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Benefit appeals




The way the Department for Work and Pensions (DWP) handles disputed decisions changed from 28 October 2013.  From this date the DWP will no longer automatically send disputed decisions that it doesn’t revise to Her Majesty’s Courts and Tribunals Service (HMCTS). 

This appeals process only applies to:

  • Jobseeker’s Allowance (JSA)
  • Personal Independence Payment (PIP)
  • Universal Credit
  • Income Support
  • Child Maintenance
  • Winter Fuel Payment
  • any other DWP benefit or credit

Note: if you are appealing a Housing Benefit decision you must contact your local council to question its decision and follow its appeals procedure.

There will now be a mandatory reconsideration of disputed decisions before a claimant can lodge an appeal.  Claimants will have to request that the DWP conducts a mandatory reconsideration before they are able to lodge an appeal.  Mandatory reconsiderations should be requested within 1 month of the date of the benefit decision - this is called the dispute period.

There is currently no intention to introduce any time limit for carrying out a mandatory reconsideration and this requires the decision maker to provide a response ‘as soon as reasonably practicable’.

People who wish to appeal following a mandatory reconsideration by the DWP will have to do so through ‘direct lodgement’ to MCTS. 

If you are appealing a decision that was made before 28 October 2013, you should follow a different process and the appeal should be made by using a different form and sent to a different address. You can find guidance about the old arrangements here.

If you decide to dispute a decision you must do so within one month of the date on the decision letter. You must tell the DWP over the telephone or preferably in writing that you want them to look at their decision again – mandatory reconsideration. You should tell them why you disagree with the decision and provide any additional or new evidence that you have to substantiate your grounds for disputing the decision. Keep a copy of your letter and any evidence that you submit.  

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What happens after you request mandatory reconsideration?

You should receive a letter from the department responsible for your claim acknowledging the disputed decision. It will say that they are looking at the decision again and they will either change it or leave it unchanged and notify you of this in writing. If you do not receive a letter within a reasonable time frame we recommend that you telephone to confirm that they received your appeal form or letter. Please ask for written confirmation of receipt from them. 

The department has the option, at any time up to the tribunal hearing, to change the decision that is being disputed. If they revise the decision to your advantage, your dispute will lapse (come to an end).  If you are not satisfied with the revised decision you will have to lodge an appeal against it.

If the decision is not revised or you disagree with the DWP’s decision when you receive your ‘mandatory reconsideration notice’ you can directly lodge an appeal to the HM Courts & Tribunals Service using form SSC1 ‘Notice of an appeal against a decision of the Department for Work and Pensions’.

You can download the form and the guidance notes here. 

The rest of this guide will provide useful information and tips for appealing benefit decisions and preparing for First-Tier Tribunals which have complex administrative and judicial systems.  We hope this guidance will give you a better chance of success at your appeal and reduce any anxiety you may have about an appeal.

You have one calendar month from the date when the Mandatory Reconsideration Notice was sent to you in which to appeal. Your appeal is not regarded as made, until it has been received by HMCTS. For example, if the letter giving the decision is sent to you on 15 March, your appeal must arrive in HMCTS by 15 April at the latest.

If you find yourself outside the time-limit, you must give reasons why the appeal is late. If you do not provide reasons your appeal may be returned to you. There is a special section on the appeal form where you can give reasons for lateness. If DWP do not object to the reasons for your appeal being late it will generally proceed as though it was received in time. 

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Explaining why you disagree with the decision

You may have been given very little information on the decision letter about why your benefit has been stopped or why you have not received an award. As such, it can be difficult to explain why you disagree with the decision. You can request that the department or council send you a written statement of reasons for the decision. Doing this will also extend the appeal deadline by 14 days.

It is important that you state clearly in your appeal form or letter, why you disagree with the decision that has been made.  For example:

I wish to appeal the decision (list decision). I consider that I provided sufficient evidence to determine my eligibility for (name of benefit). 

I do not consider that the decision maker has taken full account of or given due consideration to the evidence that I provided (you can state whether that was paper evidence or includes oral evidence at an interview or medical assessment).

If you want, you can give an example of why you think a decision maker has made the wrong decision. You must also include a copy of your ‘Mandatory Reconsideration Notice’ with your appeal form. 

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Direct Lodgement of appeal

If your appeal is accepted as ‘valid’, HMCTS will send an acknowledgement letter to you. Depending on whether you have already provided details of your appeal hearing requirements (for example, on the appeal form) HMCTS may also send you an enquiry form to find out what these are. If you have made an appeal and answered all the questions, this should not be necessary. HMCTS will also send a copy of your appeal to DWP and ask them to provide a ‘response’ to your appeal.

