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

Eligibility Criteria for Appointments

The draft Regulations prescribe eligibility criteria for appointment of ordinary members of the FtT with medical and disability experience.

Views on the eligibility criteria for ordinary members were sought as part of the consultation.

Q14. Do you have any comments on the proposals regarding eligibility criteria for appointment of ordinary members of the First-tier Tribunal with medical and disability experience?

Four respondents said that they had no comments to make and seven gave no answer. Fourteen substantive responses were received and the main views expressed were supportive of the need for ordinary members to have lived experience of disability and be knowledgeable about the specific disabilities being considered. One respondent explicitly stated that non-medical ordinary members without lived experience would lack the requisite skills/qualifications to provide fair hearings:

"[We] would object to people who do not have lived experience of disability being eligible to make decisions on disabled people's right to be provided with disability assistance."

Several respondents expressed a view that recruitment and selection needed to be robust and represent all sectors of the community. Appointment to specific cases should also be mindful of the specific condition of the claimant, ensuring that sitting members were sufficiently familiar with issues related to the applicant's condition ( e.g. have a good knowledge or understanding of mental health conditions, physical disabilities or other needs, as appropriate). One organisation said that appointments should also be gender sensitive and extensive training must also be received by all members, prior to sitting on any panel. Provisions could also be made to allow the ordinary member with lived experience to 'brief' the Tribunal ahead of the hearing taking place, it was suggested. This could include making the members aware of the nuances of the disability at hand.

One respondent suggested that unpaid carers should also be considered as eligible to be ordinary members, although others felt that having at least one member with direct lived experience was key, since vicarious experience was not the same:

"…it will be important to strike a balance between members who have professional experience of disability and those who have genuine lived experience of disability by virtue of having a disability or being a carer for someone with a disability."

One other organisation questioned if Regulation 3C(a) should specify which registered medical practitioners are eligible ( e.g. if they require to be registered with the General Medical Council).

Q15. Can you envisage a situation in which a person may have gained experience of the needs of people with disabilities, but which may not be covered by the criteria set out in the draft Regulations?

This question attracted an even split in responses, with eight respondents saying that they could and eight saying that they could not. Nine provided no response.

Among those who said 'yes', the main situations described included paid and unpaid carers working in people's homes. One respondent said that having experience in working with a broad range of disabilities was more important than having personal experience of being disabled. Conversely, one respondent stressed again that there were no situations in which the experience of a third party would be an adequate replacement for the lived experience of disabled people themselves. Another raised concern that some people may be employed in roles which appear prima facie to involve work with disabled people and disability issues, but have little direct experience or interaction with disabled people, meaning that they were not adequately qualified for the position of ordinary member.

Given the low number of responses to this question and the mix in views that were expressed, it is difficult to provide overall conclusions regarding criteria not covered in the draft Regulations.

Q16. Do you have any concerns about our proposed approach to identifying when a person will be considered to have a disability?

Four respondent raised concerns about the proposed approach to identifying when a person will be considered to have a disability. The remaining respondents either said no (9) or gave no response (12).

Most said that the definition of disability under Section 6 of the Equality Act 2010 was widely recognised and would be appropriate to the SSC, however, one respondent urged caution that the definition of disability does not restrict those that may be characterised as disabled and eligible for some form of assistance that does not come under the terms of the 2010 Equality Act. The same respondent suggested that it may be beneficial to add to the Regulations Article 1 of the UN's Convention on The Rights of Persons with Disabilities to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms, and to promote respect for a person's inherent dignity.

One final comment was made that, while the definition was not problematic, learning disability was still widely misunderstood and often invisible and the experience of inaccessibility experienced by people with learning disabilities may go unrecognised.

Q17. Do you have any other comments you wish to make on the draft eligibility for appointment Regulations?

Very few additional comments were made in relation to the draft Regulations for eligibility for appointment (5). One respondent suggested that consideration should be given to those currently undertaking roles of medically qualified or disability qualified members of the FtT. The changes to a devolved arrangement should not impinge on the status of those currently in place, it was suggested. Another stressed that it is important that any medical professionals or ordinary members appointed to Tribunals are truly independent (and not conducting examinations on behalf of Social Security Scotland or the Department for Work and Pensions).

Another respondent suggested that it is important that Tribunal members who have experience of disability should have a good awareness and training on issues relating to other protected characteristics and how issues intersect. A view was also put forward that ordinary members have sufficient expertise especially around complex and low incidence disabilities. One final view was that criteria be applied by the Judicial Appointments Board for Scotland.