5. Transfer of jurisdiction of debt recovery from the sheriff court to the First-tier Tribunal
5.1 The views of stakeholders, regarding the transfer of jurisdiction from the sheriff court to the First-tier Tribunal for debt recovery of devolved social security benefits were sought at various workshops that were held between 2018 and 2020. There were very strong views in favour of the transfer and the general consensus was that stakeholders would welcome the transfer from the sheriff court to a tribunal setting.
5.2 The previous chapter sets out the benefits that could arise with the hearing of social security debt recovery in the First-tier Tribunal rather than the sheriff court. To transfer the competence and jurisdiction that a sheriff has in relation to the recovery of debt to the First-tier Tribunal, the following would need to be considered:
- What powers over debt recovery should be transferred;
- The number of cases that could potentially be transferred;
- What processes would be necessary;
- What further expertise if any would be required by the First-tier Tribunal;
- Access to legal aid.
Which powers over debt recovery should be transferred?
5.3 There are potentially three options for the transfer of some or all of the competence and jurisdiction that a sheriff has in relation to debt recovery of social security benefits and these are set out more fully in the accompanying Business Regulatory Impact Assessment (BRIA).
5.4 The three options are:
1. Do not transfer jurisdiction from sheriff court to First-tier Tribunal.
2. All social security debt recovery cases currently within the jurisdiction of the sheriff court to transfer from the sheriff court to First-tier Tribunal.
3. All social security debt recovery cases currently within the jurisdiction of the sheriff court which would fall within the simple procedure to transfer from the sheriff court to the First-tier Tribunal.
5.5 The Scottish Government preferred option would be the second option - that all of the jurisdiction of the sheriff court regarding debt recovery in the social security system is transferred to the First-tier Tribunal. This would ensure that all social security debt recovery decisions were made by only one judicial body and would avoid divergent case law. It would also address concerns raised during Stage 3 of the Social Security Bill that the sheriff court is not the correct environment for determining debt in the social security system.
Question 1. Do you agree that all social security debt recovery that falls within the jurisdiction of the sheriff court should be transferred from the sheriff court to the First-tier Tribunal?
The number of cases that could potentially be transferred
5.6 As discussed in paragraph 3.11, prior to devolution of benefits, appeals over overpayments would have been heard through the UK Social Security and Child Support First-tier Tribunal and if an individual lost their appeal in that tribunal the DWP would use the powers they had available to recover the debt. Therefore, debt recovery cases of devolved social security benefits are a new responsibility for the sheriff court.
5.7 There is considerable uncertainty in the volume of cases that might have been the responsibility of the sheriff court, and whether this change will lead to an increase in the number of cases that the First-tier Tribunal will hear. Therefore, at this stage it is not possible to provide any estimates of the scale of the impact, other than it is unlikely to be a large number of cases.
What process would be necessary
5.8 The Social Security First-tier Tribunal would replace the sheriff court as the decision maker over those cases currently within the jurisdiction of the sheriff court with regards to the recovery of debt in the social security system. The liability for the debt and the recovery of the debt would, if the action was defended by the individual, be considered by the panel and no longer the sheriff court.
5.9 Where an individual does not agree to a repayment plan and Social Security Scotland has made a decision to recover an overpayment from an individual that does not have a devolved recurring benefit they would refer the case to the Tribunal. The individual would be able to defend the case for recovery in the Tribunal. If the Tribunal finds that there is a debt then a legislative change may be required to allow the Tribunal to make a decision which is as enforceable as a sheriff court decision.
5.10 If the Tribunal makes a decision that there is an overpayment and it is to be repaid then a legislative change would be required so that they can make an 'order for payment'. This will only be in cases where deductions from a recurring benefit is not possible.
5.11 It would be expected that an individual would be able to apply for a 'time to pay direction' from the Tribunal so that the repayment can be made in affordable amounts over an agreed time period. A direction is normally granted at the point of a court decision. Where no time to pay direction is made, once diligence has commenced and the charge for payment has been served, the individual may still be able to apply for a time to pay order. If the individual does not make the repayment then the 'time to pay direction or order' lapses and sheriff officers will be able to enforce the 'order for payment'.
Question 2. Do you agree that the Tribunal will require the powers in these circumstances to determine whether the overpayment is to be recovered, to make an order for payment, and to issue time to pay directions and time to pay orders?
