Children's Handbook Scotland | 2022/23Chapter 2: Claims, decisions and challenges 3. Challenging decisions and complaints
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3. Challenging decisions and complaints
Appeals
Most decisions about benefit or tax credit entitlement can be challenged by appealing to an independent tribunal. In most cases, you first have to ask for the decision to be looked at again (see below). Decisions about Scottish Welfare Fund payments can be challenged initially by requesting an internal review and then by applying to the Scottish Public Services Ombudsman for a further review. Decisions about council tax reduction (CTR) can be challenged initially by asking for an internal review (within two months of the decision), and then by applying to the Council Tax Reduction Review Panel (within 42 days of the review decision) for a further review.
Decisions about benefits administered by Social Security Scotland (SSS) can be challenged by asking for a ‘redetermination’ (within 31 days of the decision being notified to you, or 42 days for child disability payment, adult disability payment and child winter heating assistance), and then by appealing to a First-tier Tribunal (within 31 days of the redetermination being notified to you). These time limits can be extended to one year.1SCP Sch paras 14(3) and 21 SCP Regs
Other benefits ss41(4)(b) and 48 SS(S)A 2018
Decisions about all other benefits and tax credits apart from housing benefit (HB) and employment support allowance in some circumstances can usually only be appealed against once you have asked for a revision or review (often called a ‘mandatory reconsideration’). If you want to challenge an HB decision, you can appeal without first having to ask for a mandatory reconsideration. The normal time limit for asking for a mandatory reconsideration is one month from the date of the decision being challenged, or 30 days for tax credits. This time limit can be extended by up to one year if you have special reasons for applying late and it is reasonable to grant your application. If a late application is refused, you may be able to appeal to the First-tier Tribunal provided it is within the absolute time limit of 13 months.2R (CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC) reported as [2018] AACR 5
If you are still unhappy with a decision following a mandatory reconsideration, you can appeal to the First-tier Tribunal.
You must appeal about a decision on a Department for Work and Pensions (DWP) benefit within one month of the date of the mandatory reconsideration decision, or within 30 days if it is an appeal about tax credits. This time limit can be extended by one year from the date the ordinary time limit expired. If your appeal is late, you must give reasons why. The time limit for appealing a decision made by SSS is 31 days from the date you were notified of the redetermination decision. This time limit can be extended to up to one year from the date you were notified of the redetermination.3s48 SS(S)A 2018 A late appeal can be accepted by the First-tier Tribunal if it is fair and just to do so.4rr2 and 5(3)(a) TP(FT) Rules; s48 SS(S)A 2018
 
1     SCP Sch paras 14(3) and 21 SCP Regs
Other benefits ss41(4)(b) and 48 SS(S)A 2018 »
2     R (CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC) reported as [2018] AACR 5 »
3     s48 SS(S)A 2018 »
4     rr2 and 5(3)(a) TP(FT) Rules; s48 SS(S)A 2018 »
How to appeal
You must usually appeal in writing, preferably using the appropriate appeal form (for benefits administered by SSS, your appeal must be on the correct form). For HB and CTR, use the form provided by your local authority. For tax credits, child benefit and guardian’s allowance, use form SSCS5. For benefits administered by SSS, appeal using the form you have been sent with the redetermination notice or telephone 0800 182 2222. For other benefits, use form SSCS1.
For more information on appeals and on other ways of changing benefit and tax credit decisions (revisions and supersessions), see CPAG’s Welfare Benefits and Tax Credits Handbook.
Complaints
If you experience delays in getting your benefit or tax credit claim decided, or if you are unhappy with the service you receive in some other way, you could use the DWP, HM Revenue and Customs (HMRC), SSS or local authority complaints procedure.
Department for Work and Pensions complaints
Complaining about the Department for Work and Pensions
The DWP has a complaints procedure that applies to all its agencies, including the Pension Service and Jobcentre Plus.
The DWP’s preferred method of dealing with complaints is by telephone, although for jobseeker’s allowance and universal credit there is an online complaints service at makeacomplaint.dwp.gov.uk. To complain, contact the office which dealt with your claim. If you do not have contact details, check the ‘Who to contact’ section at gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure. If you are still dissatisfied, you can ask for your complaint to be dealt with by the DWP Complaints Handling Team. Someone from this team should contact you within 15 days to discuss your complaint and tell you the outcome or advise how long it will take to deal with your complaint if it is going to take longer.1gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure If you are not satisfied following this process, you can complain to the Independent Case Examiner (ICE). You may also have grounds to make a complaint to the Ombudsman (see here).
Complaining to the Independent Case Examiner
The ICE deals with complaints about DWP agencies and its contracted providers. A complaint can only be made to the ICE if you have already completed the complaints procedure of the agency concerned. Complaints can be made by telephoning 0800 414 8529, in writing to PO Box 209, Bootle L20 7WA or by emailing ice@dwp.gov.uk. You need to give all the relevant information. A complaint should be made within six months after the final response from the agency you are complaining about.
The ICE first considers whether or not it can accept the complaint. If it can, it will attempt to settle it by suggesting ways in which you and the agency can come to an agreement. If this fails, the ICE prepares a formal report, setting out how the complaint arose and how it believes it should be settled. The ICE considers whether there has been maladministration. It cannot deal with matters of law or issues that are subject to judicial review action or under appeal.
 
