Code of Appeals - Procedures Guide
Introduction
The Purpose and scope of this guide from and including
28/10/2013.
1. This Code of Appeal Procedure (CAP) guide describes procedures for
dealing with an appeal to a First-tier Tribunal (FtT).
2. It also provides:
procedures on related aspects, and
procedures for appeal to the Upper Tribunal (UT).
3. The Advice for Decision Making (ADM) and Decision Makers Guide (DMG)
gives guidance on how to:
apply and interpret relevant decision making and appeals legislation,
and
prepare and present appeals.
4. This guide contains details of the changes to the way we will deal with all
appeals for any decisions made on or after 28 October 2013 under
Appeals Reform changes.
5. Personal Independence Payment (PIP) and Universal Credit (UC) went
live in April 2013 and are already operating the new Appeals process.
6. The main changes are:
Mandatory Reconsideration (MR) – the claimant cannot appeal against
a decision until they have requested a Mandatory Reconsideration
(MR) from the Department for Work and Pensions (DWP) and received
a Mandatory Reconsideration Notice (MRN)
Direct Lodgement – the claimant can no longer appeal to DWP. They
must send their appeal request directly to Her Majesty’s Courts and
Tribunals Service (HMCTS), enclosing a copy of their MRN
Time Limiting – HMCTS will request an appeal response from DWP,
and DWP will have 28 calendar days from the date of receipt to
prepare and submit their response to HMCTS.
7. If you have any queries on the content of the guidance please email the
DWP Adviceline by completing their enquiry form.
Background
8. A claimant cannot appeal against a decision notified on or after 28 October
2013 unless they have first asked for an MR and received an MRN. If an
appeal is received before an MR has been conducted by the Decision
Maker (DM) it will be treated as an application for an MR.
9. The conditions for claiming social security benefits are laid down by
Parliament. In most cases claimants have the right of appeal to an FtT if
they are dissatisfied with the outcome of their claim. For any decisions
notified on or after 28 October 2013, the claimant must have had an MR of
their decision before being able to appeal. Decisions notified prior to 28
October 2013 do not require an MR of the DM’s decision before the
claimant can appeal.
10. The conditions for amending existing decisions (revising), or replacing
them from a later date (superseding), are also laid down by Parliament.
11. People making an in time, or treated as in time application to have their
benefit revised also have the right of appeal to an FtT if they are
dissatisfied with the outcome of their application, but there are strict time
limits. However, the right of appeal is against the original decision, but in
its revised form.
12. Similarly, anyone making an application to have their award superseded
also has the right of appeal to an FtT where they are dissatisfied with the
outcome of their application. However, unlike a “no revision/refusal to
revise” decision, which has no right of appeal, a “no supersession”
decision does have the right of appeal.
13. There are exceptions to the rule outlined at 10/11 above where:
a decision refusing to revise is given – although this is a decision on an
application, there is no right of appeal in these circumstances. The
decision not to revise does not remove appeal rights against the
original decision; the claimant has a further period of one month after
the date on which notice that the decision would not be revised was
sent to the appellant to provide a notice of appeal. Such a decision
serves only to renew the appeal rights against the original decision,
providing the application for revision is in time, or can be treated as in
time
the Secretary of State (SofS) acts on his own initiative and makes a
decision:
to revise or
to supersede or
not to supersede
14. Anyone affected by SofS decisions also has the right of appeal to an FtT if
they are dissatisfied with the decision. An MR must be requested and an
appeal can be made to HMCTS upon receipt of an MRN.
Important: In the case of a revision, the right of appeal lies against the
decision in its revised form.
Non appealable decisions
15. There are some decisions that do not carry the right of appeal. These
decisions include administrative matters, such as how benefit is paid and
on what date it is to be paid on. There is also no right of appeal against a
decision not to accept a late request for an MR.
16. Non appealable decisions can be revised by the SofS at any time.
17. Where these decisions are not revised, they can only be overturned by
applying to the High Court for a judicial review of the decision in question.
For further information see:
ADM Annex E;
ADM Chapter 5, Paragraph A5900
Schedule 2 to the SS Act 1998;
Schedule 2 to the D&A Regs 1999.
DMG Chapter 6, Paragraph 6900
Decision Makers/Decision Making
18. Decisions on claims to benefit and changes to existing decisions such as
revisions or supersessions, are made on behalf of the S of S by staff who
are:
appropriately trained and skilled in decision making
know the difference between a claimant who wants to dispute a
decision and someone who just needs a fuller oral explanation, or a
written statement of reasons.
19. All DWP staff should avoid the escalation of disputes and appeals by
offering a full explanation or a written statement of reasons.
20. Under the new appeals process it must be made clear to claimants
wishing to dispute a decision that, following an MR, the appeal must be
lodged directly with HMCTS and no longer with DWP. All appeals made
against decisions notified on or after 28th October 2013 must be lodged
directly with HMCTS.
21. Claims and changes to benefit are decided by:
establishing all the facts of the case
identifying the relevant Acts and Regulations
considering whether any case law applies such as SSC’s/UT decisions
and decisions of Higher Courts, for example, Supreme Court, Court of
Session, Court of Appeal etc and
applying the law to the facts.
22. Decision Makers must be able to explain the reasons for their decision to
an FtT.
23. Decision making is carried out at different levels. These different levels
have different responsibilities and include:
Decision Makers
First- tier Tribunals
Upper Tribunal
The Higher Courts, for example Court of Appeal, Court of Session,
Supreme Court.
First-tier Tribunals
24. FtTs give claimants the opportunity to put their case against a DM’s
decision to an independent panel of people. An FtT may consist of one,
two or three members, at least one of whom must be an FtT Judge. When
an FtT consists of only one member, that member must be an FtT Judge.
25. The other members an an FtT must have relevant qualifications and
experience depending on the issue(s) raised by the appeal, for example a:
medically qualified member or
financially qualified member or
member with experience of disability issues
For further information on FtTs see:
ADM Chapter 5, paragraphs A5050 and A5060 and
DMG Chapter 6.
26. Where there is more than one Judge on the FtT, the Chamber President
will decide who will be the presiding member and will chair the FtT. When
the FtT are reaching their decision after hearing all the evidence, if the
decision is equally divided the presiding member will have the final
decision.
27. In exactly the same way as the DM, when reaching a decision the FtT has
to:
look at the circumstances of the case at the time the decision was
made, and
establish the material facts and
correctly apply the relevant Acts, Regulations and case law.
28. The FtT will consider:
issues in dispute
issues the Department and the claimant agree about, and
matters which are not relevant to the issues in dispute (that is, the FtT
will look at the whole decision, not just the element in dispute).
29. Legislation allows FtTs to consider other relevant aspects of the appeal if
raised before or during the hearing.
30. The FtT Judge deals with those issues that are not formally dealt with at
an FtT hearing for example:
whether an appeal is duly made
whether an appeal can be admitted because it is late
postponing oral hearings
applications to correct FtT decisions
applications to set aside FtT decisions
order rehearings if there has been an error of law
jurisdiction
striking out appeals
reinstating appeals
whether disclosure of any documents is to be prohibited.
Presenting Officers
31. The role of the Presenting Officer (PO) is to:
present the SofS’s case and
support the tribunal to reach the correct decision on entitlement to
benefit, based on the conditions set out in legislation.
32. The PO must be confident that the decision is accurate and prepared to
lapse appeals where this is not the case. They must highlight
inconsistencies and take appropriate action when new evidence comes to
light, including making a critical assessment of its validity.
For further information on the PO role see
Appendix 8
ADM Chapter 5, paragraphs A5430, A5431
DMG Chapter 6
When should a Presenting Officer attend a hearing
33. A PO should attend all FtTs when:
the facts and laws are considered to be complex, for example where
complex legal arguments have been raised or where contentious case
law has been referred to or
the decision involves an element of judgement or
the case involves new law which needs a ‘bedding in period’ (this
period will be determined by the complexity of the legislation) or
directed to do so by a FtT judge
it is an FtT rehearing
34. If the AT38 is noted that a PO will attend the hearing and attendance is not
possible, HMCTS must be notified immediately. The FtT will decide
whether to proceed with the hearing.
35. Where a hearing is arranged giving less than the usual notice (a short
notice hearing) then:
if the AT38 has been noted that a PO will not be attending and
no notice has been issued directing a PO to attend
HMCTS will not contact the office to ask whether a short notice hearing is
acceptable. As long as the claimant and any other party are content they will
simply list the hearing.
Upper Tribunal Judges
36. If the claimant or the SofS is dissatisfied with the FtT’s decision, they may
(with permission) appeal on a point of law to the UT.
37. In this instance permission can be given by the FtT or UT. On receiving
the application for permission to appeal, the FtT must first consider
whether to review their decision.
38. If the FtT does not review or reviews but decides not to change the
decision, it must still consider whether to give permission to appeal. If the
FtT refuses permission to appeal then it must notify reasons for the refusal
and also set out the rights to then apply to the UT for permission to appeal.
39. A claimant or the SofS can only appeal against a UT decision (with
permission) on a point of law. These appeals are made to the Court of
Appeal in England or Wales or the Court of Session in Scotland. In some
circumstances, appeals (with permission) can also be made to the
Supreme Court against a Court of Appeal or a Court of Session decision.
40. In this instance permission can be given by the UT or by a judge of the
Court of Appeal/Court of Session. On receiving the application for
permission to appeal, the UT can review their own decision.
Determinations
41. Decisions are supported by separate findings of fact that have to be made
before a decision can be made. These findings of fact are called
determinations.
42. Examples of determinations are findings of fact about:
capital
earnings
satisfaction of the contribution conditions
living together as husband and wife and living together as civil
partners.
43. One area of concern involves living together as husband and wife
(LTAHAW) /living together as civil partners (LTACP) issues. It is important
to remember that a finding of fact on LTAHAW/LTACP is a determination
and NOT a decision.
44. If details of a LTAHAW/LTACP determination are sent to the claimant
separately it is important that any reference to appeal rights is deleted
from the communication before posting. However, the claimant should still
be sent a full outcome decision containing reconsideration rights.
45. Determinations do not have any legal “life” of their own outside the
decisions in which they are embodied. They cannot be:
revised or
superseded or
appealed
by themselves – it is the decision in which they are embodied that is subject to
revision and supersession and against which any appeal rights lie.
46. Except for four instances, determinations made by a DM on one benefit
are NOT binding on another DM when making a decision on the same or
another benefit where such a determination applies.
47. The four situations where determination is binding on another DM are:
a determination on incapacity for work
a determination on the date of onset of a prescribed disease
a determination that a claimant was not suffering from a prescribed
disease and
a determination on limited capability for work.
For further information on decisions and determinations see:
ADM Annex D
DMG Volume 1, Annex D, and
DMG Chapter 1.
How the claimant appeals
48. Where a DM makes a decision on a new claim, reconsideration or a
change of circumstances (supersession), the claimant has the right to
appeal that decision to an FtT.
49. A claimant can only appeal after an MR of that decision has taken place
and they have received two copies of an MRN. This applies whether the
MR results in a revised decision or not.
50. The claimant is told about their right of appeal in their MRN. If the
claimant continues to dispute the decision and wants to appeal, they must
lodge the appeal directly with HMCTS and enclose a copy of their MRN.
For further information on appeals see:
ADM Chapter A5 and
DMG Chapter 6
51. The appeal has to be duly made and made within prescribed time limits in
accordance with the Tribunal Procedure Rules.
For further information on duly made and time limits see:
ADM Chapter A5 and
DMG Chapter 6
Appeal sent to DWP in error
52. If an appeal request is received by DWP in error, return the original appeal
to claimant/representative along with any evidence they sent. Issue a
DL/CAP43 to the claimant containing instructions to send their appeal to
HMCTS.
53. If an MR has not been undertaken, treat the appeal request as a request
for an MR and issue a DL/CAP42.
54. If the claimant sends their appeal to DWP instead of HMCTS, consider the
following action:
if the claimant has not had an MR on the decision they are appealing
against, treat the appeal as a request for a MR and issue DL/CAP42 to
claimant
if there is an MR already in progress, continue with the MR and return
the appeal to the claimant along with the DL/CAP46. When the MR is
completed, an MRN will be sent to the claimant which includes
instructions on how to appeal.
if the claimant has included new information that affects the original
decision:
conduct a reconsideration
record details on the benefit system/DMACR/ARTS/clerically
issue a new decision notice and 2 MRNs, which give directions
about how to appeal.
55. If the claimant has included new information that does not affect the
original decision:
return the appeal
with the new information, and
a DL/CAP43 which contains instructions to send the appeal to HMCTS.
Appeal sent or delivered to HMCTS
56. Appeals must be made in accordance with the Tribunal Procedure Rules,
which state that an appellant must start proceedings by sending a notice of
appeal to the Tribunal. The appropriate address to send the notice of
appeal will be shown on the MRN for the decision being appealed against.
Appeals made on behalf of the claimant
57. An appeal can be accepted if signed by a representative, provided it is
accompanied by written notice from the claimant of the representative’s
name and address. If the representative is legally qualified then the above
information is not required.
HMCTS action on receipt of appeal
58. The claimant must lodge their appeal directly with HMCTS. HMCTS will
check if the appeal:
is in time, and
has been signed, and
includes a copy of the MRN, and
includes grounds for the appeal.
59. HMCTS will send the appeal, with all relevant documentation to DWP and
request a response.
For further information on action on receipt of appeal see:
ADM Chapter A5 and
DMG Chapter 6.
60. Where the appeal:
has not been signed, HMCTS will return the appeal to the claimant with
an accompanying letter asking them to sign and return it. (Occasionally
an unsigned appeal can be accepted, but if it is, it will always be
accompanied by a waiver certificate when sent to DWP)
does not include a copy of the MRN, HMCTS send the appeal back to
the claimant with a letter asking them to return the appeal with their
MRN. If the claimant does not have an MRN, or they have lost it, they
must contact DWP to:
request a copy of their MRN, if one has previously been issued, or
request an MR, if one has not previously been conducted, and wait
for their MRN before returning their appeal to HMCTS.
does not include grounds for the appeal, HMCTS return the appeal with
a letter asking them to state on what grounds they are appealing.
61. Once the claimant complies with HMCTS and returns the appeal, HMCTS
will send the appeal to DWP and request an appeal response.
62. If the claimant does not comply, HMCTS will strike out the appeal and will
not refer it to DWP.
63. Provided reasons for a late appeal are supplied HMCTS will treat an
appeal as made in time UNLESS the respondent objects. When a late
appeal is received DWP should consider the reasons given by the
claimant and, if appropriate, raise objections on form AT39. If DWP object
to a late appeal the Tribunal Judge will decide if it can be accepted.
For further information on strike out see:
ADM Chapter A5 and
DMG Chapter 6.
Appeal response request received from HMCTS
64. When HMCTS have completed their checks, they will attach:
form DL6/DL16 to the appeal request letter from the claimant,
the MRN, and
any other associated documents.
65. These documents will be sent to DWP by post for an appeal response to
be prepared.
66. On receipt of the appeal response request from HMCTS:
Step
Action
1
Immediately register the appeal response request on the benefits
system/DMACR/ARTS/clerically.
2
Record the date the appeal was received by DWP.
3
Record the date on which the appeal was received by HMCTS, (or
the date HMCTS has accepted the appeal was made on, if the
appeal was not initially duly made).
4
Include the HMCTS reference number which will be on the
correspondence sent from HMCTS.
5
Set a b/f for 21 calendar days.
6
Obtain any case papers.
Communication with Her Majesty’s Courts and Tribunals Service
67. HMCTS use the NINO and their unique reference number to identify
appeals. It is therefore important to quote the claimant’s NINO and
HMCTS appeal reference number in any correspondence when known.
The unique appeal reference number will appear on any correspondence
received from HMCTS.
68. If HMCTS receive any further documentation in connection with the
appeal, they will forward it to DWP.
Date of Appeal
69. Treat the date of receipt as the date the appeal was made. This is the:
actual date of receipt in HMCTS if the appeal is duly made at the outset
or
the date HMCTS has accepted the appeal was made on, if the appeal
was not duly made initially
Appeals not duly made
70. Check whether appeal is duly made, including out of jurisdiction and no
reasonable prospects of success.
71. Send:
form AT39 and supporting documents to HMCTS, and
DL/CAP34 or DL/CAP31 to the claimant or their representative.
72. When HMCTS receive the AT39 and refer it to the FtT to be heard:
the FtT will make a determination on the validity of the appeal
HMCTS will notify the FtT’s determination to
DWP, and
the claimant or their representative
73. When DWP receives the FtT determination from HMCTS.
if the appeal is to proceed DWP will receive direction(s) from HCMTS.
if the appeal is not to proceed:
update benefit system/DMACR/ARTS and clerical papers if
appropriate
clear the b/f.
Appeal response request received from HMCTS – Out of
Jurisdiction
74. HMCTS has the authority to decide whether an appeal is within their
jurisdiction. HMCTS will only send the appeal to DWP once they have
accepted it.
75. Out of Jurisdiction (OOJ) appeals will normally be identified from the MRN,
however, HMCTS staff are not benefit trained, so in most cases OOJ
appeals will be sent to DWP.
76. This does not prevent the DM from referring a case back to HMCTS if the
DM considers the matter outside the FtT’s jurisdiction because of
information they hold that HMCTS may not be aware of.
Decisions or determinations that are non-appealable are listed at:
ADM Annex E1
DMG Annex E
For further information on response requests see:
ADM Chapter A5
ADM Annex E, and
DMG Chapter 6.
77. If DWP subsequently identify that an appeal is OOJ, the DM must request
that HMCTS strike it out on these grounds. Do not prepare an appeal
response, take action as follows:
Step
Action
1
Access DMACR/’Hotdocs’, complete form AT39, attach supporting
documents with reasons for objection, and send to HMCTS.
2
In DMACR/Hotdocs’, complete form DL/CAP34, and send to the
claimant to inform them that a request for strike-out has been
made to HMCTS, on the grounds that their appeal is out of
jurisdiction.
3
Record the issue of these forms on the benefit system/DMACR/
ARTS/clerically, and set a b/f for 21 days from the issue date of the
forms.
4
If, on maturity of the b/f, there has been no reply from HMCTS,
telephone the HMCTS processing team for an update.
5
Set a further b/f for 28 calendar days or earlier, depending how
long HMCTS consider it is likely to take to decide if strike out is
appropriate and complete a TL1 to request an extension to the
time limit.
6
HMCTS will refer the appeal to the FtT to determine whether the
appeal can be struck out or is to proceed.
7
HMCTS will issue the FtT’s decision to the claimant and DWP.
8
If HMCTS decide the appeal must proceed, prepare the appeal
response in the normal way. A further extension to the time limit
will be given, from the date of the FtTs decision, for DWP to
prepare the response. Consider whether a request for an
additional extension to the time limit will also be required.
9
If HMCTS agree to strike out the appeal, update the benefits
system/DMACR/ARTS/clerically, and clear the b/f set on receipt of
the appeal. There is no need for DWP to contact the claimant as
HMCTS will do this.
Appeal response request received from HMCTS – No Reasonable
Prospect of Success
78. When an appeal response request is received from HMCTS, check
whether it has ‘No Reasonable Prospect of Success’ (NRPS). If the appeal
has NRPS, ask HMCTS to strike it out. An appeal response is not required
at this stage.
See examples of NRPS in:
ADM Chapter 5, paragraph A5233
DMG Chapter 6, Paragraph 06233
79. To ask HMCTS to strike out the appeal:
Step
Action
1
Access DMACR/ARTS, complete form AT39 and Appendix 15,
and send them to HMCTS. (CAP Appendix 15 explains why the
appeal has NRPS to support your request for strike out.
Word
carefully, as it is also sent to the claimant).
2
In DMACR/ARTS, complete form DL/CAP31, obtain a copy of the
CAP Appendix 15 and send them to the claimant to inform them
that a request for strike-out has been made to HMCTS.
3
Record the issue of these forms on the benefit system/DMACR/
ARTS/clerically and set a b/f for 21 days from the issue date of
the forms.
4
If on maturity of the b/f, there has been no reply from HMCTS,
telephone the relevant HMCTS processing team for an update.
5
Set a further b/f for 28 calendar days or earlier, depending how
long HMCTS consider it is likely to take to decide if strike out is
appropriate.
6
The FtT will give the claimant the opportunity of responding to
the request for a strike out before they make their decision.
HMCTS will then issue the FtT’s decision to the claimant and
DWP.
7
If HMCTS decide not to strike out, an appeal response must be
prepared in the normal way. An extension to the time limit may
need to be requested on form TL1 to prepare the response.
8
If HMCTS agree to strike out the appeal, update the benefits
system/DMACR/ARTS/clerically and clear the b/f that was set on
receipt of the appeal.
Striking out appeals
80. HMCTS must strike out an appeal where:
the claimant has failed to comply with a direction which stated that
failure to comply would result in the appeal being struck out or
the appeal is outside the FtT’s jurisdiction.
81. HMCTS may also strike out an appeal where the:
claimant fails to comply with a direction and the direction stated that
failure to comply may result in the appeal being struck out, or
claimant failed to cooperate with the FtT , or
FtT considers there is no reasonable prospect of the claimant being
successful.
82. If DWP fails to comply with the FtT’s direction then the effect of striking out
will be to bar DWP from taking any further part in the appeal.
For more information on striking out see:
ADM Chapter 5, paragraph A5230 – 38 and A5680-A5682
DMG Chapter 6, paragraph 06230.
83. When HMCTS strikes out an appeal, they will notify the claimant and
DWP. If DWP have requested strikeout due to OOJ or NRPS:
update the benefit system/DMACR/ARTS/clerical papers
take no further action on the appeal, but deal with any outstanding
issues.
Reinstating a struck out appeal
84. If their appeal was struck out the claimant can apply in writing to the FtT
for reinstatment.
85. If DWP has been barred from taking further part in the proceedings they
can apply to the FtT for the bar to be lifted.
86. An application for reinstatement or lifting of the bar has to be made within
one month of notification of a decision to ‘strike out’ or ‘bar’. In all other
cases the claimant is asked for comments before strike out action is taken.
87. If the FtT decides to reinstate the appeal, they will notify all Parties to the
Proceedings (PTTP).
88. When a reinstatement notification is received:
proceed with the case as for a normal appeal
re-enter the case on the benefit system, DMACR/ARTS/clerical papers,
using the date HMCTS treat the appeal as having been made.
Reconsideration of the decision after an appeal response has
been requested by HMCTS
89. When a request for an appeal response is received from HMCTS the DM
must first consider whether the decision can be revised before processing
the appeal.
90. If the appeal cannot be treated as being made in time the DM should
always look at whether the decision under appeal can be revised, or if not,
superseded.
91. In reconsidering a decision following receipt of an appeal response
request there is no requirement for the DM to make a decision not to
review if they cannot revise the original decision.
