Prospective
(1)The 2018 Act is modified as follows.
(2)In section 63 (liability for assistance given in error)—
(a)for subsection (1) substitute—
“(1)The Scottish Ministers may decide that—
(a)an individual, or
(b)an individual’s representative,
is liable to pay the Scottish Ministers some or all of the value of any assistance that was given to or for the benefit of the individual due to an error.”,
(b)after subsection (1) insert—
“(1A)The Scottish Ministers may decide that a person is liable under subsection (1) only—
(a)if the error is—
(i)the fault of the individual or the individual’s representative, or
(ii)the kind of error that an individual could reasonably be expected to notice, and
(b)if and to the extent that—
(i)in the case of a decision about an individual’s liability, the individual has benefited from the assistance mentioned in subsection (1), or
(ii)in the case of a decision about an individual’s representative’s liability, the individual has not benefited from the assistance mentioned in subsection (1).”,
(c)subsections (2) and (3) are repealed,
(d)in subsection (4), the words “and section 64” are repealed,
(e)after subsection (4) insert—
“(5)For the purpose of subsection (1A)(a)(i), an error is the fault of the individual or the individual’s representative if it is caused or contributed to by the individual or the individual’s representative—
(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.
(6)In subsection (5)(a), the reference to providing information includes making a statement.
(7)In considering for the purposes of subsection (1A)(a)(ii) 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 or the individual’s representative 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.
(8)In subsection (7)(b)—
(a)the reference to information given to the individual or the individual’s representative by the Scottish Ministers does not include information explaining why the Ministers consider the assistance to have been given in error,
(b)the reference to information given to the individual’s representative includes only information given when that person was the individual’s representative.
(9)For the purpose of subsection (1A)(b), it is to be assumed that the individual has benefited from the assistance mentioned in subsection (1) unless the Scottish Ministers are aware that that is not the case.
(10)If the Scottish Ministers would be entitled to decide that a person is liable under subsection (1) but for the fact that the person has died since the assistance was given, the Scottish Ministers may decide that the person’s estate is liable.
(11)If the Scottish Ministers make a decision under subsection (10), references in sections 63A and 63B to a person who is liable under this section are to be read as references to the person’s estate.
(12)The Scottish Ministers may by regulations specify the persons, or categories of persons, who are included within the meaning of “the individual’s representative” for the purpose of this section.”.
(3)After section 63 insert—
(1)For the avoidance of doubt, a person’s liability under section 63 cannot be greater than 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.
(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).
(1)Having made a decision that a person is liable under section 63, the Scottish Ministers must inform the person—
(a)of the decision,
(b)of the reasons for it,
(c)of the person’s right under section 69A to request that the Scottish Ministers review the decision, and
(d)that the person will have the right under section 69F(1)(b) to appeal to the First-tier Tribunal against the decision should the Scottish Ministers fail to deal with a request for a review within the period allowed for review.
(2)The Scottish Ministers must fulfil their duty under subsection (1) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.”.
(4)Section 64 is repealed.
(5)In section 65 (consideration for debtor’s circumstances), in subsection (2), for “individual” substitute “person”.
Commencement Information
I1S. 11 not in force at Royal Assent, see s. 27(2)
(1)The 2018 Act is modified as follows.
(2)In section 69 (liability where assistance given for period after death), in subsection (1), for “under section 24” substitute “, in the performance of a function conferred by virtue of this Part,”.
Commencement Information
I2S. 12 not in force at Royal Assent, see s. 27(2)
(1)The 2018 Act is modified as follows.
(2)After section 69 insert—
(1)A person may request that the Scottish Ministers review their decision after being informed (in accordance with section 63B) of a decision by the Ministers of the person’s liability.
(2)A request for a review under subsection (1) is valid only if the conditions set out in the following subsections are satisfied—
(a)subsection (3), and
(b)subsection (4).
(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)if the request is made before the end of the day that falls one year after the day on which the person is informed in accordance with section 63B of the decision, that person has a good reason for not requesting a review sooner (see section 69B), or
(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 69B).
(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 review does not satisfy the condition in subsection (3), they must inform the person who purported to make the request of—
(a)the decision,
(b)the reasons for it, and
(c)the person’s right to appeal under section 69J.
(1)It is for—
(a)the Scottish Ministers, or
(b)on appeal under section section 69J, the First-tier Tribunal for Scotland,
to decide whether, for the purpose of section 69A(4)(b)(i), a person has a good reason for not requesting a review sooner.
