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The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018

Type Scottish-Statutory-Instrument

Publication 2018-09-11

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

Reform history JSON API PDF

Made: 11th September 2018

Laid before the Scottish Parliament: 13th September 2018

Coming into force: 22nd November 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by paragraph 4(2) of schedule 9 of the Tribunals (Scotland) Act 2014 and all other powers enabling them to do so.

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, commencement and interpretation

1

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

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

(3) In these Regulations, “the 2018 Act” means the Social Security (Scotland) Act 2018 .

Disapplication of the Upper Tribunal for Scotland Rules 2016

2

The Upper Tribunal for Scotland Rules of Procedure 2016 do not apply to proceedings before the Upper Tribunal relating to the exercise by the Scottish Ministers of functions conferred on them by the 2018 Act or by regulations made under that Act.

Application of Rules in schedule

3

The Rules in the schedule of these Regulations apply to all proceedings before the Upper Tribunal relating to the exercise by the Scottish Ministers of functions conferred on them by —

(a) the 2018 Act;

(b) regulations made under the 2018 Act; or

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

SCHEDULE — The Upper Tribunal for Scotland Social Security Rules of Procedure 2018

PART 1 — Interpretation

Interpretation

1

(1) In these Rules—

“the 2014 Act” means the Tribunals (Scotland) Act 2014 ;

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

“the 2016 Regulations” means the Scottish Tribunals (Time Limits) Regulations 2016 ;

“Appeal Appendix” means all the documents and authorities to be relied on for the purpose of the appeal along with an inventory of those documents and authorities;

“appellant” means—a person who makes an appeal to the Upper Tribunal; ora person substituted as an appellant under rule 12 (addition, substitution and removal of parties);

“the Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998 ;

“document” means anything in which information is recorded in any form;

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

“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;

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

“practice direction” means a practice direction issued in terms of section 74 of the 2014 Act;

“President” means the President of the Scottish Tribunals;

“proceedings” includes a part of the proceedings;

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

“respondent” means—in an appeal against a decision of the First-tier Tribunal, that Tribunal and any person other than the appellant who was a party before the First-tier Tribunal; ora person substituted or added as a respondent under rule 12 (addition, substitution and removal of parties);

“review period” means the time period between the day of an application by a party for a review under rule 28(1) or, as the case may be, the Upper Tribunal's decision to review a decision under that rule, and the receipt by each party of a notice sent under rule 28(5);

“the Upper Tribunal” means the Upper Tribunal for Scotland; and

“witness statement” means a written statement of a witness ordered by the Upper Tribunal to stand for the evidence-in-chief of the witness.

(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.

PART 2 — Role of the Upper Tribunal

Purpose of the Upper Tribunal and overriding objective

2

(1) The Upper Tribunal hears and decides cases referred to it from the First-tier Tribunal for Scotland and hears and decides appeals from the First-tier Tribunal.

(2) The overriding objective of these Rules is to secure that proceedings before the Upper Tribunal to which the Rules apply are handled fairly and justly.

(3) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are transparent, 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 Upper Tribunal effectively; and

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

(4) The Upper 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.

(5) Parties must, insofar as reasonably possible—

(a) help the Upper Tribunal to further the overriding objective; and

(b) co-operate with the Upper Tribunal generally.

PART 3 — Procedure for Cases in the Upper Tribunal

Application for permission to appeal against a decision of the First-tier Tribunal

3

(1) A person may lodge with the Upper Tribunal an application for permission to appeal against a decision of the First-tier Tribunal, where the First-tier Tribunal has refused permission to appeal in whole or in part.

(2) An application for permission to appeal must—

(a) identify the decision of the First-tier Tribunal to which it relates; and

(b) identify the alleged point or points of law in relation to the decision.

(3) The appellant must provide with the application for permission a copy of—

(a) any written record of the decision being challenged;

(b) any separate written statement of reasons for that decision; and

(4) If the appellant lodges the application for permission to appeal with the Upper Tribunal after the expiry of the 30 day period referred to in regulation 3(1) of the 2016 Regulations—

(a) the application for permission to appeal must—

(i) include a request for an extension of time;

(ii) explain why the application for permission to appeal was not made in time; and

(iii) state why it is said to be in the interests of justice that the time be extended.

(b) unless the Upper Tribunal extends the time for lodging an application for permission to appeal the Upper Tribunal must not admit the application for permission to appeal.

(5) The Upper Tribunal may, where the First-tier Tribunal has refused permission to appeal—

(a) refuse permission to appeal;

(b) give permission to appeal; or

and must send a notice of its decision to each party including reasons for a refusal of permission or for limitations or conditions on any grant of permission.

