Mental Health and Benefits Handbook 1st edition - with new materialPart 3: Key topics Chapter 19: Getting a decision changed
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Chapter 19: Getting a decision changed
If you are trying to get a benefit decision changed, it can be difficult to know where to start.
If a benefit decision was right when it was first made but circumstances have changed (eg, you have a personal independence payment (PIP) award but your needs have now increased), see here (or here for adult disability payment (ADP) or child disability payment (CDP)).
If you disagree with a new decision about benefits (eg, a decision finding you fit for work or refusing your claim for PIP), you probably need to start here (or here for ADP and CDP).
If in doubt, it is always a good idea to seek independent benefit advice – see advicelocal.uk.
Key facts
    •In some circumstances, a benefit decision can be ‘revised’. Usually, this means it is changed with effect from the same date as the original decision.
    •In other circumstances, a benefit decision can be ‘superseded’. This means that it is changed with effect from a later date, often because of a change of circumstances.
    •If you disagree with a benefit decision, you can often challenge it through appeal.
    •Before starting an appeal about a DWP benefit, you usually need to make a request for revision, known as a ‘mandatory reconsideration request’.
    •The appeal process normally involves submitting an appeal form and written evidence and attending a hearing.
    •Appeals are decided by an independent tribunal. For most appeals about health-related benefits, a judge and a doctor (and sometimes a ‘disability qualified panel member’) form the panel which decides the appeal.
    •If you cannot appeal a benefit decision or if an appeal is not effective in resolving your problem, you may decide to make a formal complaint and/or challenge the decision through judicial review.
    •There are different rules for challenging decisions made by Social Security Scotland (often known as ‘determinations’).
1. General rules about revision and supersession
Revision 1A method of changing a benefit decision, (usually) effective from the date it was originally made. and supersession 2A method of changing a benefit decision some time after it was made, often because of a change in circumstances. are the two ways that a benefit decision can be changed.
Revision
Revision is about correcting a decision that was wrong when it was made. When a decision is revised,1HB Sch 7 para 3 CSPSSA 2000
Other DWP benefits s9 SSA 1998
 a new decision is made which usually has effect from the same date as the original one.2UC/PIP/new-style JSA&ESA Reg 21 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 3(3) CSPSSA 2000; reg 6 HB&CTB(DA) Regs
Other DWP benefits s9(3) SSA 1998; reg 5(1) SS&CS(DA) Regs
 There are two different types of revision, and the type you choose depends on how soon you dispute a decision.
Note: a revision request is sometimes known as a mandatory reconsideration 1The requirement to have a decision looked at again by the DWP before you can make an appeal. if it is one you are required to ask for before you can proceed with an appeal. There is more information about mandatory reconsideration requests on here.
 
1     HB Sch 7 para 3 CSPSSA 2000
Other DWP benefits s9 SSA 1998
 »
2     UC/PIP/new-style JSA&ESA Reg 21 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 3(3) CSPSSA 2000; reg 6 HB&CTB(DA) Regs
Other DWP benefits s9(3) SSA 1998; reg 5(1) SS&CS(DA) Regs
 »
‘Any grounds’ revisions
If you are disputing a decision that was made recently, it is always best to apply for an ‘any grounds’ revision. In most cases, you must apply within one month of being sent the decision, or within 13 months if there are reasons why you could not apply sooner.1HB Regs 2, 4(1)(a) and (4) and 5(3)-(6) HB&CTB(DA) Regs
UC/PIP/new-style JSA&ESA Regs 2, 3(2), 5(1)(b) and 6 UC,PIP,JSA&ESA(DA) Regs
Other DWP benefits Regs 1(3), 2(b), 3(1)(b) and 4 SS&CS(DA) Regs
 In practice, your request is almost always considered if it is received within 13 months, so do not give up if you have missed the one-month deadline.
You do not need to have any special reason to apply for an ‘any grounds’ revision, you just need to disagree with what has been decided. The decision maker must take a completely fresh look at the decision. They can only revise a decision based on your circumstances at the relevant time, but can take into account new evidence or information if it is about those circumstances.2UC/PIP/new-style JSA&ESA Reg 5(2)(a) UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(10) HB&CTB(DA) Regs
Other DWP benefits Reg 3(9)(a) SS&CS(DA) Regs
Late requests and special circumstances
When you make a late request for an any time revision, make sure that you explain why you did not apply sooner. There are some suggestions about relevant factors on here.
Example
After making a new claim for personal independence payment (PIP), Preeti gets a decision stating that she is not eligible. She does not agree with the decision but feels too unwell to do anything about it. A few months later, Preeti’s sister finds out about the decision and encourages her to get advice about challenging it. With her sister’s help, Preeti books an appointment with a welfare rights adviser who helps her to submit an ‘any grounds’ revision request (the adviser calls this a ‘mandatory reconsideration’ request – see here). The request includes reasons for lateness and it is accepted late on the basis of special circumstances.
 
1     HB Regs 2, 4(1)(a) and (4) and 5(3)-(6) HB&CTB(DA) Regs
UC/PIP/new-style JSA&ESA Regs 2, 3(2), 5(1)(b) and 6 UC,PIP,JSA&ESA(DA) Regs
Other DWP benefits Regs 1(3), 2(b), 3(1)(b) and 4 SS&CS(DA) Regs
 »
2     UC/PIP/new-style JSA&ESA Reg 5(2)(a) UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(10) HB&CTB(DA) Regs
Other DWP benefits Reg 3(9)(a) SS&CS(DA) Regs
 »
‘Any time’ revisions
If you are disputing a decision that was made some time ago, and you have missed the time limits for an ‘any grounds’ revision, you need to apply for an ‘any time’ revision. You can only do this if you have particular grounds for disagreeing with the decision. The decision maker may be restricted in which parts of the decision they can revisit.
Grounds for an ‘any time’ revision
The main grounds for an ‘any time’ revision are where there has been:
– an official error;1UC/PIP/new-style JSA&ESA Regs 2, 8 and 9(a) UC,PIP,JSA&ESA(DA) Regs
HB Regs 1(2) and 4(2)(a) HB&CTB(DA) Regs
Other DWP benefits Regs 1(3) and 3(5)(a) SS&CS(DA) Regs
 or
– a sanction decision;2UC/new-style JSA&ESA Reg 14(1)(a)-(c) UC,PIP,JSA&ESA(DA) Regs
Other DWP benefits Reg 3(5C), (6), (6A) and (7CD) SS&CS(DA) Regs
 or
– an award of a ’qualifying benefit’;3UC/PIP/new-style JSA&ESA Regs 8 and 12 UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(7B) HB&CTB(DA) Regs
Other DWP benefits Reg 3(7) and (7ZA) SS&CS(DA) Regs
 or
– an appeal against a decision;4UC/PIP/new-style JSA&ESA Regs 8 and 11(1)-(2) UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(1)(c) and (7) HB&CTB(DA) Regs
Other DWP benefits Reg 3(4A) and (5A) SS&CS(DA) Regs
 or
– a mistake about, or ignorance of, facts.5UC/PIP/new-style JSA&ESA Regs 8 and 9(b) UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(2)(b) HB&CTB(DA) Regs
Other DWP benefits Regs 3(5)(b)-(d) and 7A(1) SS&CS(DA) Regs
See CPAG’s Welfare Benefits and Tax Credits Handbook for more information.
 
1     UC/PIP/new-style JSA&ESA Regs 2, 8 and 9(a) UC,PIP,JSA&ESA(DA) Regs
HB Regs 1(2) and 4(2)(a) HB&CTB(DA) Regs
Other DWP benefits Regs 1(3) and 3(5)(a) SS&CS(DA) Regs
 »
2     UC/new-style JSA&ESA Reg 14(1)(a)-(c) UC,PIP,JSA&ESA(DA) Regs
Other DWP benefits Reg 3(5C), (6), (6A) and (7CD) SS&CS(DA) Regs
 »
3     UC/PIP/new-style JSA&ESA Regs 8 and 12 UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(7B) HB&CTB(DA) Regs
Other DWP benefits Reg 3(7) and (7ZA) SS&CS(DA) Regs
 »
4     UC/PIP/new-style JSA&ESA Regs 8 and 11(1)-(2) UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(1)(c) and (7) HB&CTB(DA) Regs
Other DWP benefits Reg 3(4A) and (5A) SS&CS(DA) Regs
 »
5     UC/PIP/new-style JSA&ESA Regs 8 and 9(b) UC,PIP,JSA&ESA(DA) Regs
HB Reg 4(2)(b) HB&CTB(DA) Regs
Other DWP benefits Regs 3(5)(b)-(d) and 7A(1) SS&CS(DA) Regs
 »
Supersession
Supersession usually happens when a decision was originally right, but has become wrong. When a decision is superseded, a new decision is made which takes effect from a later date than the original one.1HB Sch 7 para 4 CSPSSA 2000
Other benefits s10 SSA 1998
 The most common ground for supersession is that your circumstances have changed.
You can apply for a supersession even if the decision was made a long time ago, but the arrears of benefit you are paid can be limited. You must usually apply for a revision or appeal instead if you can.2UC/PIP/new-style JSA&ESA Reg 32 UC,PIP,JSA&ESA(DA) Regs
HB Reg 7(4) HB&CTB(DA) Regs
Other DWP benefits Reg 6(3) SS&CS(DA) Regs
 
