Part 3

Determinations and re-determinations of entitlement to assistance

Re-determinations

Re-determination and appeal deadlines in exceptional circumstances
5
1
The 2018 Act is modified as follows.
2
In section 41 (right to request re-determination)—
a
in subsection (2)(b), the words “(read with section 52A)” are repealed,
b
in subsection (4)(b)—
i
at the beginning of sub-paragraph (i), insert “if 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,”,
ii
for “and” following sub-paragraph (i) substitute “or”,
iii
for sub-paragraph (ii) substitute—
ii
if the request is made after the period mentioned in sub-paragraph (i) has ended, there are exceptional circumstances justifying why the request was not made sooner (see section 42).
.
3
In section 42 (late request for re-determination)—
a
in subsection (1), for “41(4)(b)” substitute “41(4)(b)(i)”,
b
after subsection (2) insert—
3
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)(ii), there are exceptional circumstances justifying why a request for re-determination was not made sooner.
4
Having made a decision under subsection (3), the Scottish Ministers must inform the individual concerned—
a
of the decision, and
b
if the decision is that there are no exceptional circumstances justifying why a request for re-determination was not made sooner, of—
i
the reasons for the decision, and
ii
the individual’s right to appeal under section 61.
.
4
In section 48 (deadline for appealing)—
a
in subsection (1)(b)—
i
after “permission” insert “(in accordance with subsection (3))”,
ii
after “(a)” insert “but still within the period of one year beginning with the day the relevant event occurred”,
b
in subsection (1)(c)—
i
for “may not be brought” substitute “may be brought only with the First-tier Tribunal's permission (in accordance with subsection (4))”,
ii
the words “(but see section 52A)” are repealed,
c
after subsection (3) insert—
4
The First-tier Tribunal may give permission under subsection (1)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner.
5
Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (1)(c) is to be disregarded to the extent that it would have that effect.
.
5
Section 52A and the italic heading immediately preceding it are repealed.
6
In section 61 (appeal to First-tier Tribunal against process decisions)—
a
in subsection (1), after paragraph (c) insert—
d
that there are no exceptional circumstances justifying why a request for a re-determination was not made sooner (see section 42).
,
b
in subsection (2)(b)—
i
after “permission” insert “(in accordance with subsection (3))”,
ii
after “(a)” insert “but still within the period of one year beginning with the day the individual was informed of the decision in accordance with this Act”,
c
in subsection (2)(c), for “may not be brought” substitute “may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (3A))”,
d
after subsection (3) insert—
3A
The First-tier Tribunal may give permission under subsection (2)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the appeal was not made sooner.
3B
Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (2)(c) is to be disregarded to the extent that it would have that effect.
,
e
in subsection (4)(b), after “(2)(b)” insert “or (c)”.
7
In section 85D (right to apply to First-tier Tribunal for review of certain decisions)—
a
in subsection (3)(b)—
i
after “permission” insert “(in accordance with subsection (4))”,
ii
after “(a)” insert “but still within the period of one year beginning with the day on which the decision concerned was made”,
b
in subsection (3)(c), for “may not be made” substitute “may be made only with the First-tier Tribunal’s permission (in accordance with subsection (4A))”,
c
after subsection (4) insert—
4A
The First-tier Tribunal may give permission under subsection (3)(c) for an application to be made only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner.
4B
Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an application being made by virtue of subsection (3)(c) is to be disregarded to the extent that it would have that effect.
,
d
in subsection (9)(b), after “(3)(b)” insert “or (c)”.

Withdrawal of request for re-determination
6
1
The 2018 Act is modified as follows.
2
After section 42 insert—

Withdrawal of request for re-determination
42A
1
An individual who has made a request for re-determination may request that the Scottish Ministers disregard it.
2
If an individual requests that a request for re-determination be disregarded—
a
the Scottish Ministers are not to make a determination of the individual’s entitlement to the particular type of assistance mentioned in the request for re-determination on the basis of the request for re-determination, and
b
accordingly, their duty to do so under section 43 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).
.

