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Publication - Publication

Adult Disability Payment decision making guide

Published
7 Aug 2025
Topic
Adult Disability Payment
Legal detention

Meaning of legal detention in legal custody

Legal detention refers to any detention, in Scotland, in the rest of the UK and the rest of the world, within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995 (ADP regs, reg. 2). Legal detention does not alter an individual’s ordinary residence for the purposes of the residence and presence conditions. For instance, if an individual is detained in a foreign prison abroad, if they are 18 or over, they will be paid £nil for both components after 28 days in legal detention. Also, if they are aged 16 or 17, they will be paid £nil for the daily living component after 28 days in legal detention.

An adult 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 ADP, legal detention does not include any day in which an individual is an in-patient in a hospital or a hospice. The relevant rules for these situations can be found in the Decision Making Guidance chapter on care homes, alternative accommodation and hospitals and similar institutions (ADP regs, reg. 30(2))

Example: a young person legally detained in hospital

Julia is 16 and has a significant mental health condition. She is entitled to the standard rate of the daily living component and standard rate of the mobility component of ADP. Julia is convicted of an offence and a custodial sentence was imposed, which means she is subject to legal detention within the meaning of Section 295 of the Criminal Procedure (Scotland) Act 1995. Before entering legal detention, Julia went straight to hospital to have treatment for her mental health condition. Julia will be transferred to legal detention when her treatment is completed.

Julia is still entitled to receive payment of the daily living and mobility components of ADP while in hospital, as she is being treated for her condition. When she is transferred to legal detention, Julia will be paid £nil for the daily living component of ADP after 28 days. As Julia is under 18, the payment of the mobility component will be unaffected throughout this period.

For more information on the impact of hospitalisation on ADP entitlement, refer to Decision Making Guidance chapter on care homes, alternative accommodation and hospitals and similar institutions.

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