Social Security (Amendment) (Scotland) Act 2025

8 New determination of entitlement during appeal

(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(a) the “or” following sub-paragraph (i) is repealed,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

49A Duty to make new determination during appeal

(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.

49B Notice of new determination under section 49A

(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.

49C Tribunal rules to end appeal after new determination under section 49A

(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).”.