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

Composition of the First-Tier Tribunal and Upper Tribunal for Scotland

Sections 38 and 40 of the Tribunals (Scotland) Act 2014 allow the Scottish Ministers, by Regulations, to determine the composition of the First-tier and Upper Tribunals.

The draft Regulations propose that First-tier Tribunals shall always comprise at least one legal member, but that ordinary members can assist in decisions where particular specialisms are required ( e.g. disability experience or medical expertise). Flexibility is to be built in to ensure that the all cases dealt with by the Social Security chamber are handled on their own merit and by members best suited to consider the case.

The draft Regulations also propose that cases appealed from the Social Security chamber to the Upper Tribunal for Scotland should be decided by a legal member of the Upper Tribunal, the chamber President of the Social Security chamber (as long as they were not involved in the case prior to its being appealed), the President of Tribunals, the Lord President, or a judicial member of the Upper Tribunal.

Part four of the consultation sought views on the proposed composition for the SSC and the Upper Tribunal for Social Security appeals.

Q10. Do you have any comments on the proposed composition of the Social Security chamber when dealing with an appeal against a determination of entitlement as described in the Social Security (Scotland) Bill?

This question was wrongly labelled on the Citizen Space platform and so created some mixed responses, some of which addressed an earlier question in the consultation.

Among those who did directly address the question (5), there were mixed views. One organisation supported the proposed composition but suggested that additional clarity was needed around when an appeal in relation to disability assistance may be heard by a legal member sitting alone. Another organisation indicated that it was not fair, beneficial or in keeping with other Regulations to have a sole member making decisions and this same organisation also urged consideration to be given to the gender composition of those conducting hearings, with female only members being used if appropriate ( i.e. in cases where the use of male members may be off-putting or lead to anxiety for a female claimant).

A third organisation supported the draft Regulations overall, and especially welcomed the use of a legal member plus one ordinary member of the FtT who had lived experience of disability in relevant cases, as well as the presence of a registered medical professional. Another suggested that clarity was required, however, around the term 'disability experience' (Regulation 2 (a)).

A detailed response was submitted by one organisation which stressed the need for people with lived experience to be present at Tribunals to help embed the principles outlined in the Social Security (Scotland) Bill, specifically respect for the dignity of individuals to be at the heart of the Scottish social security system. With this in mind, clarity was sought around:

• the scope of the use of ordinary members - concern was raised that the role of the ordinary member in the proposed social security First-tier Tribunal is restricted to cases involving assessment of medical issues in relation to entitlement to disability assistance. All sittings of the Tribunal would benefit from the lived experience provided by the ordinary member, it was felt; and
• the appointment of ordinary members - a view was put forward that appointments should be condition specific ( e.g. where the case involves someone whose primary disabling condition is a mental health problem, the ordinary member should be someone with lived experience of mental health).

A final organisational response was received which stressed that the proposed composition failed to recognise the judicial role and status of those appointed to hear appeals in the Upper Tribunal and risked, therefore, undermining the status and diminishing the specialism of those hearing cases in the Upper Tribunal. The same response indicated that proposed Regulation 4 was inflexible in that it allowed for two judge panels but not three judge panels ( i.e. it is not possible for a judicial member and a legal member to sit together or for two judicial members or two legal members to sit together) and this was seen as undesirable since the legal members are likely to be the most experienced in social security matters.

Q11. In particular, are you content with the default position that cases should be decided by only one member, namely the legal member, unless certain forms of assistance are under consideration?

Almost half of respondents (11) said that they were content with this proposal and a further nine gave no response. Among the five who were not content the main reasons given were that one member may not be impartial (and thus there should always be three members present), that there may be an argument for including a lay member with lived experience in all appeals (especially those relating to overpayments) since this would afford additional insight, that having three members was consistent with the approach taken at Mental Health Tribunal Hearings (and this represented good practice), and that there may be other cases where 'specialist' knowledge is required, which was not accounted for in the draft Regulations:

"We think that there is value in involving lay members with lived experience in determining the outcome of appeals…."

Most others simply offered support that the proposal maintained the status quo and felt that legal members would be most suitably qualified to make decisions acting alone in the majority of standard appeal cases.

Q12. Do you have any comments on the proposed composition of the Upper Tribunal for Scotland when deciding appeals from the Social Security chamber to the Upper Tribunal?

Ten respondents indicated that they had no further comments/were content with the proposal, and ten gave no response. Among the five who gave substantive responses, the need for the Upper Tribunal to comprise a legal person, a lay person and a medical specialist was stressed and two others urged a mix of skills, experience and lived experience of relevant matters on the Upper Tribunal.

One individual put forward the view that they did not consider that the chamber President of the Social Security chamber should be part of the Upper Tribunal as they perceived that the role was entirely different and that the First-tier and Upper-tier should remain distinct.

Q13. Do you have any other comments you wish to make on the draft composition Regulations?

Only three respondents provided additional comments, and these related mostly to the need for flexibility in composition for different cases, the need for those who sit on the Upper Tribunal to be expert in their particular area of law (to avoid the need to convene a panel of Upper Tribunal judges to resolve inconsistency/uncertainty) and the value of employing lay members:

"…it is imperative that those who sit on the Upper Tribunal are able to be expert in that particular area of law and are not seen simply as generic judges in order to ensure the development of the jurisprudence of this jurisdiction."