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.
Appeals to First-tier Tribunal for Scotland
Note:
Most benefits administered by Social Security Scotland require the claimant to ask the department to look at the decision again, this is called a re-determination.
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Social Security Chamber – First-tier Tribunal for Scotland (scotcourts.gov.uk)
The Social Security Chamber of the First-tier Tribunal for Scotland was set up on 22 November 2018 as set out in the Social Security (Scotland) Act 2018. The Chamber deals with appeals arising from a decision by the Social Security Scotland Agency acting on behalf of Scottish Ministers.
Benefits you can appeal
At present the only Social Security Scotland benefits that have a right of appeal to the Chamber are:
- Best Start Grant
- Pregnancy and Baby Payment (introduced 10 December 2018)
- Early Learning Payment (introduced 27 April 2019)
- School Age Payment (introduced 3 June 2019)
- Funeral Support Payment (introduced 16 September 2019)
- Young Carer Grant (introduced 21 October 2019)
- Winter Heating Assistance for Children and Young People (introduced 23 November 2020)
- Scottish Child Payment (introduced 15 February 2021)
- Child Disability Payment (introduced 26 July 2021)
- Adult Disability Payment (introduced 29 August 2022)
These benefits are awarded by Social Security Scotland. In time more benefits will be devolved to Scotland and all appeals will be heard by this Chamber.
- Email: sscadmin@scotcourtstribunals.gov.uk
- Telephone: 0141 302 5858
- Social Security Chamber, Scottish Courts and Tribunals Service, Glasgow Tribunals Centre, 20 York Street, Glasgow G2 8GT
- For further information: www.socialsecuritychamber.scot
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Rules and regs
Legislation relating to Tribunals in Scotland
- The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018
- The First-tier Tribunal for Scotland Social Security Chamber (Rules of Procedure) Amendment Regulations 2018
- The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018
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Time Limits
Request a redetermination within 42 days
You should request a redetermination within 42 days of the date of being notified of the determination. A late request, up to one year from the date you are notified, can be accepted if Social Security Scotland decides there is a good reason for it being late. If Social Security Scotland refuses to accept the late request, you can appeal to the First-tier Tribunal for Scotland.
Social Security Scotland has a duty to make a redetermination within 56 days
Social Security Scotland also has a duty to make a redetermination within 56 days of receiving a valid redetermination request. If they cannot meet this time limit they must inform you of that, and that you have an immediate right of appeal to the First-tier Tribunal against the determination. You must appeal within 31 days of receiving notice that they have not met the time limit.
You must appeal within 31 days
You must appeal within 31 days of being notified of the redetermination. You should send the appeal form to Social Security Scotland who will then forward this to the first-tier tribunal within seven days. If you miss the time limit for appealing, you can still appeal within a maximum time limit of one year if you have good reasons for the late appeal. If your appeal is late you must explain why so that the First-tier Tribunal can decide if you have good reasons for a late appeal.
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Appeal Forms
You can use these forms to appeal when either:
- you disagree with a re-determination decision about your Adult or Child Disability Payment.
- Social Security Scotland ran out of time to make a re-determination decision about your Adult or Child Disability Payment.
- Appealing a decision form – Use this form if you want to request an appeal for:
- Best Start Grant,
- Funeral Support Payment,
- Scottish Child Payment,
- Young Carer Grant,
- Child Winter Heating Assistance or
- Winter Heating Payment.
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Decision Making Guides
Adult Disability Payment
The Decision Making Guide is for case managers in Social Security Scotland. They use this guide to make decisions on new and existing Child Disability Payment (CDP) and Adult Disability Payment (ADP) cases.
Please note that the decision making guidance is continually improved and updated. The documents on this webpage are therefore subject to change.
Third party authorisation form
- Third party authorisation form.
- Use this form to authorise someone to speak to Social Security Scotland on your behalf.
- Send the completed form to: Social Security Scotland, General Enquiries, PO Box 10301, Dundee DD1 9FY
Client Representative guidelines
Purpose of the Client representative guidelines
The guidelines have been prepared by the Scottish Government for Social Security Scotland staff. They promote consistency of approach across the devolved social security system and signpost to other internal guidance that may be linked.
