Commentary on Provisions New determination of entitlement during appeal Section 8: New determination of entitlement during appeal
25.Under the 2018 Act at present the Scottish Ministers (acting through Social Security Scotland) cannot make a new determination of entitlement after a valid appeal has been lodged with the First-tier Tribunal, even if an error has been identified, or new evidence received, which shows that an individual has been underpaid, or not received an award that they were entitled to. The appeal must continue unless it is withdrawn by the individual.
26.Section 8 of the Act inserts a new section 49A into the 2018 Act providing that in instances where the Scottish Ministers recognise after an appeal has been made that an individual should have received a higher award of assistance, or an otherwise more advantageous determination of entitlement, Ministers will be required to make a new determination of entitlement, and the appeal will come to an end as a result. The new determination can only be made if the individual agrees to it, as per section 49A(1)(c).
27.Inserted section 49A(2) provides that a new determination of entitlement of this kind must result in the individual being given more assistance, or otherwise be a more advantageous determination of entitlement, than the original determination. A new determination may be advantageous to the individual in a way which does not amount to more assistance than the original determination: for example, it may amount to a decision that they should receive an ongoing award of assistance, where they previously did not.
28.Inserted section 49B then requires the Scottish Ministers to inform the individual concerned of their new determination of entitlement under section 49A; of the reasons for it; and of the individual’s rights to request re-determination of the new determination, and to appeal it. As with other sections of the 2018 Act, the individual must also be given a proper record of the decision.
29.Inserted section 49C allows the Scottish Ministers, by regulations, to make provision in Scottish Tribunal Rules so that proceedings in the First-tier Tribunal in relation to an appeal will automatically come to an end by operation of law where Ministers make a determination of entitlement in relation to any type of assistance under section 49A, or any assistance provided under “top-up” regulations made under section 79 of the 2018 Act.
30.Consequential amendments are made to the 2018 Act to give individuals the right under section 41 to request re-determination of a new determination made under section 49A, and the right under section 46 to appeal a new determination to the First-tier Tribunal.
31.In addition, section 62 of the 2018 Act contains a legal presumption that when an individual is notified of something by Ministers, the individual is to be taken to have received the information 48 hours after it is sent, unless the contrary is shown: section 8(8) of the Act applies this to notifications under section 49B. Section 62A’s rule against the disclosure of information about an individual’s health is also applied to notifications under section 49B by section 8(10) of the Act.
32.Finally, sections 8(11) and (12) of the Act amend schedule 9 of the Tribunals (Scotland) Act 2014, to provide that Tribunal Rules may make provision for appeal proceedings to end in a case where Ministers have made a new determination of entitlement under section 49A of the 2018 Act.