Determination by the Scottish Ministers
52.Section 37 places a duty on the Scottish Ministers to decide whether or not a person is entitled to assistance as provided for in Chapter 2. This may be as the result of an application or, where regulations under section 52 so provide, without application.
53.One example of when Ministers may determine entitlement without an application is in circumstances where they already hold sufficient information to determine an individual’s entitlement. An example could be where a person was entitled to winter heating assistance in the previous year and Ministers have no reason to believe the person’s circumstances have changed since. Regulations under section 52 could, in that case, provide for Ministers to determine such a person’s entitlement and make a payment without any application for winter heating assistance having been made.
54.Another example of when Ministers may make a determination of entitlement unprompted by an application is where it has been determined that an individual is entitled to assistance on an ongoing basis (see paragraphs 42 to 45 above) and before the end of the period covered by that forward-looking determination of entitlement Ministers learn that there has been a change in the individual’s circumstances. In that event, Ministers would determine again the individual’s entitlement to the type of assistance in question in light of the change in circumstances. As explained in paragraph 47 above, the resulting determination may (to some extent) supersede the earlier one.
55.As all the information required to make a determination of entitlement may not be available where there has been no application, section 52(2) allows for regulations to specify the information and assumptions that are to be used in making a determination in such circumstances. For instance, in the winter heating example given in paragraph 52 above, a determination of entitlement to that type of assistance in succeeding years would necessarily rest on an assumption that the individual’s circumstances have not materially changed between times.
56.Section 38(1) allows Ministers to specify how applications for assistance are to be made and to require evidence to be provided along with applications. For example, an application for early years assistance might require to be accompanied by evidence of pregnancy. A purported application for assistance will not trigger Ministers’ duty to make a determination under section 37 if it is not made in the form, or not accompanied by the evidence, required by Ministers. If Ministers do not accept that something is a valid application, they have to advise an individual of their reasons and that there is a right of appeal (provided for by section 61(1)(a)). Section 38(2) places Ministers under a duty to make the public aware of the requirements for applications set under subsection (1).
57.Section 38(3) provides that, ordinarily, once a person has applied for assistance in respect of a particular period or event and a determination of entitlement has been made as a result, the person cannot apply again for the same type of assistance in respect of the same period or event. This means that if someone applies for early years assistance in relation to the birth of a child, and Ministers make a determination of whether or not the individual is entitled to early years assistance as a result of the child’s birth, the individual cannot apply again for early years assistance in respect of the birth of the same child. (This rule is, however, qualified by subsection (4), as explained in the next paragraph.) If the individual is aggrieved by the Scottish Ministers’ determination, he or she can request a re-determination under section 41 and, if still dissatisfied, can appeal under section 46 (see paragraphs 36 and 37 for a fuller summary of the various ways in which a determination of entitlement can be made). To be clear, section 38(3) would not prevent a different individual applying for early years assistance in respect of the birth of the same child. Nor would it prevent the same individual applying for early years assistance in respect of a different event in the life of the same child.
58.Subsection (4) of section 38 qualifies the effect of subsection (3). It allows another application for assistance to be made in respect of an event despite the rejection of an earlier application where the last determination made in respect of the event says it can. Section 50(2) requires that a determination state that a further application can be made if the application being determined is found to be possibly premature. An application is possibly premature where the applicant does not qualify for assistance in respect of the event at the time the determination is made but may qualify in future should circumstances change (see section 50(3)). For example, someone may apply for early years assistance while pregnant but not be eligible as a result of applying too early in the pregnancy. In that case, the application is possibly premature and the applicant will be able to re-apply later. By contrast, if an application is rejected on account of being made after the deadline for applying, the application is not possibly premature (i.e. there is no possibility that a subsequent application can be made before the deadline). In that case, section 38(4) will not apply, with the result that the individual cannot subsequently apply for assistance in respect of the event.
59.Section 39 allows an applicant to withdraw an application prior to its determination. Where this is requested, the duty imposed on the Scottish Ministers by section 37 to determine the application ceases and no determination must be made. Ministers may require that such requests are made in a particular form, for example a written and signed request might be required (though in practice most applications are likely to be capable of being made electronically). As section 38(3) only prevents a further application being made in respect of a period or event if the preceding application results in the Scottish Ministers making a determination under section 37, it follows that if an individual withdraws an application before a determination is made, the individual can apply again for the same type of assistance in respect of the same period or event.
60.Section 40 requires that all persons who have applied for assistance, or whose entitlement to assistance has been determined without an application, must be notified of the Scottish Ministers’ determination under section 37 and the reasons for it. The person must also be told that they have the right to have their entitlement considered again by the Scottish Ministers (see section 41), and that they will have the right to appeal to the First-tier Tribunal if the Scottish Ministers do not complete their re-determination within a certain period (see section 46). This must be done in a way that gives the person a record of the information that can be shared with others. That would prevent, for example, the information being given solely by a telephone call. Where an assessment report was used in making the determination, the person must be advised that he or she has a right to request a copy of it (that right is provided for by section 60).