They describe:
- the main actors within the social security system that provide support to clients of Social Security Scotland; and
- their roles, responsibilities
- the processes that need to be followed to enable them to deal with Social Security Scotland
- how Social Security Scotland should respond where clients appear to be at risk
Part 5 of the guidelines sets out the different situations where Social Security Scotland itself may appoint another person or organisation to act for a client, and the policies and processes it will follow.
You can read the guidance in the links below.
- Client Representative Guidelines Part 1 Introduction to Client Representative guidelines Updated V 1 2 October 2023 (141 kb PDF)
- Client Representative Guidelines Part 2 Parents and legal guardians of children (406 kb PDF)
- Client Representative Guidelines Part 3 Power of Attorney (493 kb PDF)
- Client Representative Guidelines Part 4 Guardians and Court Appointed Acting Bodies (642 kb PDF)
- Client Representative Guidelines Part 5 Introduction to Social Security Scotland Appointees (327 kb PDF)
- Client Representative Guidelines Part 5.1 Appointees for children (600 kb PDF)
- Client Representative Guidelines Part 5.2 Appointees for adults regarded as incapable (473 kb PDF)
- Client Representative Guidelines Part 5.2 (1-5) Appointees assessment incapacity (822 kb PDF)
- Client Representative Guidelines Part 5.2 Appendix A Tips and sample questions (153 kb PDF)
- Client Representative Guidelines Part 5.2 Appendix B Case study Visit (366 kb PDF)
- Client Representative Guidelines Part 5.2 Appendix C Case Study Completed Appointee Referral Form watermarked version 24 Jan 2022 (894 kb PDF)
- Client Representative Guidelines Part 5.3 Executors and appointees for the deceased (542 kb PDF)
- Client Representative Guidelines Part 6 DWP appointees (359 kb PDF)
- Client Representative Guidelines Part 7 Third party representatives (170 kb PDF)
- Client Representative Guidelines Part 8 Advocacy (372 kb PDF)
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Claiming expenses
You may be able to claim for reasonable expenses for going to the tribunal hearing, for example:
- travel expenses to cover your fare if you use public transport
- travel expenses of 25p per mile for taking a car or motorbike, 27p per mile if you’re travelling with a supporter on a car or motorbike (If you’re travelling together with a supporter, only one of you can claim for travel expenses)
- if you are away from home for less than 10 hours, you can claim up to a maximum of £4.25 or more than 10 hours, you can claim up to a maximum of £11.40
- you may also be able to claim for loss of earnings
Related Information
Appeal against the process
What happens if you disagree with a process decision by Social Security Scotland?
If you feel a process decision by Social Security Scotland is not correct, you can make an appeal. This is called a process appeal.
The reasons to make a process appeal are that:
- Social Security Scotland informed you that your application for benefits has not been accepted.
- Social Security Scotland informed you that your re-determination request did not contain the correct information.
- Social Security Scotland informed you that your re-determination request was late and that you had no good reason for not requesting this sooner.
If you feel a process decision by Social Security Scotland is not correct you can appeal, using the process decision appeal form, directly to the Chamber. You should send the form by email or post to the Chamber.
What happens next?
We will acknowledge your appeal and will contact Social Security Scotland for information about their reasons for refusing your application for benefit. We will then contact you.
Related Information
Time limit
You must send us your appeal form within 31 days from the date on the decision letter from Social Security Scotland. If you miss this date you can apply for permission to appeal but that application must be received by us, at the latest within 1 year from the date of the decision.
In your application you will have to explain why you were unable to meet the deadline.
Appeal about the process (socialsecuritychamber.scot)
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Appeals to the Upper Tribunal of HMCTS
Following your Tribunal Hearing, you receive your Decision Notice.
If you’re unhappy with the tribunal’s decision you may be able to get a decision cancelled (‘set aside’) or appeal to an Upper Tribunal.
First you would need to write to HMCTS and ask for ‘the first tier tribunal decision to be set aside and/or for leave to be granted to appeal to the Upper Tribunal’. The regional judge will look at your case and will decide if there is an error of law. He can agree, and then it is likely that the decision will be set aside, and a new hearing will be set up, with different tribunal people. If there is an error of law of importance, then the case can be sent directly to the Upper Tribunal for a ruling on the law – the Upper Tribunal judge can make a new decision or again might think another hearing is required.
