The Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011
| Jurisdiction | Scotland |
| Citation | SSI 2011/104 |
| Year | 2011 |
2011 No. 104
Education
The Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011
Made 10th February 2011
Laid before the Scottish Parliament 15th February 2011
Coming into force in accordance with rule 1
The Scottish Ministers make the following Rules in exercise of the powers conferred by sections 17(4) and 34(2) of, and paragraph 11 of schedule 1 to, the Education (Additional Support for Learning) (Scotland) Act 20041and paragraph 10 of Schedule 17 to the Equality Act 20102and all other powers enabling them to do so.
In accordance with section 44 of, and paragraph 24 of Schedule 7 to, the Tribunals, Courts and Enforcement Act 20073they have consulted with the Administrative Justice and Tribunals Council and its Scottish Committee4.
PART 1
GENERAL
Citation and commencement
1.—(1) These Rules may be cited as the Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011 and, subject to paragraph (2), come into force on 18th March 2011.
(2) Rule 5(5) comes into force on 6th April 2011.
Interpretation
2.—(1) In these Rules, unless the context otherwise requires—
“the 2004 Act” means the Education (Additional Support for Learning) (Scotland) Act 20045;
“the 2010 Act” means the Equality Act 2010;
“case statement period” means the period referred to in rule 8(2);
“claim” means a claim under paragraph 8 of Schedule 17 to the 2010 Act and “claimant” shall be construed accordingly;
“convener” means the President or individual selected by the President from the panel (“the panel of conveners”) appointed by the Scottish Ministers under paragraph 3(1)(a) of schedule 1 to the 2004 Act to act as the convener of a Tribunal;
“electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 20006and “electronic signature” has the same meaning as in section 7 of that Act;
“hearing” means the proceedings of a Tribunal for the purpose of enabling the Tribunal to take a decision on a claim or on any question or matter at which the parties are entitled to attend and be heard;
“members” means the individuals selected by the President from the panel (“the panel of members”) appointed by the Scottish Ministers under paragraph 3(1)(b) of Schedule 1 to the 2004 Act to act as a member of a Tribunal;
“overriding objective” means the objective referred to in rule 3;
“party” means either the claimant or responsible body in respect of any claim made to a Tribunal;
“Register” means the Register of Claims to the Tribunals kept in pursuance of rule 45;
“response” means a written response submitted by a responsible body under rule 10;
“responsible body” has the same meaning as in section 85(9) of the 2010 Act;
“Secretary” means the member of the Tribunal staff for the time being appointed to act as secretary to the Tribunals;
“working day” means any day which is not—
(a) a Saturday;
(b) a Sunday;
(c) a day from 27th December to 31st December inclusive;
(d) a day in July; or
(e) a day specified as a bank holiday in Scotland in or by virtue of the Banking and Financial Dealings Act 19717; and
“written evidence” includes evidence recorded in any way.
(2) In these Rules—
(a)
(a) a reference to a rule is a reference to a rule in these Rules, and in any rule a reference to a paragraph or sub‑paragraph is, unless the context requires otherwise, a reference to a paragraph or sub‑paragraph in the rule;
(b)
(b) where the time prescribed by these Rules for doing any act expires on a day which is not a working day, that act is done in time if it is done on the next working day; and
(c)
(c) references to the doing of anything in writing include references to the doing of that thing by means of a document—
(i) transmitted by electronic means;
(ii) received in legible form; and
(iii) capable of being used for subsequent reference.
The overriding objective
3.—(1) These Rules are a procedural code with the overriding objective of enabling a Tribunal with the assistance of the parties to deal with claims fairly and justly.
(2) Dealing with claims fairly and justly includes—
(a)
(a) dealing with the claim in ways which are proportionate to the complexity of the issues and to the resources of the parties;
(b)
(b) seeking informality and flexibility in the proceedings under these Rules;
(c)
(c) ensuring, so far as practicable, that the parties are on an equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of their case without advocating the course they should take;
(d)
(d) using a Tribunal’s special expertise effectively; and
(e)
(e) avoiding delay, so far as compatible with the proper consideration of the issues.
