Draft regulations for social security appeals: consultation

Part 4: Consultation On Draft Regulations Setting Out Rules Of Procedure For The First-Tier Tribunal For Scotland Social Security Chamber

Background

25. Schedule 9, paragraph 4(2) of the 2014 Act provides the power for the Scottish Ministers to make regulations setting out the procedural rules to be applicable to chambers of the First-tier Tribunal for Scotland and to the Upper Tribunal.

Draft regulations

26. The draft regulations in Annex C set out rules of procedure which will apply to the Social Security Chamber. Their approach is intended, largely, to mirror that of the rules of procedure of the Social Entitlement Chamber, which contains the social security jurisdiction that hears appeals brought in Scotland under the reserved system against decisions on entitlement to benefits. The rules are set out in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the 2008 Rules”). This draft does, however, reflect some substantive changes of approach/additional provisions, in comparison with the 2008 Rules. These are designed primarily to ensure that the new chamber is able to function in a manner which is appropriate in a modern social security context and, where relevant, consistent with the approach of other chambers of the First-tier Tribunal on overarching matters. The changes and additions are described in the paragraphs that follow.

Social security charter

27. The overriding objective of the procedural rules is that the appellant should be treated fairly and justly and provided all necessary support in bringing their case to the tribunal. Tribunals are independent of Scottish Ministers and are judicially led; they will be the independent mechanism for scrutinising determinations of entitlement to assistance under the Scottish social security system. To ensure the individual’s experience at tribunals is consistent with the Scottish Ministers’ aspirations of treating people with dignity and respect, the Scottish Government considers both the FtT and the Upper Tribunal should have regard to the social security charter, which is to be prepared in terms of section 2 of the Social Security (Scotland) Bill, when dealing with appeals. The purpose of the social security charter will be to take the high level strategic ambitions set out in the principles and translate these into more practical action points and commitments. In this way, the charter can be seen as a bridge between principles and the nature of the system’s day-to-day operation, that will set out in clear, plain English terms what people are entitled to expect. Given its importance in defining people’s rights and what the nature of delivery should be, it is important that the Tribunals should be able to take account of the charter in their deliberations where they consider that relevant. An explicit reference therefore has been made to the overriding objective that when dealing with cases the FtT and Upper Tribunal may have regard to the Scottish social security charter which is to be prepared and published in accordance with section 2 of the then Social Security (Scotland) Act 2018.

Dismissal of a party’s case

28. The Scottish Government proposes to omit any equivalent of the provision of the 2008 Rules which states that proceedings will be dismissed automatically if a party fails to comply with an order which states expressly that non-compliance will lead to striking out. This provision does not typically feature in the procedure rules of the First-tier Tribunal. The Scottish Government assumes that such a provision would, in any event, rarely be relied upon.

29. The Scottish Government proposes, too, to omit the provision of the 2008 Rules which allows for dismissal of a case because the Tribunal considers that there is no reasonable prospect of the appellant’s case succeeding. It is difficult to envisage that such a decision could reasonably be reached at first sight of proceedings in the Social Security Chamber.

30. The provision of the 2008 Rules stating that dismissal of proceedings, so far as the respondent is concerned, means that the respondent is debarred from taking any further part in the proceedings have also been omitted. The Scottish Government cannot envisage this as being of real relevance to proceedings in the Social Security Chamber where, at least in the vast majority of cases, there will be only one respondent, this being the maker of the determination which is being appealed against.

Orders for expenses

31. Under the 2008 Rules, it is a matter for the Secretary of State to pay travelling and other daily expenses deemed payable in respect of attendance at a hearing. In the draft rules of procedure for the Social Security Chamber we provide that the FtT may make an award of expenses to cover such expenditure, incurred by any person who is required to attend a hearing. This will include, as appropriate, both the parties to the case and any witness called by the parties or the Tribunal itself. The intention is that payment of daily expenses of attendance be covered – in other words, expenses of travel, sustenance, loss of remunerative time and similar. No other expenses are to be payable. In general the FtT will have the discretion to decide (a) whether expenses should be paid and (b) if so, whether to make an award of expenses against one of the parties, or to pay the expenses itself. Where, however, the expenses in issue are those of a person required to attend a hearing to produce a medical report which they have been commissioned to compile, in terms of rule 26, necessary expenses of attendance must be paid. These are to be met by the FtT.

