Part 3 – Determinations and Re-Determinations of Entitlement to Assistance
Re-determinations
Section 5: Re-determination and appeal deadlines in exceptional circumstances
18.As with section 52B, section 52A was amended into the 2018 Act by the Coronavirus (Scotland) Act 2020. Under section 52A, requests to the Scottish Ministers for re-determinations of entitlement to assistance must be considered valid beyond the maximum period of one year prescribed by the 2018 Act, where the reason for delay was related to coronavirus; appeals against determinations of entitlement may also be brought beyond the maximum prescribed period of one year, where the First-tier Tribunal is satisfied that the reason for the delay was related to coronavirus.
19.Section 5 of the Act repeals section 52A and instead, through a series of amendments to Chapter 3 of Part 2 of the 2018 Act, gives Ministers (acting through Social Security Scotland) discretion to accept late requests for re-determination beyond the one-year prescribed period on the basis of ‘exceptional circumstances’, rather than only for reasons relating to coronavirus. Similarly, appeals against determinations of entitlement will be able to be brought, with the permission of the First-tier Tribunal, beyond the one-year prescribed period on the basis of ‘exceptional circumstances’, rather than only for reasons relating to coronavirus. The intention is that examples of ‘exceptional circumstances’ will be provided in guidance: for instance, severe physical or mental illness, unstable housing, abuse or detainment.
Section 6: Withdrawal of request for re-determination
20.Under section 43 of the 2018 Act, if an individual requests a re-determination of their entitlement to assistance, the Scottish Ministers (acting through Social Security Scotland) are under a duty to make a new determination. But at present an individual cannot subsequently withdraw their request for re-determination, even if their circumstances have changed since making their request, or if they have otherwise changed their mind. Section 6 of the Act inserts a new section 42A into the 2018 Act, enabling an individual to ask Ministers to disregard a re-determination request.
21.In such a case, section 42A(2) provides that Ministers’ duty under section 43 ceases to apply, and they are not to make a determination of the individual's entitlement to the particular type of assistance mentioned in the request for re-determination.
22.Section 42A(3) provides that a request to Ministers to disregard a re-determination must be made in such form as Ministers require; and the requisite form for this must be publicised by Ministers, as per section 42A(4).
Section 7: Re-determinations after the period allowed
23.Where a re-determination of entitlement is not completed by the Scottish Ministers (acting through Social Security Scotland) in the timescales set out in regulations under section 43(5) of the 2018 Act, a re-determination becomes out-of-time and the individual in question must be notified that they have a right to appeal to the First-tier Tribunal under section 46. The Scottish Ministers are, at that point, no longer under a duty to make the re-determination. However, in practice, they continue to consider the re-determination request.
24.Section 7 of the Act amends section 43 of the 2018 Act to clarify that Ministers remain under the duty to make the re-determination beyond the period allowed, unless an individual opts to exercise their right to appeal, in which case the duty on Ministers falls away. However if an appeal under section 46 is subsequently withdrawn, the duty on Ministers to make the determination applies again and continues unless the appeal is reinstated. Sections 44 to 46 are also amended in consequence of this change. The amendments to sections 44 and 45 provide that the individual will be provided with information as to how the process will work. The amendments to section 46 ensure that the right to appeal arises once the period allowed for re-determination has ended without a re-determination having been made, but without implying that the duty to make a re-determination has ended.
New determination of entitlement during appeal
Section 8: New determination of entitlement during appeal
25.Under the 2018 Act at present the Scottish Ministers (acting through Social Security Scotland) cannot make a new determination of entitlement after a valid appeal has been lodged with the First-tier Tribunal, even if an error has been identified, or new evidence received, which shows that an individual has been underpaid, or not received an award that they were entitled to. The appeal must continue unless it is withdrawn by the individual.
26.Section 8 of the Act inserts a new section 49A into the 2018 Act providing that in instances where the Scottish Ministers recognise after an appeal has been made that an individual should have received a higher award of assistance, or an otherwise more advantageous determination of entitlement, Ministers will be required to make a new determination of entitlement, and the appeal will come to an end as a result. The new determination can only be made if the individual agrees to it, as per section 49A(1)(c).
