Member Support Services

Member Support Services
How to appeal against a benefit decision made on or after 28 October 2013
The Department for Work and Pensions (DWP) has changed the way it handles
disputed decisions made on or after 28 October 2013. New arrangements for
disputing certain benefit decisions and lodging an appeal differ from the current
arrangements as 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:
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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 notified - this is called the dispute period.
Note that there is 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 HMCTS.
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:
https://www.gov.uk/appeal-benefit/decisions-made-before-28-october-2013
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 on 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
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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.
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, let you know the new decision or leave it unchanged and notify you of this in writing. If you do
not receive a letter within a reasonable time frame, telephone to confirm they received your appeal
form or letter and ask for written confirmation from them.
The department has the option, at any time up to the tribunal hearing, of changing the decision
that is being disputed. If they revise (change) 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 this form and the guidance notes to complete it here:
http://www.justice.gov.uk/downloads/forms/tribunals/sscs/sscs1.pdf
Guidance notes:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/sscs001a-eng.pdf
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.
Please remember, if the time limit is very soon your appeal may be late by the time it arrives in
HMCTS, even if it is not late on the day you post it.
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 and if you do so the appeal deadline will be extended 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.
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 on the form and have 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:
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The decision being appealed
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A summary of the relevant facts
·
The reasons for the decision
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·
Summary of the relevant law
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A copy of your appeal form or letter
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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 decide what the
correct facts are, 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 the Welfare Rights and
Guidance Service 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 & 8.
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 questions of you 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 your appeal decided on 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.
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You should give an estimate of how long you need to obtain this and keep the Tribunals Service
informed if you incur delay in getting the evidence, otherwise your appeal is likely to be handled
without taking account of this evidence.
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 already have detailed the evidence
they are relying on in their response (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 questions of you 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 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. This could take place on the same day but, could result
in adjournment with a further hearing scheduled some weeks or months later.
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 and the decision could be revised
in your favour, and the appeal lapse.
Prepare 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.
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The submission will be read by the Tribunal before your hearing and will put forward your main
challenges to the question under appeal.
As such, 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 the length of it will no doubt depend on
the complexity of your case. We have set out below a suggested structure which may help you
with your submission.
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
www.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.
Making sense of case law
Commissioners’ decisions are numbered in the as such: CJSA/222/2011 where ‘C’ indicates the
decision is unreported; the initials following indicate the benefit claimed (in this case Jobseeker’s
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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 such as for example CC v Secretary of State for Work and
Pensions (JSA) [2011] UKUT 222 (AAC).
CC v Secretary of State for Work and Pensions (JSA) are the parties to the appeal;
CC is 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
Tribunal222 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).
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:
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Is the evidence contradictory or ambiguous?
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Is the source of the evidence reliable?
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Is the evidence accurate and is the person who provided it qualified to comment?
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Does a medical report fail to record a diagnosis, medication or treatment?
Here is a framework for preparation of your submission
Identify relevant LAW = what do you have to prove?
Present the relevant FACTS of your case = to show the legal test is met
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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:
NINO:
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 you must satisfy
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...’
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If you would like further advice or assistance about making an appeal or preparing a submission,
please contact the RCN Welfare Rights and Guidance Service. 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.
We wish you every success with your appeal.
Further information:
HM Courts and Tribunals Service
http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/sscs/index.htm
Member Support Services
0345 408 4391
Option 1 – Immigration Advice Service
Option 2 – Counselling Service
Option 3 – Welfare Rights and Guidance
Careers Advice
Peer Support
Email us: mss@rcn.org.uk
Find more information and online guidance: www.rcn.org.uk/mss
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