What to do if you think a benefit decision is wrong, or needs changing
You may want to change a decision about your benefit, you may disagree with a decision that has been made about your benefit or your application for a benefit, or you may think that your benefit award should be changed because your circumstances have changed.
This item is designed to give you a general outline of how the process works to challenge a decision you disagree with, or ask for your award to be changed and gives hints to help you through the process. This is quite a complex area and procedures vary between different benefits.
strongly advise that you seek specialist advice if you want to
challenge a decision (e.g. from Citizen's Advice or A4U)
speaking there are two ways of changing a decision about benefits:
When you ask for your award to be reconsidered because of a change of circumstances this is generally known as a supersession.
First tier tribunals involve very few people
Appeals, an appeal is made to a tribunal that is part of Her Majesty’s Courts and Tribunal Service and therefore independent of the department that made the original decision, the tribunal will be headed by a Judge. There is a First Tier Tribunal and an Upper Tribunal, but do not be deceived into thinking that you have two bites of the cherry, you can appeal to the Upper Tribunal in only very limited circumstances. In the majority of cases the First Tier Tribunal is the final arbiter.
You disagree with a decision that has been made about your benefit or application for benefit
If you want to change a decision you first have to ask for a Reconsideration, you have to go through the reconsideration process before you can apply to an Appeal Tribunal (the First Tier Tribunal) this is known as a Mandatory Reconsideration. There is a strict time limit, generally one Calendar month from the date on the letter informing you of the decision, the letter you received with the decision should tell you what to do, if you are in any doubt seek advice from e.g. Citizens Advice, A4U.
If you still disagree with the decision after the Reconsideration you can then apply to the First Tier Tribunal, within a One Month time limit for your case to be heard by an Appeal Tribunal.
1) You can ask for a hearing in front of the tribunal (usually a Judge and one or two other members; however, the exact composition will depend on the particular case). A tribunal is less formal than a Court but don’t be deceived, you may still find this an intimidating process.
2) You can have a ‘Paper Hearing’ where the case is judged purely on the written evidence and you do not need to appear in person, this is rarely to be recommended as you are usually your own best evidence and hearings have been held in people’s homes when it has not been possible for them to attend a Tribunal Centre.
If you still think the decision is wrong after a First Tier Tribunal Hearing you can in limited circumstances apply to the Upper Tribunal, This can only be on what is known as a point of law, this means that the Upper Tribunal examines the legality of the way the First Tier Tribunal made its decision rather than the decision itself, it is quite possible that an Upper Tribunal could find that there was an error in the First Tier Tribunal process but that it would still have come to the same decision even if had not made that error.
There are strict time limits and you need to apply for 'Leave to Appeal' to the Upper Tribunal.
You would probably need expert help (this may cost) to take a case to an Upper Tribunal.
Tips on what to do if you want to challenge a decision
Get a copy of the written reasons for the decision
This explains the reasoning behind the decision and tells you what evidence was used. It may have been sent to you with the decision but if not you need to ask for a copy. You need to read this carefully and note down any errors or omissions,
Is there something to challenge?
You may feel that it is unjust that you cannot get a benefit, but that does not mean the decision is wrong, e.g. a decision that you cannot get a Contribution Based Benefit because you have not made the relevant National Insurance contributions is correct even though you may think the rules about contributions are nonsense.
Do I fit the criteria for the benefit?
There are specific rules about who can claim each particular benefit you will only be entitled to that benefit if your circumstances fit within those rules.
My condition has worsened
A common mistake is to think ‘well I’m not sure if I qualified for the benefit when I applied but I have got so much worse I’m sure I do now’.
A revision or appeal will only look at the decision that was made, so will look at the situation at the date of the decision, not what has happened since. In this situation you may be better making a new application, or making a new application and continuing with the review/appeal process at the same time.
If in doubt seek advice.
Is it worth challenging the decision?
Generally you would automatically think you should ask for a decision that you disagree with to be changed, however there may be a risk that the revised decision could be worse for you than the original decision.
