Child Disability Payment decision making guide
Non-disclosure of documents and information that could cause serious harm to physical or mental health
The First-tier Tribunal may give a direction prohibiting the disclosure of a document or information to a person (“the recipient”) if:
- the document or information relates to the physical or mental health of a person
- a registered medical practitioner or a registered nurse has advised either the First-tier Tribunal, or one of more of the parties, that disclosure of the information is likely to cause serious harm to the recipient’s, or some other person’s, physical or mental health
- the First-tier Tribunal is satisfied that disclosure of the harmful document or information would be likely to cause serious harm to the physical or mental health of the recipient or some other person, and
- the First-tier Tribunal is satisfied that it is in the interests of justice and proportionate to give such a direction (The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018, Schedule, para 14(2))
An example could be information about a diagnosis of malignancy. See the chapter on Special Rules for Terminal Illness for information on when a medical professional may decide not to tell a person that they are terminally ill or other information relating to their physical or mental health.
The First-tier Tribunal can issue a direction to prohibit the disclosure of a document or information to a person on its own initiative.
In addition, if either party to an appeal considers that the First-tier Tribunal should withhold information from a person because it is likely to cause serious harm to their physical or mental health, the party can make a request for the Tribunal to withhold the information.
The party who makes that request must provide the information to the Tribunal, request that it is not disclosed, and set out the reasons why the party thinks the information should be withheld (The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018, Schedule, para 14(3)). Guidance on how to make such a request to the Tribunal is set out in Operational Guidance.
Where the Tribunal decides that information should not be disclosed to a party to the appeal who has a representative, or any other person acting on their behalf, 8 the Tribunal can disclose the information to the representative or person acting on behalf of the party (The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018, Schedule, para 14(5)). This could be the party’s appointee for example.
The Tribunal must be satisfied that disclosing the information is in the interests of the party and their representative, or person acting on their behalf, won’t disclose it to the party at risk of harm. The representative should not disclose the information to anyone else unless the Tribunal consents. (The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018, Schedule, para 14(6))