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PART 2 SGIVING OF ASSISTANCE BY SCOTTISH MINISTERS

CHAPTER 1SASSISTANCE TO BE GIVEN ACCORDING TO DETERMINATION OF ENTITLEMENT

24Duty to give assistanceS

The Scottish Ministers must give an individual whatever assistance of a type described in Chapter 2 the individual is entitled to be given under a determination of the individual's entitlement to assistance.

Commencement Information

I1S. 24 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(f) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

25Meaning of “determination of entitlement”S

(1)References in this Part to a determination of an individual's entitlement to assistance are to a determination made—

(a)by the Scottish Ministers—

(i)under section 37, or

(ii)(following a request for a re-determination) under section 43,

(b)by the First-tier Tribunal for Scotland—

(i)under section 49 in an appeal against a determination made by the Scottish Ministers, or

(ii)(subsequent to such an appeal) under its Tribunals Act powers,

(c)by the Upper Tribunal for Scotland under its Tribunals Act powers (subsequent to an appeal against, or following a review of, a decision of the First-tier Tribunal),

(d)by the Court of Session under its Tribunals Act powers (in an appeal against a decision of the Upper Tribunal), or

(e)by the Supreme Court of the United Kingdom—

(i)in an appeal under section 40 of the Court of Session Act 1988 against a decision of the Court of Session, or

(ii)on a reference made by the Court of Session under schedule 6 of the Scotland Act 1998.

(2)In this section, “Tribunals Act powers” means powers under Part 6 (review or appeal of decisions) of the Tribunals (Scotland) Act 2014.

Commencement Information

I2S. 25 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(f) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

26Individual's right to stop receiving assistanceS

(1)An individual may request that the Scottish Ministers cancel a determination of the individual's entitlement to assistance.

(2)On being requested to do so under subsection (1), the Scottish Ministers must cancel a determination—

(a)with immediate effect, or

(b)with effect from a later date specified in the request.

(3)An individual is not entitled, and is not to become entitled, to be given assistance by a determination after it has been cancelled.

(4)A request under subsection (1) must be made in such form as the Scottish Ministers require.

(5)The Scottish Ministers must publicise any requirements for the time being set under subsection (4).

Commencement Information

I3S. 26 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(f) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

27Later determination supersedes earlierS

(1)The latest determination of an individual's entitlement to a particular type of assistance in respect of a given period or event supersedes any earlier determination insofar as it deals with the individual's entitlement to that type of assistance in respect of the same period or event.

(2)Accordingly the individual is not entitled, and is not to become entitled, to be given any assistance in respect of that period or event by the earlier determination insofar as it has been superseded.

Commencement Information

I4S. 27 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(f) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

CHAPTER 2STYPES OF ASSISTANCE TO BE GIVEN

28Carer's assistanceS

(1)Carer's assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual who provides, or has provided, care to another individual who has a disability.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to carer's assistance, and

(b)what carer's assistance an individual who is entitled to it is to be given.

(3)Schedule 2 makes provision about the exercise of the power conferred by subsection (2).

Commencement Information

I5S. 28 in force at 14.10.2019 by S.S.I. 2019/269, reg. 3

Prospective

29Cold-spell heating assistanceS

(1)Cold-spell heating assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual to meet, or help towards meeting, the individual's heating costs during a period of cold weather.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to cold-spell heating assistance, and

(b)what cold-spell heating assistance an individual who is entitled to it is to be given.

(3)Schedule 3 makes provision about the exercise of the power conferred by subsection (2).

30Winter heating assistanceS

(1)Winter heating assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual to meet, or help towards meeting, the individual's heating costs during the winter months.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to winter heating assistance, and

(b)what winter heating assistance an individual who is entitled to it is to be given.

(3)Schedule 4 makes provision about the exercise of the power conferred by subsection (2).

Commencement Information

I6S. 30 in force at 1.9.2020 by S.S.I. 2020/127, reg. 2(2)(a)

31Disability assistanceS

(1)Disability assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual on account of the individual having—

(a)a disability arising from a physical or mental impairment, or

(b)a terminal illness.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to disability assistance, and

(b)what disability assistance an individual who is entitled to it is to be given.

(3)Schedule 5 makes provision about the exercise of the power conferred by subsection (2).

32Early years assistanceS

(1)Early years assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to help towards meeting some of the costs associated with having, or expecting to have, a child in the family.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to early years assistance, and

(b)what early years assistance an individual who is entitled to it is to be given.

(3)Schedule 6 makes provision about the exercise of the power conferred by subsection (2).

Commencement Information

I8S. 32 in force at 10.12.2018 by S.S.I. 2018/357, reg. 2

Prospective

33Employment-injury assistanceS

(1)Employment-injury assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual on account of the individual, or another individual, having suffered an injury, or contracted a disease, in the course of employment.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to employment-injury assistance, and

(b)what employment-injury assistance an individual who is entitled to it is to be given.

(3)Schedule 7 makes provision about the exercise of the power conferred by subsection (2).

