Part 4: Draft Regulations Setting out the Composition of the First-Tier and Upper Tribunals for Scotland
25. Sections 38 and 40 of the 2014 Act allow the Scottish Ministers, by regulation, to determine the composition of the First-tier and Upper Tribunals.
26. The draft regulations in Annex C apply to the composition of members when hearing cases within the First-tier Tribunal Health and Education Chamber and appeals or referrals from the First-tier Tribunal Health and Education Chamber to the Upper Tribunal.
27. The policy intention is to mirror the existing composition for first instance cases as set out in Schedule 1 of the Education (Additional Support for Learning) (Scotland) Act 2004. This means that cases will be heard by the Chamber President and two ordinary members, or a legal member and two ordinary members. A legal member would also be able to sit alone to decide whether a child over the age of 12 has capacity to exercise their rights under the Education (Additional Support for Learning) (Scotland) Act 2004 on their own behalf.
28. Appeals from the First-tier Tribunal will be heard by the same type of judiciary ie Court of Session judges, as currently hear appeals in the courts. However, the appeals will take place in the Upper Tribunal as opposed to the Sheriff Court or Court of Session. The Chamber President is also able to hear cases in the Upper Tribunal if selected to do so. This will ensure appropriate expertise in the Upper Tribunal. The Chamber President may only hear the case as long as they were not involved in the decision at the first instance. The President of Tribunals will determine how the Upper Tribunal should be composed on a case by case basis.
QUESTIONS ON COMPOSITION REGULATIONS
Q1: Do you have any comments on the proposals regarding the composition of the First-tier Tribunal Health and Education Chamber?
Q2: Do you have any comments on the proposals regarding the composition of the Upper Tribunal when hearing referrals or appeals from the First-tier Tribunal Health and Education Chamber?
Q3: Do you have any other comments you wish to make?
Email: Emily Adams
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House