Devolved Social Security benefits - debt recovery - transfer of jurisdiction: consultation

4. Processes in the First-tier Tribunal

4.1 The new Social Security Chamber of the First-tier Tribunal for Scotland was created on 22 November 2018. The Social Security Chamber hears appeals from determinations made by Social Security Scotland on devolved social security benefits. These appeals will include determinations regarding deductions from future benefits to recover overpayments.

4.2 If an individual has received a notification from Social Security Scotland that an overpayment has occurred and that a determination has been made that deductions are to be made from future benefits, the individual can request a redetermination in respect of the deduction. Social Security Scotland will then make a new determination and within the re-determination notice the letter will advise that an appeal can be made to the Chamber if the individual is still unhappy with the decision. The letter will also contain the appeal form that should be completed and returned to Social Security Scotland.

4.3 If the individual decides to appeal, Social Security Scotland will send all the information they have collected, including the application form, reports and evidence given to the Tribunal so that they can consider the appeal. The individual can also submit further evidence to the Tribunal.

4.4 The First-tier Tribunal will consider the case and may reach a decision based on the papers provided if all parties agree to this or there may be an oral hearing. If an oral hearing is held, the default position will be that cases before the Tribunal will be decided by a legally qualified member sitting alone.

4.5 Exceptions will be made only where there is a need for a particular specialism, as in cases involving disability assistance and employment-injury assistance. In these cases legal members will usually be accompanied by an ordinary member with medical experience. In disability assistance cases, there will also usually be an ordinary member with disability experience. If there is a hearing, the hearing will be at a location convenient to the person who is appealing the decision.

4.6 The hearing will be informal and the individual will have the opportunity to explain the reasons for their appeal and will be asked questions by the Convener. The individual can bring someone to support them and can also have a representative at the hearing. A representative from Social Security Scotland may also attend the oral hearing. Further information on the Social Security Chamber can be found at:

https://www.socialsecuritychamber.scot/Home/About-us

4.7 The tribunal will make a decision. If the appellant is not happy with the outcome, they would still be able to apply for permission to appeal to the Upper Tribunal but this can only be on the grounds of error of law. Individual tribunal decisions are not published by the Chamber but, from time to time, updates will be published on matters of interest and points of law arising in decisions.

Benefits of debt recovery at the First-tier Tribunal Social Security Chamber

• Going to the First-tier Tribunal is likely to be a less daunting environment for individuals than going to the sheriff court;
• No award of expenses would be made against an individual in the First-tier Tribunal;
• A decision of the First-tier Tribunal would not impact on an individual's credit history;
• Questions about what a person is eligible for are the First-tier Tribunal's area of expertise;
• Having debt recovery decisions made by only one judicial body would avoid divergent case law;
• Appeals against recovery of an overpayment pursued through deductions from a recurring benefit will lie with the First-tier Tribunal. If the First-tier Tribunal is going to deal with these cases, it makes sense that it should deal with them all;
• In the reserved benefit system, any challenge to the recovery of an overpayment is made to the First-tier Tribunal (UK), so tribunals are familiar with this work.