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

Rules of Procedure for the First-Tier Tribunal for Scotland Social Security chamber

The Tribunals (Scotland) Act 2014 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.

Part three of the consultation sought views in respect of each of the proposed changes to the Rules of procedure.

Q5. Do you have any comments on any of the elements of the draft Rules of procedure described at paragraphs 27 - 38 in Part 4?

This question generated a significant response, with all but one respondent providing a detailed answer.

Social Security Charter

Changes to the Rules of procedure include that, when dealing with cases, the FtT and Upper Tribunal may have regard to the Scottish Social Security Charter which is to be prepared and published in accordance with the Social Security (Scotland) Act 2018. One respondent explicitly stated that this requirement would embed the Social Security System principles into the decision making and deliberations of the Tribunal (which they welcomed). A view was also put forward that it was important that the FtT and the Upper Tribunal were 'empowered' to take the Charter into account when dealing with appeals. Another supporter of this Regulation suggested that further clarity might be given to assist Judges by the production of a 'bench book' similar to that which exists under the reserved system and that, for transparency, this publication should be made publicly available. One other respondent suggested that this Regulation could be strengthened further to state that the Tribunal must adhere to the Charter with some way of monitoring this. Another stressed that they would welcome the opportunity to view and comment on the Social Security Charter.

One response, submitted on behalf of an organisation, did not consider reference to the Charter as either necessary or appropriate, since the document has not yet been promulgated:

"We oppose the inclusion of a reference in both sets of Rules to the Social Security Charter. That document has not yet been promulgated. Its inclusion may compromise judicial independence as the Charter primarily relates to decision making by the Executive. Is the aim of the inclusion of the Charter not already met by the reference to "dignity and respect" in rule 2(2)(c), of the draft SSC Rules, which we note is not included in the UT Rules? We do not consider the reference to the Charter is either necessary or appropriate."

Another suggested that it was not appropriate that the Charter be referenced in the Regulations as it was an aspirational provision rather than an enforceable procedure:

"I wholeheartedly support a hearing process which treats parties with proper consideration and respect but I query the inclusion, in a set of procedural Rules, an aspirational provision which cannot be enforced and is not consistently deliverable within a judicial hearing."

Views were, therefore, mixed with regard to the suitability and need for referencing the Social Security Charter with some suggesting that its reference would make explicit what was required, whilst others perceived it was superfluous.

Dismissal of Cases

The Regulations proposed omitting provisions from the 2008 Rules that dismissed proceedings if a party failed to comply with an order or if there is no reasonable prospect of the appellant's case succeeding or barring an individual from taking part in proceedings where dismissal has been determined. Few comments were made about the reasonable prospect Rules but one respondent who did comment offered their support, especially in cases where the appellant has limited literacy or cognitive skills and may be unable to access appropriate support/assistance:

"We agree that the 'no reasonable prospect' Rules should be removed as an appeal which appears to assert a weak cause may have been submitted by an appellant who has limited literacy skills and has been unable to access support."

Another commented that the omission of the power to strike out an appeal where a party has failed to comply with an order was welcomed because it is not appropriate for social security appeals, and particularly appeals by claimants with disabilities. One other individual suggested that the departure from the provisions of Rule 8 of the SEC Rules was not justified as they felt that the existing Rule had not historically given rise to any difficulties and another suggested that more consideration be given to its appropriateness. ^[6] Another respondent suggested that the omission of provisions allowing the FtT to bar respondents from taking part in proceedings was a concern, and that it may be appropriate for the FtT to have sanctions available to deal with repeated non-compliance.

Independent Medical Examinations

Several comments were made in relation to proposals for orders to be given by the Social Security chamber for an independent medical examination of the appellant, where appropriate (with the independent medical practitioner providing a report to the chamber). Views were expressed that, if an appellant could request the Tribunal to order an independent examination, this would give confidence to the appellant regarding the appeals process. Indeed, several comments were made that the independent nature of this examination would improve trust, credibility and confidence in the appeals process as a whole. Any reports produced from such examinations should also be made available to the appellant, it was stressed.

One respondent suggested that assurances were needed that requests for medical examinations would be routinely monitored to ensure that they were used exceptionally rather than routinely (and several others stressed the need for these to be used in exceptional circumstances only). There was also some concern that the Regulations, as currently stated, needed to be clearer in this regard:

"The Regulation should be amended to stipulate a medical assessment will only be carried out in exceptional circumstances and with the consent of the appellant. A clear definition of what is meant by exceptional circumstances is required and should also be set out in Regulations."

