Benefit appeals and reconsiderations

Overview

Get independent advice to challenge decisions

It is always a good idea to seek advice when challenging decisions.  In some cases there is a risk of losing a benefit if you challenge a decision. An example would be where you have been awarded personal independence payment (PIP) daily living component and mobility component both at the standard rate and you ask for a reconsideration or go to appeal to seek the enhanced rate. In this case the decision maker or First-tier Tribunal may look at the whole of your PIP award and may reduce it.

An advice agency will be able to tell you if you have a good case; how to obtain medical or other evidence; and may be able to represent you at an appeal hearing.

If you need help finding an advice agency, please contact the Disability Information Scotland helpline: 0300 323 9961.

If you are unable to get help with your appeal, Disability Information Scotland can provide a more detailed Guide on how to prepare the best case possible.

You can also search the Scottish Disability Directory to find your local welfare rights service.

Mandatory reconsideration before appeal

You cannot appeal against a decision on a DWP-administered benefit until you have asked the DWP to reconsider their decision, in other words, to look at it again. This is called mandatory reconsideration. You must lodge your request for a mandatory reconsideration within one month of the decision letter. The DWP has no time limit to carry out these mandatory reconsiderations.

Employment and Support Allowance and mandatory reconsideration

If your Employment and Support Allowance (ESA) claim is disallowed after your work capability assessment you can be paid ESA while you are appealing, but you cannot be paid ESA during the mandatory reconsideration period.  You may be able to claim other benefits such as jobseeker’s allowance (JSA) during this time.

The government expects straightforward ESA mandatory reconsiderations to take around 14 days. They will take longer if the DWP asks for further information as you will be given one month to provide it. Tactically, you may prefer not to provide further information at this stage as you can still provide it at the appeal stage by which time you may be back on ESA.

If you haven’t claimed JSA or another benefit during the mandatory reconsideration period and you then appeal, you must ask the DWP to put your ESA back into payment as soon as they get your appeal request from HM Courts and Tribunals Service. You will still need to provide fit notes (medical assessment). If you have backdated fit notes to cover the reconsideration period you should get backdated ESA for that period.

If you did claim JSA during the mandatory reconsideration and you then appeal, you must ask the DWP to put you back onto ESA: you won’t have to make a new claim for ESA. You will have to continue to supply medical certificates during the appeal process.

Appeals

You can only appeal after the DWP has carried out a mandatory reconsideration. Once they have completed their reconsideration, they will send you a mandatory reconsideration notice which sets out their reasons and your right to appeal direct to HM Courts and Tribunals Service.  You can appeal by letter but it is best to use appeal form SSCS1, available from HM Courts and Tribunals. You may also be able to get the SSCS1 in paper from independent advice centres.

SSC1 Form

You can download an SSCS1 form

Your appeal must be received by the Tribunals Service within one month of the date on the mandatory reconsideration notice.

Some points on completing the SSCS1:

• You must include the DWP mandatory reconsideration letter.

• Section 4. ‘Representative’. Do not assume that an organisation will represent you just because it has helped you in the past. You must check with them first. If you need help finding an advice agency, please contact our helpline.

• Section 5.’Grounds for appeal’. We suggest you say: “I wish to appeal against the decision on my “benefit name” claim. I do not believe that the decision maker has fully considered my medical condition and how it affects me. I request a copy of all evidence used in making the decision to be sent to me.”

• Again, you may want to include supporting evidence from, for example, a professional who knows you. See ‘supporting evidence’ below. If your appeal contains further or new evidence, the DWP should look again at its decision.

• Section 6. If you choose to attend a hearing, you will be sent a date. It is generally best to opt for an oral hearing particularly if you are appealing a decision relating to your fitness for work or disability. This is because the tribunal can ask questions at an oral hearing about anything that is unclear. The tribunal can’t do this with paper hearings and so it cannot give you the benefit of the doubt over any gaps in your evidence. About 50% of oral hearings are successful while less than 20% of paper hearings succeed. Your chances of success are higher still if you attend the hearing with a representative.

When you send back your form, HMCTS will check that your appeal is legally valid. If your appeal is accepted, the DWP will be told you have appealed and will prepare their response. The response will:

• give reasons for the decision
• include a copy of your claim form and any other letters and forms you have filled in
• say what law they have used to make the decision.

HM Courts and Tribunals Service will also write to tell you what will happen next.

Supporting evidence

Your GP may be prepared to provide a letter confirming your medical conditions and medication.  They are not obliged to do this and may make a charge. You could also ask for a letter from anyone else helping you, such as a support worker, CPN, hospital doctor, physiotherapist, health visitor.

Alternatively you may be able to obtain a copy of your medical records, again there may be a charge for this.

The tribunal can only consider your condition at the date of the decision. Therefore, you should ask that any supporting evidence relates to your situation at that time.  Ideally any supporting evidence will not only confirm your diagnosed condition but also how you meet the criteria for an award of the benefit.

Your own evidence (for example what you wrote in your claim form or what you tell the tribunal in your own words) can be sufficient for the tribunal to allow your appeal.

The appeal hearing

The tribunal panel consists of two or three members. Sometimes, the DWP may send a Presenting Officer whose job it is to explain to the tribunal why the decision was made rather than to defend the decision.

The tribunal is not a contest between you and the DWP but a discussion about your difficulties and how you satisfy the criteria.

The tribunal can only consider your condition at the date of the decision which you are appealing. You will find that date on the front page of the appeal papers where it states “date of decision:”

Nevertheless you may be asked whether you are better, worse or about the same compared to the date of the decision. If you are better or worse, the tribunal cannot take that into account, but they would have to remind you when you answer their questions to cast your mind back to how you were at the date of the decision.

If, however, your condition is about the same now as it was then, you can simply answer the tribunal’s questions based upon how you are now

Further information and useful contacts