Draft regulations for social security appeals: consultation

Part 5: Consultation On Draft Regulations Setting Out The Composition Of The First-Tier Tribunal For Scotland Social Security Chamber And The Upper Tribunal For Scotland

Background

39. Sections 38 and 40 of the 2014 Act allow the Scottish Ministers, by regulations, to determine the composition of the First-tier and Upper Tribunals.

Draft regulations

40. The draft regulations in Annex D govern the composition of members of the Scottish Tribunals when deciding cases before the Social Security Chamber and appeals from the Social Security Chamber to the Upper Tribunal for Scotland.

First-tier Tribunal for Scotland

41. In every case dealt with by the Social Security Chamber there will be one legal member of the FtT involved in the proceedings. As regards appeals relating to entitlement to social security assistance of the types described in Chapter 2 of Part 2 of the Social Security (Scotland) Bill, the policy intention is that cases should generally be decided by the legal member, sitting alone. An exception will, though, be made where there are characteristics of the form of assistance that make it appropriate to involve an ordinary member or two ordinary members with particular specialism. On that basis, the draft composition regulations provide that cases involving assessment of medical issues in relation to entitlement to disability assistance will be decided by the legal member, plus one ordinary member of the First-tier Tribunal who has disability experience and one ordinary member who is a registered medical practitioner. Cases involving assessment of medical issues relating to entitlement to employment-injury assistance will be decided by the legal member and one ordinary member who is a registered medical practitioner. All other cases are to be decided by the legal member sitting alone.

42. The Scottish Government proposes that there should be flexibility as to the composition of the Social Security Chamber when dealing with any appeals brought against decisions on entitlement to assistance by way of top up, should provision for this be made. This reflects the potentially wide variety of matters that may require to be considered. As a result, the draft composition regulations provide that cases may be decided by a legal member of the First-tier Tribunal sitting alone, a legal member and one ordinary member, or a legal member and two ordinary members. There is no specification as to whether ordinary members should be registered medical practitioners, members with disability experience, or, where relevant, potentially one of each. It intends that the composition be determined as appropriate to the circumstances of any particular case.

43. Applying the approach outlined above, cases before the Social Security Chamber will never be considered by any more than three members of the FtT

Upper Tribunal

44. The Scottish Government proposes that cases appealed from the Social Security Chamber to the Upper Tribunal for Scotland should be decided by a legal member of the Upper Tribunal, the Chamber President of the Social Security Chamber (as long as they were not involved in the case prior to its being appealed), the President of Tribunals, the Lord President, or a judicial member of the Upper Tribunal. A judicial member of the Upper Tribunal is meant, in terms of these regulations, a judge of the Court of Session.

(a) Do you have any comments on the proposed composition of the Social Security Chamber when dealing with an appeal against a determination of entitlement to assistance under the Scottish Social Security System?

(b) In particular, are you content with the default position that cases should be decided by only one member, namely the legal member, unless certain forms of assistance are under consideration?

Do you have any comments on the proposed composition of the Upper Tribunal for Scotland when deciding appeals from the Social Security Chamber to the Upper Tribunal?

Do you have any other comments you wish to make on the draft composition regulations?