The First-tier Tribunal’s decision

The First-tier Tribunal has the power to:

• uphold the determination made by Social Security Scotland
• make its own determination of the individual’s entitlement to the benefit (Social Security (Scotland) Act 2018, section 49 (1))

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 (Social Security (Scotland) 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 (Social Security (Scotland) 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:

• that the person’s circumstances had changed after the determination that led to the appeal, and the later change meant that their entitlement was different. For example if the number of hours of care the person provides changes.

The First-tier Tribunal may take into account circumstances which existed but which were not known (Social Security (Scotland) 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:

• further or clarified information which is provided after the determination that led to the appeal, but which demonstrates that the individual had different entitlement than was recognised 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’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 First-tier Tribunal for Scotland Social Security Chamber (Rules of Procedure) 2018, rule 28)

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.