Once notified of direct lodgement of an appeal, the DWP will prepare their response to your appeal. This is referred to as their ‘response’ or ‘submission’ and will be a bundle of papers which can contain many pages depending on the type of benefit and the history of your claim. Don’t be daunted by this as you will already have knowledge of much of the content. There is a time limit of 28 days for the response to be provided in benefit cases and 42 days in Child Maintenance appeals. DWP also have the right to ask for an extension of the time limit and, if this happens a judge will consider the merits of their request.

The bundle will include:

  • the decision being appealed
  • a summary of the relevant facts
  • the reasons for the decision
  • summary of the relevant law
  • a copy of your appeal form
  • copies of the  documents relevant to the appeal (e.g. claim form, medical reports and letters).

This document serves to present the case to the Tribunal, as the department sees it.  

You may disagree with the decision and the facts being presented by the department. You may also disagree with their interpretation of the relevant law. It is for the Tribunal to determine the facts, whether the law has been correctly applied and/or how it should be applied.

Once the response (bundle) is prepared, the department will send a copy to you and a copy to the Tribunals Service. If you have nominated a representative on your appeal form or letter, a copy of the response should be sent to your representative also.

If you need help to complete the appeal form, you should seek advice from us or an independent advice agency.  

You may not need to complete every section of the SSCS1 form but you must complete sections 1,2, 5, 6 and 8.

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Do you want an oral hearing?

At a hearing, you and your representative, if you have one, meet the Tribunal to present the facts of your case. The DWP has the right to attend and put their case forward to the Tribunal. The alternative to an oral hearing is to have your case decided by the Tribunal without a hearing. This is referred to as ‘a paper hearing’. Neither party attends.

We advise that you request an oral hearing. At least 50% of oral hearings are successful with less than 20% of paper hearings succeeding.

At an oral hearing the Tribunal will ask you questions about anything that is unclear, with an opportunity to learn more about your case than it could gather from papers. At a paper hearing there is no opportunity to do this and any gaps in evidence may count against you.

If you change your mind about the type of hearing you would like, after returning the enquiry form, you should notify the Tribunals Service as soon as possible.

If you are having a paper hearing, you will not be notified of the date when your appeal will be dealt with by the Tribunal. Therefore, if you are planning to send in additional evidence for your appeal, you must either do so with the enquiry form or notify the Tribunals Service on the form that you require extra time to obtain and submit this evidence. You should give an estimate of how long you need to obtain this and keep the Tribunals Service informed of any delay, otherwise your appeal is likely to be handled without taking account of this evidence.

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Additional evidence

You should consider what evidence you need to support your case as most appeals will involve dispute over the facts of the case. The department whose decision you are appealing against will have already provided their evidence (the bundle). It is not common for them to produce new evidence at a Tribunal hearing.

Your ‘oral evidence’ at the hearing is extremely important and possibly the most useful evidence. The Tribunal will ask you questions and treat what you say as evidence, taking written notes of the key points. For example, if the appeal is about a disability benefit the Tribunal is likely to ask you to describe an average day or answer specific questions about your physical functional ability.

If you have requested an oral hearing you should endeavour to submit any additional evidence as early as possible.The Tribunals Service sends all the papers relating to the appeal to the members of the Tribunal at least 10 days before the date of the hearing.

The Tribunal will have reviewed all of the appeal papers before the hearing. It will have formed an opinion about the merits of your appeal before the hearing starts, based on the facts presented. You can influence this by submitting additional evidence and, sending it early may make the appeal easier for you.

If you can’t get additional evidence to the Tribunal before your hearing, you can still ask them to take accept it but producing it at short notice or on the day of the hearing may result in the Tribunal having to adjourn the hearing to study it. An adjournment may delay the hearing by a few weeks or months. Remember: a decision maker can revise their decision any time before the Tribunal. If you submit extra evidence early, a copy will be provided to the department, the decision could be revised in your favour and the appeal would lapse.

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Preparing a submission

A submission is a document written by you or your representative if you have one. It serves as a statement to the Tribunal and explains your view of the question under appeal. It is not essential that you prepare a submission; you may already have stated your case as best you can on an appeal form or in a letter. However, it is a good idea to make a written submission wherever possible.

The submission will be read by the Tribunal before your hearing and will put forward your main challenges to the question under appeal. It can:

  • result in a quicker hearing
  • provide you with a better understanding of the appeal
  • act as confirmation of the grounds for your challenge when the Tribunal adjourn to make a decision
  • act as a tool to assist you in asserting the facts of your case by referring the Tribunal to the main points in your submission.