34Funeral expense assistanceS

(1)Funeral expense assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual to meet, or help towards meeting, funeral expenses.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to funeral expense assistance, and

(b)what funeral expense assistance an individual who is entitled to it is to be given.

(3)Schedule 8 makes provision about the exercise of the power conferred by subsection (2).

Commencement Information

I9S. 34 in force at 11.9.2019 by S.S.I. 2019/269, reg. 2(a)

Prospective

35Housing assistanceS

(1)Housing assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual to meet, or help towards meeting, housing costs.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to housing assistance, and

(b)what housing assistance an individual who is entitled to it is to be given.

(3)Schedule 9 makes provision about the exercise of the power conferred by subsection (2).

36Short-term assistanceS

(1)Short-term assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to an individual on a short-term basis.

(2)The Scottish Ministers are to make regulations prescribing—

(a)the eligibility rules that are to be applied to determine whether an individual is entitled to short-term assistance, and

(b)what short-term assistance an individual who is entitled to it is to be given.

(3)Schedule 10 makes provision about the exercise of the power conferred by subsection (2).

Commencement Information

I10S. 36 in force at 8.10.2020 by S.S.I. 2020/295, reg. 2(b)

CHAPTER 3SDETERMINING ENTITLEMENT

Determination by the Scottish MinistersS

37Duty to make determinationS

The Scottish Ministers are to make a determination of an individual's entitlement to a type of assistance described in Chapter 2—

(a)on receiving an application for that type of assistance from the individual, or

(b)when required to do so by regulations under section 52.

Commencement Information

I11S. 37 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

38Application for assistanceS

(1)An application for assistance must be—

(a)made to the Scottish Ministers in such form, and

(b)accompanied by such evidence,

as the Scottish Ministers require.

(2)The Scottish Ministers must publicise any requirements for the time being set under subsection (1).

(3)Once—

(a)an individual has applied for a particular type of assistance in respect of a period or (as the case may be) event, and

(b)the Scottish Ministers have made a determination of the individual's entitlement to that type of assistance in respect of the period or event,

the individual cannot make another application for that type of assistance in respect of the period or event.

(4)Despite subsection (3), an individual may make another application for a particular type of assistance in respect of an event if the latest determination of the individual's entitlement to that type of assistance in respect of the event states that the individual may make another application.

(5)If the Scottish Ministers reject something purporting to be an application for assistance, they must inform the individual concerned of—

(a)the decision to do that,

(b)the reasons for it, and

(c)the individual's right to appeal under section 61.

Commencement Information

I12S. 38 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

39Withdrawal of applicationS

(1)An individual who has made an application for assistance may request that the Scottish Ministers disregard it.

(2)If an individual requests that an application be disregarded—

(a)the Scottish Ministers are not to make a determination of the individual's entitlement to any type of assistance on the basis of the application, and

(b)accordingly, their duty to do so under section 37 ceases to apply.

(3)A request under subsection (1) must be made in such form as the Scottish Ministers require.

(4)The Scottish Ministers must publicise any requirements for the time being set under subsection (3).

Commencement Information

I13S. 39 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

40Notice of determinationS

(1)Having made a determination under section 37 of an individual's entitlement to assistance, the Scottish Ministers must inform the individual—

(a)of the determination,

(b)of the reasons for it,

(c)of the individual's right under section 41 to request that the Scottish Ministers re-determine the individual's entitlement to the assistance,

(d)that the individual will have the right under section 46 to appeal to the First-tier Tribunal against the determination should the Scottish Ministers fail to deal with a request for a re-determination within the period allowed for re-determination, and

(e)if relevant, that the individual has the right to request a copy of an assessment report under section 60.

(2)The Scottish Ministers must fulfil their duty under subsection (1) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Commencement Information

I14S. 40 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

Re-determination by the Scottish MinistersS

41Right to request re-determinationS

(1)An individual may request that the Scottish Ministers re-determine the individual's entitlement to a particular type of assistance after being informed (in accordance with section 40) of a determination by the Ministers of the individual's entitlement to that type of assistance.

(2)A request for a re-determination is valid only if the conditions set out in the following subsections are satisfied—

(a)subsection (3), and

(b)subsection (4) [F1(read with section 52A)].

(3)The condition referred to in subsection (2)(a) is satisfied if the request is made in such form as the Scottish Ministers require.

(4)The condition referred to in subsection (2)(b) is satisfied if—

(a)the request is made before the end of the period prescribed by the Scottish Ministers in regulations, or

(b)in a case where the request is made after that period has ended—

(i)the individual has a good reason for not requesting a re-determination sooner (see section 42), and

(ii)the request is made before the end of the day that falls one year after the day on which the individual is informed (in accordance with section 40) of the determination [F2(but see section 52A)].

(5)The Scottish Ministers must publicise any requirements for the time being set under subsection (3).

(6)If the Scottish Ministers decide that something purporting to be a request for a re-determination does not satisfy the condition in subsection (3), they must inform the individual concerned of—

(a)the decision,

(b)the reasons for it, and

(c)the individual's right to appeal under section 61.