Interpreters

32. The draft rules of procedure include express provision that any interpreter who is involved in assisting a party to a case must be independent of every party and any supporters or representatives of the parties. This is intended as a ‘for the avoidance of doubt’ type provision. However, it should help to ensure that the needs of witnesses with particular requirements, including those in need of the assistance of a sign language interpreter, are adequately catered for.

Supporters

33. The draft rules currently mirror the standard provision in procedure rules of chambers of the First-tier Tribunals which allows individuals to be accompanied by supporters. The function of the supporter is typically to operate in the background, helping with tasks such as taking notes and organising papers, as well as providing general moral support. It may be thought desirable to provide for supporters involved in cases before the Social Security Chamber to have a more expansive role, where appropriate. This might include, in particular, the opportunity to put forward representations to the FtT. It would be subject to the FtT, and all parties, being content that this should happen. This would not affect the role of any representative; the intention is that they would be able to present a party’s case, or otherwise advocate for a party, in the same way as they would be able to do before any other chamber of the FtT.

Chairing member

34. The question of who is to be the chairing member, where relevant, is a matter typically covered in the rules of procedure of chambers of the FtT. Where a case is being considered by the Social Security Chamber, there will always be one legal member of the FtT involved in the case. There will never be any more than one legal member involved in the case. On that basis the rules of procedure have been drafted to provide that where there is more than one member of the FtT sitting in any given case, the legal member will always be the chairing member

Recording of hearings

35. The draft rules of procedure provide for a default position that hearings of the Social Security Chamber are to be recorded digitally, unless an order is given that this should not be done, owing to the circumstances of a particular case.

Venue for hearings

36. The draft rules mirror the typical approach of rules of procedure of the FtT in providing that cases before the Social Security Chamber may be heard at such location in Scotland, and at such time, as the President of Tribunals may decide. The overriding objectives ensures the individual is able to participate fully and their access needs are taken into account when deciding the format and location of a hearing.

Independent medical examination

37. In contrast with the 2008 Rules, the draft rules do not make provision for a member of the FtT to carry out a medical examination. Rather, an order may be given by the Social Security Chamber only that an independent examination of an appellant be carried out. In other words, the appellant will be referred to a medical practitioner, who is independent of the parties to the case. The medical practitioner will be asked to carry out an examination of the appellant and to produce a report. It is intended that a medical examination should be ordered only in exceptional circumstances, where such an examination is thought necessary to enable a decision to be reached.

Review of decisions of the Social Security Chamber

38. In terms of the draft rules review of a decision of the Social Security Chamber may be undertaken either at the request of a party to the case, or as a result of the FtT deciding to revisit its own decision. Various consequences could flow from this, including that the decision is set aside, so that it no longer applies, and that a new one is made. This contrasts with the position under the 2008 Rules on availability of review. Under those Rules, a review may only be undertaken if an application for permission to appeal to the Upper Tribunal has been submitted by a party against a decision of the Social Entitlement Chamber. The first step, in that event, will be for a review of the original decision to be carried out.

Do you have any comments on:

(a) any of the elements of the draft rules of procedure described at paragraphs 27 – 38 above;
(b) any other aspect of the draft rules of procedure?

With reference to (a), do you have any comments, in particular, on:
- the proposal that hearings will be recorded as a matter of routine?
- the possibility of referral for a medical examination, and the circumstances in which this may happen?

Would you welcome provision for supporters in cases before the Social Security Chamber to have the opportunity, with appropriate permission, to make representations during proceedings?

Are there any other respects in which you would consider that the approach of the 2008 Rules should be departed from?

Do you have any other comments which you would wish to make on the draft procedure regulations?