The Tribunals (Scotland) Act 2014: Consultation on 2 sets of Draft Regulations which make provision for:1) a time limit within which to seek permission to appeal a decision of the Scottish Tribunals and Rules of Procedure for the Upper Tribunal; and 2) Offences in the Scottish Tribunals

We consider that the length of the time limit is appropriate. However, Rule 21(3)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 specifies the default time limit for an application for permission to appeal to the UK Upper Tribunal as being “no later than… a month after” the relevant date, with special provision made for certain categories of case. In order to ensure uniformity and to reduce the likelihood of mistakes by persons who deal with both the UK Upper Tribunal and the Upper Tribunal for Scotland, we would suggest that consideration be given to using “no later than a month after” rather than “within the period of 30 days”. Furthermore, and in any event, given that lay representatives may be
involved in a tribunal context, we consider that it would be preferable to give parties clear dates to work towards. In this regard, although rule 15 sets out how time is to be calculated, a lay representative may still not understand the legal significance of phrases such as “within the period of 30 days” or “no later than a month after” or how to deal with
bank holidays. Although Tribunals might be sympathetic to such mistakes, in order to ensure that lay representatives understand what is required, a Tribunal issuing a decision should be required to indicate the actual date by which permission to appeal has to be made. In addition, consideration should be given to the issuing of a timetable
once permission to appeal has been granted, setting out the relevant dates for lodging of the notice of appeal, response to the notice of appeal and any reply. This may require a case management power to issue timetables, but could otherwise be left to internal guidance/directions.

Regulations 3 and 4 and rules 3, 4 and 5 – although we consider that
generally the length of the relevant time periods are appropriate, it may
become apparent in due course that for certain types of appeal, where
urgency might be an issue, shorter time periods for those appeals may
be more appropriate. Examples could include appeals against
decisions in relation to school placements that need to be finalised
before the start of the school term or decisions in relation to mental health issues.
Rule 4(3)(g) requires a respondent to indicate in their response to the
notice of appeal whether they intend to make a cross appeal. However,
nothing is said about permission to cross appeal, which would
presumably be required by the respondent. In this regard it is likely that
permission to cross appeal will often be sought out of time, as more
than 30 days will have elapsed since the original decision. In the
circumstances it could either be left for the respondent to make the
application for permission to cross appeal out of time and to apply to
the Upper Tribunal or Court of Session under regulation 4(4) for an
extension of the period beyond 30 days. Alternatively, specific
provision could be made in the regulations or rules for a time period
within which an application for leave to cross appeal should be made.
This could be calculated from receipt of the appellant’s notice of appeal
or from permission to appeal being granted, but would not necessarily
require to be as long as the 30 days or one month time period within
which an application to appeal is submitted. We consider that the latter
alternative would be preferable as it would create certainty and could
avoid unnecessary delay in circumstances where an extension of the
30 day time period has been refused and the respondent seeks to
challenge that decision.
Rule 8(3)(d) – there seems to be a formatting error in that rule 8(3)(d)
appears to be a continuation of rule 8(3)(c) rather than a separate sub rule.
Rule 11 – the power in rule 11 to dismiss a party’s case is severe,
particularly as lay representatives may be involved, but we accept that
it may be necessary to have such a power for exceptional
circumstances. Rule 11(1), which provides for mandatory dismissal
after failure to comply with an order which warned that dismissal would
follow in the event of non-compliance, can be contrasted with rule 11(3)
under which the Tribunal retains a discretion whether to dismiss or not
for non-compliance. We would expect that Tribunals will use rule 11(1) sparingly. Nevertheless, there may be circumstances where there is
some reasonable excuse for failure to comply with an order which
warned that dismissal would follow in the event of non-compliance. We
accordingly suggest that the Tribunal should also retain a discretion
under rule 11(1) whether to dismiss or not for non-compliance.
Alternatively, rule 11(1) could be deleted and the power to dismiss
could rest on the present rule 11(3) alone.
Rule 14 allows a party to appoint a lay representative or a supporter,
but there is no provision empowering the Upper Tribunal to refuse to
permit a particular person to represent the party or to assist them
where there may be good reason for doing so. Rule 32(5) of the
Additional Support Needs Tribunals for Scotland (Practice and
Procedure) Rules 2006/88 (“the ASNT Rules”) contains such a
provision. Although rule 27(4) empowers the Upper Tribunal to exclude
a person from a hearing, it may not be wide enough to restrict
unsuitable representatives or supporters. Consideration should be
given to including in rule 14 a provision similar to that in rule 32(5) of
the ASNT Rules, alternatively to making rule 27(4) wide enough to
confer a power to restrict unsuitable representatives or supporters.
Rule 19(2)(d) – We think the word “of” should replace “or”. We also
comment at the end of this response in relation to the interplay of this
rule with the criminal offences proposed.

Although rule 8 contains provisions relating to case management and
the power to give directions and rule 18 contains provisions regarding
evidence, there is no specific power to ordain experts to meet and to
report to the Upper Tribunal on that meeting. It may be worthwhile
including an express provision to that effect.

