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Meaning of legal detention
To determine entitlement to payment of PADP, 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 (PADP regs, reg. 2).
An adult 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 PADP, legal detention does not include any day in which an individual is an in-patient in a hospital or a hospice (PADP regs, reg. 22(2)). The relevant rules for these situations can be found in the Decision Making Guidance chapter on the effect of time spent in care homes and hospitals.
Case managers should seek advice from their line manager if they are unsure whether an individual is in legal detention for the purpose of determining entitlement to payment of PADP.
Example: an individual transfers from hospital to legal detention within 28 days
Tony has a significant mental health condition and is entitled to PADP. He is convicted of an offence and a custodial sentence was imposed, which means he will be subject to legal detention rules. Before entering legal detention, Tony went straight to hospital to have treatment for his mental health condition. Tony will be transferred to legal detention when his treatment is completed.
Tony receives payment of PADP for the first 22 days while he is in hospital. On day 23, he is transferred to legal detention. Even though regulation 22(2) says that a day in hospital or hospice is not counted as a day in legal detention, this is over-ridden when people transfer from one type of alternative accommodation to another.
For the purposes of calculating when a person has been in alternative accommodation for 28 days when they move between hospital and legal detention, the days in hospital count as days in legal detention, and this includes the day of transfer. This means Tony is treated as having already spent 23 days in legal detention, and his 28th day in legal detention is the last day he will receive payment of PADP. From the 29th day, he will be paid £nil but will remain entitled to PADP.