(2)Having made a decision under subsection (1), the Scottish Ministers must inform the person concerned—
(a)of the decision, and
(b)if the decision is that the person has no good reason for not requesting a review sooner, of—
(i)the reasons for the decision, and
(ii)the person’s right to appeal under section 69J.
(3)It is for—
(a)the Scottish Ministers, or
(b)on appeal under section section 69J, the First-tier Tribunal for Scotland,
to decide whether, for the purpose of section 69A(4)(b)(ii), there are exceptional circumstances justifying why a request for review was not made sooner.
(4)Having made a decision under subsection (3), the Scottish Ministers must inform the person concerned—
(a)of the decision, and
(b)if the decision is that there are no exceptional circumstances justifying why a request for review was not made sooner, of—
(i)the reasons for the decision, and
(ii)the person’s right to appeal under section 69J.
(1)On being requested under section 69A to review a decision that a person is liable under section 63, the Scottish Ministers are to review that decision.
(2)The Scottish Ministers must aim to complete the review within the period allowed for review.
(3)If the Scottish Ministers complete the review (whether or not within the period allowed for review), section 69D applies.
(4)If the Scottish Ministers fail to complete the review within the period allowed for review—
(a)section 69E applies, and
(b)their duty to complete the review continues unless the person brings an appeal under section 69F.
(5)If an appeal under section 69F is subsequently withdrawn, the duty of the Scottish Ministers to complete the review applies again and continues unless the appeal is reinstated.
(6)The period allowed for review is to be prescribed by the Scottish Ministers in regulations.
(7)The reference in subsection (1) to a request under section 69A is to a request that is valid according to subsection (2) of that section.
(1)Having completed a review under section 69C, the Scottish Ministers must—
(a)inform the person who requested the review—
(i)of the outcome of the review,
(ii)of the reasons for that outcome,
(iii)of the person’s right to appeal to the First-tier Tribunal under section 69F against the outcome of the review,
(iv)in circumstances where the person was previously issued with a notice under section 69E, that the person no longer has the right to appeal to the First-tier Tribunal against the decision under section 63 which prompted the request for a review,
(b)provide the person with a form that the person can complete and submit to the Scottish Ministers in order to bring an appeal against the outcome of the review.
(2)The Scottish Ministers must fulfil their duty under subsection (1)(a) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.
(1)Having failed to complete a review under section 69C within the period allowed for review, the Scottish Ministers must—
(a)inform the person—
(i)that the review has not been completed within the period allowed,
(ii)that the person therefore has the right to appeal to the First-tier Tribunal against the decision under section 63 which prompted the request for a review,
(iii)that the Scottish Ministers will continue to consider the request for a review unless the person brings an appeal as mentioned in sub-paragraph (ii),
(iv)that if the person brings an appeal as mentioned in sub-paragraph (ii) but subsequently withdraws that appeal, the Scottish Ministers will again consider the request for a review, and
(v)that if the review is completed and a notice issued under section 69D, the person’s right to appeal to the First-tier Tribunal mentioned in sub-paragraph (ii) will end, and
(b)provide the person with a form that the person can complete and submit to the Scottish Ministers in order to bring an appeal against the decision under section 63.
(2)The Scottish Ministers must fulfil their duty under subsection (1)(a) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.
(1)A person may appeal to the First-tier Tribunal for Scotland—
(a)against the outcome of a review under section 69C, or
(b)in a case where subsection (2) applies, against the decision under section 63 referred to in that subsection.
(2)This subsection applies where—
(a)having been informed of a decision under section 63 of the person’s liability, the person has made a request for a review under section 69A,
(b)the period allowed for review has ended, and
(c)the Scottish Ministers have yet to complete a review under section 69C in consequence of that request.
(1)In order to bring an appeal under section 69F, a person must submit to the Scottish Ministers the form provided under section 69D or (as the case may be) 69E.
(2)On receiving a form that they provided under section 69D or 69E, the Scottish Ministers must send—
(a)the form, and
(b)the information held by them that they used to make the decision which is the subject of the appeal,
to the First-tier Tribunal.
(3)Having complied with subsection (2), the Scottish Ministers must inform the person to whom the decision 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 69D or 69E need not be a physical form.
(6)Scottish Tribunal Rules providing for the form and manner in which an appeal under section 69F 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.
(1)An appeal under section 69F—
(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 (in accordance with subsection (3)) if an appeal application is made after the period mentioned in paragraph (a) but still within the period of one year beginning with the day the relevant event occurred,
(c)may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (4)) if an appeal application has not been made within the period of one year beginning with the day the relevant event occurred.
