Draft regulations for social security appeals: consultation

Part 1: Background

1. The Scotland Act 2016 devolves 11 benefits to the Scottish Parliament. These represent about 15% of UK social security spend in Scotland, ultimately worth around £3.3 billion annually. The 11 benefits to be devolved are:

• Attendance Allowance;
• Best Start Grant (replaces existing Sure Start Maternity Grant);
• Carer’s Allowance;
• Cold Weather Payment
• Disability Living Allowance;
• Discretionary Housing Payments;
• Funeral Payment;
• Industrial Injuries Disablement Benefit;
• Personal Independence Payment;
• Severe Disablement Allowance; and
• Winter Fuel Payment.

2. In the Scottish social security system ^[1] , the term 'assistance’ is used to refer to benefits and this paper will use the term assistance, except for when referring to benefits delivered in the reserved system, for which the Scottish Parliament does not have competence to legislate.

3. The Scottish Government recognises the direct impact that social security has on people’s lives and that is why its priority is to ensure the safe and secure transfer of the current DWP benefits to those who receive them. In addition, devolution of social security assistance, especially those for disabled people and carers, creates important opportunities to promote fairness and equality. The Scottish Government has made clear its intention to seize those opportunities: its ambition is to take a different approach that is rights-based and to build a social security system that is founded on the principles of fairness, dignity and respect ensuring those with lived experience of the current system co-design the new social security system in Scotland. These ambitions are to be at the heart of everything the new system will do, including how the tribunal system for social security appeals will operate.

4. Taking these aspirations into account, the Scottish Government will deliver devolved social security assistance on a phased approach once the Social Security (Scotland) Bill has completed its Parliamentary process. The Bill was introduced on 20 June 2017 and Royal Assent is anticipated during spring 2018.

5. The Cabinet Secretary for Communities, Social Security and Equalities statement to Parliament on 30 May 2017 set out that the Scottish Government will begin to deliver the first wave of social security assistance between Autumn 2018 and Summer 2019. The more complex types of assistance, e.g. those relating to disability, will be delivered by the end of the current Parliamentary term.

Creation of a new chamber of the First-tier Tribunal for Scotland

6. The Tribunals (Scotland) Act 2014 (“the 2014 Act”) creates a new, simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions. The 2014 Act creates two new tribunals, the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland, known collectively as the Scottish Tribunals.

7. Under the Heads of Agreement for further devolution of powers to the Scottish Parliament, as set out in the report of the Smith Commission, it was proposed that the operation and administration of 19 reserved tribunals would be devolved to Scotland, including the Social Security and Child Support Tribunal ( SSCST), which is part of the Social Entitlement Chamber ^[2] in the reserved system. Discussions are on-going with the UK Government ( UKG) regarding the timing of the transfer of SSCST to Scotland. However, it is unlikely that the transfer will take place prior to the first wave of social security assistance being delivered.

8. It is therefore the intention of Scottish Ministers to set up a new chamber of the First Tier Tribunal for Scotland (‘ FtT’), with responsibility for dealing with appeals against determinations of entitlement to assistance delivered under the Scottish social security system. Necessary provision will have to be made, also, for the Upper Tribunal for Scotland, where appeals against decisions of the First-tier Tribunal are heard.

9. The regulations required for the Scottish Tribunals will, of course, have to be in force, along with the necessary practical arrangements, in time for the first wave of social security assistance being delivered by the Scottish social security agency, which will be ahead of any potential devolution of SSCST. As each chamber of the FtT may consist of a number of jurisdictions that are brought together because they deal with similar subject matters, it is expected SSCST, when devolved, may be housed as a jurisdiction of the Social Security Chamber. This is subject to the final decision of the President of the Tribunals. This will mean that appeals in Scotland against decisions on reserved benefits will ultimately also be heard by the new chamber.

10. Therefore, to ensure the effective operation of the devolved chamber, and ensure consistency with the reserved chamber, the existing procedural rules for of the First-tier Tribunal Social Entitlement Chamber have been used as a starting point. These rules have been amended and strengthened to ensure consistency with Scottish Ministers’ aspirations for how appeals in the devolved system will operate.

Overview

11. The Scottish Government is now seeking views of any organisation or individual with an interest in these matters to ensure what is being proposed will meet the needs of the users in the Scottish social security system. The sets of regulations described below will be required in order to create a new chamber of the FtT to deal with social security cases and to make the necessary provision for the Upper Tribunal. The draft regulations are attached at Annexes A – F to this document. These regulations reflect the content of the Social Security (Scotland) Bill as introduced. Modifications may, of course, require to be made to reflect amendments made as the Social Security (Scotland) Bill completes its Parliamentary process.

12. The draft regulations in Annex A provide for the establishment of the new chamber of the FtT, to be known as the First-tier Tribunal for Scotland Social Security Chamber, and set out its functions.

13. The draft regulations in Annex B add the Social Security Chamber to the list in regulation 2 of the First-Tier Tribunal for Scotland (Chambers) Regulations 2016 of chambers into which the First-tier Tribunal for Scotland is divided.

14. The draft regulations in Annex C set out the rules of procedure for the Social Security Chamber.

15. The draft regulations in Annex D set out the type and number of members of the FtT who can consider cases before the Social Security Chamber, and, when cases are appealed from there, before the Upper Tribunal.

16. The draft regulations in Annex E set out the eligibility criteria for appointment to the FtT of ordinary members with medical and disability experience. These members, alongside legal members of the Tribunal, will be responsible for deciding cases coming before the Social Security Chamber.

17. The draft regulations in Annex F set out specific rules of procedure of the Upper Tribunal for Scotland when dealing with proceedings under what is currently the Social Security (Scotland) Bill. By the time the regulations come into force, it is expected that this will be the Social Security (Scotland) Act 2018. Proceedings will arise where cases are appealed from the Social Security Chamber to the Upper Tribunal.

18. This consultation seeks views on the six sets of draft regulations. Parts 2- 7 of this document describe, in broad terms, the approach taken in the drafts, and set out particular questions on which views are sought. More general comments are also welcomed.