The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018

Made: 11th September 2018

Laid before the Scottish Parliament: 13th September 2018

Coming into force: 22nd November 2018

In accordance with paragraph 4(3) of schedule 9 of that Act, the Scottish Ministers have consulted the President of the Scottish Tribunals and such other persons as they considered appropriate.

Citation and commencement

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• (1) These Regulations may be cited as the First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 and the Rules contained in the schedule may be cited as the First-tier Tribunal for Scotland Social Security Chamber Rules of Procedure 2018.

• (2) These Regulations come into force on 22nd November 2018.

Application of the Rules set out in the schedule

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The Rules in the schedule apply to any proceedings before the First-tier Tribunal for Scotland Social Security Chamber when exercising functions conferred on the Tribunal by —

• (a) the Social Security (Scotland) Act 2018;

• (b) regulations made under the Social Security (Scotland) Act 2018; or

• (c) the Carer’s Allowance Supplement and Young Carer Grants (Residence Requirements and Procedural Provisions) (EU Exit) (Scotland) Regulations 2020.

SCHEDULE — THE FIRST-TIER TRIBUNAL FOR SCOTLAND SOCIAL SECURITY CHAMBER RULES OF PROCEDURE 2018

PART 1 — Introduction

Interpretation

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• (1) In these Rules—

• “the 2014 Act” means the Tribunals (Scotland) Act 2014[^f00003];

• “the 2018 Act” means the Social Security (Scotland) Act 2018[^f00004];

• “the 2016 Regulations” means the Scottish Tribunals (Time Limits) Regulations 2016[^f00005];

• “the 2020 Regulations” means the Scottish Child Payment Regulations 2020,

• “the Carer’s Allowance Supplement Regulations” means the Carer’s Allowance Supplement and Young Carer Grants (Residence Requirements and Procedural Provisions (EU Exit) (Scotland) Regulations 2020;

• “appellant” means the person who starts proceedings (whether by notifying an appeal, or applying for permission to appeal) or a person substituted as an appellant under rule 8 (addition, substitution and removal of parties);

• “chairing member” means the chairing member of the First-tier Tribunal;

• “Chamber President” means the President of the First-tier Tribunal;

• “the Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998[^f00006];

• “decision maker” means the maker of a decision or determination against which an appeal to the First-tier Tribunal is brought;

• “document” means anything in which information is recorded in any form, and an obligation under these Rules to provide or allow access to a document or a copy of a document for any purpose means, unless the First-tier Tribunal directs otherwise, an obligation to provide or allow access to such document or copy in a legible form or a form which can easily be made into a legible form;

• “electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 2000[^f00007];

• “excluded decision” means a decision falling under section 51 of the 2014 Act;

• “the First-tier Tribunal” means the First-tier Tribunal for Scotland Social Security Chamber;

• “hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;

• “legal member” means an individual holding membership of the First-tier Tribunal for Scotland in accordance with section 15(2) of the 2014 Act;

• “party” means a person who is (or was at the time that the First-tier Tribunal disposed of the proceedings) an appellant or a respondent in proceedings before the First-tier Tribunal;

• “practice direction” means a direction given under section 74 of the 2014 Act;

• “the prescribed time period” means—in relation to re-determination of entitlement to assistance under Chapter 2 of Part 2 of the 2018 Act, the period prescribed by the Scottish Ministers by virtue of section 43(5) of the 2018 Act;in relation to re-determination of entitlement to assistance under the 2020 Regulations, the period provided for in paragraph 14(2) of the schedule of the 2020 Regulations; in relation to re-determination of entitlement to a carer’s allowance supplement, the period provided for in paragraph 6(2) of schedule 2 of the Carer’s Allowance Supplement Regulations.

• “process decision” means—in relation to an appeal under section 61 of the 2018 Act, a decision made under section 38, 41(3) or 42 of that Act;in relation to an appeal under paragraph 23 of the schedule of the 2020 Regulations, a decision made under paragraph 1(4), 14(5) or 15(2)(b) of the schedule of those Regulations; in relation to an appeal under paragraph 13 of schedule 2 of the Carer’s Allowance Supplement Regulations, a decision made under paragraph 1(5), 4(6) or 5(2)(b) of schedule 2 of those Regulations.