Textual Amendments

F1Words in s. 41(2)(b) inserted (7.4.2020) by Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 7 para. 2(a) (with ss. 11-13)

F2Words in s. 41(4)(b)(ii) inserted (7.4.2020) by Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 7 para. 2(b) (with ss. 11-13)

Commencement Information

I15S. 41 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

42Late request for re-determinationS

(1)It is for—

(a)the Scottish Ministers, or

(b)on appeal under section 61, the First-tier Tribunal for Scotland,

to decide whether, for the purpose of section 41(4)(b), an individual has a good reason for not requesting a re-determination sooner.

(2)Having made a decision under subsection (1), the Scottish Ministers must inform the individual concerned—

(a)of the decision, and

(b)if the decision is that the individual has no good reason for not requesting a re-determination sooner, of—

(i)the reasons for the decision, and

(ii)the individual's right to appeal under section 61.

Commencement Information

I16S. 42 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

43Duty to re-determineS

(1)On being requested under section 41 to re-determine an individual's entitlement to a particular type of assistance, the Scottish Ministers are to make a determination of the individual's entitlement to that type of assistance.

(2)The Scottish Ministers must aim to make the determination within the period allowed for re-determination.

(3)If the Scottish Ministers fail to make the determination within the period allowed for re-determination—

(a)their duty to make the determination ends (but they may still make it), and

(b)section 45 applies.

(4)If the Scottish Ministers make the determination (whether or not within the period allowed for re-determination), section 44 applies.

(5)The period allowed for re-determination is to be prescribed by the Scottish Ministers in regulations.

(6)The reference in subsection (1) to a request under section 41 is to a request that is valid according to subsection (2) of that section.

Commencement Information

I17S. 43 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

44Notice of re-determinationS

(1)Having made a determination under section 43 of an individual's entitlement to a particular type of assistance, the Scottish Ministers must—

(a)inform the individual—

(i)of the determination,

(ii)of the reasons for it,

(iii)of the individual's right to appeal to the First-tier Tribunal under section 46 against the determination,

(iv)if relevant, that the individual has the right to request a copy of an assessment report under section 60, and

(b)provide the individual with a form that the individual can complete and submit to the Scottish Ministers in order to bring an appeal against the determination.

(2)The Scottish Ministers must fulfil their duty under subsection (1)(a) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Commencement Information

I18S. 44 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

45Notice where re-determination not made timeouslyS

(1)Having failed to make a determination under section 43 of an individual's entitlement to a particular type of assistance within the period allowed for re-determination, the Scottish Ministers must—

(a)inform the individual—

(i)that the individual's request for a re-determination has not been dealt with within the period allowed, and

(ii)that the individual therefore has the right to appeal to the First-tier Tribunal against the determination under section 37 which prompted the request for a re-determination, and

(b)provide the individual with a form that the individual can complete and submit to the Scottish Ministers in order to bring an appeal against the determination.

(2)The Scottish Ministers must fulfil their duty under subsection (1)(a) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Commencement Information

I19S. 45 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

Appeal against the Scottish Ministers' determinationS

46Right to appeal to First-tier Tribunal against determinationS

(1)An individual may appeal to the First-tier Tribunal for Scotland—

(a)against a determination under section 43 of the individual's entitlement to assistance, or

(b)in a case where subsection (2) applies, against the determination under section 37 referred to in that subsection.

(2)This subsection applies where—

(a)having been informed of a determination under section 37 of the individual's entitlement to assistance, the individual has made a request for a re-determination under section 41, and

(b)the Scottish Ministers have failed to make a determination under section 43 in consequence of that request within the period allowed for re-determination.

Commencement Information

I20S. 46 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

47Initiating an appealS

(1)In order to bring an appeal under section 46 against a determination, an individual must submit to the Scottish Ministers the form provided under section 44 or (as the case may be) 45 in relation to the determination.

(2)On receiving a form that they provided under section 44 or 45, the Scottish Ministers must send—

(a)the form, and

(b)the information held by them that they used to make the determination in question,

to the First-tier Tribunal.

(3)Having complied with subsection (2), the Scottish Ministers must inform the individual to whom the determination in question relates that they have done so.

(4)In this section, references to a form include a copy of a form.

(5)For the avoidance of doubt, the form that the Scottish Ministers provide under section 44 or 45 need not be a physical form.

(6)Scottish Tribunal Rules providing for the form and manner in which an appeal under section 46 is to be brought may not displace the effect of subsection (1), but this section is otherwise without prejudice to what may be provided under any power to make Scottish Tribunal Rules.

Commencement Information

I21S. 47 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

48Deadline for appealingS

(1)An appeal under section 46—

(a)may be brought without the First-tier Tribunal's permission if an appeal application is made within the period of 31 days beginning with the day the relevant event occurred,

(b)may be brought only with the First-tier Tribunal's permission if an appeal application is made after the period mentioned in paragraph (a),

(c)may not be brought if an appeal application has not been made within the period of one year beginning with the day the relevant event occurred [F3(but see section 52A)].