It was suggested that examinations should be carried out in a timely fashion and more detail on timescales for completion may be required in the Rules:

"…we are concerned that this may prolong the Tribunal process or create delays in the process - the Rules do not specify when or where such an examination should take place or at what stage in the proceedings. We think the Rules should set out time limits within which the medical examination should take place, in order to keep any delay to a minimum."

Similarly, Regulation 26 could be amended to explicitly state that no medical examination/assessment can be carried out at the hearing, it was suggested.

Another respondent specifically stated that they would prefer assessments to be carried out by the decision-making body, to maintain clear lines of accountability within the decision-making process.

A comment was made by one organisation that it was important to ensure that selected medical practitioners possessed appropriate training and skills in working with people who have communication barriers. Similarly, one organisation expressed concerns that not all practitioners are adequately trained in understanding mental health issues and this could be problematic (assessments could be unreliable due to fluctuations in a person's mental health, and some assessments may be biased by lack of understanding of mental health problems/presentations).

Suggestions were made that the medical evidence of practitioners already known to the appellant may be more reliable/credible, since they would be more familiar with the individual case (and their daily lives). For women, especially those who have experienced domestic violence or abuse histories, the importance of familiarity with a known medical practitioner was stressed (using independent medical examiners to 'cross-check' findings may be unduly intimidating in some cases).

One response questioned the move away from carrying out medical examinations at hearings on Industrial Injuries Disablement Benefit and the rationale/context of this proposal given that the existing process was seen as already fit for purpose. The same respondent also sought clarification on how medical practitioners would be identified and appointed, specifically in relation to the Scottish Government's pledge that profit making organisations will not be involved in carrying out disability assessments in Scotland.

Overall, several disparate comments were made in relation to independent medical examinations. While most support this provision, in exceptional circumstances, some respondents would like to see reassurances built in around timeliness and appropriateness of the selected practitioner.

Mediation

More detail was requested regarding mediation and the support an appellant has access to when going through mediation (especially those with communication needs or learning disabilities) to ensure that the redetermination process is accessible. This included information about how service availability (and lack of availability) in different geographical areas might be overcome and who would pay for such support, as well as how abuse of charging for expenses by representatives may be avoided. Similarly, it was suggested that there needs to be mention in the Regulations around the right to access independent advocacy for anyone covered by the Mental Health (Care & Treatment) (Scotland) Act 2003.

Interpreters

One respondent indicated that the role of interpreters (specifically) should be extended even further to include communications with clerks both pre and post-hearing and another said that the Rules should extend to all communication assistants rather than interpreters alone.

Others simply stressed the importance of having third party supporters attend hearings, especially in cases where there is no formal representation and the appellant may not be able to accurately present their case (and especially in cases involving a young person under 18). Clarity may also be required around how decisions regarding the 'appropriateness' of extended support are determined, and by whom and caution needed to be exercised that interpreters were truly 'independent' (and not known to appellants, which may be difficult given the small community of qualified interpreters in Scotland, etc.)

Recordings

Feedback regarding recordings was generally positive, and was again seen as a step towards transparency, fairness and accuracy ( i.e. to allow digital recording of hearings of the Social Security chamber as standard, with exceptions where circumstances dictate). One respondent indicated that the method of recording sessions needed to include accessible methods for British Sign Language users and deaf people and a call was also made for the recordings to be made available to appellants if requested, to ensure transparency. This includes providing written transcripts of recordings for hearing impaired adults.

The importance of consent for recordings was highlighted by one organisation i.e. consent must be being given by all those present for such recordings to take place, with a suggested 'opt out' process in place, especially for those experiencing mental health challenges such as psychosis or schizophrenia for whom the experience may be distressing or cause paranoia:

"We believe there may be very rare occasions where appellants may be disinhibited to attend an oral hearing where they know it will be recorded ( e.g. because of a mental health condition) and we consider such appellants should have an opportunity to raise with the FtT their concerns."

Some further clarity on how the recordings would operate may be required and issues around consent, access and appropriateness should all be more clearly set out:

"We think that the proposal that hearings will be recorded as a matter of routine is reasonable. All parties should be made aware of this and reminded of this before the hearing takes place; moreover, at the time of making an appeal to the Tribunal, an appellant should be made aware of this. At the time of making the appeal, the appellant should have the opportunity to make representations as to why they think this (routine recording) should not apply to their hearing. There should also be a clear process for appellants to request a copy of the recording."

More detail around how recordings would be stored and how access would be managed may be required (including access to recordings by the appellant and others). A strong theme was that the right to access recordings must be clearly communicated to appellants. Finally, one individual stressed that there was a need to ensure robust hand-written notes/recordings of proceedings and that these be provided to all parties too, in those cases where there was an absence of a digital recording.