92. The DM should consider supersession and, where appropriate, supersede
the decision under appeal. If the decision under appeal can be revised
wholly in the claimant’s favour the appeal can lapse. However, an
advantageous supersession cannot lapse an appeal.
93. DM(s) must consider cases thoroughly, in particular ensuring that all
existing and newly provided evidence and details from the MRN are
considered carefully, where necessary obtaining further evidence.
94. Where an appeal is underway and further evidence is received at any time
before the Tribunal gives its decision, a further reconsideration of the
decision under appeal must be carried out, for example following an
adjournment.
For further information on reconsideration of the outcome decision see:
ADM Chapter 3, and
DMG Chapter 6.
95. Where, following receipt of an appeal response request, the DM does not
revise the decision under appeal, before processing the appeal they must
first make sure that it has been duly made.
Further evidence received after appeal response issued to HMCTS
96. If the claimant presents further evidence in support of their appeal after the
response has been issued, but before the hearing, HMCTS will forward the
further evidence to DWP for the DM to consider.
97. DM(s) must:
notify HMCTS on form AT39 if any decision under appeal is changed
by revision or supersession and
ask HMCTS to tell the FtT what the effect of the revision or
supersession will have on their jurisdiction. For example, appeal
lapsed or jurisdiction limited to period/issues not covered by the
supersession. Supporting documents must be included if applicable.
98. DM(s) must also notify HMCTS on form AT39 when the decision under
appeal is reconsidered in light of the further evidence, but the decision
cannot be revised. A further response and supporting documents must be
attached.
99. When a reconsideration leads to a changed decision which is not
favourable to the claimant, the appeal response should not normally be
sent to HMCTS until a month from when the revised decision is notified.
100. This is to allow time for the claimant to make representations to the
Department on the revised decision and contact us further. However, if
after a month the claimant does not respond, the response can be sent to
HMCTS.
101. If further evidence is received:
check that:
it is new evidence and not evidence already considered
it relates to the time when the original decision was made
consider:
if the evidence changes the decision under appeal
if more evidence is needed
when the evidence was supplied
the weight to give to the evidence if more than a month has passed
since the response was issued.
102. If further, new evidence is received, but it does not lead to a change to
the decision:
tell the claimant that their further evidence has been received and
considered, but does not affect the decision, so their appeal will
continue and
complete AT39 and a supplementary response detailing the reasons
why the evidence does not change the decision and drawing the
attention to the tribunal to any particular issues, such as evidence
being provided late. Send it to HMCTS
103. If the further evidence leads to a revision of the appealed decision, the
appeal will lapse if it is revised wholly in the claimant’s favour.
104. If the further evidence indicates a decision to revise partially in the
claimant’s favour further action will be required.
105. Complete an AT39 to notify HMCTS that a partially advantageous
decision has not been implemented, as the claimant either could not be
contacted, or, requested for the appeal to continue.
106. If the decision can be revised but it leads to a decision that is less
advantageous to the claimant, the appeal must continue. The appeal will
be treated as though it is against the original decision as revised.
107. Record all details on the benefit system/DMACR/ARTS/clerical papers
and action the revised decision.
108. If there is not time to consider the above actions because the appeal
hearing is imminent, contact the PO urgently to request that the hearing is
adjourned or contact HMCTS directly if the PO is unavailable.
New evidence produced prior to the FtT hearing
109. If, following the reconsideration process, the decision under appeal is
revised wholly in the claimant’s favour the appeal will lapse and HMCTS
should be notified on form LT203C. Where the reconsideration does not
result in a wholly favourable decision, a further response based on the
additional fact(s) should be prepared on AT39.
Appeal adjourned by HMCTS
110. In some circumstances, the FtT will adjourn a hearing. This may be
because additional evidence or information or a further response from the
DWP is needed, or the FtT identifies the need for a Party to the
Proceedings (PTTP) to attend the hearing.
111. HMCTS will notify DWP with the reason why and whether or not a
further response is required.
112. The decision under appeal should be reconsidered in the light of any
new evidence or information obtained under these circumstances. If,
following the reconsideration process, the decision under appeal is revised
wholly in the claimant’s favour the appeal will lapse and HMCTS should be
notified.
113. When following a reconsideration the decision under appeal cannot be
revised wholly in the claimant’s favour, the FtT must be told what effect the
new evidence or information has had on the decision under appeal and a
further response prepared on AT39.
For more information see:
ADM Chapter 5, Paragraph A5030 and
DMG Chapter 6.
114. In all cases, HMCTS will identify the first suitable hearing date and
agree the new hearing date with the claimant, any representative and
other PTTP.
115. Following an adjournment, if HMCTS have not previously requested a
further response, but later decide they need one, they will inform DWP by
post. HMCTS will include a date for completion of the further response.
116. It is the responsibility of DWP to call and notify any witnesses if the
Tribunal has been adjourned using DL/CAP25.
117. Complete and send form AT39 to HMCTS.
For more information on appeals adjourned see
ADM Chapter 5, paragraphs A5448 to A5451, and
DMG Chapter 6.
Decision wholly in claimant’s favour
118. If, at any time during the appeal process, the DM decides the decision
under appeal can be revised wholly in the claimant’s favour, update the
benefit system/ DMACR/ARTS/clerical records. Tell HMCTS that the
appeal has lapsed by completing LT203C. HMCTS will inform the claimant
that their appeal has lapsed.
Decision partially in claimant’s favour
119. If the revised decision would be to the claimant’s advantage but it
would not give them all that they have asked for, contact the claimant by
telephone (two attempts, three hours apart) to explain the decision or
discuss any areas requiring clarification. This is to give them an
opportunity to decide if they wish their appeal to continue.
120. If the claimant does not wish to proceed with their appeal, the decision
can be revised and the appeal will lapse. The new decision can be
implemented and any money owing paid immediately.
121. If the claimant does not agree with the new, partial decision, the appeal
must continue and the revised decision cannot be implemented or paid.
122. The appeal must continue if the claimant cannot be contacted.
123. When writing the appeal response, notify HMCTS that a partially
advantageous decision has not been implemented, as the claimant either
could not be contacted, or was contacted and requested for the appeal to
continue.
Decision not changed
124. If further evidence is received prior to the appeal response being sent
to HMCTS, but this does not change the decision, the appeal will continue.
125. Record why it does not affect the original decision on the benefit
system/DMACR/ARTS/clerically.
126. When preparing the response for HMCTS record the evidence in the
Schedule of Evidence at Section 2 of the response and update the benefit
system/DMACR/ARTS/clerically with all actions taken.
127. Where the decision is not revised, but the DM considers it to be
incorrect, the response to HMCTS must:
explain to the FtT why the decision has not been revised, and
ask that the correct decision is substituted for that of the DM.
Time limits
128. The time limit for providing an appeal response is 28 calendar days
from the date the appeal response request is received from HMCTS.
129. When an appeal response request is received from HMCTS a 21 day
b/f must be set as a reminder, to ensure that the time limit date will be met.
130. However, to allow both DWP and HMCTS to address the existing head
of work each has, it has been decided not to formally introduce the time
limits until October 2014.
131. The time limits process is operational from 28 October 2013. However,
if the appeal response cannot be provided to HMCTS within the time limit,
until October 2014 a time limit extension request on form TL1 must be sent
to the Appeals manager and not to HMCTS.
132. For further information refer to the Transitional Guidance for your
benefit.
133. The following process will be fully operational from October 2014. You
will be notified of the actual date nearer the time
Completing TL1 to request an extension to the time limits
134. When an extension to the time limit for providing an appeal response is
required, complete form TL1 as soon as this is identified and send it to
HMCTS.
135. Dependant upon the individual circumstances of a case, when an
appeal response request is received from HMCTS a request for an
extension can be made at the outset if it is appropriate.
136. When completing form TL1 ensure that your reasons for the request
are worded with care and discretion, HMCTS will send a copy of it to the
claimant.
137. The claimant may challenge an extension to the time limit, for example
on hardship grounds.
138. Ensure that HMCTS are given a clear, detailed explanation on the TL1
of:
why the extension is needed, and
the date when the appeal response will be sent to them. For example,
if the claimant states in the appeal request that they will send a
consultant’s letter after an appointment:
consider how long it might take to receive this evidence
add on to this any assessment provider referral time, if appropriate,
add on the appeal preparation time, including photocopying
etcetera.
if an extension is requested to allow the claimant to provide additional
evidence, the DM must always consider whether to request a direction
from the Tribunal to provide the evidence.
139. Always continue preparing the response whilst awaiting the further
evidence.
140. When HMCTS receive a request for an extension they will refer it to the
FtT.
141. HMCTS will write to the claimant and DWP with the tribunal directions,
either agreeing to or rejecting the request for a time extension.
Extension request rejected
142. If the time limit extension request is rejected:
follow the tribunal direction(s) and,
using the information already held, write the appeal response and send
it to HMCTS, the claimant and the PO, if there is one.
143. If the 21 day b/f matures and the deadline can be met immediately,
send the appeal response to HMCTS, the claimant and the PO, if there is
one.
144. If the 21 day b/f matures and the deadline cannot be met immediately,
continue preparing the response and set a further b/f for the 28th day to
remind the DM that the response must be sent on that day. This will give
the DM another chance to apply to HMCTS for an extension if, on the 28th
day it is apparent the deadline for completion of the response will not be
met.
145. The time clock for DWP stops on the date the appeal response is sent
to HMCTS.
Preparing the appeal response
146. To prepare the appeal response
Step
Action
1
Refer to the MRN, clerical case papers and any further
information to complete the appeal response, setting out clearly
the facts of the case, the claimant’s grounds for appeal, the law
that applies and the reasons for the decision under appeal.
2
If the claimant states in their appeal that there is further evidence
which is not yet available, and the wait for this evidence will
result in the appeal response taking longer than 28 days, apply
for a time limit extension immediately and consider asking the
Tribunal Judge for a Direction asking for the evidence to be
provided and set an appropriate b/f.
3
On maturity of the 21 day b/f, check that all the information has
been received and the appeal response is on target to be
completed within the 28 day time limit.
4
If the appeal response is likely to be late, apply for a time limit
extension using form TL1 as soon as this is identified, and email
to HMCTS, marked ‘RESTRICTED’. Record the date and details
of the extension request on the benefits
system/DMACR/ARTS/clerically.
5
Send a completed form AT38 with the appeal response to
HMCTS, and the PO, if there is one.
6 Access
DMACR/ARTS to send a letter (DLCAP40) to the
claimant with the appeal response, to let them know that the
response has now been sent to HMCTS.
7
The time limit clock stops once the appeal response has been
sent. If this is within the 21 calendar days, clear the 21 day b/f set
on receipt of the appeal.
8
Record the date that the appeal response was sent to HMCTS,
the claimant and the PO if there is one, on the benefits
system/DMACR/ARTS/clerically.
Sending the response
HMCTS offices and email addresses
147. The HMCTS offices and email addresses for correspondence should
be sent to the most geographically appropriate office, and will be one of
the following:
OFFICE
OFFICE CONTACT E.MAIL ADDRESS
Sutton
xxxxxxxxxxxx@xxxxx.xxx.xxx.xx
(London)
Leeds
xxxxxxxxxxx@xxxxx.xxx.xxx.xx
Cardiff
xxxxxxxxxxxxx@xxxxx.xxx.xxx.xx
ASC
xxxxxxxxxxxxx@xxxxx.xxx.xxx.xx
Birmingham
Liverpool
xxxxxxxxxxxxxxx@xxxxx.xxx.xxx.xx
Newcastle
xxxxxxxxxxxxxxx@xxxxx.xxx.xxx.xx
Glasgow
xxxxxxxxxxxxx@xxxxx.xxx.xxx.xx
Epsom
xxxxxxxxxxx@xxxxx.xxx.xxx.xx
HMCTS admits appeal
148. Where the FtT admits appeals that are late, not duly made or Out Of
Jurisdiction (OOJ), they will send a letter to the Department asking for the
appeal to be treated as valid and to produce an appeal response. This
letter will include a unique reference number that HMCTS have allotted to
the appeal.
149. When sending the response to HMCTS, include on the AT38 in the
“Other Info” box the following information. “This appeal was submitted as
[late/not duly made/OOJ] on date]. It was admitted on [date] and a
response requested. The response is attached. The case is already
registered at the Tribunals Service under [ref. no.].”
Appeals against HM Revenue and Customs issues
Issues raised in the appeal are only about HM Revenue and Custom
Issues
150. If a request for an appeal response is received and the issues in the
appeal are about HMRC:
send a copy of the appeal to HMRC for them to consider before the
appeal can be processed
b/f the case for 3 months to allow for an HMRC response, and
complete form TL1 asking for an extension to the time limit for the
completion of the appeal.
Note:
appeals against NI contributions only affect those benefits which are
contributory based
appeals against Employed Earners Employment only affect IIDB.
151. The appeal response request cannot be returned to HMCTS until
HMRC have been given the opportunity to consider and respond to the
issues under appeal. The DM must wait for HMRC’s decision, as the
appeal response cannot be written without it.
152. If HMRC have:
resolved their issue, and
notified the DM of their decision
the DM must decide how to proceed with their response to the appeal
in the light of that decision.
Note: if the decision under appeal has been revised wholly to the claimant’s
advantage, the appeal will lapse.
153. If the outcome decision has been reconsidered but has not been
changed to the claimant’s advantage, the appeal will continue. The appeal
response must be written:
focusing on the HMRC aspect and
including all relevant HMRC contacts, addresses and documentation in
the “Schedule of Evidence”.
Issues raised in the appeal are about HM Revenue and Customs
issues and other DWP benefit related issues
154. If an appeal is received and at least one of the issues raised in the
appeal is about NI contributions or Employed Earner's Categorization
(EEC) and there are other benefit related issues, consider looking at the
benefit issues. You may:
reconsider the outcome decision - if any new decision is revised wholly
in the claimant’s favour, the appeal will lapse or
await the HMRC decision and reconsider the outcome decision using
all the information available. If any new decision is more advantageous
to the claimant, but is only partially in their favour further action will be
required.
155. In either situation, if the appeal is to proceed an AT38 must be
completed. The date of appeal will be the date the appeal was received in
HMCTS. Annotate the ‘other information box’ on form AT38 that the
appeal was first referred to HMRC.
Limited Capability for Work appeals
156. A decision incorporating a No Limited Capability for Work (No LCW)
appeal determination has the potential to affect other benefit decisions.
157. Where No LCW is an issue, a determination on that question made in
connection with one benefit is binding on all other benefits claimed for the
same period except
Statutory Sick Pay (SSP) and
Industrial Injuries Disablement Benefit (IIDB)
Claimant appeals against more than one decision
158. If the claimant appeals against two (or more) decisions they may either:
include each of the appeals in a single notice of appeal, or
send a separate notice of appeal for each decision.
159. Where there has been more than one decision notified to the claimant,
and they send in a single notice of appeal, possibly appealing against
more than one decision, it must be assumed that the appeal is against
both/all the decisions unless it is clear which of the decisions are being
appealed.
Appeal against decision given by the Compensation Recovery
Unit
District action on receipt of completed response
160. Any presentation to the FtT will be by a PO from the Compensation
Recovery Unit .
161. If a CRU PO is required to attend the hearing, a copy of the response
should be sent to them.
162. The CRU PO should preview the case before attending the FtT,
contacting the CRU if necessary.
Appeals following Compensation Recovery Tribunals decision
163. If the decision under appeal was made following notification by the
CRU of an FtT decision in a compensation recovery case and
the award of benefit is revised or superseded, and an overpayment
decision made where appropriate and
the decision is appealed,
to ensure that there is no breach of the rules of natural justice or of Article 6(1)
of the European Convention on Human Rights (ECHR) it is important that
NO members of the FtT hearing the benefit appeal were members of the FtT that
heard the CR appeal.
164. A clear note about the CR appeal must be made in the “other
information box” of form AT38.
Advice and representation for claimants
Interpreters
165. If a claimant needs an interpreter and has said so on the HMCTS pre-
hearing enquiry form, HMCTS will make the arrangements. However, if
DWP records indicate that the claimant requires an interpreter this
information must be also included on the AT38 / AT39.
Local advice agencies
166. Offices must keep a printed list of local agencies which can advise
claimants about their appeals and provide representatives at the FtT.
Complaints
167. DWP has no responsibility for the standard of service offered by local
advice agencies. If:
a complaint about one of the organisations is received, refer it without
comment to the organisation concerned or
repeated complaints about a particular organisation are received, local
DWP Managers may decide to contact the organisation about the
problem to offer help and advice.
Linked appeals
168. To ensure the minimum delay in processing a claimant's appeal(s), as
well as to save administrative costs, it is important that linked appeals
(where the outcome of one appeal is affected by, or depends on the
outcome of the other appeal) are heard at the same time by the same FtT.
169. This may be difficult where the FtT composition is different for different
benefits, for example IS and DLA. However, all that needs to happen is
(taking linked IS and DLA appeals as an example) is for the medical
member to retire from the FtT while an IS appeal is considered.
170. Linked appeals generally arise where qualifying benefits are involved.
They may involve:
only one claimant, for example where entitlement to the Severe
Disability Premium (SDP) on IS depends on the outcome of a related
appeal about DLA, or
two different claimants, for example CA and DLA.
171. The onus is on the DM(s) to contact each other when they identify that
they are dealing with linked appeals.
172. In many cases it will be clear from the appeal form or letter that there
are linked appeals. However, problems may arise where:
there are linked appeals involving claimants with different surnames,
for example partners, or
the claimant's SDP has been stopped because a non dependant's SDP
has been lost (and so the non dependant is not treated as such).
173. Where it is known from local knowledge that such cases may arise,
they should be linked as above for hearing.
174. Whenever linked appeals are identified, they should be noted on form
AT38 in the linked appeal boxes.
Appeal against NINO related conditions of entitlement
175. If an appeal is received which concerns a NINO related condition of
entitlement, the DM must contact the relevant NINO Delivery contact
centre and get:
a copy of the NINO application
any evidence submitted by the applicant
any evidence that was already available to the NINO officer and
a statement of reasons why the information and evidence was not
considered persuasive.
Completion and submission of appeal response to HMCTS
Purpose of the Appeal response
176. The function of a response is to:
assist the FtT to reach the correct decision
explain to the claimant the reasons for the decision
allow the SofS to respond to the grounds of appeal.
177. The response must set out clearly:
what the case is about
the law that applies and
the reasons for the decision under appeal using information contained
in the MRN.
178. The response must also:
respond to the claimant’s grounds of appeal
explain why any evidence has not been accepted
include all of the:
relevant evidence, and
any procedural information which may affect the form of the FtT’s
decision.
179. All appeal responses must be prepared as quickly as possible, in
particular any appeals remitted to a new FtT by the Upper Tribunal (UT).
Preparation of the appeal responses
180. Prepare all appeal responses using the response framework, including
appeals against:
a Reduced Benefit Direction (RBD)
an IIDB decision (whether or not it centres on medical issues).
181. Sections 1, 4 and 5 of the framework should be used when drafting a
response which is required for a FtT rehearing after the FtT’s original
decision was set aside by a FtT or a UT. A further response may be
required following:
a direction by a FtT
a direction in the UT’s decision
advice from DMA Leeds.
182. A
further
response
under cover of form AT39 may also be required
when:
additional evidence is received after the response is sent to HMCTS,
but
before the hearing a reconsideration is undertaken, but there is no
change to the decision.
The Appeal Response Framework
183. The appeal response framework at Appendix 7 contains:
examples appeals responses produced using the framework
specimen paragraphs for use in connection with habitual residence
appeals/issues.
184. The framework follows the format:
Section 1: personal details
Section 2: Schedule of Evidence
Section 3: the decision
Section 4: the facts of the case
Section 5: the response.
Section 1: Personal Details
185. This section provides the:
name and address of the claimant
NINO
benefit in payment
date of outcome decision
date the outcome decision was notified
date the MRN was issued to the claimant
date the appeal was received
DM(s) name and address
name and address of the DM(s) representative (if any)
address where documents for the DM may be sent or delivered
name(s) and address(es) of any respondent(s) and their
representative(s) (if any).
186. The name and address of an appointee should be indicated clearly
where appropriate.
Section 2: Schedule of Evidence
187. This section lists evidence/relevant documents/MRN which have been
used to make the outcome decision and to prepare the appeal response,
using the form at Appendix 9.
space should be left for additions by HMCTS and the UT’s office as
appropriate
all pages, including the response, should be numbered consecutively,
and the date of receipt or preparation of documents indicated on the
Schedule of Evidence.
188. The
MRN must be attached as part of the evidence.
189. If the claimant’s appeal is hand-written and the writing is difficult to
read, a typed version of the grounds of appeal should be produced and
listed in the Schedule of Evidence.
190. If
a
video recording has been used as evidence in the outcome
decision and is used in the appeal response, it must be included in the
“Schedule of Evidence”, including details about the length of the recording.
Section 3: The decision
191. This section provides a record of the decision if it is available, or a form
of words which accurately reflects the decision if it was computer
generated. It must be clear about which decision is under appeal. This is
particularly important where:
a series of decisions has been made
the decision under appeal is a decision to supersede (or not to
supersede) an earlier decision
the decision under appeal is an original decision which has been
revised.
For further information on identifying the decision under appeal see:
ADM Chapter 05 and
DMG Chapter 3
192. If reconsideration of on appeal has resulted in a revised decision,
which is unfavourable to the claimant, that should be explained here.
193. Care must be taken to ensure that the full decision is set out, and not
simply the determination or reason for the decision. For example, where
the DM has made a determination about LTAHAW/LTACP which resulted
in supersession of an awarding decision, the supersession must be
recorded as well as the LTAHAW/LTACP determination.
For further information on recording decisions see:
ADM Chapter 01 and
DMG Chapter 3
Section 4: The facts of the case
194. This section is used to present all the agreed facts relevant to the
outcome decision clearly and in chronological order. It must include:
a brief description of the claimant’s background and their
circumstances
a benefit/decision making history, so far as is appropriate, to show how
the decision under appeal was made. For example, where the decision
is a supersession, or a decision which has been revised:
previous decisions for that claim/award, and their effect, should be
recorded, and
in renewal or repeat claims, previous claims/awards should be
indicated briefly, especially where the claimant argues that there
has been no change.
195. Where a late appeal has been accepted by HMCTS or DWP as being
in time this should be referred to.
196. Any dispute about ‘facts’ must be explained in Section 5 of the appeal
response.
197. If reconsideration has resulted in a decision which is not more
advantageous to the claimant, the appeals officer must highlight the facts
that gave rise to the new decision.
198. All references to evidence must be numbered.
199. Documents that have been lost or destroyed must be referred to,
including information about the Department’s document/information
retention policy where appropriate.
Overpayments
200. If the appeal is against an OP decision, details of the amount and the
reasons for the OP must be recorded.
