Commentary on Provisions Determinations as part of appeal Section 9: Determinations as part of appeal
33.This section of the Act amends section 49 of the 2018 Act in order to clarify that when exercising its powers to either uphold a determination or make its own determination in an appeal, the First-tier Tribunal must not take into account circumstances which did not exist at the relevant time, although it may take into account circumstances which existed but which were not known.
34.Therefore, the Tribunal must not consider changes in the individual’s circumstances that have occurred since the relevant time. The relevant time is the time at which entitlement fell to be determined by Scottish Ministers, under the applicable regulations for that assistance, when making the original determination under section 37 in relation to that entitlement. Depending on the regulations governing that form of assistance, this could be, for example, the date of application, the “treat as made” date for the application, or the qualifying period for assistance.
35.For example, the Tribunal could take into account medical results from a later date which demonstrate that the individual had a particular condition at the relevant time, or a backdated award of a qualifying benefit or assistance which confers eligibility for the form of assistance being determined. However it could not take into account, for example, evidence of a deterioration in the individual’s medical condition which has occurred after the relevant time.
36.This ensures that individuals have re-determination and appeal rights in relation to any change in their circumstances for a later period, separate from the re-determination and appeal rights that flow from the determination for an earlier period.
37.If this were not the case, and the Tribunal were to consider a change of circumstances for a later period when making a determination at appeal, the individual would only have a right to ask the First-tier Tribunal to review its own decision or ask permission to appeal to the Upper Tribunal, on a point of law, against that decision.