1     HB Sch 7 para 4 CSPSSA 2000
Other benefits s10 SSA 1998
 »
2     UC/PIP/new-style JSA&ESA Reg 32 UC,PIP,JSA&ESA(DA) Regs
HB Reg 7(4) HB&CTB(DA) Regs
Other DWP benefits Reg 6(3) SS&CS(DA) Regs
 »
Grounds for supersession
The main grounds for supersession are:
    •where there has been a change of circumstances;1UC/PIP/new-style JSA&ESA Reg 23 UC,PIP,JSA&ESA(DA) Regs
    HB Regs 7(2)(a) and 7A(4) HB&CTB(DA) Regs
    Other DWP benefits Reg 6(2)(a) SS&CS(DA) Regs; Sch 2 para 25A(2) ESA(TP)(EA) No.2 Regs
    All Wood v SSWP [2003] EWCA Civ 53, reported as R(DLA) 1/03
     or
    •where the decision maker has obtained a new medical report and the decision is about work capability for universal credit (UC) or employment and support allowance (ESA), or is about the disability conditions for PIP;2Reg 26(1) UC,PIP,JSA&ESA(DA) Regs; regs 6(2)(r) and 7A(1) SS&CS(DA) Regs; CIB/4033/2003; R(IB) 2/05 or
    •for PIP, where you have failed to return a health and disability questionnaire or attend an assessment;3s80(5) and (6)WRA 2012; regs 8 and 9 SS(PIP) Regs; reg 26(2) UC,PIP,JSA&ESA(DA) Regs; KB v SSWP (PIP) [2016] UKUT 537 (AAC) or
    •where there has been a mistake about, or ignorance of, facts;4UC/PIP/new-style JSA&ESA Regs 24 and 31(a) UC,PIP,JSA&ESA(DA) Regs
    HB Regs 4(1)(b) and 7(2)(b) and (d) HB&CTB(DA) Regs
    Other DWP benefits Reg 6(2)(b) and (c) SS&CS(DA) Regs
     or
    •where a decision is legally wrong;5UC/PIP/new-style JSA&ESA Reg 24 UC,PIP,JSA&ESA(DA) Regs
    HB Reg 7(2)(b) HB&CTB(DA) Regs
    Other DWP benefits Reg 6(2)(b) SS&CS(DA) Regs
     or
    •after a qualifying benefit 1In general, any benefit which gives you entitlement to another benefit, or makes another benefit payable at a higher rate. has been awarded.6UC/PIP/new-style JSA&ESA Reg 23 UC,PIP,JSA&ESA(DA) Regs. For these benefits, although this counts as a change of circumstances, it takes effect differently to most such changes.
    HB Reg 7(2)(i) HB&CTB(DA) Regs
    Other DWP benefits Reg 6(2)(e) and (ee) SS&CS(DA) Regs
 
1     UC/PIP/new-style JSA&ESA Reg 23 UC,PIP,JSA&ESA(DA) Regs
HB Regs 7(2)(a) and 7A(4) HB&CTB(DA) Regs
Other DWP benefits Reg 6(2)(a) SS&CS(DA) Regs; Sch 2 para 25A(2) ESA(TP)(EA) No.2 Regs
All Wood v SSWP [2003] EWCA Civ 53, reported as R(DLA) 1/03
 »
2     Reg 26(1) UC,PIP,JSA&ESA(DA) Regs; regs 6(2)(r) and 7A(1) SS&CS(DA) Regs; CIB/4033/2003; R(IB) 2/05 »
3     s80(5) and (6)WRA 2012; regs 8 and 9 SS(PIP) Regs; reg 26(2) UC,PIP,JSA&ESA(DA) Regs; KB v SSWP (PIP) [2016] UKUT 537 (AAC) »
4     UC/PIP/new-style JSA&ESA Regs 24 and 31(a) UC,PIP,JSA&ESA(DA) Regs
HB Regs 4(1)(b) and 7(2)(b) and (d) HB&CTB(DA) Regs
Other DWP benefits Reg 6(2)(b) and (c) SS&CS(DA) Regs
 »
5     UC/PIP/new-style JSA&ESA Reg 24 UC,PIP,JSA&ESA(DA) Regs
HB Reg 7(2)(b) HB&CTB(DA) Regs
Other DWP benefits Reg 6(2)(b) SS&CS(DA) Regs
 »
6     UC/PIP/new-style JSA&ESA Reg 23 UC,PIP,JSA&ESA(DA) Regs. For these benefits, although this counts as a change of circumstances, it takes effect differently to most such changes.
HB Reg 7(2)(i) HB&CTB(DA) Regs
Other DWP benefits Reg 6(2)(e) and (ee) SS&CS(DA) Regs
 »
When a supersession takes effect
The general rule is that a supersession takes effect from:1UC/PIP/new-style JSA&ESA Sch 1 para 20 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 4(5) CSPSSA 2000
Other DWP benefits s10(5) SSA 1998
    •the date you applied for it (or, for UC, from the start of the assessment period in which you applied for it); or
    •if you did not apply for it, from the date that the decision maker made the supersession decision (or, for UC, from the start of the assessment period in which that decision was made).
There are many exceptions. The following is not a full list. See CPAG’s Welfare Benefits and Tax Credits Handbook for more information.
 
Reporting a deterioration
For PIP, disability living allowance (DLA) and attendance allowance (AA), when you ask the DWP 1The Department for Work and Pensions. A central government department that pays many benefits in Great Britain. for a supersession because your health has deteriorated, and the change means you are now entitled to a higher rate of benefit, you do not start being paid the higher rate (ie, the supersession will not take effect) until you have also satisfied the ‘qualifying/relevant period condition’ (see here for PIP, here for DLA and here for AA).
 
Getting a qualifying benefit
If you, your partner or a child included in your claim are awarded a ‘qualifying benefit’ that entitles you to an increase in your means-tested benefit, and arrears of the qualifying benefit are payable, your means-tested benefit can be increased and arrears paid for the same length of time.2UC/new-style JSA&ESA Regs 12 and 23 and Sch 1 para 31 UC,PIP,JSA&ESA(DA) RegsIS/old-style JSA&ESA/PC Regs 3(7), 6(2)(e) and 7(7) SS&CS(DA) RegsHB Regs 4(7B) and (7C), 7(2)(i) and 8(14) HB&CTB(DA) Regs; CIS/1178/2001AllB B v SSWP (ESA) [2017] UKUT 280 (AAC) This applies if, for example, the qualifying benefit entitles you to a premium, an extra element or addition, or if it means you are no longer subject to a non-dependant deduction.
This does not happen automatically, so you need to request a supersession (or, depending on the timing of the qualifying benefit award, a revision). If the DWP makes the wrong decision about when to increase your award, and does not pay you the arrears you are entitled to, you can challenge this through a mandatory reconsideration request and appeal.
 
1     UC/PIP/new-style JSA&ESA Sch 1 para 20 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 4(5) CSPSSA 2000
Other DWP benefits s10(5) SSA 1998
 »
2     UC/new-style JSA&ESA Regs 12 and 23 and Sch 1 para 31 UC,PIP,JSA&ESA(DA) RegsIS/old-style JSA&ESA/PC Regs 3(7), 6(2)(e) and 7(7) SS&CS(DA) RegsHB Regs 4(7B) and (7C), 7(2)(i) and 8(14) HB&CTB(DA) Regs; CIS/1178/2001AllB B v SSWP (ESA) [2017] UKUT 280 (AAC) »
How to request a revision or supersession
It is usually best to make a revision or supersession request in writing. For most benefits this means sending a letter, but for UC it could mean using your online journal 1An online record for your universal credit claim. for a revision request or the ‘Report a change’ function on your online account for a supersession request. When sending a request by post, keep a copy and ask the Post Office for free proof of posting.
Note:
    •For housing benefit (HB), revision and supersession requests must be made in writing.1Regs 4(8), 5(2) and 7(7) HB&CTB(DA) Regs
    •It is best to get advice before asking for a revision or supersession of your benefit award. Occasionally, the amount of your benefit might decrease instead of increasing.
Examples
Jeremiah gets UC and has been found to have limited capability for work. He has a severe episode of psychosis and his dad helps him to report this change using the ‘Report a change’ function on his online account. This is treated by the DWP as a supersession request, and Jeremiah is referred for another work capability assessment. This time he is found to have limited capability for work-related activity. The new decision takes effect from the start of the assessment period in which he reported a change.
Jody applies for PIP and is awarded the standard rate of the daily living component on the basis of her post-traumatic stress disorder. She believes that she should have been awarded the mobility component of PIP too, because of her difficulties with leaving the house on her own. She has a telephone appointment with an independent advice worker who explains that, if she asks for a revision, the decision maker will look again at the whole decision, and there might be a risk that she loses the daily living part of the award.
Jody decides to proceed. Her adviser helps her to send a written request for revision to the PIP section of the DWP. Because the decision was made less than a month ago, the request is accepted as one for ‘any grounds’ revision.
The decision maker decides not to revise the decision and keeps the original award of the standard rate of the daily living component in place. When Jody receives the decision notice, she can proceed to appeal if she wants to, because she has satisfied the ’mandatory reconsideration’ requirement (see here).
 
1     Regs 4(8), 5(2) and 7(7) HB&CTB(DA) Regs »
2. Mandatory reconsideration
If you think a benefit decision is wrong when it is made, the first step to challenge it is usually to ask for a revision (see here). In most cases, you need to do this before you can appeal the decision to the independent tribunal. This requirement is known as ‘mandatory reconsideration’.
Note: the terms revision 1A method of changing a benefit decision, (usually) effective from the date it was originally made. and ‘mandatory reconsideration’ are often used interchangeably. This happens in the section below and in other parts of this Handbook. A mandatory reconsideration is really like any other kind of revision – it is just one that you need to request before you can make an appeal. All the rules about revisions on here apply to mandatory reconsiderations.
When to ask for a mandatory reconsideration
You should usually request a mandatory reconsideration within one month of the date of the decision you are challenging, or within 13 months if there are reasons why you could not apply sooner (see here). You may be able to make a mandatory reconsideration request after more than 13 months but only where you have specific ‘grounds’ (see here).
There is no mandatory reconsideration requirement – so you can go straight to appeal – if:
    •the benefit is housing benefit; or
    •your appeal concerns an employment and support allowance (ESA) decision that you do not have limited capability for work and you would qualify for payment of ESA pending an appeal against that decision (see here);1R (Connor) v SSWP [2020] EWHC 1999 (Admin) or
    •the DWP 1The Department for Work and Pensions. A central government department that pays many benefits in Great Britain. does not tell you that you need to apply for a mandatory reconsideration before you can appeal.2s12 SSA 1998; reg 3ZA SS&CS(DA) Regs; reg 7 UC,PIP,JSA&ESA(DA) Regs; PP v SSWP (UC) [2020] UKUT 109 (AAC)
 
1     R (Connor) v SSWP [2020] EWHC 1999 (Admin) »
2     s12 SSA 1998; reg 3ZA SS&CS(DA) Regs; reg 7 UC,PIP,JSA&ESA(DA) Regs; PP v SSWP (UC) [2020] UKUT 109 (AAC) »
How to ask for a mandatory reconsideration
You can make a mandatory reconsideration request yourself or with support from an independent advice service or someone close to you.
In writing
You can apply for a mandatory reconsideration by telephone, but it is almost always best to apply in writing (on a form or by letter) so that there is a clear record of what you have said and when. If you are appealing about universal credit (UC), you can apply on your online journal 1An online record for your universal credit claim.. In all cases, make it clear what you are asking for by prominently including the phrase ‘mandatory reconsideration request’.
There are tools for generating mandatory reconsideration request letters on this website. There are also standard DWP forms for requesting a mandatory reconsideration of certain decisions,1Form CRMR1, available at gov.uk/government/publications/challenge-a-decision-made-by-the-department-for-work-and-pensions-dwp
 but you do not have to use these.
When sending a request by post, keep a copy and ask the Post Office for free proof of posting.
It is important to follow up your request to ensure that it has been received and ‘registered’.
What advisers say: requesting a mandatory reconsideration
‘For UC, discussions via the online journal can be problematic because people often spend a lot of time going back and forth with their work coach about something and never formally challenging a decision. Specify that you are making a “mandatory reconsideration request” as it stops the back and forth and forces an appealable decision to be made.’
 