201. An OP schedule must be prepared, included as evidence and listed in
Section 2: Schedule of Evidence if it is not included as part of the decision
in Section 3.
202. For overpayments of means-tested benefits, the response must include
an example of the calculation of benefit before and after the change which
caused the OP.
203. The whole of the claim form and any other relevant documents must be
included to demonstrate a misrepresentation or failure to disclose. System
prints must be included to show the issue of leaflet INF4:
prior to uprating
with new award decisions, or
with any supersession decision.
204. When the benefit decision has been made and the separate decision
on the O/P is complete the response writer must demonstrate in this
Section that the required revisions and/or supersessions have been
carried out, in order to show that the provisions of section 71(5A) of the
SSA Act 1992 have been complied with.
Disclosure of information
205. If the claimant says that information has been disclosed but the SofS
maintains that it has not, the appeal papers must include a certificate to
show what searches and actions were undertaken to check the disclosure
claim.
Industrial Injuries Disablement Benefit (IIDB)
206. A schedule of previous assessment(s) for the same Prescribed
Diseases PD(s) or accident(s) should be included in this section.
Section 5: The response
207. This section draws the FtT’s attention to the issues to be decided. It
contains the SofS’s reasons for the decision and reply to the grounds of
appeal. Use the details on the MRN to aid in its completion.
208. The content of this part of the response will be determined by the
complexity of the appeal. It must include:
what has and has not been accepted even if there is no dispute
what has been claimed by the claimant, and
the conclusion on each of these decisions.
209. It must be clear what facts have been accepted or disputed. Where
evidence has not been accepted a reason must be given.
210. The response should include:
an explanation of the decision under appeal
an explanation, where required and appropriate, of the grounds for any
revision or supersession.
a full response to all the points raised in the grounds of appeal
a recommendation for disposal of the appeal.
211. If the decision under appeal is based on a determination which does
not deal with all relevant conditions of entitlement, the FtT should be
invited
to consider the remaining conditions or
to adjourn for further information.
212. If the FtT should find for the claimant on the issue on the appeal, for
example, where a DLA claim is disallowed because the claimant failed to
attend a medical examination without good cause, they must be asked to
also consider whether the claimant satisfies the conditions for an award of
DLA if they find that there was good cause.
213. The response may also include:
a submission about whether it is appropriate for the case to be
disposed of without a hearing
a recommendation that the FtT makes the same decision as the DM
did, but if for different reasons.
For example, if:
the DM says they have revised or superseded when in fact they have
done the opposite, or
an OP is found to be recoverable due to misrepresentation, but the
response writer considers failure to disclose was the cause of the OP
the FtT may be invited to correct the decision accordingly.
214. If, exceptionally, the response writer asks the FtT to make a different
decision, the reason for this and why the decision has not been revised
should be clearly explained. An example of this could be:
when an appeal has been received against an OP decision, and
the DM could revise the OP decision to reduce the amount of the OP
by a very small amount, but
it is clear from the claimant’s appeal that they are seeking to have the
whole of the OP decision overturned.
If the OP decision were to be revised favourably the appeal would lapse, and
the claimant would then have to appeal the new OP decision again in order to
fully resolve their issue.
215. The law used in making the decision is referred to here as far as it is
relevant to the grounds of the appeal.
216. The relevant part of the law should be explained in plain English. The
claimant should be informed at the end of the response that they may read
the full text of the legislation by asking their representative, or via the
Internet, or at a public library.
217. If it is necessary to quote a UT decision, the quotation must:
be relevant to the appeal, and
highlight the point the response writer is seeking to prove.
If the UT decision is unreported, include copies in the papers sent to the
claimant and HMCTS.
Special circumstances – further action
IIDB
218. Where appropriate for the purposes of possible aggregation a schedule
of previous assessments for other prescribed diseases (PDs) or accidents
should be provided in section 5.
JSA
219. In JSA cases an appeal might be received following decisions:
to terminate the award on supersession, because the claimant failed to
attend or provide a written declaration on the correct day and good
cause has not been shown for that failure within 5 working days and
to refuse to backdate a late claim following that termination.
220. Where the appeal clearly covers issues in both decisions, the response
should deal with:
the good cause issue on the termination decision, whether or not a
determination on that issue was made and
the time for claiming issue on the late claim.
Late appeals
221. In late appeal cases, the response should deal with any reason for
lateness that might be at issue.
222. Where HMCTS has completed a waiver certificate and DWP has not
objected to the lateness of the appeal, Complete form AT38 and annotate
in the ‘Does the Appeals Officer have any further information to assist the
tribunal?’ box that the appeal was late, but that a waiver certificate has
been completed by HMCTS and lateness accepted by DWP.
Computer extracts
223. An explanation of a computer extract that is sufficient to demonstrate
the particular point for which the extract has been provided should be
included.
224. There may be situations where it would be too difficult or complicated
to provide a written explanation of a computer extract. If that is the case
the DM should ensure that a PO attends the hearing to provide a verbal
explanation.
Viewing dialogues
225. When preparing a response, to view system information the following
dialogues may be helpful:
RP
RP001 to display basic personal details, certain forms issued, any BFs
outstanding
RP002 to display benefit payments
RP003 to display other personal details
RP004 to display entitlement or claim position
RP005 to display NIRS entitlement details
RP006 to display all decisions.
IB
RP001 to display basic personal details, certain forms issued, any BFs
outstanding
RP002 to display benefit payments
RP003 to display other personal details
RP006 to display all decisions
RP008 to display entitlement or claim position, or referring claims to
FtTs
RP010 to display information relating to the dispute process when the
claimant is unhappy with a decision
RP011 to display details of incapacity and period of SSP
RP012 to display details of any permitted work.
IS and SPC
IS500 to display details input on the claim
IS502 to display payment history
IS503 to display award details
IS510 to display notes held on the case
IS570 to display a record of letters/decisions issued.
ESA/JSA
JA500 to display personal details
JA502 to display payment details
JA510 to display notes held on the case
JA513 to display details of suspensions, decisions and sanctions
JA523 to display award details.
AA/DLA
DA/AA500 to display personal details
DA/AA500/501 to display claim details
DA/AA502 to display payment details
DA/AA570 to display notifications issued
DA/AA503 to display decision details.
Preparing the response contents
226. When preparing to send an appeal response to all Parties to the
Proceedings (PTTP) and to HMCTS, include all the relevant evidence
available such as
the claim form or extracts where appropriate
MRN
Appeal form or letter
statements
letters
medical evidence including GP factual reports, Health Care
Professional (HCP) reports, hospital records etc.
evidence from CRU Tribunals where appropriate
forms CP2(LT), AT38, A6 report or SofS certificate relevant to the
decision under appeal.
DLA
227. In DLA cases where there has been an award which has been
superseded or revised, the evidence on which the original award was
based must be included.
228. If entitlement was reduced or disallowed on renewal, the evidence on
which the previous award was made should be included. The documents
should be placed in chronological order with the earliest document first.
229. If there are any previous relevant FtT documents available include
them in the response.
Work Capability Assessment/Limited Capability for work
230. In second or subsequent Work Capability Assessment (WCA)/LCW
cases where there has been an award and there has been no clear
change or the claimant says that their condition has not changed or has
worsened since that award, the earlier WCA/LCW papers should be
included.
231. If they cannot be produced an explanation should be provided. Where
storage contractors have destroyed earlier WCA/LCW papers (they are
routinely destroyed after 15 months) include this information as part of the
explanation.
Fraud overpayment appeal cases
232. Where the appeal concerns an OP following a fraud investigation, all
relevant documents held on the fraud file should be available to the FtT.
233. Where such evidence has been obtained as a result of a written
allegation by a third party then it may be necessary to request that the FtT
make an order prohibiting the disclosure of certain documents.
Photocopying appeal responses
234. When an appeal response is prepared make sure that each page is
clearly and boldly numbered in the top right hand corner so that when
HMCTS prepare their papers for the FtT the numbers can clearly be
reproduced.
235. Where the response includes a bulky claim form, to ease photocopying
it is acceptable to guillotine the spines and remove them. Where
photocopying is carried out by contractors such as where there are more
than 25 copies, this should be part of the request.
Non disclosure of evidence
236. The FtT must have everything before it that the DM had. If there is
evidence that either the FtT or any PTTP thinks is not appropriate for
disclosure to certain parties there is provision for such evidence not to be
included.
For more information on non disclosure see:
ADM Chapter 05, and
DMG Chapter 6.
Arrangement of documents
237. The documents to be sent to HMCTS should be arranged as follows
all sections of the response, including the Schedule of Evidence,
should be placed at the beginning and the pages must be numbered
sequentially (1,2,3 etc).
Note: suffixes (for example 1A – 1Z) may be used for the response where
they are unavoidable, for example because of software constraints or
operational difficulties.
the appeal form or letter should come next, numbered sequentially
following on the numbering of the response. Where suffixes are used
for numbering the response the appeal form or letter will be numbered
‘2’ (or 2, 3, 4, etc depending on how many pages the appeal form or
letter contains)
all other documents should follow the response and appeal form, and
should be arranged in the order in which they were received or
produced and numbered sequentially, including copies of any
decisions relevant to the decision under appeal, with the earliest
document at the top
where a complete page of the evidence is left out of the unedited set of
documents, it should not be numbered sequentially for the purposes of
that set of documents. For example, if a report has 8 pages, the 7th of
which is not to be disclosed, that page should be numbered 6A, and
the 8th page numbered 7. This avoids the need to renumber
documents if that page is included in the bundle issued to the claimant.
where any page contains only some information not to be disclosed it
should be numbered as normal with the harmful information blanked
out in the edited response that eventually goes to the claimant
if a video recording has been used as evidence, the copy of the video
evidence should be put at the bottom of the documents.
Assembling the response for despatch
238. Subject to non disclosure of evidence, send copies of the response and
all the documents to:
HMCTS
the claimant (both members of a couple in joint claim couple appeals)
or representative if there is one and
the PO, if there is to be one. (For PIP, the PO is responsible for
obtaining a copy of the relevant documents).
Note: Where the claimant has a representative then all papers must be sent
to them and, although the rules indicate that none need be sent to the
claimant, it is good practice for the claimant to be sent a set of papers too.
The DM can assume that the representative remains authorised until the
claimant notifies otherwise.
239. An
AT38 should be attached at the top of the documents sent to
HMCTS.
Appeals involving documents not to be disclosed
240. The appeals officer should prepare two sets of documents including the
response, when:
certain evidence used to make a decision is not to be disclosed and
an appeal is made against the decision.
241. The first set should have all the evidence included along with the form
at Appendix 12. This form is to be used to:
explain what evidence is not to be disclosed, and
why it is not to be disclosed, and
ask HMCTS to refer to the FtT for a ruling on disclosure.
242. The other set should exclude the information not to be disclosed. Both
sets of the response must be sent to HMCTS.
243. On no account must the response be sent to the claimant, the
claimant’s representative or the PO.
244. Set a case control for two weeks for receipt of the FtT’s ruling on
disclosure.
245. The non disclosure box (currently still labelled as the Potentially
Harmful Medical Evidence (PHME) box) of the AT38 should be ticked
“yes” and the field below annotated “I request a direction from the FtT
Judge re non disclosure. See non disclosure form”.
246. The covering letter at Appendix 12 must be included with the
documents sent to HMCTS in the normal way.
247. On receipt of the FtT’s ruling, HMCTS will
send the appropriate response as directed to the claimant and any
representative and
send a copy of the ruling to the appropriate DWP office.
248. Where
the
claimant
has a representative and the FtT has decided that
some information should not be disclosed to the claimant, the FtT can
direct that the representative can see it.
For more information on non disclosure see:
ADM Chapter 05, and
DMG Chapter 6.
249. The DWP file should be noted to ensure that the ruling is followed in
any contact with the claimant or representative. The appropriate response
should be issued to the PO if there is to be one. (For PIP, the PO is
responsible for obtaining a copy of the response).
250. DL/CAP 38 should be included with the bundle of documents sent to
the claimant and, where appropriate, to the claimant’s representative.
Preparation of AT38
251. A completed form AT38 must be sent with every response sent to
HMCTS. The AT38 gives HMCTS as much information as possible about
the appeal and enables HMCTS to determine
the likely length of the appeal hearing and
whether a specialist panel member is needed etc
Completion of AT38 – late appeals
252. When a late appeal response request is received from HMCTS, the DM
should decide whether to object to the late appeal being accepted.
253. Where the late appeal has been accepted by DWP, the AT38 should
be completed as for a duly made appeal. Section 4 of the response should
include a statement that the appeal has been accepted.
254. Where an appeal has not been accepted, complete an AT39 to
HMCTS for the FtT to make a determination.
255. If there is a discrepancy between the date of the decision on the AT38
and that given by the claimant in their letter of appeal, include an
explanation of the discrepancy in the other information box on the AT38
and the appeal response.
Completion of AT38 – late appeals on advance decisions
256. When a late appeal response request against an outcome decision that
applies from a future date is received, the time to appeal starts from the
original decision date notified to the claimant on the MRN.
257. Record details of the date from which the decision under appeal took
effect in the “Any other information” box on the AT38.
Preparation of AT39
258. A
completed
AT39 must be sent if there is a request for Tribunal
direction or if there is a requirement for additional information for the
Tribunal. It is needed in the following circumstances:
a decision has been made on an intervening new claim
the decision under appeal has been superseded
information received raises new issues which have not been addressed
before
contentious case law or legal arguments are given
a further response has been requested by the FtT following an
adjournment.
Note: This list is not exhaustive. Any supporting documents must be sent with
the AT39.
Suspected Appeal Campaign
259. If it is known or suspected that a case is part of an appeal campaign
the appeal response should be prepared and submitted to HMCTS in the
normal way. The AT38 should be noted with any information or suspicions
concerning any appeal campaign.
Complex issues
260. Whether or not a case is classified as complex is determined by the
length of time the hearing is likely to take. A case is determined to be
complex if it is likely to take longer than the usual time slot HMCTS allow
for each particular benefit.
261. If, for example, you are dealing with an appeal on a criminally
investigated fraud case, you need to consider:
how long it will take to watch any video evidence at the hearing, and
whether the case involves entitlement and overpayment issues.
262. If the case is likely to take longer than one slot, the AT38 should be
marked as ‘complex’. Record the reasons why it has been marked
‘complex’ on the second page of the AT38. The reasons need to be
specific and clear to enable HMCTS to determine the length of time to
allocate for the hearing.
263. If a PO is required to attend a complex appeal hearing, complete the
oral hearing box on the front page on the AT38. This will ensure a PO is
called to attend.
264. Request an oral hearing on complex appeal cases even if the claimant
has opted for a paper hearing and ensure that a PO is available to attend.
265. If you do not ask for an oral hearing the Tribunal has the option to
decide the case on the papers alone, despite the fact you have indicated
the case is complex.
Annotating the AT39
Court proceedings pending
266. Where court proceedings have been instigated following a fraud
investigation, the “any other information” box of the AT39 should be
completed. A note should be included as part of the response giving
details. If the appeal is still outstanding when the court proceedings are
over HMCTS must be informed and told what the outcome is.
Compensation recovery cases
267. Where
the
decision
under appeal was made following notification by
the CRU of a FtT decision in a compensation recovery case the “any other
information” box of the AT39 should be annotated to ensure that no
members of the FtT who heard the compensation recovery appeal will be
a member of the FtT who hears the benefit appeal.
Claimant has a potentially violent marking
268. Where a claimant is classified as PV and their appeal is to be referred
to HMCTS, the relevant boxes on the AT39 should be completed and the
appropriate proforma (see pages 6 & 7 of form IF2) should be included in
any papers sent to them. If the PV marking has not been disclosed to the
claimant, this fact and the reasoning behind it should be highlighted in the
“Any other information” box on the AT39.
Further medical evidence
269. Where an appeal involves disability or medical issues, the claimant or
representative may indicate in the letter of appeal or other document such
as the claim form that a GP, consultant or other person may be contacted
by the decision making authorities for further information in support of their
appeal.
270. If there is no evidence from this named contact in the documents used
to make the decision under appeal, for example because the DM
considered that there was sufficient evidence from other sources to decide
the claim or application, the FtT may wish to consider whether
to obtain evidence from those identified by the claimant or
representative or
to give directions to the claimant about obtaining evidence or attending
a hearing.
271. This is best done as part of the pre-hearing process, in order to avoid
unnecessary hearings.
272. Where:
the claimant or representative states that a GP, consultant or other
person may be contacted for information about their medical or
disabling condition and
no evidence has been obtained from the named source
the "other information" box on the AT39 should be noted.
Claimant living outside Great Britain
273. If you know that the claimant is living outside GB, tell HMCTS on the
AT38.
274. If the claimant is being represented and the representative is to attend
the hearing, the claimant is asked to tell HMCTS if the representative has
a preferred hearing location.
275. The appeal will be heard at the venue either specified by the claimant
or preferred by the representative, unless all PTTP have agreed to no
hearing, in which case the appeal will be heard at Newcastle upon Tyne.
HMCTS will notify all PTTP, and any representatives of the time, date and
venue for the hearing.
Suspected fraud
Appeal withdrawn
276. If an appeal is withdrawn on a suspected fraud case, notify FIS
immediately
Information not yet laid
277. If an appeal is made in a suspected fraud case on which a case is to
be referred for prosecution where the appeal response request is received
notify FIS.
278. If information has not yet been laid (in Scotland read ‘laying
information’ as ‘reporting a case to the Procurator Fiscal’) take normal
appeal action. When the response is sent to HMCTS inform them that the
case is being considered for prosecution, and ask HMCTS to ensure that
the appeal is heard as quickly as possible. Notify FIS about the result as
soon as it is known.
279. Where an appeal is connected to matters that may result in criminal
proceedings against the claimant, no mention of this should be made in
the written or oral response. However, it must be brought to the attention
of HMCTS.
Information laid
280. If information has been laid (or is about to be laid urgently) prepare the
response in the usual way. Tell HMCTS that criminal proceedings are
pending.
281. The response should not be delayed where the Department is bringing
criminal proceedings against the claimant. The response should be sent to
HMCTS as normal and the matter of the criminal proceedings should be
brought to the attention of HMCTS with details of how far those
proceedings have progressed. The FtT decides whether the hearing
should be put on hold.
282. HMCTS will send out a copy of the FtT’s ruling as soon as possible. If
the FtT’s ruling is:
to proceed with the hearing, liaise closely with FIS to make sure the
appropriate papers and documents are available for both the appeal
hearing and the court proceedings. Notify FIS as soon as the appeal is
completed or
to delay or postpone the hearing, notify FIS immediately, and tell
HMCTS when the court proceedings are over and what the outcome is.
Claimant represented
283. If you know that the claimant has given written authority for someone to
act on their behalf, you must make any enquiries concerning the appeal
through them.
Representative identified when the response is prepared
284. When an appeal response request is received from HMCTS and it is
clear that the claimant has a representative, and the response is
assembled and ready for despatch.
Step
Action
1
Photocopy the appeal response and relevant documents for
HMCTS, the claimant, their representative if the claimant has
one.
Note: where non disclosure of certain evidence is involved this
guidance should not be followed.
2
Send a photocopy of the response and relevant documents and
a copy of the video recording (if one has been used as evidence)
with a completed AT38 to HMCTS and note the date of despatch
on the appropriate method of recording appeals.
3
Send photocopies of the appeal response and relevant
documents and a copy of the video recording (if one has been
used as evidence) to the claimant.
Note: see note to step 1 above where non disclosure is involved.
4
Send photocopies of the appeal response and relevant
documents and a copy of the video recording (if one has been
used as evidence) to the claimant’s representative with DL/CAP
37.
Note: see note to step 1 above where non disclosure is involved.
5
Keep the original response and relevant documents and a copy
of the video recording (if one has been used as evidence) in the
file. Annotate the file that a copy of the appeal response has
been sent to the claimant’s representative where appropriate.
No representative identified when the response is prepared
285. Where a representative is not identified by the time the response is
sent to HMCTS, annotate the other information box of the AT39. Note:
This annotation must be clear and in capital letters.
Representative identified to HMCTS after DWP has issued the
response
286. After DWP has returned the response, it may become apparent to
HMCTS that the claimant has a representative. HMCTS will inform DWP of
the representative’s details.
Step
Action
1
Send a photocopy of the response and relevant documents and
a copy of the video recording (if one has been used as evidence)
to the representative with DL/CAP 36.
2
Annotate the file that a copy of the response has been sent to the
representative.
Note: HMCTS will only be able to identify where the appeal
papers have not been issued to the representative by referring to
the AT38.
Representative identified to DWP after the response has been
issued
287. If, after the appeal response has been sent to HMCTS the claimant
informs DWP that they have a representative.
Step
Action
1
Send a photocopy of the response and relevant documents and
a copy of the video recording (if one has been used as evidence)
to the representative with DL/CAP 37.
2
Annotate the file that a copy of the response has been sent to the
representative.
3
Copy the letter from the claimant informing DWP that they have a
representative and send it to HMCTS with an AT39.
Duplicate appeal papers requested
288. When a request for duplicate papers is made, a copy should be issued
if the request is reasonable, for example, where the papers did not arrive
in the post or have been lost. If the request is made to HMCTS, they will
notify DWP if a copy should be issued.
Video/taped evidence
289. If a video recording or taped interview has been used as evidence in
making the decision that is under appeal, copies of the complete video or
tape, not just relevant extracts, must be made for HMCTS, the claimant,
their representative and the PO (if there is to be one).
290. Where a video/tape recording is used as evidence, the person who
took the video/tape may have to be asked to attend the FtT hearing to
answer any questions arising from that video/tape.
291. If the identity of the person who took the video is not known to the
claimant, a written statement should accompany the video recording
testifying to its authenticity.
292. If the person who took the video would be at serious harm if their
identity was revealed then there is provision for that person’s identity not to
be disclosed.
For more information see:
ADM Chapter 1, and
DMG Chapter 6.
Witnesses
293. DWP is responsible for calling its witnesses to the hearing. Send
DL/CAP 25 to the witness at the same time as the documents are sent to
the FtT.
294. When the date of hearing is known, the PO sends the witness DL/CAP
26 with a pre-paid envelope.
Asking for cases to be deferred
295. HMCTS may defer a decision on an appeal if it involves the same point
of law that is being challenged before the UT, or in the Courts, in another
case. The case before the UT or the Court is known as the lead case. The
case being considered is known as the “lookalike” case.
For further information on cases to be deferred see:
ADM Chapter 5, and
DMG Chapter 6.
Look-alike appeals
296. Where it has been established that an appeal is pending following the
decision on another case, DMA Leeds will:
identify the lead case
issue notifications detailing the point of law in dispute and the benefits
which are affected by the decision.
Withdrawing an appeal
297. Appellants should contact HMCTS to withdraw an appeal, by telephone
or in writing.