• “representative” means a lay representative or a legal representative;

• “respondent” means—the decision maker in relation to a decision or determination against which an appeal to the First-tier Tribunal is brought; ora person substituted or added as a respondent under rule 8 (addition, substitution and removal of parties);

• “review” means the internal review provided for by section 43(1) of the 2014 Act; and

• “the Upper Tribunal” means the Upper Tribunal for Scotland.

• (2) For the purposes of these Rules, where information is sent—

• (a) via the postal service to the last known address held for an individual; or

• (b) by email to the last known email address held for the individual,

the individual is presumed to have received the information 48 hours after it is sent, unless the contrary is shown.

Overriding objective and parties’ obligation to co-operate with the First-tier Tribunal

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• (1) The overriding objective of these Rules is to enable the First-tier Tribunal to deal with cases fairly and justly.

• (2) Dealing with a case fairly and justly includes—

• (a) dealing with the case in ways which are transparent and which are, proportionate to the importance of the case, the complexity of the issues, the anticipated expenses and the resources of the parties;

• (b) avoiding unnecessary formality and seeking flexibility in the proceedings;

• (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings and are treated with dignity and respect;

• (d) using any special expertise of the First-tier Tribunal effectively; and

• (e) avoiding delay, so far as compatible with proper consideration of the issues.

• (3) The First-tier Tribunal must seek to give effect to the overriding objective when it—

• (a) exercises any power under these Rules; or

• (b) interprets any rule or practice direction.

• (4) Parties must, insofar as reasonably possible—

• (a) help the First-tier Tribunal to further the overriding objective; and

• (b) co-operate with the First-tier Tribunal generally.

Delegation to staff

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• (1) Staff of the Scottish Courts and Tribunals Service may, with the approval of the Chamber President, carry out functions of a judicial nature permitted or required to be undertaken by the First-tier Tribunal, provided the functions are of a preliminary or an incidental nature.

• (2) The approval referred to in paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.

• (3) Where the First-tier Tribunal sends notice of a decision made by a member of staff pursuant to an approval under paragraph (1) to a party, that party may, within the period of 14 days beginning with the day on which the party is presumed to have received the notice, make a written application to the First-tier Tribunal for that decision to be considered afresh by a member of the First-tier Tribunal.

PART 2 — General Powers and Provisions

Case management powers

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• (1) Subject to the provisions of the 2014 Act and these Rules, the First-tier Tribunal may regulate its own procedure.

• (2) The First-tier Tribunal may give an order in relation to the conduct and disposal of proceedings at any time, including an order amending, suspending or setting aside an earlier order.

• (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the First-tier Tribunal may—

• (a) extend or shorten the time for complying with any rule, practice direction or order;

• (b) conjoin or take concurrently two or more sets of proceedings or parts of proceedings raising common issues;

• (c) permit or require a party to amend a document;

• (d) permit or require a party or another person to provide documents, information, evidence or submissions to the First-tier Tribunal or a party;

• (e) deal with an issue in the proceedings as a preliminary issue;

• (f) hold a hearing to consider any matter, including a case management issue;

• (g) decide the form of any hearing;

• (h) adjourn or postpone a hearing;

• (i) require a party to produce a file of documents for a hearing;

• (j) sist proceedings;

• (k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—

• (i) because of a change of circumstances since the proceedings were started, the First-tier Tribunal no longer has jurisdiction in relation to the proceedings; or

• (ii) the First-tier Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;

• (l) suspend the effect of its own decision pending the determination by the First-tier Tribunal or the Upper Tribunal, as the case may be, of an application for permission to appeal against, and any appeal or review of, that decision.

Procedure for applying for and giving orders

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• (1) The First-tier Tribunal may give an order on the application of one or more of the parties or on its own initiative.

• (2) An application for an order may be made—

• (a) by sending or delivering a written application to the First-tier Tribunal; or

• (b) orally during the course of a hearing.

• (3) An application for an order must include the reasons for making that application.

• (4) Unless the First-tier Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any order to each party to the case.

• (5) If a party sent notice of the order under paragraph (4) wishes to challenge the order, the party may do so by applying for another order which amends, suspends or sets aside the first order.

Failure to comply with rules etc

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• (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or an order does not of itself render void the proceedings or any step taken in the proceedings.

