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Duty to re-determine
Social Security Scotland must make a re-determination within 56 calendar days of receiving the request (PADP regs, reg. 46(2)(a)). This starts from the day a valid request is received.
There is no provision in the regulations or the 2018 Act that allows for an individual to withdraw a request for a re-determination.
If the request for re-determination is late, the 56 calendar days begin on the day when the Social Security Scotland decides that they will accept the request (PADP regs, reg. 46(2)(b)). It is only at this point that the request is considered valid.
If Social Security Scotland decide that the request for a re-determination is not made in such form as required, but the First-tier Tribunal later decide that the request for re-determination should be accepted, the 56 calendar days for re-determination begins on the day the First-tier Tribunal makes that decision (PADP regs, reg 46(2)(c)).
If Social Security Scotland does not make the re-determination within 56 calendar days they must inform the individual that (Social Security (Scotland) Act 2018 s. 45(1) ):
- the re-determination has not been completed within the timescales allowed by regulations
- they have the immediate right of appeal to the First-tier Tribunal for Scotland against the determination made under section 37 of the Act which resulted in the request for a re-determination
- provide the individual with an appeal form
Section 43(3) of the Act allows Social Security Scotland to continue to process and finalise the re-determination if it has not been completed within 56 calendar days. Social Security Scotland may ask the individual if they would prefer to wait for the re-determination to be completed rather than proceed to a tribunal appeal. Social Security Scotland will advise the individual at this point of their right to proceed to appeal.
Example: Re-determination not completed within 56 calendar days
At re-determination, Social Security Scotland requests further information about an individual’s case from a medical practice. The information requested does not arrive within the 56 calendar day deadline the Agency has to complete the re determination.
Social Security Scotland gets in touch with the individual, informing them of the missed deadline, the individual’s right to appeal directly to the First-tier Tribunal and provides an appeal form.
The individual decides that they would prefer that Social Security Scotland completes the re-determination before deciding whether to take the case to the Tribunal. Social Security Scotland receives the requested information on day 60, and makes the re-determination.
Example: Re-determination not completed within 56 calendar days
At re-determination, Social Security Scotland requests further information about an individual’s case from a medical practice. The information requested does not arrive within the 56 calendar day deadline the Agency has to complete the re-determination.
Social Security Scotland gets in touch with the individual, informing them of the missed deadline, the individual’s right to appeal directly to the First-tier Tribunal and provides an appeal form.
The individual decides initially that they would prefer that Social Security Scotland completes the re-determination before deciding whether to take the case to the Tribunal. On calendar day 85 the individual informs Social Security Scotland that they have changed their mind and would like to pursue an appeal. The individual must submit a completed appeal form to Social Security Scotland to start the appeal process.