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Legal Detention and entitlement to PADP
Individuals in legal detention are entitled to be paid £nil of PADP from the day after they have been in legal detention for 28 days (PADP regs, reg. 22(3)). The 28 day period begins on the day after the day they enter legal detention (PADP regs, reg. 23(2)(a)).
Entitlement to PADP continues while payment is set at £nil. This means that individuals will not need to make a new application when they are released from legal detention and payment of PADP will begin again upon release.
Example: an individual enters legal detention after legal proceedings
Emma is entitled to PADP. She is charged with a crime but is not taken into legal custody before or during legal proceedings. This means she is still entitled to be paid PADP.
Emma is sentenced to prison for 6 months. She is no longer entitled to be paid PADP after she spends 28 days in prison, after being sentenced. Emma remains entitled to PADP.
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 follow operational guidance.
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 PADP 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 PADP remains the same after being released from legal detention
Edward is entitled to the lower rate of PADP. He is sentenced and legally detained in prison on 25 April and is no longer paid PADP after 28 days. This means Edward’s payments are set to £nil from 24 May. He is released on 18 July. Social Security Scotland are informed promptly when he enters and is released from legal detention.
When Edward enters prison, the case manager dealing with Edward’s case proceeds to carry out an unscheduled review of Edward’s case. The case manager then makes a determination without application that Edward remains entitled to PADP during his legal detention even though payments have been reduced to £nil.
Upon release, Edward will not need to make a new application, and payment of PADP will begin again following a further unscheduled review and determination without application that will be carried out once Social Security Scotland are notified that Edward has been released.
Social Security Scotland confirm that Edward’s circumstances remain the same and he is entitled to payment of PADP again from 18 July.
Example: an award of PADP is reviewed after an individual is released from legal detention
Frances is entitled to the lower rate of PADP. She is legally detained on 1 August for 5 months. Frances is no longer paid PADP after 28 days in legal detention.
Frances informs Social Security Scotland when she is released from legal detention on 1 January. This means there is a change of circumstances concerning her award. The case manager will need to follow the steps set out in operational guidance before Frances’ payments of PADP can begin again (PADP regs, reg. 41(a)).
It is possible to make an application for PADP while in legal detention. An individual’s entitlement to PADP may begin when they are in legal detention (PADP regs, reg. 24). The effect of legal detention is to reduce the individual’s payments to £nil. 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 (PADP regs, reg. 24(2)(c)).
Example: an application for PADP is made when an individual is in legal detention
Ashley enters legal detention on 1 May and will be released from legal detention on 1 July. Ashley applied for PADP while she is in legal detention, on 12 May.
The case manager determines that Ashley meets the eligibility criteria to be entitled to the higher rate of PADP. Payment of PADP is set at £nil whilst Ashley is in legal detention.
Social Security Scotland is informed of Ashley’s release on 1 July. She is now entitled to be paid PADP at the higher rate from 1 July onwards.