Child Disability Payment decision making guide
The Upper Tribunal’s case management powers
The Upper Tribunal can give an order in relation to the conduct of proceedings
This includes an order amending, suspending or setting aside an earlier order.
In particular, it can do any of the following (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 8(3)):
- Join two or more sets of proceedings or hear them at the same time, if they raise common issues.
- Allow or require a party to amend a document.
- Allow or require a party or another person to provide documents, information, evidence or submissions.
- Deal with an issue in the proceedings as a preliminary issue. This is an issue that is dealt with ahead of other issues. This is because the way it is decided will determine how the other issues should be approached.
- Hold a hearing to consider any matter, including a case management issue.
- Adjourn, postpone, or decide the form of a hearing.
- Require a party to produce or lodge documents.
- Sist proceedings. This means to suspend proceedings.
- Transfer proceedings to another court or tribunal both:
- if that other court or tribunal has jurisdiction in relation to the
- proceedings
- and because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings.
- Transfer proceedings to another court or tribunal. This is if the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for determining the case.
- Suspend the effect of its own decision pending an appeal of its decision.
- Suspend the effect of the decision of the First-tier Tribunal that is being appealed. This is pending the determination of any permission to appeal or any appeal.
- Require the First-tier Tribunal to provide either or both:
- reasons for their decision
- other information or documents in relation to the decision.
The Upper Tribunal can also specify that a case is a lead case or that multiple cases are lead cases in a situation where:
- two or more cases are before the Upper Tribunal
- the proceedings have not been finally determined
- the cases give rise to common or related issues of fact or law.
The Upper Tribunal can also sist the other cases until the common or related issues have been determined.
Hearings
The Upper Tribunal must give each party entitled to attend a hearing reasonable notice of the time and place of the hearing. The Upper Tribunal should give at least 14 calendar days’ notice before the hearing. It can give shorter notice in either of these situations (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 24):
- if the parties agree
- in urgent or exceptional circumstances.
The Upper Tribunal can proceed with a hearing if a party does not attend.
However, it must be satisfied that:
- the party has been notified of the hearing or reasonable steps have been taken to notify the party of the hearing
- it is in the interests of justice to proceed with the hearing (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 26).
The Upper Tribunal generally holds hearings in public (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 25(1))
However, the Upper Tribunal can hold a hearing, or part of a hearing, in private. This is if it considers that restricting access to the hearing is justified:
- in the interests of public order
- in order to protect a person’s right to respect for their private and family life
- in order to maintain the confidentiality of sensitive information
- in order to avoid serious harm to the public interest
- because holding it in public would prejudice the interests of justice.
The Upper tribunal can decide who attends the private hearing, or the private part of a hearing.
The Upper Tribunal can exclude from any hearing, or part of any hearing (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 25(4)):
• anyone whose conduct it considers is disrupting or is likely to disrupt the hearing
• anyone whose presence it thinks is likely to prevent another person from giving evidence or making submissions freely
• any person where the purpose of the hearing would be defeated by the attendance of that person.
The Upper Tribunal may also give a direction excluding a witness from a hearing until that witness gives evidence (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 25(5)).
The Upper Tribunal may publish a decision following a hearing which was held wholly or partly in private. In this case it must, as far as possible, ensure that the decision does not disclose information which was referred to in a part of the hearing held in private.
Representatives
(The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 13)
Any party in the appeal can be represented by a representative. A representative can be a lay or legal representative. A lay representative can be anyone who can act on the party’s behalf. For example, this could be a friend or family member.
A party can tell the Upper Tribunal both:
- that they will be represented by a representative
- who the representative is in advance of a hearing, but they are not required to do so.
If there is a change, a party can decide to be represented by a different person at a hearing. This is even if they have shared the details of another representative with the Upper Tribunal.
Evidence and submissions
(The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 18)
The Upper Tribunal can give orders about evidence and submissions including orders about the following:
The issues on which the parties can provide fresh evidence or make submissions and the nature of this evidence.
Whether the parties are allowed to provide expert evidence. If this is the case, then the Upper Tribunal can decide if the parties must jointly appoint a single expert to provide the evidence.
Any limit on the number of witnesses whose evidence a party may put forward.
The manner in which any evidence or submissions are to be provided. Forexample, this is if they should be given orally at a hearing or by written submissions or witness statements.
The time when the evidence or submissions must be provided.
The Upper Tribunal can exclude evidence if:
- the evidence was not provided within the time allowed and without reasonable excuse
- the evidence was provided in a manner that did not comply with an order or a practice direction of the Tribunal and without reasonable excuse
- it considers that it would be unfair to admit the evidence.