The First-tier Tribunal has the power to (SS(S) Act 2018, s.49):

• uphold the determination made by Social Security Scotland
• make its own determination of the individual’s entitlement to the benefit

When exercising its powers to either uphold the determination or make its own determination in an appeal, the First-tier Tribunal must not take into account circumstances which did not exist at the relevant time (SS(S) Act 2018,s.49 (2)(a)). ‘Relevant time’ is defined as the time at which the person’s entitlement fell to be determined, under the applicable regulations, by Scottish Ministers (SS(S) Act 2018,s.49 (3)). The First-tier Tribunal must only consider the circumstances that applied at the relevant time when eligibility fell to be determined by Scottish Ministers for that particular benefit. This ensures that people have re-determination and appeal rights in relation to any change in their circumstances for a later period.

For example, the First-tier Tribunal could not consider medical evidence that shows the person’s condition deteriorated after the determination under appeal was made, and that late deterioration impacted their entitlement.

The First-tier Tribunal may take into account circumstances which existed but which were not known (SS(S) Act 2018,s.49 (2)(b)). The First-tier Tribunal may consider relevant information that was unknown, wasn’t available, or wasn’t provided, at the time when the original decision maker was determining the person’s entitlement.

For example, the First-tier Tribunal could consider:

• a letter from a medical professional which is written at a later date, and demonstrates that someone had a particular condition at an earlier date which would impact their entitlement
• further or clarified information which is provided after the determination that led to the appeal, but which demonstrates that the individual had a different level of need than was recognised at the time when the person’s entitlement fell to be determined
• medical tests for which the results are received or only communicated to the Scottish Ministers or the Tribunal after the determination that led to the appeal, but which applied to circumstances applicable at the time when the person’s entitlement fell to be determined

The First-tier Tribunal may give a verbal decision at the hearing. However, in all cases it must provide all parties with a written decision notice that includes (The First-tier Tribunal for Scotland Social Security Chamber (Rules of Procedure) 2018, rule 28):

• the First-tier Tribunal’s decision
• notification of any right to apply for a full written statement of reasons. This is a more detailed explanation of the reasons why the First-tier Tribunal made their decision
• notification of any appeal rights and time limits

The individual receives a written decision notice from the First-tier Tribunal. However, Social Security Scotland should also send the individual a letter advising them what the impact of the Tribunal’s decision will be on their benefit entitlement, if any. Guidance on completing the appeal outcome letter can be found in Operational Guidance.