1     gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure »
HM Revenue and Customs complaints
 
Complaining to HM Revenue and Customs
You can complain about how HMRC has dealt with your tax credit, child benefit or guardian’s allowance claim or with your national insurance credits or contributions, online using a Government Gateway account, by telephone or in writing (see gov.uk/complain-about-hmrc). If you are not happy with the initial response (‘first-tier review’), ask HMRC to review your complaint (‘second-tier review’). The review should be carried out by a different customer service adviser, who will give you HMRC’s final reply to your complaint.
If you are not happy with HMRC’s final reply, you can ask the Adjudicator to look into it and recommend appropriate action.
 
Complaining to the Adjudicator
The Adjudicator’s Office can investigate complaints about the way in which HMRC deals with tax credits, child benefit and guardian’s allowance. Complaints can be made about delays, staff behaviour, misleading advice or any other form of maladministration. The Adjudicator cannot, however, investigate disputes about matters of law. The Adjudicator can only investigate a complaint if you have first exhausted the HMRC internal complaints procedure. A complaint should be made in writing to the Adjudicator’s Office or by using either the online or downloadable form available at gov.uk/guidance/contact-the-adjudicators-office. If you have problems, you can telephone the Adjudicator’s Office on 0300 057 1111. A complaint should be made within six months of the final correspondence with HMRC.
The Adjudicator can recommend that compensation be paid, and HMRC should follow her/his recommendations in all but exceptional circumstances. If you are unhappy with the Adjudicator’s response to your complaint, you can ask your MP to put your complaint to the Ombudsman (see here). As well as looking at your complaint about HMRC, the Ombudsman may also look into the way in which the Adjudicator has investigated your complaint.
Using your MP
If you are not satisfied with the reply you receive after you have made a complaint about the DWP or HMRC, the next step is to take up the matter with your MP.
Most MPs have surgeries in their areas where they meet constituents to discuss problems. You can get the details of your MP and how to contact her/him from members.parliament.uk/FindYourMP or from the House of Commons Enquiry Service (tel: 0800 112 4272). You can either go to the surgery, email or write to your MP.
Your MP will probably want to write to the benefit authority for an explanation of what has happened. If you are not satisfied with the reply, the next stage is to complain to the Ombudsman (see here).
Social Security Scotland complaints
If you are not happy about the way you have been treated by SSS, you can complain by telephone (tel: 0800 182 2222; Relay UK service available; if you are a British Sign Language user, you can use the ContactScotland-BSL app), in writing (Social Security Scotland, PO Box 10304, Dundee DD1 9FZ) or online at socialsecurity.gov.scot/contact/feedback/how-to-make-a-complaint. SSS states it will try to resolve your complaint within five working days, unless there are exceptional circumstances. If you are still unhappy with the outcome after this, you can ask for your complaint to be looked at again (a ‘stage 2’ complaint). SSS states that it will try to resolve your complaint within 20 working days.1mygov.scot/complain-social-security-scotland If you are still unhappy after your complaint has been considered by SSS, you can complain to the Scottish Public Services Ombudsman (see here).
 
