This factsheet has been produced by our Tribunal Support Unit. It is intended for use by advice workers but may be useful to anyone appealing against a benefit decision.
The Tribunal Support Unit gives advice and casework support to advisers working in the Greater London area. It does not advise members of the public or advisers based outside London.
For more information about the Tribunal Support Unit call our advice line on 020 7247 3957, see our website at www.disabilityalliance.org/trib.htm or e-mail tsu.da@dsl.pipex.com.
The Social Security and Child Support Commissioners (the Commissioners) are specialist judges that decide appeals from benefit appeal tribunals. They are independent of the Department for Work and Pension (DWP), Her Majesty’s Revenue and Customs (HMRC) and local authorities. Decisions of the Commissioners set legal precedent – their interpretation of the law and their reasoning create case law that should be followed by others making similar decisions about benefit entitlement.
An explanation of benefit decision-making procedures from making a claim to appealing to a tribunal can be found in TSU Factsheet F36 - Reconsideration and appeal - the basics.
The only ground for appealing to the Commissioners against a tribunal’s decision is that the tribunal has made a legal error. Both the benefit claimant and the DWP can appeal to the Commissioners.
This factsheet will look first at the administrative procedures involved in appeal to the Commissioners and then at how to show that a tribunal has made a legal error.
The Commissioners can do any of the following:
The appeal process can take several months and may not be successful. Always think about making a fresh claim if the tribunal refused benefit, or asking for a supersession if it awarded benefit at a lower rate than expected.
At the end of most tribunal hearings a summary notice of the tribunal’s decision is handed to both parties. If the appeal was decided on paper without a hearing, or the tribunal cannot come to a decision immediately, the summary notice is posted to both parties “as soon as… practicable”.
The summary decision states the tribunal’s decision very briefly. You can ask for a statement of reasons for the tribunal’s decision. You must do this in writing within one month of the summary notice being given or posted. This time limit can be extended to three months where there are “special circumstances” that caused the lateness.
You cannot appeal to the Commissioners without first obtaining the tribunal’s statement of reasons, except in exceptional circumstances (e.g. where the TS cannot produce a statement of reasons).
When you ask for the statement of reasons you should also receive the tribunal’s record of proceedings – the tribunal’s notes of what happened during the hearing. These can be very useful to help establish grounds for the appeal. If you do not receive the record ask the TS to send it to you.
To appeal to the Commissioners you must first ask for leave (permission) to appeal from the tribunal.
The application for leave must be received by the TS within one month of the date that the tribunal’s statement of reasons was posted to you. The time limit can be extended to 13 months if there are “special reasons” to do so.
The application must be in writing and signed by the appellant or their representative. It must contain the grounds for the appeal and have a copy of the tribunal’s statement of reasons attached. If the application is made outside the one-month time limit it must give the special reasons for accepting the appeal.
If leave to appeal is granted, the tribunal will send a written notice granting leave. You must then give written notice of the appeal to the Commissioners’ office on form OSSC1 (sent with the tribunal’s grant of leave to appeal). The notice to the Commissioners must include:
As an alternative to granting leave to appeal, the tribunal can set aside the decision if there is a clear error of law.
If the DWP (or HMRC or local authority) asks for leave to appeal, you will be sent a copy of the application and asked to comment. If you agree that the decision contains a legal error, the decision will be set aside.
If the decision is set aside a new tribunal made up of different members is arranged that will hear the appeal afresh.
If the tribunal refuses leave to appeal you will receive a written notice of this decision. Once you have this notice you can apply for leave to appeal directly from the Commissioners (see below).
If the appeal tribunal refuses leave to appeal, you can request leave directly from the Commissioners. You will be sent form OSSC1 with the tribunal’s notice that leave is refused. Use this form to request leave to appeal, enclosing:
The form asks for your main grounds for appeal, you can set them out here or attach your application for leave to the tribunal and refer the Commissioners to this for the grounds. You can give additional grounds for granting leave to appeal if you wish.
