Prospective
Re-determinationsS
5Re-determination and appeal deadlines in exceptional circumstancesS
(1)The 2018 Act is modified as follows.
(2)In section 41 (right to request re-determination)—
(a)in subsection (2)(b), the words “(read with section 52A)” are repealed,
(b)in subsection (4)(b)—
(i)at the beginning of sub-paragraph (i), insert “if the request is made before the end of the day that falls one year after the day on which the individual is informed (in accordance with section 40) of the determination,”,
(ii)for “and” following sub-paragraph (i) substitute “or”,
(iii)for sub-paragraph (ii) substitute—
“(ii)if the request is made after the period mentioned in sub-paragraph (i) has ended, there are exceptional circumstances justifying why the request was not made sooner (see section 42).”.
(3)In section 42 (late request for re-determination)—
(a)in subsection (1), for “41(4)(b)” substitute “41(4)(b)(i)”,
(b)after subsection (2) insert—
“(3)It is for—
(a)the Scottish Ministers, or
(b)on appeal under section 61, the First-tier Tribunal for Scotland,
to decide whether, for the purpose of section 41(4)(b)(ii), there are exceptional circumstances justifying why a request for re-determination was not made sooner.
(4)Having made a decision under subsection (3), the Scottish Ministers must inform the individual concerned—
(a)of the decision, and
(b)if the decision is that there are no exceptional circumstances justifying why a request for re-determination was not made sooner, of—
(i)the reasons for the decision, and
(ii)the individual’s right to appeal under section 61.”.
(4)In section 48 (deadline for appealing)—
(a)in subsection (1)(b)—
(i)after “permission” insert “(in accordance with subsection (3))”,
(ii)after “(a)” insert “but still within the period of one year beginning with the day the relevant event occurred”,
(b)in subsection (1)(c)—
(i)for “may not be brought” substitute “may be brought only with the First-tier Tribunal's permission (in accordance with subsection (4))”,
(ii)the words “(but see section 52A)” are repealed,
(c)after subsection (3) insert—
“(4)The First-tier Tribunal may give permission under subsection (1)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner.
(5)Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (1)(c) is to be disregarded to the extent that it would have that effect.”.
(5)Section 52A and the italic heading immediately preceding it are repealed.
(6)In section 61 (appeal to First-tier Tribunal against process decisions)—
(a)in subsection (1), after paragraph (c) insert—
“(d)that there are no exceptional circumstances justifying why a request for a re-determination was not made sooner (see section 42).”,
(b)in subsection (2)(b)—
(i)after “permission” insert “(in accordance with subsection (3))”,
(ii)after “(a)” insert “but still within the period of one year beginning with the day the individual was informed of the decision in accordance with this Act”,
(c)in subsection (2)(c), for “may not be brought” substitute “may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (3A))”,
(d)after subsection (3) insert—
“(3A)The First-tier Tribunal may give permission under subsection (2)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the appeal was not made sooner.
(3B)Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (2)(c) is to be disregarded to the extent that it would have that effect.”,
(e)in subsection (4)(b), after “(2)(b)” insert “or (c)”.
(7)In section 85D (right to apply to First-tier Tribunal for review of certain decisions)—
(a)in subsection (3)(b)—
(i)after “permission” insert “(in accordance with subsection (4))”,
(ii)after “(a)” insert “but still within the period of one year beginning with the day on which the decision concerned was made”,
(b)in subsection (3)(c), for “may not be made” substitute “may be made only with the First-tier Tribunal’s permission (in accordance with subsection (4A))”,
(c)after subsection (4) insert—
“(4A)The First-tier Tribunal may give permission under subsection (3)(c) for an application to be made only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner.
(4B)Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an application being made by virtue of subsection (3)(c) is to be disregarded to the extent that it would have that effect.”,
(d)in subsection (9)(b), after “(3)(b)” insert “or (c)”.
Commencement Information
I1S. 5 not in force at Royal Assent, see s. 27(2)
6Withdrawal of request for re-determinationS
(1)The 2018 Act is modified as follows.
(2)After section 42 insert—
“42AWithdrawal of request for re-determination
(1)An individual who has made a request for re-determination may request that the Scottish Ministers disregard it.
(2)If an individual requests that a request for re-determination be disregarded—
(a)the Scottish Ministers are not to make a determination of the individual’s entitlement to the particular type of assistance mentioned in the request for re-determination on the basis of the request for re-determination, and
(b)accordingly, their duty to do so under section 43 ceases to apply.
(3)A request under subsection (1) must be made in such form as the Scottish Ministers require.
(4)The Scottish Ministers must publicise any requirements for the time being set under subsection (3).”.
Commencement Information
I2S. 6 not in force at Royal Assent, see s. 27(2)
7Re-determinations after the period allowedS
(1)The 2018 Act is modified as follows.
(2)In section 43 (duty to re-determine)—
(a)subsection (3) is repealed,
(b)after subsection (4) insert—
“(4A)If the Scottish Ministers fail to make the determination within the period allowed for re-determination—
(a)section 45 applies, and
(b)their duty to make the determination continues unless the individual brings an appeal under section 46.
(4B)If an appeal under section 46 is subsequently withdrawn, the duty of the Scottish Ministers to make the determination applies again and continues unless the appeal is reinstated.”.
(3)In section 44 (notice of re-determination), in subsection (1)(a), after sub-paragraph (iii) insert—
“(iiia)in circumstances where the individual was previously issued with a notice under section 45, that the individual no longer has the right to appeal to the First-tier Tribunal against the determination under section 37 which prompted the request for a re-determination,”.
(4)In section 45 (notice where re-determination not made timeously), in subsection (1)(a)—
(a)the “and” following sub-paragraph (i) is repealed,
(b)the “and” following sub-paragraph (ii) is repealed,
(c)after sub-paragraph (ii) insert—
“(iii)that the Scottish Ministers will continue to consider the request for a re-determination unless the individual brings an appeal against the determination as mentioned in sub-paragraph (ii),
(iv)that if the individual brings an appeal against the determination but subsequently withdraws that appeal, the Scottish Ministers will again consider the request for a re-determination, and
(v)that if the re-determination is carried out and a notice issued under section 44, the individual’s right to appeal to the First-tier Tribunal mentioned in sub-paragraph (ii) will end, and”.
(5)In section 46 (right to appeal to First-tier Tribunal against determination), in subsection (2)—
(a)the “and” following paragraph (a) is repealed,
(b)after paragraph (a) insert—
“(aa)the period allowed for re-determination has ended, and”,
(c)in paragraph (b)—
(i)for “failed” substitute “yet”,
(ii)the words “within the period allowed for re-determination” are repealed.
Commencement Information
I3S. 7 not in force at Royal Assent, see s. 27(2)