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Duty to re-determine
Social Security Scotland must make a re-determination within 56 calendar days of either:
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where the request for the re-determination is received within the time allowed for making the re-determination request (42 days), the day the request is received (Carer Support Payment Regulations – Reg 43 –The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023), or
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where the request for the redetermination was made late, the day when Social Security Scotland, or if applicable the First-tier Tribunal, decides that they will accept the requestCarer Support Payment Regulations – Reg 43(2)(b) – The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023). It is only at this point that the request is considered valid.
There is currently no provision in the regulations or the 2018 Act that allows for an individual to withdraw a request for a re-determination. This means that all re-determination requests must be processed.
If the request for re-determination is late, the 56 calendar days begin on the day when Social Security Scotland, or if applicable the First-tier Tribunal, decides that there are good reasons that the individual has not requested a redetermination sooner, they will accept the requestCarer Support Payment Regulations – Reg 43(2)(b) – The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023).
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 decisionCarer Support Payment Regulations – Reg 43(2)(c) – The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023).
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)):
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the re-determination has not been completed within the timescales allowed by the regulations
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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, and
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they must 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, at which point a full notice setting out the determination, the reasons for it and the individual’s right to appeal that determination to the First-tier Tribunal would be sent to the individual, 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 1: 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 that 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 2: 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 that 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.