(2)In subsection (1)—

(a)the relevant event” means—

(i)in the case of an appeal against a determination under section 43, the individual to whom the determination relates being informed of it in accordance with section 44,

(ii)in the case of an appeal against a determination under section 37, the individual to whom the determination relates being informed (in accordance with section 45) that the individual has the right to appeal against it,

(b)an appeal application is made when a form, that relates to the determination in question and has been completed to the extent that Scottish Tribunal Rules require, is received by the Scottish Ministers having been submitted in accordance with section 47(1).

(3)The First-tier Tribunal may give permission under subsection (1)(b) for an appeal to be brought only if it is satisfied that there is a good reason for the application not having been made sooner.

Textual Amendments

F3Words in s. 48(1)(c) inserted (7.4.2020) by Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 7 para. 3 (with ss. 11-13)

Commencement Information

I22S. 48 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

49First-tier Tribunal's power to determine entitlementS

In an appeal under section 46 against a determination of an individual's entitlement to a particular type of assistance, the First-tier Tribunal may—

(a)uphold the determination, or

(b)make its own determination of the individual's entitlement to the type of assistance in question.

Commencement Information

I23S. 49 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

The determination of entitlementS

50Decisions comprising determinationS

(1)A determination of an individual's entitlement to a particular type of assistance consists of—

(a)a decision about whether or not the eligibility rules prescribed in the applicable regulations are satisfied in the individual's case,

(b)if those rules are satisfied, a decision (taken in accordance with the applicable regulations) about what assistance of the type in question the individual is entitled to be given,

(c)if the determination is to be made on the basis that the individual has ongoing entitlement to the type of assistance in question (see section 51), a decision about what assistance of the type in question the determination is to entitle the individual to be given in the future, and

(d)if the determination is of an individual's entitlement to assistance in respect of an event, a decision about whether the individual's application for assistance in respect of the event is possibly premature.

(2)If it is decided under subsection (1)(d) that an individual's application for assistance in respect of an event is possibly premature, the determination must include a statement that the individual may make another application for assistance in respect of the event.

(3)An individual's application for assistance in respect of an event is possibly premature for the purpose of subsection (1)(d) if—

(a)the decision under subsection (1)(a) is that the eligibility rules prescribed in the applicable regulations are not satisfied in the individual's case, and

(b)it is possible that circumstances may change so that, in relation to the event in question, those rules will be satisfied in the individual's case.

(4)In this section, “the applicable regulations” means the regulations made under the section in Chapter 2 that describes the type of assistance in question.

Commencement Information

I24S. 50 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

51Determination on basis of ongoing entitlementS

(1)The Scottish Ministers may by regulations—

(a)provide that a determination of an individual's entitlement to a specified type of assistance is to be made on the basis that the individual has ongoing entitlement to that type of assistance, and

(b)provide for exceptions to any provision made by virtue of paragraph (a).

(2)Regulations making provision by virtue of subsection (1)(a) are also to—

(a)prescribe the time, or times, at which an individual is to become entitled to be given assistance under a determination made on the basis that the individual has ongoing entitlement, F4...

[F5(aa)make provision, in accordance with schedule 11, about—

(i)the circumstances in which an individual who has an entitlement to assistance in respect of a period under such a determination is not to become entitled to be given some or all of that assistance at the time at which the individual otherwise would in accordance with provision under paragraph (a), and

(ii)in that event, how and when the individual is to become entitled to be given that assistance, and]

(b)provide that a decision about what assistance the individual is to become entitled to be given under such a determination in respect of any future period is to be taken in accordance with the applicable regulations on the strength of such assumptions as are specified.

(3)Without prejudice to the generality of subsection (2)(b), the assumptions that may be specified include an assumption that the eligibility rules prescribed in the applicable regulations will continue to be satisfied in an individual's case for a specified duration or indefinitely.

[F6(3A)Schedule 11 makes provision about the exercise of the power conferred by subsection (2)(aa).]

(4)In this section—

52Determination without applicationS

(1)The Scottish Ministers may by regulations provide that, in such circumstances as the regulations specify, the Scottish Ministers are to make a determination of an individual's entitlement to a particular type of assistance without receiving an application.

(2)The Scottish Ministers may by regulations make provision about the information that is to be used, and the assumptions that are to be made, in making a determination when required to do so by regulations under subsection (1).

Commencement Information

I26S. 52 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(g) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

[F7Coronavirus: relaxation of deadlinesS

Textual Amendments

F7Ss. 52A, 52B and cross-heading inserted (7.4.2020) by Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 7 para. 4 (with ss. 11-13)

52ARe-determination and appeal deadlinesS

(1)A request for a re-determination satisfies the condition in subsection (4) of section 41, despite being made after the expiry of the period described in paragraph (b) of that subsection, if the person deciding whether the individual has a good reason for not requesting a re-determination sooner decides that the individual has a good reason that is related to coronavirus.

