Overview Part 2 (Giving of Assistance by Scottish Ministers) Re-determination by the Scottish Ministers
61.Section 41 enables an individual to ask that their entitlement be looked at again by the Scottish Ministers if they are not content with a determination by the Ministers under section 37.
62.A request for a re-determination will be considered only if it satisfies the requirements set out in subsections (3) and (4) of section 41. Subsection (3) enables the Scottish Ministers to set requirements for how a request for a re-determination must be made. For example a written and signed request might be required (though in practice most applications are likely to be capable of being made electronically). Subsection (5) requires Ministers to publicise requirements as to the form in which requests for a re-determination should be made. If Ministers do not accept that something is a valid request, they have to advise an individual of their reasons and that there is a right of appeal (provided for by section 61(1)(b)).
63.Subsection (4) of section 41 deals with the period within which a request for a re-determination must be made. Subsection (4)(a) empowers the Scottish Ministers to make regulations setting a deadline for re-determination requests (section 96 provides for such regulations to be subject to the negative procedure). Subsection (4)(b) allows for a request for a re-determination to be considered after the deadline specified in regulations if the individual can show that he or she has a good reason for not requesting the re-determination sooner. Section 42 provides that it is for the Scottish Ministers to decide whether an individual has a good reason, with an appeal against the Ministers’ decision being possible, to the First-tier Tribunal for Scotland. In no case can a request for a re-determination be considered more than one year after the individual was told of the original determination under section 37 (see section 41(4)(b)(ii)).
64.Section 43 places a duty on the Scottish Ministers to re-determine of new the person’s entitlement to assistance, where a request is made under section 41. (As section 43(6) makes clear, the Ministers’ duty to consider a re-determination request only triggers if the request complies with the requirements of section 41(3) and (4).) Subsections (2) and (5) provide that Ministers must aim to make the re-determination within a timescale to be set by regulations. If Ministers fail to do this, subsection (3) and section 46(1)(b) provide that the person who made the request has the immediate right of appeal to the First-tier Tribunal for Scotland. Subsection (3)(a) also makes clear, however, that the Scottish Ministers may still make the re-determination out of time. An individual may wish to wait for the Ministers to do so before deciding whether or not to take a case to the Tribunal.
65.Section 44 sets out what the Scottish Ministers must do when they have re-determined a person’s entitlement to assistance. The person must be informed of the determination, the reasons for that determination, and that they have the right to appeal the determination if they so wish. The Scottish Ministers must also provide the individual with an appeal form, which the individual can return to the Scottish Ministers in order to initiate an appeal. This must be done in a way that gives the person a record of the information that can be shared with others. That would prevent, for example, the information being given by a telephone call. Where an assessment report was used in making the determination, the person must be advised that he or she has a right to request a copy of it (that right is provided for by section 60).
66.Where a decision following a request for re-determination is not made within the period allowed by regulations, section 45 provides that the Scottish Ministers must inform the individual of their right immediately to appeal to the First-tier Tribunal for Scotland and provide the individual with an appeal form, which the individual can return to the Scottish Ministers in order to initiate an appeal. The information must be provided in a way that gives the person a record of the information that can be shared with others. As mentioned above, the individual could choose to wait for the Scottish Ministers’ re-determination before deciding whether or not to go to the Tribunal.