5.12 To allow clients to appeal a one-off benefit overpayment it is proposed that Social Security Scotland, using powers under section 37 of the 2018 Act, will send a determination without application detailing the overpayment to the individual which will allow them to appeal the existence of an overpayment with the First-tier Tribunal if they wish. This is not necessary for those individuals whose recurring benefit has been stopped as they will already be sent a determination that states that they are not entitled to the benefit which they can appeal.
What further expertise if any would be required by the First-tier Tribunal
5.13 It would be expected that the legal member of the tribunal would be able to determine whether there is a debt for the one off benefit types. The legal member will already be considering the overpayment liability for the recurring benefit types. A specialist with knowledge of the benefit may also sit on the tribunal to consider whether the deduction from future benefits is reasonable. For those recurring benefits that have been stopped, the same skills will be used so this should be familiar to the panel. If the tribunal finds in the Social Security Scotland favour then an order to pay would be issued.
5.14 The tribunal would be a relatively informal, investigative approach to dealing with a case. Rules of procedure would be required to ensure the process was fair to all parties involved. It may be possible to reach a decision on the basis of written submissions by the parties, without a need for a hearing if all parties agreed. The tribunal would have power to compel attendance by parties and witnesses.
Access to Legal Aid
5.15 Where a debt recovery action proceeds under either the Simple or Ordinary Cause Procedure Rules at the sheriff court, an individual may be eligible for legal assistance by way of:
- advice and assistance, and/or
- civil legal aid
5.16 Advice and assistance is oral or written advice on a matter of Scots law that may be provided by a solicitor to a client, and would be available to any person eligible in connection with proceedings in both the sheriff court and the First-tier Tribunal. It does not extend to the provision of representation services during proceedings, whereas civil legal aid, if granted, would allow representation for those eligible in the sheriff court and in an appeal to the Upper-tier Tribunal. Different eligibility criteria apply for advice and assistance and civil legal aid, with the former being solicitor granted and the latter subject to approval of the Scottish Legal Aid Board.
5.17 First-tier tribunals have an inquisitorial rather than adversarial approach, and generally the provision of legal aid representation is not available in the Social Security Chamber. However, there are proceedings for which either Assistance By Way of Representation (ABWOR), which is a type of advice and assistance that permits representation to be provided, or civil legal aid is available before other chambers in the First-tier tribunal.
5.18 As an individual may be eligible for civil legal aid in cases currently before the sheriff court, consideration needs to be given to access to a form of legal aid that allows for representation if jurisdiction over debt recovery is transferred to the First-tier tribunal.
5.19 The general rule is that for claims below the value of £3,000 civil legal aid is not available, whereas above £3,000, civil legal aid may be available if an individual is eligible and is not one of the listed "excepted proceedings" under the Legal Aid (Scotland) Act 1986.
5.20 Therefore, if debt recovery of social security benefits is transferred from the sheriff court to the First-tier Tribunal under the 'no detriment' rule it would be expected that the same rights of access to publicly funded legal representation as currently provided for in the sheriff court would be available in the First-tier Tribunal.
As most of the one-off benefits are below the value of £3,000 then it is unlikely that legal aid representation would be required in these instances.
5.21 However, for debt recovery involving a recurring benefit where it has been determined that the individual is no longer entitled to it, there is the potential for the debt to be greater than £3,000. Therefore, in these limited instances the provision of the right to publicly funded legal representation would need to be considered as part of the transfer of jurisdiction.
Provision of representation
5.22 There are two methods in which publicly funded legal representation can be provided. A solicitor may grant a type of ABWOR in order to represent their client in proceedings in some circumstances.
5.23 Generally ABWOR is subject to the usual advice and assistance financial eligibility test but may also be subject to a test of "reasonableness" (as with civil legal aid) and on the basis of whether the person cannot participate effectively in proceedings without such legal representation.
5.24 Alternatively, civil legal aid may help pay for representation by a solicitor in the civil courts and tribunals system. It is generally means-tested, and to qualify for civil legal aid the Scottish Legal Aid Board must agree that an individual has both probable cause and that it is reasonable to grant civil legal aid in the circumstances of the case.
5.25 As there are examples of both types of representation currently being used in tribunals, the Scottish Government would work with the Scottish Legal Aid Board to determine the best approach to provide this support within the Social Security Chamber of the First-tier Tribunal in these limited circumstances.
Question 3. Do you agree that a form of publicly funded legal representation should be provided in these limited circumstances in the Social Security First-tier Tribunal?