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

Rules of Procedure for the Upper Tribunal for Scotland

The draft Regulations for the Upper Tribunal closely mirror the generic Rules of procedure already set out in the Upper Tribunal for Scotland (Rules of Procedure) Regulations 2016, but have been modified in a number of ways. The final part of the consultation sought views on these changes.

Q18. Do you have any comments on any of the elements of the draft Rules of procedure described at paragraphs 54 - 61 in Part 7?

Six respondents indicated that they had no further comments to make and seven gave no response.

Interested Parties

The remaining twelve raised concerns that related mostly to the removal of reference to interested parties (defined in the generic Rules of procedure for the Upper Tribunal for Scotland to mean parties other than the appellant and respondent to whom notice of the various stages of proceedings before the Tribunal is to be given). Reference to interested parties would be removed from Rules relating to social security proceedings. Several commented that supporters and representatives of appellants should be classified as such and included in the giving of notice at various stages of proceedings. Others commented that the same concerns regarding supporters that were raised in relation to the FtT similarly applied to the Upper Tribunal Rules.

Expenses

Concerns regarding orders for expenses were also raised, the same as for the FtT draft Regulations. A suggestion was made that 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 (similar sentiments were raised as before around covering childcare costs and covering expenses for adults to accompany young people to Tribunal hearings):

"…our view is the same as for Regulation 10 of the Annex C Regulations. In addition, as a matter of policy, it would be helpful to clarify whether a Tribunal would reduce any prospective award of expenses to nil in such situations in which a representative had been appointed through the legal aid scheme in Scotland (as provided in Regulation 35)."

Orders for expenses may also inhibit participation in the appeals process and it was suggested that expenses should be an administrative function and not a matter for the Upper Tribunal:

"The Regulations provide for the Upper Tribunal for Scotland to make an order for expenses for matters such as travel, sustenance and loss of remunerative time against either party. We are concerned that the potential for such an order could inhibit participation in the appeals process. In our view such expenses should be an administrative function and not a matter for the Upper Tribunal."

Another respondent questioned the need for orders in relation to expenses since these do not currently apply in the Administrative Appeals chamber and this has not given rise to difficulties in the past. The same respondent questioned the rationale for consent orders and indicated that the rationale for this change was not explained in the consultation.

Withdrawal of Cases

One organisation set out a view that an individual's right to withdraw a case should not be contingent upon the Upper Tribunal's agreement and the same organisation also suggested that the decision on whether a case should be allowed to proceed to the Upper Tribunal should always be made by an independent First-tier Tribunal judge, rather than by the judge who presided over the original First-tier Tribunal.

Other more general comments were made that human rights and the embedding of the Charter were as important in the Upper-tier as the First-tier draft Rules for proceedings (and this may be an omission in the Upper Tribunal draft Rules of procedure). Another organisation noted that sitting members of the Upper Tribunal are not covered by the Gender Representation on Public Boards (Scotland) Act due to their role as executives and that the Regulations should, therefore, include requests to be heard by a female member, if appropriate.

One organisation provided a strong view against many of the proposed revisions on the basis that they duplicated or muddied existing Rules for the Upper Tribunal for Scotland and would be administratively burdensome to implement. Comments were made that the rules, as drafted, may lack clarity and have potential to cause delays to procedures as a result. More thought also needed to be given to how support staff could assist in implementing the proposed changes. The existing two-stage process for making applications for permission to appeal were seen as preferable to the proposed new approach and reference to the Charter was again not seen as appropriate for procedural rules.

Q19. Do you have any comments on any other aspect of the draft Rules of procedure?

Most respondents answered 'no' (11) or gave no response to this question (12). The two who did comment requested further consultation around the use of orders for expenses, queried the rationale/need to introduce new Rules for dismissal of a party's case and queried why there was no provision in the draft Rules to allow for an application to judicial review proceedings before the Upper Tribunal to be made in certain circumstances (as is the case in the existing Tribunal Procedure (Upper Tribunal) Rules 2008). One noted that Rule 15 of the draft provisions introduce the same provisions in relation to supporters as per Rule 12 of the draft FtT Rules and again raised the potential of blurring of the roles of supporters and representatives under the proposed Upper Tribunal Rules.

Q20. Are there any other elements of the Rules applicable to social security proceedings in the Upper Tribunal which you think should be replicated in the draft Rules for the Upper Tribunal for Scotland, and have not been?

There were no substantive responses to this question - all either indicated 'no' (10) or gave no response (15).

Q21. Conversely, are there any elements of the Rules applicable to social security proceedings in the Upper Tribunal which have been replicated in the draft Rules for the Upper Tribunal for Scotland, and which you do not think should be so replicated?

Again, there were no substantive responses to this question - all either indicated 'no' (10) or gave no response (15).

Q22. Do you have any other comments you wish to make on the draft procedure Regulations for the Upper Tribunal?

Only three substantive comments were made in response to this question. One stressed again that the process should be as simplified and consistent as possible to aid understanding and compliance. One stressed that clarity is required on whether decisions relating to devolved benefits can or should be taken into account for a reserved benefit and vice versa. The final response stressed that many of the concerns relevant to the proposed Rules for the FtT were also applicable to the Upper Tribunal draft Rules and also noted that Rule 28 (Hearings in a party's absence) may be difficult to implement given the challenges of proving whether or not notification of hearings had been received by the party concerned (and which might account for their absence).

Continuous Improvement

There were few additional comments made on the consultation per se. One respondent suggested that appeal panel members should be able to provide feedback on the quality of the decision process presented to them and that improvement targets should be set to limit poor performance going forward. Another suggested that it would be prudent to have a situation where the President of the Social Security chamber in Scotland was also a judge in the Social Entitlement chamber in order to ensure that there is a smooth transition when the devolved and reserved jurisdictions both become part of the Scottish Courts and Tribunals Service (meaning that they would therefore have existing experience of the current Tribunal Rules).

Equality Considerations

A cross-cutting theme presented by one organisation across the consultation was that the social security system and any changes to it would disproportionately affect women compared to men, since they are over-represented in the system from the start. Similarly, comments were made that any changes to the system would be harder to navigate for those with learning disabilities, physical disabilities and mental health problems and that the unique challenges faced by these groups needed to be considered at all stages of any development plans:

"That all communications meet the accessible information standards and inclusive communication principles. That a person-centered, rights-based approach provides suitable flexibility to meet circumstances, not one size fits all approach."

Consultation Process

One of the main other comments that was received was around the inaccessibility of the consultation document itself. The complexity of the document language was seen as a possible barrier to participation in the consultation exercise and was seen, therefore, to go against the principles of including all stakeholders in the design of the new social security system. One organisation outlined that, in its view, previous submissions to the Scottish Government in regards to the development of the new social security system had perhaps been overlooked and that the nuances previously discussed were not necessarily reflected in the consultation document although no justification was provided for the opinions expressed.

In contrast, some respondents reiterated in their overall response that they were pleased by the Scottish Government's ambition to adopt a rights-based approach and to build a social security system founded on the principles of fairness, dignity and respect and welcomed that this ambition was reflected in the new draft Rules.