Venues

The draft Regulations set out that cases before the Social Security chamber may be heard at such a time and such location in Scotland as the President of Tribunals decides, ensuring accessibility for all parties. There were few comments specifically relating to venues except one respondent who noted that hearings at people's homes may be more appropriate in some cases, especially for those who may have difficulty travelling with dignity. Avoiding hearings in court building may be appropriate, as this was seen as too formal/intimidating, in some cases. Another respondent commented that the wording could be more specific in terms of stating that the Tribunal will be flexible about the location and date depending on the individual needs of the claimant. The same respondent also indicated that it was important that the appellant is given good notice of the Tribunal and provided with accessible information about it. One individual also indicated that the Rule as proposed may be too prescriptive limiting decision making to the President of Tribunals and another suggested that additional flexibility and rigour be explicitly built into the Rules to ensure that all venues are suitable on a case-by-case basis:

"We feel there should be additional Rules here requiring the President of Tribunals to have assessed any special needs of the parties prior to giving notice of the hearing time or venue…Rule 23 should explicitly refer to the need to take account of factors such as disability, lack of means to attend a hearing at a distant location and so forth in ensuring the hearing takes place at a suitable time and location."

Expenses

Regarding expenses, comments generally emphasised that there is a lack of detail, both in the provision itself and in the consultation document, as to the rationale behind the changes and how the provision would be applied. The draft Regulations set out that an award will be made for travel and other reasonable expenses incurred by those attending a hearing including, where appropriate, both parties to the case and any witnesses called by the parties or Tribunal itself:

"…in comparison with the existing FtT Rules, this new Rule would appear to be introducing a wider power to make an award of expenses…There is a lack of detail, both in the provision itself and in the consultation document, as to the rationale behind this and how it is envisaged that the provision will be applied."

This same respondent suggested that the new chamber adopt the existing position as per Rules 10 and 21 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement chamber) Rules 2008. Another suggested there was no justification for this Rule given that it may detract from the core business of the Tribunal to decide entitlement to benefit.

One other respondent explicitly commented that they disagreed that appellants may be ordered to pay expenses as this could act as a deterrent:

"Appellants in general and people with learning disabilities in particular will frequently have very limited financial resources and we are concerned that the potential for such an order could inhibit participation in the appeals process…such expenses should be an administrative function and not a matter for the Tribunal."

Similarly, there is a need to ensure that there is no disincentive to appeal due to the fear of being made to pay an order of expenses, it was felt.

One organisation indicated that they would like to see parties given an opportunity to make representations before the FtT before any award for expenses is made against them. Concerns were also raised in relation to cover of childcare costs and adults to accompany young people to hearings. One other comment was made that deadlines should be set for expenses to be paid, cash options should be available for payment and/or pre-paid travel options should be employed ( e.g. pre-paid taxis to negate the need to claim back travel expenses). Overall, proposed Rule 10 was seen as being a radical departure from the present position which was not fully explained or justified.

Review Decisions

Very few comments were made regarding review decisions ^[7] (the proposal being that, unlike the 2008 Rules, a review of a decision made by the Social Security chamber can be undertaken at the request of a party to the case of the FtT deciding to revisit its own decision). The proposed changes were welcomed but it was suggested that additional clarification was required, specifically setting out the grounds on which review may be undertaken (and how this would be managed) to avoid over-use of this Rule. Similarly, one respondent suggested that, unless the grounds of review are in some way limited, there is a risk that the Upper Tribunal in Scotland may be called on to determine issues of fact which are more suitable for the SSC. One other organisation suggested that clarity was required around who undertake the review:

"… it should be made clear in the Rule that where a review decision is being made by one FtT member it should be the legally qualified member and where the decision is made by more than one FtT member that at least one of the members is the legally qualified member."

One organisation suggested that Rule 39 should provide for the FtT to first consider whether to review the decision in accordance with Rule 40, when it receives an application for permission to appeal against its decision. The same organisation suggested that existing Rules around giving notice to parties for FtT reviews may be too prescriptive and have potential to cause delays. More general comments again related to the need to make sure that all interactions between appellants and the chamber employed accessible communication.

Q6. Do you have any comments on any other aspect of the draft Rules of procedure?

Just under half of respondents (10) offered comments on other aspects of the draft Rules of procedure for the Social Security chamber (six had no comments and nine gave no response).