We have the following comments on how the time limits for permission
to appeal contained in regulations 3 and 4 link with the lodging of a
notice to appeal under rule 5.
Regulation 3 sets out a 30 day time period in which to seek permission
to appeal to the decision making forum (being the First-tier Tribunal or
the Upper Tribunal) and regulation 4 sets out a further 30 day time
period in which to seek permission to appeal to the appellate forum
(being the Upper Tribunal or the Court of Session) where the decision
making forum has refused permission to appeal. That second 30 day
time period runs from the date when notice of the decision making
forum’s decision to refuse permission to appeal is sent to the appellant.
Rule 3 sets out provisions for lodging with the Upper Tribunal a notice
of appeal against a decision of the First-tier Tribunal, but does not
contain any provision as to when that notice of appeal must be lodged,
for example within 30 days of getting permission to appeal from the
decision making forum.
Rule 3(3)(c) requires the appellant to provide with the notice of appeal
a copy of the notice of permission to appeal or alternatively the notice
of refusal of permission to appeal from the First-tier Tribunal.
Presumably therefore a notice of appeal under rule 3 is intended to
serve as a notice of appeal where permission to appeal has been
granted or as a combined application for permission to appeal and a
notice of appeal where permission to appeal has been refused.
However, the rules do not make adequate provision for how a notice of
appeal can serve these dual purposes.
Rule 3(5) provides that if an appellant lodges a notice of appeal later than the time required by regulation 4(2), then the notice of appeal
must include a request for an extension of time under regulation 4(4)
and that unless the Upper Tribunal extends the time for lodging a
notice of appeal it may not admit the notice of appeal. This clearly
anticipates a situation where the First-tier Tribunal has refused
permission to appeal, in which case the 30 day period for the lodging of
a (presumably) combined application for permission to appeal and
notice of appeal would run from the date when notice of the First-tier
Tribunal’s decision was sent to the appellant. However, what is not
clear is how rule 3(5) operates when the First-tier Tribunal has granted
permission to appeal. This is because in that situation regulation 4(2)
would not apply because, by definition, it applies to a situation where
permission to appeal was refused, and the relevant 30 day period is
calculated from the date on which the notice of refusal of permission
was sent to the applicant.
Consequently, where permission to appeal has been granted by the
First-tier Tribunal, there is no clear starting point for the purposes of
rule 3(5) with reference back to regulation 4(2). Similarly, regulation
4(4) does not provide the possibility of an extension of the 30 day
period for an appellant with permission to appeal but who is arguably
late with their notice of appeal, since the extension only applies to a 30
day period where permission was refused.
In the circumstances it would be preferable to have a clear time period
in rule 3 to the effect that a notice of appeal has to be lodged within a
specified time after permission to appeal has been granted (unless an
extension has been obtained).
Furthermore, we consider that it would be preferable for the permission
stage to be completed one way or another before a notice of appeal is
lodged or at least before a respondent is required to respond to a
notice of appeal. In this regard rule 4 provides for a respondent to
respond to a notice of appeal within 30 days after the date on which the
Upper Tribunal has sent a copy to them. If this was done routinely after
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a notice of appeal is received, this would mean that time would start
running for the respondent whilst the Upper Tribunal’s permission to
appeal decision is pending. This would mean a respondent would be
required to start work for an appeal that might not happen. One way of
avoiding that would be to provide that the Upper Tribunal is not to send
a copy of the notice of appeal to the respondent unless and until
permission to appeal has been granted.

We have a concern in relation to the wording of the offence in
regulation 2(1)(a). The wording simply follows the enabling provision in
section 67(1)(a)(i) of the Tribunals (Scotland) Act 2014. The regulation
does not set out the mens rea of the offence, nor whether the false
statement must be material to the application. By way of background,
most statutory provisions which create criminal offences for the making
of false statements set out that the false statement must be made
“knowingly” or “knowingly and wilfully”, (see Taxes Management Act
1970, section 107(2) and the Criminal Law (Consolidation) (Scotland)
Act 1995, section 44(2)). A recent formulation in an Act of Parliament
can be seen in paragraph 18(2) of Schedule 2, part 2, of the Modern
Slavery Act 2015 in which the false statement must be false “in a
material particular” and the person must either know that it is false or is
reckless as to whether it is false or not. We consider that the offence
proposed by regulation 2(1)(a) should be more specific by requiring, as
a minimum, that the false statement is made knowingly or with no
honest belief in its truth. In regard to this offence, we are also a little
doubtful whether the “reasonable excuse” defence in regulation 2(2) is
apposite where the person has knowingly made a false statement.
Whereas we can readily understand that there may be a reasonable
excuse for failing to attend as a witness or failing to produce a
document, it is much harder to see how a person could reasonably
make a false statement. If the false statement offence in regulation
2(1)(a) was more clearly delineated as we have suggested, we would
suggest that the “reasonable excuse” defence could be limited to the
offences under regulation 2(1)(b) and (c).

No. In any event, there is no power under section 67 of the Tribunals
(Scotland) Act 2014 for any additional offences to be added by way of
regulations.

Subject to re-wording of the offence in regulation 2(1)(a), we consider
that the proposed offences are appropriate.

We have one final comment which relates to the interplay of these draft
regulations with the Scottish Tribunals rules. In relation to the offence
of failing to attend or give evidence when required to do in accordance
with the Upper Tribunal Rules, the person will have received a clear
written warning of the consequences of such conduct when the citation
is served, (see the Upper Tribunal Rules at rule 19(2)(d)). Rule 19(2)(d)
refers to the need to advise of the consequences of failing to comply
with the citation or order. The inclusion of the word “order” might be
thought to be a reference to the order to answer questions or produce
a document under rule 19(1)(b) such that a person against whom such an order is issued should be warned about the consequences of failure
to comply. However, as presently drafted, rule 19(2) relates only to the
wording of citations under rule 19(1)(a). In our view, it is important that
a person who is ordered to answer a question or produce a document
should receive a clear written warning that failure to comply, without
reasonable excuse, amounts to a criminal offence. We consider that
rule 19(2) should be re-worded to ensure that such a warning is
provided when such an order is served on the person. Furthermore, we
are of the view that the rules of the various First-tier Tribunals should
also be amended as necessary to provide for warnings to be given for
non-compliance with any direction, citation or order where noncompliance
would be a criminal offence and/or that such provision
should be made in these regulations.