This factsheet is intended for use by advice workers but may be useful to anyone appealing against a benefit decision.
The Upper Tribunal (UT) is made up of specialist judges who decide appeals from first tier appeal tribunals (FTT). These specialist judges were known as commissioners but under the new appeal structure, which came into effect on 3 November 2008, all tribunals are chaired by judges.
The Upper Tribunal is part of the Administrative Appeals Chamber which decides appeals from decisions of the FTT in social security, tax credits, child trust funds, child support maintenance, housing benefit and council tax benefit cases.
Social security and child support appeals in Northern Ireland continue to be dealt with by Commissioners.
UTs are independent of the Department for Work and Pensions (DWP), Her Majesty’s Revenue and Customs (HMRC) and local authorities.
Decisions of the commissioners/judges set legal precedent – their interpretation of the law and their reasoning create case law (commissioner's/upper tribunal decisions) 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 an FTT can be found in TSU Factsheet F36 - Reconsideration and appeal - the basics.
The only ground for appealing to the UT against the FTT decision is that the FTT has made a legal error. Both the benefit claimant and the decision maker can appeal to the UT.
This factsheet will look first at the administrative procedures involved in appeal to the UT and then at how to show that the FTT has made a legal error.
The UT can do any of the following:
There is a quicker procedure: if both you and the decision maker agree on an outcome, the Upper Tribunal can set aside the first-tier tribunal's decision by consent.
The appeal process can take several months and may not be successful. Always think about making a fresh claim if the FTT refused benefit, or asking for a supersession if it awarded benefit at a lower rate than expected.
At the end of most FTT hearings a summary notice of the FTT’s decision is handed to both parties. If the appeal was decided on paper without a hearing, or the FTT cannot come to a decision immediately, the summary notice is posted to both parties “as soon as… practicable”. The summary decision states the FTT’s decision very briefly.
You cannot appeal to the UT without first obtaining the FTT’s statement of reasons, except in exceptional circumstances (e.g. where the TS cannot produce a statement of reasons).
You must ask for the statement of reasons in writing within one month of the summary notice being given or posted. The time limit can be extended under the tribunal's general case management powers.
When you ask for the statement of reasons you should also receive the FTT’s record of proceedings – the FTT’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 UT you must first ask for leave (permission) to appeal from the FTT.
The application for leave must be received by the TS within one month of the date that the FTT’s statement of reasons was posted to you.
Write a letter stating why you think the decision was legally wrong and what result you seek. Head it 'Application for permission to appeal to the Upper Tribunal'.
Make a copy, and send it to the clerk to the tribunal with copies of the tribunal's decision notice and its statement of reasons.
If there is no statement of reasons, the tribunal has discretion to treat the application as a request for one. An application can only be allowed without a statement of reasons if the tribunal thinks it is in the interests of justice to do so.
On receiving your application for permission to appeal, the tribunal can review its decision. In particular, the tribunal can:
The tribunal must ask each party if it has any comments before it changes its decision following a review. If it sets aside the decision, it must make a new decision.
You must be sent a notification of any new or amended decision. If you think that the new or amended decision contains an error of law, you have one month from the date that the notification is sent to ask again for permission to appeal to the Upper Tribunal.
If the decision is set aside a new FTT made up of different members is arranged that will hear the appeal afresh.
If leave to appeal is granted, the FTT will send a written notice granting leave. You must then give written notice of the appeal to the UT on form UT1 (sent with the FTT’s grant of leave to appeal or obtainable from the tribunal service website at www.tribunals.gov.uk/) within one month of being given permission to appeal.
If the FTT 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 UT (see 4 below) using form UT1 within one month of being refused permission to appeal. .
Form UT1 asks for your main grounds for appeal, you can set them out here or attach your application for leave to the FTT and refer the UT to this for the grounds. You can give additional grounds for granting leave to appeal if you wish.
If the UT 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 5 below.