Communication

For the most part, responses focused on accessibility and communications with suggestions that use should be made of Skype or other alternative communication tools to further enhance accessibility and reduce barriers presented by travel (and the cost of travel) to Tribunals. Similarly, domiciliary hearings may be appropriate in some cases and may be a fairer way of assessing someone's entitlement to disability-related assistance, it was felt. More consideration could be given to the needs of people for whom English is not their first language and preferences to have interpreters of a specific gender may also be appropriate in some cases, it was suggested. A more general comment was also made that reference to the Principles of Inclusive Communication be made in the Regulations, to ensure accessibility to those with learning difficulties.

Two respondents focused on the need for a party (and their representative) to receive/access a hard copy of all relevant documentation (instead of electronic communications alone), that a request for hard copy material can be made by a party and that the FtT give due consideration to whether the circumstances are such that a hard copy is required. One organisation suggested that the Rules around giving orders should include that written notice should also be given to "every other party affected by the order." This amendment would then permit a copy of an order, for instance seeking GP case notes, to be issued to the person from whom this information is sought. The same organisation queried if there would ever be justification to not send written notices of directions and asked for some indication of when it was envisaged that "a good reason not to do so" might apply.

One organisation indicated that Rules regarding notice of decisions were inadequate and suggested that there should be a definitive time limit within which the Tribunal must issue a final decision. The same organisation suggested that the Rules regarding decisions with or without a hearing should be amended such that "each party has consented", rather than "no party has objected" to the matter being decided without a hearing. The requirement for consent would ensure that each party has explicitly been asked whether or not they are happy for the matter to be decided without a hearing whereas a requirement for no objection may mean that, in some cases, a party might inadvertently (and perhaps without receiving notification) allow the decision to be made without a hearing.

One final respondent suggested that there was a lack of any rationale/context as to why publication of FtT decisions may be required and what the purpose of publication would be.

Appeals and Notice of Appeal

One organisation suggested that the requirement upon an appellant to provide a copy of the redetermination with their notice of appeal be reconsidered, as this may be a barrier to some people exercising their right of appeal (and copies could instead be requested from Social Security Scotland). Similarly, provision should be included to allow appellants more time to produce copies of items required with the notice of appeal, with assistance from the Tribunal staff, where necessary.

One comment was made that greater clarity is required around the right to withdraw an appeal at any time prior to a hearing and to do so with the Tribunal's consent. A comment was also made that the requirement for an appellant to state the outcome they are seeking in their appeal application be reconsidered, since this may be unduly challenging. It may, instead, be sufficient for a claimant to state the grounds on which the appeal rests, it was suggested.

Workloads

One organisation submitted additional comments that related to staffing and workloads in the First-Tier Tribunal. They suggested that that Rule 4(1) wrongly restricts the delegation of judicial functions to staff with appropriate legal qualifications (since clerks and Tribunal Case workers could carry out duties under judicial supervision). The same respondent also noted that Rule 5 relating to case management powers was insufficiently clear in terms of who would carry out the designated functions. Workload volumes may be too great for the chamber President particularly when the Disability Assistance benefits are devolved, it was suggested.

Evidence, Submissions and Witnesses

One organisation presented a view that the that draft Rules relating to evidence and submissions replicated existing Social Entitlement chamber ( SEC) Rules and were, therefore, largely irrelevant. The Rules relating to citation of witnesses were also equivalent to SEC Rules which are rarely applied and should be retained for any exceptional circumstances, it was suggested. The same respondent also questioned what would happen if a party was required to provide expert evidence under the new draft Rules but could not afford to appoint an expert.

Other Comments

Other more disparate comments raised by only one respondent each included that:

• the Regulations need to make reference to independent advocacy and people subject to the Mental Health Act having a legal right of access to independent advocacy;
• further qualification is required that the FtT should take into account the circumstances of the party and any reason given for failure to comply; and
• that a separate consultation may be required to specifically explore addition, substitution and removal of parties.

Q7. Would you welcome provision for supporters in cases before the Social Security chamber to have the opportunity, with appropriate permission, to make representations during proceedings?

A large majority of respondents (18) said that they would welcome this provision, and only one respondent explicitly said that they would not. The remaining six gave no response.

The main reasons given in support of this Rule were that supporters were more likely to know the detail of an appellant's case (and case history/lifestyle), that they would be more trusted by/give confidence to appellants and that it may be difficult for appellants to secure alternative representation. Employing known supporters in this role was seen as particularly valuable for vulnerable adults (including being able to have them physically sit alongside the appellant during hearings).

