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

Establishing a New chamber of the First-Tier Tribunal

The draft Regulations provided for the establishment of a new chamber of the FtT, to be known as the Social Security chamber as well as setting out what the functions of that chamber will be in considering entitlement to assistance under the Scottish social security system.

Functions included responsibility for dealing with appeals against determinations relating to entitlement to assistance (including those that relate to deductions to recover overpayments), determinations on entitlement to top-up ^[5] by recipients of reserved benefits, power to look at all aspects of a determination in relation to which an appeal is brought and, in disposing of an appeal, powers to either uphold the original determination or make its own.

The first part of the consultation sought views on these proposed functions.

Q1. Do you have any comments on the description of functions exercisable by the Social Security chamber in considering entitlement to assistance under the Scottish social security system?

Nine respondents did not answer this question and three said that they had no comment/nothing further to add.

Support and Information

Among the 13 respondents who provided a substantive response, the main concerns related to the need for appellants to have legal guidance or representation to ensure that they were able to defend their case in any appeal, as well as the need to ensure that communications coming from the new Social Security chamber were clear and accessible, especially for those with communication challenges. Accessible information and guidance on appealing decisions was also needed, it was suggested:

"This should include access at point of view where determination is taking place to forms and leaflets pointing to guidance on appealing decisions. At present, many of these are only available from certain places or downloadable online at severe detriment to those with limited access or who may not be computer-literate."

One respondent suggested that an infographic map which clarifies responsibilities may be helpful for the public in understanding the new roles/responsibilities of the chamber, clearly differentiating between reserved and devolved responsibilities. Ensuring that appellants had resources to accurately represent themselves, and get third party support, if needed, was also seen as key.

Overpayments

Further clarity was also needed, it was suggested, around determinations relating to deductions to recover overpayments. At present, it was not clear exactly how this would work in practice nor if there would be a right of appeal to challenge the amount decided upon by the chamber:

"Regulations should stipulate the manner in which recovery of overpayments is to be conducted, not only within the Social Security 2018 Bill, but also within draft Regulations for such…Regulations do not address whether this is to be repaid if a Tribunal appeal is unsuccessful or whether it is to come under some other arc of legislation."

One respondent suggested that, if appeals against a determination that an overpayment has occurred are proven and decisions are made that it is recoverable, but that the process for determination is not included in the Regulations, it may mean that Scottish claimants to assistance will have less rights than claimants of reserved benefits.

Overall, Annex A of the draft Regulations was considered to be insufficiently clear in setting out how this function would operate:

"…the Regulations are silent on this issue…It would be helpful if the Government clarified which part of the draft Regulations in Annex A relate to appeals against determinations to recover overpayments."

Top-Up

Few comments were made in relation to top-up, but those that were seemed supportive and the draft Regulations in this regard were seen as clear. One respondent pointed out that the provision for a right of appeal is needed specifically when an individual is refused a top-up payment of a reserved benefit and that this would only apply if a right of appeal against such a determination is provided for, which they envisaged would be the case.

One respondent suggested that Regulation 3 (relating to composition of the First-tier Tribunal when deciding an appeal against a determination of entitlement to assistance provided for by Regulations made under section 45 of the 2018 Act), appears to be ineffective since all it does is provide that the composition of the Tribunal to decide section 45 appeals shall be prescribed by Regulations.

Other Comments

One issue raised by a small number of respondents included the need for guarantees that entitlement would never be reduced as a result of an appeal.

Some viewed that the creation of the FtT would present an opportunity to bring appeals against Council Tax Reduction decisions together with other devolved benefits and thus create a unified dispute resolution system.

A view was also put forward that the system, at present and as planned, may be overly prescriptive and inflexible and could be more individualised to account for individual differences between appellants (including differences in gender, support needs, resources, etc.) A more compassionate approach may be required, rather than one which is systematically driven, it was suggested.