1     Form CRMR1, available at gov.uk/government/publications/challenge-a-decision-made-by-the-department-for-work-and-pensions-dwp
 »
Explaining why you think the decision is wrong
In your request, explain why you disagree with the decision. Run through the legal conditions you have to satisfy to get the decision you want (using the relevant chapter of this Handbook) and explain how the evidence shows that you meet these conditions. For example, if your appeal is about whether you meet the conditions for an award of personal independence payment, you should run through the descriptors 1Statements describing your ability to carry out one of the activities in the work capability assessment or the personal independence payment assessment. that you believe apply to you, and explain why this is the case, referring to supporting evidence as relevant. You can also address specific points raised by the decision notice – eg, if you think the decision maker has said something that is incorrect.
Providing and asking for evidence
When you send your mandatory reconsideration request, attach copies of any additional evidence that supports your case. Chapter 15 has more information about supporting evidence.
You should also use the mandatory reconsideration request as an opportunity to ask for a copy of any evidence (such as an assessment report – see here) that has been used by the DWP or HM Revenue and Customs (HMRC) to make the decision.
Giving reasons for lateness
If your request is being made more than one month after the decision date, explain why (see here).
Providing details of your representative
If somebody has helped you to prepare your mandatory reconsideration request, you can mention this in the letter. You can also ask that they are sent a copy of the decision. For this to happen, you need to include written confirmation that the decision maker has your consent to disclose information to that person (sometimes called a ‘form of authority’). Chapter 20 has more information about representatives and forms of authority.
The mandatory reconsideration decision
There is no fixed time limit for the DWP or HMRC to make a mandatory reconsideration decision and the amount of time it takes can vary widely. You may be able to keep getting your benefit while waiting for a decision (see here).
Note: the DWP should make a mandatory reconsideration decision within a reasonable time. What counts as a reasonable time in a particular case depends on a range of circumstances – eg, whether you are destitute because of the decision. If you think there is unreasonable delay in your case, you might consider judicial review 1A way of challenging the decisions of government departments, local authorities and some tribunals against which there is no right of appeal. (see here).
After considering your mandatory reconsideration request, the DWP or HMRC should send you a mandatory reconsideration notice telling you the result of your application.
If a decision is changed following mandatory reconsideration, you may be eligible for arrears of benefit, also known as ‘back pay’ (see here).
If you are unhappy with the mandatory reconsideration decision, you can lodge an appeal (see here). If you have applied for a mandatory reconsideration, but have not been sent a mandatory reconsideration notice, try to provide the tribunal with as much evidence as you can that you did apply, and that the DWP or HMRC has considered your application.
3. Appeals
You may be able to appeal against a benefit decision you disagree with. The appeal is decided by an independent tribunal.
You can appeal against most decisions made by the DWP 1The Department for Work and Pensions. A central government department that pays many benefits in Great Britain., the local authority or HM Revenue and Customs (HMRC). Appeals are dealt with in the Social Entitlement Chamber of the First-tier Tribunal (Social Security and Child Support) – referred to as the tribunal in this Handbook. The administration of tribunals is the responsibility of HM Courts and Tribunals Service (HMCTS).
Before appealing, you might have to satisfy a mandatory reconsideration 2The requirement to have a decision looked at again by the DWP before you can make an appeal. requirement (see here).
What advisers say: appeals
‘Out of those people who apply for personal independence payment (PIP), are turned down, but go on to win their appeal, more than a third actually get an enhanced PIP component.’House of Commons, Hansard, Written question UIN 174427, answered 4 April 2023, available at questions-statements.parliament.uk
‘The DWP does think again at mandatory reconsideration, but it can take something new or compelling to get them to do so. If you can bear to let things go on to appeal – even if you feel that you would not be able to attend – the chances of success can be higher.’
‘Often the appeal stage feels like the first time your case is assessed properly.’
Decisions that can be appealed
Decisions you can appeal include decisions about whether:
    •you are entitled to a benefit;
    •your claim has been validly made and/or can be backdated 1When you can get a benefit from a date before the date on which you actually claimed it. Not to be confused with getting arrears of benefit – eg, after winning an appeal.;
    •you have limited capability for work (LCW) or limited capability for work-related activity (LCWRA);
    •you satisfy the ‘disability conditions’ for a benefit like PIP;
    •you should be given a sanction 2A reduction in a person’s benefit for failing to meet their work-related requirements without a good reason or because they have committed a benefit offence., and whether you had good cause or a good reason for not doing something;
    •you satisfy the immigration and residence conditions for a benefit.1MC and JH v SSWP (ESA) [2014] UKUT 125 (AAC), reported as [2014] AACR 35
 
1     MC and JH v SSWP (ESA) [2014] UKUT 125 (AAC), reported as [2014] AACR 35 »
Decisions that cannot be appealed
Decisions you cannot appeal include a decision:1UC/PIP/new-style JSA&ESA Sch 2 SSA 1998; reg 50(2) and Sch 3 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 6(2) CSPSSA 2000; reg 16 and Sch HB&CTB(DA) Regs
Other DWP benefits Sch 2 SSA 1998; reg 27 and Sch 2 SS&CS(DA) Regs
    •that is discretionary, such as a decision about whether to apply a discretionary easement to your work-related requirements 1Activities connected with finding or preparing for work that some people must undertake to receive universal credit or employment and support allowance. (here) or whether to give you a discretionary housing payment 2A payment that can be made by a local authority to top up universal credit or housing benefit when someone needs extra help with their rent or some other housing costs. (see here);
    •to appoint a person as an appointee 3Someone authorised to claim and receive your benefit on your behalf, when you are unable to manage it yourself. (see here);
    •to make a short-term advance, a budgeting advance or a payment on account;
    •to demand recovery of an overpayment 4An amount of benefit that is paid which is more than a person’s entitlement., and the amount of deductions;
    •to suspend payment of benefit.
You can still ask for an ‘any time’ revision 5A method of changing a benefit decision, (usually) effective from the date it was originally made. (see here) or a supersession 6A method of changing a benefit decision some time after it was made, often because of a change in circumstances. (see here) of a decision about which you do not have a right of appeal, whatever your reason for thinking it is wrong.2UC/PIP/new-style JSA&ESA Regs 10 and 25 UC,PIP,JSA&ESA(DA) Regs
HB Regs 4(6) and 7(2)(e) HB&CTB(DA) Regs
Other DWP benefits Regs 3(8) and 6(2)(d) SS&CG(DA) Regs
 However, if the decision maker refuses to revise or supersede such a decision, your only legal remedy is to apply for judicial review 7A way of challenging the decisions of government departments, local authorities and some tribunals against which there is no right of appeal. (see here).
 
1     UC/PIP/new-style JSA&ESA Sch 2 SSA 1998; reg 50(2) and Sch 3 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 6(2) CSPSSA 2000; reg 16 and Sch HB&CTB(DA) Regs
Other DWP benefits Sch 2 SSA 1998; reg 27 and Sch 2 SS&CS(DA) Regs
 »
2     UC/PIP/new-style JSA&ESA Regs 10 and 25 UC,PIP,JSA&ESA(DA) Regs
HB Regs 4(6) and 7(2)(e) HB&CTB(DA) Regs
Other DWP benefits Regs 3(8) and 6(2)(d) SS&CG(DA) Regs
 »
Advice and representation
You can have a representative to help you make an appeal, prepare your case and/or be with you at the hearing.1r11 TP(FT) Rules; r11 TP(UT) Rules; CIB/1009/2004; CIB/2058/2004
Your representative could be a friend or family member, or they could be an experienced welfare rights adviser. Advice and representation may be available in your area from the local authority, a law centre, advice centre or Citizens Advice, and is usually free. Advicelocal.uk can help you find advice services where you live.
If you have a representative, you must provide HMCTS with written notice of their name and address or they must do this on your behalf. You can do this on the appeal form or in a letter.2r11(2) TP(FT) Rules; r11(2) TP(UT) Rules Once you have given notice that you have a representative, they should be sent a copy of any documents that are sent to you.3r11(6)(a) TP(FT) Rules; r11(4)(a) TP(UT) Rules; MP v SSWP (DLA) [2010] UKUT 103 (AAC)
Even if you have not previously notified the tribunal that you have a representative, someone can attend the hearing with you (eg, a friend or relative) and act as one, or assist you at the hearing, if the tribunal agrees.4r11(7) and (8) TP(FT) Rules; r11(5) and (6) TP(UT) Rules Chapter 20 has more information about representatives.
Note: it is usually best to get independent advice before starting an appeal. If you appeal a decision, the tribunal looks at the whole decision again. There may be a risk you could lose benefit – eg, if your appeal is about a benefit that can be paid at different rates (eg, PIP), the rate you are awarded could go down.
 
