Appeals toolkit: decisions and mandatory reconsideration

Basic representation level 1

Introduction

This section is aimed at advisers new to representation.

You can develop your skills and confidence by:

  • undertaking some of CPAG's specialist training on appeals and representation - see the links on the right hand panel.
  • using CPAG's handbooks, including our new short guide, 'Winning your benefit appeal: What you need to know'. This toolkit is intended to complement the book, which contains a lot more detail on the background, process and tactics of an appeal.The book also contains references to official guidance, forms and caselaw, much of which you should be able to find in this toolkit.
  • taking an hour or so to do a short elearning course - new appeals module.

We have arranged the resources for advisers into the following sections:

  • Decisions and mandatory reconsideration: including official guidance for representatives (this page)
  • Making the appeal and getting evidence: including forms, sample letters and templates
  • The tribunal: including procedures and tips from Judges
Getting a decision - what next?

In most cases, you must request a mandatory reconsideration (see below) before you can exercise your right of appeal. The right of appeal against certain benefit decisions is set out in the law, under the Social Security Act 1998, (Section 12), and is also enshrined in the European Convention on Human Rights Article 6, which says 'in the determination of civil rights and obligations...,everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

Without a system of checks and balances, and the opportunity for the voluntary sector or others advocating in the individual’s best interests, the social security system cannot be relied upon to guarantee a fair outcome for all.

Read the decision and check the following:

  • Is it the kind of decision that has the right of appeal?
  • Do you need to ask for a reconsideration before you can appeal?
  • What is the date on the decision letter?
Which decisions can you appeal?

Most decisions on your entitlement to benefit have a right of appeal. These commonly include when it has been decided that:

  • You are not entitled to a benefit;
  • You are not entitled to a particular premium, component or element of a benefit (for example the support component of employment and support allowance);
  • You are living with a partner as a couple;
  • You have income or capital (savings, property, etc) of a certain amount or value;
  • You have been sanctioned for failing to meet your work-related requirements;
  • For some benefits, that an overpayment is recoverable because you failed to disclose or misrepresented a material fact.

The right of appeal against certain types of decisions is set out in the Social Security Act 1998, Schedule 2

The decision letter should tell you that you have the right of appeal against the decision. In many cases, you only have the right of appeal after you have gone through the 'mandatory reconsideration' stage.

Which decisions can’t you appeal?

There are some decisions, generally about payment and administration, which you cannot appeal. Certain types of decisions which you can’t appeal are set out in the Social Security Act 1998, Schedule 3.

What is ‘mandatory reconsideration’?

This is the process where you must first ask the department that made the decision to reconsider it before you have the right of appeal to an independent tribunal. This is known as ‘mandatory reconsideration’ or requesting a revision.

Mandatory reconsideration applies to all DWP benefit decisions made on or after 28 October 2013. It applies to HMRC benefits and tax credits for decisions made on or after 6 April 2014. It does not apply to housing benefit.

The reconsideration must be requested within one month (30 days for tax credit decisions) of the date on the decision letter. If late, give reasons.

See right-hand panel for a basic template of a mandatory reconsideration letter. If you are writing on behalf of the claimant, you must include a signed form of authority.

There is no time limit for how long it takes the DWP or HMRC to reconsider the decision. The government stated in a Parliamentary answer that a 'straightforward' ESA reconsideration should take around 14 days.  If the claimant is without income during this period, it is very important to check if they can claim any other benefits or apply for a Scottish Welfare Fund crisis grant from their local authority.

Once the mandatory reconsideration stage has been completed, the claimant is sent a 'mandatory reconsideration notice', and has the right of appeal.

What if the date of the decision is more than a month ago?

You have one calendar month (30 days for tax credit decisions) from the date of the decision to request a reconsideration (or appeal). If the decision was made more than a month ago, it is very important to give reasons why you were unable to request a reconsideration (or appeal) in time. The kind of reasons that may be acceptable include:

  • illness or bereavement
  • postal disruption
  • learning or language difficulties
  • difficulty obtaining evidence to support your request

This list is not exhaustive. Note that the later the application, the more compelling the circumstances must be. The DWP or HMRC has discretion to accept a late request for a mandatory reconsideration, but in some cases may refuse to do so - in this case there is no right of appeal and the only remedy is judicial review.

If the decision is wrong because of a mistake by the department administering the benefit, you can ask for it to be revised later, but the decision maker has to agree that it was an official error.

More information on housing benefit decisions and appeals

Housing benefit is administered by your local authority.

  • Your local authority may provide a form for you to use if you wish to challenge a decision, or you can write a letter. 
  • If you ask for a revision, and the decision is not changed, you then need to appeal.
  • If you ask for an appeal, the local authority may reconsider the decision but if it is not changed, your appeal should be passed to HM Courts & Tribunals Service.
  • If a decision is changed but you have not got everything you wanted, you need to appeal again.
  • A revision or appeal should be made within one month - if late, give reasons.

See links on the right hand panel if you wish to appeal about a 'bedroom tax' decision.

More information on HMRC decisions and appeals

Tax credits, child benefit and guardian's allowance are administered by HM Revenue & Customs (HMRC). There is a slightly different procedure for HMRC appeals:

  • The right of appeal against certain tax credit decisions is set out in the Tax Credits Act 2002, Section 38 which only applies after a review (mandatory reconsideration) has been requested under section 21A has been carried out and the outcome has been notified to the claimant.
  • There is a special 'reconsideration' form; WTC/AP for tax credits, and CH24A for child benefit and guardian's allowance.
  • Representatives should use form TC689 signed authority to act on claimant's behalf, but it is also advisable to ensure the claimant signs the mandatory reconsideration request if possible.
  • If you appeal against a tax credit decision during a tax year, and you are still waiting for the outcome at the end of the tax year, you must also appeal against the final decision on your entitlement.
  • The time limit for tax credits reconsiderations is 30 days. 
  • The time limit for tax credit appeals is one month.
  • HMRC refers to a process called 'settlement', when appeals may be resolved by agreement before the tribunal.
  • HMRC states that an appeal will either be settled or ready to go to HMCTS within 42 days (see July 2013 Consultation Group minutes)
  • A mandatory reconsideration must be carried out as soon as is reasonably practicable, and HMRC has a target of 42 days.
  • Caselaw has found there is a right of appeal against a decision to reject a 'defective' claim for tax credits (i.e. one not made on the correct form or not containing all the required information)

See our Tax credits toolkit for more.

Next: Making the appeal and getting evidence