298. HMCTS will decide if the request to withdraw can be accepted.
Claimant’s withdrawal request sent to DWP
299. If the claimant sends their withdrawal request to DWP in error, contact
the claimant to tell them that they must contact HMCTS who will deal with
their request.
300. If the appeal response request has not yet been sent through to DWP,
once the claimant has been told to contact HMCTS, there will be no further
action for DWP to take. This is because there will be no appeal record at
this stage. HMCTS will decide if the appeal can be withdrawn and notify
the claimant.
301. If HMCTS have already sent the appeal response request to DWP, tell
the claimant to contact HMCTS to withdraw it but continue to action the
appeal in case:
HMCTS do not accept the withdrawal request
the claimant decides not to withdraw
the claimant does not contact HMCTS to withdraw.
302. Where HMCTS tell us they have accepted the request to withdraw,
update the benefit system/DMACR/ARTS/clerically to close the appeal
record.
For more information on requests to withdraw see:
ADM Chapter 5, Paragraph A5194, and
DMG Chapter 6.
Request for reinstatement of withdrawn appeal
303. Any party who has withdrawn their appeal may apply to the FtT for it to
be reinstated. The request must be made in writing and be received by
HMCTS within one month after:
the date the FtT received the request to withdraw the appeal, or
the date of the hearing at which the appeal was withdrawn orally.
304. If the appeal is withdrawn before it has been passed to DWP for a
response, and HMCTS agree to reinstate, they will recommence their
action before requesting the appeal response from DWP. Once passed to
DWP it will treated as a new appeal but, retain the original date of appeal.
305. If the appeal is withdrawn after it has been passed to DWP for a
response, that is:
before the response has been prepared, or
after the response has been prepared but before it is sent to HMCTS,
or
after it has been sent to HMCTS and withdrawal is accepted at an oral
hearing
and HMCTS accept the reinstatement, they will advise DWP that they have
reinstated the appeal and request a response.
306. DWP will have 28 calendar days from the date the reinstatement was
received in DWP, to prepare the response.
For more information see:
ADM Chapter 5, Paragraph A5220, and
DMG Chapter 6.
Appeal response request received - further evidence required
307. DWP may receive a request for an appeal response from HMCTS
where it is identified, by a DM, that further evidence is required before the
response can be written.
308. The claimant is given one month to provide information following our
request. At this stage, set a 14 day b/f to await the return of the evidence.
If the b/f matures and the evidence has not been received, it is unlikely
that the response will be prepared in time to meet the 28 day deadline. In
these cases consider asking HMCTS for a time limit extension using form
TL1, and consider asking the Tribunal for a Direction requiring the
evidence to be provided.
309. If the further evidence is not received within one month, continue with
the appeal response ensuring that details for contact etc are included in
the appeal response and send to HMCTS.
310. Record
all
action
and details on the benefit
system/DMACR/ARTS/clerical papers.
New claim received – appeal outstanding against earlier
decision
311. If a new claim is received and there is an outstanding appeal against
an earlier decision, this claim will be decided and recorded in the usual
way. When preparing the appeal response, explain to the Tribunal that a
decision has been made on a new claim and state the outcome of that
decision.
312. If the appeal response has already been sent to HMCTS, complete
form AT39 advising them of the new claim decision. Advise HMCTS to
restrict their appeal decision to the day before the effective date of the new
claim.
For more information see:
ADM Chapter 5, Paragraphs A5010 –A5014, and
DMG Chapter 6.
Extra information to be provided by the Department
313. If the FtT directs the Department to provide further information, check
carefully to see what details are needed and obtain the information within
the timescales set out in the FtT’s direction notice. If difficulty is
experienced in obtaining the additional information/evidence within the
timescales directed, the DM should apply to the FtT for an extension of the
time limit.
314. When the additional information/evidence is available, the decision
under appeal should first of all be reconsidered in the light of the new
information/evidence. If the decision under appeal can be revised wholly in
the claimant’s favour, go to section ‘Decision wholly in claimant’s favour’.
The appeal will lapse.
315. If the decision under appeal cannot be revised wholly in the claimant’s
favour go to section ‘Decision partially in claimant’s favour’. The
supplementary response should also be sent to the PO if required.
Claimant changes address
316. If the claimant notifies a change of address after the response is sent
to HMCTS, telephone:
HMCTS and
if appropriate, International Pensions Centre (IPC) and
any other DM involved in the appeal.
317. Tell them the new address and the date of change, and if necessary
confirm the telephone call in writing.
New address outside Tribunal’s area
318. If the claimant moves to a different area and their case is transferred to
another DWP office, check whether the appeal needs to be transferred to
a different FtT.
319. If the response has already been sent to HMCTS, they will notify the
claimant if the case has to be processed at a different location.
320. If the claimant notifies that they have changed their address before the
response is sent to HMCTS
Step
Action
1 Note
the
AT38 that the address has changed and also identify to
HMCTS which DWP office will now be dealing with the appeal.
2
Send the appeal response to the appropriate HMCTS office.
3
Transfer the appeal file to the new DWP office.
4
Update the benefit system/DMACRS/ARTS and clerical papers.
Adjourned appeals
321. Where
the
claimant:
changes their address and
moves to an area covered by a different DWP office and
the appeal is adjourned
the original office must send all the relevant documentation to the new DWP
office.
322. The new DWP office must take any/all further necessary action.
323. In most cases, when an appeal is adjourned HMCTS will arrange a
new hearing date immediately.
Appeal response request received against DM’s decision at a
previous office
324. If an appeal response request is received against an outcome decision
made at the previous office location and responsibility for the case has
been transferred to a new office, the new office must process the appeal.
325. Contact the previous office by telephone or minute if any further
information is needed. If necessary, return the case to the previous office
for further investigation.
Claimant dies after appeal lodged
326. If the claimant dies after they have lodged an appeal with HMCTS,
consider nominating an appointee so that the appeal can proceed.
327. Notify HMCTS of the new details. The appeal will continue.
328. If the claimant had an appointee before their death, the authority for the
appointee ceases when the claimant dies.
329. Another appointee will need to be nominated but this can be the same
person as before, if no other suitable person is identified.
330. HMCTS will allow DWP six months to nominate an appointee. If no
appointee is nominated within this time, the appeal will be brought to an
end. This process is referred to as abatement.
331. If an appointee is nominated, DWP will be responsible for issuing a
copy of the appeal response to the appointee.
For further information on claimant dies after appeal lodged see:
ADM Chapter 5, Paragraphs A5470 and A5670 , and
DMG Chapter 6.
332. If the notification of death is received by HMCTS, they will notify DWP.
For example, a family member might send a letter with a copy of the death
certificate and the name of someone who wishes to act as an appointee.
333. HMCTS will contact DWP and halt the processing of the appeal. If
DWP have details of a different person who is appointed to continue the
appeal on behalf of the claimant, for example, an executor or solicitor, this
takes precedence.
Claimant living outside Great Britain – Attendance at hearing
Representative nominated
334. If the claimant is living outside GB, the case will proceed as normal if
the claimant nominates a representative to take their place at the hearing.
335. The representative may not live in the area covered by the Tribunals
Service office that the appeal papers are initially sent to. In this case
HMCTS will transfer the papers to the appropriate Tribunals centre and
notify DWP. Send any further details about the appeal to the new
Tribunals centre location.
Appeal held over
336. If the claimant wants the appeal held over until their return to GB,
HMCTS will notify all parties that there is a delay in the appeal hearing.
Appeals staff must note on benefit system, DMACR/ARTS and clerical
papers.
337. When the claimant returns to GB, HMCTS will notify all parties and the
hearing will proceed as normal.
Hearing and post-hearing procedures
338. For:
general information on FtT hearings and
guidance for POs when presenting appeals
See:
ADM Chapter 5, Paragraphs A5270 - A5273, and
DMG Chapter 6.
Production of documents at hearings
339. The claimant is entitled to see any document
used by the DM in
making the decision which is the subject of the appeal (provided that the
evidence is relating to the disputed facts). All such documents must be
sent to the claimant under cover of the Schedule of Evidence.
340. Further questions may arise at the hearing which would require
reference to the appropriate papers. The FtT will decide what evidence to
disclose.
Sensitive documents
341. Fraud Investigators (FIs) will not send sensitive material to DM(s) that
they do not want disclosing to claimants. For example they will not send a
document which may reveal the identity of a person who made a fraud
allegation.
342. This is because the claimant only has the right to see the
evidence
that the DM used to reach a decision.
343. However, evidence from the fraud file which was originally before the
DM may be missing from the papers. In this case the DM should ask the FI
to supply copies of it.
344. The FtT will need to see
all of the evidence that the DM used as a
basis for the decision. As documents may be required for prosecution
purposes the DM/appeals officer may have to ask the FI to provide copies
of documents that were used to make the decision that may still be in the
fraud file. Provided copies of original documents are legible FtT’s do not
need the originals. Copies of all the evidence used by the DM should be
included in the appeal papers.
345. In exceptional circumstances the FtT can insist on seeing original
documents. If this occurs and the prosecution is still proceeding,
arrangements should be made for the FI to attend the FtT hearing with the
original documents.
346. If it is not possible to provide original documents for the FtT because,
for example, the court hearing is on the same day as the FtT hearing, a
postponement (or an adjournment if the FtT hearing has started) should be
requested until such time as the original documents can be supplied.
Appeal against an overpayment decision, including where a
Civil Penalty has been imposed.
347. When HMCTS request an appeal response against a recoverable
overpayment decision, recovery action must be suspended by Debt
Management. This includes the recovery of any associated Civil Penalty
(CPen), against which there is also a right of appeal.
348. Recovery action will have been reinstated following the MR. You must
email Debt Management immediately, to suspend further recovery action
pending the appeal outcome.
Medical evidence
349. HMCTS will make the necessary arrangements if the Tribunal:
needs additional medical evidence or
wants the claimant to be examined or
requires a report given by another practitioner, for example the
claimant’s own doctor or a consultant or
requires a factual report based on hospital case notes.
Extra witnesses to be produced for DWP
350. If the FtT has adjourned a case so that extra witnesses can attend, it is
the responsibility of the DWP to provide these witnesses and contact them
as quickly as possible. Send the names and appropriate addresses of the
witnesses to HMCTS so that a further hearing date can be arranged.
First-tier Tribunal’s decisions
351. All decisions made by FtTs are given in summary form on a HMCTS
Decision Notice (DN). The FtT may also decide to give a decision orally at
the hearing however this does not remove the requirement for the FtT to
provide the written DN as well.
352. The FtT does have powers under the rules to make consent orders
disposing of proceedings. However under no circumstances should the PO
agree to any suggestion of a consent order.
353. In appeals involving the WCA/LCW LCWRA, if the outcome decision is
not upheld the FtT should always:
issue a revised score and
either attach the revised score to DN, or note the revised score on the
DN.
Note: DMs will have facility in Decision Maker Appeals Case Recorder
(DMACR) to select "reason for Tribunal outcome" from dropdown box.
Record of Proceedings
354. The presiding member of the FtT is required to make a record of
Proceedings (ROP) at the hearing that is sufficient to indicate:
the evidence taken
submissions made, and
any procedural applications.
355. The ROP can be in whatever form the presiding member may direct,
for example recorded:
clerically
electronically or
on audio tape.
356. The FtT must keep a copy of the RoP for a period of six months from
the date on which HMCTS issue:
the FtT decision
any written reasons for the FtT’s decision
any correction of the decision notice
a refusal to set aside the decision of the procedural reasons
a determination of an application for permission to appeal against the
decision or
until the date on which those documents are sent to the UT in
connection with an appeal, or an application for permission to appeal, if
that is within the six months quoted above.
357. Any PTTP may apply in writing to HMCTS for a copy of the RoP within
the time limit above and HMCTS must send a copy to that party. However,
HMCTS will send the RoP with all written statement of reasons and
adjournment notices.
Written statement of reasons
358. A written statement of reasons (WSoR) for the FtT’s decision and its
findings on questions of fact can be requested from HMCTS. However,
this should only be done where the DM is considering an appeal to the UT.
The request must be made in writing.
359. If the PO makes a verbal request at the Hearing, this must be followed
up in writing.
360. Any requests for a WSoR must be made within one calendar month of
the Decision Notice (DN) being given or sent out. The request should be
made on the form attached at Appendix 10.
Implementation of First-tier Tribunals decision
361. When the FtT’s decision has been received, it must be date stamped.
The decision should then be put into effect as soon as possible. This must
include notifying the Local Authority where appropriate
Note: Where the appeal Tribunal has:
allowed the appeal and
decided the claimant can get benefit but,
not quantified the amount of extra benefit payable
calculate the arrears due
make a payment to the claimant, and
issue DL/CAP11.
Liberty to apply
362. Where the FtT allows the appeal, but remits calculation to the DM, any
dispute about further calculation by the DM should be referred back to the
same FtT. This is known as "liberty to apply".
363. In such cases the claimant has no right to appeal against the
calculation, but disagreements can be referred back to the FtT.
364. The process of referring disagreements about calculations back to the
Tribunals is usually applied in overpayment cases, where the FtT decides
that an overpayment is recoverable but calculation of the amount is
referred to the DM. However, it can also be considered in other benefit
cases.
365. “Liberty to apply” is only appropriate where the decision notice clearly
states that it is available. The FtT will usually set a time limit for making an
application. Appeals officers should note that this process is not an
alternative to making an appeal. It is available because the claimant has
no right of appeal against the DM’s determination in cases where
calculation is referred to the DM.
366. If the claimant contacts DWP and disagrees with the DM’s calculation,
the DM or appeals officer should refer the matter to the FtT for
consideration, with an explanation of the calculation. Alternatively the
claimant may apply directly to the FtT. The FtT will inform DWP that an
application has been received.
367. Where
the
application
is admitted by the FtT, the appeal will be listed
before the same FtT for hearing. The sole issue before the FtT is the
calculation by the DM. The FtT may direct that a further response is
produced before the hearing to explain the calculation.
368. Where
the
application
is not admitted, the FtT may treat it as a request
for:
a written statement of reasons
an application for set aside or
an application for permission to appeal.
First-tier Tribunals decisions which cannot be implemented
369. There may be some FtT decisions which cannot be implemented, not
because of accidental error but because they are unclear in the context of
the case. In any such case clarification should be sought from HMCTS.
370. Generally there will be no queries on an FtT decision. However, there
may be case when it appears that the FtT has made an accidental error or
the DM considers that an appeal to the UT might be appropriate.
Enquiries /complaints from claimants
371. If a claimant does not understand the FtT’s decision, give them an
explanation of how the decision was reached.
372. If there are insufficient details to answer the enquiry, advise the
claimant to contact HMCTS. Consider writing on the claimant’s behalf if
they have difficulty in writing themselves.
Suspected fraud cases
373. When the appeal hearing is completed notify FIS immediately, and
send all the papers, including the FtT’s DN and WSoR (if requested), to
them without delay.
Note: Consider whether any successful appeal should be appealed to the UT.
If it is to be appealed liaise closely with FIS, as any ongoing prosecution could
be adversely affected. If any successful appeal is not to be appealed
to the UT make sure that any payment awarded by the Tribunal is issued
before the papers are passed to FIS.
Accidental error
374. If the Tribunal’s decision appears to contain an accidental error, any
party to the proceedings can apply to HMCTS to have the error corrected
at any time.
375. To have an accidental error corrected:
circle in pencil the part of the decision notice which contains the
accidental error,
complete form AT39 explaining why the decision contains an
accidental error and send to HMCTS.
376. The status of the appeal will remain open.
For further information See:
ADM Chapter 3, Paragraphs A3041-3045, and
DMG Chapter 6.
377. If the Tribunal refuses to correct the decision, and the error affects the
amount of benefit payable, consider whether the case is suitable for an
appeal to the UT. If benefit is not affected the decision should be
implemented as it stands.
378. If the Tribunal correct their decision by amending the original decision
notice, the time limit for an application for permission to appeal to a UT
remains unchanged. The time limit starts from the date of issue of the
decision notice prior to any correction. If however, a new decision notice is
issued, the time limit starts from the date of issue of the new decision
notice.
For further information on decision wrong in law see:
ADM Chapter 5, and
DMG Chapter 6.
Tribunal gives partial decision
379. If the Tribunal has given a partial decision and has referred the case to
the DM for the final outcome decision, follow the Tribunal’s direction
unless you consider the Tribunal has erred in law. The Tribunal will advise
the claimant of their partial decision and that the final outcome decision will
be issued in due course.
380. If there is insufficient evidence to make an outcome decision, obtain
the further evidence required.
381. Where there is sufficient evidence to make an outcome decision, do
this without delay and incorporate the Tribunal’s decision. As the Tribunal
has already notified the claimant of the action that will be taken, it will be
sufficient to notify the claimant of the final outcome decision only.
382. The DM decision will have a right of revision. The claimant cannot use
this revision to reopen the issue decided by the Tribunal unless there are
new grounds to do so.
Incomplete decisions
383. A decision is incomplete if the Tribunal has failed to address all the
relevant issues raised by the appeal. If this occurs request a re-hearing,
stating that all matters raised by the appeal have not been decided
explaining which issue(s) has not been addressed.
For further information on incomplete decisions see:
ADM Chapter 5, Paragraphs A5515, and
DMG Chapter 6.
The Tribunal refuses to re-list appeal
384. If the Tribunal refuses to re-list the appeal, where they have failed to
take account of something which occurred after the effective date of the
claim, supersede the Tribunal decision.
For further information re-listing appeals see:
ADM Chapter A4, and
DMG Chapter 4.
385. If a Tribunal refuse to re-list the appeal where they have failed to take
account of something that was an issue at the date of claim, the DM
cannot normally supersede the Tribunal decision on this ground.
386. In these cases consider whether the case is suitable for appealing to
the UT.
For further information on UT see:
ADM Chapter 5, and
DMG Chapter 6.
Decision wrong in law
387. A Tribunal decision can be challenged on the basis that it contains an
error in law. Applications for permission to appeal to the UT are made by
DMA Leeds. Before a case is referred to DMA Leeds to consider a request
for an application for leave to appeal to the UT, a WSoR and RoP must be
obtained from the FtT"
For further information on decision wrong in law see:
ADM Chapter 5, and
DMG Chapter 6.
Setting aside First-tier Tribunal decisions on certain grounds
388. Under rule 37 of the FtT’s Rules, any PTTP can apply to have all or
part of the FtT’s decision set aside if:
a document relating to the proceedings was not sent to, or received by,
a PTTP, or their representative, or was not sent to the FtT at an
appropriate time or
a PTTP, or their representative, was not present at the hearing or
there has been some other procedural irregularity in the proceedings.
389. An application under this rule cannot be used where the issue under
consideration is about errors of fact or errors of law. The application for set
aside must be made in writing to the FtT and be received no later than one
month after the date on which the FtT sent the DN to the PTTP.
Further evidence comes to light after the First-tier Tribunal
decision – grounds for supersession
390. Consider supersession if:
the FtT was ignorant of a material fact, for example evidence was held
by DWP but had not been disclosed to the FtT or
further evidence is disclosed after the FtT has given a decision and that
evidence may affect the decision or
the DM is required to supersede a FtT or an UT’s decision made under
the stayed appeals procedures or
a relevant change occurred which the FtT were unable to take into
account.
For further information and guidance on superseding the FtT’s or UT’s
decision and fixing the appropriate effective date see:
ADM Chapter A4, and
DMG Chapter 6.
Judicial review
391. The guidance about continuing an appeal does not apply where the
claimant challenges a decision outside the SS appeal system. This is most
likely to happen when:
a claimant’s appeal to the FtT is dismissed and
an application for permission to appeal is refused by the District Judge
and the UT, and
the claimant applies for judicial review of the UT’s refusal to grant
permission.
392. Where
the
claimant
was entitled to reduced rate IS because an appeal
against the decision about the WCA was ongoing, that entitlement ends
when the UT gives a ruling refusing the application for permission.
393. The claimant’s entitlement to IS can only continue if they satisfy
another condition of entitlement. Alternatively, they could claim JSA.
Appeals performance indicator
394. Appeals clearance performance is measured by AACT. Different
business units have their own AACT.
395. Count the calendar days and include the day the appeal response
request is received from HMCTS and the day the appeal response is
returned to HMCTS.
Note: Calendar days mean weekend days, public
holidays, bank holidays and privilege days.
Range of benefits to be covered
396. When the question of jurisdiction is in doubt, appeals sections may
consider it good practice to keep a copy of letters sent to the FtT and list
the cases on form A98, dummy form LT245 or other appropriate method of
recording appeals. This ensures that effective follow up action can be
implemented when necessary.
Recording appeals
Completion of form LT245 guide or other appropriate method of
recording appeals
397. Recording the appeals will be captured within DMACR/ARTS.
Appendices
Appendix 1 - Forms
The primary forms referred to in this code are:
Form
Description
AT38
Notification of response (to HMCTS).
AT39
Request for tribunal’s direction or additional information for the
Tribunal
AT60
Request to HMCTS to strike-out an appeal on the grounds of ‘no
reasonable prospect of success’
AT61
Non-disclosure of evidence
AT62
Request for first-tier Tribunal documents
AT63
Schedule of evidence
AT64
Request for consideration of an appeal to the Upper Tribunal DMA
MRN Mandatory
Reconsideration
Notice
TL1
Request for an extension to a time limit
Appendix 2 - Draft letters
Appendix 2 contains:
a list of DLCAP letters
instructions on how to use the draft letters.
List of DLCAP letters
Draft letter Description
DLCAP1
Covering letter to the LA when we are sending them a copy of
an appeal
DLCAP8
Letter to appellant in Housing Benefit appeal cases
DLCAP11
Letter to tell appellant about the DM’s quantification of a First-
tier Tribunal’s decision
DLCAP25
Letter to a person whom the Department will require as a
witness at the First-tier Tribunal
DLCAP26
Letter notifying witness of hearing
DLCAP31
Letter notifying appellant of the Departments application to have
the appeal struck out by the First-tier Tribunal due to ‘no
reasonable prospect of success’
DLCAP34
Letter to tell appellant their appeal is considered to be OOJ
DLCAP36
Letter to appellant’s representative when sending a copy of the
response to them following confirmation from HMCTS
DLCAP37
Letter to appellant’s representative when sending a copy of the
response to them when the appellant has informed the Agency
that he has a representative.