A party can request a review of a decision made by the First-tier Tribunal on the basis of a point of law. A review on a point of law can be brought when a party thinks the First-tier Tribunal made a legal mistake in making its decision (See ‘Errors in Law’).
If the application is accepted as valid, the First-tier Tribunal reviews the decision at a hearing. In a review the Tribunal can:
- take no action
- set the decision aside. This means they cancel it
- correct a minor or accidental error in the decision
Where a decision is set aside by the First-tier Tribunal in a review it can:
- re-decide the matter
- refer that matter to the Upper Tribunal
- make any other order that it thinks is appropriate
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Form UT1
You must apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal.
Use Form UT1 if the First-tier Tribunal:
- refuse you permission to appeal or
- your application was not admitted because you were late or
- the First-tier Tribunal has granted you permission to appeal to the Upper Tribunal
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Appealing to the Upper Tribunal for Scotland
Following your Tribunal Hearing, you receive your Decision Notice.
If you’re unhappy with the tribunal’s decision you may be able to get a decision cancelled (‘set aside’) or appeal to an Upper Tribunal.
First you would need to write to Tribunal Scotland and ask for ‘the first tier tribunal decision to be set aside and/or for leave to be granted to appeal to the Upper Tribunal’. The regional judge will look at your case and will decide if there is an error of law. He can agree, and then it is likely that the decision will be set aside, and a new hearing will be set up, with different tribunal people. If there is an error of law of importance, then the case can be sent directly to the Upper Tribunal for a ruling on the law – the Upper Tribunal judge can make a new decision or again might think another hearing is required.
A party can request a review of a decision made by the First-tier Tribunal on the basis of a point of law. A review on a point of law can be brought when a party thinks the First-tier Tribunal made a legal mistake in making its decision (See ‘Errors in Law’).
If the application is accepted as valid, the First-tier Tribunal reviews the decision at a hearing. In a review the Tribunal can:
- take no action
- set the decision aside. This means they cancel it
- correct a minor or accidental error in the decision
Where a decision is set aside by the First-tier Tribunal in a review it can:
- re-decide the matter
- refer that matter to the Upper Tribunal
- make any other order that it thinks is appropriate
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How to request a Statement of Reasons and Record of Proceedings
Write to or email sscadmin@scotcourtstribunals.gov.uk
Use or adapt the below template:
First-tier Tribunal for Scotland
Social Security Chamber
Glasgow Tribunals Centre
Third Floor
20 York Street
Glasgow
G2 8GT
Request for statement of reasons and record of proceedings
Dear sir or madam
RE:
Tribunal ref:
Date of tribunal hearing:
I refer to the above appeal hearing.
As a named representative I would be grateful if we could be provided with a full statement of reasons together with a record of proceedings, as per Tribunal Procedure rules.
Many thanks for your assistance in this matter.
Regards
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Scottish Courts & Tribunals
This guidance is for individuals who have applied for benefits from Social Security Scotland and who have:
- appealed to the First-tier Tribunal for Scotland about their determination
- do not agree with the decision made by the Tribunal
- want to challenge the decision.
The Upper Tribunal can agree with and uphold the decision made by the First-tier Tribunal or if it does not agree with the decision, it can quash the decision. If it quashes the decision of the First-tier Tribunal, the Upper Tribunal can do any of the following:
- re-make the decision
- send the case back to the First-tier Tribunal and give them directions on how to reconsider the case
- make such order as it sees fit.
Individuals and Social Security Scotland can appeal decisions of the First-tier Tribunal to the Upper Tribunal
The parties must apply by letter or email to the First-tier Tribunal for permission to appeal one of its decisions (The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018, para 33(1)).
If the First-tier Tribunal refuses permission, the party who has applied for permission to appeal must apply to the Upper Tribunal for permission for the decision to be appealed (Tribunals (Scotland) Act 2014, s.46(3)).
A party makes an appeal on a point of law when it thinks the First-tier Tribunal made a legal mistake with its decision.
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Links
- Social Security Scotland – Appealing decisions to the Upper Tribunal
- Upper Tribunal for Scotland – The Upper Tribunal hears appeals on decisions of the chambers of the First-tier Tribunal.
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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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