1     mygov.scot/complain-social-security-scotland »
Local authority complaints
Local authorities are required to have a complaints procedure and you should ask for details of how this works. If you are unable to obtain the formal procedure, begin by writing to the supervisor of the person dealing with your claim, making it clear why you are dissatisfied. If you do not receive a satisfactory reply, take up the matter with someone more senior in the department and ultimately the principal officer. Send a copy of the letter to your local councillor and to the councillor who chairs the council committee responsible for HB/CTR, or the Scottish Welfare Fund, as local authority officers are always accountable to the councillors. If this does not produce results, or if the delay is causing you severe hardship, consider a complaint to the Scottish Public Services Ombudsman (see here) or judicial review (see here).
Complaining to the Ombudsman
The Ombudsman investigates complaints from members of the public who believe they have experienced an injustice because of maladministration by a government department. Maladministration means poor administration and can include avoidable delays, failure to advise about appeal rights, refusal to answer reasonable questions or respond to correspondence, discourteousness, racism or sexism. The Parliamentary and Health Service Ombudsman deals with complaints about central government and the Scottish Public Services Ombudsman deals with complaints about local government and SSS.
The Ombudsman cannot usually investigate a complaint unless you have first exhausted the internal complaints procedure. However, if the authority is not acting upon your complaint, or there are unreasonable delays, this delay may also form part of your complaint. The normal time limit for lodging a complaint with the Ombudsman is 12 months from the date you were notified of the matter you are complaining about, although it is possible for a complaint which is made after 12 months to be looked at if there are good reasons for the delay.
 
The Parliamentary and Health Service Ombudsman
The Parliamentary and Health Service Ombudsman deals with complaints about central government departments such as the DWP and HMRC, as well as any agencies carrying out functions on their behalf. In order to make a complaint, you must contact your MP, who will then refer the complaint to the Ombudsman. See here for how to contact your MP. The Ombudsman can only investigate complaints of maladministration and not disputes about entitlement, which should be dealt with by the First-tier Tribunal. The Ombudsman has extensive powers to look at documents held by the benefit authority on your claim. You may be interviewed to check any facts. The Ombudsman can recommend financial compensation if you have been unfairly treated or experienced a loss as a result of the maladministration.
 
The Scottish Public Services Ombudsman
If you have tried to resolve your complaint with the local authority or with SSS but you are still not satisfied with the outcome, you can apply to the Scottish Public Services Ombudsman. The Ombudsman can investigate any cases of maladministration by local authorities or by SSS.
You can apply to the Ombudsman by writing to the office (see Appendix 1), downloading a complaint form or completing it online at spso.org.uk/how-to-complain-about-public-service. The Ombudsman has extensive powers to look at documents on your claim. You may be interviewed to check any facts. The Ombudsman can recommend financial compensation if you have been unfairly treated or experienced a loss as a result of the maladministration.
Compensation payments
You should expect prompt, courteous and efficient service from staff dealing with your claim. If you are dissatisfied with the way your claim has been administered, you can seek compensation. The organisations administering social security benefits and tax credits sometimes pay compensation if you can show that you have lost out through their error or delay.
The DWP uses a guide, Financial Redress for Maladministration,1gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff to help it decide when and how much compensation (known as an ‘extra-statutory’ or ex gratia payment) should be paid. HMRC’s Complaints and Remedy Guidance2gov.uk/hmrc-internal-manuals/complaints-and-remedy-guidance sets out when it makes ‘financial redress’.
 
1     gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff »
2     gov.uk/hmrc-internal-manuals/complaints-and-remedy-guidance »
Judicial review
If there is no right of appeal against a decision of a public body (such as the DWP, HMRC, SSS or local authority) or, in certain circumstances, if the body is refusing to make a decision or to exercise its discretion properly, you may be able to threaten and pursue judicial review proceedings. You cannot normally take judicial review action if you have another independent means of appeal (such as to the First-tier Tribunal). You need to consult a solicitor or law centre about judicial review. You should apply for judicial review within three months of the decision you want to challenge. This time period can be extended.1s27A Court of Session Act 1988
 
1     s27A Court of Session Act 1988 »