DLCAP38
Covering letter to accompany an appeal response bundle sent
to the appellant or the appellant’s appointee
DLCAP40
Letter to tell appellant that we have sent the appeal response to
HMCTS
DLCAP41
Letter to tell appellant that we have received their request for a
Mandatory Reconsideration
DLCAP42
Letter to tell appellant that as they have not requested a
mandatory reconsideration their appeal request letter received
in the department will be treated as a request for a mandatory
reconsideration
DLCAP43
Letter to tell appellant that their appeal letter is being returned
to them as they have sent it to the department in error
DLCAP44
Letter to tell appellant that the department have objections to
their late appeal
DLCAP45
Letter to tell the appellant their late request for a mandatory
reconsideration is refused
DLCAP46
Letter to tell the appellant that a mandatory reconsideration is in
process and therefore their appeal letter has been returned to
them
Welsh Language
398. Any draft letters sent to customers in Wales need to be available in
Welsh if that is their preference. If a claimant has chosen to undertake
their business with us in Welsh, complete the draft letter and send it to:
xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx.xxx.xx for translation.
Appendix 3 - Benefit Assessment type codes and issue codes
Benefit assessment type codes
New Code Benefit
002
Personal Independent Payment (PiP) – New Claim
003
Personal Independent Payment – Reassessment Case
13 Attendance
Allowance
13El Attendance
Allowance
(Exportability Issue)
37
Disability Living Allowance
37EI
Disability Living Allowance (Exportability Issue)
45
State Pension Credit
51
Employment and Support allowance (ESA) and ESA(EU)
52 Incapacity
Benefit
56 Carer’s
Credit
61 Income
Support
64
Industrial Death Benefit
67
Industrial Injuries Disablement Benefit
67
Reduced Earnings Allowance
67 Retirement
Allowance
70 Carers
Allowance
70EI
Carers Allowance (Exportability Issue)
73 Jobseekers
Allowance
76 Lookalikes
79 Maternity
Benefit/Allowance
82 Retirement
Pension
85
Severe Disablement Benefit/Allowance
88
Social Fund Maternity
89
Social Fund Funeral
91 VDP
94
Bereavement Benefit/Widows Benefit
99 Others
DN: UC codes will be included when notified
Issue Codes
New Code Benefit
AA Invalid
AP
Assessed Income Periods
AR
Alternative Dispute Resolution
AS Asylum
BW
Back to Work Bonus
CB Contribution
Record
CC Conditions
of
entitlement – complex
CD Care
(DLA)
CE Conditions
of
entitlement
CF
Care Mobility (DLA)
CL Capital
CM
Child Maintenance Bonus/Premium
CO Community
Order
CP Civil
Penalty
CR Credits
CS
Chest – pneumo’, asbestos etc
DA
Disability and Carers
DE
Date of entitlement
DD
Appeal Directly Lodged
DP Disability
Premium/Severe Disability Premium
DQ Disablement
Question
EC
European Court of Human Rights (ECHR)
EI Exportability
EX EC
Legislation
GC Good
Cause
HC Housing
Costs
HT
Habitual Residence Test
IA Industrial
Accident
ID Industrial
Disease
IQ Income
Query
LC
Daily Living Component
LE
Late (extending back)
LM
Labour Market Issues continued
LT
Living Together as Husband and Wife/Civil Partners
(LTAHAW/CP)
MD Mobility
(DLA)
MO Mobility
Component
ML Daily
Living/Mobility
NC Non-Compliance/Sanction
OC
Overpayment – capital
OK
PD A14 – Osteoarthritis of the knee
ON One
Project
OS
Overpayment – straightforward
OX
Overpayment – complex
PC Property/Capital
Settlement
PF
Pensions from Abroad
PR Premiums
RA
Rate of Assessment/Assessment/Payability Issues
RB
Reduced Benefit Decision
RC
Rate of Assessment/Assessment/Payability Issues – complex
RG Reciprocal
Agreement
SF Funeral
SG
Support Group Placement
SM Maternity
SS
Self Employed – straightforward
SX
Self Employed – complex
TB
Termination of benefit – failure to provide further information
TT Term
Time
VW Verbal
Withdrawal
WC
Work Capability Assessment
WF
Winter Fuel Payments
Appendix 4 - Benefit specific and issue code permutations
1. All 53 issue codes are acceptable. However, depending upon
benefit/assessment-type composition may be subject to alteration.
Attendance Allowance (13)
AT38 code Issue
13AA
Invalid
13AR
Alternative Dispute Resolution
13CC
Conditions of entitlement - complex
13CD
Care (DLA/AA)
13CE
Conditions of entitlement
13CF
Care/Mobility (DLA/AA)
13DQ
Disablement Question
13EC
European Court of Human Rights
13EX
EC legislation
13GC
Good cause
13LE
Late (extending back)
13MD
Motability (DLA/AA)
13OC
Overpayment - capital
13OS
Overpayment - straightforward
13OX
Overpayment - complex
13RA
Rate of assessment/payability
13RC
Rate of assessment/payability - complex
Disability Living Allowance (37)
AT38 code Issue
37AA
Invalid
37AR
Alternative Dispute Resolution
37CC
Conditions of entitlement - complex
37CD
Care (DLA/AA)
37CE
Conditions of entitlement
37CF
Care/Mobility (DLA/AA)
37CP
Civil Penalty
37EC
European Court of Human Rights
37EX
EC legislation
37GC
Good cause
37LE
Late (extending back)
37MD
Mobility (DLA/AA)
37OC
Overpayment - capital
37OS
Overpayment - straightforward
37OX
Overpayment - complex
37RA
Rate of assessment/payability
37RC
Rate of assessment/payability - complex
Personal Independence Payment - New Claim Appeals (02)
AT38 code Issue
002GC
Good Cause
002LE
Late (extending back)
002MD
Mobility (DLA)
002OC
Overpayment - capital
002OS
Overpayment - Straightforward
002OX
Overpayment -Complex
002RA
Rate of assessment/payability issues
002RC
Rate of Assessment/Payability Issues - Complex
002ON
ONE Project
002CC
Conditions of Entitlement - Complex
002CD
Care (DLA)
002CE
Conditions of Entitlement
002CF
Care/Mobility (DLA)
002EC
ECHR
002EX
EX Legislation
002AR
Alternative Dispute Resolution
002EI
Exprtability Issues
002VW
Verbally Withdrawn
002CP
Civil Penalties
002LC
Daily Living Component
002MO
Mobility Component
002ML
Daily Living/Mobility Component
Personal Independence Payment - Reassessments (03)
AT38 code Issue
003GC
Good Cause
003LE
Late (extending back)
003MD
Mobility (DLA)
003OC
Overpayment - capital
003OS
Overpayment - Straightforward
003OX
Overpayment -Complex
003RA
Rate of assessment/payability issues
003RC
Rate of Assessment/Payability Issues - Complex
003ON
ONE Project
003CC
Conditions of Entitlement - Complex
003CD
Care (DLA)
003CE
Conditions of Entitlement
003CF
Care/Mobility (DLA)
003EC
ECHR
003EX
EX Legislation
003AR
Alternative Dispute Resolution
003EI
Exprtability Issues
003VW
Verbally Withdrawn
003CP
Civil Penalties
003LC
Daily Living Component
003MO
Mobility Component
003ML
Daily Living/Mobility Component
State Pension Credit (45)
AT38 code Issue
45AA
Invalid
45AP
Assessed Income Periods
45AS
Asylum
45CC
Conditions of entitlement - complex
45CE
Conditions of entitlement
45CL
Capital
45DA
Disability and Carers
45DP
Disability Premium/Severe Disability Premium
45EC
European Court of Human Rights (ECHR)
45EX
EC legislation
45HC
Housing Costs
45HT
Habitual Residence Test
45IQ
Income Query
45LE
Late (Extending Back)
45LT
Living Together
45OC
Overpayment - Capital
45OS
Overpayment - Straightforward
45OX
Overpayment - Complex
45PF
Persons from Abroad
45PR
Premiums
45RA
Rate of Assessment/Payability Issues
45RB
Reduced Benefit Decision
45RC
Rate of Assessment/Payability Issues - Complex
45SF
Funeral
45SS
Self Employed - Straightforward
45SX
Self Employed - Complex
Employment Support Allowance (51)
AT38 code Issue
51AA
Invalid
51CB
Contribution records
51CE
Conditions of entitlement
51EC
European Court of Human Rights
51GC
Good Cause
51HT
Habitual Residence Test
51LE
Late Extending back
51LT
Living together
51NC
Non-compliance/Sanction
51OS
Overpayment
51PC
Property/Capital Settlement
51RA
Rate of assessment
51SG
Support Group Placement
51WC
Work Capability Assessment
Incapacity Benefit (52)
AT38 code Issue
52AA
Invalid
52AT
Personal Capability Assessment (All Work Test)
52CB
Contribution records
52CC
Conditions of entitlement - complex
52CE
Conditions of entitlement
52CR
Credits
52EC
European Court of Human Rights
52EX
EC legislation
52GC
Good cause
52LE
Late (extending back)
52NC
Non-compliance
52OS
Overpayments - straightforward
52OX
Overpayment - complex
52RA
Rate of assessment/payability
52RC
Rate of assessment/payability - complex
52RG
Reciprocal agreement
Income Support (61)
AT38 code Issue
61AA
Invalid
61AS
Asylum
61CC
Conditions of entitlement - complex
61CE
Conditions of entitlement
61CL
Capital
61CO
Appeal against a decision to penalise a claimant in breach of a
Community Sentence order
61CR
Credits
61DP
Severe Disability Premium
61DQ
Disablement Question
61EC
European Court of Human Rights
61EX
EC legislation
61GC
Good cause
61HC
Housing Costs
61HT
Habitual Residence Test
61IA
Industrial Accident
61ID
Industrial Disease
61IQ
Income Query
61LE
Late (extending back)
61LM
Labour Market Issues
61LT
Living Together as Husband and Wife (LTAHAW)/Civil Partners
(LTACP)
61OS
Overpayment - straightforward
61OX
Overpayment - complex
61PC
Property capital settlement
61PF
Persons from abroad
61PR
Premiums
61RA
Rate of assessment/payability
61RB
Reduced Benefit Direction
61RC
Rate of assessment/payability - complex
61RG
Reciprocal agreement
61SF
Funeral
61SM
Maternity
61SS
Self employed - straightforward
61SU
Suspensions
61SX
Self employed - complex
61TT
Term time
61WF
Winter fuel payments
continued
Employment and Support Allowance Conversion (62)
AT38 code Issue
062AA
Invalid
062CB
Contribution Records
062CE
Conditions of Entitlement
062EC
European Court of Human Rights
062GC
Good Cause
062HT
Residency Issues
062LE
Late Extending Back (Backdating)
062LT
Living Together
062NC
Non Compliance/Sanction
062OS
Overpayment
062PC
Property/Capital
062RA
Rate of Assessment
062SG
Support Group Placement
062WC
Work Capability Assessment
Industrial Death Benefit (64)
AT38 code Issue
64AA
Invalid
64CC
Conditions of entitlement - complex
64CE
Conditions of entitlement
64CS
Chest - pneumoconiosis, asbestosis etc
64DQ
Disablement Question
64EC
European Court of Human Rights
64EX
EC legislation
64GC
Good cause
64IA
Industrial Accident
64ID
Industrial Disease
64LE
Late (extending back)
64OS
Overpayment - straightforward
64OX
Overpayment - complex
64RA
Rate of assessment/payability
64RC
Rate of assessment/payability - complex
Industrial Injuries Disablement Benefit/Reduced Earnings
Allowance/Retirement Allowance (67)
AT38 code Issue
67AA
Invalid
67CB
Contribution Records
67CC
Conditions of entitlement - complex
67CE
Conditions of entitlement
67CS
Chest - pneumoconiosis, asbestosis etc
67DQ
Disablement Question
67EC
European Court of Human Rights
67EX
EC legislation
67FW
Forestry worker
67GC
Good cause
67IA
Industrial Accident
67ID
Industrial Disease
67LE
Late (extending back)
67OK
PD A14 - Osteoarthritis of the knee
67OS
Overpayment - straightforward
67OX
Overpayments - complex
67RA
Rate of assessment/payability
67RC
Rate of assessment/payability - complex
Carers Allowance (70)
AT38 code Issue
70AA
Invalid
70CC
Conditions of entitlement - complex
70CE
Conditions of entitlement
70EC
European Court of Human Rights
70EX
EC legislation
70GC
Good cause
70LE
Late (extending back)
70OS
Overpayment - straightforward
70OX
Overpayment - complex
70RA
Rate of assessment/payability
70RC
Rate of assessment/payability - complex
Jobseeker’s Allowance (73)
AT38 code Issue
73AA
Invalid
73AS
Asylum
73CB
Contribution records
73CC
Conditions of entitlement - complex
73CE
Conditions of entitlement
73CL
Capital
73CO
Appeal against a decision to penalise a claimant in
breach of a Community Sentence order
73CR
Credits
73EC
European Court of Human Rights
73EX
EC legislation
73GC
Good Cause
73HC
Housing Costs
73HT
Habitual Residence Test
73IQ
Income Query
73LE
Late (extending back)
73LM
Labour Market Issue continued
73LT
Living Together as Husband and Wife (LTAHAW)/Living
together asCivil Partners (LTACP)
73OC
Overpayment capital
73ON
One Project
73OS
Overpayment - straightforward
73OX
Overpayment - complex
73PF
Persons from abroad
73RA
Rate of assessment/payability issues
73RB
Reduced Benefit Decision
73RC
Rate of assessment/payability - complex
73RG
Reciprocal Agreement
73SM
Maternity
73SS
Self Employed - straightforward
73SU
Suspensions
73SX
Self Employed - complex
Look-alikes (76)
AT38 code Issue
76AA
Invalid
76AS
Asylum
76CC
Conditions of entitlement - complex
76CD
Care (DLA)
76CE
Conditions of entitlement
76CF
Care/Mobility
76CL
Capital (DLA)
76CR
Credits
76CS
Chest - pneumoconiosis, asbestosis, etc
76DP
Severe Disability Premiums
76DQ
Disablement Question
76EC
European Court of Human Rights
76EX
EC legislation
76GC
Good Cause
76HC
Housing Costs
76HT
Habitual Residence Test
76IA
Industrial Accident
76ID
Industrial Disease
76IQ
Income Query
76LE
Late (extending back)
76LM
Labour Market Issue
76LT
Living Together as Husband and Wife (LTAHAW)/Living
Together As Civil Partners (LTACP)
76MD
Mobility (DLA)
76OC
Overpayment capital
76OS
Overpayment - straightforward
76OX
Overpayment - complex
76PC
Property Capital Settlement
76PF
Persons from Abroad
76PR
Premiums
76RA
Rate of assessment/payability issues
76RB
Reduced Benefit Decision
76RC
Rate of assessment/payability - complex
76RG
Reciprocal Agreement
76SF
Funeral
76SM
Maternity
76SS
Self Employed - straightforward
76SU
Suspensions
76SX
Self Employed - complex
Maternity Benefit/Allowance (79)
AT38 code Issue
79AA
Invalid
79CC
Conditions of entitlement - complex
79CE
Conditions of entitlement
79EC
European Court Human Rights
79EX
EC legislation
79GC
Good cause
79LE
Late (extending back)
79LT
Living together as Husband and Wife (LTAHAW)/Living
Together as Civil Partners (LTACP)
79OS
Overpayment - straightforward
79OX
Overpayment - complex
79RA
Rate of assessment/payability
79RC
Rate of assessment/payability - complex
Retirement Pension (82)
AT38 code Issue
82AA
Invalid
82CB
Contribution records
82CC
Conditions of entitlement - complex
82CE
Conditions of entitlement
82EC
European Court of Human Rights
82EX
EC Legislation
82GC
Good Cause
82LE
Late (extending back)
82LT
Living Together as Husband and Wife (LTAHAW)
82OS
Overpayment - straightforward
82OX
Overpayment - complex
82RA
Rate of assessment/payability issues
82RC
Rate of assessment/payability - complex
Severe Disablement Benefit/Allowance (85)
AT38 code Issue
85AA
Invalid
85CC
Conditions of entitlement - complex
85CE
Conditions of entitlement
85DQ
Disablement Question
85EC
European Court of Human Rights
85EX
EC legislation
85GC
Good Cause
85LE
Late (extending back)
85OC
Overpayment capital
85OS
Overpayment - straightforward
85OX
Overpayment - complex
85RA
Rate of assessment/payability issues
85RC
Rate of assessment/payability - complex
Social Fund Maternity (88)
AT38 code Issue
88AA
Invalid
88CC
Conditions of entitlement - complex
88CE
Conditions of entitlement
88EC
European Court of Human Rights
88EX
EC legislation
88GC
Good Cause
88LE
Late (extending back)
88OC
Overpayment capital
88OS
Overpayment - straightforward
88OX
Overpayment - complex
88PF
Persons from Abroad
88RA
Rate of assessment/payability issues
88RC
Rate of assessment/payability - complex
88SF
Funeral
88SM
Maternity
Social Fund Funeral (89)
AT38 code Issue
89AA
Invalid
89CC
Conditions of entitlement - complex
89CE
Conditions of entitlement
89EC
European Court of Human Rights
89EX
EC legislation
89GC
Good Cause
89LE
Late (extending back)
89OC
Overpayment - capital
89OS
Overpayment - straightforward
89OX
Overpayment - complex
89PF
Persons from Abroad
89RA
Rate of assessment/payability issues
89RC
Rate of assessment/payability - complex
89SF
Funeral
89SM
Maternity
Widows Benefit/Bereavement Benefit (94)
AT38 code Issue
94AA
Invalid
94CB
Contribution records
94CC
Conditions of entitlement - complex
94CE
Conditions of entitlement
94EC
European Court of Human Rights
94EX
EC legislation
94GC
Good Cause
94LE
Late (extending back)
94LT
Living Together as Husband and Wife (LTAHAW)/Living
Together as Civil Partners (LTACP)
94OC
Overpayment capital
94OS
Overpayment - straightforward
94OX
Overpayment - complex
94RA
Rate of assessment/payability issues
94RC
Rate of assessment/payability - complex
Appendix 5 - Checking the appeal response
Introduction
1. DWP may consider it advisable to check a selection of appeal responses
prior to forwarding them to HMCTS. Special attention should be paid to
ensuring that the response does not support an incorrect decision and that the
appeals officer has fully and effectively presented the facts in a focused
manner.
2. DWP will be best placed to assess who is the most suitable officer to
undertake these vetting duties. Experience and competence will be the most
important qualities when choosing this post.
3. The following checklist will:
assist the officer vetting the appeals responses, and
be useful to the officers writing the appeal responses to ensure that all
relevant sections are correctly completed prior to vetting.
4. If any of the questions are answered ‘no’ arrange for:
amendment of the response, or
further enquiries, or
revision of the decision under appeal.
5. Officers taking up vetting duties for the first time should familiarise
themselves with the guidance contained in the Advice for Decision Makers
(ADM) for all PIP and UC appeals, and appeals against decisions made on or
after 28th October 2013.
6. Continue using the Decision Maker’s Guide (DMG) for appeals against
decisions made before 28th October 2013.
7. If an electronic template is used, ensure that it reflects current guidance,
that all the legislation quoted is relevant and that the template up to date.
Decision details
8. When checking the decision details, consider the following:
Is the appeal against a DM’s decision?
Has the decision under appeal been fully reconsidered?
Have all the facts and details contained in the Mandatory
Reconsideration Notice (MRN) been considered and included?
Is the DM’s decision correct?
Is the date the DM’s decision was issued correct?
Are all the decisions appealed against included?
Appellant’s letter of appeal
9. Consider the following:
Is the claimant’s Notice of Appeal (NOA) or appeal letter included in the
list of documentary evidence?
If the NOA/appeal letter is illegible, has a typed version of the grounds
of the appeal been provided, and listed in Section 2 of the appeal
response?
Summary of facts
10. Ensure the MRN has been used and all of the following have been
covered:
Are all the facts required by the regulation(s) under which the decision
was made included?
Does the summary include all the relevant facts put forward by the
claimant either before, during or after the appeal?
Has documentary evidence been included to establish each fact?
Does the summary include all other relevant facts outlined in
investigating the claim, or held in the file (whether they support the
decision or not)?
Can the tribunal reach a full decision on the facts presented?
Provisions of the Acts and Regulations:
11. It is important that the correct legislation is used and quoted:
Are all the relevant provisions of the Acts and Regulations shown
which the DM needed to consider to reach their decision?
Is the reference to the legislation used correct?
Is the correct year of the legislation shown?
Relevant decisions of the Social Security Commissioners/Upper
Tribunal
12. Consider the following:
Are all the relevant sections of the reported decisions of the SSC/UT
shown, including any reported since response(s) issued?
If the customer has quoted an unreported decision in their NOA/Appeal
letter, has a copy been obtained and included in the papers?
DM’s appeal response
13. Check the appeal response:
Are the provisions of the Acts and Regulations which the DM
considered, explained or, if complex, quoted in full?
Are the provisions listed, as per para 11 above, are the same as, and
exactly match, those used in the DM response?
Does the response explain how the Acts and Regulations have been
applied to the facts?
If the DM has followed a SSC decision, does the response state what
the SSC decided?
Are the arguments clear and logical?
Are there any secondary questions?
Is there a focused introduction and conclusion to which the evidence
and argument point?
Is there a recommendation to the FtT?
Form AT2A
14. If Form AT2A is appropriate:
Have any relevant AT2A forms been completed?
Is/are the assessment(s) correct?
Is/are the appropriate week(s)/period(s) of assessment shown?
Documentation
15. Check the documentation:
Have all the documents been included and numbered properly?
Are all the numbered documents noted in sequence at section 2 of the
response?
Has any potentially harmful information, that must not be disclosed to
the claimant, been considered and flagged?
16. To capture and record MI please refer to: MISP Portal - Management
Information System Programme.
