Commentary on Provisions Part 4 – Assistance Given in Error Section 13: Assistance given in error: reviews and appeals
59.Section 13 inserts a run of sections after section 69 of the 2018 Act, to provide for reviews and appeals of decisions on liability made under section 63.
60.Inserted section 69A provides that a person has a right to request that the Scottish Ministers review a decision under section 63. The request must be in the required form: if the Scottish Ministers decide that it is not, they must inform the person who submitted it of that decision and that the person has a right to appeal that decision under section 69J.
61.The request for a review must be made within a period to be prescribed in regulations or, if it is made after that period, the person must have a good reason for not requesting it sooner and it must be made within a year of being informed of the decision (unless there are exceptional circumstances).
62.Under section 69B, it is for the Scottish Ministers (or the First-tier Tribunal on appeal) to decide whether a person has a good reason for not making an appeal within the period allowed or whether there are exceptional circumstances justifying why it was not made within a year. A decision of the Scottish Ministers under this section can be appealed under section 69J. The intention is that examples of ‘exceptional circumstances’ will be provided in guidance: for instance, severe physical or mental illness, unstable housing, abuse or detainment.
63.Section 69C requires the Scottish Ministers to complete a review within the period allowed for review, which will be prescribed in regulations.
64.If the Scottish Ministers complete a review, section 69D requires them to inform the person who requested the review of the outcome, the reasons for that outcome and the right to appeal to the First-tier Tribunal against the outcome. If the person has previously been given a notice under section 69E informing them of their right to appeal against the original decision because the review had not been completed within the period allowed, the Scottish Ministers must also inform them that they no longer have that right. The person must be given a form which they can submit to bring an appeal against the outcome of the review.
65.If the Scottish Ministers do not complete a review within the period allowed, section 69E provides that they must inform the person of that, that the person has the right to appeal against the original decision under section 63, and that if the person withdraws an appeal, the Scottish Ministers will again consider the request for a review. They must also explain the interaction with section 69D: that if the review is completed, the right to bring an appeal against the original decision will end (because there will then be a right to appeal against the review).
66.Section 69F sets out the right for a person to appeal to the First-tier Tribunal against the outcome of a review, or against the original decision under section 63 where a review has been requested, the period for review has ended, but the review has not yet been completed.
67.Section 69G provides that an appeal is brought by submitting the form provided to the Scottish Ministers, who must then send it to the First-tier Tribunal.
68.Section 69H sets out the deadlines for bringing an appeal. An appeal may be brought within 31 days of the person either being informed of the outcome of a review, or told that they have the right to appeal if the review was not completed within the period allowed. After that, the First-tier Tribunal’s permission is required. If the appeal is brought after 31 days but within a year, the First-tier Tribunal must be satisfied that there is a good reason for the application not having been made sooner. If the appeal is brought after a year, the First-tier Tribunal must be satisfied that there are exceptional circumstances justifying this.
69.On appeal, section 69I allows the First-tier Tribunal to uphold the original decision or the outcome of the review, or make its own determination of liability under section 63.
70.Section 69J allows a person to appeal against process decisions of the Scottish Ministers: that is decisions to reject a request for a review, that a person has no good reason for not requesting a review sooner or that there are no exceptional circumstances justifying why a review request was not made sooner.
71.An appeal may be brought within 31 days of the person being informed of the decision. After that, the First-tier Tribunal’s permission is required. If the appeal is brought after 31 days but within a year, the First-tier Tribunal must be satisfied that there is a good reason for the application not having been made sooner. If the appeal is brought after a year, the First-tier Tribunal must be satisfied that there are exceptional circumstances justifying this. If any provision of Scottish Tribunal Rules would prevent an appeal being brought after a year, that provision is to be disregarded with the effect that an appeal can still be made as provided for in this section.
72.The First-tier Tribunal may uphold the Scottish Ministers’ decision or may set it aside and make its own decision. In the case of an appeal relating to the form of a request for review, the First-tier Tribunal may decide that further information is required. The decision of the First-tier Tribunal under section 69J is final.
73.Section 69K requires the Scottish Ministers to take appropriate action following a decision of the First-tier Tribunal. If the decision was that the request for a review should have been allowed, the Scottish Ministers must complete the review under section 69C. If the decision was that more information was required, the Scottish Ministers must seek that further information. If it is obtained, they must complete the review under section 69C, and if it is not then they may make a further decision that the request is not in the correct form. That decision could again be subject to appeal to the First-tier Tribunal.
74.Section 69L creates a presumption that information is received 48 hours after it is sent by the Scottish Ministers, for the purposes of sections 69A, 69H and 69J.