(2)An appeal may be brought under section 46, despite the appeal application being made after the expiry of the period described in paragraph (c) of subsection (1) of section 48, if the First-tier Tribunal gives permission for the appeal to be brought under paragraph (b) of that section on the basis of being satisfied that the good reason for the application not being made sooner is related to coronavirus.

(3)Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of precluding an appeal being brought by virtue of subsection (2) is to be disregarded to the extent that it would have that effect.

(4)In this section, “coronavirus” has the meaning given by section 1 of the Coronavirus (Scotland) Act 2020.

52BApplications for assistanceS

(1)Subsection (2) applies where regulations under Chapter 2 make an individual's eligibility for assistance in respect of a period or event depend (in any way) on an application being made by a particular time.

(2)The person determining an individual's entitlement to the assistance may treat the individual's application as having been made by that time if satisfied that the reason for its not being made sooner is related to coronavirus.

(3)For the avoidance of doubt, regulations that make a person's age at the time of making an application material to the determination of an individual's entitlement to assistance are to be understood to make the individual's eligibility depend on the application being made by a particular time (namely the time at which the person ceases to be the specified age or fall within the specified age bracket).

(4)In this section, “coronavirus” has the meaning given by section 1 of the Coronavirus (Scotland) Act 2020.]

CHAPTER 4SFURTHER PROVISION ABOUT DETERMINING ENTITLEMENT

F8...S

Textual Amendments

F8S. 84C: s. 53 and cross-heading renumbered as s. 84C and cross-heading (26.7.2021) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 9(2), 18(2)(3) (with s. 10); S.S.I. 2021/232, reg. 2(c)

F953Duty to inform about possible eligibilityS

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Textual Amendments

F9S. 84C: s. 53 and cross-heading renumbered as s. 84C and cross-heading (26.7.2021) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 9(2), 18(2)(3) (with s. 10); S.S.I. 2021/232, reg. 2(c)

Commencement Information

I27S. 53 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(h) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

Obtaining information to make determinationS

54Obligation to provide information on requestS

(1)When—

[F10(a)the Scottish Ministers are either—

(i)determining an individual's entitlement to assistance (whether under section 37 or 43), or

(ii)considering whether regulations under section 52 require them to make a determination of an individual's entitlement to assistance without receiving an application, and

(b)they require further information in order to satisfy themselves about any matter material to the making of the determination of entitlement or (as the case may be) to their consideration of whether they are required to make a determination without receiving an application,]

they may request that the individual provide them with the information within such period as they specify.

[F11(1A)If—

(a)the Scottish Ministers are either—

(i)determining the individual's entitlement to a type of assistance that the individual has ongoing entitlement to, or

(ii)considering whether regulations under section 52 require them to make a determination of the individual's entitlement to assistance without receiving an application,

(b)the individual fails to provide the requested information by the end of the period specified under subsection (1), and

(c)it is the first time that the individual has failed to provide the Scottish Ministers with the requested information within a specified period since they began making the determination or considering the matter mentioned in paragraph (a)(ii),

the Scottish Ministers may issue a decision to suspend the assistance to the individual in accordance with regulations under section 51(2)(aa).

(1B)Where the Scottish Ministers issue such a decision, they must, at the same time, request that the individual provide them with the information within such further period as they specify.]

(2)If the individual fails to provide the requested information by the end of the [F12the period specified under subsection (1) or (1B)] the Scottish Ministers may, without further consideration, proceed to make the determination on the basis that the eligibility rules prescribed in the applicable regulations are not satisfied in the individual's case (see section 50).

(3)For the avoidance of doubt, the information which the Scottish Ministers may request an individual to provide under subsection (1) includes the results of an assessment, including one which the individual has not undergone at the time the request is made.

[F13(4)The reference in subsection (1A)(a) to an individual having ongoing entitlement to a type of assistance is to an individual being entitled to be given the type of assistance in question under section 24 under a determination made on the basis that the individual has ongoing entitlement to that type of assistance.]

55Requirement to justify assessment requestsS

(1)This section applies to a request for information from an individual under section 54(1) if fulfilling the request would require the individual to undergo an assessment.

(2)When making the request, the Scottish Ministers must inform the individual why they consider requiring the individual to undergo an assessment to be the only practicable way to obtain the information.

(3)If the individual would have to undergo a face-to-face assessment in order to fulfil the request, when making the request the Scottish Ministers must also inform the individual what consideration they have given to—

(a)any preference the individual has expressed to them concerning where and how assessments are carried out,

(b)whether the assessment could be carried out another way,

(c)what distance (if any) they expect the individual will have to travel in order to attend the assessment,

(d)the extent to which travelling to attend the assessment may—

(i)cause the individual distress, or

(ii)adversely affect the individual's health.

(4)In subsection (3), “face-to-face assessment” means an assessment involving—

(a)the individual, and

(b)the assessor,

being physically in the same place at the same time.

