The First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018

Made: 14th November 2018

Coming into force: 22nd November 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 10(2) and (3), 38(1) and 40(1) of the Tribunals (Scotland) Act 2014 and all other powers enabling them to do so.

In accordance with section 11(2) of that Act, they have consulted the President of the Scottish Tribunals.

In accordance with section 79(2)(c) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 and come into force on 22 November 2018.

• (2) In these Regulations—

• “the 2018 Act” means the Social Security (Scotland) Act 2018 ;

• “the 2015 Regulations” means the Scottish Tribunals (Eligibility for Appointment) Regulations 2015 ;

• “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;

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

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

• “ordinary member with disability experience” means a member of the First-tier Tribunal for Scotland who is eligible for appointment under regulation 3D of the 2015 Regulations ;

• “ordinary member with medical experience” means a member of the First-tier Tribunal for Scotland who is eligible for appointment under regulation 3C of the 2015 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.

• “reserved benefit” means a benefit which is to any extent a reserved matter within the meaning of schedule 5 of the Scotland Act 1998 ; and

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

Composition of the First-tier Tribunal when deciding an appeal against a determination of entitlement to assistance of a type provided for in Part 2 of the 2018 Act

2

• (1) The First-tier Tribunal, when convened to decide an appeal under section 46 of the 2018 Act against a determination by the Scottish Ministers of entitlement to social security assistance of a type described in Chapter 2 of Part 2 of the 2018 Act, must consist only of a legal member, except in the cases described in paragraphs (2) and (3).

• (2) In cases involving consideration of the impact of physical condition or mental health in connection with entitlement to disability assistance, the First-tier Tribunal must consist of one legal member, one ordinary member with medical experience and one ordinary member with disability experience.

• (3) In cases involving consideration of physical condition in connection with entitlement to employment–injury assistance, the First-tier Tribunal must consist of one legal member, and one ordinary member with medical experience.

Composition of the First-tier Tribunal when deciding an appeal against a process decision

3

The First-tier Tribunal, when convened to decide an appeal under any of the following provisions against a process decision, must consist only of a legal member—

• (a) section 61 of the 2018 Act;

• (b) paragraph 23 of the schedule of the 2020 Regulations; or

• (c) paragraph 13 of schedule 2 of the Carer’s Allowance Supplement Regulations.

Composition of the First-tier Tribunal when deciding an appeal against a determination of entitlement to assistance provided for by regulations made under section 79 of the 2018 Act

4

• (1) If regulations made under section 79 of the 2018 Act provide for an appeal against a determination of entitlement to assistance by way of a top up of a reserved benefit, the First-tier Tribunal, when convened to decide such an appeal, must consist of—

• (a) a legal member;

• (b) a legal member and one ordinary member; or

• (c) a legal member and two ordinary members.

• (2) In this regulation “ordinary member” means an ordinary member with disability experience or an ordinary member with medical experience.

• (3) Where two ordinary members are allocated to a case under this regulation, one member must have disability experience and the other member must have medical experience.

• (4) The authority to determine the composition of the First-tier Tribunal in respect of the alternative compositions referred to in paragraph (1) is delegated to the President of the Scottish Tribunals, who may sub-delegate the authority to the Chamber President.

Composition of the Upper Tribunal when deciding a case appealed from the First-tier Tribunal

5

• (1) The Upper Tribunal, when deciding a case appealed from the First-tier Tribunal to the Upper Tribunal, must consist of—

• (a) a member of the Upper Tribunal acting alone;

• (b) two or three members of the Upper Tribunal;

• (c) the Chamber President (except a temporary Chamber President), acting alone or with no more than two members of the Upper Tribunal;

• (d) the President of the Scottish Tribunals, acting alone or with the Chamber President or with no more than two members of the Upper Tribunal; or

• (e) the Lord President, acting alone or with the Chamber President or with no more than two members of the Upper Tribunal.

• (2) The Chamber President referred to in paragraph (1) must not have had any involvement in the case prior to the appeal of the case to the Upper Tribunal.

• (3) For the purposes of this regulation a member of the Upper Tribunal may be a legal member or a judicial member but may not be an ordinary member.

