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Leaving legal detention
The date that an individual leaves legal detention is not counted as a day in legal detention (Scottish Adult DLA regs, reg26(2)(b)).
The 28 days of continued entitlement to payment of Scottish Adult DLA 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. Time spent in detention before their award was transferred does not count (Scottish Adult DLA regs, reg. 25(4)).
Example: an individual whose award of Scottish Adult DLA remains the same after being released from legal detention
Ben is entitled to the middle rate of Scottish Adult DLA care component. He is sentenced and legally detained in prison on 25 April and is no longer paid Scottish Adult DLA after 28 days. This means Ben’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 Ben enters prison, the case manager dealing with Ben’s case proceeds to carry out an unscheduled review of the case. The case manager then makes a determination without application that Ben remains entitled to Scottish Adult DLA during his legal detention even though payments have been reduced to £nil.
Upon release, payment of Scottish Adult DLA will begin again following a further unscheduled review and determination without application that will be carried out once Social Security Scotland are notified that Ben has been released.
Social Security Scotland confirm that Ben’s circumstances remain the same and he is entitled to payment of Scottish Adult DLA again from 18 July.
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 Scottish Adult DLA 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
Finlay is entitled to Scottish Adult DLA. He is taken in to legal detention and is no longer entitled to payment of Scottish Adult DLA after 28 days in legal detention. He is released 8 months later, but must wear an electronic tag and follow a strict curfew as part of the conditions of his release.
Finlay can start to receive payment of Scottish Adult DLA now he is no longer in legal detention. This is because he is no longer imprisoned or held in legal custody. Instead he is monitored by an electronic tag to ensure he is at home when he 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 Scottish Adult DLA. Payment of Scottish Adult DLA should resume from the day the individual leaves legal detention. To ensure this happens, the case manager will need to make a determination without application (Scottish Adult DLA regs, reg. 43(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 (Scottish Adult DLA regs, reg. 26(3)).
Example: an individual who is entitled to Scottish Adult DLA is released from legal detention on temporary license
Lesley is entitled to Scottish Adult DLA care component and is legally detained on 1 March. This means she is no longer entitled to be paid Scottish Adult DLA after she spends 28 days in legal detention. She is released from legal detention on temporary license on 1 April. Lesley can start receiving payment of Scottish Adult DLA starting from the day she is released from legal detention because she notified Social Security Scotland within one month of the change of circumstances. Lesley re-enters legal detention on 22 May. Lesley is no longer paid Scottish Adult DLA. She is then released from legal detention permanently on 30 July. She can once again start receiving payment of Scottish Adult DLA because she 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 Scottish Adult DLA because they are not in legal detention. Individuals who break the conditions of their bail and are legally detained will have payment of Scottish Adult DLA reduced to £nil after 28 days.
Example: an individual who is entitled to Scottish Adult DLA is released from legal detention on bail
Olivia is entitled to Scottish Adult DLA. She is legally detained on 8 April and awaiting legal proceedings. Olivia’s payment of Scottish Adult DLA is reduced to £nil after 28 days, from 7 May. Olivia is released on bail 2 months later on 7 July. She can now continue to be paid Scottish Adult DLA because she is no longer legally detained.
Example 2: An individual who is entitled to Scottish Adult DLA breaks their bail conditions
Ali is entitled to Scottish Adult DLA. He committed an offence and has been released on bail pending further legal proceedings. Ali can still be paid Scottish Adult DLA because he is not in legal detention. Ali breaks his bail conditions and is legally detained on 22 September while he awaits his trial on 1 November. Ali’s payment of Scottish Adult DLA is reduced to £nil after he spends 28 days in legal detention. Therefore, Ali’s payment is reduced to £nil from 21 October.
Authorised Absence
An authorised absence is a period of time 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 Scottish Adult DLA because they are not in legal detention.
An individual’s entitlement to Scottish Adult DLA must be considered on each occasion they enter or leave legal detention because of authorised absences. This is because payment of Scottish Adult DLA 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.
An individual 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 (Scottish Adult DLA regs, reg. 25(2)). 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 highest rate of care component (Scottish Adult DLA regs, reg. 24(1); reg. 20(1)). They would also be entitled to the higher rate mobility component if they were under the relevant age (Scottish Adult DLA regs, reg. 20 (2). If they are over the relevant age, their mobility component cannot change from what it was immediately before the individual reached the relevant age.
If an individual enters a care home or hospital temporarily from legal detention, the days they spent in legal detention are to be treated days of residence in the care home or hospital . If the individual has already been in legal detention for 28 days or more, they will not receive payment of Scottish Adult DLA when they enter a care home or hospital (Scottish Adult DLA regs, reg. 26(5)(b)(ii)).
Example: an individual who is entitled to Scottish Adult DLA transfers from legal detention to a hospital
Bernadette is entitled to the higher rate of Scottish Adult DLA. She entered prison on 28 June. Her payment of Scottish Adult DLA will be reduced to £nil after she spends 28 days in prison. Her payment of Scottish Adult DLA will therefore be reduced to £nil on 26 July.
However on 10 July, Bernadette became unwell and was transferred to a hospital for treatment the same day. She receives treatment in hospital for 2 days.
As Bernadette has only been in prison for 12 days, payment of Scottish Adult DLA can continue for the 2 days she spends in hospital. However the days she spent in legal detention are also counted as days of residence in the hospital. This means Bernadette is treated as being in hospital for a total period of 14 days.
Bernadette returns to legal detention on 12 July. However on 24 July, Bernadette becomes unwell again and is transferred back to hospital for treatment the same day. This time Bernadette receives treatment in hospital for a further 7 days.
As Bernadette has now been in alternative accommodation without a break for a total of 26 days, her payment of Scottish Adult DLA continues for day 27 and 28 spent in hospital, but is reduced to £nil after 2 days, on 26 July which is the 29th day in alternative accommodation.
Example: an individual who is entitled to Scottish Adult DLA is released from legal detention because of an authorised absence
Marek is entitled to Scottish Adult DLA. He entered legal detention on 30 May for 31 days. His payment of Scottish Adult DLA is reduced to £nil 28 days after he enters legal detention. Therefore, Marek’s payment of Scottish Adult DLA is reduced to £nil on 28 June.
Marek is released and leaves legal detention on 30 June because of an authorised absence. He is entitled to receive payment of Scottish Adult DLA from this date because he notifies Social Security Scotland within a month of being released.
Marek returns to legal detention on 26 July for another 31 days. His payment of Scottish Adult DLA is reduced to £nil from the day after the day he returns to legal detention. This means Marek’s payment of Scottish Adult DLA is reduced to £nil on 27 July.
Marek is released on 26 August having served the remainder of his sentence. He promptly notifies Social Security Scotland about his release and he is once again entitled to receive payment of Scottish Adult DLA from 26 August onwards.
Pardons
Prisoners who are pardoned leave legal detention. Individuals who are pardoned are entitled to receive payments of Scottish Adult DLA when they leave legal detention if they still meet the eligibility criteria. Individuals in these cases cannot receive a backdated payment of Scottish Adult DLA 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 to the court against convictions
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 Scottish Adult DLA once they have left legal detention, following a determination without application.
Individuals in these cases cannot receive a backdated payment of Scottish Adult DLA 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.