Commencement Information

I29S. 55 in force at 17.1.2022 by S.S.I. 2021/474, reg. 2(d)

56Duty to notify change of circumstancesS

(1)The Scottish Ministers may place a duty to notify them about a change in circumstances on a person to whom subsection (3), (4) or (5) applies.

(2)The Scottish Ministers place a duty under subsection (1) on a person by informing the person—

(a)of the changes in circumstances which the person has a duty to notify them about,

(b)of the way in which the person is to notify them, and

(c)that failing to notify them about a change in any of those circumstances in that way may be an offence under section 72.

(3)This subsection applies to an individual who is to be given assistance under section 24 under a determination made on the basis that the individual has ongoing entitlement to the type of assistance in question.

(4)This subsection applies to a person acting on behalf of an individual to whom subsection (3) applies in relation to any application for the assistance or the determination of the individual's entitlement.

(5)This subsection applies to a person to whom payments are to be made under section 24 by way of assistance to another person under a determination made on the basis that that other person has ongoing entitlement to the type of assistance in question.

Commencement Information

I30S. 56 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(i) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

57Lifting of duty to notify change of circumstancesS

(1)A duty to notify the Scottish Ministers about a change of circumstances placed on a person under section 56 ceases to apply when—

(a)it is lifted under subsection (2), or

(b)it stops being the case that a change in any of the circumstances to which the duty relates can affect someone's entitlement to be given assistance under section 24.

(2)The Scottish Ministers may lift a duty placed on a person under section 56 by informing the person that the duty is lifted.

(3)Under subsection (2), the Scottish Ministers may lift a duty as it relates to some or all of the changes in circumstances which the person has a duty to notify them about.

Commencement Information

I31S. 57 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(i) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

AppointeesS

F1458Appointment of person to act on behalf of individualS

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Support during discussions and assessmentsS

59Right to supportS

(1)The Scottish Ministers must comply with an individual's wish to have another person (“a supporter”) present during any discussion or assessment relating to the individual's entitlement to a type of assistance described in Chapter 2, unless the wish is unreasonable.

(2)The Scottish Ministers' duty under subsection (1) includes ensuring that any person acting on their behalf complies with such a wish, unless the wish is unreasonable.

(3)The role of a supporter is to support the individual in question during the discussion or (as the case may be) assessment, and includes making representations on the individual's behalf.

(4)Nothing in this section is to be read as requiring the Scottish Ministers to provide or pay for a supporter.

Commencement Information

I32S. 59 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(i) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

Access to reportsS

60Right to reports used in determining entitlementS

(1)If an individual requests it, the Scottish Ministers must give the individual a copy of any assessment report held by the Ministers that they took into account in making a determination of the individual's entitlement to assistance.

(2)Subsection (1) does not require the Scottish Ministers to provide an individual with information that they are exempt from the obligation to provide to the individual under Article 15 of the [F15UK GDPR] (whether by virtue of an enactment or otherwise).

[F16(3)In subsection (2), “the UK GDPR” has the meaning given in section 3(10) of the Data Protection Act 2018.]

Right to appeal Scottish Ministers' process decisionsS

61Appeal to First-tier Tribunal against process decisionsS

(1)An individual may appeal to the First-tier Tribunal for Scotland against a decision by the Scottish Ministers—

(a)to reject something purporting to be an application for assistance (see section 38),

(b)that something purporting to be a request for a re-determination does not satisfy the condition in section 41(3),

(c)that an individual has no good reason for not requesting a re-determination sooner (see section 42).

(2)An appeal under this section—

(a)may be brought without the First-tier Tribunal's permission within the period of 31 days beginning with the day the individual was informed of the decision in accordance with this Act,

(b)may be brought only with the First-tier Tribunal's permission after the period mentioned in paragraph (a),

(c)may not be brought after the end of the period of one year beginning with the day the individual was informed of the decision in accordance with this Act.

(3)The First-tier Tribunal may give permission under subsection (2)(b) for an appeal to be made only if it is satisfied that there is a good reason for the appeal not having been made sooner.

(4)A decision by the First-tier Tribunal about—

(a)the outcome of an appeal under this section, or

(b)whether to give permission under subsection (2)(b) for an appeal to be brought,

is final.

(5)Accordingly (and without prejudice to the generality of subsection (4)), any such decision by the First-tier Tribunal may be neither—

(a)reviewed under section 43 of the Tribunals (Scotland) Act 2014, nor

(b)appealed against under section 46 of that Act.

Commencement Information

I34S. 61 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(j) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

Presumption about when information is receivedS

62Presumption for purposes of sections 41, 48 and 61S

(1)Subsection (2) applies in relation to the references in sections 41, 48 and 61 to someone being informed of something by the Scottish Ministers in accordance with a provision of this Act.

(2)Where, in order to fulfil their duty to inform an individual of something, the Scottish Ministers send information—

(a)through the postal service to the last known address the Scottish Ministers have for the individual, or

(b)by email to the email address most recently provided to the Scottish Ministers by the individual for the purposes of this Act,

the individual is to be taken to have received the information 48 hours after it is sent by the Scottish Ministers unless the contrary is shown.

