Child Disability Payment decision making guide

Witnesses

The Upper Tribunal can by citation require anyone to attend as a witness at a hearing. It can do this on its own initiative or at the request of one of the parties to the appeal.

The Upper Tribunal can also order anyone to either:

  • answer any questions
  • provide documents that they have which relate to the case.

The citation for a person to attend as a witness must include all of the following:

  • at least 14 calendar days’ notice of the hearing or any other period of time the Upper Tribunal sets
  • information about how the witness’s expenses for attending can be paid, if the witness is not a party in the case
  • state that the person who is cited can apply to the Upper Tribunal to have the citation varied or set aside if the person did not have an opportunity to object before the citation was made or issued. The person must apply as soon as reasonable practicable after receiving the citation.
  • the consequences of failing to comply with the citation or order.

The Upper Tribunal cannot make someone either:

  • give any evidence
  • produce any document that the person could not be compelled to give or produce at a civil trial of an action in a court of law in Scotland.

Withdrawing or deciding to stop an appeal

(The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 20)

A party to the appeal can notify the Upper Tribunal that they want to withdraw their appeal. They can do this by:

  • sending the Upper Tribunal a notice of withdrawal
  • saying it at a hearing.

The notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal.

The Upper Tribunal must notify each party in writing that a withdrawal has taken effect. This is unless the Upper Tribunal is satisfied that the parties have already been notified.

The party who withdraws their appeal can apply to the Upper Tribunal for the case to be reinstated. The party must both:

  • satisfy the Tribunal that they have a good reason for this
  • apply to the Upper Tribunal in writing, explaining the reasons.

The Upper Tribunal must receive the application to reinstate the appeal within 31 days of the earlier of the following dates:

  • the day when the party who withdrew the case is presumed to have received the notification that the withdrawal has taken effect
  • the day of the hearing if the party who withdrew the case did so verbally at the hearing.

Upper Tribunal’s decision

The Upper Tribunal can agree with and uphold the decision made by the Firsttier Tribunal on the point of law. If it does not agree with the decision, it can quash the decision (1 Tribunals (Scotland) Act 2014, section 47(1)).

If it quashes the decision of the First-tier Tribunal, the Upper Tribunal can (Tribunals (Scotland) Act 2014, section 47(2)):

  • re-make the decision
  • send the case back to the First-tier Tribunal
  • make another order as it considers appropriate.

In re-making the decision, the Upper Tribunal can do anything that the Firsttier Tribunal could do when re-making the decision and reach findings in fact as it considers appropriate.

In remitting the case to the First-tier Tribunal, the Upper Tribunal can give directions for the First-tier Tribunal’s reconsideration. For example it can give directions on:

  • issues of law or facts
  • procedural issues, including which Tribunal members should be chosen to reconsider the case.

The Upper Tribunal must give each party a decision notice which both (The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 27(2)):

  • states its decision
  • tells the parties if they have any appeal rights and the time limits and manner for appealing.

The Upper Tribunal must do this as soon as reasonably practicable after making the decision.

A party can request written reasons if the Upper Tribunal does not provide them for a decision. The party must request them within 14 days of the decision being made.

The Upper Tribunal can both:

  • give a decision orally at a hearing
  • publish any of its decisions if it considers it is in the public interest to do so.

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