1     r11 TP(FT) Rules; r11 TP(UT) Rules; CIB/1009/2004; CIB/2058/2004 »
2     r11(2) TP(FT) Rules; r11(2) TP(UT) Rules »
3     r11(6)(a) TP(FT) Rules; r11(4)(a) TP(UT) Rules; MP v SSWP (DLA) [2010] UKUT 103 (AAC) »
4     r11(7) and (8) TP(FT) Rules; r11(5) and (6) TP(UT) Rules »
Appeal process
Mandatory reconsideration
Before you can appeal, you must usually request a mandatory reconsideration (see here).
Lodging an appeal
Appeal form
You must appeal in writing. You can submit appeals about most benefits by using form SSCS1, or online at gov.uk/appeal-benefit-decision. For housing benefit (HB), send your notice of appeal to the local authority, using its approved form.1Reg 20(1) HB&CTB(DA) Regs Keep a copy of your completed form and, if you are sending it by post, ask the Post Office for free proof of posting. Consider attaching supporting evidence (see here).
The appeal form is an opportunity to mention any special arrangements you need to participate in a hearing – eg, a video or telephone hearing, or a different approach to questioning (see here).
If you have an appointee 1Someone authorised to claim and receive your benefit on your behalf, when you are unable to manage it yourself., see here.
Urgent appeals
If you want the tribunal to deal with your appeal quickly (ie, ‘expedite’ your appeal), make this clear when you appeal, explaining why your case is urgent. For HB, because you have to send your notice of appeal to the local authority, you could write to the tribunal, asking it to intervene. For further information, see the article Expediting UC appeals from CPAG’s Welfare Rights Bulletin 278.
Grounds for appeal
The appeal form requires you to give ‘grounds’ for your appeal – ie, reasons for disagreeing with the decision that you are appealing. These can be brief. If you have already written out your reasons in a mandatory reconsideration request (see here), you can attach a copy of this to the appeal form and make it clear on the form that these are your grounds for the appeal.
Examples of grounds for appeal
’You say I cannot get personal independence payment daily living component. This decision is wrong because you have not taken into account the amount of help I need to engage in social situations or manage my finances.’
’The decision says that I do not meet the conditions for limited capability for work, but I believe that the difficulties I experience because of my depression have been underestimated and I also do not think that the decision maker has considered whether work presents a ”substantial risk” to my health.’
Time limit for appealing
If you had to apply for a mandatory reconsideration before you could appeal (see here), you must usually appeal within one month of the date of your mandatory reconsideration notice.2r22(2)(d)(i) TP(FT) Rules If you did not have to apply for a mandatory reconsideration, you must usually appeal within one month of the date of the decision you are appealing.3HB r23(2)(a)(i) and (ii) TP(FT) Rules
Other DWP benefits r22(2)(d)(ii) and Sch 1 para 5(a) and (b) TP(FT) Rules
All r12 TP(FT) Rules
If you miss the one-month deadline, do not give up: your appeal is likely to be accepted up to 12 months after this time limit if you include reasons for lateness on your appeal form.4rr22(8) and 23(5) and (8) TP(FT) Rules These could include the fact that:
    •your mental health condition delayed you reading or dealing with the decision;
    •you had to wait to get the assistance you needed to make the appeal;
    •you made a reasonable mistake in calculating the time limit;
    •you did not receive the decision;
    •you posted your appeal in time, but there was a delay caused by the postal service;
    •you were given wrong advice or otherwise misled by the DWP (or the local authority or HMRC).
If you have exceeded the ‘absolute’ lime limit of 13 months (ie, the one-month normal time limit plus the extension of 12 months), you can only appeal in very exceptional circumstances.5Adesina v NMC [2013] EWCA Civ 818; KD v SSWP [2021] UKUT 329 (AAC); MZ v SSWP (UC) [2022] UKUT 292 (AAC) Get independent advice if you are in this situation. Your best option may be to make a new claim for benefit or, if you have an ongoing benefit award, make a new request for a supersession (see here).
 
1     Reg 20(1) HB&CTB(DA) Regs »
2     r22(2)(d)(i) TP(FT) Rules »
3     HB r23(2)(a)(i) and (ii) TP(FT) Rules
Other DWP benefits r22(2)(d)(ii) and Sch 1 para 5(a) and (b) TP(FT) Rules
All r12 TP(FT) Rules
 »
4     rr22(8) and 23(5) and (8) TP(FT) Rules »
5     Adesina v NMC [2013] EWCA Civ 818; KD v SSWP [2021] UKUT 329 (AAC); MZ v SSWP (UC) [2022] UKUT 292 (AAC) »
Submissions and further evidence
 
The decision maker’s response
After HMCTS has registered your appeal, the DWP, the local authority or HMRC must prepare a bundle of papers relevant to your appeal – called the ‘decision maker’s response’ – and forward this to the tribunal. This should usually be done within 28 days but in practice can take longer.1r24(1A) and (1)(c) TP(FT) Rules; Art 6 European Convention on Human Rights; s6 HRA 1998; CH/3497/2005; MB v Wychavon DC [2013] UKUT 67 (AAC); Local Government Ombudsman, Complaint 01/C/13400 against Scarborough BC Both you and your representative (if you have one) should be sent a copy.2r24(5) TP(FT) Rules However, check that your representative has received it, as this might not always happen.3r11(6)(a) TP(FT) Rules
The response explains the legal basis for the decision4LH v SSWP (PIP) [2018] UKUT 57 (AAC); TM v SSWP (PIP) [2019] UKUT 204 (AAC); BF v SSWP (PIP) [2020] UKUT 300 (AAC) and must include copies of all written evidence the decision maker has that could be relevant to the appeal.5r24(4) TP(FT) Rules; ST v SSWP (ESA) [2012] UKUT 469 (AAC); FN v SSWP (ESA) [2015] UKUT 670 (AAC), reported as [2016] AACR 24; FI v HMRC [2018] UKUT 226 (AAC) If you think that the decision maker may have other relevant evidence (eg, a previous assessment report), you can ask the tribunal to direct them to produce it.
 
Your submissions
After you are sent a copy of the decision maker’s response, you (or your representative) should reply in writing. You should usually do this within one month, but the tribunal may give you longer if it is agreed that you need more time.6rr5(3)(a) and 24(6) and (7) TP(FT) Rules Send your reply to the tribunal by post or email and it will forward a copy to the decision maker.
This written submission should give details of the legal conditions you have to satisfy to get the decision you want, and explain how the evidence shows that you meet these conditions. For example, if your appeal is about whether you meet the conditions for a PIP award, your submission should run through the activities and descriptor 1Statements describing your ability to carry out one of the activities in the work capability assessment or the personal independence payment assessment. that you believe apply to you, and explain why this is the case, referring to the medical evidence. Use the relevant chapter of this Handbook to check the benefit conditions that apply to you.
You can also make specific points about the appeal papers – eg, pointing out something the decision maker or assessor has said that is incorrect.
Try to make sure that everything you want to say in support of your appeal has been put in writing and that you have sent the tribunal all of the documents and evidence you have that might support your case (see below). You can make more than one written submission if you need to (eg, because you get more supporting evidence or have noticed something else in the appeal bundle that you would like to address), but try to do so in plenty of time before a hearing is arranged.
 
Supporting evidence
An important part of preparing your appeal is considering the evidence you can provide to support your arguments. This includes medical evidence, but also other forms of written, recorded or filmed evidence, and the oral evidence that you give in a hearing. Chapter 15 considers supporting evidence in detail.
 