Application by Tribunal of the overriding objective
4.—(1) A Tribunal must seek to give effect to the overriding objective when it—
(a)
(a) exercises any power under these Rules; or
(b)
(b) interprets any rule.
(2) In particular a Tribunal must manage claims actively in accordance with the overriding objective.
PART 2
START OF PROCEEDINGS
Claim
5.—(1) A claim to a Tribunal shall be made by notice in writing and shall be signed by the claimant or, at the discretion of the Secretary, a claim transmitted by electronic means may be accepted without the claimant’s signature.
(2) The claim shall state—
(a)
(a) the name, address, telephone number, date of birth and nature of the disability of the person to whom the claim relates;
(b)
(b) the name, address and telephone number of the claimant, if the claimant is not the person to whom the claim relates;
(c)
(c) the address to which correspondence should be sent to the claimant, if different;
(d)
(d) the name, address and telephone number of the responsible body;
(e)
(e) the name, address and profession of any representative appointed by the claimant, and, where available, the representative’s telephone number, fax number and electronic address;
(f)
(f) the main facts on which the claimant intends to rely; and
(g)
(g) details of the alleged contravention of Chapter 1 of Part 6 of the 2010 Act.
(3) The claimant must send a copy of the claim to the Equality and Human Rights Commission8.
(4) A Tribunal shall not consider a claim unless the claim has been received by the Secretary before the end of the period of six months beginning when the act complained of was done.
(5) If, in relation to proceedings or prospective proceedings under section 27 of the Equality Act 20069, the dispute is referred for conciliation in pursuance of arrangements under that section before the end of the period specified in paragraph (4), that period is extended by 3 months.
(6) A Tribunal may consider any claim which is out of time under paragraphs (4) or (5) if, in all the circumstances of the case, it considers that it is just and equitable to do so.
Action upon receiving a claim
6. On receiving a claim the Secretary shall—
(a) enter the details of such matters specified in rule 5(2) in the Register and such other information as the President may from time to time direct under paragraph 12 of schedule 1 to the 2004 Act;
(b) send a copy of the claim and of any accompanying documents to the responsible body, together with a notice in writing giving the case number of the claim from the Register, and including information, as appropriate to the claim, about the means and time for submission of a response, the consequences of failure to do so, and the right to receive a copy of the decision; and
(c) acknowledge receipt and provide the claimant with a notice in writing giving the case number of the claim, and including information as appropriate to the claim, about the time for the responsible body to submit a response, the right to withdraw the claim, and the right to receive a copy of the decision.
Sufficiency of reasons for claim
7.—(1) If the claim does not state grounds of claim which a convener considers sufficient to enable the responsible body to respond to it, the convener shall direct the claimant to send further and better particulars of the grounds of claim to the Secretary within 10 working days of the receipt of notice of such direction by the claimant in accordance with rule 50.
(2) Rules 15 and 17 shall apply to a direction under paragraph (1).
(3) Further and better particulars of the grounds of claim sent in response to a direction made under paragraph (1) shall, if a convener is satisfied that, together with the claim, such particulars should be sufficient to enable the responsible body to respond to it, be treated as part of the claim.
(4) Where a convener has made a direction under paragraph (1), a copy of that direction shall be sent to the responsible body with confirmation that the case statement period will not commence until the direction has been complied with.
Case statement period and statement of claimant’s case
8.—(1) Where rule 7 does not apply or a convener is satisfied under rule 7(3), the Secretary shall send notice in writing to both parties advising them of the dates of the case statement period.
(2) The case statement period shall be the period of 30 working days beginning on the date on which notice under paragraph (1) is taken to have been received in accordance with rule 50.
(3) Before the end of the case statement period, the claimant must submit all written evidence to be relied on and which has not already been submitted and may submit to the Secretary a written statement of the claimant’s case, which may include the views of the person to whom the claim relates.
(4) The claimant may amend the claim, submit a supplementary written statement of the claimant’s case or amend a supplementary written statement,...
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