• (2) If a party has failed to comply with a requirement in these Rules, a practice direction or an order, the First-tier Tribunal may take such action as it considers just, which may include—

• (a) waiving the requirement;

• (b) requiring the failure to be remedied; or

• (c) exercising its power under rule 7 (dismissal of a party’s case).

Dismissal of a party’s case

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• (1) The First-tier Tribunal must dismiss the whole or a part of the proceedings if the Tribunal—

• (a) does not have jurisdiction in relation to the proceedings or that part of them; and

• (b) does not exercise its power under rule 4(3)(k) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

• (2) The First-tier Tribunal may dismiss the whole or a part of the proceedings if—

• (a) the appellant has failed to comply with an order which stated that failure by the appellant to comply with the order could lead to the dismissal of the proceedings or part of them;

• (b) the appellant has failed to co-operate with the First-tier Tribunal to such an extent that the First-tier Tribunal considers that it cannot deal with the proceedings fairly and justly; or

• (c) where relevant, there is no possibility of the eligibility criteria being met for the particular form of assistance to which the proceedings relate.

• (3) The First-tier Tribunal may not dismiss the whole or a part of the proceedings under paragraph (1) or (2)(b) without first giving the appellant an opportunity to make representations in relation to the proposed dismissal.

• (4) If the proceedings, or part of them, have been dismissed under paragraph (2)(a), the appellant may apply for the proceedings, or part of them, to be reinstated, where the appellant can satisfy the Tribunal that the appellant has good reason for the failure to comply.

• (5) An application under paragraph (4) must be made in writing and received by the First-tier Tribunal within the period of 31 days beginning with the day on which notification of the dismissal sent to the appellant under paragraph (9) is presumed to have been received by the appellant.

• (6) An application under paragraph (4) must set out the reasons on which the appellant relies in applying for reinstatement.

• (7) This rule applies to a respondent as it applies to an appellant except that—

• (a) a reference to the dismissal of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and

• (b) a reference to an application for the reinstatement of proceedings which have been dismissed is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.

• (8) If the respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the First-tier Tribunal need not consider any response or other submission made by the respondent.

• (9) The First-tier Tribunal must notify each party in writing that dismissal has taken place.

Addition, substitution and removal of parties

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• (1) The First-tier Tribunal may give an order adding, substituting or removing a party if—

• (a) the wrong person has been named as a party; or

• (b) the addition, substitution or removal has become necessary because of a change in circumstances since the start of proceedings.

• (2) If the First-tier Tribunal gives an order under paragraph (1) it may make such consequential orders as it considers appropriate.

• (3) A person who is not a party may make a written application to the First-tier Tribunal to be added or substituted as a party under this rule.

• (4) If the First-tier Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the First-tier Tribunal.

Representatives

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• (1) A party may be represented in any proceedings by a representative whose details may be communicated to the First-tier Tribunal prior to any hearing.

• (2) If the First-tier Tribunal receives notice that a party has appointed a representative under paragraph (1), it must send a copy of that notice to each party to the proceedings.

• (3) Where the First-tier Tribunal receives notice of the appointment of a representative—

• (a) it must provide to the representative—

• (i) any document which it requires under these Rules to provide to the represented party on or after the day on which it receives the notice, in addition to providing the document to the represented party, and

• (ii) any document which it required under these Rules to provide to the represented party prior to the day on which it receives the notice; and

• (b) it may assume that the representative remains appointed unless it receives written notification that this is not so from the representative or represented party.

• (4) Notwithstanding paragraphs (1) to (3), a party may be represented at a hearing by a person other than any person whose details have been communicated to the First-tier Tribunal.

• (5) A party may show any document or communicate any information about the proceedings to that party’s representative without contravening any prohibition or restriction on disclosure of the document or information.

• (6) Where a document or information is disclosed under paragraph (5), the representative is subject to any prohibition or disclosure in the same way that the party is.

Supporters

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A party who is an individual may be accompanied by another person, who is not a representative, to act as a supporter.

Interpreters

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Where an interpreter is appointed to assist the First-tier Tribunal, the interpreter must be independent of all parties to the case and of any representatives or supporters.

Calculating time

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• (1) An act required by these Rules, a practice direction or an order to be done on or by a particular day must be done before 5pm on that day.

• (2) If the time specified by these Rules, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.