• (4) The authority to determine the composition of the Upper Tribunal in respect of the alternative compositions referred to in paragraph (1) is delegated to the President of the Scottish Tribunals, including—

• (a) determining whether a member acting alone is to be a legal member or a judicial member;

• (b) determining, in other cases, how many members are to be legal members and how many members are to be judicial members.

• (5) In this regulation “judicial member” means a judge of the Court of Session.

Signed

SHIRLEY-ANNE SOMERVILLE — A member of the Scottish Government — 2018-11-14

Explanatory note

(This note is not part of the Regulations)

Footnotes

[^f00001]: 2014 asp 10.

[^f00002]: 2018 asp 9.

[^f00003]: S.S.I. 2015/381, which was amended by S.S.I. 2017/274 and S.S.I. 2018/276.

[^f00004]: The First-tier Tribunal for Scotland Social Security Chamber is brought into being by S.S.I. 2018/349.

[^f00005]: Regulation 3D was inserted by S.S.I. 2018/276.

[^f00006]: Regulation 3C was inserted by S.S.I. 2018/276. This followed from the insertion into the 2015 Regulations of regulations 3A and 3B, by S.S.I. 2017/274.

[^f00007]: 1998 c.46. The relevant section is F1 in Part 2 of schedule 5, which was amended by the Scotland Act 2016 (c.11), sections 22 to 28.

Editorial notes

[^c23435911]: 2014 asp 10.

[^c23435921]: 2018 asp 9.

[^c23435931]: S.S.I. 2015/381, which was amended by S.S.I. 2017/274 and S.S.I. 2018/276.

[^c23435941]: The First-tier Tribunal for Scotland Social Security Chamber is brought into being by S.S.I. 2018/349.

[^c23435951]: Regulation 3D was inserted by S.S.I. 2018/276.

[^c23435961]: Regulation 3C was inserted by S.S.I. 2018/276. This followed from the insertion into the 2015 Regulations of regulations 3A and 3B, by S.S.I. 2017/274.

[^c23435971]: 1998 c.46. The relevant section is F1 in Part 2 of schedule 5, which was amended by the Scotland Act 2016 (c.11), sections 22 to 28.

[^key-53eb9e491d53183aa72b9631ef95997f]: Words in reg. 1(2) inserted (9.11.2020) by The First-tier Tribunal for Scotland Social Security Chamber (Procedure and Composition) Amendment Regulations 2020 (S.S.I. 2020/353), regs. 1, 2(2)(a)

[^key-e862577e8e50cba291bc003c3501d104]: Words in reg. 1(2) substituted (9.11.2020) by The First-tier Tribunal for Scotland Social Security Chamber (Procedure and Composition) Amendment Regulations 2020 (S.S.I. 2020/353), regs. 1, 2(2)(b)

[^key-e791cb630a92a8fd0990527d7030f752]: Reg. 4A inserted (24.12.2020) by The First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Allocation of Functions, Procedure and Composition) (Miscellaneous Amendments) Regulations 2020 (S.S.I. 2020/476), regs. 1, 4(4)

[^key-4ccded00a800b0e6dae5d0e40fad4016]: Words in reg. 1(2) inserted (24.12.2020) by The First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Allocation of Functions, Procedure and Composition) (Miscellaneous Amendments) Regulations 2020 (S.S.I. 2020/476), regs. 1, 4(2)(a)

[^key-0fe756dbede390d443fe474092345f7e]: Words in reg. 1(2) inserted (24.12.2020) by The First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Allocation of Functions, Procedure and Composition) (Miscellaneous Amendments) Regulations 2020 (S.S.I. 2020/476), regs. 1, 4(2)(b)

[^key-139741c671adea5841dae31792fe1c49]: Reg. 3 substituted (24.12.2020) by The First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Allocation of Functions, Procedure and Composition) (Miscellaneous Amendments) Regulations 2020 (S.S.I. 2020/476), regs. 1, 4(3)

Composition of the First-tier Tribunal when deciding an appeal against a determination of entitlement to a carer’s allowance supplement

4A

The First-tier Tribunal, when convened to decide an appeal under paragraph 9 of schedule 2 of the Carer’s Allowance Supplement Regulations against a determination by the Scottish Ministers of entitlement to a carer’s allowance supplement, must consist only of a legal member.

Composition of the Upper Tribunal when deciding a case appealed from the First-tier Tribunal