A more general comment was also made that the consultation failed to address the implications of having two separate appeal systems relating to the devolved and reserved social security benefits (in the early days of operation) and how these would dovetail, especially given that each employ different operating timescales. The need for the new chamber to be appropriately staffed was also highlighted with a question raised around whether specific recruitment would be required or if existing Judiciary would be available/willing to take on the new roles:

"It still remains, in my view, essential that the draft Rules are considered in the light of both the reserved benefits as well as the devolved benefits to obviate the need for a radical revision at a later date."

One comment was also received that there was insufficient explanation as to the need for the proposed changes, overall.

Q2. Do you have any comments on the power of the Social Security chamber to consider all aspects of a determination which it is called upon to review?

Ten respondents did not provide an answer to this question and a further three indicated that they had no comments/nothing to add.

Risks Associated with Appeals

The main theme among the twelve who did respond was ensuring that appellants were made aware of the possibility of full review, including aspects of a determination not being appealed. Specifically, people needed to be aware of the risk that previous awards may be removed if requesting a higher award or challenging earlier decisions:

"It is important to advise appellants of this approach well before the final stages as it may not be fully recognised that there is a risk to any appeal especially when requesting a higher award than that which is in place."

Fear that an award may be reduced could be an added disincentive to challenge award decisions, and this should be avoided, where possible. One respondent again specifically requested guarantees in law that no award would be reduced following appeal and one comment was made that parts of an award that were previously approved as sound determinations should be disregarded as part of the appeals process (another said that to include them would be a waste of time/resources).

One response against the proposal expressed that if the procedure regarding this issue were applied differently to the devolved and reserved benefits, it may be confusing to users. The approach, if it allowed for removal of benefits already agreed and not under appeal, may go against the Scottish Government's aim of achieving dignity and respect for users, it was felt:

"Appellants who find that they have benefits removed as a result of addressing the whole decision may feel they have been 'ambushed' by the process and are seriously aggrieved."

Overall, it was felt the potentially adverse implications of this proposal had not been adequately addressed or explained in the consultation and there may be a need for more guidance on when it would be appropriate to exercise this power, rather than using it as standard.

These concerns aside, there was support for all aspects of decisions to be considered and, overall, there was agreement that the Tribunal should be able to make its own determination of an individual's entitlement and not be restricted to assessing the grounds of appeal by the applicant:

"We agree that all options open to original decision makers should be open to the Tribunal. It is right that the Tribunal has an ability to make its own determination of the individual's entitlement and is not restricted to assessing the grounds of appeal by the applicant."

The only other main issue raised was the need for discretion in whether it is always appropriate to consider all aspects of a determination (as, in some cases, to do so may not be a good use of time and resources). One organisation suggested that the words "but need not" after "may" in Regulation 6 be added to stress that it confers discretion rather than imposing a duty, i.e.:

"The First-tier Tribunal may, but need not, consider all aspects of a determination which it is called upon to review in accordance with Regulation 4 or 5, and not only the particular aspects(s) challenged by the individual appealing against the determination."

Guidance on the use of this power for FtT members should be in place and might include examples of when it would be appropriate to exercise this power, for example, if there is new, compelling evidence that was not available when the original determination was made, it was suggested.

Q3. Do you have any other comments you wish to make on the draft Regulations?

Seven respondents did not answer this question and six stated that they had no further comments to make.

Twelve substantive responses were received and comments related mainly to the need for greater detail in the Regulations around how overpayments would be recovered, greater clarity on how appeals would be handled for reserved benefits, and the need for consistent and clearly specified timescales for determinations, redeterminations and, where necessary, appeals to ensure that all are dealt with in a timely manner which causes least disruption to the applicant's daily life/circumstances:

"Clarity is required over what Rules will apply for appeals against determinations for reserved benefits at the point of devolution. Any proposal to extend the Rules to reserved benefits once the SSCST has been devolved must be fully consulted upon."

In respect of timescales, one respondent highlighted that the draft Regulations refer to a period of 31 days throughout and that legislation covering reserved benefits uses a period of one calendar month. This different approach could cause confusion to appellants, it was suggested. Using 'one calendar month' may be an easier period for people to remember and apply to their own cases.

All other comments either repeated or related to issues already raised in response to the earlier consultation questions, as summarised above.