Appendix 6 - abbreviations
A
AA Attendance
Allowance
AACT
Average Actual Clearance Times
ADM
Advice for Decision Making
ARTS Appeals
Reconsideration Tracking System
B
b/f brought
forward
C
CA Carers
Allowance
CAU
Carers Allowance Unit
CAP
Code of Appeal Procedure
CB Contributory
Benefit
CPen Civil
Penalty
CS Act 1991 Child Support Act 1991
CR Compensation
Recovery
CRU
Compensation Recovery Unit
CS Child
Support
CTB
Council Tax Benefit
D
D&A Regs
Social Security and Child Support (Decisions and Appeals)
Regulations 1999
DBC
Disability Benefit Centre
Dis Ben
Disablement Benefit
DLA
Disability Living Allowance
DM Decision
Maker
DMA
Decision Making and Appeals
DMA (Leeds)
Decision Making and Appeals (Leeds)
DMACR
Decision Making and Appeals Case Recorder
DMG
Decision Makers’ Guide
DN Decision
Notice
DO District
Office
DP Disability
Premium
DRAMA
Data Base for Recording and Monitoring Appeals
DWP
Department for Work and Pensions
E
ECHR European
Convention
for
the
Protection of Human Rights and
Fundamental Freedoms
EEC Employed
Earner’s
Categorization
EMP
Examining Medical Practitioner
ECJ
European Court of Justice
F
FI / FIs
Fraud Investigator(s)
FIS
Fraud Investigation Service
FtT First-tier
Tribunal
G
GB Great
Britain
GP General
Practitioner
H
HB Housing
Benefit
HMRC
Her Majesty’s Revenue and Customs
HMCTS
Her Majesty’s Courts and Tribunals Service
HCP Healthcare
Professional
I
IB Incapacity
Benefit
IfW
Incapacity for Work
IIDB
Industrial Injuries Disablement Benefit
IPC International
Pension
Centre
IS Income
Support
J
JSA Jobseeker’s
Allowance
L
LA Local
Authority
LCW
Limited Capability for Work
LCWRA
Limited Capability for Work Related Activity
LM Labour
Market
LTACP
Living Together as Civil Partners
LTAHAW
Living Together as Husband and Wife
M
MR Mandatory
Reconsideration
MRN Mandatory
Reconsideration
Notice
N
NI National
Insurance
NINO
National Insurance Number
NIRS
National Insurance Recording System
NOA
Notice of Appeal
NPC
National Pension Centre
NRPS
No Reasonable Prospect of Success
O
OOJ
Outside of Tribunal’s Jurisdiction
OOT
Own Occupation Test
OP or O/P
Overpayment
P
PCA
Personal Capability Assessment
PD Prescribed
Diseases
PDCS
Personal Data Computer System
PHME
Potentially Harmful Medical Evidence
PIP
Personal Independent Payment
PO Presenting
Officer
PSCS Pension
Strategy Computer System
PTTP
Party (Parties) to the Proceedings
PV Potentially
Violent
PVP
Potentially Violent Person
R
RBD
Reduced Benefit Direction
RO Reviewing
Officer
RP Retirement
Pension
RoP
Record of Proceedings
S
SofS
Secretary of State
SDM
Sector Decision Maker
SDP
Severe Disability Premium
SPC
State Pension Credit
SS Social
Security
SS Act 1998
Social Security Act 1998
SS Act 1992
Social Security Administration Act 1992
SSC
Social Security Commissioner
SSP
Statutory Sick Pay
U
UC Universal
Credit
UT Upper
Tribunal
W
WCA
Work Capability Assessment
WSoR Written
Statement of Reasons
Appendix 7 - Example Appeal Responses
Contents
Example 1
State Pension Credit – Amount of income taken into account
when SPC awarded
Example 2
State Pension Credit - Refusal to specify AIP
Example 3
Income Support – date of claim/evidence requirements
Example 4
Jobseeker’s Allowance – Claimant entitled to a reduced rate of
JSA (IB) because of earnings
Example 5
Jobseeker’s Allowance – Claimant does not meet the
prescribed conditions for a backdated payment
Example 6 PIP
Disallowance
on Disability – Daily Living component
Example 7
Jobseeker’s Allowance (Income Based) – Supersession
because earnings in excess and recoverable overpayment
Example 8
Employment and Support Allowance - Claimant’s income
exceeds the applicable amount
Example 9
Universal Credit – New Partner
Example 10 Disablement benefit Appeal – Disallowance of IIDB because an
earlier assessment of disablement has not been increased
Example 11 Disability Living Allowance – disallowance of renewal claim
Example 12 Attendance Allowance – Disallowance of claim
Example 13 Carer’s Allowance – Supersession of Award
Example 14 Employment and Support Allowance – Claimant fails Work
Capability Assessment
Example 15 PIP Mobility Award – Disallowance of Daily Living Component
Example 16 PIP – Residence and Presence: Not habitually resident in
Great Britain
Example 17 Universal Credit – Limited Capability for Work
Example 18 Universal Credit - Sanction imposed due to not attending an
arranged job interview
Example 1 - State Pension Credit - amount of income taken into
account when SPC awarded
Section 1:
Personal Details
Mr Terence Stone
1 Quarry Avenue
Leeds
National Insurance Number:
ZZ000001A
Benefit:
State pension credit
Date of outcome decision:
19 November -----
Date decision notified:
20 November ----
Date of mandatory reconsideration:
30 November ----
Date of appeal:
4 December------
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and Supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Extract from PC1
Pages (-)
(--/--/--)
(--/--/--) Disallowance
decision
Pages (-)
(--/--/--)
(--/--/--)
Record of Mandatory
reconsideration
Pages (-)
(--/--/--)
(--/--/--) Form
AT2A
Pages (-)
(--/--/--)
(--/--/--)
Mandatory reconsideration decision
/ LT54
Section 3: The decision under appeal
Mr Stone is entitled to a reduced rate State Pension Credit of £73.70 a week
from 11 November.
Section 4: The facts of the case
Mr Stone is a single man aged 63, born on 11 November ----. He claimed
pension credit on 11 November ----.
On 11 November ---- he was also in receipt of Employment and
Support
Allowance (Contributory Based). His entitlement was £71.70 per week. He
had no other income.
A decision was made on 20 November ---- awarding Mr Stone
pension
credit of £73.70 per week from 11 November ----.
The pension credit standard minimum guarantee for a single
person is £145.40 per week. Mr Stone is not entitled to any prescribed
additional amounts so his appropriate minimum guarantee is £145.40.
ESA is taken into account in calculating a person’s PC entitlement.
Accordingly, the £71.70 ESA entitlement was deducted from the £145.40
leaving a guarantee credit amount of £73.70 per week. Mr Stone was notified
that he was entitled to pension credit of £73.70 per week on 20 November
On 25 November Mr Stone applied for a mandatory reconsideration. His
ground was that he thought he would be entitled to £145.40 SPC in addition to
his ESA. The decision maker explained the basis for the calculation. Mr Stone
did not accept it.
On 27 November the decision maker refused the application – see pages
…….
On 30 November ---- Mr Stone appealed. His grounds was as above.
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
The point of contention in this appeal is whether ESA should be taken into
account as an income in calculating Pension Credit.
Section 15 (1) (e ) The State Pension Credit Act 2002
Regulation 15 (1) The State Pension Credit Regulations 2002
Although it was explained to Mr Stone that the law is clear that it is such an
income (see Annex), he has not accepted this fact.
I request that the appeal is dismissed.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 2 -State Pension Credit – Refusal to specify an AIP
Section 1:
Personal Details
Mrs Joan Wilkinson
12 Bank Place
Birmingham
B16 8NU
National Insurance Number:
ZZ123456A
Benefit:
State pension credit
Date of outcome decision:
16 February ----
Date decision notified:
16 February ----
Date of mandatory reconsideration:
23 February ----
Date of appeal:
28 February ----
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any):
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Extract from PC1
Pages (-)
(--/--/--)
(--/--/--) Disallowance
decision
Pages (-)
(--/--/--)
(--/--/--)
Record of mandatory
reconsideration
Pages (-)
(--/--/--)
(--/--/--)
Mandatory reconsideration decision
/ LT54
Section 3: The decision under appeal
The Wilkinsons are entitled to Pension Credit but not with an Assessed
Income Period.
Section 4: The facts of the case
Mrs Wilkinson is aged 65 – she was born on 12 May ----. She made
an
application for pension credit from 6 February ----. Her husband, Mr
Wilkinson, is 58 years old, and they applied as a pensioner couple.
A decision was made on 16 February ---- awarding Mr and Mrs
Wilkinson
state pension credit of £xx.xx from 6 February ----. A decision was also
made that they do not qualify for a five year
assessed income period
because Mr Wilkinson is aged under 60.
On 18 February Mrs Wilkinson made an application for mandatory
reconsideration. Her reason for disputing the decisions was that her twin
sister, who is in similar circumstances and whose husband is 68 years old,
has been given a five year assessed income period. Mrs Wilkinson thinks that
she should qualify for a five year assessed income period, which would mean
that she would not have to provide information about her retirement provision
on a regular basis.
Mrs Wilkinson received an explanation from the Pension Service – see para 2
above - but was still not satisfied. On 20 February the DM refused the
application – see pages
On 23 February ---- Mrs Wilkinson appealed.
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
The only issue in this appeal is whether the Secretary of State should
have set an AIP of five years.
Mrs Wilkinson contends that as her circumstances mirror that of her twin
sister then she should also have an AIP of five years. This is simply not
correct. Her twin sister’s husband is 68 and Mr Wilkinson was 58 when the
claim was made. Where one of a PC couple is below 60, the Secretary of
State cannot set an AIP.
Section 6 (1) and (2) (b) The State Pension Credit Act 2002 Regulation 10 (1)
(a) The State Pension Credit Regulations 2002
This was explained to Mrs Wilkinson but she did not accept it as legally
correct.
I request that the tribunal dismiss the appeal.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 3 - Income Support – date of claim/evidence requirement
Section 1:
Personal Details
Ms Joan Smith
1 Quarry View
Leeds
LS12 5YZ
National Insurance Number:
ZZ000002C
Benefit: Income
Support
Date of outcome decision:
16 May ----
Date decision notified:
16 May ----
Date of mandatory reconsideration:
20 May ----
Date of appeal:
22 May ----
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Extract from form A1
Pages (-)
(--/--/--)
(--/--/--) A164
reply
Pages (-)
(--/--/--)
(--/--/--) Disallowance
Decision
Pages (-)
(--/--/--)
(--/--/--)
Copy of form sent to claimant
requesting further evidence of
Capital
Pages (-)
(--/--/--)
(--/--/--)
Record of mandatory
reconsideration / LT54
Section 3: The decision under appeal
Ms Joan Smith is not entitled to income support from 6 April ----to 19 May ----
Section 4: The facts of the case
Ms Joan Smith is a 22 year old single parent with 1 dependant child. She
claimed income support on 25 April ---- having contacted the Social Security
Office on 6 April ----. She had finished work at "Steelite" on 5 April ----. As
required by the evidence requirements provisions she was required to supply
her most recent bank books to allow the verification of any capital she
declared when claiming. She did not do so.
Ms Smith was sent an A164 form on 28 April ---- informing her that her bank
books were required. This form stated that if the documents requested were
not received by 6 May ---- she would only be paid from the date they were
received.
On 10 May ---- a reply to the A164 was received along with Ms Smith's bank
books. The decision maker decided that the claim had not been properly
completed until that date. As this was more than 1 month fter the information
was requested, the date of claim became the 10 May.
On x date Mrs Smith applied for a mandatory reconsideration. She said that
the letter she had received from the department gave the date for providing
the information as 10 May and that she had met that date. The decision
maker asked her to provide a copy of the letter she had received. She said
she no longer had it. He checked the benefit system and this showed a return
date of 6 May – the screen print is at page….Accordingly the application was
refused.
Mrs Smith appealed on x date.
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
The key issue in this appeal is the date by which Mrs Smith had to provide
information to the Secretary of State about her capital. This was an evidence
requirement in connection with her claim for Income Support.
Regulations 4(1A) and 6(1A) of the Social Security (Claims and Payments)
Regulations.
The Secretary of State sent form A164 to Mrs Smith on 28 April and asked
her to provide her bank books by 6 May. Mrs Smith provided them on 10 May.
Accordingly she had failed to satisfy evidence requirements in relation to her
claim and the date of claim became the date that they were received by the
Secretary of State, namely, 10 May. The Secretary of State had no reason to
extend the time for replying.
In her application for mandatory reconsideration Mrs Smith said that the date
she had been told to return the books was 10 May. However, she could not
provide any evidence which contradicted the Secretary of State’s contention
that it was the 6 May. The screen print provided clearly indicates this date.
The Secretary of State does not accept that there could have somehow been
a discrepancy between the dates. If Mrs Smith could have provided the
written evidence then, of course, the date of claim would have been the
original date.
I request that the tribunal dismiss the appeal.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 4 - Jobseeker’s Allowance – Claimant entitled to a
reduced rate of JSA(IB) because of her earnings
Section 1:
Personal Details
Mrs Jenny Thompson
18 London Place
Basingstoke
RG74 99YZ
National Insurance Number:
ZZ000009C
Benefit:
Income based jobseeker’s
allowance
Date of outcome decision:
27 May ----
Date decision notified:
27 May ----
Date of mandatory reconsideration:
20 June ----
Date of appeal:
25 June ----
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Extract from form A1
Pages (-)
(--/--/--)
(--/--/--)
A15C – request for details of part
time work
Pages (-)
(--/--/--)
(--/--/--)
Letter of confirmation of closure of
previous claim and notification of
rate of entitlement for period
16/05/05 to 21/05/05
Pages (-)
(--/--/--)
(--/--/--)
Copy of pay advice for payment
received on 27/05/05
Pages (-)
(--/--/--)
(--/--/--) Disallowance
decision
Pages (-)
(--/--/--)
(--/--/--)
Letter from customer disputing
decision. Requested
reconsideration
Pages (-)
(--/--/--)
(--/--/--)
Record of mandatory
reconsideration / LT54
Pages (-)
(--/--/--)
(--/--/--)
Letter of notification of closure of
claim from 28/05. Also confirming
bank account details used and rate
of entitlement for period ending
27/05/05
Pages (
(--/--/--)
(--/--/--)
Letter from customer requesting an
explanation of letter issued on
30/06/05
Pages (
(--/--/--)
(--/--/--)
Letter of notification of taxable
benefit awarded to Jenny
Thompson for period from 16/05/05
to 27/05/05 and copy of P45
Pages (
(--/--/--)
(--/--/--)
Letter from customer requesting
explanation of taxable benefit letter
Pages (
(--/--/--)
(--/--/--)
Letter of explanation in response to
requests from Jenny Thompson for
explanation of letters issued by
Jobcentre Plus on 30/06/05 &
01/07/05
Pages (
(--/--/--)
(--/--/--)
Jenny Thompson’s supporting
evidence - chronology of events
Pages (
(--/--/--)
(--/--/--)
Jenny Thompson’s supporting
evidence – Co-operative Bank bank
statements
Pages (
(--/--/--)
(--/--/--)
Jenny Thompson’s supporting
evidence – letters from Basingstoke
Council Housing Benefits
department
Pages (
(--/--/--)
(--/--/--)
Jenny Thompson’s supporting
evidence – pay slips for periods
06/05/05 to 24/06/05
Pages (
(--/--/--)
(--/--/--)
Computer record – income support
payment for period ended 13/04/05
Pages (
(--/--/--)
(--/--/--)
Computer record – linked benefit
details showing first effective day
(FED) of linked period
Pages (
(--/--/--)
(--/--/--)
Computer record JSA payment
history
Pages (
(--/--/--)
(--/--/--)
Computer record – JSA enquiry
letters issued
Pages (
(--/--/--)
(--/--/--)
Computer record – notes relating to
the case
Pages (
(--/--/--)
(--/--/--)
MF40 – memo recording small
overpayment (official error)
Section 3: The decision under appeal
Jenny Thompson is entitled to income based jobseeker's allowance totalling
£80.35 for the period from 16/05/---- to 27/05/----.
I respectfully request that the following decision be substituted for the original
decision:
Jenny Thompson is entitled to income-based jobseeker's allowance totalling
£63.92 for the period from 16/05/---- to 27/05/----. This is because she has
declared earnings that must be taken into account when calculating her
entitlement.
Section 4: Facts of the case
On 16/05/---- Jenny Thompson contacted the local Jobcentre Plus outlet in
order to claim both contributions-based and income-based jobseeker's
allowance. She completed the rapid reclaim form JSA4 (RR) as required
because she had previously claimed the same benefit from 14/04/---- until
24/04/----. That earlier award had ended because Mrs Thompson had failed to
sign on her next due fortnightly interview date (12/05/----). Before that earlier
claim Mrs Thompson had claimed incapacity benefit and income support from
06/03/1999 to 13/04/----.
Jenny Thompson stated in the claim form JSA 4(RR), completed and
submitted by her on 24/05/----, that she was currently undertaking part time
employment with XYZ Catering as a catering assistant, working on average 1
day a week (Page(s) [-]).
It was determined that the tax years ending 5th April ---- and 5th April ----
should be used in assessing entitlement to contribution-based jobseeker's
allowance. This was based on the details of her previous claims as linking
rules apply. (Page(s) [-].
On 27/05/---- the decision maker established that Jenny Thompson did not
satisfy the contribution conditions based on the tax years ending 5th April ----
and 5th April ---- and as a result she was not entitled to contribution-based
jobseeker's allowance from 16/05/----. However, as Mrs Thompson had stated
in her claim form that she also wished to claim income-based jobseeker's
allowance, the decision maker further determined that she would be entitled to
benefit at the full standard entitlement rate of £55.65 for each week in which
a) she did not work, b) she was available for work, and c) for which she
attended the local Jobcentre Plus office at fortnightly intervals to provide
evidence that she was still actively seeking work.
On 27/05/---- Jenny Thompson attended her local office as requested and
informed the local office that she had worked for less than 16 hours in the
period ending 20/05/---- and that she had received £21.00 She further
declared that in the period ending 27/05/---- that she had worked for less than
16 hours and had earned £26.00
Jenny Thompson’s entitlement was then calculated as follows: weekly rate of
entitlement was determined based upon the declaration that she had received
£21.00 earnings per week
i)
Week ending 20/05/---- Personal Allowance £40.20 Mrs Thompson
claimed for 5 days in that benefit week (16/05/---- to 20/05/----) thus 5/7 of
£40.20 = £28.72 due
ii)
Week ending 27/05/---- Personal Allowance £56.20 Less: income from
earnings: £16.00 (1st £5.00 of earnings is disregarded for benefit calculation
purposes) Total: £40.20
On 27/05/---- a benefit cheque for the sum of £68.92 (28.72 + £40.20) was
issued to Jenny Thompson
On 31/05/---- Jenny Thompson prepared a letter, that she states she posted
to the local office on 01/06/----, to dispute the decision that her weekly
entitlement was to be paid at the weekly rate of £40.20. She asked for an
explanation of this decision. (Page(s) [-].
Coincidentally, on the same day, 31/05/----, the decision maker revised the
benefit decision and determined that the correct benefit rate for w/e 20/05/-- --
was £56.20, not £40.20 as previously calculated, and that 5/7 of £56.20 =
£40.15. As £28.72 of this sum had already been paid to Jenny Thompson for
that week (as shown above), the decision maker determined that she was
owed a further £11.43 and this was paid to her on 31/05/---- by bank credit
transfer. (Page(s)[-]
(Note. This payment did not take into account any income from earning for
that period).
On 06/06/---- Jenny Thompson reported non-receipt of the £11.43 payment.
She noted that the payment notification issued to her, indicated that the
payment had been sent to an incorrect bank account, Mrs Thompson offered
her correct bank account details again in this letter and asked that a
replacement payment was issued to her. She also informed the local office
that she had not worked since 19/05/----, as she had declared when she
attended the local office on 27/05/----, and she enclosed the payslip she had
received later on in the day (27/05/----) for that work. She also again queried
the rate of entitlement that had been notified to her in letters sent by the
Department to Mrs Thompson on 31/05/1111. (Page(s) [-].
It is noted that the claim records show that the bank account details were
corrected and that a replacement for the £11.43 payment was sent to Jenny
Thompson on 30/06/1111. (Page(s) [-].
As a result of receiving the wage slip and Jenny Thompson's query
concerning the rate of entitlement, the benefit decision was looked at again on
17/06/---- and was changed, but not favourably. Jenny Thompson had
provided payslips with her letter that showed that her entitlement for the
period from 16/05/---- to 27/05/---- should have been calculated as follows:
Week ending 20/05/---- Personal Allowance £56.20 Less: Income from
earnings: £16.00 (1st £5.00 of earnings is disregarded for benefit calculation
purposes) Total: £40.20
Mrs Thompson claimed for 5 days in that benefit week (16/05/---- to 20/05/----)
thus: 5/7 of £40.20 = £28.72 due.
iv) Week ending 27/05/---- Personal Allowance £56.20 Less: Income from
earnings: £21.00 (1st £5.00 of earnings is disregarded for benefit calculation
purposes) Total due to Mrs Thompson £35.20.
Total due for period 16/05/---- to 27/05/---- is £28.72 + 35.20 = £63.92. In
consequence, an overpayment of jobseeker's allowance totalling £5.00 was
identified but as this had been caused by an official error, Mrs Thompson was
not required to repay the overpaid amount. (Page(s) [-].
On 22/06/---- Jenny Thompson appealed against this decision. She gave her
reasons for appealing as " Please look at all your paperwork sent to me from
the beginning of April ----... Income of £21 earned in one week only, cannot
pay my rent of £78.01 plus council tax... The Government states that for
income-based jobseeker's allowance that rent will be paid. Therefore why is
mine not? Plus my Jobseeker's is £56.20 not £40. So why have you said I'm
entitled to a lower rate of Jobseeker's Allowance”.
On 30/06/----, the local office sent a letter to Jenny Thompson to inform her
that her jobseeker's allowance award had come to an end after 27/05/----
because she had not attended to sign her declaration after 27/5/----.
(Page(s)[-].
On 26/07/---- the decision maker sent a letter to explain how the income tax
years are used to establish entitlement to the contributions based element of
Jenny Thompson’s claims (she had subsequently claimed benefit again from
21/07/----) and also to give an explanation as to how payment of Mrs
Thompson’s income based benefit for May ---- had been calculated. This
letter had been sent in response to two further requests for explanation from
Mrs Thompson, both of these having been received in the local office on
19/07/---- (Page(s) [-].
On 09/08/---- Jenny Thompson sent in a further letter concerning her appeal
providing details of her income and of her bank statements from April ---- to
support her appeal. (Page(s) [-].
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
I request the tribunal dismiss the appeal and uphold the decision that Jenny
Thompson is entitled to income-based jobseeker's allowance totalling £63.92
for the period from 16/05/---- to 27/05/----. This is because she has declared
earnings that must be taken into account when calculating her entitlement.
The law used in making this decision
Applicable amount
A person is entitled to income-based jobseeker's allowance if he has no
income or his income does not exceed the applicable amount. Section 3(1)(a)
of the Jobseeker's Act 1995 - Jenny Thompson is a single person aged not
less than 25. In the case of an income-based jobseeker's allowance the
applicable amount shall
If a claimant has no income, the applicable amount;
if a claimant has an income, the amount by which the applicable amount
exceeds his income.
Therefore for any week in which Mrs Thompson does not work she is entitled
to a personal allowance of £56.20 a week. Section 4(3) of the Jobseeker's Act
1995; Regulation 83 of, and paragraph 1(1)(e) of Schedule 1 to, the
Jobseeker's Allowance Regulations 1996.
Income
Earnings derived from employment shall be taken into account from the first
day of the benefit week in which they are paid, or the first succeeding benefit
week in which it is practicable to take them into account, over a period equal
to the length of the period for which they are due to be paid. Where a payment
is treated as paid before the first benefit week and a part is to be taken into
account for some days only in that week ("the relevant days"), the amount to
be taken into account for the relevant days shall be calculated by multiplying
the weekly amount of the benefit by the number of relevant days and dividing
the product by seven. It is the net earnings after tax, which is taken into
account. The weekly disregard for a single person is £5.00.
