When a claimant disagrees with a benefit or Tax Credit decision, they have the right to challenge it. The first step in challenging is called a mandatory reconsideration or revision, where the DWP (or LA or HMRC) look again at their decision. If the claimant is not satisfied with the outcome of the mandatory reconsideration / revision, they can appeal to the First Tier Tribunal.
Claimants can choose whether they want a ‘paper’ appeal hearing (which they do not attend – the FTT makes its decision based on the papers) or an ‘oral’ hearing (when the claimant attends a hearing).
Usually the claimant has a better chance of winning their appeal if they opt for an oral hearing, especially for Work Capability Assessment (fitness for work) decisions and disability benefit decisions. This allows them the opportunity of explaining their case directly to the FTT. They can have a representative to help them with their appeal.
Information about online services from HMCTS here.
Oral hearings - what's the latest?
HM Courts & Tribunals Service is open again for face to face appeal hearings.
However, HMCTS's Update on recovery document suggests that increased use of technology, and other innovations, will continue to be used in order to reduce risk of infection.
During the pandemic, appeals were not held in courts or other public venues. Instead, all oral hearings were conducted over the phone or via video call.
Since July 2020, face to face appeal hearings have been possible again. However, appeals continue to be conducted via telephone / video in many cases. The appeal form SSCS1 asks the appellant to tick all of the suitable options for them: telephone; video; face to face.
HM Courts & Tribunals Service was already considering and testing remote (video / telephone) hearings before the pandemic hit - so these are likely to continue to be an alternative option to a face to face hearing in the long term.
If the appeal is to be conducted over telephone or by video call, if the claimant has a representative who is not able to be present with the claimant, it is essential that HM Courts & Tribunals Service (HMCTS) have the contact details for the representative beforehand, so that a conference call / video call can include all parties. If HMCTS say this is not possible, make sure the claimant gets it noted down during the hearing that this made things more difficult for them. (This might come in useful later on if they are trying to show grounds to appeal to the Upper Tribunal).
If there is any reason why the claimant would have difficulty managing a telephone or video hearing (eg hearing impairment or mental health problems) they or their representative should notify HMCTS straight away, so this matter can be addressed.
If the claimant wants a household member to be with them during the telephone / video hearing for moral support or to help them give evidence, they should notify HMCTS in advance.
How the telephone hearing process should work
- Leaflet sent out to Appellant’s in advance explaining the process - click here
- Judge (normally the Clerk) will make contact prior to the hearing and make sure that all parties are available and ready
- All parties are required to be in a private room, free from interruption and the appellant can have family, friend or support worker present
- Appeal begins with introductions and reminder that the hearing must not be recorded- so no Siri. Possible contempt of court
- If the hearing is interrupted or that there is too much noise the hearing may be halted
- Appeal will be heard as ‘usual’
- Decision will be sent out by post.
Due to the pandemic, new rules were brought in (from March 2020 for a 6 month period) to speed up the process / cut down on the backlog of appeals. FTT Judges can make a provisional decision on the papers, without an oral hearing, even if an oral hearing has been requested.
Judges are only likely to do this if the decision is likely to go in favour of the claimant.
If the claimant and the DWP agree with the provisional decision, it is converted into a binding decision. If either party disagrees with the provisional decision, they need to notify HMCTS of this within 28 days and the case will then be listed for an oral hearing.
Tip – If the claimant (or their representative) has submitted a strong case with supporting evidence in their written submission, the FTT might make a favourable decision on the papers and they could get the result they are hoping for without having to go through a hearing.
Tip – Claimants who are not happy with their provisional offer should seek specialist advice if they can. If they proceed to an oral hearing they might get a lower (or no) award.
In order to avoid delays in hearing appeals, a temporary rule was introduced for a period of 6 months from March 2020, whereby Tribunals could, where appropriate, consist of fewer members than would normally be required. This could mean a Judge was the only FTT member.
Urgent cases - If a decision is urgent, a hearing is not reasonably practicable and it is in the interests of justice to do so, the Tribunal can make a decision on the papers without the parties’ consent.
A judge will need to decide which cases are urgent. This is most likely to be cases where the claimant is in financial hardship due to having no payment of benefit. Someone who has had their award of PIP removed could also be seen as an urgent case. Claimants will need to explain their particular circumstances as they will be looked at case by case.
Amending regulations here