This factsheet is intended for use by advice workers but may be useful to anyone appealing against a benefit decision.
Most benefit decisions are made by Department for Work and Pensions (DWP) officers called decision-makers (DMs). Once a decision has been made, a DM can only change it where the law allows.
The DM can change a decision in two ways:
Appeals can challenge decisions made on new claims or on revision or supersession. In an appeal, an independent tribunal looks again at the decision and replaces it if it is found to be wrong. Since 3 November 2008 appeals are now heard by first tier appeal tribunals (FTT).
An application to revise or supersede can be made in writing, in person or over the telephone (except for housing benefit and council tax benefit, where the application must be in writing).
An appeal must be made in writing and contain specified information.
Applications are made to the office whose address appears on the decision notice.
Each benefit decision is followed by a dispute period of one month. During this time the decision can be revised or an appeal lodged.
A benefit decision is treated as made on the day that a written decision notice is posted to the claimant. The date on the decision notice must be the date of postage.
The one-month dispute period starts on the day after the date on the decision notice and ends one calendar month later – for a decision letter dated the 15th of March, the dispute period ends on the 15th of April. If there is no corresponding date in the next month the period ends on the last day of the following month (i.e. for a decision dated 31 March, the period ends on 30 April).
An application to revise or appeal is treated as made on the day it is received by the appropriate office.
Most DWP decisions do not contain reasons. If the decision does not have reasons, you can ask for them during the one-month dispute period. If the DWP send the reasons within the dispute period, the period is extended by 14 days. If the reasons are sent after the dispute period has ended, the period extends to 14 days from the date the reasons are sent.
For housing benefit and council tax benefit, the time between the request for reasons and when they are sent are ignored when calculating the dispute period.
The dispute period can be extended to 13 months where there are “special reasons” for applying late. The special reasons must exist from the end of the dispute period to the date the application is made. Special reasons might include illness, absence from home or family problems.
For appeals only, the period can be extended to 13 months if there are “reasonable prospects that the appeal will be successful”.
A revision takes effect from the same date as the decision being revised. Overpayments and underpayments are due from the date of the original decision.
A decision can be revised for any reason if the application is made during a dispute period.
For a decision to be revised outside the dispute period the DM must be satisfied that specific grounds exist. The grounds must exist whether the claimant applies for the decision to be revised or the DWP revise it on their own initiative. Amongst the most commonly used grounds are:
A full list of the grounds to revise outside the dispute period is in regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (or equivalent legislation for child benefit, housing benefit and council tax benefit).
Revising a decision starts a new dispute period. During this period the claimant can appeal against the revised decision.
A supersession inserts a new decision from a date later than the decision it replaces. Underpayments and overpayments are usually due from the date of the new decision (but this may vary with the nature of the decision).
The most common grounds to supersede are:
A full list of the grounds to supersede is in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (or equivalent legislation for child benefit, housing benefit and council tax benefit).
The date from which the decision takes effect, and so from which underpayments and overpayments are due, is in regulation 7 of the same regulations (or equivalent legislation for child benefit, housing benefit and council tax benefit).
Whether the decision maker decides to supersede or not supersede an original decision you have the right to request a revision or appeal against the new decision.
An appeal can be made against decisions on a claim, revision or supersession.
Some decisions cannot be appealed. These decisions tend to involve the use of discretionary powers by the DM, rather than a strict interpretation of the law. Decisions that cannot be appealed include:
The decisions that cannot be appealed are set out in schedule 2 of the Social Security Act 1998 and schedule 2 of the Social Security (Decisions and Appeals) Regulations 1999 (or equivalent legislation for child benefit, housing benefit and council tax benefit).
A decision that cannot be appealed can be superseded or revised at any time, without needing specific grounds to do so.
Benefit appeals are made on form GL24 or by letter. The appeal must contain:
On receiving the appeal the DM will consider revising the decision. If the decision is revised and is more favourable to the appellant as a result, the appeal will lapse: a new appeal must be made against the revised decision if the appellant still disagrees with it. If the revised decision is not more favourable, the appeal proceeds.
