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Appealing to the Upper Tribunal against a First-tier Tribunal decision

Disability Rights UK Factsheet F39

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This factsheet looks first at how to appeal to the Upper Tribunal (UT) and then at how to show that the First-tier Tribunal (FTT) has made a legal error. It follows on from our Factsheet on appeals and mandatory reconsideration, which explains benefit decision-making procedures from making a benefit claim to appealing to an FTT. We recommend that anyone who wants to appeal to the UT should seek specialist advice and see below: 13 Where can I get more help or information?

1. The Upper Tribunal

The Upper Tribunal is part of the Administrative Appeals Chamber within HM Courts and Tribunals Service (HMCTS), which is in the Ministry of Justice,  and it decides appeals from decisions of the FTT in social security, tax credits, child trust fund, child support maintenance, housing benefit and council tax benefit cases. All tribunals are chaired by judges.

The name Upper Tribunal applies in Great Britain while in Northern Ireland the UT and the UT judges are known as the Commissioners. The UT is independent of the Department for Work and Pensions (DWP), HM Revenue and Customs (HMRC) and local authorities. UT decisions (and Commissioners decisions as they were known up to 2008) set legal precedent: their interpretation of the law and their reasoning must be followed by FTTs and decision-makers.

The only ground for appealing to the UT against the FTT decision is that the FTT has made an 'error of law'. Both the benefit claimant and the decision-maker can appeal to the UT.

Outcomes of an appeal to the Upper Tribunal 

The UT can do any of the following:

  • if it finds that a FTT decision is wrong in law it can give the decision that the FTT should have given - if it can do so without making fresh or further findings of fact; or
  • it can make fresh or further findings of fact, and then give a decision; or
  • if there aren't enough findings of fact, and it doesn't make new findings, it can refer the case to a new FTT. This is called a 'set aside'. The UT may give directions to the new tribunal to make sure the error of law is not repeated.

There is a quicker procedure: if both you and the decision-maker agree on an outcome, the UT can set aside the FTT's decision by consent.

The appeal process can take several months and may not be successful. Always think about making a fresh claim if the FTT refused benefit, or asking for a supersession if it awarded benefit at a lower rate than expected.

2. The FTT’s decision

At the end of most FTT hearings, the judge hands a 'summary notice' of the FTT’s decision to both parties. If the appeal was decided on paper without a hearing, or the FTT cannot come to a decision immediately, the summary notice is posted to both parties as soon as practicable.

Because the summary decision only states the FTT’s decision in brief, you are not allowed to appeal to the UT without first obtaining the FTT’s 'statement of reasons' - except in exceptional circumstances, for example where the Courts and Tribunals Service cannot produce a statement of reasons.

You must ask for the statement of reasons in writing within one month of the summary notice being given or posted - although the FTT has power to extend this.

The record of proceedings

When you ask for the tribunal's full written statement of the reasons for its decision you should also ask for its 'record of proceedings', which is the note that the judge is under a duty to take about what happened during the hearing. It can help establish grounds for appeal. HMCTS should normally send it to you on request.

3. Asking the FTT for leave to appeal

To appeal to the UT you must first ask the FTT itself for leave (permission) to appeal. Your application for leave must reach the Courts and Tribunals Service within one month of the date that the FTT’s statement of reasons was posted to you. There is no special form to apply for leave so write a letter stating why you think the decision was legally wrong and what result you seek. Head it 'Application for permission to appeal to the Upper Tribunal'. Make a copy, and send it to the clerk to the tribunal that heard your case, together with copies of the tribunal's decision notice and its statement of reasons.

If you apply for leave without a statement of reasons, the tribunal has discretion to treat your application as a request for one. An application can only be allowed without a statement of reasons if the tribunal thinks it is in the interests of justice to do so.

Reviewing the decision

On receiving your application for permission to appeal, the FTT can review its decision. In particular, the FTT can:

  • correct an accidental error in the decision;
  • amend the reasons for the decision; or
  • set aside the decision.

A tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other of these outcomes.

The tribunal must write to ask each party if it has any comments before it changes its decision following a review. If it sets aside the decision, it must make a new decision or order a rehearing.

The tribunal must write to notify you of any new or amended decision. If you think that the new or amended decision (still) contains an error of law, you have one month from the date that the notification is sent to ask again for permission to appeal to the Upper Tribunal.