(6) Where the Upper Tribunal, without a hearing—

(a) refuses permission to appeal; or

(b) gives permission to appeal on limited grounds or subject to conditions,

the appellant may make a written application (within the period of 14 days beginning with the day on which the appellant is presumed to have received notice of refusal of permission, sent under paragraph (5)) to the Upper Tribunal for the decision to be reconsidered at a hearing.

(7) An application under paragraph (6) must be heard and decided by a member or members of the Upper Tribunal different from the member or members who refused permission without a hearing.

(8) Where the Upper Tribunal gives permission to appeal against a decision of the First-tier Tribunal, a valid notice of appeal will be deemed to have been provided to the Upper Tribunal, for the purposes of rule 4 (notice of appeal against a decision of the First-tier Tribunal).

Notice of appeal against a decision of the First-tier Tribunal

4

(1) Where the First-tier Tribunal sends a notice of permission to appeal to a party who has sought permission to appeal, that party, if intending to appeal, must provide a notice of appeal to the Upper Tribunal within the period of 30 days beginning with the day on which the party is presumed to have received the notice of permission.

(2) A notice of appeal must —

(a) identify the decision of the First-tier Tribunal to which it relates;

(b) identify the alleged point or points of law in relation to the decision; and

(3) The appellant must provide with the notice of appeal a copy of—

(a) any written record of the decision being challenged;

(b) any separate written statement of reasons for that decision; and

(4) When the Upper Tribunal receives a notice of appeal it must send a copy of the notice and any accompanying documents to each respondent.

(5) If the appellant lodges the notice of appeal with the Upper Tribunal after the end of the period mentioned in paragraph (1)—

(a) the notice of appeal must—

(i) include a request for an extension of time;

(ii) explain why the notice of appeal was not provided in time; and

(iii) state why it is said to be in the interests of justice that the time be extended; and

(b) unless the Upper Tribunal extends the time for lodging a notice of appeal the Upper Tribunal must not admit the notice of appeal.

Response to the notice of appeal

5

(1) Subject to any order given by the Upper Tribunal, a respondent may provide a written response to a notice of appeal.

(2) Any response provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received before the end of the period of 30 days beginning with the day on which the respondent is presumed to have received the copy of the notice of appeal as sent by the Upper Tribunal.

(3) The response must state—

(a) the name and address of the respondent;

(b) the name and address of the representative (if any) of the respondent;

(d) whether the respondent opposes the appeal;

(e) the grounds on which the respondent relies, including any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely on in the appeal.

(4) The response may include a request that the case be dealt with at a hearing or without a hearing.

(5) If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 8(3)(a) (power to extend time), the response must include a request for an extension of time and the reason why the response was not provided in time.

(6) When the Upper Tribunal receives the response it must send a copy of the response and any accompanying documents to the appellant.

Appellant's reply

6

(1) Subject to any order given by the Upper Tribunal, the appellant may provide a written reply to any response provided under rule 5 (response to the notice of appeal).

(2) Any reply provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received within the period of 30 days beginning with the day on which the appellant is presumed to have received a copy of the response as sent by the Upper Tribunal.

(3) If the appellant provides the reply to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 8(3)(a) (power to extend time), the reply must include a request for an extension of time and the reason why the reply was not provided in time.

(4) When the Upper Tribunal receives the reply it must send a copy of the reply and any accompanying documents to each respondent.

PART 4 — General Powers and Provisions

Delegation to staff

7

(1) Staff of the Scottish Courts and Tribunals Service may, with the approval of the President, carry out functions of a judicial nature permitted or required to be undertaken by the Upper Tribunal, provided that they 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 Upper 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 Upper Tribunal for that decision to be considered afresh by a member of the Upper Tribunal.

Case management

8

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

(2) The Upper Tribunal may give an order in relation to the conduct of proceedings before it 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 Upper Tribunal may—

(a) extend or shorten the time for complying with any rule or order;

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

(i) two or more cases are before the Upper Tribunal;

(ii) in each such case the proceedings have not been finally determined; and

(iii) the cases give rise to common or related issues of fact or law,

and sist the other cases until the common or related issues have been determined;

(d) permit or require a party to amend a document;

(e) permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;

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

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

(h) decide the form of any hearing;

(i) adjourn or postpone a hearing;

(j) require a party to produce or lodge documents including but not confined to a note of argument and the Appeal Appendix;

(k) sist proceedings;

(l) 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 Upper Tribunal no longer has jurisdiction in relation to the proceedings; or

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

(m) suspend the effect of its own decision pending an appeal of that decision;

(n) in an appeal against the decision of the First-tier Tribunal, suspend the effect of that decision pending the determination of any permission to appeal or any appeal;

(o) require the First-tier Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before the First-tier Tribunal.

Procedure for applying for and giving orders

9

(1) The Upper 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 Upper 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) The Tribunal must send written notice of any order to each party to the case.

(5) If a party sent a 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.

10

(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.

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