Appealing a Benefit Decision
Appeals to HM Courts & Tribunals Service
Note:
Most benefits administered by the DWP require the claimant to ask the department to look at the decision again, this is called a mandatory reconsideration.
There may be different rules for decisions made by HMRC and for decisions relating to Housing Benefit.
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Appealing to HMCTS
You can appeal a decision about your entitlement to benefits, for example Personal Independence Payment (PIP), Attendance Allowance (AA), Employment and Support Allowance (ESA) and Universal Credit.
There is a different process if you live want to appeal a decision made by Social Security Scotland.
Appeals are decided by the Social Security and Child Support Tribunal who are supported by HM Courts and Tribunals Service (HMCTS). The tribunal is impartial and independent of government.
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Rules and regs
The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008
Consolidated version- as subsequently amended up to 1 November 2022
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Useful information
An adviser guide to personal independence payment regulations & case law.
Errors in Law
The purpose of this information is to provide basic guidance on how to identify whether your client has grounds to appeal a decision of an Appeal Tribunal.
Appeals to the Upper Tribunal can raise complex legal matters and representatives will often be required to make written and oral submissions on the law. It is not a quick process and can take many months.
Advice and assistance may be available at:
- CPAG Advice for advisers – advice@cpagscotland.org.uk
- Aberdeen Law Project –abdnlawproject.com
- Civil Legal Assistance Office – www.clao.org.uk/where-we-are/aberdeen-and-aberdeenshire
What is meant by error of law?
You can only appeal from an appeal tribunal on the grounds of ‘error of law’.
What is meant by error of law?
The tribunal may have erred in law if it:
- Misinterpreted the law
- Reached a decision unsupported by evidence
- Failed to take into account and/or resolve conflicts of fact or opinion on material matters
- Gave weight to immaterial matters
- Made a mistake on a material fact.
- Acted in a procedurally unfair way
- Failed to give adequate reasons for its decision
Only material errors matter
The error of law must have been material to the tribunal’s decision. In other words, if the error of law would not have made a difference to the outcome of the appeal, it does not matter.
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How do I identify an error of law?
When you receive the appeal tribunal’s statement of reasons and record of proceedings, read through these documents carefully and compare them to your notes of the hearing. If there is anything that stands out as being incorrect, different to your recollection of proceedings or missing, there may be an arguable error of law.
It can be difficult to identify errors of law, particularly if you are not used to reading case law and pieces of legislation.
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The tribunal misinterpreted the law
- The law that applies to your client’s case is found in legislation and case law. For example:
- ADP – The Disability Assistance for Working Age People (Scotland) Regulations 2022
- CDP – The Disability Assistance for Children and Young People (Scotland) Regulations 2021
- Universal Credit Limited Capability for Work – The Universal Credit Regulations 2013, Schedule 6
- Universal Credit Limited Capability for Work and Work-related Activity – The Universal Credit Regulations 2013, Schedule 7
What to look out for
In assessing if the tribunal has misinterpreted the law, consider the following:
- Has the tribunal correctly interpreted and applied the statutory definition of words and phrases?
- You can find the correct meaning of words and phrases in the interpretation section of most pieces of legislation.
- Case law clarifies how words and phrases should be interpreted and applied. If you are unsure, try searching for the word or phrase on pipinfo.com or wcainfo.com and see what comes up.
- Some words and phrases that can be misinterpreted and misapplied are ‘engage socially’, ‘social support’, ‘safely’ etc.
- Has the tribunal applied a piece of legislation to your client’s case which was not in force at the time your client’s case arose?
- You can check whether a piece of legislation was in force at the relevant time at Legislation.gov.uk.
- Has the tribunal applied case law which is in conflict with a superior court decision, for example a decision of the Court of Appeal or Supreme Court?
- Do you feel that the outcome of the tribunal’s decision resulted in your client being treated differently because of their gender, nationality, disability, sexuality, ethnicity, religion or other status?
Example:
If the Tribunal have used the wrong criteria – as you probably know, ADP is based on a points system- with points being awarded for certain activities is accordance with how you can/can’t do the activity. So for example, (and here the guides will explain exactly what the test is for each activity section.) – if the tribunal said ‘he can prepare baked beans on toast therefore he can prepare food = 0 points.’ this would be an error of law, this is because the correct test for Descriptor 1 – preparing food – is to prepare a simple cooked meal for one using fresh ingredients’. Baked beans and toast are ready-prepared and not fresh ingredients, which would include meat and vegetables – peeling chopping etc.
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The tribunal reached a decision unsupported by evidence
The tribunal’s record of proceedings and statement of reasons are important in considering if this ground of appeal applies. You will need to consider if the conclusions reached by the tribunal are supported by the evidence.
What to look out for:
- Did the tribunal consider all relevant evidence, particularly medical evidence?
- Did the tribunal consider evidence that post-dated the Department’s decision?
- Did the tribunal refuse to hear from a relative or friend of the claimant?
- In its statement of reasons, did the tribunal refer to evidence that is not reported in the record of proceedings?
- If you were at the hearing, do you have notes about evidence which is not recorded in the record of proceedings or mentioned in the statement of reasons?
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The tribunal failed to take into account and/or resolve conflicts of fact or opinion on material matters
The tribunal’s statement of reasons might indicate it heard conflicting evidence as part of your client’s appeal. For example, the report of the health assessor might conflict with a GP or a consultant report. The tribunal should indicate which source of evidence it preferred and why.