(2)In subsection (1)—
(a)“the relevant event” means—
(i)in the case of an appeal against the outcome of a review under section 69C, the person who requested the review being informed of the outcome in accordance with section 69D,
(ii)in the case of an appeal against a decision under section 63, the person to whom the decision relates being informed (in accordance with section 69E) that the person has the right to appeal against it,
(b)an appeal application is made when a form, that relates to the decision 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 69G(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.
(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.
In an appeal under section 69F, the First-tier Tribunal may—
(a)uphold the decision under section 63 or (as the case may be) the outcome of the review under section 69C, or
(b)make its own determination of the person’s liability under section 63.
(1)A person may appeal to the First-tier Tribunal for Scotland against a decision by the Scottish Ministers—
(a)to reject something purporting to be a request for a review by that person (see section 69A(6)),
(b)that a person has no good reason for not requesting a review sooner (see section 69B(1)(a)),
(c)that there are no exceptional circumstances justifying why a request for review was not made sooner (see section 69B(3)(a)).
(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 person was informed of the decision in accordance with this Act,
(b)may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (3)) after the period mentioned in paragraph (a) but still within the period of one year beginning with the day the person was informed of the decision in accordance with this Act,
(c)may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (4)) after the end of the period of one year beginning with the day the person 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)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 a request for review 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 (2)(c) is to be disregarded to the extent that it would have that effect.
(6)In an appeal under this section, the First-tier Tribunal may—
(a)uphold the decision, or
(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 request satisfied the condition in section 69A(3), or
(B)that further information is required in order for the request to satisfy the condition in section 69A(3),
(ii)in the case of an appeal against a decision mentioned in subsection (1)(b), that a person has a good reason for not requesting a review sooner,
(iii)in the case of an appeal against a decision mentioned in subsection (1)(c), that there are exceptional circumstances justifying why a request for review was not made sooner.
(7)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) or (2)(c) for an appeal to be brought,
is final.
(8)Accordingly (and without prejudice to the generality of subsection (7)), 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.
(1)Following a decision of the First-tier Tribunal under section 69J(6)(b)(i)(A) that a request for review satisfied the condition in section 69A(3), the Scottish Ministers must complete a review under section 69C.
(2)Following a decision of the First-tier Tribunal under section 69J(6)(b)(i)(B) that further information is required for the request to satisfy the condition in section 69A(3), the Scottish Ministers—
(a)must seek that further information, and
(b)if—
(i)that information is received, must complete a review under section 69C, or
(ii)if that information cannot be obtained, may make a further decision of the type referred to in section 69A(6).
(3)Following a decision of the First-tier Tribunal under paragraph (ii) or (iii) of section 69J(6)(b), the Scottish Ministers must complete a review under section 69C.
(1)Subsection (2) applies in relation to the references in sections 69A, 69H and 69J 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 a person of something, the Scottish Ministers send information—
(a)through the postal service to the last known address the Scottish Ministers have for the person, or
(b)by email to the email address most recently provided to the Scottish Ministers by the person for the purposes of this Act,
the person 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
I3S. 13 not in force at Royal Assent, see s. 27(2)
(1)The 2018 Act is modified as follows.
(2)In schedule 2 (carer’s assistance regulations)—
(a)in paragraph 10(b)—
(i)the words “section 63” become sub-paragraph (i),
(ii)after that sub-paragraph insert—
“(ii)provision corresponding to section 63 made by regulations under section 79.”,
(b)in paragraph 11(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.
(3)In schedule 5 (disability assistance regulations)—
(a)in paragraph 15(b)—
(i)the words “section 63” become sub-paragraph (i),
(ii)after that sub-paragraph insert—
“(ii)provision corresponding to section 63 made by regulations under section 79.”,
(b)in paragraph 17(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.
(4)In schedule 7 (employment-injury assistance regulations)—
(a)in paragraph 12(b)—
(i)the words “section 63” become sub-paragraph (i),
(ii)after that sub-paragraph insert—
“(ii)provision corresponding to section 63 made by regulations under section 79.”,
(b)in paragraph 13(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.
(5)In schedule 9 (housing assistance regulations)—
(a)in paragraph 11(b)—
(i)the words “section 63” become sub-paragraph (i),
(ii)after that sub-paragraph insert—
“(ii)provision corresponding to section 63 made by regulations under section 79.”,
(b)in paragraph 12(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.
Commencement Information
I4S. 14 not in force at Royal Assent, see s. 27(2)