16 or 17, after 28 days
Example: an individual who is entitled to the daily living component of ADP is released from legal detention on bail
Lizzie is 18 and entitled to the daily living component at the standard rate. She is legally detained on 8 March and awaiting legal proceedings. Lizzie is released on bail after 12 days on 20 March. She can still be paid for the daily living component of ADP because she was not in legal detention for more than 28 days.
Example 2: An individual who is entitled to the daily living component of ADP breaks their bail conditions
Max is 20 and entitled to the standard rate of the daily living component of ADP. He committed an offence and has been released on bail,,pending further legal proceedings. Max can still be paid for the daily living component because he is not in legal detention.
Max breaks his bail conditions and is legally detained on 22 August, while he awaits his trial on 1 October. Max’s payment for the daily living component is stopped after 28 days in custody because he was legally detained.
Authorised absence
An authorised absence is a period when a prisoner is not held in legal detention. An example of this is if a prisoner is released on temporary license to assist with resettlement.
Individuals released because of an authorised absence can receive payments of the daily living component of ADP because they are not in legal detention. Individuals who are over 18, and as a result not entitled to payment for the mobility component while legally detained, can also receive the mobility payment again in these circumstances.
An individual’s entitled to both components of ADP must be considered on each occasion they enter or leave legal detention because of authorised absences. This is because payment of both components can be made for a period not spent in legal detention. Payment will not start until the individual has left legal detention and a determination without application has been made.
A prisoner over 18 is not treated as though they are in legal detention on any day on which they are an in-patient in a hospital or in a hospice. If they have already been in prison for 28 days or more, the period in hospital or a hospice is a continuation of the time period spent in prison. However, if they have moved to a hospice and are terminally ill, their payment would recommence, and they would be entitled to payment of the enhanced rate of both components of ADP (ADP regs, reg. 31(5)).
If a prisoner is aged 16 or 17, they will be entitled to payment of the daily living component of ADP again for the period of time they spend in hospital. Entitlement to payment of the mobility component will be unaffected and continue. For more information on this point, refer to the section on hospital admissions for ADP in the DMG chapter, ‘Effect of time spent in care homes, hospitals and residential establishments’.
Example: an individual who is entitled to the daily living component of ADP is released from legal detention because of an authorised absence
Jamie is 17 and entitled to daily living component of ADP at the standard rate. He entered legal detention on 30 April for 32 days. His payment of the daily living component is stopped after 28 days.
Jamie is released and leaves legal detention on 1 June because of an authorised absence. He is entitled to receive payment for the daily living component of ADP from this date because he notifies Social Security Scotland within a month of being released.
Jamie returns to legal detention on 26 June for another 32 days His payment of the daily living component of ADP is stopped as soon as he returns to legal detention. This is because these 2 periods of legal detention are linked as there is less than one year between them.
Jamie is released on 3 August, having served the remainder of his sentence. He promptly notifies Social Security Scotland about his release and is once again entitled to receive payments of the daily living component of ADP from 3 August onwards.
Pardons
Prisoners who are pardoned leave legal detention. Individuals who are pardoned are entitled to receive payments of both components of ADP when they leave legal detention, if they still meet the eligibility criteria. Individuals in these cases cannot receive a backdated payment of ADP for the time they were in legal detention. This is because the cost of meeting the care needs of individuals are met from public funds while they are in legal detention.
Appeals
An individual can appeal a conviction by challenging the decision of the court when in legal detention. If the appeal is successful, the individual both:
- leaves legal detention
- can receive payment of both components of ADP once they have left legal detention following a determination without application.
Individuals in these cases cannot receive a backdated payment of ADP for the time they were in legal detention.