Ask CPAG Online - How do you pursue an appeal?
For details of the appeal rules and procedures, see Chapter 57 of the CPAG Handbook. CPAG also produces a guide called 'Winning your benefit appeal: What you need to know'. The following points are particularly relevant to appeals against PIP disability decisions:
How do you submit your appeal?
- You should submit your appeal directly to the First-tier Tribunal (HM Courts and Tribunals Service) on form SSCS1. The form emphasises that a copy of the MR notice must be sent with the appeal. Without this, a clerk will return the appeal to you with a letter stating that it is non-compliant, allowing 21 days for the MR notice to be submitted, failing which the appeal may be ‘struck out’. The requirement to submit a MR notice can be waived by a tribunal clerk, or by a tribunal judge if the clerk has refused.
- The appeal must be received by the tribunal within one calendar month of the date the MR notice was issued to you. If your appeal is late, the time limit can be extended up to a maximum of 13 months, if the DWP does not object. If it does object, the tribunal can still admit the appeal if it is fair and just to do so. You should explain why your appeal was late with any supporting evidence (e.g. you were too ill to deal with your affairs, confirmed by a doctor’s letter). Do not wait to submit your appeal while you are gathering evidence why it is late. You should complete the box in section 5 of the form SSCS1, attaching an extra sheet if required.
- You must give your grounds for appeal in section 5 of the form. See ‘What are the grounds for disputing a PIP disability decision?’ and ‘How should you present your case?’.
- It is always best to request and attend an oral hearing if possible (see section 6 of the form SSCS1). This will give you the opportunity to explain your case (with or without a representative), give your evidence directly to the tribunal, and answer their questions. Section 7 of the form allows you to tell the tribunal about any special needs you have e.g. relating to disability access or hearing problems. In exceptional cases, if you are unable to leave your home (e.g. because of disability or agoraphobia), you could ask for the hearing to take place via the telephone or a video link, or to be held in your home (this is known as a ‘domiciliary hearing’). You should explain your difficulties and a letter from your doctor confirming them. If you opt for the appeal to be decided on the papers, there will be no oral hearing, but you can still send in a written submission, setting out your case (see ‘How should you present your case?’).
What happens next?
You should receive an acknowledgment from the tribunal service that your appeal has been validly made (if it has not, it will be returned to you with details of what you need to do to validate it). The DWP is then sent notice of the appeal and prepares a set of appeal papers (‘response to the appeal’). It must do this within 28 days (unless the tribunal extends the time limit).
You will be sent a copy of the appeal papers. They will include your personal details, the facts of the case, the DWP’s submission explaining its decision, and a schedule of evidence which will normally include copies of your appeal, your PIP2 questionnaire, the PA4 medical report form, the MR notice, and any other evidence (e.g. medical evidence obtained by you or the DWP). You can submit further evidence and a written submission at this stage (see ‘How should you present your case?’).
You must be given at least 14 days’ notice of an oral hearing. There are sometimes long delays in getting your appeal heard and you may have to chase up the tribunal service and, if necessary, make a complaint about an unreasonable delay. You can ask for a hearing to be postponed if, for example, you are unable to attend due to illness or another commitment. You should do this in writing and then telephone the tribunal to confirm whether the postponement has been agreed. The tribunal must decide whether it is fair and just to postpone or to proceed with the hearing in your absence. A hearing which has started can also be adjourned at the discretion of the tribunal (e.g. where further medical evidence is needed).
What happens at the hearing?
- Appeals about the PIP disability conditions are decided by a panel comprising a legally qualified judge (who chairs the proceedings), a registered medical practitioner (usually a doctor), and a person who has knowledge of disability (e.g. through having a disability or working for a disability organisation).
- The tribunal is not permitted to carry out a medical examination of you, but can ask questions about your condition and observe how it affects you. They should tell you about any observations they may rely on to give you the chance to comment on them (see CPIP/2433/2015).
- There are detailed rules about tribunal procedure (see The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008), but tribunals are given wide discretion on how to conduct hearings. They must, however, ensure that appeals are dealt with fairly and justly, avoiding unnecessary formality and ensuring that you are able, as far as possible, able to fully participate in the proceedings.
- You are entitled to be represented at a hearing and accompanied by other professionals, family, friends who may or may not take part in the hearing (i.e. give evidence). The DWP may be represented by a ‘presenting officer’ to explain their case and answer questions, but frequently they do not attend hearings.
- Hearings are usually heard seated around a table in a private room at a designated venue. Technically, all hearings are held in public, but yo can object to the presence of anyone who is not involved in the proceedings. After introductions, you should be given the chance to present your case and will typically be asked questions about your medical condition and how it affects you. In most cases, the tribunal will reach its decision immediately after the hearing and call you back into the tribunal room to inform you or it.
- The tribunal must decide whether, on the balance of probabilities, and taking into account all the relevant evidence, you satisfy the PIP disability conditions, and if so what component and rate of PIP you are entitled to. Note that the tribunal must weigh all the relevant evidence and not automatically give greater weight to the report of the PA4 medical report form. See ‘What are the risks in disputing a decision?’ for the risk of ending up with a less favourable award.
- The tribunal must decide whether the original decision (as revised by the MR process) was correct when it was made. This includes deciding whether you satisfied the disability conditions for 3 months before your claim and were likely to satisfy it for a further 9 months. If your circumstances have changed since your PIP decision (e.g. your medical condition has got worse and you have more care or mobility needs), you should consider making a fresh claim for PIP. The tribunal’s decision on your appeal will run up to the date of the decision on your new claim.
What happens after the hearing?
You will be sent a written decision notice. If you have won your appeal, the DWP should implement the tribunal’s decision as soon as possible (e.g. by paying you PIP or more PIP and any arrears you are owed).
If you lose your appeal, you can challenge it by appealing to the Upper Tribunal (see Chapter 58 of the CPAG Handbook) or asking for the tribunal to be set aside on procedural grounds (see Chapter 57(6)).
To appeal to the Upper Tribunal, you must establish that the tribunal’s decision is erroneous in law. In the case of PIP disability decisions, common errors of law are:
- failure to have proper regard to the wording of the descriptors, taking into account the legal definition of the terms used, and any relevant case law on their meaning;
- failure to have proper regard to the requirement for a claimant to be able to carry out a prescribed activity safely, repeatedly and in a reasonable time;
- failure to properly take into account and / or weigh all the relevant evidence;
- failure to make sufficient findings of fact or adequately explain the reasons for a decision.
The starting point for considering an appeal is to request a copy of the tribunal’s statement of reasons to see if it reveals any errors of law. You may need specialist advice to apply for permission to appeal and pursue your appeal.