Regulations 94, 96, 97 (1)(a) &(4)(b), 98 & 99 and Schedule 6 of the
Jobseeker's Allowance Regulations 1996
In accordance with the above regulations, net weekly earnings of £21.00 were
paid to Jenny Thompson on 20/05/----. A £5.00 disregard has been applied.
Therefore the income to be taken into account from 16/05/---- to 20/05/---- is
£21.00.
I therefore submit that Jenny Thompson is entitled to income-based
jobseeker's allowance at the weekly rate of £40.20 (£56.20 - £16.00) from
14/05/---- to 20/05/----. As Mrs Thompson claimed from 16/05/---- and the first
period claimed for was for 5 days (16/05/---- to 20/05/----) 5/7ths of £40.20 is
due, resulting in an entitlement of £28.70 for that period.
I further submit that Jenny Thompson is entitled to income-based obseeker's
allowance at the weekly rate of £35.20 from 21/05/---- to 27/05/----. The total
amount to which Mrs Thompson is entitled for the period 16/05/---- to 27/05/---
- is £28.70 + £35.20 = £63.92.
Other Matters
It is noted that the actual amount paid to Jenny Thompson for the period
16/05/---- to 27/05/---- was £85.35 (£68.92 issued on 27/05/---- + £11.43
issued on 30/06/----). Because the overpayment was made as a result of
official error, and because the overpayment is £16.43, within de minimus
limits, it has been accepted by the decision maker that Mrs Thompson is not
required to repay that sum
In her appeal Jenny Thompson also states that she wishes her claim to be
revised from April ----. When Mrs Thompson made her claim, she asked for
her claim to be backdated for the period from 25/04/---- to 15/05/----. That
request was refused by a decision maker on 27/05/----, and is the subject of a
separate appeal to be submitted to the Tribunal.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 5 - Jobseekers Allowance – Claimant does not meet the
prescribed conditions for a backdated payment
Section 1:
Personal Details
Mrs June Delamere
1 Quarry Drive
Birmingham
B16 8NSS
National Insurance Number:
ZZ000003D
Benefit:
State pension credit
Date of outcome decision:
9 June ----
Date decision notified:
9 June ----
Date of mandatory reconsideration:
20 June ----
Date of appeal:
7 July ----
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Form JSA5
Pages (-)
(--/--/--)
(--/--/--) Disallowance
Decision
Pages (-)
(--/--/--)
(--/--/--)
Record of mandatory
reconsideration / LT54
Pages (-)
(--/--/--)
(--/--/--)
Notice of redundancy
Section 3: The decision under appeal
Mrs June Delamere is not entitled to jobseeker’s allowance from 18 April.
Section 4: The facts of the case
Mrs Delamere claimed jobseekers allowance on 22 May ----.
She claimed because her employment with M G Rover Group had ended on
17 April ----.
Mrs Delamere also completed form JSA5 requesting that her claim be
backdated to 18 April. She explained that she had not claimed
earlier as Price Waterhouse Administrators informed her that during her 8
week statutory notice period that any jobseeker’s allowance that she claimed
would be deducted from her notice pay. She also stated
that she was actively seeking work during this period and that she did not
realise that delaying the claim would impact upon her national insurance
situation. She gave details of the efforts she had made to find employment
during the period in question.
The decision maker decided that Mrs Delamere’s claim should not be
backdated.
On x date Mrs Delamere applied for a mandatory reconsideration. She said
that she had not claimed earlier as she was not aware of the implications in
delaying her claim. As she did not provide any new evidence for the delay the
application was refused.
Mrs Delamere appealed on x date
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
A claim for Jobseekers Allowance will only be backdated if the claimant can
satisfy one or more of the conditions of regulation 19(5) or (7) of the Claims
and Payments Regulations – please see the Annex.
Mrs Delamere did not claim as soon as she lost her job because her
employer, Price Waterhouse Administrators, informed her that during her 8
week statutory notice period that any jobseeker’s allowance that she claimed
would be deducted from her notice pay. Further that she did not understand
the implications of a delay in claiming.
Neither ground satisfies any of the conditions of regulation 19. Regulation
19(5)(f) does not apply because she was not told by her employer that her
claim would not succeed only that if successful it would affect her notice pay.
In her application for mandatory reconsideration she did not provide any new
evidence.
I request that the tribunal dismiss the appeal.
The law used in making this decision
Claims and Payments Regulations, regulation 19
As far as it is relevant, it says:
…in the case of…jobseeker's allowance ... the prescribed time for
claiming the benefit shall be extended, subject to a maximum
extension of three months, to the date on which the claim is made,
where:
Any of the circumstances specified in paragraph (5) applies or has
applied to the claimant; and
As a result of that circumstance or those circumstances the claimant
could not reasonably have been expected to make the claim earlier.
The circumstances…are –
The claimant has difficulty communicating because:-
he has learning, language, or literacy difficulties; or
he is deaf or blind
and it was not reasonably practicable for the claimant to obtain assistance
from another person to make his claim:
Except in the case for jobseeker's allowance, the claimant was ill or
disabled, and it was not reasonably practicable for him to obtain
assistance from another person to make his claim;
The claimant was caring for a person who is ill or disabled and it was
not reasonably practicable for him to obtain assistance from another
person to make his claim;
The claimant was given information by an officer of the Department
of Social Security or of the Department for Education and
employment which led the claimant to believe that a claim for benefit
would not succeed;
The claimant was given written advice by a solicitor or other
professional adviser, a medical practitioner, a local authority, or a
person working in a Citizens Advice Bureau or a similar advice
agency, which led the claimant to believe that a claim for benefit
would not succeed;
The claimant or his partner was given written information about his
income or capital by his employer or former employer, or by a bank
or building society, which led the claimant to believe that a claim for
benefit would not succeed;
The claimant was required to deal with a domestic emergency
affecting him and it was not reasonably practicable for him to obtain
assistance from another person to make his claim; or
The claimant was prevented by adverse weather conditions from
attending the appropriate office.
Alternatively
…the prescribed time for claiming the benefit shall be extended, subject to a
maximum of one month, to the date on which the claim is made, where…
The appropriate office where the claimant would be expected to
make a claim was closed and alternative arrangements were not
available;
The claimant was unable to attend the appropriate office due to
difficulties with his normal mode of transport and there was no
reasonable alternative available;
There were adverse postal conditions;
The claimant was previously in receipt of another benefit, and
notification of expiry of entitlement to that benefit was not sent to the
claimant before the date that his entitlement expired;
the case of a claim for family credit ….;
the claimant had ceased to be a member of a married or unmarried
couple within the period of one month before the claim was made;
or
during the period of one month before the claim was made a close
relative of the claimant had died ……..
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 6 - Personal Independent Payment: No Entitlement
Section 1:
Appeal Tribunal Reference Number
SC111/11/11111
Personal Details
Mr John Jones
Address XXX
Name and addresses of any other
N/A
respondents and their representatives (if
any)
Name and address of Appointee (if
N/A
applicable)
Date of Birth
XX/XX/XX
National Insurance Number
QQ158761C
Benefit Personal
Independence
Payment
Date of Outcome Decision
07/06/2013
Date Outcome Decision Notified
10/06/2013
Date of Mandatory Reconsideration
10/07/2013
Decision
Date Mandatory Reconsideration Notified
11/07/2013
Date of Appeal Request 02/08/2013
Decision Maker’s name
xxx
Address where documents for the
St Martins House
Decision Maker may be sent or delivered
Bootle BC
Stanley Precinct
Bootle
Liverpool
L69 9BN
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
---
15/08/2013 N/A
DWP Appeal Response
1-7 30/07/2013
02/08/2013 Appeal
request
8 02/08/2013
03/08/2013
HMCTS request for a response
(DL6)
9-42
13/04/2013 18/04/2013 “How
your disability affects you"
(PIP2) form
43-46 13/04/2013
26/04/2013
Evidence from claimant
(prescription)
47-50
25/04/2013 26/04/2013
Report from Hospital Consultant
51-70 07/05/2013
23/05/2013
Health Professional Consultation
Report
71-75 07/06/2013
New
Claim
decision and notification
76-77 02/07/13
Mandatory
Reconsideration
Decision and notification
Section 3: The decision under appeal
Mr Jones is not entitled to Personal Independence Payment.
Section 4: The facts of the case
Mr Jones has asthma and a heart condition.
A valid claim for Personal Independence Payment was accepted by phone on
13/04/2013.
A "How your disability affects you" PIP2 form was received on 18/04/2013. Mr
Jones indicated that he has problems preparing food, eating and drinking
washing and bathing, dressing and undressing, mixing with other people,
making decisions about money and occasionally going out (Page Nos 9-42).
Evidence (copy of a prescription) from the claimant was received on
26/04/2013 (Page Nos 43-46).
A report from the claimant’s Consultant at the hospital was received on
26/04/2013 (Page Nos 47-50).
A face to face consultation took place on 07/05/2013 (Page Nos 51-70).
The Health Professional recommended that Mr Jones needs to use an aid or
appliance to be able to prepare or cook a simple meal and needs to also use
an aid or appliance to wash or bathe. The Decision Maker considered Mr
Jones claim of 13/04/13 and taking all the available evidence into account
decided that although Mr Jones has been awarded 4 points for daily living he
does not satisfy the disability threshold criteria.
The Disability Threshold Criteria is the minimum number of points someone
must score to be awarded Personal Independence Payment. Where a total of
between 8 to 11 points is scored for either Daily Living component or the
Mobility component the person will be awarded each component of Personal
Independence Payment at the standard rate. Where a total of 12 points or
more is scored for either Daily Living component or the Mobility component
the person will be awarded each component of Personal Independence
Payment at the enhanced rate.
Therefore Mr Jones was not entitled to Personal Independence Payment from
13/04/2013. The reasons for the decision are included in the decision letter
dated 07/06/2013 (Pages 71-75).
The Decision Maker telephoned Mr Jones on 19/06/2013, to explain the
decision. Mr Jones was not satisfied with the explanation. He stated that he
would consider an Appeal but would refer to his notification and the Website,
before deciding whether or not to proceed with a dispute. He did not present
any additional information.
Mr Jones telephoned on 27/06/2013 to request a mandatory reconsideration
and the Decision Maker contacted him to discuss this further. He told the
decision Maker he needs actual help to cook a meal and not just an aid. It
takes him about 20 minutes to dress. He struggles to move about, cannot
walk any distance without distress. He needs to use the toilet more than he
used to but does not know why. He needs someone with him all the time
because of the heart pains.
The Decision Maker reconsidered but did not change the original decision
(Pages 76-77)
On 02/08/2013 Mr Jones lodged an appeal against the decision that he is not
entitled to Personal Independence Payment on the grounds that the original
decision was unfair as he doesn’t agree with the outcome of the descriptors
(Page Nos 1-7).
Section 5: The Decision Maker’s response
I oppose this appeal for the following reasons:
Personal Independence Payment is intended to help towards some of the
extra costs arising from ill-health or disability. It is based on how a person’s
condition affects them, not the condition they have. There are two
components of Personal Independence Payment – Daily Living and Mobility.
Each component can be paid at standard rate, or enhanced rate for those with
the greatest needs.The decision was made in accordance with the Welfare
Reform Act 2013 Part 4 Social Security (Personal Independence Payment)
Regulations 2013
Entitlement to Personal Independence Payment is determined by a decision
maker taking into account all the available evidence including an assessment
of the individual’s needs carried out by a health professional who considered
the claimant’s ability to carry out certain activities.– see Table pages 6-10
which list the activities which are considered. Points can be awarded for each
of these activities. The specific legislation for the areas under dispute is the
Social Security (Personal Independence Payment) Regulations 2013,
Regulation 4 (assessment) and Regulations 5, 6 (scoring), and Schedule 1
(list of descriptors against the set of activities for Daily Living and Mobility)
Mr Jones is 25. He has had asthma since 12 and breathing difficulties since
February 2012. He underwent heart surgery due to a pectus bar in the heart
on 08/11/2012. He takes medication prescribed by his GP and undergoes
physiotherapy.
Mr Jones declared in writing, and at the assessment, that he does not need
help to manage his treatment or his toilet needs and can communicate and
read without help. Accordingly no points have been awarded under these
activities.
He stated that he needs help to cook a simple meal because he struggles to
lift heavy objects and he confirmed this again in his reconsideration request.
The Decision Maker has, however, accepted that Mr Jones can prepare or
cook a simple meal with the use of aids and has confirmed the award of 2
points for this activity is appropriate.
In the PIP2 Mr Jones states that he needs prompting to eat and drink as it is
too much effort to prepare a meal. However at the assessment he stated that
he has no problems taking nutrition. The Decision Maker has not therefore
awarded any points for this activity.
He stated he has difficulty with any heavy activities due to breathlessness and
fatigue. He stated that he needed a bath seat to enable him to take a shower.
The Decision Maker has accepted that due to breathlessness Mr Jones needs
to use an aid to help him shower and has awarded 2 points.
Mr Jones states that he occasionally requires help with putting socks on
however as the majority of the time he can do this unaided, the Decision
Maker has therefore not awarded any points for this activity.
Mr Jones explained that he cannot be bothered to see friends and has
become anxious. He stays in his room due to the physical affects of his
condition and his friends come to see him. Throughout the consultation Mr
Jones demonstrated good eye contact and did not appear stressed. The
Decision Maker has decided that he is able to engage with other people
unaided.
He calculates the payment of bills but relies on someone else to actually pay
the bills. He is therefore able to make budgeting decisions unaided.
Although Mr Jones has scored 4 points, he is still not entitled to Personal
Independence Payments because he did not meet the disability threshold of 8
points for the Daily Living component.
On his PIP 2 Mr Jones explained his walking is variable and he can walk 50 to
200 metres, his legs give way and he gets out of breath. He explained to the
Health Professional that he likes to go for a walk at midday. He manages to
walk for about 20 mins, stopping regularly every few minutes to sit and catch
his breath. His girlfriend will accompany him if necessary.
However at the assessment it was noted that his peak flow readings are
within normal range for his height and he walked unaided more than 200
metres to the interview and managed a flight of stairs.
The Health Professional was of the opinion that with sufficient rest he would
be able to repeat this walk and, as later pointed out by Mr Jones, he did have
to rest after the assessment, before undertaking the return journey of 200
metres or more to his car. Additionally, his consultant has advised him to
increase his walking, as able, which suggests that the extra effort needed will
have long term beneficial effects.
Having regard to this, the Decision Maker has decided that Mr Jones can
stand and then move for more than 200 metres either aided or unaided.
He said that he sometimes needed help going out because he gets anxious
and stressed. Mr Jones was offered medication and counselling but declined
this. He attended the assessment alone and did not appear unduly distressed.
He made good eye contact throughout the consultation.
As there was no evidence to show that he had any overwhelming
psychological condition the decision maker decided that he can plan and
follow the route of a journey unaided.
As Mr Jones did not score any points for mobility he is not entitled to the
mobility component of Personal Independence Payment.
Conclusion
The Tribunal is asked to dismiss this appeal and confirm the Secretary of
State’s decision.
The descriptors and points awarded for each activity are in bold and
underlined in the table below.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Daily Living Activities
Activity 1 – Preparing food
1A
I‘ve decided you can prepare and cook a simple meal unaided.
0
1B
I‘ve decided you need an aid or appliance to prepare or cook a
2
simple meal.
1C
I’ve decided you can’t cook a simple meal using a conventional
2
cooker but you can do so using a microwave.
1D
I’ve decided you need prompting from another person to
2
prepare or cook a simple meal.
1E
I’ve decided you need supervision or assistance from another
4
person to prepare or cook a simple meal.
1F
I’ve decided you can’t prepare and cook food.
8
Activity 2 – Taking nutrition
2A
I’ve decided you can eat and drink unaided.
0
2B
I’ve decided you need an aid or appliance, or supervision from
2
another person to eat and drink, or you need assistance from
another person to cut up food.
2C
I’ve decided you need a therapeutic source to be able to take
2
nutrition.
2D
I’ve decided you need prompting from another person to eat
4
and drink.
2E
I’ve decided you need assistance from another person to
6
manage a therapeutic source that enables you to take nutrition.
2F
I’ve decided you need another person to get food and drink to
10
your mouth.
Activity 3 - Managing therapy or monitoring a health condition
3A
I’ve decided you can either manage medication / therapy or
0
monitor your health condition unaided, or you don’t need to.
3B
I’ve decided you either need an aid or appliance to manage
1
your medication, or you need supervision, prompting or
assistance from another person to manage your medication or
monitor your health condition.
3C
I’ve decided you need supervision, prompting or assistance
2
from another person to manage your therapy and that this
therapy takes no more than 3.5 hours a week.
3D
I’ve decided you need supervision, prompting or assistance
4
from another person to manage your therapy and that this
therapy takes more than 3.5 hours a week but no more than 7
hours.
3E
I’ve decided you need supervision, prompting or assistance
6
from another person to manage your therapy and that this
therapy takes more than 7 hours a week but no more than 14
hours.
3F
I’ve decided you need supervision, prompting or assistance
8
from another person to manage your therapy and that this
therapy takes more than 14 hours a week.
Activity 4 – Washing and bathing
4A
I’ve decided you can wash and bathe unaided.
0
4B
I’ve decided you need an aid or appliance to wash or bathe.
2
4C
I’ve decided you need supervision or prompting from another
2
person to wash or bathe.
4D
I’ve decided you need assistance from another person to wash
2
either your hair or your body below the waist.
4E
I’ve decided you need assistance from another person to be
3
able to get in or out of a bath or shower.
4F
I’ve decided you need assistance from another person to wash
4
your body between the shoulders and waist.
4G
I’ve decided you can’t wash and bathe at all and need someone 8
else to wash your entire body.
Activity 5 – Managing toilet needs or incontinence
5A
I’ve decided you can manage your toilet needs or incontinence
0
unaided.
5B
I’ve decided you need an aid or appliance to manage your toilet 2
needs or incontinence.
5C
I’ve decided you need supervision or prompting from another
2
person to manage your toilet needs.
5D
I’ve decided you need assistance from another person to
4
manage your toilet needs.
5E
I’ve decided you need assistance from another person to
6
manage your bladder or bowel incontinence.
5F
I’ve decided you need assistance from another person to
8
manage your bladder and bowel incontinence.
Activity 6 – Dressing and undressing
6A
I’ve decided you can dress and undress unaided.
0
6B
I’ve decided you need to use an aid or appliance to dress and
2
undress.
6C
I’ve decided you either need another person to tell you to get
2
dressed or undressed, how to do it or when to keep your
clothes on, or that you need prompting or assistance to select
appropriate clothing.
6D
I’ve decided you need assistance from another person to dress
2
or undress your lower body.
6E
I’ve decided you need assistance from another person to dress
4
or undress your upper body.
6F
I’ve decided you can’t dress or undress at all.
8
Activity 7 - Communicating verbally
7A
I’ve decided you can express and understand verbal
0
information unaided.
7B
I’ve decided you need an aid or appliance to be able to speak
2
or hear.
7C
I’ve decided you can express and understand complex verbal
4
information with help from someone who is trained or
experienced in helping people to communicate.
7D
I’ve decided you can express and understand basic verbal
8
information with help from someone who is trained or
experienced in helping people to communicate.
7E
I’ve decided you cannot express or understand verbal
12
information at all, even with help from someone who is trained
or experienced in helping people to communicate.
Activity 8 – Reading and understanding signs, symbols and words
8A
I’ve decided you can read and understand basic and complex
0
written information either unaided or using glasses or contact
lenses.
8B
I’ve decided you need an aid or appliance, other than glasses
2
or contact lenses, to read or understand either basic or complex
written information.
8C
I’ve decided you need prompting from another person to read or 2
understand complex written information.
8D
I’ve decided you need prompting from another person to read or 4
understand basic written information.
8E
I’ve decided you can’t read or understand signs, symbols and
8
words at all.
Activity 9 – Engaging with other people face to face
9A
I’ve decided you can engage with other people unaided.
0
9B
I’ve decided you need to be prompted by another person to
2
engage with other people.
9C
I’ve decided you can only engage with other people with
4
support from someone who is trained or experienced in helping
people to engage in social situations.
9D
I’ve decided you can’t engage with other people at all because
8
doing so would cause you significant mental distress or you are
likely to behave in a way which could harm you or another
person
Activity 10 - Making budgeting decisions
10A I’ve decided you can make complex budgeting decisions
0
unaided.
10B I’ve decided you need prompting or assistance from another
2
person to make complex budgeting decisions.
10C I’ve decided you can make simple budgeting decisions with
4
prompting or assistance from another person.
10D I’ve decided you can’t make any budgeting decisions at all.
6
Mobility Activities
Activity 11 – Planning and following a journey
11A I’ve decided you can plan and follow the route of a journey
0
unaided.
11B I’ve decided you need prompting from another person to
4
undertake a journey to avoid causing you significant mental
distress.
11C I’ve decided you can’t plan the route of a journey.
8
11D I’ve decided you can follow the route of an unfamiliar journey
10
with help from another person, assistance dog or orientation
aid.
11E I’ve decided you can’t undertake any journey because it would
10
cause you significant mental distress.
11F I’ve decided you can’t follow the route of a familiar journey
12
without another person, assistance dog or orientation aid.
Activity 12 – Moving around
12A I’ve decided you can stand and then move more than 200
0
metres, either aided or unaided.
12B I’ve decided you can stand and then move more than 50 metres 4
but no more than 200 metres, either aided or unaided.
12C I’ve decided you can stand and then move unaided more than
8
20 metres but no more than 50 metres.
12D I’ve decided you can stand and then move using an aid or
10
appliance more than 20 metres but no more than 50 metres.
12E I’ve decided you can stand and then move more than 1 metre
12
but no more than 20 metres, either aided or unaided.
12F
I’ve decided you cannot, either aided or unaided, stand or move 12
more than 1 metre.
Example 7 - Income-based Jobseeker’s Allowance – Supersession
because earnings in excess and recoverable overpayment
Section 1:
Personal Details:
Miss Carol Kinder
48 Foxhall Rise
Coventry
CV94 1QU
National insurance number: ZZ100001C
Benefit: Income-based jobseeker’s
allowance
Date of outcome decision: 04/11/----
Date decision notified:
12/11/----
Date of mandatory reconsideration: 14/11/----
Date of appeal: 17/11/----
Decision maker’s name and address:
Name and address of the decision maker’s
representative (if any):
Address where documents for the decision
maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any):
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Original award decision
Pages (-)
(--/--/--)
(--/--/--) Supersession
decision
Pages (-)
(--/--/--)
(--/--/--)
Original disallowance decision
Pages (-)
(--/--/--)
(--/--/--) Overpayment
decision
Pages (-)
(--/--/--)
(--/--/--)
Extract of JSA1 claim form
Pages (-)
(--/--/--)
(--/--/--) Claimant’s
statement
Pages (-)
(--/--/--)
(--/--/--)
Sister’s bank statement
Pages (-)
(--/--/--)
(--/--/--)
Sainsbury’s bank statement
Pages (-)
(--/--/--)
(--/--/--) Nationwide
pass-book
Pages (-)
(--/--/--)
(--/--/--)
Record of mandatory
reconsideration / LT54
Pages (-)
(--/--/--)
(--/--/--)
Schedule 8 – JSA Regs 1996
Section 3: The decisions under appeal
Miss Kinder is not entitled to Jobseekers Allowance (Income Based)
Miss Kinder has been overpaid Jobseekers Allowance of £562.12 for the
period 31.8 – 10.11. This amount is recoverable.
