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Publication - Publication

Scottish Adult Disability Living Allowance decision making guide

Published
7 Aug 2025
Topic
Scottish Adult Disability Living Allowance
Alternative accommodation

Meaning of legal detention

To determine entitlement to payment of Scottish Adult DLA, 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 (Scottish Adult DLA 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 Scottish Adult DLA, legal detention does not include any day in which an individual is an in-patient in a hospital or in a hospice (Scottish Adult DLA regs, reg.25(2)). The relevant rules for these situations can be found in this DMG chapter, in the sections 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 Scottish Adult DLA.

Example: an individual transfers from hospital to legal detention within 28 days

Tony has a significant mental health condition and is entitled to Scottish Adult DLA. He is convicted of an offence and a custodial sentence was imposed, which means he is 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 Scottish Adult DLA for the first 22 days while he is in hospital. On day 23, he is transferred to legal detention. Usually, days that Tony spent in hospital are not to be counted as days he spends in legal detention (Scottish Adult DLA regs, reg. 25(2)). However, when transferring between one type of alternative accommodation and another, days in the first type of accommodation count as days in the second, including the day he is transferred (Scottish Adult DLA regs, reg. 26(5). This means Tony is treated as though he has already spent 23 days in legal detention. He can receive Scottish Adult DLA for a further 5 days in legal detention, and then from the 29th day, he will be paid £nil but will remain entitled to Scottish Adult DLA.

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