ADP: relevant date v down to date of decision

Due to the slow trickle of ADP appeals which have crossed my desk I’ve only now seen an appeal where the claimant’s health deteriorated significantly between the date on which he made his application and the date of the decision maker’s determination seven months later.

SSS’s response says they can’t take into account any changes which took place after the relevant date, which is the date on which he made his application.  I can’t find anything in the SS(S) Act, the DAWAP regulations, the Tribunals (Scotland) Act or Fttfs procedure regulations to contradict this.

In particular I can’t find anything equivalent to Social Security Act 1998 s12 (8) (b), which for UK legislation makes it clear that it is the circumstances obtaining at the time the decision was made which is relevant.   

Are SSS correct?  Or does the lack of an equivalent to s12 mean the tribunal are not restricted to circumstances obtaining on any particular date? 

I will caveat this - I am not at all familiar with the Scottish system and just trying to figure it out from afar (well from Newcastle, so perhaps not too afar).

The position as I understand it is that there is an application for assistance which is then subject to a determination. You can apply for a ‘re-determination’ and then appeal if still unhappy - with the powers of the tribunal being to either uphold the determination or “make its own determination of the individual’s entitlement to the type of assistance in question.”

The guidance available to SSS decision makers states that when making a determination, the decision maker is to consider all the facts up until they make their determination. The guidance equally clearly states that when making a re-determination, the decision maker is not to consider changes post-dating the application for the re-determination but should make a further determination (although there isn’t any authority given for any of this). There is then no comment at all as to how the FtT ought to approach the matter.

I would think that the position is that the FtT can consider all the facts up until it makes its determination. Essentially on the grounds that there seems to be nothing stated to the contrary and because it is expressly making its own determination, so the same rules as apply to an SSS determination would seem to apply (irrespective of the apparently different rules applying to re-determinations).

In the UK system, the position before the Social Security Act 1998 was that the tribunal was required to consider matters down to the hearing date. This wasn’t set out expressly in the legislation, but was established in various decisions - in particular CIB/14430/96. The introduction of s.12(8)(b) SSA 1998 was expressly intended to reverse this position - see Col 425 here: https://hansard.parliament.uk/Lords/1998-04-02/debates/fe350581-3ddb-46a5-93c4-a86dbc5f2a2b/SocialSecurityBill

I think that it would likely be assumed that the drafters of the Social Security (Scotland) Act would have understood the context and that the tribunals would be likely to revert to the “down to the date of the hearing” position if express provisions weren’t included to prevent this.