Tribunals (Scotland) Act 2014: Additional Support Needs Tribunals for Scotland consultation

Part 2: Draft Regulations Transferring the Functions and Members of the Additional Support Needs Tribunals for Scotland to the Scottish Tribunals

Background

10. Section 28(2) of the 2014 Act provides the power for the Scottish Ministers to make regulations to transfer the functions of the listed tribunals in Schedule 1 of the 2014 Act, to the First-tier Tribunal only; the Upper Tribunal only; or to the First-tier Tribunal and the Upper Tribunal.

11. Schedule 2 and section 29 of the 2014 Act provides the power for the Scottish Ministers to make regulations to transfer the members of the listed tribunals to the First-tier or Upper Tribunals.

Draft Regulations

12. The policy intent is for the ASNTS to transfer into the Scottish Tribunals structure with their existing membership and functions in so far as practicable. Upon transfer the ASNTS will be abolished and thereafter first instance decisions will be heard in the First-tier Tribunal Health and Education Chamber with onward appeal to the Upper Tribunal.

13. The draft regulations propose that the President of the ASNTS transfers in as Chamber President of the First-tier Tribunal Health and Education Chamber. Convenors of the ASNTS will transfer in as legal members of the First-tier Tribunal. Other members of the ASNTS will transfer in as ordinary members of the First-tier Tribunal with allocation to the Health and Education Chamber.

14. The draft regulations set out the transitional arrangements that cases in progress on the day of transfer will be continued in the First-tier Tribunal. If a hearing is in progress then it will be completed by the First-tier Tribunal comprised of the same members, where possible. Time limits which have started to run prior to commencement of these regulations and have not expired shall continue to apply.

15. If a party wishes to appeal a decision of the ASNTS but has not exercised this right before 29 November 2017 then the appeal route will be to the Upper Tribunal as opposed to the Court of Session. We propose that if a party has already exercised their right of appeal before 29 November 2017 then the appeal will not be affected by the new regulations and will be completed by the Court of Session.

16. The regulations will repeal Schedule 1 of the Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act), which set up the ASNTS. Once the ASNTS is transferred into the Scottish Tribunals the relevant sections of the 2014 Act will cover the equivalent provisions.

17. The draft regulations make amendments to existing legislation, replacing references to the ASNTS with references to the First-tier Tribunal, and references to the Court of Session with references to the Upper Tribunal.

18. The draft regulations repeal the Additional Support Needs Tribunals for Scotland (Appointment of President, Conveners and Members and Disqualification) Regulations 2005, as these are replaced by the eligibility criteria put forward in this consultation (for ordinary members) and in the Scottish Tribunals (Eligibility for Appointment) Regulations 2015 (for legal members).

19. The draft regulations also repeal The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 and the Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011 and replace those with the new Rules and Procedure for the Housing and Property Chamber of the First-tier Tribunal, which replicate the previous rules subject to the alterations set out at Part 3 of this consultation.

QUESTIONS ON THE TRANSFER OF THE ASNTS

Q1: Do you have any comments on the draft transfer of functions and members Regulations?

Q2: Are you content with the provisions regarding transitional arrangements?

Q3: Are you content with the provisions relating to the transfer of functions and members?

Q4: Do you have any other comments you wish to make?