Using supporters to make representations during proceedings was also seen as supporting the principles of 'less formality' in the appeals process (and was seen as less adversarial), although flexibility was urged to allow the extended use of supporters only where appropriate and with consent of appellants. The reserved system was seen as demonstrating best practice in this regard, with Tribunal Judges afforded flexibility in the way that they manage requests for support from appellants, and similar calls for discretion were made for the new FtT. It should also be laid out clearly what exact representations supporters can make (and how this differs from representatives per se).

Indeed, the one reason given for lack of support was the potential for confusion to arise as to who is representing an appellant at a hearing and the blurring or boundaries between the role of supporters and representatives:

"We consider that in spite of the clear statement at Rule 12(5) ( i.e. that a supporter may not represent the party), the provision at Rule 12(2)(d) would appear to provide supporters with the opportunity to make such representations with the potential consequence of the role of supporter and representative becoming blurred."

This contrasted strongly with the view of one individual who stressed that any overlap should not be seen as problematic:

"…there is no reason why a support should not act as a representative if there is no formal representative…I consider that this Rule should be removed and a reference should simply be made to the entitlement to attend with a supporter in Rule 28."

The same individual also stressed that the requirement of both parties (including the FtT) to communicate the representative's name prior to the hearing may be administratively challenging to implement. This is because individual representatives often act on behalf of organisations, and their individual identities are not always known in advance. The draft Rules of Procedure were seen as 'unnecessarily inflexible' in this regard.

In responses given elsewhere in the consultation, concerns were raised about what would happen in cases where the supporter and representative held views that did not concur and that the presentation of conflicting views by both parties could be counter-productive and not be in the appellant's best interests. There may also be some blurring of boundaries/roles/expectations where a family member, friend or carer is appearing as a witness, as well as a supporter.

Importantly, while some supported the extended role of supporters, others expressed that their involvement should only be to endorse or corroborate statements of the appellant instead of offering information additional to what had been provided:

"Supporters may be allowed to contribute to the discussion, by agreement of all parties. However, their input should be to corroborate the statements of the appellant. As a supporter, they should not be acting as communication support, for example, and should not be asked to provide fresh evidence that has not already been sought from the appellant."

Comments were also made in other responses that the role of supporters could be even further enhanced, that the individual should be able to decide what kind of support is required and that there should be a clear, more explicit reference to the appropriateness of a supporter for appellants with mental health concerns. In any case, the presence, or otherwise, of a supporter should have no impact on an individual's access to independent advocacy, it was stressed:

"We believe all people engaging with the social security system, including the Tribunal system should have a right to independent advocacy."

Finally, one organisation noted that Rule 11 refers only to 'representative(s)' whereas the UK Rules refer to 'legal or lay representative(s)' and questioned if this divergence was deliberate.

In essence, the moral and social support that a supporter could provide was seen as valuable but only if it was complementary to, and never a substitute for, legal representation or independent advocacy.

Q8. Are there any other respects in which you would consider that the approach of the 2008 Rules should be departed from?

Most (14) said that there were no other respects in which they considered the designated approach should be departed from, and nine gave no response.

The main suggestion for change was more clearly setting out how time would be monitored with regards to the postage and receipt of documents by both the FtT and the appellant. It was suggested that it is currently not clear how the appellant is to know the precise date on which the respondent or FtT sends formal documents, although the date is crucial in determining when the appellant's time limit starts to run for response. A suggestion was made by this respondent to rely on section 7 of the Interpretation Act 1978, where if something is sent by post, properly addressed and with postage pre-paid, it is deemed to be received "at the time at which the letter would be delivered in the ordinary course of post".

One other specific comment was made around providing more support and signposting of support for women involved in FtT appeals, and ensuring individuals have access to independent advice throughout the process of making an appeal more generally.

Q9. Do you have any other comments you wish to make on the draft procedure Regulations?

Again, a large number of respondents either said that they had no further comments (8) or did not provide a response to this question (11). Of the six who did provide further comments, these related mainly to strengthening the Regulations by:

• making reference to independent advocacy and people subject to the Mental Health (Care & Treatment) (Scotland) Act 2003 having a legal right of access to independent advocacy;
• recognition within the Social Security principles of according it the appropriate status as a basic human right in accordance with Article 22 of the UN's Universal Declaration of Human Rights;
• providing more notice to support organisations ahead of Tribunals in which their clients are engaged;
• considering accessibility of venues, including the suitability and comfort of the spaces and provision of suitable communication supports throughout; and
• the enabling ethos of the Tribunal being stressed and unnecessarily prescriptive Rules being removed.

Overall, a number of changes were suggested in relation to draft procedure Rules, mostly to the wording of the draft Regulations to add clarity/accuracy.