Commencement Information

I35S. 62 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(j) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

[F17Non-disclosure of health information]S

[F1762ANon-disclosure of information about individual's healthS

(1)This section applies in relation to a duty of the Scottish Ministers arising from section 38(5), 40(1), 41(6), 42(2), 44(1) or 53(2) to inform a person (“the recipient”) of certain things in connection with the determination of an individual's entitlement to assistance.

(2)Nothing in the duty is to be regarded as requiring the Scottish Ministers to disclose information if subsection (3) applies to it.

(3)This subsection applies to information if—

(a)it relates to the physical or mental health of the individual, and

(b)a registered medical practitioner or a registered nurse has informed the Scottish Ministers that disclosure of the information would be likely to cause serious harm to the physical or mental health of the recipient.]

CHAPTER 5SRECOVERY OF VALUE OF ASSISTANCE

Assistance given in errorS

63Liability for assistance given in errorS

(1)An individual is liable to pay the Scottish Ministers the value of any assistance that was given to the individual due to an error (but see section 64).

(2)For the avoidance of doubt, the individual's liability under subsection (1) is limited to the difference in value between—

(a)the assistance that was given, and

(b)the assistance (if any) that would have been given had the error not been made.

(3)If the assistance was given in a form other than money, its value for the purposes of this section is what giving it cost the Scottish Ministers (excluding any administration costs).

(4)In this section and section 64, references to an error are to—

(a)an error in the performance of a function conferred by virtue of this Part, including a decision under section 50(1) being made—

(i)wrongly, or

(ii)correctly but on the basis of—

(A)incorrect information, or

(B)an assumption which proves to be wrong,

(b)a new decision under section 50(1) not being made after an assumption on the basis of which an earlier decision was made has proved to be wrong.

Commencement Information

I36S. 63 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(k) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

64Exclusion from liabilityS

(1)An individual has no liability under section 63(1) in respect of assistance given due to an error if the error is neither—

(a)the individual's fault, nor

(b)the kind of error that an individual could reasonably be expected to notice.

(2)For the purpose of this section, an error is an individual's fault if it is caused or contributed to by the individual—

(a)providing false or misleading information,

(b)failing to notify the Scottish Ministers about a change in circumstances in breach of a duty to do so under section 56, or

(c)causing another person to do either of those things.

(3)In considering whether an error is of a kind that an individual could reasonably be expected to notice, the following are amongst the matters to which regard is to be had—

(a)the extent to which the value of the assistance given in error exceeds the value of the assistance that would have been given (if any) had the error not been made,

(b)whether any information given to the individual by the Scottish Ministers prior to, or immediately after, the assistance being given would have alerted a reasonable person to the fact that a decision had been, or was to be, made on the basis of incorrect information or a wrong assumption.

(4)In—

(a)subsection (2)(a), the reference to providing information includes making a statement,

(b)subsection (3)(b), the reference to information given to the individual by the Scottish Ministers does not include information explaining why the Ministers consider the assistance to have been given in error.

Commencement Information

I37S. 64 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(k) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

65Consideration for debtor's circumstancesS

(1)This section applies to decisions of the Scottish Ministers about—

(a)whether to seek to recover money owed under section 63, and

(b)the method by which money owed under that section is to be recovered.

(2)In making a decision to which this section applies, the Scottish Ministers must have regard to the financial circumstances of the individual who owes the money (so far as those circumstances are known to the Ministers).

Commencement Information

I38S. 65 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(k) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

66Prescription of liabilityS

(1)Schedule 1 (obligations affected by prescriptive period of five years) of the Prescription and Limitation (Scotland) Act 1973 is amended as follows.

(2)After paragraph 1(b) insert—

(ba)to any obligation to make payment to the Scottish Ministers arising from section 63 of the Social Security (Scotland) Act 2018..

Commencement Information

I39S. 66 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(k) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

67Exclusion of other rights of recoveryS

(1)An individual given assistance in error has no non-statutory obligation based on redress of unjustified enrichment to pay the value of that assistance to the Scottish Ministers.

(2)In subsection (1)—

(a)non-statutory obligation” means an obligation that arises from a rule of law rather than an enactment,

(b)the reference to assistance being given in error is to be construed in accordance with section 63(4).

Commencement Information

I40S. 67 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(k) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

F1868First-tier Tribunal's jurisdictionS

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69Liability where assistance given for period after deathS

(1)An individual's estate is liable to pay the Scottish Ministers the value of any assistance that was given to the individual under section 24 in respect of a period after the individual's death.

(2)For the avoidance of doubt, assistance may be regarded as having been given to an individual for the purposes of this section despite being given after the individual's death.

Commencement Information

I41S. 69 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(k) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

Funeral expense assistanceS

70Liability of deceased's estateS

(1)The value of funeral expense assistance given in connection with an individual's funeral is to be treated as a funeral expense that the individual's estate is liable to pay the Scottish Ministers.

(2)If the assistance was given in a form other than money, its value for the purposes of this section is what giving it cost the Scottish Ministers (excluding any administration costs).

