Social Security Committee

Meeting date: Thursday, November 1, 2018

Official Report 724KB pdf

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Subordinate Legislation

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

Under agenda item 2 we will take evidence on relaid draft regulations that are subject to affirmative procedure. I welcome Shirley-Anne Somerville, the Cabinet Secretary for Social Security and Older People; Naeem Bhatti, who is the head of complaints, redeterminations and appeals policy at the Scottish Government; and Colin Brown, who is a solicitor at the Scottish Government. I invite the cabinet secretary to make an opening statement, after which we will move on to questions.

Thank you, convener. Following my previous appearance on 4 October to discuss six of the seven sets of regulations that are required to establish the new chamber, I am pleased to be here today to discuss the final set of regulations. The original draft regulations were withdrawn and have been relaid in order to address a concern that was raised by the Delegated Powers and Law Reform Committee.

The tribunal composition regulations will allow the tribunals service to have panels that best meet the needs of the particular cases that it considers. Although the regulations set out that cases will normally be considered by a legal member sitting alone, there are a number of exceptions. For example, for employment injury cases, there will always be two members—a legal member and a medical member—and for disability assistance cases there will always be three members: a legal member, a medical member and a member with disability experience.

The regulations also provide flexibility to vary the composition of tribunal panels where needed. The main example is in relation to the Upper Tribunal. It will allow the president of the Scottish tribunals to decide case by case basis on the most appropriate composition of the tribunal. During consultation, that was highlighted as a key requirement. The provision was revised to address the concerns that were expressed when the regulations were initially laid, on 13 September.

I am, of course, happy to take questions from members.

Thank you, cabinet secretary.

Good morning, cabinet secretary, and thank you for your introduction, which was very helpful.

I seek clarification with regard to regulation 4(4), which states that

“The authority to determine the composition of the First-tier Tribunal”

may be made by

“the Chamber President.”

I welcome your remark that First-tier Tribunals, and particularly disability living allowance and personal independence payment tribunals, will always have three members. If I am wrong, please correct me, but my slight concern in reading the regulations is that, in theory, the chamber president could vary that to just two members, so we might lose the disability person. Is that a possibility—maybe not now, because that is clearly not your intention, but under future Administrations—or will the First-tier Tribunal always have three members for PIP and DLA or attendance allowance cases?

In the early part of my opening remarks, I discussed what will happen for disability assessment tribunals. The flexibility is around what will happen to top-up benefits. The reason for the flexibility is that we do not have top-ups for reserved benefits at the moment. It is therefore difficult to assess exactly what we would want, so it is important not to be too prescriptive about that. The flexibility exists for those types of benefits, which we do not have yet.

Just to be absolutely clear, for the record, is there no flexibility to alter the membership of the tribunals that we have at the moment? Is it the case that they will be as you mentioned in your opening statement?

Yes.

Thank you.

There being no other questions from members, we move to agenda item 3, which is to decide on the motion on the regulations.

Motion moved,

That the Social Security Committee recommends that the First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 [draft] be approved.—[Shirley-Anne Somerville]

Motion agreed to.

I thank the cabinet secretary and her officials for joining us.

09:05 Meeting suspended.  

09:06 On resuming—