If the FTT sets aside its decision

If the FTT sets aside its decision, a new FTT made up of different members is arranged that will hear the appeal afresh.

If the FTT grants leave to appeal

When the FTT sends you written notice granting leave to appeal, you must give written notice of appeal to the UT on form UT1 within one month (see 4 below).

If the FTT refuses leave to appeal

When the FTT sends you written notice refusing leave to appeal, you can apply direct to the UT for leave to appeal within one month on form UT1 (see 4 below).

4. Asking the UT for leave to appeal

You must use Form UT1 to ask for leave to appeal. Form UT1 is sent with the FTT notice and is available at www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/aa/form/index.htm. It asks for your main grounds of appeal and you can either set them out again or attach your letter applying for leave to the FTT (see above) and refer to it. You can give additional grounds if you wish.

If the UT grants leave to appeal, it will write to tell you and your appeal then moves to the next stage of the process: see 5 After leave is granted below.

If the UT refuses leave to appeal you cannot normally appeal again - but see 11. Further appeal below.

Along with your form UT1, you must send:

  • a copy of the FTT decision notice 
  • a copy of the FTT written statement of reasons
  • the FTT letter granting or refusing permission to appeal
  • a copy of any funding notice or legal aid certificate (see 12. Legal Aid below),
  • a copy of any Appointment to Act (if someone is acting on your behalf).

5. After leave is granted

You will be given a hearing date. Whether it will be an oral hearing depends on whether you ask for one or the decision maker asks for one or the UT judge requires one.  If not, the appeal is decided on the paperwork alone - and most of them are. As the UT has only limited power to investigate the facts, no new evidence needs to be heard or examined. It is usually possible for the UT to determine whether a legal error has occurred by considering written arguments alone. Appeals that are particularly complex or could establish an important legal precedent can be decided at an oral hearing.

6. Paper appeals

The UT obtains copies of the appeal papers from the Courts and Tribunals Service. The party who did not appeal is sent a copy of the application for leave and asked to make a submission within a set time. A copy of this submission is sent to the party who appealed. Further submissions are sent between parties until neither has further comment. The appeal is then put before a UT judge to decide it on the papers. S/he can order the parties to make further submissions as s/he thinks necessary or order an oral hearing. Once the UT has enough information, it will make a decision and send it in writing to the parties.

7. Oral hearings

If the UT agrees to (or orders) an oral hearing, both parties are asked to submit skeleton arguments in advance. The judge (or in complex cases, a tribunal of three judges) who will decide the appeal will examine the arguments and may ask for  further submissions. At the hearing each party is asked in turn to argue their case, with the appellant (the party that made the appeal) going first. The judge can ask questions on any point at any time. At the end each party sums up their case. The UT will rarely announce its decision at the end of the hearing, but will usually reserve judgment and send each party a written decision.

8. Grounds for appeal

There is only one ground of appeal to the UT, which is that the FTT made an 'error of law'. This term covers a wider range of errors than many people first imagine. The FTT's statement of reasons must show that it:

  • applied the law correctly
  • made correct factual findings 
  • gave adequate reasons for its decision
  • made the decision in the correct way
  • obeyed the rules of natural justice

A failure to do any of these can constitute an error of law.

Much case law, from both the UT and the higher courts, concerns errors of law in FTT decisions, including where the FTT:

I.   Applied the wrong law, for example it used the wrong legislation, misunderstood the legislation or overlooked relevant case law.

II.  Made incorrect factual findings: to make a decision the FTT must decide what the facts are and not take into account irrelevant facts.

III. Gave inadequate reasons: the FTT must explain its decision and explain how the evidence established the facts and why the facts made it apply the law in the way it did.

IV.  Made a decision that is not supported by the evidence: for example where the FTT ignored or overlooked evidence, misinterpreted evidence, took into account irrelevant evidence or made a decision that does follow from the evidence.

V.   Made a 'perverse' decision, that is where it has acted irrationally and in a way that no reasonable FTT would have done.

VI.  Has breached of the 'rules of natural justice'. This includes failing to follow FTT procedure, for example failing to give parties 14 days’ notice of an oral appeal hearing or failing to inform parties that it intends to take into account a matter not addressed in the appeal papers or during the hearing. It also includes failure to follow due process that applies to all types of judicial hearing, for example bias or not allowing a party to speak.