27.Inserted section 49A(2) provides that a new determination of entitlement of this kind must result in the individual being given more assistance, or otherwise be a more advantageous determination of entitlement, than the original determination. A new determination may be advantageous to the individual in a way which does not amount to more assistance than the original determination: for example, it may amount to a decision that they should receive an ongoing award of assistance, where they previously did not.
28.Inserted section 49B then requires the Scottish Ministers to inform the individual concerned of their new determination of entitlement under section 49A; of the reasons for it; and of the individual’s rights to request re-determination of the new determination, and to appeal it. As with other sections of the 2018 Act, the individual must also be given a proper record of the decision.
29.Inserted section 49C allows the Scottish Ministers, by regulations, to make provision in Scottish Tribunal Rules so that proceedings in the First-tier Tribunal in relation to an appeal will automatically come to an end by operation of law where Ministers make a determination of entitlement in relation to any type of assistance under section 49A, or any assistance provided under “top-up” regulations made under section 79 of the 2018 Act.
30.Consequential amendments are made to the 2018 Act to give individuals the right under section 41 to request re-determination of a new determination made under section 49A, and the right under section 46 to appeal a new determination to the First-tier Tribunal.
31.In addition, section 62 of the 2018 Act contains a legal presumption that when an individual is notified of something by Ministers, the individual is to be taken to have received the information 48 hours after it is sent, unless the contrary is shown: section 8(8) of the Act applies this to notifications under section 49B. Section 62A’s rule against the disclosure of information about an individual’s health is also applied to notifications under section 49B by section 8(10) of the Act.
32.Finally, sections 8(11) and (12) of the Act amend schedule 9 of the Tribunals (Scotland) Act 2014, to provide that Tribunal Rules may make provision for appeal proceedings to end in a case where Ministers have made a new determination of entitlement under section 49A of the 2018 Act.
Determinations as part of appeal
Section 9: Determinations as part of appeal
33.This section of the Act amends section 49 of the 2018 Act in order to clarify that when exercising its powers to either uphold a determination or make its own determination in an appeal, the First-tier Tribunal must not take into account circumstances which did not exist at the relevant time, although it may take into account circumstances which existed but which were not known.
34.Therefore, the Tribunal must not consider changes in the individual’s circumstances that have occurred since the relevant time. The relevant time is the time at which entitlement fell to be determined by Scottish Ministers, under the applicable regulations for that assistance, when making the original determination under section 37 in relation to that entitlement. Depending on the regulations governing that form of assistance, this could be, for example, the date of application, the “treat as made” date for the application, or the qualifying period for assistance.
35.For example, the Tribunal could take into account medical results from a later date which demonstrate that the individual had a particular condition at the relevant time, or a backdated award of a qualifying benefit or assistance which confers eligibility for the form of assistance being determined. However it could not take into account, for example, evidence of a deterioration in the individual’s medical condition which has occurred after the relevant time.
36.This ensures that individuals have re-determination and appeal rights in relation to any change in their circumstances for a later period, separate from the re-determination and appeal rights that flow from the determination for an earlier period.
37.If this were not the case, and the Tribunal were to consider a change of circumstances for a later period when making a determination at appeal, the individual would only have a right to ask the First-tier Tribunal to review its own decision or ask permission to appeal to the Upper Tribunal, on a point of law, against that decision.
Appeal against Scottish Ministers’ process decisions
Section 10: Appeal to First-tier Tribunal against process decisions
38.Under section 61 of the 2018 Act, an individual can appeal to the First-tier Tribunal against certain decisions made by the Scottish Ministers (acting through Social Security Scotland) on the process of applying for social security assistance and the process of challenging determinations of entitlement to assistance. Section 10 of the Act amends section 61 in order to clarify the powers of the Tribunal to uphold or set aside decisions in process appeals.
39.Section 10 of the Act also inserts a new section 61A into the 2018 Act, setting out the actions that Ministers have to take in consequence of the different kinds of Tribunal decisions, including the making of a new determination of entitlement in certain cases.
