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Legal detention and entitlement to ADP
The mobility component
Individuals in legal detention and aged over 18 are entitled to be paid £nil for the mobility component, after they have been in legal detention for a full calendar 28 days. This 28-day period begins on the day after the date they enter legal detention. Individuals that are 16 or 17 will continue to be entitled to payment of the mobility component while in legal detention (ADP regs, reg. 30(3)(a))
This remains the case for 16- and 17-year olds entitled to the enhanced rate of the mobility component of ADP, who have opted into the Accessible Vehicles and Equipment (AVE) scheme. This means that an individual’s family or carer will continue to have access to the leased vehicle, powered scooter or wheelchair while the individual is in legal detention.
For more information on the AVE scheme please refer to the ADP mobility component chapter and to the Operational Guidance (ADP regs, reg. 55&56)
If an individual turns 18 after having been in legal detention for 28 days, the mobility component ceases to be paid from their 18th birthday and will not recommence until the individual leaves legal detention (ADP regs, reg. 30(3)). However, if an individual turns 18 during the initial 28 days in legal detention, their payment will only reduce to £nil from the day after they have been in legal detention for 28 days.
Entitlement to the mobility component for those over 18 continues while payment stops. This means that individuals will not need to make a new application when they are released from legal detention, and payment of the mobility component will begin again upon release.
When an individual is aged 16 or 17, entitled to the mobility component of Personal Independence Payment and in legal detention on the date they transfer from Personal Independence Payment to ADP, the case manager should complete a determination without application. Entitlement to the mobility component should begin before the date of the determination, but not before 13 June 2022.
If the individual has received payment for the mobility component of Personal Independence Payment for any period after the date their ADP entitlement commences, any amount of ADP should be reduced by the amount the individual has already received for the mobility component of Personal Independence Payment (ADP regs, sch2,part3, para 13).
For more information on this, refer to the case transfer Decision Making Guidance.
The daily living component
Individuals in legal detention are entitled to be paid £nil of the daily living component from the day after they have been in legal detention for a full 28 days, regardless of their age (ADP regs, reg. 30(3)). This 28-day period begins on the day after the date they enter legal detention (ADP regs, reg. 31(2)(a)). Refer to paragraph 30 below for more information on what happens when entitlement to ADP begins while in Legal Detention.
Entitlement to the daily living component continues while payment stops. This means that individuals will not need to make a new application when they are released from legal detention, and payment of the daily living component of ADP will begin again upon release.
Example 1: an individual enters legal detention after legal proceedings
Callum is 17 and entitled to the standard rate of the daily living and mobility components of ADP. He is charged with a crime but is not taken into legal custody before or during legal proceedings. This means he is still entitled to be paid the daily living component and mobility components of ADP.
Callum is sentenced to prison for 6 months. He is no longer entitled to be paid the daily living component of ADP after he spends 28 days in prison, after being sentenced. As Callum is under 18, he remains entitled to payment for the mobility component of ADP.
Example 2
Janine is 18 and entitled to the enhanced rate of the daily living component and the standard rate mobility component. She isn’t taken into legal custody during her trial and as a result, remains entitled to payment for both components of ADP.
Janine is sentenced to prison for 1 year. As Janine is 18, she is no longer entitled to payment of either component of ADP after she spends 28 days in prison.
The Scottish Prison Service will inform Social Security Scotland when an individual has entered, or is released from, legal detention. For more information on this process, please see the Unscheduled Reviews chapter.
A review will need to be carried out at the earliest opportunity if the scheduled review date passes while the individual is in legal detention.
An individual entering or leaving legal detention is regarded as a change of circumstances, if it will likely lead to a change in entitlement. A case manager should complete a determination without application in these circumstances.
Individuals may be overpaid ADP if Social Security Scotland is not notified of a change (SS Act 2018, s. 56). For more information on what to do if there has been an overpayment, see the Overpayments section of the Payments chapter.
Example: an individual whose award of ADP remains the same after being released from legal detention
Paul is 19 and entitled to the standard rate of the daily living and mobility components of ADP. He is sentenced and legally detained in prison on 25 March and is no longer paid for either component after 28 days, from 23 April. He is released after 85 days on 18 June. Social Security Scotland are informed promptly when he enters and is released from legal detention.
Paul remains entitled to both components during his legal detention, even though payments have stopped after 28 days. Upon release, he will not need to make a new application, and payment of both components of ADP will begin again following a determination without application that will be carried out once Social Security Scotland are notified.
Social Security Scotland confirm that Paul’s circumstances remain the same and he is entitled to payment of the daily living and mobility components of ADP again from18 June.
Example: an award of ADP is reviewed after an individual is released from legal detention
Charlie is 20 and is entitled to the standard rate of living component of ADP. She is legally detained on 1 April for 8 months.Charlie is no longer paid the daily living component of ADP while in legal detention after 28 days.
Charlie informs Social Security Scotland when she is released from legal detention in November. This means there is a change of circumstances concerning her award. The case manager will need to make a determination without application before Charlie’s payments of the daily living component of ADP can begin again (ADP regs, reg. 48(a))
It is possible to make an application for ADP while in legal detention. An individual’s entitlement to ADP may begin when they are in legal detention (ADP regs, reg. 32). The effect of legal detention is to reduce the individual’s payments to £0, when they are 18 or over for both ADP components, and when they are 16 or 17, for the daily living component. When an individual’s entitlement starts whilst they are in legal detention, this will occur on the first day of their entitlement until the day they leave legal detention.
Example: an application for ADP is made when an individual is in legal detention
Isla is 16. She enters legal detention on 1 April and will be released from legal detention on 1 June. Isla applies for ADP while she is in legal detention on 12 April.
The case manager determines that Isla meets the eligibility criteria to be entitled to the daily living and mobility component of ADP at the standard rate. Payment of the daily living component of ADP is set at £0 whilst Isla is in legal detention. As Isla is under 18, however, she is entitled to payment of the mobility component while she remains in legal detention.
Social Security Scotland is informed of Isla’s release on 1 June. She is now entitled to be paid at the standard rate for the daily living component of ADP from 1 June onwards (ADP regs, reg. 32(2)(c)(ii)).