Commentary on Provisions Re-determinations Section 7: Re-determinations after the period allowed
23.Where a re-determination of entitlement is not completed by the Scottish Ministers (acting through Social Security Scotland) in the timescales set out in regulations under section 43(5) of the 2018 Act, a re-determination becomes out-of-time and the individual in question must be notified that they have a right to appeal to the First-tier Tribunal under section 46. The Scottish Ministers are, at that point, no longer under a duty to make the re-determination. However, in practice, they continue to consider the re-determination request.
24.Section 7 of the Act amends section 43 of the 2018 Act to clarify that Ministers remain under the duty to make the re-determination beyond the period allowed, unless an individual opts to exercise their right to appeal, in which case the duty on Ministers falls away. However if an appeal under section 46 is subsequently withdrawn, the duty on Ministers to make the determination applies again and continues unless the appeal is reinstated. Sections 44 to 46 are also amended in consequence of this change. The amendments to sections 44 and 45 provide that the individual will be provided with information as to how the process will work. The amendments to section 46 ensure that the right to appeal arises once the period allowed for re-determination has ended without a re-determination having been made, but without implying that the duty to make a re-determination has ended.