Example: Mary, a 15 year old, is awarded low care and high mobility components of DLA, she is convinced she is entitled to middle rate care component so asks for a reconsideration, The reconsideration agrees and awards middle rate care but also decides that Mary is not entitled to any mobility component, so overall Mary is worse off. Mary could ask for a Mandatory Reconsideration and then take this revised decision to Appeal but there would be no guarantee of success.
Get advice before you decide what to do if in any doubt
The most common areas where people think a decision is wrong is with Personal Independence Payment (PIP) claims and with the Work Capability Assessment process for Employment and Support Allowance (ESA) claims.
In both cases the evidence that the decision maker has is judged against a list (different for each of these benefits) of things that a person is or is not capable of doing( or not doing), these are called Descriptors. There is a point scoring system applied to the descriptors and the number of points you score determine if you get the benefit. You need to mark yourself against these descriptors , you could also get someone else to check that they agree with you.
You may find that you just do not fit the descriptors and decide that you will be unlikely to get the benefit and take your case no further. (there are one or two exceptional situations where someone can get the benefits without the descriptors having to apply, check these with an advice organisation before you make your final decision)
On the other hand you may identify descriptors that you think apply to you or consider that you should be awarded more points for particular descriptors, note these down with the reasons for your opinion.
Evidence, evidence, evidence...
You have identified shortcomings in the decision, you have identified which descriptors and how many points should apply now you need to try to prove it. You could for example:
- Keep a diary for a period to show the problems and how often they affect you, this is often the most useful evidence of all.
- Get your carers, relatives neighbours to write a letter about how they see your condition affecting you.
- Get evidence from any medics or therapists you have contact with.
- You may have recent hospital reports relating to your condition.
- You may have Occupational Health reports relating to your work or occupational pension.
You need to ensure your evidence is clear succinct and demonstrates that you fit particular descriptors
This all takes
time but DO NOT delay in requesting the Revision (remember there is a
one month time limit) you can request a revision and tell them there
is more evidence to follow, better this than missing the time limit.
- Ask for a reconsideration
You can often ask by telephone but if you do follow this up in writing.
The best way is probably to write a letter, this means you can keep a copy of what you have said. Writing the letter also helps you get your thoughts in order, a good letter with good evidence will hopefully solve the problem at this stage without the time and worry of having to go to appeal and a good letter can form to basis of the case you present if you do have to go to appeal.
Write a letter to ask for a revision (make it clear what you are asking for), you could open with a brief background of your condition, then itemise any shortcomings in the written decision, any points where you disagree and anything they have missed
Then set out your case.
- You can state which descriptors you think should apply and why you think so.
- You can give an indication of how many points you think you score, relate this to any evidence you are sending.
- Number each item of evidence and use these numbers when you refer to it.
- Quote your name, address, National Insurance Number and any reference numbers on each sheet and each piece of evidence.
Copy, send and record
Make sure you keep a copy of your letter and any evidence and send your letter and evidence by a method that you can prove it was sent. Make sure that you keep to any time limits.
You still think the decision is wrong
If you have been informed of the outcome of the revision and you still disagree with the decision you can (in most instances) apply for the case to be considered by the First Tier Tribunal (FTT), which is independent from the department that made the decision you are challenging.
There is a strict time limit for application for an appeal (usually one month from the date on the letter informing you of the decision), this letter should tell the time limit and what to do.
There is provision for late appeals in very limited circumstances but you have to show evidence of a good reason for being late and apply at the first possible opportunity. It is best to avoid this situation if possible.
The 'tips on what to do if you want to challenge a decision' (see above) apply equally to an appeal
The first step is to get a copy of the full review decision, so that you can challenge points you disagree with.
You apply for an Appeal on a specific form, generally an SSCS1 available on the www.gov.uk website, (there are some exceptions to this e.g. for Housing Benefit you use a form issued by the Local Council, so seek advice if in doubt).
You can name a representative on the appeal form, e.g. someone from an advice organisation, a solicitor, (your representative will then be sent copies of any paperwork).
Make sure you copy the appeal form and any evidence you send and keep proof that it was sent.
Do not miss the time limit. You can send the form to ‘register’ your appeal and say you will be sending further evidence but make sure you clearly state the reason why you are appealing on the form and make sure you send any further evidence within reasonable time.
