Eligibility

There are different tests which apply depending on both:

• the client’s nationality; and
•  the date on which they began living in their country of residence.

The majority of transfers are expected to be from UK nationals living in Scotland.

UK nationals should be treated in the same way as European Economic Area (EEA) nationals if both of the following statements are true:

• they have been living abroad in another EEA member state or Switzerland since before 1 January 2021; and
• they have satisfied the conditions of the relevant settlement scheme in their country of residence.

If these two statements are true, then the individual is a member of the ‘protected cohort’ under the EU-UK Withdrawal Agreement, the Swiss Citizens’ Rights Agreement or the EEA EFTA Separation Agreement. This group retains their rights under EU social security coordination rules despite EU exit. Individuals from EEA member states or Switzerland living in the UK become a member in the same way. See Personal Scope of EU Rules.

If the individual is:

• a UK national not in the ‘protected cohort’;
• a national of a country which is not in the EEA, a ‘third country national’; or
• a national of an EEA member state or Switzerland who is not in the ‘protected cohort’

then they must satisfy all of the following criteria (Scottish Adult DLA Regs, Reg 10(1)):

• they are ordinarily resident in Scotland;
• they are also habitually resident in the Common Travel Area (CTA);
• They are present in the CTA;
• on the date their award is transferred, they have been present in the CTA for at least 26 of the preceding 52 weeks; and
• they are not ‘subject to immigration control’.

The Common Travel Area (CTA) includes the whole of the United Kingdom, the whole island of Ireland, the Isle of Man and the Channel Islands (Jersey and Guernsey).

If the individual is either:

• a national of an EEA member state or Switzerland, has the UK as the competent state for the payment of their benefits, and is in the ‘protected cohort’;
• a member of the family of an individual described above;
• in some more rare and complex cases a third country national, then they must satisfy one of the following sets of criteria instead (Scottish Adult DLA Regs, Reg 15(2)).

Competent State for Scottish Adult DLA Personal Scope of the EU Coordination Rules for Scottish Adult DLA

Individuals of any nationality in the protected cohort and living in the UK must:

• be ordinarily resident in Scotland;
• be habitually resident in the UK;
• be present in the CTA
• have the UK as their competent state; and
• be subject to Title III of Part 2 the Withdrawal Agreement between the UK and the EU, Part 3 or Article 23(4) the Swiss Citizens’ Rights Agreement, Title III of the EEA EFTA Separation Agreement, the 1974 or 2024 exchange of letters between the UK and Gibraltar (Scottish Adult DLA Regs, Reg 14).

Individuals of any nationality who are in the protected cohort living in Europe must:

• be habitually resident in the EEA, Switzerland or Gibraltar;
• have the UK as the competent state for the payment of their benefits;
• be subject to Title III of Part 2 the Withdrawal Agreement between the UK and the EU, Part 3 or Article 23(4) the Swiss Citizens’ Rights Agreement, Title III of the EEA EFTA Separation Agreement, the 1974 or 2024 exchange of letters between the UK and Gibraltar and
• have a genuine and sufficient link to Scotland (Scottish Adult DLA Regs, Reg 15(2))

Nationals of the Republic of Ireland or Gibraltar also benefit from UK international social security agreements. These broadly replicate the terms of the EU rules.

Individuals moving between Ireland and Scotland are therefore exempt from the requirement to be ordinarily resident in Scotland, if they (Scottish Adult DLA Regs, Reg 10(3))

•  are habitually resident in the Republic of Ireland;
• have a Genuine and Sufficient Link to Scotland; and
• are a person to whom Convention on Social Security between the United Kingdom and Ireland applies – in most cases a UK or Irish national.

This means that individuals who live in Ireland can be eligible for Scottish Adult DLA, as long as the UK remains the competent state for payment of that individual’s benefits (Scottish Adult DLA Regs, Reg 10(3)).

Individuals living in Scotland who have moved there from Gibraltar are exempt from the requirement to be present in the Common Travel Area for 26 of the past 52 weeks (Scottish Adult DLA Regs, Reg 14(c)(i)(dd) and (ee))

These individuals can be of any nationality

Individuals living in Gibraltar can be eligible for Scottish Adult DLA, if:

• they are habitually resident in Gibraltar; and
• they have a genuine and sufficient link to Scotland (Scottish Adult DLA Regs, Reg 15(2)(b)(iii)).