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Appeals and mandatory reconsideration

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Disability Rights UK Factsheet F36

1. Introduction

This factsheet is for people who want to challenge a decision on a benefit administered by the Department for Work and Pensions (DWP); including benefits such as employment and support allowance, disability living allowance and personal independence payment.

For benefits that are not administered by the DWP, decision-making is done differently and by different offices. The differences between the main DWP-administered benefits and other benefits are not covered in this factsheet; for more detailed information, see our Disability Rights Handbook.

Ways of changing decisions

The main ways in which the DWP changes decisions is by revising them or superseding them. When they ‘revise’ a decision, they replace it with a new decision that takes effect from the date it was originally made. It is as if the original decision had never existed. On the other hand, when they ‘supersede’ a decision, they replace it with a new decision that takes effect from that moment onwards – like a substitute coming into a football match part way through the game.

Appeals

You have the right to appeal to an independent tribunal, the ‘First-tier Tribunal’, against most benefit decisions. However, you cannot appeal against a decision on a DWP-administered benefit until you have first asked the DWP to reconsider their decision. This is called a ‘mandatory reconsideration’ (see 2 below). If you disagree with the reconsidered decision, you can then appeal and take your case to a tribunal. For more on appeals, see 3 below.

2. Mandatory reconsiderations

The dispute period

There is a ‘dispute period’, which is normally one calendar month from the date the decision is sent to you, during which you can ask for a mandatory reconsideration of the decision. When you do this, a decision maker will look at your reconsideration request and, if they agree with it, they will revise the decision.

If you have missed the one-month deadline, you may be able to ask for a late revision. This may be accepted up to 12 months (or 13 months in the case of personal independence payment and universal credit) after the normal deadline if:

  • the decision maker thinks it is reasonable; and
  • special circumstances made it impracticable for you to seek a revision within one month.

If you have missed this extended deadline, it may still be possible in some cases to get a special kind of revision known as an ‘any time’ revision. For more on this, see our Disability Rights Handbook.

How do you ask for a mandatory reconsideration?

You can ask for a mandatory reconsideration over the phone, but you should confirm your request in writing. Write to the office address on the decision letter and keep a copy of your request.

When you ask for a mandatory reconsideration, you should explain why you think the decision is wrong. If you can, get evidence to back up your argument.

In the case of benefits paid because of your disability or health condition, such as personal independence payment (PIP) or employment and support allowance, you may need to see the evidence that was used in making the decision before you can properly argue your case. In this case, when you phone the DWP, you should do the following:

  • request a mandatory reconsideration of the decision. State your grounds simply at this stage, such as (for PIP), ‘I believe that you have underestimated the degree of my disability and consequently underestimated the extent of my mobility problems and/or the difficulties I have in carrying out daily living activities’;
  • ask them to send you copies of all the evidence that was used in making the decision; and
  • ask them not to take any further action until you have had the chance of responding to that evidence.

When you do receive the evidence, you should have a better idea of why the decision was made. This will help you frame your argument and build up evidence to support your case.

Building a case: disability benefits

Sometimes the only evidence used will be the information you gave on the claim-form for the benefit in question. In most cases, however, there will be a report produced by a healthcare professional who was asked to assess you on behalf of the DWP.

Once you have obtained a copy of this report, compare it with the account that you gave of your circumstances on the claim-form. Try to find where a difference of opinion arises. For example, you may have written on the form that you could not get on and off the toilet without support, but the healthcare professional noted in their report that they thought you could manage by yourself. Now try to get medical evidence showing that what you said on the form was correct – eg a letter from your doctor or consultant confirming the difficulties and risks you have getting on and off the toilet unassisted.

Once you have obtained evidence to support your case, send a copy of it to the address on the decision letter. If it is likely to take a while to obtain the evidence, you must inform the DWP how long this is likely to take, so they do not make a decision straight away.

The mandatory reconsideration notice

Once a decision has been reconsidered, the decision maker will send you two copies of a ‘mandatory reconsideration notice’ to let you know the outcome. You will need the extra copy of the notice if you wish to appeal.

3. Appeals

Appeals for DWP-administered benefits are independent of the DWP and are run by the HM Courts & Tribunals Service (HMCTS). Appeals are made direct to HMCTS.

How to appeal

Appeals for DWP-administered benefits can be made on form SSCS1. This can be downloaded from: www.gov.uk/social-security-child-support-tribunal/appeal-tribunal. Your appeal must include a copy of the mandatory reconsideration notice (see 2 above).

One of the questions on the form asks if you want to attend a hearing of your appeal or if you want it to be decided on the papers alone. It is better to attend, particularly if you are appealing against a decision relating to your disability or health condition.

Time limits to appeal

Your appeal must normally reach the HMCTS within one calendar month of the date that the mandatory reconsideration notice was sent to you. If your appeal is late, you must explain why. The appeal tribunal will consider your reasons and can extend the time limit by up to 12 months. Longer delays need better reasons.

The appeal response

The HMCTS will send a copy of your appeal to the DWP and ask them to provide a ‘response’ to explain how they came to their decision. The DWP must do this within 28 days – although they can ask for an extension. The DWP will send you a copy of the response.

4. At the hearing

You must be given 14 days’ notice of the time and place of the appeal hearing. The appeal should be informal. The appeal tribunal will be made up of a legally qualified judge and possibly one or two other people, depending on the type of appeal. In the case of disability benefits (such as disability living allowance or personal independence payment), one of these people will be a doctor. Sometimes there is also a representative from the DWP, to put their case.

The judge will normally introduce the tribunal and explain its role. They usually go on to ask you questions about the issues related to your appeal. For disability-related appeals, they will often ask you to describe what you do on an average day. You should be given the opportunity to explain your case.

Once the tribunal is satisfied that everyone has had the chance to put its case, they will ask you to leave the tribunal room while they make the decision.

5. The appeal decision

You will get a decision notice on the day of the hearing or soon after. A copy of the decision notice is sent to the DWP so they can put the tribunal decision into effect and pay you any benefit owed.

If the appeal is unsuccessful, you can ask for a more detailed explanation, the ‘statement of reasons’ for the decision. You have one month from the date of the tribunal decision in which to do this. Once you have read the statement of reasons, it should be clear to you how and why you have been unsuccessful.

If you disagree with the decision, you may be able to appeal further to an ‘Upper Tribunal’. You can only do this if the tribunal has made a legal error. For more on appealing to Upper Tribunals, see our Disability Rights Handbook

6. Get independent advice

It is a good idea to seek advice when challenging decisions.  See our Getting Advice factsheet for how to find an advice centre that may be able to support you.

More information

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.

Ian Greaves
12 May 2016

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