It is best to write out your case in what is called a submission, hopefully the letter you sent for your revision will be good enough to use as the basis for this and all you will need to add is the points in the review decision you disagree with and why you disagree and to add any additional evidence you have not already sent.
Keep this submission as brief as possible and keep to the point, you can send it with your appeal form but it is likely that your will not be able to get it ready before the time limit so you can send it later. Make sure you send it to reach the tribunal offices at least 10 days before your hearing. You want the tribunal to read and understand your case as clearly as possible before the hearing.
Evidence packSometime after the Tribunal receives your appeal form you will be sent a pack of papers this will contain all of the evidence they have received, each page will be numbered, there are usually 70 to 100 pages, and will include copies of your claim form, any medical assessment, the decision makers decision. You will need to go through this pack carefully to see what you disagree with, so it is probably better to finalise your submission after you have this pack and to use the page number in the pack if you refer to an item in your submission.
As the tribunal receives further evidence( e.g. your submission) you will be sent further numbered copies (sounds obvious but make sure you keep it all together).
At some point the Tribunal will send you an ‘Enquiry Form’, This is quite simple, it asks you to confirm that you want to continue with your appeal, if you want a face to face hearing, if you have a representative and if you will attend a hearing at short notice
There is a 14 day period to return this form, it is vital you return it in time otherwise the tribunal can ‘Strike Out’ (cancel) your appeal. Or go ahead and judge the case on paper.
The tribunal hearing
You should be given at least 14 days notice of a hearing (unless you opted for a short notice hearing on the enquiry form), the hearing is open to the public but it is highly unlikely that a member of the public will attend. There may be a ‘Presenting Officer’ who will put the case for the department who’s decision you are challenging but often there is not and that departments case is judged solely on their paper evidence (which you have already received in the evidence pack).
Make sure you attend the hearing, if for any reason you can’t attend (e.g. because you are too ill) contact the Tribunal offices as early as possible and ask for the hearing to be adjourned. You have to have a very good reason for not attending (you will also need evidence), if you do not attend without good reason they may make a decision without your presence.
Take someone with you, for support and to take notes of what happens.
The judge has wide discretion about how the hearing proceeds but you should always be given a fair chance to put your case.
The hearing can be adjourned e.g. for more evidence to be obtained.
You may be given the decision at the hearing and given a ‘decision notice’ or be sent the decision within a few days,
You may receive a ‘statement of reasons’ that outlines why the tribunal made the decision, if not ask for a copy.
The judge will make a record of the proceedings this is kept by the Tribunal for 6 months, ask for a copy if you disagree with the outcome of the hearing.
You still disagree with the decision
The First Tier Tribunal (FTT) decision is as far as most appeals will go, in very limited circumstances, decisions can be ‘set aside’ (and a new hearing will be held), or either side can appeal to the ‘Upper Tribunal’, these are complex areas and beyond the scope of this item but if you have any doubt about your appeal decision it is important to act quickly and seek specialist advice.
circumstances have changed and you think your benefit should increase
If your condition changes you can ask for the department that made the decision to make a new decision, this will usually be because you feel your condition has become worse, this is in effect a request for a type of revision usually called a Supersession (you can of course ask for a supersession if you improve but not many people do), if your supersession is successful your benefit will be changed, if not you can then go through the ‘mandatory revision and appeal process .
To ask for a supersession you need to consider all of the points above relating to revisions.
N.B .If you are still receiving Disability Living Allowance (DLA) and you ask for a Supersession it will end your DLA award and trigger a Personal Independence Payment (PIP) claim.
Because of the difference in qualifications for these two benefits some people will be better off receiving PIP.
BUT some will be worse off or receive no PIP at all, so will be better off waiting till they convert to PIP as a result of Welfare reforms which are taking place over the next few years.
If you are in any doubt about what to do or feel you need help seek advice
You can get free advice from these organisations.
Citizen's Advice Shropshire03444 99 11 00 www.adviceguide.org.uk
(for both Shropshire and Telford and Wrekin residents)
(01743) 539201 www.a4u.org.uk