Either party can ask for an oral hearing of their application for leave to appeal – but this is rarely needed. Oral hearings are used mainly where it is unclear whether the administrative rules for allowing leave to appeal are satisfied – rather than for examining the grounds for the appeal itself.
If the Commissioners grants leave to appeal, you will receive a written notice telling you this. Your appeal then moves to the next stage of the process – see below.
If leave to appeal is refused your appeal ends. You cannot appeal further (except by challenging the refusal of leave by judicial review in the High Court).
Once leave to appeal is granted you are required to serve a formal notice of appeal. If the tribunal gave leave, notice of the appeal must be served on the Commissioners on form OSSC1 (see 3, above). If a Commissioner grants leave, your application for leave is treated as notice of the appeal.
The OSSC1 asks whether you want an oral hearing of the appeal. If you choose not to have an oral hearing, the appeal is decided on the paperwork alone.
Most Commissioners appeals are decided on the paperwork. As the Commissioners have only limited power to investigate the facts, no new evidence needs to be heard or examined. It is usually possible for the Commissioners to determine whether a legal error has occurred by considering written arguments alone.
Appeals that are particularly complex or could establish an important legal precedent can be decided at an oral hearing. Either party can request an oral hearing, or the Commissioners can order one to take place.
Once notice is served, the Commissioners’ office obtains copies of all appeal papers from the TS. The party who did not appeal is sent a copy of the application for leave and asked to comment in a submission to the Commissioners’ office within a set time. A copy of this submission is sent to the party who appealed. Further submissions are sent between parties until neither has further comment. The appeal is then put before a Commissioner to be decided on the papers.
The Commissioner who will decide the appeal (or a legal officer who assists them) can order either or both parties to make further submissions on any issue they think is necessary to decide the appeal.
Once the Commissioner is satisfied that enough information has been supplied, they will make a decision and send a written copy of that decision to the parties.
If the Commissioners agree to (or order) an oral hearing, both parties are asked to submit skeleton arguments in advance. The Commissioner (or in complex cases, the tribunal of three Commissioners) who will decide the appeal will examine these arguments and may ask for a further submission on any issue they think is necessary to decide the appeal.
At the hearing each party is asked in turn to make a full argument to the Commissioner – the party that made the appeal giving their argument first. The Commissioner can interrupt at any time to ask questions and may ask for further information on any point. At the end of the hearing each party is asked to sum up.
The Commissioners will rarely announce their decision at the end of the hearing, but will reserve judgment and send each party a written decision.
Appeals for London are heard at the Commissioners’ office in the City of London.
An appeal to the Commissioners can be successful only if the tribunal’s decision is erroneous in law – i.e. it contains a legal error. What constitutes a legal error is wider than many people first imagine. A tribunal must not only make the correct decision, its statement of reasons must show that it made the decision in the correct way. The statement must show that the tribunal applied the law correctly, gave adequate reasons for its decision and obeyed the rules of natural justice. A failure to do any of these is a legal error.
Tribunals make their decisions by applying the law to the facts of the case. The Commissioners has very limited powers to investigate the facts and will usually not consider new evidence. However, the Commissioners can look at the way the tribunal interpreted the evidence that was before it and whether the tribunal established the facts correctly.
Much case law, from both the Commissioners and the higher courts, discusses what might be an error of law in a tribunal’s decision. Possible errors of law include the following:
I. The decision is wrong in law.
The tribunal applied the wrong law or applied it in the wrong way. This can include using the wrong legislation, misunderstanding the legislation or misunderstanding or overlooking relevant case law.
II. The tribunal failed to make proper factual findings.
To make a decision, the tribunal must decide what the facts of the case are. The tribunal must establish all of the facts necessary to make the decision and not take into account irrelevant facts.
III. The tribunal’s reasons are inadequate.
The tribunal must explain its decision correctly. It must explain how the evidence before it established the facts. It must explain why the facts made it apply the law in the way it did to come to its conclusion.
IV. The decision is not supported by the evidence.
The tribunal ignored or overlooked evidence, misinterpreted evidence, took into account irrelevant evidence or made a decision that does follow logically from the evidence.