What to look out for:
- Did the report of the health assessor conflict with the report of a GP, who has known the claimant for a long time, or a consultant, who has specialist knowledge of the claimant’s condition? Did the tribunal identify the conflict?
- Did its reasons address the conflict and explain why it preferred, accepted or rejected evidence?
- Did the tribunal prefer the evidence of a health assessor even though it conflicted with the claimant’s prescribed medication or ongoing therapy or medical intervention?
- Did the tribunal fail to deal with evidence raised by the claimant in respect of an ESA award when considering a ADP appeal or vice versa?
Example:
Error of fact – if throughout the tribunal and within all the papers in the appeal bundle you said ‘I can not walk more than 20 metres‘. but the Tribunal said ‘Appellant is clear, and says that he can walk over 200m = 0 points‘ this would clearly be an error of fact, which becomes an error of law because the tribunal’s decision is not based on correct evidence. No tribunal could correctly make that decision.
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The tribunal gave weight to immaterial matters
The tribunal’s statement of reasons might indicate that it took into account or gave undue weight to matters when it should not have done. For example, in assessing the claimant’s capability for work, the tribunal might have given undue weight to the claimant’s voluntary work. When assessing the claimant’s ability to communicate, the tribunal might have given undue weight to their ability to lip read.
What to look out for:
- Has the tribunal given undue weight to aspects of the claimant’s lifestyle which you do not consider relevant?
- Has the tribunal given undue weight to the claimant’s appearance at the appeal hearing?
- Has the tribunal given undue weight to things the claimant did in the past, for example a holiday?
- Has the tribunal given undue weight to things the claimant has done since the date of decision, for example moving to live independently?
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The tribunal made a mistake on a material fact
The tribunal’s statement of reasons might reveal that it was mistaken about a particular fact. This will only be considered an error of law if it was not caused by the claimant or their representative and if unfairness resulted.
What to look out for:
- Did the tribunal make a mistake about your client’s medical conditions?
- Did the tribunal make an incorrect assessment of the length of a journey or the location of a place?
- Did the tribunal make a mistake as to your client’s living arrangements?
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The tribunal acted in a procedurally unfair way
This ground is concerned with whether the tribunal followed correct procedure when hearing the claimant’s case.
The tribunal should follow the procedure set out in:
- The Social Security and Child Support (Decisions and Appeals) Regulations 1999
- The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 and The First-tier Tribunal for Scotland Social Security Chamber (Rules of Procedure) Amendment Regulations 2018.
The tribunal should also ensure the claimant’s right to a fair hearing under Article 6 ECHR and it should adhere to principles of natural justice such as:
- The rule against bias
- The right to a fair hearing, including the right of your client to present and challenge evidence.
What to look out for:
- Did the tribunal proceed in your client’s or their representative’s absence without giving them a proper opportunity to attend the hearing?
- Did the tribunal rely on evidence that your client or their representative did not see or have an opportunity to challenge?
- Did the tribunal give your client or their representative an opportunity to properly participate in the hearing?
- Did your client have previous dealings with any of the panel members?
- Does the claimant have particular vulnerabilities which you feel were not accommodated during the hearing? For example, do they need an interpreter but none was provided?
- Do you feel the tribunal treated your client differently because of their gender, nationality, disability, sexuality, ethnicity, religion or other status?
- Did the tribunal proceed with the hearing even though your client has another linked appeal before the Commissioner or outstanding criminal proceedings in relation to the same facts?
- Has the tribunal considered evidence that was obtained illegally or improperly?
Example:
Was the procedure correct – were you allowed to speak and give evidence freely, was there a bias?
So for example, if the tribunal said ‘we are running late, you have 1 minute to put your case, please hurry up!‘ This might suggest that the tribunal were not really giving you a chance to speak, or there might be something more obvious – so if they asked you where you came from, and you answered ‘I live in Aberdeenshire‘, and you heard the the tribunal judge then say ‘ well, all the people in Aberdeenshire are time wasters, and shouldn’t claim benefits’, this would suggest that the judge is bias, which could be an error of law.Was the tribunal properly constituted, were you given proper notice of the hearing? These are all procedural errors and if breached are likely to be errors of law that can be appealed.
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The tribunal failed to give adequate reasons for its decision
The statement of reasons is important in identifying if this ground applies. From the statement of reasons, the client should be able to understand why they have not been successful in their appeal.
What to look out for:
- Does the statement of reasons adequately explain why the tribunal reached a certain decision?
- In an ADP appeal, does the statement of reasons deal with all the descriptors in dispute? Does it deal with the daily living components and mobility components separately?
- If the tribunal has made a decision on procedure which is disadvantageous to your client, has it given sufficient detail to explain why it made that decision?
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Links, guides and info
Public Law Project – Guide to Making a social security appeal
This guide is intended for individuals who are attending the First-Tier Tribunal for an appeal against a decision taken about a benefit. There is also a short section on appeals in the Upper Tribunal.
Public Law Project – The Basics of Tribunal Representation
Have you ever made an application to a tribunal and failed to get what you wanted? Have you ever wondered why? Have you ever thought about how you could have done better? If you have answered yes to any of those questions , this guide is for you. Using specific examples and this handy guide will help you to:
- Know what the rules say
- Know what the rules mean
- Know what you have to do
- Know how to get what you want
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