Draft regulations making provision in relation to social security appeals: government response

Consultation on the draft Tribunals Regulations

9. In order to set up a new chamber of the First-tier Tribunal for Scotland, and ensure necessary provision is made for the Upper Tribunal for Scotland when dealing with social security appeals, six sets of regulations (Tribunals Regulations) are required to be made under the Tribunals (Scotland) Act 2014 (the 2014 Act).

10. A consultation process was undertaken in relation to the draft Regulations between January and July 2018. This included a full public consultation and consultation with senior members of the judiciary that the 2014 Act requires. In addition, the Social Security Committee of the Scottish Parliament undertook an evidence gathering session with key stakeholders.

11. The full public consultation lasted for 12 weeks and took place from 22 January to 16 April 2018. The suite of Regulations comprised the following:

• The First-tier Tribunal for Scotland Social Security Chamber (Establishment and Functions) Regulations 2018 – provided for the establishment of the new chamber of the First-tier Tribunal, to be known as the First-tier Tribunal for Scotland Social Security Chamber, and set out its functions;
• The First-tier Tribunal for Scotland (Chambers) Amendment Regulations 2018 added 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;
• The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 set out the rules for procedures for the Social Security Chamber;
• The First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 set out the type and number of members of the Scottish Tribunals who can consider cases before the Social Security Chamber, and, when cases are appealed from there, before the Upper Tribunal.
• The Scottish Tribunals (Eligibility for Appointment) Amendment Regulations 2018 set out the eligibility criteria for appointment to the First-tier Tribunal 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; and
• The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018 set out specific rules of procedure of the Upper Tribunal for Scotland when dealing with proceedings under the 2018 Act, or under Regulations which are made under the 2018 Act, and create a right of appeal . Proceedings will arise where cases are appealed from the Social Security Chamber to the Upper Tribunal.

12. In embarking upon the process of drafting the necessary Regulations for consultation, the starting point (particularly in the context of the rules of procedure for the Social Security Chamber) was to look at the approach of the rules of procedure of the existing chambers of the First-tier Tribunal for Scotland. A key consideration was ensuring so far as appropriate the aim of having broad uniformity of approach, across the chambers in Scotland. These were considered alongside the rules of the Social Entitlement Chamber (the 2008 Rules) which currently deal with social security appeals for reserved benefits in Scotland. The Regulations as consulted upon were framed with the overall principles of the Scottish social security system in mind, to establish what adjustments might be needed.

13. For the Upper Tribunal for Scotland, a similar exercise was carried out. The generic rules of procedure of the Upper Tribunal for Scotland were looked at, alongside the rules of procedure for the Upper Tribunal, as they apply to social security cases.

14. There were 25 responses, 4 from individuals and 21 from representative organisations. Where permission was received, individual responses were published online on the Citizen Space website at:
https://consult.gov.scot/social-security/provision-for-social-security-appeals/consultation/published_select_respondent

15. The Scottish Parliament's Social Security Committee also took evidence on the draft Tribunals Regulations from a range of stakeholders on 29 March. The Committee wrote to the then Minister for Social Security on 13 April indicating they were broadly content with the draft Regulations but raised specific points in relation to the social security charter, expenses, role of supporters and representatives, and publication of decisions.

16. The Official Report from 29 March can be accessed at http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11459&mode=pd. The Committee's letter to the then Minister for Social Security is available at http://www.parliament.scot/S5_Social_Security/Inquiries/20180413_Convener_to_MinisterSS_socialsecurityappeals.pdf

17. The independent analysis of the responses was undertaken by KSO Research. They provided an interim report on 2 May and their final report was received on 17 August. The analysis report is available at www.gov.scot/ISBN/9781787811928

18. Under the obligations set out under Section 11 of the 2014 Act, the Scottish Government sought the views of the President of the Scottish Tribunals and the approval of the Lord President for the establishment of the new chamber and allocating functions to it. This took place following the conclusion of the public consultation.

19. The Scottish Government has considered all of the views provided during the public consultation, the feedback from the Social Security Committee and the formal consultation with the President of the Scottish Tribunals and the Lord President. Throughout the consultation process, the Scottish Government discussed with the JRG how the draft rules could be amended in order to balance the differing views whilst ensuring that dignity and respect is at the heart of the system and what was being proposed did not lead to operational or other difficulties. The JRG's contribution has been invaluable in providing an understanding of how the appeals process will work in the Scottish Tribunals.

20. The Scottish Government's proposals for amending the Regulations as consulted upon are set out below. Some of the provisions in the draft Regulations had to be updated to reflect the changes that were made to the then Social Security (Scotland) Bill (the Bill) which are now enacted in the 2018 Act. This includes: reference to the Scottish social security charter, how the agency will have a role in supporting individuals who wish to exercise their right to appeal, creation of new appeal rights for challenging process decisions, duty to promote uptake and inclusive communication, amongst other changes.

21. In addition to giving effect to the views of the respondents, further changes have been taken forward in areas where there was no direct input from respondents. This was the product of identifying an element where there seemed scope for change to ensure that the dignity and respect agenda is fully given effect to or, more generally, to lay the foundations of an effective chamber. The same principle applies to the rules of procedure applicable to the Upper Tribunal when dealing with social security appeals.