1     r24(1A) and (1)(c) TP(FT) Rules; Art 6 European Convention on Human Rights; s6 HRA 1998; CH/3497/2005; MB v Wychavon DC [2013] UKUT 67 (AAC); Local Government Ombudsman, Complaint 01/C/13400 against Scarborough BC »
2     r24(5) TP(FT) Rules »
3     r11(6)(a) TP(FT) Rules »
4     LH v SSWP (PIP) [2018] UKUT 57 (AAC); TM v SSWP (PIP) [2019] UKUT 204 (AAC); BF v SSWP (PIP) [2020] UKUT 300 (AAC) »
5     r24(4) TP(FT) Rules; ST v SSWP (ESA) [2012] UKUT 469 (AAC); FN v SSWP (ESA) [2015] UKUT 670 (AAC), reported as [2016] AACR 24; FI v HMRC [2018] UKUT 226 (AAC) »
6     rr5(3)(a) and 24(6) and (7) TP(FT) Rules »
Hearing
Will there be a hearing?
The tribunal makes its decision on your case either:
    •at a hearing held in person or remotely – eg, by telephone or video link;1r1(3) TP(FT) Rules or
    •on the papers only, by looking at what you said on your appeal form, any evidence or other information you provided and the decision maker’s response.
You tell the tribunal on your appeal form (or, for HB, on an enquiry form) whether you want to attend a hearing and, if so, the type of hearing you would prefer. If you do not ask for a hearing, you are taken to have agreed to having your case decided on the papers if the tribunal considers it appropriate. A decision ‘on the papers’ is made by the same panel (see here) as makes a decision at a hearing.
You can decide whether you want to attend a hearing. You do not have to attend a hearing if it will cause you serious distress or pose a risk to your safety and wellbeing (see here). Some things to keep in mind when making your decision include the following.
    •Unlike hearings in a court, hearings in the First-tier Tribunal are meant to be informal.
    •You may be able to participate via video link or telephone if attending in person is not possible (see here).
    •You can ask (ideally in advance) that the panel members adapt the way they ask questions so that they do so more sensitively (see here).
    •You can have a representative (see here) at the hearing. You can also take a friend, relative or support worker with you for support.
    •You may be able to get expenses paid, if the cost of going to the tribunal is a concern. You can claim for travel, meals, loss of earnings and childcare costs.2r21 TP(FT) Rules
    •The tribunal aims to provide a qualified interpreter if you need one.
    •You will be able to explain your side of the story in your own words.
What advisers say: appeals
‘An appeal is usually the first opportunity for the people making a decision to talk directly with you. Your voice is heard.’
‘The sense among advisers is that appeals are often won because tribunals attach more weight to your account of your difficulties as they can ask you about it directly and test it a little bit with questioning.’
Hearings in person or remotely
A hearing can take place in person, by video, or by telephone.3r1 TP(FT) Rules, definition of ‘hearing’ If you have a video or telephone hearing, you usually stay at home and participate using your mobile phone, landline or computer. The tribunal decides which type of hearing to offer you but considers your needs and preferences, so state these on the appeal form and/or in your written submissions.
What kind of hearing works best is different for everyone. In-person and video hearings mean that the panel sees you when you are answering questions and observes how you are coping. Video and telephone hearings mean that you may be able to participate from somewhere you might find more manageable.
If you have a video or telephone hearing, you can have a representative with you in person, or they can join the call remotely. You can also have a friend, family member or support worker with you.
The date of the hearing
An appeal is usually ready to be given a hearing date (ie, it is ‘ready for listing’) once the decision maker has sent its response and you have been given a month to reply. In practice, hearings usually take several months after this point to be listed.
You must be given 14 days’ notice of a hearing unless you have agreed to accept shorter notice or exceptional circumstances apply.4r29 TP(FT) Rules If you know that you are not available on certain dates (eg, because you have a booked medical appointment or holiday), you should let the tribunal know well in advance.
If you are given a hearing date that you cannot attend, contact the tribunal straight away to explain why and to ask for a postponement.5r5(3)(h) TP(FT) Rules; r5(3)(h) TP(UT) Rules; MA v SSWP [2009] UKUT 211 (AAC); Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 1 August 2013, 31 July 2013, para 10 The tribunal has discretion over whether to postpone a hearing and is more likely to do so if you give as much notice as possible and have a good reason for being unable to attend. If you have a last-minute emergency (such as a mental health crisis), you can still ask for a postponement.
For information about missed hearings, see here.
The appeal panel
If your appeal is about attendance allowance (AA), disability living allowance (DLA) or PIP, the appeal is usually decided by a three-person panel. The panel is made up of a judge, a doctor (who is not always a mental health expert) and a person with experience of disability.6r2 The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 No.2835; Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 1 August 2013, 31 July 2013
If your appeal is about whether you have LCW or LCWRA, the appeal is usually decided by a two-person panel made up of a judge and a doctor (who is not always a mental health expert).7CH v SSWP (ESA) [2017] UKUT 6 (AAC)
Other appeals are usually decided by one judge on their own.
Who else will be at the hearing?
A tribunal clerk is likely to be present in the hearing room. Clerks have an administrative role and do not take part in the hearing.
A presenting officer may attend the hearing to represent the decision maker. They are there to explain the reasons for the decision, but may also provide information which helps your case. Presenting officers often only attend if an appeal is considered complicated. The tribunal can issue a direction requiring a presenting officer to attend the hearing.
You can have a representative with you at the hearing (see here).8r11 TP(FT) Rules; CIB/1009/2004; CIB/2058/2004 You can also have another person to accompany you at the hearing without ‘representing’ you – eg, a support worker, family member or friend.9r11(7) and (8) TP(FT) Rules
How the tribunal can support you
The tribunal must consider how to help children under 18, vulnerable adults and ‘sensitive witnesses’ to give evidence. In practice, this covers almost anyone with a mental health problem appealing a decision about a disability benefit or about work capability.10Practice Direction, Child,Vulnerable Adult and Sensitive Witnesses, 30 October 2008; SW v SSWP (DLA) [2015] UKUT 319 (AAC); LO’L v SSWP (ESA) [2016] UKUT 10 (AAC), reported as [2016] AACR 31; RT v SSWP (PIP) [2019] UKUT 207 (AAC), reported as [2020] AACR 4; JE v SSWP (PIP) [2020] UKUT 17 (AAC). Cases like GJ v SSWP (PIP) [2022] UKUT 349 (AAC) highlight the limitations of this. The tribunal must consider allowing you to give evidence by telephone, video link or other means, or appointing someone with special expertise to help you give evidence, or adopting a less ‘robust’ style of questioning.
If you need special arrangements to be made, you or your representative should let the tribunal know as soon as possible in advance of the hearing. The tribunal should make a note in its record of proceedings that it has considered how to assist you.
What happens at the hearing?
The judge decides how the hearing is conducted – there are no strict rules.11Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 1 August 2013, 31 July 2013, para 12 The tribunal’s overriding objective is that your appeal is dealt with fairly and justly.12r2 TP(FT) Rules This includes making sure that you can participate fully.
    •The judge should introduce everyone present. The judge and panel members then ask you (and the presenting officer) questions to get the information they need to make a decision. Even if you have a representative, you are usually expected to answer questions for yourself (if you have an appointee, see here). It is the tribunal’s job to help you to say everything you want by putting you at your ease and asking the right questions.
    •If you do not understand a question or need to hear it again, say so.
    •You can take your time answering the questions. If you think there are mistakes in the papers, point them out. If you forget to say something when it is your turn to speak, do not hesitate to add it at the end of the hearing.
What advisers say: answering questions
‘Just answer the questions they ask and answer them simply and straightforwardly. You do not need to think about anything else. To an extent, you just cannot prepare for a hearing.’
‘Focus on your difficulties and what you cannot do, even if this is not your natural reaction to the questions. For so many of us it is natural to try and put a positive spin on things.’
    •If your appeal is about a health-related benefit decision, the tribunal may want to ask you specific questions about the medical evidence, including questions about what you wrote in the questionnaire when claiming the benefit and about what you are reported as saying or doing in your assessment. Try to explain any inconsistencies between different pieces of evidence. The tribunal should not automatically accept what is said in an assessment report, and if there is an inconsistency between the report and your questionnaire, it should not assume that the report is correct without listening to what you have to say (see here). The tribunal can adjourn the hearing if it is felt more medical evidence is needed.13MA v SSWP (PIP) [2017] UKUT 351 (AAC)
    •In appeals about health-related benefits, it is useful to tell the tribunal whether it is seeing you on a ‘good’ day or a ‘bad’ day, and about any steps you had to go through in order to get to and participate in the hearing – eg, if you needed to take an extra dose of medication, or if you would not have come if a family member had not accompanied you.14R(DLA) 8/06 The tribunal may observe your abilities and behaviour at the hearing and take these into account when making its decision – eg, if your appeal concerns your ability to interact socially.15r25(4) TP(FT) Rules It should not attach undue weight to its observations and you should usually be given the opportunity to comment on them.16R(DLA) 1/95, qualified by CM/2/1994; GL v SSWP [2008] UKUT 36 (AAC); ID v SSWP (PIP) [2015] UKUT 692 (AAC); KMN v SSWP (PIP) [2019] UKUT 42 (AAC)
    •Sometimes, it can feel as though the panel members are trying to ‘catch you out’. Their questioning can be detailed and searching because it is aimed at getting the information needed to make a decision, but the panel should ask questions in an appropriately sensitive way (see here). If you are becoming overwhelmed or upset during a hearing, try to explain this.
    •Your representative, if you have one, may be asked if they have anything to say at the beginning of the hearing and at the end. This is an opportunity for them to summarise your case and to draw out any evidence that they think the tribunal might have missed. If there is a presenting officer at the hearing, they will be given the same opportunity.
    •If a friend, family member or support worker has accompanied you at health-related benefit hearing, the panel may ask them if they want to say anything at the end of the hearing about their experience of your difficulties and about the support that they give you. If the panel does not offer this opportunity, you (or the person supporting you) can ask for it.
    •The judge makes a record of the tribunal proceedings. This could be a recording of the hearing or a written record.17Practice Statement, Record of Proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008, 30 October 2008; MK v SSWP (CI) [2014] UKUT 323 (AAC) The record is kept for at least six months from the date of the tribunal’s decision and you can request a copy.
Missing a hearing
If a hearing has been arranged but you do not attend, the tribunal can go ahead with the hearing if it is satisfied that you were notified of the hearing, or that reasonable steps have been taken to notify you, and it thinks that going ahead is in the interests of justice.18r31 TP(FT) Rules; WT v SSWP (DLA) [2011] UKUT 93 (AAC); PS v SSWP (ESA) [2017] UKUT 55 (AAC); KD v SSWP (ESA and IS) and KD and HMRC (TC) [2020] UKUT 9 (AAC) However, the tribunal should only go ahead with the hearing if it considers that it has sufficient evidence to decide the appeal fairly,19LR v SSWP (ESA) [2017] UKUT 412 (AAC) and it should always consider the alternative of adjourning the hearing to give you another opportunity to attend.
If you turn up late, after the tribunal has decided to proceed in your absence, it should still consider whether to allow you to participate, and whether it should adjourn the hearing to give you another opportunity to attend.20AK v HMRC (TC) [2016] UKUT 98 (AAC)
If you know in advance that you are not going to make it to your hearing, you can ask for a postponement (see here).
 
1     r1(3) TP(FT) Rules »
2     r21 TP(FT) Rules »
3     r1 TP(FT) Rules, definition of ‘hearing’ »
4     r29 TP(FT) Rules »
5     r5(3)(h) TP(FT) Rules; r5(3)(h) TP(UT) Rules; MA v SSWP [2009] UKUT 211 (AAC); Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 1 August 2013, 31 July 2013, para 10 »
6     r2 The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 No.2835; Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 1 August 2013, 31 July 2013 »
7     CH v SSWP (ESA) [2017] UKUT 6 (AAC) »
8     r11 TP(FT) Rules; CIB/1009/2004; CIB/2058/2004 »
9     r11(7) and (8) TP(FT) Rules »
10     Practice Direction, Child,Vulnerable Adult and Sensitive Witnesses, 30 October 2008; SW v SSWP (DLA) [2015] UKUT 319 (AAC); LO’L v SSWP (ESA) [2016] UKUT 10 (AAC), reported as [2016] AACR 31; RT v SSWP (PIP) [2019] UKUT 207 (AAC), reported as [2020] AACR 4; JE v SSWP (PIP) [2020] UKUT 17 (AAC). Cases like GJ v SSWP (PIP) [2022] UKUT 349 (AAC) highlight the limitations of this.  »
11     Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 1 August 2013, 31 July 2013, para 12 »
12     r2 TP(FT) Rules »
13     MA v SSWP (PIP) [2017] UKUT 351 (AAC) »
14     R(DLA) 8/06 »
15     r25(4) TP(FT) Rules »
16     R(DLA) 1/95, qualified by CM/2/1994; GL v SSWP [2008] UKUT 36 (AAC); ID v SSWP (PIP) [2015] UKUT 692 (AAC); KMN v SSWP (PIP) [2019] UKUT 42 (AAC) »
17     Practice Statement, Record of Proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008, 30 October 2008; MK v SSWP (CI) [2014] UKUT 323 (AAC) »
18     r31 TP(FT) Rules; WT v SSWP (DLA) [2011] UKUT 93 (AAC); PS v SSWP (ESA) [2017] UKUT 55 (AAC); KD v SSWP (ESA and IS) and KD and HMRC (TC) [2020] UKUT 9 (AAC) »
19     LR v SSWP (ESA) [2017] UKUT 412 (AAC)  »
20     AK v HMRC (TC) [2016] UKUT 98 (AAC) »
Decision and next steps
You may be told the tribunal’s decision at the hearing and given a decision notice confirming it. If the decision is not given at the hearing (eg, because the panel members need more time to reach a decision), the decision notice is sent to you by post. The same applies if you missed the hearing or asked for a decision to be made on the papers.
The decision notice may contain a statement of the tribunal’s reasons for its decisions. If it does not, you can ask for one.1r34(2) and (3) TP(FT) Rules; CCS/1664/2001 If you do not agree with the decision, you may be able to challenge it – eg, by appealing it to the Upper Tribunal.
For more information on the next steps if you are unhappy with First-tier Tribunal decision, see CPAG’s Welfare Benefits and Tax Credits Handbook and consider getting independent advice (see advicelocal.uk).
When will I get paid?
If you win your appeal, the DWP, local authority or HMRC should act on the tribunal’s decision straight away. However, if the DWP, the local authority or HMRC disagrees with the decision, it might consider appealing against it to the Upper Tribunal. In this case, you are not normally paid while it decides what to do, or (if it decides to appeal) until the Upper Tribunal has made a decision.2UC/PIP/new-style JSA&ESA s21 SSA 1998; reg 44 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 13 CSPSSA 2000; reg 11 HB&CTB(DA) Regs
Other DWP benefits s21 SSA 1998; reg 16 SS&CS(DA) Regs
All r5(3)(l) TP(FT) Rules
 The First-tier Tribunal can also suspend the effect of a decision if you apply for permission to appeal to the Upper Tribunal.
Arrears of benefit (’back pay’)
If your appeal leads to a benefit decision being changed, you may be eligible for arrears of benefit. This means that you are owed benefit for a period when you were entitled to get it but did not. This is often called ‘back pay’. Whether you are eligible for back pay, and how much, depends on the effective date of the new decision (see here). If you are entitled to back pay, it is usually paid in one lump sum but for some benefits it can be paid in instalments with your consent – eg, if getting a single large payment would put you at risk.3The Social Security Benefits (Claims and Payments) (Amendment) Regulations 2021 No.1065
 