V. The decision is perverse.
The tribunal acted irrationally - no reasonable tribunal given the relevant law, the evidence before it and the facts found by it could have come to the decision that it did.
VI. The tribunal breached natural justice.
A breach of natural justice is a failure to follow the procedural rules under which tribunals must operate; for instance failing to give all parties 14 days’ notice of an oral appeal hearing. Breaches can include apparent bias, not allowing a party to speak or not informing the parties that it intends to take into account a matter not addressed in the appeal papers or during the hearing.
Some appeals to tribunals are made solely because you disagree with the DWP’s interpretation of the law. Both sides to the appeal make arguments in favour of their view of what the law means and the tribunal decides whose interpretation it prefers. In these appeals identifying the potential error of law is can be relatively straightforward – the legal argument that failed before the tribunal is restated to the Commissioners, but now also addresses any alternative interpretation that arose during the course of the appeal.
Most appeals are not primarily about bare legal interpretation. In these cases, identifying potential errors of law involves a careful study of the law, the evidence (including oral evidence from the hearing), the tribunal’s statement of reasons for their decision and how the hearing was conducted.
A tribunal’s statement of reasons must adequately explain how it reached its decision. An often quoted extract from a Commissioners’ decision says
“the minimum requirement must at least be that the claimant looking at the decision should be able to discern on the face of it why the evidence has failed to satisfy the authority.” (R(A)1/72).
Potentially, anything less is an error of law.
An ideal statement of reasons for a tribunal’s decision will:
Compare the tribunal’s reasons with the case papers, its record of proceedings and your own notes or memory of what happened in the tribunal. Do the reasons adequately explain how the tribunal came to its decision? If not, what is missing? Try to express anything that is missing in terms of grounds I to VI above – if you can do so, you may have established an error of law that is grounds for an appeal.
There is no set structure for setting out your grounds for appeal. The key is to set out your grounds logically, explaining clearly why you think the tribunal’s decision is defective. Make sure your request for leave contains your client’s name and address, date of birth, national insurance number and appeal reference number.
You can appeal to the Commissioner on more than one ground. If you the think that the decision has more than one legal error, set out each error separately under its own heading.
Number your pages and paragraphs so that you, the other party and the Commissioners can refer to your arguments quickly and easily.
A skeleton structure for a request to a tribunal for leave to appeal is provided as an appendix to this factsheet. The structure shows how to set out the appeal if more than one of the potential grounds for appeal applies.
If you are unhappy with the Commissioner’s decision, there is a right of appeal to the Court of Appeal. Appeals can only be on the ground that the Commissioner’s decision contains a legal error.
The Tribunal Support Unit has produced a more detailed 48 page guide to appeals entitled Benefit appeals: A guide to benefit appeals for advisers and disabled people, available to order at www.disabilityalliance.org/benapp.htm.
This guide helps you prepare for an appeal tribunal and will increase your chances of success at the hearing. It takes you through all the stages of the benefit decision-making process from the moment you receive an unsatisfactory decision through to the tribunal hearing.
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.
April 2008
Appellant’s name:
Address:
Appeal reference number:
Tribunal venue:
National insurance number:
Date of birth:
1. Introduction
1.1 What the appeal was about. A brief summary of the history of the appeal and why the decision is wrong.
2. The tribunal’s decision is wrong in law
2.1 A brief summary of the relevant legislation.
2.2 The part of the legislation that is in dispute.
2.3 How the tribunal set out its interpretation of the law.
2.4 Your interpretation of the law and how case law supports your interpretation.
3. The tribunal failed to make proper findings of fact
3.1 The facts as set out in the tribunal in its statement of reasons.
3.2 What fact you think is incorrect or missing.
3.3 How you think the tribunal should have established the true facts.
4. The tribunal’s reasons are inadequate.
4.1 Which of the tribunal’s stated reasons you think is wrong.
4.2 Why the stated reason fails to adequately explain the decision.
5. What the tribunal’s decision should have been
5.1 What decision should have been made and how any errors should be corrected; eg how a new tribunal hearing should address specific issues.
