The Scotland Act 2016 transferred new powers to the Scottish Parliament relating to social security, including responsibility over certain benefits.
As part of its ongoing commitment to engage key stakeholders in the future development of social security in Scotland, the Scottish Government committed to a series of social security related consultations. One such consultation related to the draft Regulations making provision in relation to Social Security Appeals and the findings from that consultation are set out here.
The consultation opened on 22 January 2018 and ran until 16 April 2018. It included a total of 7 closed and 22 open questions and a total of 25 substantive responses were received (4 from individuals and 21 from organisations).
Given the small number of individuals compared to organisations who responded, and the small numbers of responses overall, it was not possible to carry out any reliable disaggregate analysis to compare responses between 'types' of respondent. The views presented here should also not be taken as representative of the wide range of stakeholders invited to respond to this consultation.
The analysis of responses suggests the following main findings in relation to each of the six core sets of draft Regulations set out in the consultation  .
Annex A - the establishment of the new chamber of the First-tier Tribunal ( FtT), to be known as the First-tier Tribunal for Scotland Social Security chamber, and its proposed functions:
- although generally supported, it was suggested that there may be need for greater clarity on the description of functions exercisable by the Social Security chamber in considering devolved appeals especially relating to deductions for overpayments;
- several comments were made in relation to the need to ensure that appellants have legal guidance or representation to assist them in any appeal;
- some concerns were raised that powers to look at all aspects of a determination may act as a disincentive to challenge award decisions and that this needed to be addressed more expressly in the draft Regulations; and
- other specific concerns, raised by only a couple of respondents each, included the need for guarantees that entitlements would never be reduced as a result of an appeal, concerns about how the devolved and reserved appeal systems might dovetail and the need for flexibility in the appeals process to accommodate individual differences.
Annex B - adding the Social Security chamber to the list of chambers into which the First-tier Tribunal for Scotland is divided:
- there were no objections to adding the Social Security chamber to the list of chambers into which the First-tier Tribunal for Scotland is divided. This area of the consultation attracted the least response overall.
Annex C - the proposed Rules of procedure for the new Social Security chamber, which largely mirror the Rules of procedure for the Social Entitlement chamber but include some changes to update procedures and make them consistent with other chambers of the First-tier Tribunal:
- this part of the consultation generated a significant response, with all but one respondent providing detailed input;
- among the proposals put forward, there was support for the use of digital recordings of hearings as standard, providing that these were made available in a range of accessible formats. There was also support for an extended role of supporters of appellants at hearings, as long as their remit was clearly defined;
- there were mixed views around the use of independent medical examiners to provide reports to Tribunals. While some felt that the use of independent advisers would provide reassurance to appellants, some felt that professionals known to the individual may engender more trust. Some stressed the importance that examinations should be carried out by the most appropriate professional to ensure that they fully understand the condition being assessed. The main other view was that medical examinations should be ordered only in exceptional circumstances, rather than being used routinely;
- mixed views were also received in relation to proposals that, when dealing with cases, the FtT and Upper Tribunal may have due regard to the Social Security Charter. While many supported this as a fundamental principle a small number questioned its relevance in a set of procedural Rules;
- the other areas of the proposed Rules of procedure for the FtT for Scotland Social Security chamber, including proposals regarding venues for hearings, use of interpreters, expenses, dismissal of a party's case and review decisions, all attracted very little comment. There were no comments made in relation to who would be the chairing member.
Annex D - the type and number of members of the FtT who can consider cases before the Social Security chamber and, when cases are appealed from there, before the Upper Tribunal for Scotland:
- there was support for the proposed composition for the FtT and the Upper Tribunal, the main concern being that including lay members with lived experience for all appeals should be considered, and that employing members with specialisms relating to individual cases was required.
Annex E - the eligibility criteria for appointment to the FtT of ordinary members with medical and disability experience. These members, alongside legal members of the Tribunal, will be responsible for deciding cases coming before the Social Security chamber:
- there were mixed views around eligibility and, while most supported the appointment of people with lived experience of disability, others stressed that more independence may be found by employing those with professional or vicarious experience.
Annex F - specific Rules of procedure of the Upper Tribunal for Scotland where cases are appealed from the Social Security chamber to the Upper Tribunal:
- there may be a need for greater clarity/explanation for the proposed Rules of procedure for the Upper Tribunal, in line with those for the FtT, especially with regards to expenses, interested parties, withdrawal of cases and consent orders. Many of the concerns that relate to Annex C similarly applied here.
Acting on the Consultation Findings
The consultation contributes to an already ongoing process to clearly set out how the new Tribunal system for Social Security appeals will operate. This report, alongside the responses themselves, will be published and used to inform consideration of updating the regulations to ensure they are operationally deliverable. Going forward, as each devolved benefit is developed, the Scottish Government will continue to consult all stakeholders in line with its commitment to co-design Scotland's Social Security system.
On the whole, there was support for the establishment of the new chamber of the First-tier Tribunal, and for it to be added to the list of chambers into which the First-tier Tribunal for Scotland is divided. The main feelings expressed were that greater clarity on the description of functions exercisable by the Social Security chamber may be required, as well as greater clarity on the specific Rules of procedure for both the First-tier Tribunal and Upper Tribunal, where cases are appealed. Ensuring balanced representation of appointed members to both Tribunals was also seen as key. All respondents agreed that fairness, dignity and respect should be at the heart of any future change and were keen to see the engagement process continue beyond this consultation alone.
Email: Naeem Bhatti