If leave to appeal is refused you cannot normally appeal against this decision though you may be able to apply to the Upper Tribunal for a decision on an appeal to be set-aside on certain limited procedural grounds.
For more information on this see the Explanatory leaflet (Social Entitlement Chamber) on the Tribunals Service website
The notice to the UT must include:
Note: Form UT1 is intended for use by claimants. Form UT2 is used by the Secretary of State (decision makers), Her Majesty’s Revenue and Customs or a local authority and form UT6 in war pensions decisions. All of these forms are available on the Tribunals Service website at www.osscsc.gov.uk/FormsGuidance/forms.htm.
You will be given a date of appeal. You will also be asked 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 UT appeals are decided on the paperwork. As the UT has only limited power to investigate the facts, no new evidence needs to be heard or examined. It is usually possible for the UT 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 UT can order one to take place.
Once notice is served, the UT 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 UT 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/judge to be decided on the papers.
The commissioner/judge 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 UT is satisfied that enough information has been supplied, it will make a decision and send a written copy of that decision to the parties.
If the UT agrees to (or orders) an oral hearing, both parties are asked to submit skeleton arguments in advance. The commissioner/judge (or in complex cases, a tribunal of three commissioners/judges) 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/judge – 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 UT will rarely announce its decision at the end of the hearing, but will reserve judgment and send each party a written decision.
An appeal to the UT can be successful only if the FTT’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. The FTT 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 FTT 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.
FTTs make their decisions by applying the law to the facts of the case. The UT has very limited powers to investigate the facts and will usually not consider new evidence. However, the UT can look at the way the FTT interpreted the evidence that was before it and whether the FTT established the facts correctly.
Much case law, from both the UT and the higher courts, discusses what might be an error of law in the FTT’s decision. Possible errors of law include the following:
I. The decision is wrong in law.
The FTT 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 FTT failed to make proper factual findings.
To make a decision, the FTT must decide what the facts of the case are. The FTT must establish all of the facts necessary to make the decision and not take into account irrelevant facts.
III. The FTT’s reasons are inadequate.
The FTT 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 FTT 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 FTT acted irrationally - no reasonable FTT 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 FTT breached natural justice.
A breach of natural justice is a failure to follow the procedural rules under which FTTs 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 FTTs 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 FTT decides whose interpretation it prefers. In these appeals identifying the potential error of law can be relatively straightforward – the legal argument that failed before the FTT is restated to the UT, 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 FTT’s statement of reasons for their decision and how the hearing was conducted.
The FTT’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 the FTT’s decision will:
Compare the FTT’s reasons with the case papers, its record of proceedings and your own notes or memory of what happened in the FTT. Do the reasons adequately explain how the FTT 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 FTT’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 UT 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 UT can refer to your arguments quickly and easily.
A skeleton structure for a request to the FTT 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 leave to appeal is refused you may
For more information on this see the Explanatory leaflet (Social Entitlement Chamber) on the Tribunals Service website
For more about tribunal reform see our Factsheet F57 - appeal tribunal reform.
You can also obtain copies of our factsheets, or order our publications, by contacting Disability Alliance on 020 7247 8776 (this is not an advice line) or by fax on 020 7247 8765.
www.disabilityalliance.org - April 2010
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 FTT ’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 FTT set out its interpretation of the law.
2.4 Your interpretation of the law and how case law supports your interpretation.
3. The FTT failed to make proper findings of fact
3.1 The facts as set out in the FTT in its statement of reasons.
3.2 What fact you think is incorrect or missing.
3.3 How you think the FTT should have established the true facts.
4. The FTT ’s reasons are inadequate.
4.1 Which of the FTT’s stated reasons you think is wrong.
4.2 Why the stated reason fails to adequately explain the decision.
5. What the FTT ’s decision should have been
5.1 What decision should have been made and how any errors should be corrected; eg how a new FTT hearing should address specific issues.
