The Welfare Reform Act 2012 introduced wholesale changes to the Social Security system with the introduction of Universal Credit and Personal Independence Payment.

The aim of the Act was supposedly to simplify the way benefits could be claimed, but arguably, it has had the opposite effect. 

New claimants are no longer able to claim legacy benefits[i] and existing DLA claimants are being asked to transfer onto PIP. The Department of Works and Pensions (DWP) made decisions that reduced or removed entitlement to benefit and many thousands of people found themselves financially in a worse position, even when their circumstances had not changed.

The question is: is it worth challenging the DWP’s decision? The answer is, overwhelmingly, YES.

Recent statistics from the Ministry of Justice show that an average 70% of appeals are overturned in the claimant’s favour, which is an increase from 65% for the same period last year.

The statistics for ESA, and PIP appeals are even more impressive with a success rate of 74%, and 73%, respectively. The statistics for DLA and UC appeals are slightly lower but still have a success rate of 66% and 58%, respectively.

Worryingly, despite the success of Social Security appeals, the number of applications submitted to HMCTS has actually reduced by 19%. This could be due to the abolition of ESA new claims (appeals for ESA are reduced by 42%) but generally, the figures for appeals submitted to HMCTS have been gradually falling from the previous year. It could be that thousands of claimants are not pursuing a challenge when they have legitimate appeal.

Many claimants are confused by the process of challenging a decision due to disability or language barriers. Many may become overwhelmed with paperwork and don’t know where to start. Many claimants have been advised by the DWP that it’s not worth appealing and this is simply the wrong advice.

The initial problem, when deciding if it’s worth challenging a decision, is that the DWP only tell you the final outcome and do not provide any evidence used by the Decision Maker. Often, the information used by the DWP can contain factual errors or inaccuracies which could substantially effect the decision-making process. You should therefore challenge the decision and always ask for a copy of the evidence used by the Decision Maker.

How to challenge the DWP

The first step in challenging any decision from the DWP is to request a Mandatory Reconsideration (MR).

This can be done in writing, over the telephone, or, by completing a DWP form. You only need to say that you disagree with the decision but it does help if you can explain what you want to be reconsidered and why. When (or if) you receive the evidence from the DWP you can provide additional information to support your MR.

The DWP should now carry out a full review following your request although the majority of decisions will not change the outcome.

The DWP will then issue a MR Notice which gives the claimant a right to appeal direct to HM Courts and Tribunal Service (HMCTS).

If you are still unhappy with the DWP decision, the next step is to complete a form SSCS1 where you can explain your grounds of appeal.

This form should be sent to the SSCS Appeals Centre with a copy of your MR Notice and any supporting evidence that you have.  The courts may accept an appeal not lodged on the appropriate form but it is better to use the correct documents when possible. Recently, HMCTS has launched an on-line appeal application process which could make appeal applications much easier.

HMCTS will then inform the DWP of your valid appeal.

A Decision Maker should then review your appeal (again) but if the decision is not revised in your favour the DWP are obliged to provide a full written response to you and the court within 28 days. This set of papers is often referred to as the ‘bundle’ or ‘schedule of evidence’ and it is supposed to explain all of decisions that have been made on your claim, why they were made, and, any evidence/documents that is relevant to your appeal.

The Appeal Papers

The DWP has received a lot of criticism from Tribunals, and Upper Tribunals, for not providing a coherent set of papers, or, withholding papers/evidence that may be relevant to assist the court. It is therefore vitally important to read through the papers thoroughly and point out to the court if anything is missing, or if possible, to provide the evidence yourself.

You can also provide your own additional evidence to support the appeal which may include medical letters, statements, and a written submission or letter pointing out any errors you believe have been made by the DWP and why your appeal should be successful. Any evidence should be submitted to HMCTS as soon as practicable as it is possible the DWP could review the case before any appeal hearing. The DWP will only review the case if the outcome is more beneficial to the claimant, in which case, the appeal will lapse.

The Hearing

Appeal hearings can consist of one, two or three members of the panel depending on the type of appeal;

One member – this will be a legally qualified judge who will preside over technical appeals, such as Income Support, Job Seekers Allowance, Housing Benefit, overpayments and benefit sanctions.

Two members - this will be a legally qualified judge and a medical member who preside over Industrial Injuries Disablement Benefit, and Employment and Support Allowance and Universal Credit appeals regarding the Work Capability Assessment. In some exceptional cases, a two member panel can preside over Disability Living Allowance appeals.

Three members - this will be a legally qualified judge, a medical member and a disability member who will preside over Disability Living Allowance and Personal Independence Payment appeals.

The role of any tribunal is inquisitorial. That is, to ask questions in order to enable the panel to make findings of fact. The hearing is your opportunity to explain why the DWP decision is wrong and you can make your own representations (oral evidence) during the hearing in addition to the written information you may have already provided.

Once the facts have been established (using the appeal bundle and your oral evidence) the tribunal will then make a decision on ‘the balance of probability’ based on the evidence available and will issue a Decision Notice.  Hopefully, you will be one of the 70% who are successful and your benefit will be reinstated, and importantly, backdated to the date of the original DWP decision.

The appeals process can be daunting and it is important to present the best possible case at every stage in the proceedings.

If you are unhappy with the tribunal Decision Notice there is a limited right of appeal, but you can only appeal on an error of law and you cannot appeal on the basis of new evidence or to advance different merits for your appeal.

Broudie Jackson Canter provide an experienced Welfare Benefit service to help you navigate the complex Social Security Claims and Appeals process to ensure your case is presented coherently and professionally.  Our success rate for all Social Security appeals is currently 86%, and frequently, unsuccessful appeals are subsequently overturned at the Upper Tribunal. Out of the limited Upper Tribunal appeals we have submitted we have a 100% success rate.

Legal Aid is no longer available for Welfare Benefits so we offer a range of competitive fixed-fees for all Social Security Benefits. If you need advice at any stage of your benefit claim we would be happy to help.

To speak with one of our specialist advisers please message us with your enquiry, call us on 0151 282 1700 or request a callback at your convenience today.