9. Finding grounds for an appeal

Some appeals to FTTs are made solely because the claimant disagrees with the DWP’s interpretation of the law and the FTT decides whose interpretation it prefers. In these appeals identifying the potential error of law can be relatively straightforward – the legal argument that failed before the FTT is restated to the UT, but now also addresses any alternative interpretation that arose during the course of the appeal.

Most appeals however are not primarily about bare legal interpretation. In these cases, identifying potential errors of law involves a careful study of the law, the evidence (including oral evidence from the hearing), the FTT statement of reasons and how the hearing was conducted.

The FTT statement of reasons must adequately explain how it reached its decision. An oft-quoted Commissioners’ decision states that:

“The minimum requirement must at least be that the claimant looking at the decision should be able to discern on the face of it why the evidence has failed to satisfy the authority.” (R(A)1/72).

Anything less is potentially an error of law.

An ideal FTT statement of reasons will:

  • state the law that applies to the question under appeal and the case law that supports its interpretation. If case law is contradictory, the FTT will explain why it chose to follow a particular case: for instance because it fits the facts of this appeal more closely.
  • state the relevant facts. It will say what evidence it used to establish the facts.
  • include a discussion of the evidence. If evidence is contradictory it will explain why favoured some evidence over other evidence
  • explain how its application of the law to the facts produced the outcome stated in the decision.

To find grounds for an appeal you should compare the FTT’s reasons with the case papers, its record of proceedings and your own notes or memory of what happened in the FTT. Do the reasons adequately explain how the FTT came to its decision? If not, what is missing? Try to express anything that is missing in terms of grounds I to VI above. If you can do so, you may have established an error of law that is grounds for an appeal.

10 Setting out grounds for appeal

There is no set structure for setting out your grounds for appeal. Set them out logically and explain why you think the FTT’s decision is wrong. You can appeal to the UT on more than one ground. If you the think that the decision has more than one legal error, set out each error separately under its own heading. Make sure your request for leave contains your (client's) name and address, date of birth, national insurance number and appeal reference number.

11. Further appeal

If the UT refuses leave to appeal you may

  • apply to the Upper Tribunal for a decision on an appeal to be set aside on certain limited procedural grounds, or 
  • appeal to the Court of Appeal against the decision of Upper Tribunal.

For more information see www.justice.gov.uk.  

12. Legal aid and legal costs at tribunals

Legal aid helps people pay for the cost of getting legal advice. You must meet certain conditions to be eligible for legal aid, including being on a low income. You cannot get Legal Aid for most cases about welfare benefits, nor for most cases about employment, housing and debt, but there are important exceptions. For welfare benefits, the exceptions include appeals in the Upper Tribunal and higher courts. For more information see Legal Aid, Sentencing and Punishment of Offenders Act 2012.

You won’t have to pay any costs or fees when you appeal to the Upper Tribunal. Costs or fees apply from July 2013 in Employment Tribunals but they are quite separate from the Administrative Appeals Chamber where the Upper Tribunal belongs.

13 The Human Rights Act 1998 (HRA)

The Human Rights Act (HRA) and the European Convention of Human Rights (ECHR) set out various rights that may give you grounds for appeal. An example is Article 6 - The Right to a Fair Trial. This gives you the right to an independent and impartial hearing of your case. There is more information in Factsheet F1 - human rights act.

14. Judicial review

Judicial review is a type of court proceeding in which a judge looks at the lawfulness of a decision or action made by a public body, such as a tribunal. In other words, judicial reviews look at the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is possible to challenge a FTT decision by seeking a judicial review in the UT (but not if you have a right of appeal to the UT anyway). We recommend that you seek specialist advice about judicial review in the High Court because there are strict time limits and you can be liable for legal costs and there are differences between England and Wales and Scotland and Northern Ireland.

15 Where can I get more help or information?

This factsheet is a basic overview of appealing to the Upper Tribunal. You can find out more detailed information in our Disability Rights Handbook. This and all our other publications are available from our shop at https://crm.disabilityrightsuk.org/. You can also place orders by contacting Disability Rights UK.

You can get help and information at your local advice centre, such as a Citizens Advice Bureau. You can get more information about where to get personal advice from our Factsheet F15 - Getting advice. All our factsheets are free to download on our website at www.disabilityrightsuk.org.

For more information on the appeals process see our appeals factsheet pages.

Robbie Spence
18 March 2014

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