Re-determinations after the period allowed
7
1
The 2018 Act is modified as follows.
2
In section 43 (duty to re-determine)—
a
subsection (3) is repealed,
b
after subsection (4) insert—
4A
If the Scottish Ministers fail to make the determination within the period allowed for re-determination—
a
section 45 applies, and
b
their duty to make the determination continues unless the individual brings an appeal under section 46.
4B
If an appeal under section 46 is subsequently withdrawn, the duty of the Scottish Ministers to make the determination applies again and continues unless the appeal is reinstated.
.
3
In section 44 (notice of re-determination), in subsection (1)(a), after sub-paragraph (iii) insert—
iiia
in circumstances where the individual was previously issued with a notice under section 45, that the individual no longer has the right to appeal to the First-tier Tribunal against the determination under section 37 which prompted the request for a re-determination,
.
4
In section 45 (notice where re-determination not made timeously), in subsection (1)(a)—
a
the “and” following sub-paragraph (i) is repealed,
b
the “and” following sub-paragraph (ii) is repealed,
c
after sub-paragraph (ii) insert—
iii
that the Scottish Ministers will continue to consider the request for a re-determination unless the individual brings an appeal against the determination as mentioned in sub-paragraph (ii),
iv
that if the individual brings an appeal against the determination but subsequently withdraws that appeal, the Scottish Ministers will again consider the request for a re-determination, and
v
that if the re-determination is carried out and a notice issued under section 44, the individual’s right to appeal to the First-tier Tribunal mentioned in sub-paragraph (ii) will end, and
.
5
In section 46 (right to appeal to First-tier Tribunal against determination), in subsection (2)—
a
the “and” following paragraph (a) is repealed,
b
after paragraph (a) insert—
aa
the period allowed for re-determination has ended, and
,
c
in paragraph (b)—
i
for “failed” substitute “yet”,
ii
the words “within the period allowed for re-determination” are repealed.

New determination of entitlement during appeal

New determination of entitlement during appeal
8
1
The 2018 Act is modified in accordance with subsections (2) to (9).
2
In section 25 (meaning of “determination of entitlement”), in subsection (1)(a)—
a
the “or” following sub-paragraph (i) is repealed,
b
after sub-paragraph (ii) insert
or
iii
under section 49A,
.
3
In section 41 (right to request re-determination)—
a
in subsection (1), after “40” insert “or 49B”,
b
in subsection (4)(b)(i) (as modified by section 4(2)(b)(i)), after “40” insert “or 49B”.
4
In section 45 (notice where re-determination not made timeously), in subsection (1)(a)(ii), after “37” insert “or 49A”.
5
In section 46 (right to appeal to First-tier Tribunal against determination)—
a
in subsection (1)(b), after “37” insert “or 49A”,
b
in subsection (2)(a), after “37” insert “or 49A”.
6
In section 48 (deadline for appealing), in subsection (2)(a)(ii), after “37” insert “or 49A”.
7
After section 49 insert—

New determination during appeal

Duty to make new determination during appeal
49A
1
The Scottish Ministers are to make a new determination of an individual’s entitlement to a particular type of assistance where—
a
an individual has made an appeal to the First-tier Tribunal under section 46 which has not yet been decided,
b
the Scottish Ministers are of the opinion that the determination which is the subject of the appeal (“the original determination”)—
i
resulted in the individual being entitled to less assistance than the individual should have been entitled to, or being entitled to no assistance, or
ii
was otherwise less advantageous to the individual than it should have been, and
c
the individual has agreed to a new determination being made by the Scottish Ministers.
2
A determination under subsection (1) must—
a
result in the individual receiving more assistance than the original determination, or
b
otherwise be more advantageous to the individual than the original determination.
3
A determination under subsection (1) has the effect of ending the individual’s appeal under section 46.

Notice of new determination under section 49A
49B
1
Having made a new determination of an individual’s entitlement to assistance under section 49A, 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.

Tribunal rules to end appeal after new determination under section 49A
49C
1
The Scottish Ministers may by regulations make rules providing for proceedings in the First-tier Tribunal in relation to an appeal to end, by operation of law, where the Scottish Ministers make a new determination of entitlement in relation to any type of assistance—
a
under section 49A, or
b
under regulations made under section 79.
2
Before making regulations under subsection (1), the Scottish Ministers must consult—
a
the President of the Scottish Tribunals, and
b
such other persons as they consider appropriate.
3
Once the Scottish Civil Justice Council and the Court of Session are involved in the making of Scottish Tribunal Rules by virtue of the coming into force of paragraph 13(2) to (5) of schedule 9 of the Tribunals (Scotland) Act 2014 (“the 2014 Act”)—
a
the power conferred by subsection (1) is no longer exercisable by the Scottish Ministers but by the Court of Session by act of sederunt,
b
all rules made by virtue of subsection (1) are to be regarded as if made as Scottish Tribunal Rules under Chapter 2 of Part 7 of the 2014 Act,
c
all such rules have effect accordingly (and may therefore be revoked, amended or remade by Scottish Tribunal Rules under Chapter 2 of Part 7 of the 2014 Act).
4
This section does not affect the power to make Scottish Tribunal Rules in section 71 of the 2014 Act.
.
8
In section 62 (presumption for purposes of sections 41, 48 and 61), in subsection (1), after “48” insert “, 49B”.
9
The section title of section 62 becomes “Presumption for purposes of sections 41, 48, 49B and 61”.
10
In section 62A (non-disclosure of information about individual's health), after “44(1)” insert “, 49B(1)”.
11
The Tribunals (Scotland) Act 2014 is modified in accordance with subsection (12).
12
In schedule 9 (transitional and consequential), after paragraph 4(3) insert—
4
See section 49C of the Social Security (Scotland) Act 2018 (which makes provision for the making of Tribunal Rules in relation to ending appeals under that Act in certain circumstances).
.

