Devolved social security benefits

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Closes 23 Dec 2021


1. Do you agree that all social security debt recovery that falls within the jurisdiction of the sheriff court should be transferred from the sheriff court to the First-tier Tribunal?

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There are potentially three options for the transfer of some or all of the competence and jurisdiction that a sheriff has in relation to debt recovery of social security benefits and these are set out more fully in the accompanying Business Regulatory Impact Assessment (BRIA).

The three options are:

1. Do not transfer jurisdiction from sheriff court to First-tier Tribunal.

2. All social security debt recovery cases currently within the jurisdiction of the sheriff court to transfer from the sheriff court to First-tier Tribunal.

3. All social security debt recovery cases currently within the jurisdiction of the sheriff court which would fall within the simple procedure to transfer from the sheriff court to the First-tier Tribunal.

The Scottish Government preferred option would be the second option - that all of the jurisdiction of the sheriff court regarding debt recovery in the social security system is transferred to the First-tier Tribunal. This would ensure that all social security debt recovery decisions were made by only one judicial body and would avoid divergent case law.  It would also address concerns raised during Stage 3 of the Social Security Bill that the sheriff court is not the correct environment for determining debt in the social security system.

2. Do you agree that the Tribunal will require the powers in these circumstances to determine whether the overpayment is to be recovered, to make an order for payment, and to issue time to pay directions and time to pay orders?

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Where an individual does not agree to a repayment plan and Social Security Scotland has made a decision to recover an overpayment from an individual that does not have a devolved recurring benefit they would refer the case to the Tribunal.  The individual would be able to defend the case for recovery in the Tribunal.  If the Tribunal finds that there is a debt then a legislative change may be required to allow the Tribunal to make a decision which is as enforceable as a sheriff court decision. 

If the Tribunal makes a decision that there is an overpayment and it is to be repaid then a legislative change would be required so that they can make an ‘order for payment’.  This will only be in cases where deductions from a recurring benefit is not possible.

It would be expected that an individual would be able to apply for a ‘time to pay direction’ from the Tribunal so that the repayment can be made in affordable amounts over an agreed time period.  A direction is normally granted at the point of a court decision.  Where no time to pay direction is made, once diligence has commenced and the charge for payment has been served, the individual may still be able to apply for a time to pay order.  If the individual does not make the repayment then the ‘time to pay direction or order’ lapses and sheriff officers will be able to enforce the ‘order for payment’. 

3. Do you agree that a form of publicly funded legal representation should be provided in these limited circumstances in the Social Security First-tier Tribunal?

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As an individual may be eligible for civil legal aid in cases currently before the sheriff court, consideration needs to be given to access to a form of legal aid that allows for representation if jurisdiction over debt recovery is transferred to the First-tier tribunal.

The general rule is that for claims below the value of £3,000 civil legal aid is not available, whereas above £3,000, civil legal aid may be available if an individual is eligible and is not one of the listed “excepted proceedings” under the Legal Aid (Scotland) Act 1986.

Therefore, if debt recovery of social security benefits is transferred from the sheriff court to the First-tier Tribunal under the ‘no detriment’ rule it would be expected that the same rights of access to publicly funded legal representation as currently provided for in the sheriff court would be available in the First-tier Tribunal. 

As most of the one-off benefits are below the value of £3,000 then it is unlikely that legal aid representation would be required in these instances.  However, for debt recovery involving a recurring benefit where it has been determined that the individual is no longer entitled to it, there is the potential for the debt to be greater than £3,000.  Therefore, in these limited instances the provision of the right to publicly funded legal representation would need to be considered as part of the transfer of jurisdiction.

4. Business and Regulation: what are your views on the overall costs and benefits identified in the Impact Assessment?

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A partial Business and Regulatory Impact Assessment BRIA (Annex A) has been prepared for the ‘Transfer of jurisdiction of debt recovery from the sheriff court to the First-tier Tribunal’.

We would welcome comments on whether there are any costs and benefits that are not captured in the analysis; please provide supporting evidence.

Respondents are also asked to consider if there is any additional information that would enhance the BRIA; please provide supporting evidence.

5. Equality: please tell us about any potential equality impacts, either positive or negative, that you consider the proposals in this consultation may have, with reference to the ‘protected characteristics’ listed above. Please be as specific as possible.

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The Scottish Government is committed to promoting equality and removing or minimising disadvantage which may be experienced by different groups of people.

We have a legal duty to consider the impact of policies on people who may be differently affected in relation to the ‘protected characteristics’ under the Equality Act 2010. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

6. Child Rights and Wellbeing: are there any aspects of a child’s rights or wellbeing that you think might be affected either positively or negatively by the proposals covered in this consultation?

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The Child Rights and Wellbeing Impact Assessment (CRWIA) is used to identify, research, analyse and record the impact of a proposed law or policy on children’s human rights and wellbeing.  CRWIA helps us to consider whether the Scottish Government is advancing the rights of children in Scotland and protecting and promoting the wellbeing of children and young people

7. Island Communities: are there any aspects of the proposal covered in this consultation that you think will either act positively or negatively on an island community?

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An Island Communities Impact Assessment (ICIA) is carried out when a policy, strategy or service is likely to have an effect on an island community which is significantly different from its effect on other communities (including other island communities).  An ICIA ensures equity for island communities so that the needs of island communities are considered.