1     r34(2) and (3) TP(FT) Rules; CCS/1664/2001 »
2     UC/PIP/new-style JSA&ESA s21 SSA 1998; reg 44 UC,PIP,JSA&ESA(DA) Regs
HB Sch 7 para 13 CSPSSA 2000; reg 11 HB&CTB(DA) Regs
Other DWP benefits s21 SSA 1998; reg 16 SS&CS(DA) Regs
All r5(3)(l) TP(FT) Rules
 »
3     The Social Security Benefits (Claims and Payments) (Amendment) Regulations 2021 No.1065 »
Payments while challenging a decision
Universal credit
If you challenge a universal credit (UC) ‘fit for work’ decision (ie, a decision that you do not have LCW), you can continue to get UC while your request for a mandatory reconsideration is being considered and while your appeal is pending. However, your award does not include a work capability component during this period, and you may have extra work-related requirements (see here).
If it has been decided that you have LCW for UC but you challenge the decision that you do not have LCWRA, you can continue being paid UC on the basis of having LCW, including an LCW element if applicable (see here).
Employment and support allowance
If you appeal against a decision that you do not have LCW for employment and support allowance (ESA) and it is the first such decision you have had, or the first since a previous decision that you have LCW, then once you have appealed and you have submitted a medical certificate, you can usually get ESA until the tribunal makes its decision.1Reg 30(1) and (3) ESA Regs; reg 26(1) and (3) ESA Regs 2013 However, there are exceptions (see here) – eg, in some cases where you have failed to return an ESA50 form. You are paid at the ‘assessment rate’, which includes your personal allowance and any premiums to which you are entitled.2Reg 5(4) ESA Regs; reg 6(5) ESA Regs 2013 provides that the assessment phase applies, pending the First-tier Tribunal’s decision Note: in this type of case, you can appeal a decision without going through the mandatory reconsideration process (see here).
If you are found to have LCW for ESA but you are appealing against the decision that you do not have LCWRA, you continue getting ESA on the basis of having LCW, including an LCW element if applicable (see here). The usual rules about the length of time you can be paid contributory ESA on the basis of LCW apply (see here).
 
1     Reg 30(1) and (3) ESA Regs; reg 26(1) and (3) ESA Regs 2013 »
2     Reg 5(4) ESA Regs; reg 6(5) ESA Regs 2013 provides that the assessment phase applies, pending the First-tier Tribunal’s decision »
Other benefit decisions
While you are challenging a decision about PIP, DLA or AA, you are only usually paid what that decision says you are entitled to. For other benefit decisions, see CPAG’s Welfare Benefits and Tax Credits Handbook.
Example
Mariam has an award of the enhanced rate of the daily living allowance of PIP. Her award is reviewed (see here). A new decision is made that she is no longer eligible for PIP as she does not score enough points, and her PIP payments stop.
Mariam makes a mandatory reconsideration request. She is not paid any PIP while she is waiting for a mandatory reconsideration decision.
On mandatory reconsideration, the DWP decides that Mariam qualifies for the standard rate of the daily living component of PIP and revises its original decision. Mariam is now paid PIP at the standard rate of the daily living component. She is also eligible for back pay (see here).
Mariam is still not happy with the decision and appeals it. She continues getting paid PIP at the standard rate of the daily living component while waiting for a decision. The tribunal decides that she qualifies for the enhanced rate of the daily living component of PIP. Only now does she begin to be paid at this rate again. Again, she is eligible for back pay.
If your circumstances change after the date of a decision
If your circumstances change after the date of a decision, the DWP or HMRC cannot take this into account in reconsidering that decision and a tribunal cannot take this into account when deciding an appeal against the decision.1HB Sch 7 para 6(9)(b) CSPSSA 2000
Other DWP benefits s12(8)(b) SSA 1998; R(DLA) 4/05
 In this situation, you may decide to make a new claim or ask for a supersession (see here) while waiting for a decision on your appeal, to ensure that you get your maximum entitlement from the earliest possible date.
Note:
    •The rules may be different for Scottish benefits.2SS(S)A 2018 contains no provision equivalent to ss8(2)(b) and 12(8)(b) SSA 1998
    •Evidence about something that happens after the decision with which you disagree could still be relevant to your mandatory reconsideration request or appeal (see here).
Example
After being found to have LCW for UC, Leanne is required to take part in work-related activity. Within a short amount of time this leads to a deterioration in her mental health. Leanne appeals the decision on her work capability and can use evidence about her symptoms getting worse after the decision date to show the serious risk that work-related activity posed her health at the decision date.
Leanne can also (or alternatively) ask the DWP to assess her work capability again while she waits for the appeal to be decided, on the basis that her health has deteriorated since its last decision was made.
 
1     HB Sch 7 para 6(9)(b) CSPSSA 2000
Other DWP benefits s12(8)(b) SSA 1998; R(DLA) 4/05
 »
2     SS(S)A 2018 contains no provision equivalent to ss8(2)(b) and 12(8)(b) SSA 1998 »
4. Making a complaint
Complaints about the DWP and its assessment providers
When to complain
If you are unhappy with the way your benefit claim or award has been handled by the DWP 1The Department for Work and Pensions. A central government department that pays many benefits in Great Britain. or one of its assessment providers, you can make a complaint. You can do this while challenging a decision through mandatory reconsideration 2The requirement to have a decision looked at again by the DWP before you can make an appeal. and appeal, or when you have no right of appeal, or when an appeal has been unsuccessful. You might want to complain about:
    •a delay;
    •poor advice from the DWP;
    •your work-related requirements 3Activities connected with finding or preparing for work that some people must undertake to receive universal credit or employment and support allowance.;
    •an assessment;
    •the way that the DWP made a decision.
What you can achieve through a complaint
Complaints are often most appropriate when they are about processes not being followed properly – eg, delays, misadvice or poor treatment. Where a decision is wrong, your best option is usually to challenge it by asking for a supersession 1A method of changing a benefit decision some time after it was made, often because of a change in circumstances., revision 2A method of changing a benefit decision, (usually) effective from the date it was originally made. or appeal.
A complaint may lead to an issue being resolved – eg, a delayed assessment might be arranged quickly, or your work-related requirements might be changed. However, be aware that the complaints process can be slow and may be ineffective for addressing an urgent issue. See here for what to do in urgent cases.
When making a complaint, you can also ask for compensation for any loss you have suffered which cannot be made good by a revision or supersession of a benefit decision or by backdating your claim. For example, if you did not claim universal credit (UC) for several months because you were misled by the DWP about whether you could get it, and you could not have the benefit backdated 3When you can get a benefit from a date before the date on which you actually claimed it. Not to be confused with getting arrears of benefit – eg, after winning an appeal. for more than one month, you can claim compensation for lost UC income, and ask for an extra amount for lost interest on the arrears and for any extra expenses you had.
You may also receive ‘consolatory payments’ if you are considered to have experienced injustice, hardship or distress. These payments usually range between £25 and £500.
Compensation and consolatory payments are discretionary. The DWP uses a guide, Financial Redress for Maladministration, to decide whether and how much you should be paid.1gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff
There is also the possibility that following a successful complaint, the DWP will give you an apology, and it might take action to avoid similar mistakes being made in other cases.
 
