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.
