Upper Tribunal
The Upper Tribunal hears and decides cases transferred or referred to it from the First-tier Tribunal for Scotland (First-tier Tribunal) and hears and decides appeals on decisions of the Chambers of the First-tier Tribunal. Appellants must seek permission to appeal from the First-tier Tribunal before coming to the Upper Tribunal.
Appeals are heard by senators of the College of Justice, sheriffs or other members.
Whilst the Upper Tribunal is primarily an appellate tribunal, it does, on occasion, hear cases at first instance.
Unlike the First-tier Tribunal, the Upper Tribunal is not separated into Chambers. The Upper Tribunal has three types of member:
- Judicial,
- Legal, and
- Ordinary
Judicial members are appointed by the Lord President need to check to make sure that is correct.
By nature, appeals heard in the Upper Tribunal involve complex issues of law and procedure. Decision made by the Upper Tribunal are binding on the First-tier Tribunal whilst appeals against decisions of the Upper Tribunal are made by the Court of Session.
Eligibility
Legal Members
The eligibility criteria for legal members are contained in the Scottish Tribunals (Eligibility for Appointment) Regulations 2015 (regulation 5) made under schedule 5, part 2 of the Tribunals (Scotland) Act 2014.
To be eligible for appointment as a legal member you must have:
(i) Previous engagement in practice for a period of not less than 7 years as a solicitor or advocate in Scotland; and subsequent engagement in any of the following:
(a) Practice or employment as a lawyer of any kind; or
(b) Exercising judicial functions in any court or tribunal.
The 7-year period as a solicitor or advocate in Scotland referred to above (and the 7-year period referred to in paragraph 5(1) of schedule 5 to the Act) may be calculated on a cumulative or a continuous basis.
A person is not to be treated as having satisfied the criteria at (i) above if the person has been debarred from the person’s professional body or if the person has been subject to any sanction that would have led to such debarment had the person not ceased to belong to the professional body.
The Scottish Parliament (Disqualifications) Order 2020 also applies to this office.
Ordinary Members
To be eligible to sit as an ordinary member