1     gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff »
How to complain
You can get support to complain, including from independent advice services or from a friend or family member. The complaints process is different for complaints against the DWP itself and for complaints against its assessment providers.
Complaining about the DWP
Start by registering your complaint with the job centre or benefit office responsible for the issue you are complaining about. For example, if your complaint is about how a decision was made, use the contact details on your decision letter to register your complaint or, if your complaint is about a decision made by a work coach 1A job centre staff member. Part of their job is to decide your work-related requirements., ask to register your complaint with them or with the manager of the job centre.
If this does not resolve the issue, ask for your complaint to go to the DWP Complaints Team. This team should make a decision on your complaint within 15 days of receiving it, or let you know if it is going to take longer. The DWP’s full complaints procedure is set out at gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure.
Note: for UC and jobseeker’s allowance complaints only, the DWP has an online complaints option: makeacomplaint.dwp.gov.uk.
Complaining about an assessment provider
To complain about how an assessment was conducted for UC, employment and support allowance or personal independence payment (PIP), you need to contact the relevant assessment provider and use its complaints procedure.
The kinds of issues you can complain about might include:
    •the way your assessment was conducted;
    •not being offered a home or remote assessment when you requested one;
    •delays in being offered an assessment appointment;
    •evidence or forms that you have provided being lost.
Your appointment letter states which assessment provider was responsible for your assessment, and you can find its contact details and complaints procedure on its website (or see below). Chapter 16 has more information about assessments and assessment providers.
Assessment providers and their complaints procedures
Maximus (Health Assessment Advisory Service/Centre for Health and Disability Assessments)
Types of assessment: work capability assessment
Complaints procedure: chdauk.co.uk/about-us/contact-us
Email: customer-relations@chdauk.co.uk
Address: Customer Relations Team, Health Assessment Advisory Service, Room 4E04, Quarry House, Quarry Hill, Leeds LS2 7UA
Atos (Independent Assessment Services)
Types of assessment: PIP assessments in Scotland and southern and northern England
Complaints procedure: mypipassessment.co.uk/feedback
Telephone: 0800 188 4880 (north of England and Scotland) or 0800 188 4881 (southern England)
Address: The Client Relations Manager, Independent Assessment Services, PO Box 1006, Stockton-on-Tees TS19 1UL
Capita
Types of assessment: PIP assessments in Wales and central England
Email: complaints@capita-pip.co.uk
Address: PIP Complaints, PO Box 325, Darlington DL1 9PH
Next steps
Once you have completed the DWP’s or assessment provider’s complaints procedure, if your issue is still not resolved, you can take your case to the Independent Case Examiner (ICE). This is an independent body that deals with complaints about the DWP and its assessment providers. It can settle complaints by agreement or carry out an investigation and make recommendations about how your complaint should be settled.
If you are still not happy after receiving a decision from ICE, you can ask your MP to refer your complaint to the Parliamentary and Health Service Ombudsman.
There are also other ways you can involve your MP at any stage in the complaints process – eg, by asking them to raise your case with the Secretary of State for Work and Pensions.
Complaints about HM Revenue and Customs, HM Courts and Tribunals Service or the local authority
You can make a complaint against any government or local authority department and against anyone contracted to provide a service on its behalf. This includes HM Revenue and Customs, HM Courts and Tribunals Service and local authorities. See CPAG’s Welfare Benefits and Tax Credits Handbook for more information.
5. Judicial review
What is judicial review
Judicial review is a form of legal challenge. It can be used in response to a decision, an action or a failure to act. It is generally a challenge to the way in which a benefit decision has been reached, rather than to the decision itself. You can apply for judicial review of any decision of a ‘public nature’, which includes benefit decisions made by the DWP 1The Department for Work and Pensions. A central government department that pays many benefits in Great Britain., HM Revenue and Customs, or a local authority.
To apply for judicial review, you must have specific grounds. The main grounds are when there has been:
    •failure to follow the law;1For an example, see JR49 at cpag.org.uk/jr-letters/elements-uc or
    •failure to make a decision or to make a decision within a reasonable time;2R (C and W) v SSWP [2015] EWHC 1607 (Admin), para 61 or
    •failure to exercise discretion;3R (S) v SSHD [2007] EWCA Civ 546, para 50 or
    •failure to take into account relevant evidence, or taking irrelevant evidence into account;4For an example of use, see JR12 at cpag.org.uk/jr-letters/disputed-earnings-uc; R (Winder and Others) v Sandwell MBC [2014] EWHC 2617 (Admin) or
    •failure to make enquiries;5Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, para 62 or
    •failure to follow guidance, or applying unlawful guidance;6For an example of a challenge to unlawful guidance, see JR33 at cpag.org.uk/jr-letters/deductions-uc or
    •discrimination and breach of human rights;7Stec v United Kingdom [2006] 43 EHRR 47, para 53; JS v SSWP (ESA) [2014] UKUT 428 (AAC), para 56; TS (by TS) v SSWP (DLA); for example, RR v SSWP [2019] UKSC 52, para 27; EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC) (in relation to public sector equality duty); for example, R (SC, CB and 8 children) v SSWP [2021] UKSC 26, para 41 or
    •irrationality.8Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; eg, SSWP v Johnson, Woods, Barrett and Stewart [2020] EWCA Civ788
Judicial review is a ‘remedy of last resort’ and usually only available when you do not have an alternative – eg, a right of appeal. It might also be appropriate if you have an alternative remedy which is not ‘effective and appropriate’9Glencore Energy UK Limited v Commissioners of HMRC [2017] EWHC 1476 (Admin), para 42 – eg, you have a right of appeal but you will not get a tribunal decision for an unreasonably long time.
 
1     For an example, see JR49 at cpag.org.uk/jr-letters/elements-uc »
2     R (C and W) v SSWP [2015] EWHC 1607 (Admin), para 61 »
3     R (S) v SSHD [2007] EWCA Civ 546, para 50 »
4     For an example of use, see JR12 at cpag.org.uk/jr-letters/disputed-earnings-uc; R (Winder and Others) v Sandwell MBC [2014] EWHC 2617 (Admin) »
5     Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, para 62 »
6     For an example of a challenge to unlawful guidance, see JR33 at cpag.org.uk/jr-letters/deductions-uc »
7     Stec v United Kingdom [2006] 43 EHRR 47, para 53; JS v SSWP (ESA) [2014] UKUT 428 (AAC), para 56; TS (by TS) v SSWP (DLA); for example, RR v SSWP [2019] UKSC 52, para 27; EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC) (in relation to public sector equality duty); for example, R (SC, CB and 8 children) v SSWP [2021] UKSC 26, para 41 »
8     Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; eg, SSWP v Johnson, Woods, Barrett and Stewart [2020] EWCA Civ788 »
9     Glencore Energy UK Limited v Commissioners of HMRC [2017] EWHC 1476 (Admin), para 42 »
Time limits for judicial review
Most judicial review proceedings must be started within three months of the decision you want to challenge.1England and Wales r54.5(1) and 54.7A(3) CPR
Scotland s27A Court of Session Act 1988
 
1     England and Wales r54.5(1) and 54.7A(3) CPR
Scotland s27A Court of Session Act 1988
 »
Sending a letter before action
In England and Wales, before applying for judicial review, you must send a ‘letter before action’. This warns the decision maker that you are considering judicial review and contains details of the matter being challenged (as well as other standard contents).1gov.uk/guidance/pre-action-protocol-for-judicial-review You should get a response to a letter before action within 14 days. Where you have a good case, a letter before action will often resolve the problem without you going to court.
It is free to send a letter before action. You do not need a solicitor to help you, but you should get assistance from a welfare rights adviser. There are several template letters before action available at cpag.org.uk/jr/letters.
In Scotland, this requirement does not apply, but it is still good practice to avoid going to court, and sending a letter before action can achieve this result.
Example
Jeffrey claims universal credit (UC) online. As a result of his mental health symptoms, he immediately finds it difficult to keep on top of his online journal and to-do list. He asks his work coach to contact him using letters and phone calls instead, but his work coach says this is not possible. Jeffrey asks to speak to the manager of the job centre but gets the same response. Jeffrey’s health is being affected by the stress of the situation. He gets independent advice and is told that these staff members are not following the DWP’s own policies. His adviser adapts a CPAG template letter before action (see here) and sends it to the DWP’s legal team on Jeffrey’s behalf. Within 14 days they receive a response resolving the issue in Jeffrey’s favour.
 
1     gov.uk/guidance/pre-action-protocol-for-judicial-review »
Judicial review in the High Court or Court of Session
You should get advice if you are considering going beyond the ‘pre-action letter’ stage and starting a claim for judicial review. You are unlikely to be successful without the help of a solicitor or welfare rights adviser and there are costs involved. There is more information about judicial review in CPAG’s Welfare Benefits and Tax Credits Handbook.
6. Getting a determination by Social Security Scotland changed
Note: this section covers the rules that apply to adult disability payment (ADP) (see Chapter 9) and child disability payment (CDP) (see Chapter 11), which are administered by Social Security Scotland 1A Scottish government department that pays many devolved benefits in Scotland. (SSS). It does not apply to the other benefits you can claim while living in Scotland.
Redetermination
If you claim ADP or CDP in the correct way and provide any required evidence, SSS makes a ‘determination’ of your entitlement.1ss37 and 40 SS(S)A 2018 In some situations, SSS must also make a ‘determination without application’ – ie, a new decision on your entitlement which does not follow your making a new benefit claim (see here).
If you disagree with a determination, you can challenge it by requesting a redetermination.2s41 SS(S)A 2018 You must request a redetermination before you can appeal.
Note:
    •If you request a redetermination, every aspect of the previous determination is considered again. If you have been awarded some benefit, the amount of it could be reduced as a result. Seek advice if you have been awarded some benefit and are thinking of requesting a redetermination.
    •If SSS has not made a determination, you cannot request a redetermination.3s41(1) SS(S)A 2018 Your only options are to complain (see here) or apply for judicial review 1A way of challenging the decisions of government departments, local authorities and some tribunals against which there is no right of appeal. (see here).
 
1     ss37 and 40 SS(S)A 2018 »
2     s41 SS(S)A 2018 »
3     s41(1) SS(S)A 2018 »
How to request a redetermination
Check your determination notice carefully to see how to request a redetermination. Usually you can do so by:1Scottish government, If You Disagree with Social Security Scotland’s decision: Requesting a redetermination or an appeal, 5 December 2022, available at mygov.scot/disagree-decision/request-redetermination-or-appeal
    •completing the form which is sent to you with the determination of entitlement or which is available to download online; or
    •telephoning 0800 182 2222; or
    •if you have hearing or speech difficulties, using Relay UK (18001 then 0300 244 4000); or
    •if you use British Sigh Language, using the contactScotland-BSL app.
It is usually best to make your request in writing so that there is a clear record of what you have said and when. See here for points to consider when asking for a redetermination.
 