The DWP collects the papers associated with the appeal and a submission to the tribunal is prepared. These are sent to the appellant and the Tribunals Service (TS).
On receipt of the appeal, TS sends a questionnaire/enquiry form to the appellant. This questionnaire must be completed and returned within 14 days - failure to do so may mean the appeal is struck out.
The questionnaire asks (amongst other things) whether the appellant wants an oral hearing of the appeal. If no hearing is requested the appeal is determined on the paperwork alone and a summary notice of the tribunal’s decision sent to the appellant.
If an oral hearing is requested, a time and date is arranged. The appellant must be told of the time and date at least 14 days in advance of the hearing. The appellant or their representative may be able to arrange a convenient time by contacting TS.
Appeals are decided by a tribunal – whether or not there is an oral hearing. The make up of the tribunal depends upon the nature of the appeal:
Disability living allowance & attendance allowance: a tribunal judge who is a lawyer, a doctor and a person with knowledge of disability (because they are disabled, a carer or work with disabled people).
Employment and support allowance: If your appeal is about whether you have limited capability for work or whether you satisfy the rules for the support group, a judge and a doctor. For more information on employment and support allowance see Disability Alliance's Employment and Support Allowance Guide. or the new Disability Rights Handbook.
Personal capability assessment (for incapacity for work decisions on incapacity benefit and income support): a judge and a doctor.
Industrial injuries benefit: a judge and one or two doctors.
Appeals involving the valuation of trust funds or interpretation of business accounts can be heard by a judge and an accountant.
In most other cases, a judge sitting alone hears the appeal.
A Tribunal is inquisitorial. Its job is to investigate the facts of the benefit claim. It does this by looking at the evidence. Once the facts are established, the law is applied to decide entitlement.
The standard of proof is the balance of probabilities: to award benefit it must be more likely than not that the person qualifies. Entitlement does not have to be shown beyond reasonable doubt.
The appellant can attend the tribunal with a representative to help them present their case. They can bring witnesses or a friend or relative for support.
Sometimes, a presenting officer represents the DWP. The presenting officer explains why the DWP made its decision. The officer can also advise the tribunal on legal issues.
The procedure for each appeal is decided by the tribunal judge. The tribunal must examine the evidence, but can choose how it does so. The tribunal may ask each party to present its case or may ask direct questions of either party. The appellant and their representative must have an opportunity to address the tribunal. Nearly all hearings end with the judge asking if any party has anything to add.
Evidence can take many forms, including:
No form of evidence is inherently better than another. The tribunal must consider all the evidence and decide the most likely version of the facts.
All benefit entitlement is set out in law. The law may include an Act of Parliament, regulations or case law.
Case law consists mainly of old commissioners decisions and the new upper tribunal (administrative appeals chamber) decisions, but may include Court of Appeal, House of Lords or European court decisions. Court decisions and reported decisions of the commissioner/upper tribunal can be cited at any time. Copies of unreported decisions should be sent to the tribunal at least 14 days before the hearing.
Most decisions are given on the day of the hearing. The parties are asked to leave the room whilst the tribunal make their decision. They are then recalled and given a summary notice briefly outlining the decision.
If the tribunal cannot make a decision quickly, the summary notice is sent by post.
Usually, it takes four to six weeks to pay increases or arrears of benefit following a successful appeal. It often speeds payment if you send a copy of the decision to the relevant office.
Both the DWP and the appellant can appeal further to the Upper Tribunal (UT). To do so, a copy of the First Tier tribunal’s statement of reasons for their decision must be requested within one month of the issue of the summary notice. this can be extended to three months with special reasons. For an appeal to the Upper Tribunal be successful, the First Tier tribunal must be shown to have made a legal error.
For more information on the appeals process see the following factsheets:
You can also obtain copies of our factsheets, or order our publications, by contacting Disability Alliance on 020 7247 8776 (voice and minicom) or by fax on 020 7247 8765.
www.disabilityalliance.org - 17 November 2009
