Tribunals (Scotland) Act 2014 - draft regulations making provision for social security appeals: consultation analysis

Introduction

Background

The Scotland Act 2016 transferred new powers to the Scottish Parliament relating to social security, including responsibility over certain benefits. It allows Scottish Ministers an opportunity to develop policies on social security appropriately suited to Scotland that will help tackle inequality and poverty in Scotland. Scottish Ministers have set out that the devolved social security system will be rights-based, and to be founded on the principles of fairness, dignity and respect.

The Scottish Government will deliver devolved social security assistance on a phased approach over the lifetime of the current Parliament following Royal Ascent of the Social Security (Scotland) Act 2018. The first wave of social security assistance is expected to be delivered between Autumn 2018 and Summer 2019.

Under the Heads of Agreement for further devolution of powers to the Scottish Parliament, the operation and administration of 22 reserved Tribunals will be devolved to Scotland, including the Social Security and Child Support Tribunal ( SSCST). Discussions on the timing of the devolution of the SSCST are currently on-going between the UK and Scottish governments. Scottish Ministers therefore decided to set up a new chamber in the First-tier of the Scottish Tribunals ^[2] that will hear devolved assistance appeals when the first wave of social security assistances begin to be delivered by the Scottish social security agency, ahead of any potential devolution of SSCST. Necessary provision was also required for the Upper Tribunal ( UT) for Scotland, where appeals against decisions of the First-tier Tribunal ( FtT) are heard.

To ensure the effective operation of the devolved chamber and to ensure consistency with the reserved chamber, the existing procedural Rules for both the First-tier Tribunal for the Social Entitlement chamber in the reserved system and the Upper Tribunal for Scotland were used as a starting point in developing Draft Regulations for Social Security Appeals. However, those Rules were amended and further strengthened to ensure consistency with Scottish Ministers' aspirations for how the appeals in the devolved system would operate.

The Consultation Exercise

As part of its ongoing commitment to engage key stakeholders in the future development of social security in Scotland, the Scottish Government committed to lead and implement a series of social security related consultations.

The current consultation relates to the Draft Regulations making provision in relation to Social Security Appeals and sought views of organisations and individuals specifically in relation to:

• 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 its proposed functions;
• adding the Social Security chamber to the list of chambers into which the First-tier Tribunal for Scotland is divided;
• the proposed Rules of procedure for the new Social Security chamber;
• the type and number of members of the FtT who can consider cases before the Social Security chamber and, when cases are appealed from there, before the Upper Tribunal for Scotland;
• the eligibility criteria for appointment to the FtT 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
• specific Rules of procedure of the Upper Tribunal for Scotland when dealing with proceedings arising where cases are appealed from the Social Security chamber to the Upper Tribunal under the Social Security (Scotland) Act 2018.

Each of these six sets of draft Regulations were detailed in Annexes A - F of the main consultation document and explanatory notes were also provided.

More general comments on the devolved chamber were also welcomed to ensure that it met the needs of users of the Scottish social security system.

The consultation opened on 22 January 2018 and ran until 16 April 2018. This report explores the responses received and summarises the main observations from the consultation exercise.

Methodology

A total of 25 substantive responses were received - 12 via the Scottish Government's online portal Citizen Space, and 13 by email ^[3] . Of these, 4 were submitted by individuals and 21 came from organisations.

The consultation included a total of 7 closed and 22 open questions ^[4] and all questions were answered by at least one respondent.

All responses were read and logged into a database and all were screened to ensure that they were appropriate/valid. None were removed for analysis purposes.

Closed question responses were quantified and the number of respondents who agreed/disagreed with each proposal is reported below. Comments given at each open question were examined and, where questions elicited a positive or negative response, they were categorised as such. For most of the questions, respondents were also asked to state the reasons for their views, or to explain their answers. The main reasons presented by respondents both for and against the various specific proposals were reviewed, alongside specific examples or explanations, alternative suggestions, caveats to support and other related comments. Verbatim quotes were extracted in some cases to highlight the main themes that emerged. Only extracts where the respondent indicated that they were content for their response to be published were used - only one organisation asked that their response not be published and six approved publication without reference to their name/affiliation. Although some responses to individual questions were not appropriate/did not directly address certain questions, all feedback was analysed and is presented under the appropriate sections below.

Report Presentation and Research Caveats

Findings are presented as they relate to each question contained under the six core sections of the consultation document (described above). Where people provided no response, this is noted separately from cases where respondents indicated that they had no further comments.

Given the small number of individuals compared to organisations who responded, and the small numbers of responses overall, it was not possible to carry out any reliable disaggregate analysis to compare responses between 'types' of respondent. Instead, in any cases where individual respondents offered views that differed significantly from those submitted by organisations, this is picked up narratively in the report.

Appendix A shows the number and proportion of responses received for each question, although the nature of many responses submitted means it was not possible to classify them as either positive or negative in their totality ( i.e. partial support was given for some proposals and not others within the same question response). As a guide, where reference is made in the report to 'few' respondents, this relates to three or less respondents. The term 'several' refers to more than three, but typically less than ten.

Finally, especially given the small number of responses received overall, it is worth stressing that the views presented here should not be taken as representative of the wide range of stakeholders invited to respond to this consultation, nor should they be generalised too broadly. They simply reflect the views of those individuals and organisations who responded.