1     Scottish government, If You Disagree with Social Security Scotland’s decision: Requesting a redetermination or an appeal, 5 December 2022, available at mygov.scot/disagree-decision/request-redetermination-or-appeal
 »
Time limits
 
Time limit for requesting a redetermination
Your request for a redetermination must be received by SSS within 42 days of you being notified of the determination. You are normally treated as being notified of the determination two days after it is sent to you.
If you miss the time limit but your redetermination request is received within one year after you were notified of the determination, your entitlement is still redetermined if you have ‘good reason’ for not making the request sooner. This limit may be extended still further if the delay is due to Covid-19.1ADP Reg 54(1) (and Sch 2 para 1(8) for short-term assistance) DAWAP(S) Regs
CDP Reg 37(1) (and Sch para 1(5) for short-term assistance) DACYP(S) Regs
Both ss41(4)(b), s52A and 62 SS(S)A 2018; r1(2) FTT(S) Rules; r1(2) UT(S) Rules; regs 2 and 3 ST(TL) Regs
 
Time limit for SSS to make a redetermination
Once you have made a valid request for a redetermination, SSS must redetermine your entitlement within 56 calendar days.2ADP Reg 54(2) DAWAP(S) Regs
CDP Reg 37(2) DACYP(S) Regs
 The time limit normally runs from the day SSS receives your redetermination request but there are exceptions. If your entitlement is not redetermined within the time limit, you must be informed of this. You then have the right to appeal to the First-tier Tribunal against the original determination (see here) and, if you choose to, you should do this within 31 days.3ss43(3) and 46 SS(S)A 2018
 
1     ADP Reg 54(1) (and Sch 2 para 1(8) for short-term assistance) DAWAP(S) Regs
CDP Reg 37(1) (and Sch para 1(5) for short-term assistance) DACYP(S) Regs
Both ss41(4)(b), s52A and 62 SS(S)A 2018; r1(2) FTT(S) Rules; r1(2) UT(S) Rules; regs 2 and 3 ST(TL) Regs
 »
2     ADP Reg 54(2) DAWAP(S) Regs
CDP Reg 37(2) DACYP(S) Regs
 »
3     ss43(3) and 46 SS(S)A 2018
 »
Determination without application
‘Determinations without application’ are similar to certain types of revision 1A method of changing a benefit decision, (usually) effective from the date it was originally made. decisions and all supersession 2A method of changing a benefit decision some time after it was made, often because of a change in circumstances. decisions for other benefits (see here). If you are entitled to ADP or CDP, a new determination of your entitlement is made if:1ADP Regs 45-50 and 53 DAWAP(S) Regs
CDP Regs 28-33 and 36 DACYP(S) Regs
    •the award is reviewed at the end of the period specified in your previous determination; or
    •your award was too low due to an official error 3An error by a benefit official, such as getting the law wrong or ignoring relevant information. Not every decision that you disagree with counts as official error – eg, if a decision maker takes a different but reasonable opinion on the evidence available.; or
    •there is a change in your circumstances that may affect your award; or
    •your award was too high due to an ‘error’ in the last determination; or
    •the previous determination was made in ignorance of a ‘material fact’; or
    •the amount of disability living allowance or personal independence payment you were entitled to before your award began changes.
If you think that one of these situations applies, you can contact SSS and ask it for a determination. If SSS makes a determination you do not agree with, you can follow the redetermination process (see here). If SSS does not make a determination, your only options are to complain (see here) or apply for judicial review (see here).
Note: there are complicated rules about the date from which a new determination takes effect. See CPAG’s Welfare Benefits and Tax Credits Handbook.
 
1     ADP Regs 45-50 and 53 DAWAP(S) Regs
CDP Regs 28-33 and 36 DACYP(S) Regs
 »
Process decisions
A ‘process decision’ may be made by SSS if any of the following apply.
    •You claim ADP or CDP in the wrong way, or do not provide some evidence that you need to send with a claim. In this situation, SSS does not have to make a determination. You must be told if your claim will not be determined, and of your right to appeal against this process decision.1s38(1) and (5) SS(S)A 2018
    •You request a redetermination in the wrong way. In this situation, SSS does not have to redetermine your entitlement.2s41(6) SS(S)A 2018 Instead, a process decision is made not to redetermine your entitlement, against which you have a right of appeal. If you are still within the time limit to do so, you should also request a redetermination in the correct way, as you cannot be sure that you will win your appeal.
    •You request a redetermination late and SSS does not accept that you had a good reason. In this situation, SSS makes a process decision not to redetermine your entitlement and you can appeal against it.3s42 SS(S)A 2018
When challenging a process decision, some of the appeal rules are different – eg, you do not have to request a redetermination before appealing.4s61 SS(S)A 2018
 
1     s38(1) and (5) SS(S)A 2018 »
2     s41(6) SS(S)A 2018 »
3     s42 SS(S)A 2018 »
4     s61 SS(S)A 2018 »
Appeals
You can only appeal against a determination of entitlement to ADP or CDP after requesting a redetermination (see here). Appeals about ADP and CDP are decided by the Social Security Chamber of the First-tier Tribunal for Scotland, part of the Scottish Courts and Tribunals Service. The powers of the First-tier Tribunal, the way that hearings take place, and the steps you should take to try to win your appeal are similar to those for appeals about other benefits, although there are some differences. CPAG’s Welfare Benefits and Tax Credits Handbook has more information.
How to make an appeal
You must appeal in the way required by SSS. An appeal form is sent to you with your redetermination notice or notice that the redetermination time limit has been missed.1ss44(1)(b) and 45(1)(b) SS(S)A 2018 You must send the completed form to SSS. SSS also currently allows an appeal to be submitted by telephone (0800 182 2222). If you have hearing or speech difficulties, you can submit an appeal via Relay UK (18001 and then 0300 244 4000) or, if you use British Sign Language, using the contactScotland-BSL app. If you have an appointee 1Someone authorised to claim and receive your benefit on your behalf, when you are unable to manage it yourself., see here.
 
1     ss44(1)(b) and 45(1)(b) SS(S)A 2018 »
Time limits
 
Time limit for making an appeal
Your appeal must be received by SSS within 31 days of you being notified of the redetermination (or of the redetermination time limit being missed by SSS). You are normally treated as receiving a notification two days after it was sent. If you miss this time limit, but your appeal is received within one year after you were notified of the redetermination (or the redetermination time limit was missed), it can still be admitted. This limit may be extended still further if the delay was due to Covid-19.1ss48, 52A(2) and 62 SS(S)A 2018 If your appeal is late, you must explain why.
 
Time limit for SSS to respond to the appeal
Once the First-tier Tribunal decides that your appeal is valid, it informs you and SSS of this in writing. SSS then has 31 days to produce a response to the appeal and send it to the tribunal.2r21(1)-(4) FTT(S) Rules
 
Time limit for the appellant to respond to SSS
You (or your representative) can make written comments or submit evidence in reply to the SSS response. You must do so within 31 days of receiving it. You are treated as receiving the response two days after it was sent.3s62 SS(S)A 2018; rr1(2) and 21(6) and (7) FTT(S) Rules; r1(2) UT(S) Rules; regs 2 and 3 ST(TL) Regs
 
1     ss48, 52A(2) and 62 SS(S)A 2018 »
2     r21(1)-(4) FTT(S) Rules »
3     s62 SS(S)A 2018; rr1(2) and 21(6) and (7) FTT(S) Rules; r1(2) UT(S) Rules; regs 2 and 3 ST(TL) Regs »
The appeal hearing
The rules about hearings for Scottish benefits are similar to those for other benefits (see here).1rr23-27 FTT(S) Rules If your appeal is about the impact of a ‘physical condition or mental health’ on entitlement to ADP or CDP, the First-tier Tribunal consists of a legal member, a doctor and a disability expert. In other cases, there is only a legal member.2Regs 2-4A First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 No.351
 
1     rr23-27 FTT(S) Rules »
2     Regs 2-4A First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 No.351 »
After an appeal
See CPAG’s Welfare Benefits and Tax Credits Handbook for what to do if you disagree with a First-tier Tribunal decision about ADP or CDP.
Payments while awaiting a redetermination or appeal
If you are challenging a determination to reduce or stop your entitlement to ADP or CDP, you may be able to claim short-term assistance. The amount of short-term assistance is the difference between your previous payment prior to the determination that you are challenging, and your current payment (if any).1Both s36 and Sch 10 SS(S)A 2018
ADP Sch 2 para 2(1) DAWAP(S) Regs
CDP Sch para 2(1) DACYP(S) Regs
 You apply for short-term assistance by ticking the relevant box on your redeterermination or appeal form, or by calling the main SSS helpline.
Note: short-term assistance is not a qualifying benefit 1In general, any benefit which gives you entitlement to another benefit, or makes another benefit payable at a higher rate.that allows someone who cares for you to get carer’s allowance (CA), the carer element of universal credit or a young carer grant, and does not increase your entitlement to certain means-tested benefits and tax credits in the way that CDP and ADP do. If you claim short-term assistance, you or your carer may not be able to later get one of the relevant benefits/elements/premiums for the period for which you got short-term assistance, even if your challenge is successful.2s70(2) SSCBA 1992 requires that a qualifying benefit is ‘payable’ to you for someone who cares for you to get CA. Sch para 4 DACYP(S) Regs and Sch 2 para 4 DAWAP(S) Regs appear to prevent payment of the ADP/CDP component if the short-term assistance award for the period was the same amount. Seek advice before claiming short-term assistance if you think that this may affect you.
 
1     Both s36 and Sch 10 SS(S)A 2018
ADP Sch 2 para 2(1) DAWAP(S) Regs
CDP Sch para 2(1) DACYP(S) Regs
 »
2     s70(2) SSCBA 1992 requires that a qualifying benefit is ‘payable’ to you for someone who cares for you to get CA. Sch para 4 DACYP(S) Regs and Sch 2 para 4 DAWAP(S) Regs appear to prevent payment of the ADP/CDP component if the short-term assistance award for the period was the same amount. »
Complaints
If you are unhappy about the way you have been treated by SSS or the way your claim has been handled, you can complain. This includes issues such as delays, the behaviour of staff and bad advice.
You should complain by contacting SSS by telephone (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 that you should normally make your complaint within six months of the event you are complaining about (or within six months of finding out you might have reason to complain).
SSS should attempt to resolve your complaint and, where it cannot, should provide you with a full response, normally within 20 working days. If this takes longer than 20 working days, SSS should keep you updated about how long it will take.
If you are still unhappy after your complaint has been considered by SSS, you can complain to the Scottish Public Services Ombudsman. Usually, you must contact to the Ombudsman within 12 months of the event you are complaining about. Use the online complaint form at spso.org.uk or telephone 0800 377 7330.
Judicial review
Most rules about judicial review 1A way of challenging the decisions of government departments, local authorities and some tribunals against which there is no right of appeal. of SSS decisions and processes are the same as the rules for other public bodies (see here).