Lynsey Dalton considers why and how an appeal, in particular a universal credit (UC) appeal, may be given urgent consideration by a tribunal.
For many benefit claimants, UC will be their primary, if not only, source of income. If their claim is refused, this leaves them with no income while the decision is appealed. Under the legacy system, if one benefit claim was refused, others would often continue to be paid, so a person appealing against a jobseeker’s allowance (JSA) decision, for example, would continue to have her/his housing benefit (HB) covering her/his rent, and potentially child tax credit would meet some of the family’s living costs, while the appeal was pending.
Under UC, a family’s entire benefit income, excluding child benefit and any disability benefits that are in payment, would be stopped, pending appeal. The average age of a case at disposal between January and March 2020 was 31 weeks. A claimant appealing against a decision to refuse her/his UC claim could therefore have little or no income for an average of 31 weeks, beyond the time that has already passed, waiting for a decision on a mandatory reconsideration request. This could result in rent arrears and debts, or possibly destitution, for claimants waiting for an appeal hearing.
There may well be, therefore, an urgent need to have the appeal considered earlier than otherwise would be the case. Arranging for this is called ‘expediting’ the appeal. In theory, any appeal can be expedited, but given the particular importance of UC, this article concentrates on the UC context.
Rules on expedition
Rule 5(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘the Procedure Rules’), grants the tribunal wide case management powers, including the power to shorten the timescale for complying with any rule. Time limits set out in the Procedure Rules, such as the 28 days given to the decision maker to provide a response to the appeal, can therefore be shortened where the tribunal deems this appropriate. However, in most cases, this will only be done where the appellant or her/his representative highlights the urgency of the appeal and specifically requests that it be expedited.
In order to ensure that an expedition request is considered promptly, it is essential that you are clear about what you are requesting. An expedition request that is sent by email should contain the words ‘Expedition request, to be referred to a judge’ or similar in the subject line. Likewise, if sent by post, the covering letter should make it clear that the enclosed document needs to be placed before a judge. The Tribunals Service receives a high volume of emails and letters each day and they are ordinarily dealt with on a ‘first come, first served’ basis. The fact that your letter or email contains an expedition request to be considered by a judge therefore needs to standout, so that it can be identified quickly at the processing centre.
Note that a judge will decide whether the case will be expedited based on this document and so the reasons for the case’s urgency must be explained. You should include details of any hardships experienced by the client, lack of any other income and unavailability of support from family and friends, as these factors are all relevant.
Consideration of the request
Where an expedition request is made, it will be considered by a judge, sitting alone. We have been advised by the tribunal president that the request should be considered as soon as is reasonably practical following receipt and can be made at the same time as an appeal is filed. When making an expedition request, you should consider what steps are needed in order for the appeal to be considered quickly and fairly. If you make the request when the appeal is submitted, you may want the judge to direct that the DWP provide a response within a given amount of time. You may also want to request that all future correspondence relating to the hearing should be by email, or that you are provided with a contact at the DWP that can be emailed directly. To ensure that there are no unnecessary delays, you could prepare the bundle yourself, instead of waiting for the documents from the DWP.
If you submit an expedition request after the DWP’s response has been received, the judge will consider whether a decision can be made on the papers, and make a decision where appropriate. If a decision cannot be made on the papers, the judge will direct a hearing. This will be a remote telephone hearing under current practice. If the judge considers that a hearing is necessary but agrees that the case is urgent, the case will be expedited as requested and will be listed in the next available slot.
When might expedition be appropriate?
It should be remembered that not all cases are suitable for expedition and that requesting expedition in unsuitable cases renders the process ineffective. A request should only be made in cases of genuine urgency. For example, in a case where a person who is unable to work, either through ill health or due to caring responsibilities, has her/his UC claim refused on the basis that s/he does not have a right to reside, the claimant is likely to have no source of income, other than possibly child benefit, while s/he waits for her/his appeal to be considered. Your client may already have rent arrears or debts, accrued while waiting for the mandatory reconsideration notice, and this should be taken into account when assessing the urgency of the case.
Personal independence payment (PIP) appeals are usually unlikely to be considered urgent. While the claimant needs this money to meet the additional costs of his/her disability, s/he will still be receiving subsistence benefits such as UC, or JSA and HB. Where, however, entitlement to UC depended on entitlement to PIP (eg, an otherwise destitute disabled student), this might be different. Likewise, cases where the claimant has been sanctioned, s/he will still receive UC in respect of her/his housing costs and s/he will still get an amount for her/his children, where applicable. S/he may also be able to access hardship payments and so her/his living costs will usually be met, even though her/his income will be minimal.
These are general points. There may of course be other factors in your client’s case that mean that the appeal warrants expedition.
If you have an urgent case under appeal
CPAG is interested in following the journey of an expedited appeal, from expedition application to disposal. If you have submitted an expedition request, please let us know how effectively the request was processed and how quickly the case was heard. If you have started the expedition process but it has been ineffective (eg, if a clearly marked email requesting expedition was not responded to/acknowledged), please get in touch and we will be happy to provide support.
If you have a case that you think is appropriate for expedition but you require further advice and/or support in drafting the application, please contact LDalton@cpag.org.uk.
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