Commencement Information

I42S. 70 in force at 11.9.2019 by S.S.I. 2019/269, reg. 2(b)

CHAPTER 6S[F19OFFENCES]

Textual Amendments

F20...S

Textual Amendments

71Offence of trying to obtain assistance by deceitS

(1)A person commits an offence if—

(a)the person provides, or causes another person to provide, information which is false or misleading, and

(b)the person does so with the intention of causing an individual to be given assistance under section 24 which would not otherwise be given.

(2)For the purpose of subsection (1), providing information includes making a statement.

(3)A person who commits an offence under subsection (1) is liable—

(a)on summary conviction, to—

(i)imprisonment for a term not exceeding 12 months,

(ii)a fine not exceeding the statutory maximum, or

(iii)both,

(b)on conviction on indictment, to—

(i)imprisonment for a term not exceeding 5 years,

(ii)a fine, or

(iii)both.

Commencement Information

I43S. 71 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(l) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

72Offence of failing to notifyS

(1)A person commits an offence if—

(a)the person fails to notify the Scottish Ministers about a change in circumstances to which subsection (2) applies as soon as reasonably practicable after it occurs,

(b)the person does not have a reasonable excuse for failing to do so, and

(c)the person knew or ought to have known that the change might result in an individual ceasing to be entitled to assistance, or becoming entitled to less assistance.

(2)For the purpose of subsection (1)(a), a change in circumstances to which this subsection applies is a change—

(a)which the person has a duty under section 56 to notify the Scottish Ministers about, and

(b)which would, under a determination of an individual's entitlement, result in the individual ceasing to be entitled to assistance, or becoming entitled to less assistance.

(3)A person is not to be regarded as having notified a change in circumstances for the purpose of subsection (1)(a) unless the person notified the Scottish Ministers about it in the way the Ministers informed the person that such notification is to be given (see section 56(2)(b)).

(4)A person who commits an offence under subsection (1) is liable—

(a)on summary conviction, to—

(i)imprisonment for a term not exceeding 12 months,

(ii)a fine not exceeding the statutory maximum, or

(iii)both,

(b)on conviction on indictment, to—

(i)imprisonment for a term not exceeding 5 years,

(ii)a fine, or

(iii)both.

Commencement Information

I44S. 72 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(l) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

73Offence of causing a failure to notifyS

(1)A person commits an offence if—

(a)the person causes another person to fail to notify the Scottish Ministers about a change in circumstances to which subsection (2) applies as soon as reasonably practicable after it occurs, and

(b)the person knew or ought to have known that—

(i)the change might result in an individual ceasing to be entitled to assistance, or becoming entitled to less assistance, and

(ii)the other person has a duty under section 56 to notify the Scottish Ministers about the change.

(2)For the purpose of subsection (1)(a), a change in circumstances to which this subsection applies is a change which would, under a determination of an individual's entitlement, result in the individual ceasing to be entitled to assistance, or becoming entitled to less assistance.

(3)A person is not to be regarded as having notified a change in circumstances for the purpose of subsection (1)(a) unless the person notified the Scottish Ministers about it in the way the Ministers informed the person that such notification is to be given (see section 56(2)(b)).

(4)A person who commits an offence under subsection (1) is liable—

(a)on summary conviction, to—

(i)imprisonment for a term not exceeding 12 months,

(ii)a fine not exceeding the statutory maximum, or

(iii)both,

(b)on conviction on indictment, to—

(i)imprisonment for a term not exceeding 5 years,

(ii)a fine, or

(iii)both.

Commencement Information

I45S. 73 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(l) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

74Individual culpability for offending by an organisationS

(1)Subsection (2) applies where—

(a)an offence under this Act or any regulations made under it is committed by a relevant organisation, and

(b)the commission of the offence involves the connivance or consent of, or is attributable to the neglect of—

(i)a responsible official of the organisation, or

(ii)an individual purporting to act in the capacity of a responsible official.

(2)The responsible official (or, as the case may be, the individual purporting to act in that capacity), as well as the organisation, commits the offence.

(3)Relevant organisation” means—

(a)a company,

(b)a partnership (including a limited liability partnership),

(c)another body or association.

(4)Responsible official” means—

(a)in the case of a company—

(i)a director, secretary, manager or similar officer, or

(ii)where the affairs of the company are managed by its members, a member,

(b)in the case of a limited liability partnership, a member,

(c)in the case of a partnership other than a limited liability partnership, a partner,

(d)in the case of another body or association, a person who is concerned in the management or control of its affairs.

Commencement Information

I46S. 74 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(l) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))

F21...S

Textual Amendments

F21S. 75 and cross-heading renumbered as s. 84A and cross-heading (11.11.2020) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 5(4), 18(1) (with s. 6)

F2175Power to make provision about investigationsS

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F2276Code of practice on investigationsS

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Textual Amendments

F23...S

F2477Duty to consider effects of inflationS

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F2578Duty to uprate carer's, disability, employment-injury and funeral expense assistanceS

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