Draft regulations for social security appeals: consultation

Part 7: Consultation On Draft Regulations Setting Out Rules Of Procedure To Be Applicable To The Upper Tribunal For Scotland When Dealing With Cases Under The Current Social Security (Scotland) Bill

Background

50. 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 for Scotland.

Draft regulations

51. The draft regulations in Annex F set out specific rules of procedure to be applicable to 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 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.

52. There already exist generic rules of procedure applicable to the Upper Tribunal for Scotland, as set out in the Upper Tribunal for Scotland (Rules of Procedure) Regulations 2016. While these will not apply to proceedings under what is currently the Social Security (Scotland) Bill, the rules of procedure on which we propose to rely are modelled closely on those. The draft rules have been modified only where it was considered necessary to ensure that no substantive element of the procedure followed currently by the Upper Tribunal, when dealing with a social security case emanating from the reserved Social Entitlement Chamber, is lost. That procedure is laid down in the Tribunal Procedure (Upper Tribunal) Rules 2008. This approach also produces consistency with the Social Security Chamber in relation to provision for award of expenses and the overriding objective of taking account of the Scottish social security Charter that is to be prepared.

53. The Scottish Government highlights in the paragraphs that follow the main areas where the draft regulations in Annex F reflect a departure from the approach of the generic rules of procedure for the Upper Tribunal for Scotland. Where appropriate, the current position under the Upper Tribunal Rules of 2008, has also been set out.

Application for reinstatement of a case which has been dismissed

54. The rules of procedure followed by the Upper Tribunal in dealing with social security cases in the reserved system provide that the appellant may, in certain circumstances, apply for their case to be reinstated following its dismissal. This option is available where the appellant has failed to comply with an order which stated that non-compliance could lead to dismissal of the proceedings. The Scottish Government proposes to follow this approach in the rules of procedure for the Upper Tribunal for Scotland when dealing with cases under what is currently the Social Security Bill. (There is no equivalent provision in the generic rules of procedure for the Upper Tribunal for Scotland).

Withdrawal of a case and application for reinstatement

55. The rules of procedure followed by the Upper Tribunal in dealing with social security cases provide that a case may only be withdrawn with the permission of the Upper Tribunal (unless what is being withdrawn is simply an application for permission to appeal). The Scottish Government proposes to follow this approach in the social security rules of procedure for the Upper Tribunal for Scotland. The Upper Tribunal rules provide, also, that the party who has withdrawn their case may apply for its reinstatement. Again, this approach will be followed. (In the generic rules of procedure for the Upper Tribunal for Scotland, there is no need for permission to withdraw. Conversely, there is no possibility of a case being reinstated after it has been withdrawn).

Orders for expenses

56. The Scottish Government proposes that the social security rules of procedure for the Upper Tribunal for Scotland should provide only for the payment of expenses in relation to the daily expenditure incurred, by any person required to attend a hearing in connection with social security proceedings before the Upper Tribunal. These may cover such matters as travel, sustenance and loss of remunerative time. The Upper Tribunal may make an order for such expenses against any party to a case. Alternatively, the Upper Tribunal may pay the expenses itself. This mirrors the approach proposed for the Social Security Chamber.

Consent orders

57. Consent orders are provided for in the rules of procedure applied by the Upper Tribunal in dealing with social security cases, and so it is proposed to include provision for them in the social security rules for the Upper Tribunal for Scotland. Their function is to provide a declaration that all parties have agreed that the proceedings need not progress any further. (There is no equivalent provision in the generic rules of procedure applicable to the Upper Tribunal for Scotland).

Procedure for applying for and giving orders

58. The rules of procedure applied by the Upper Tribunal when dealing with social security cases require (a) that written notice of any order be given to every party to the proceedings and (b) giving any party the opportunity to challenge the order by applying for another order which amends, suspends or sets aside the first order. It is proposed that this approach is followed in the social security rules for the Upper Tribunal for Scotland. (The generic rules of procedure of the Upper Tribunal for Scotland provide simply that parties must be afforded the opportunity to make representations concerning whether the order should be made and the terms of the order).

Citation of witnesses to answer questions or produce documents

59. The rules of procedure applied by the Upper Tribunal when dealing with social security cases provide that no person may be compelled to give evidence or produce a document that they could not be compelled to give or produce at a civil trial of an action in a court in Scotland. It is proposed this approach is followed in the social security rules for the Upper Tribunal for Scotland. (There is no equivalent provision in the generic rules of procedure for the Upper Tribunal for Scotland).

Decision with or without a hearing

60. The rules of procedure applied by the Upper Tribunal when dealing with social security cases require the Upper Tribunal to take account of any views expressed by a party on whether or not a hearing should be held, before reaching a conclusion on whether there is to be a hearing. The Scottish Government proposes to follow this approach in the social security rules for the Upper Tribunal for Scotland. (The generic rules of procedure of the Upper Tribunal for Scotland provide simply that the Upper Tribunal may make a decision without holding a hearing; there is no need to take account of any views expressed on the matter).

Interested parties

61. Interested parties are defined in the generic rules of procedure for the Upper Tribunal for Scotland to mean parties other than the appellant and respondent to whom notice of the various stages of proceedings before the Tribunal is to be given. The Scottish Government does not envisage that this will be of relevance in the context of social security proceedings. Accordingly, it is proposed that the rules will not include reference to interested parties.

Do you have any comments on:
(a) any of the elements of the draft rules of procedure described at paragraphs 54 – 61 above?
(b) any other aspect of the draft rules of procedure?

Are there any other elements of the rules applicable to social security proceedings in the Upper Tribunal which you think should be replicated in the draft rules for the Upper Tribunal for Scotland, and have not been?

Conversely, are there any elements of the rules applicable to social security proceedings in the Upper Tribunal which have been replicated in the draft rules for the Upper Tribunal for Scotland, and which you do not think should be so replicated?

Do you have any other comments you wish to make on the draft procedure regulations for the Upper Tribunal?