A submission doesn’t need to be in any particular form and it's length will depend on the complexity of your case.

The content of your submission

Benefit entitlement is contingent upon satisfying a legal test. A tribunal must decide whether the facts of the claim satisfy that test. Facts are established by examining the evidence presented.

The law 

A response (bundle) prepared by the DWP for the Tribunals Service will include reference to the legislation used to make the benefit decision, often followed by a reference to relevant case law. Your submission should reference the legal test or tests to be satisfied. You can also find Judicial Decisions (case law) that are binding on decision makers and First-tier Tribunals. These are decisions of the Commissioner/ upper tribunal judge. A decision made by three Commissioners/ a three Judge panel carries more weight than that of a single Commissioner and a reported decision carries more weight than an unreported decision.

It is not essential you include reference to case law. If you do want to look up case law that may support your appeal, you can look it up in public libraries or on websites, such as www.opsi.gov.uk for Acts of Parliament and regulations, and ww.administrativeappeals.tribunals.gov.uk for Commissioners’ decisions.

 

The RCN Welfare Rights and Guidance Service can advise you of the legal tests that apply to benefit claims.

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Making sense of case law

Commissioners’ decisions are numbered e.g. CJSA/222/2011. The  ‘C’ indicates the decision is unreported, the initials following indicate the benefit claimed (in this case Jobseeker’s Allowance), the first set of numbers is a reference for the case and 2011 is the year that the appeal was lodged.

If a decision is thought to be of importance it is published on the Tribunals Service website. The decision then acquires a reference, for example CC v Secretary of State for Work and Pensions (JSA) [2011] UKUT 222 (AAC) where:

  • CC v Secretary of State for Work and Pensions (JSA) are the parties to the appeal
  • CC are the initials of the person who claimed the benefit
  • JSA indicates the benefit claimed (in this case Jobseeker's Allowance)
  • [2011] UKUT indicates a decision published on the website in 2011 made by the UK Upper Tribunal
  • 222 is the reference number
  • (AAC) indicated that it is the Administrative Appeals Chamber.

Decisions published on the website carry no more legal weight than any other decision. If a decision goes on to be reported, an additional reference is added. In this instance it becomes CC v Secretary of State for Work and Pensions (JSA) [2011] UKUT 222 (AAC) [2011] AACR 3. The reference [2011] AACR 2 indicates it was the second decision reported in the Administrative Appeals Chamber Reports of 2011. If you are referring to a reported decision, the first time it should be cited in full. Thereafter, abbreviations for the parties and benefit can be used, e.g. CC v SSWP (JSA)

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The Facts

The facts of each appeal are established by evidence. Your submission should discuss the evidence and state how the evidence supports your case. You should point out where supporting evidence from more than one source agrees on the facts of your case. If evidence included in the response (bundle) prepared by the department or council does not accurately reflect the facts of your case, you can cast doubts on its accuracy.

For example:

  • is the evidence contradictory or ambiguous?
  • is the source of the evidence reliable?
  • is the evidence accurate and is the person who provided it qualified to comment?
  • does a medical report fail to record a diagnosis, medication or treatment?
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A framework for preparation of your submission

Here is a framework that can be used:

  • Identify relevant law = what do you have to prove?
  • Present the relevant facts of your case = to show the legal test is met
  • Gather evidence to support the facts you are asserting
  • Match the facts to the law = submission

Suggested structure for your submission:

Name:

Address:

Date of birth:

NI number:

Benefit claimed:

Appeal reference:

Appeal venue (if known):

Hearing date: (if known):

1. State what you consider to be the correct decision. Tell the Tribunal the decision you want it to make e.g. ‘I respectfully submit that...’

2. Provide history of your claim. Include date of claim, notification of decision, revision, lodging of appeal etc.

3. Identify the law – the legal test. These are the conditions you must satisfy to receive the benefit. These will be summarised in a department or council’s response (bundle). If you are unsure about this, seek advice.

4. Present relevant facts. Provide your version of the relevant facts about your case.

5. Present evidence to support these facts. Discuss the evidence that supports your version of the relevant facts and give your reasons why conflicting, inaccurate or ambiguous evidence should not be relied upon.

6. Refer to the relevant Judicial Decision/s. If you have found case law that supports your challenge, attach the decision to the submission. Remember, this is not essential.

7. Conclusion. Summarise why your suggested decision is the correct one..’I therefore invite the Tribunal to find that...'

If you would like further advice or assistance about making an appeal or preparing a submission, please contact us. We are not able to represent you at an oral hearing but we can advise you on your appeal and guide you in terms of preparing a submission.

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Call the RCN on: 03457726100