Determinations as part of appeal

Determinations as part of appeal
9
1
The 2018 Act is modified as follows.
2
In section 49 (First-tier Tribunal’s power to determine entitlement)—
a
the existing words become subsection (1),
b
after that subsection insert—
2
In exercising its power under subsection (1), the First-tier Tribunal—
a
must not take into account any circumstances which did not exist at the relevant time, but
b
may take into account circumstances which existed but were not known at the relevant time.
3
In this section—
- “the relevant time” means the time at which the individual’s entitlement fell to be determined, under the applicable regulations, by the Scottish Ministers in making the original determination under section 37 in relation to that entitlement,
- “the applicable regulations” means the regulations made under the section in Chapter 2 that describes the type of assistance in question.
.

Appeal against Scottish Ministers’ process decisions

Appeal to First-tier Tribunal against process decisions
10
1
The 2018 Act is modified as follows.
2
In the italic heading immediately preceding section 61, for “Right to appeal” substitute “Appeal against”.
3
In section 61 (appeal to First-tier Tribunal against process decisions), after subsection (3B) (inserted by section 5(6)(d)) insert—
3C
In an appeal under this section, the First-tier Tribunal may—
a
uphold the decision,
b
set aside the decision and decide—
i
in the case of an appeal against a decision mentioned in subsection (1)(a)—
A
that the application for assistance was made in accordance with section 38(1), or
B
that further information is required in order for the application for assistance to meet the requirements of section 38(1),
ii
in the case of an appeal against a decision mentioned in subsection (1)(b)—
A
that the request satisfied the condition in section 41(3), or
B
that further information is required in order for the request to satisfy the condition in section 41(3),
iii
in the case of an appeal against a decision mentioned in subsection (1)(c), that an individual has a good reason for not requesting a re-determination sooner,
iv
in the case of an appeal against a decision mentioned in subsection (1)(d), that there are exceptional circumstances justifying why a request for a re-determination was not made sooner.
.
4
After section 61 insert—

Action by Scottish Ministers following process appeal decision
61A
1
Following a decision of the First-tier Tribunal under section 61(3C)(b)(i)(A) that an application for assistance was made in accordance with section 38(1), the Scottish Ministers must make a determination of entitlement under section 37.
2
Following a decision of the First-tier Tribunal under section 61(3C)(b)(i)(B) that further information is required for the application to meet the requirements of section 38(1), the Scottish Ministers—
a
must seek that further information, and
b
if—
i
that information is received, must make a determination of entitlement under section 37, or
ii
that information cannot be obtained, may make a further decision of the type referred to in section 38(5).
3
Following a decision of the First-tier Tribunal under section 61(3C)(b)(ii)(A) that a request for a re-determination satisfied the condition in section 41(3), the Scottish Ministers must make a determination of entitlement under section 43.
4
Following a decision of the First-tier Tribunal under section 61(3C)(b)(ii)(B) that further information is required for the request to satisfy the condition in section 41(3), the Scottish Ministers—
a
must seek that further information, and
b
if—
i
that information is received, must make a determination of entitlement under section 43, or
ii
that information cannot be obtained, may make a further decision of the type referred to in section 41(6).
5
Following a decision of the First-tier Tribunal under section 61(3C)(b)(iii) or (iv), the Scottish Ministers must make a determination of entitlement under section 43.
.
S. 5 not in force at Royal Assent, see s. 27(2)
S. 6 not in force at Royal Assent, see s. 27(2)
S. 7 not in force at Royal Assent, see s. 27(2)
S. 8 not in force at Royal Assent, see s. 27(2)
S. 9 not in force at Royal Assent, see s. 27(2)
S. 10 not in force at Royal Assent, see s. 27(2)
S. 9 in force at 10.5.2025 by S.S.I. 2025/119, reg. 2, sch. (with reg. 3)