Section 4: The facts of the case:
Miss Kinder is a 29 year old single woman living with her parents. She ceased
an NVQ course in March ----. On 02/09/---- she claimed jobseeker’s allowance
from 28/08/---- by completing form JSA1. She stated that she hadn’t worked in
the 12 months before the claim and was supported by her parents. No capital
was declared. JSA was awarded from and including 31/08/---- by a decision
dated 22/09/---- (page(s) --).
As a result of a computer scan of building society and bank accounts it came
to light that Miss Kinder had a building society account and a
bank
account which together exceeded £16,000:
- at the date of the claim she had £10,143 in a Nationwide Building Society
account and £6,352 in a Sainsbury’s bank account (page(s) [ - ]).
She was interviewed and gave a statement saying that she did not regarded
the £10,143 in the Nationwide Building Society account as being available to
her, as her parents had deposited the money for her to use when she marries.
She said that the money in the Sainsbury’s account -- was built up over many
years by payments made to her by her sister.
The facts were put to a decision maker who decided that Miss Kinder was not
entitled to income-based jobseeker’s allowance because her capital exceeded
£16,000. The decision to award Jobseekers Allowance was revised on the
basis that the decision maker was ignorant of the material fact that the
claimant had undeclared capital. Her entitlement terminated effective from the
date of the original decision
The decision maker next decided that there had been an overpayment
Jobseekers Allowance for the whole period. This amounted to £562.12, which
was recoverable.
Mrs Kinder applied for mandatory reconsideration on x date. Again she
explained that she did not believe the money could in law be said to belong to
her. Every penny was a gift from her parents or her sister. Having offered no
new evidence the application was refused.
Miss Kinder appealed on x date.
Section 5
The decision maker’s response:
The decision maker opposes the appellant’s case.
The issues which arise in this appeal are:
Did Miss Kinder fail to declare her capital when she claimed Jobseekers
Allowance? This includes consideration as to whether the capital
belonged to her.
If she did, was this a misrepresentation of her circumstances such that
the Secretary of State was entitled to recover any overpayment
consequent on this misrepresentation?
Failure to declare the capital
Miss Kinder has not disputed the amounts which were in her bank and
building society accounts at the date of claim for Jobseekers Allowance. She
disputes the conclusion that the money was hers.
For the Secretary of State to be able to treat any capital as belonging to a
claimant he must show that the claimant is the “beneficial owner”. If he is not
then it is disregarded. For example, if the money is held in Trust and it is not
available to the claimant to use then the claimant would not be the beneficial
owner.
The jobseeker’s allowance entitlement decision
Section 13(1) of the Jobseekers Act 1995 Regulation 107 (a) of the
Jobseekers Allowance Regulations 1996
In Miss Kinder’s case no such ambiguity arises. The money was in her
accounts and was hers to spend as and when she wanted to do so. That her
intention was to use it for a future wedding or to finance her time as a student
is of no relevance. The money had not been borrowed off her parents or sister
and there was no suggestion that there was a contract, in fact or implied, that
it had to be re-paid. In the eyes of the law: (i) the money belonged to Miss
Kinder; (ii) it was in benefit terms capital; (iii) she should have declared it, as
the Jobseeker’s Allowance claim form told her to, when she claimed – in
signing the claim form’s declaration she was declaring that the information on
the form was true and complete; and crucially it was over £16,000 which
meant that at the date of claim there was no entitlement to Jobseekers
Allowance (IB).
The overpayment
Having decided that Miss Kinder had capital over £16,000 which she should
have declared and thereby had no entitlement to Jobseekers Allowance (IB),
the Secretary of State’s next consideration was the resulting overpayment.
The calculation was straightforward. All the Jobseekers Allowance paid
to
Miss Kinder was overpaid. Please see the Schedule at Annex A.
The next question was whether the overpayment was recoverable from Miss
Kinder. The law states that where any person, either fraudulently or otherwise,
misrepresents, or fails to disclose, any material facts which results in an
overpayment of benefit, the Secretary of State is entitled to recover the
amount of the overpayment, providing the benefit award has been revised or
superseded.
Section 71 Social Security Administration Act 1992.
The Secretary of State having revised the original decision on the basis that
Miss Kinder had misrepresented her circumstances, decided that there had
been an overpayment of Jobseekers Allowance (IB) and that this was
recoverable. Further, that she was solely responsible for the overpayment
occurring and it was therefore recoverable from her.
It is accepted that Miss Kinder did not set out to deliberately mislead the
Secretary of State. However, this does not save her from the effect of her
misrepresentation. The law is plain and unambiguous and covers innocent as
well as fraudulent misrepresentation.
I request that the Tribunal dismiss the appeal.
SCHEDULE:
Period Benefit Weekly Amounts
Period
Benefi
Weekly
t
amount
s
From
To Week
Day
Paid Payabl
Overpaid Total
s
s
e
31/08/
01/09/
0 2
£54.65
£00.00
£54.65 £15.62
---- ----
02/09/
10/11/
10 0 £54.65
£00.00
£54.65 £546.5
----
----
0
Gross £562.1
Overpaymen 2
t
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 8 - Employment and Support Allowance – Claimant’s
income exceeds the applicable amount
Section 1:
Personal Details:
Mr John Deed
19 Denby Street
Wolverhampton
WV22 19QX
National insurance number:
National insurance number: ZZ100001D
Benefit: ZZ100001D
Date of outcome decision: 15 February ----
Date decision notified:
15 February ----
Date of mandatory reconsideration: 15
February
Date of appeal: 24 February ----
Decision maker’s name and address:
Name and address of the decision maker’s
representative (if any):
Address where documents for the decision
maker may be sent or delivered:
Names and addresses of any other
respondents and their representatives (if
any):
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
Response
Pages (-)
(--/--/--)
(--/--/--)
The letter of appeal and supporting
evidence
Pages (-)
(--/--/--)
(--/--/--)
Form MI 12
Pages (-)
(--/--/--)
(--/--/--) Form
A6
Pages (-)
(--/--/--)
(--/--/--)
Disablement details
Pages (-)
(--/--/--)
(--/--/--) Disallowance
decision
Pages (-)
(--/--/--)
(--/--/--)
Record of mandatory
reconsideration / LT54
Section 3: The decision under appeal
Mr John Deed is not entitled to Income Support.
Section 4: The facts of the case:
Mr Deed claimed IS on 7 June ----. He was 55 and divorced.
At the date of claim he was in receipt of ESA (contributory) of £66.15 and
industrial injuries benefit of £24.02 per week; he also had an occupational
pension from Rolls Royce of £36.97 per week.
He had re-mortgaged with Halifax PLC on 10 September 2003, when he
borrowed £40,000; £30,000 was to buy the dwelling occupied as the home,
the balance was spent as follows:
- £3,200 for a central heating system, he replaced old electric
storage heaters with gas central heating;
£2,000 for a kitchen and bathroom upgrade – he later explained that the
existing bath was cracked and the toilet leaked and that the cost of the
bathroom including plumbing and installation was £1,000; the kitchen
was an upgrade
£1,000 on wood flooring, the existing carpets were worn and were
replaced with wooden flooring;
£1,400 to relocate his daughter and grand-daughter.
The decision maker decided that interest was to be allowed only on the
£30,000 to buy the dwelling occupied as the home and £1,000 for the
bathroom work.
On x date the decision was made that Mr Deed was not entitled to income
support as his income exceeded his applicable amount – see page x
On x date Mr Deed applied for a mandatory reconsideration. He explained
that the re-mortgage was for improvements that were greatly needed to his
home because of his disability and health. The decision maker acknowledged
that the work was needed but nevertheless as the improvements made fell
outside what was allowed by the regulations he refused the application
Mr Deed appealed on x date.
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
The key issue in this appeal is whether the work done with the borrowed
money falls within the definition of “loans for repairs and improvements to the
dwelling occupied as the home” and can thereby qualify for help with the
interest charges.
In law "repairs and improvements" means major repairs necessary to maintain
the fabric of the dwelling occupied as the home undertaken with a view to
improving its fitness for occupation. It includes the following:
provision of a fixed bath, shower, wash basin, sink or lavatory, and
necessary associated plumbing, including the provision of hot water
not connected to a central heating system;
repairs to existing heating systems
damp proofing measures
provision of ventilation and natural lighting
provision or improvement of drainage facilities
provision of facilities for storing, preparing and cooking food
provision of insulation of the dwelling occupied as the home
provision of electric lighting and sockets
provision of storage facilities for fuel and refuse
repairs of unsafe structural defects
adapting a dwelling for the special needs of a disabled person, or
provision of separate sleeping accommodation for children of different
sexes aged 10 or over who are part of the same family as the claimant,
but under age 20.
Paragraph 16 of Schedule 3 to the Income Support (General)
Regulations 1987
The decision maker agreed that the cost of the bathroom was covered. The
kitchen costs were not allowed because they were deemed to be cosmetic –
the kitchen functioned adequately for Mr Deeds’s needs. It was accepted that
it may have needed modernising but of itself that does not bring the cost
within the law. And the law does not allow for replacing carpet with wooden
tiles; nor does it provide for giving gifts to relatives.
The decision maker did consider whether the improvements could be
considered as disability adaptations related to Mr Deeds’s industrial injury.
However, he concluded that the level of Mr Deeds’s disablement at 14% did
not support that being the reason for the expenditure.
Accordingly help with interest was only given for £31,000 of the £40,000 loan.
I request that the appeal is dismissed.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 9 -Universal Credit – New Partner
Section 1:
Personal Details
Mrs A Atkinson
90 Spring Avenue
Town
County
Postcode
National Insurance Number AA000000A
Benefit Universal
Credit
Date of Outcome Decision
10/07/2013
Date Outcome Decision Notified
10/07/2013
Date of mandatory reconsideration 15/07/2013
Date of Appeal
24/07/2013`
Decision Makers Name and Address
Beth Smith
Wigan
Postcode
Name and address of decision makers
N/A
representative (if any)
Address where documents for the
Wigan
decision maker may be sent or
Postcode
delivered
Name and addresses of any other
N/A
respondents and their representatives
(if any)
Name and address of Appointee (if
N/A
applicable)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
18/07/2013 19/07/2013
Letter of Appeal request and
supporting evidence
Pages (-)
22/07/2013 23/07/2013
HMCTS request for response
Pages (-)
03/05/2013 05/05/2013
UC claim form
Pages (-)
10/05/2013 10/05/2013
Declaration of claimant’s work
search intention/activity.
Pages (-)
14/05/2013 14/05/2013
New Claim initial decision
Pages (-)
03/07/2013 04/07/2013
Change of circumstances letter
Pages (-)
10/07/2013 10/07/2013
Disallowance outcome decision
Pages (
15/07/2013 15/07/2013
Record of mandatory
Reconsideration request / LT54
Pages (
17/07/2013 17/07/2013
Record of explanation
Section 3: The decision under appeal
Mrs Atkinson is entitled to Universal Credit of £x per month.
Section 4: The facts of the case
A claim from Mrs Atkinson for Universal Credit was received on 03/05/2013.
(Not included)
It was decided that Mrs Atkinson was entitled to Universal Credit from
03/05/2013.
Mrs Atkinson notified us on 08/07/2013 that she now had a partner and was
working.
A decision maker re-assessed her entitlement. A revised decision including
these changes of circumstances was made on 10/07/2013. (Pages Nos 10-
12). Mrs Atkinson was notified of the outcome of this decision.
Mrs Atkinson requested a mandatory reconsideration on 15/07/2013. (Page
No 13)
The Decision Maker telephoned Mrs Atkinson on 17/07/2013 to gather any
further evidence and discuss the application. (Not included)
The application was refused. The reasons for the mandatory reconsideration
decision are included as pages Nos 14-16.
Section 5: The Decision Maker’s response
The Decision Maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
Mr Maple has no recourse to public funds because he is not a GB citizen.
Accordingly Mrs Atkinson can only be entitled to UC as single person.
In deciding the level of her UC award Mr Maple is treated as a member of Mrs
Atkinson’s household. Accordingly his capital of £10,000 must be taken into
account. This means that a tariff income must be applied to £4,000 (the
balance after the first £6,000 is disregarded).
The law does not allow people with no recourse to public funds to receive
benefits in this country, either as a claimant or as part of a couple. The capital
in the household must be taken into account when calculating entitlement to
Universal Credit.
Universal Credit Regulations 3(3) (Couples), regulation 18 (Capital Limit)
The regulations state that a person who is a member of a couple may make a
claim as a single person if the other member of the couple does not meet the
basic conditions. In a case where the claimant is a member of a couple, but
makes a claim as a single person, the claimant’s capital is to be treated as
including the capital of the other member of the couple.
Universal Credit Main scheme regulation 3(3) Couples and regulation 18
(Capital limit)
Mrs Atkinson has her own income from her employment. In calculating her
take home pay we deduct tax, national insurance and pension contributions.
Fees for membership of a trade union are not an allowable expense.
In disputing the decision, Mrs Atkinson accepts that her partner, Mr Maple, is
not a GB citizen and has no recourse to public funds. However, she does not
believe that Mr Maple’s capital of £10,000.00 should be taken into account
when assessing her award of Universal Credit; it is simply unfair when he is
not himself paid any Universal Credit. She also believes that her union fees
should not be included in her take-home pay as they are an expense she
would not have unless she was working.
The regulations state how earned income is to be calculated and what is
allowable as deductions are permitted. The regulations do not specify trade
union membership fees as permissible deductions.
Universal Credit Main scheme regulation 55
On both issues the law is against Mrs Atkinson.
I request that the appeal is dismissed.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 10 - Disablement benefit appeal – Disallowance of IIDB
because an earlier assessment of disablement has not been
increased
Section 1:
Personal Details
Mr Jeremy Butcher
15 Hazlebank Walk
Leeds
LS17 4HR
National Insurance Number
ZZ000001A
Benefit
Industrial injuries disablement
benefit
Date of Outcome Decision
9 September ----
Date Outcome Decision Notified
10 September ----
Date of mandatory reconsideration
12 September ----
Date of Appeal
16 September ----
Decision Makers Name and Address
Name and address of decision makers
representative (if any)
Address where documents for the
decision maker may be sent or
delivered
Name and addresses of any other
respondents and their representatives
(if any)
Name and address of Appointee (if
applicable)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
[--/--/----]
[--/--/----] Response
Pages (-)
[--/--/----]
[--/--/----]
The letter of appeal and supporting
evidence
Pages (-)
[--/--/----]
[--/--/----] Previous
disability
assessments
Pages (-)
[--/--/----]
[--/--/----] Disallowance
decision
Pages (-)
[--/--/----]
[--/--/----]
Record of Mandatory
reconsideration / LT54
Pages (-)
[--/--/----]
[--/--/----]
Report from doctor
Section 3: The decision under appeal
Mr Butcher is not entitled to industrial injuries disablement benefit.
Section 4: The facts of the case
Jeremy Butcher is a 53 year old man who was working as a fitter on 7
December 1982 when, in a pressurised room, the pressure rose quickly and
damaged the hearing in his left ear.
On 27 October 1989 he claimed Industrial Injuries Disablement Benefit
as
a result of that accident.
The following assessments for the 1982 accident have been made in
this
Case:
Date
Assessment
From - To
Provisional/Final AMA/MAT/MA
20.6.1990 2%
10.12.1982 Final AMA
- life
07.8.1991 5%
11.12.1990 Final
MAT
- life
On 12.9.91 the Adjudication Officer decided Jeremy Butcher was not entitled
to industrial injuries disablement benefit as the disablement was assessed at
less than 14%.
On 30 April ---- he applied for a supersession stating his hearing had
deteriorated and the tinnitus had worsened since 989. He did not give a
specific date from which his condition had changed. In support of his
application he submitted a report from Dr Ward, a specialist in hyperbaric
medicine dated 22.4.1997. [pages - ].
Following analysis of the audiometric test carried out on 23 July ----, he was
examined by a medical adviser on 23 August ---- who reported that there had
been no changes in the effects of the accident since the assessment of 7
August 1991. [pages – ]
On 9 September ---- after considering all the evidence and, in particular, the
audiometric test of [--/--/----] and the report of the medical adviser dated [--/--/-
---], the decision maker decided that the assessment of 7 August 1991 should
not be superseded as there had not been a relevant change of circumstances.
The assessment of disablement remained at 5%.
On x date Mr Butcher applied for a mandatory reconsideration. He said that
as he is only 53 years his hearing should not have deteriorated to such a
great extent, so the deterioration must be due to the 1982 accident. He
provided no further medical evidence in support of his appeal. With no new
evidence to consider the decision maker refused the application.
Mr Butcher appealed against the decisions on 16 September - [pages ]
Section 5
The decision maker’s response:
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
The issue before the tribunal is whether or not there were grounds to
supersede the decision of 7 August 1991 to give a 5% life assessment in
respect of the industrial accident of 7 December 1982. And, if so, whether the
extent of disablement is sufficient to award industrial injuries disablement
benefit.
Schedule 6 paras 6 & 7 of the Social Security Contributions and Benefits Act
1992.
The evidence provided by Mr Butcher in support of his application for a
supersession on the grounds that his hearing had deteriorated, is a report
from his specialist written in 1997. He presented no later evidence.
The decision maker had before him the department’s analysis of an
audiometric test carried out on 23 July and the results of a medical services
examination of 23 August.
The department’s medical evidence did not suggest there had been any
deterioration in Mr Butcher’s hearing. As this was up to date, the decision
maker gave it more weight than the report provided by Mr Butcher and
decided that there had been no deterioration in Mr Butcher’s hearing.
Accordingly the grounds for supersession had not been shown.
I request that the tribunal dismiss the appeal.
Other matter
If the tribunal find that there has been a relevant change of circumstances it
should identify what the change is and the date it occurred and determine the
date from which the change takes effect. If the tribunal consider that the level
of disablement is 14% or more it needs to decide if that assessment should
be provisional or final
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 11 - Disability Living Allowance – disallowance of renewal
claim
Section 1:
Personal Details
Mr John Simpson
100 Milngavie Drive
Leeds
LS99 0AA
National Insurance Number:
ZZ000001A
Date of birth at renewal:
22 July ---- [note - the effective
(Age 16)
date of renewal in this case was the
claimant’s 16th birthday]
Recipient: Miss Doreen Astles
Benefit:
Disability living allowance
Effective date of renewal:
22 July ----
Date of outcome decision:
3 July ----
Date decision notified:
3 July ----
Date of mandatory reconsideration:
5 July ----
Date of appeal: 25 July ----
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or
delivered:
Names and addresses of any other
respondents and their representatives
(if any):
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
[--/--/----]
[--/--/----]
Documents relating to previous
award
Pages (-)
[--/--/----]
[--/--/----] Response
Pages (-)
[--/--/----]
[--/--/----]
Appeal letter from Miss Astles and
supporting evidence
Pages (-)
[--/--/----]
[--/--/----] Renewal
claim
Pages (-)
[--/--/----]
[--/--/----] Renewal
decision
Pages (-)
[--/--/----]
[--/--/----] Renewal
claim
Pages (-)
[--/--/----]
[--/--/----]
Medical report from hospital
Pages (-)
[--/--/----]
[--/--/----] Notification
of
the
decision made on 03/07/----
Pages (-)
[--/--/----]
[--/--/----] Screen
prints
Pages (-)
[--/--/----]
[--/--/----]
Request for mandatory
Reconsideration / LT54
Pages (-)
[--/--/----]
[--/--/----] Notification of mandatory
reconsideration decision made on
01/09/----
Pages (-)
[--/--/----]
[--/--/----] Screen
prints
Section 3: The decision under appeal
Mr Simpson is not entitled to Disability Living Allowance.
Section 4: The facts of the case:
Mr Simpson, who has ADHD, was awarded DLA on 28.4.X:
lower rate of the mobility component because he needed someone to
guide or supervise him when he was walking on routes that were
unfamiliar.
middle rate of the care component because he needed to be constantly
supervised, with or without short breaks, right through the
day, so that he did not cause substantial danger to himself or others.
This award was due to end on x date.
On 23.5 Mr Simpson made a renewal claim for disability living allowance –
page…
The decision maker obtained a medical report from Mr Simpson's consultant.
(Page(s) [ - ])
On 3.7 the decision was made that Mr Simpson was not entitled to DLA. On
the basis of the latest evidence it was decided that his condition had improved
and the grounds on which he had previously been awarded DLA no longer
applied; there were no other grounds supporting an award.
On 4.7 Miss Astles, Mr Simpson’s mother, applied for a mandatory
reconsideration. The decision maker explained to her that the decision had
been made on the basis of the consultant’s report. This indicated that Mr
Simpson no longer required help with using unfamiliar routes; that the
supervision he required had reduced considerably to the point where that
which he did need no longer qualified him for even the lowest rate of the care
component. She explained that the report had been prepared by a trainee and
that he had never met her son. He had seriously underplayed her son’s
condition.
The decision maker decided that the report was credible and was an accurate
assessment of Mr Simpson’s condition and its effect, and refused the
application.
A letter of appeal from Miss Astles, was received on 25/07/----. (Pages [ - ])
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case
Issues raised by the appeal:
Miss Astles says that the medical evidence from the consultant is not an
accurate assessment of Mr Simpson’s mobility and care needs. It is
alleged that a trainee provided the consultant’s report to DLA. She
feels this is unfair as no one should be able to write a report on
someone they have not met.
The consultant’s report indicates that:
there are no medical or physical problems from the history given by Mr
Simpson and that he has no need for help with getting around. That he
has had no exacerbations of his condition in the previous 6 months,
when last seen by Dr ------, the senior consultant, on 19/06/----.
the effect of Mr Simpson’s condition on his ability self care is minimal.
The decision maker concluded that Mr Simpson was able to manage his
personal care, by day and night, in his own time. That he was not at risk of
substantial danger if left alone for short periods; that there was no need for
continual supervision by day or that he needed watching over at night to avoid
substantial danger. Further that Mr Simpson should be able to plan and
prepare a simple main meal for one in his own time.
The decision maker considered whether the fact that the report had been
prepared by someone other than the senior consultant himself, compromised
its finding. However, he decided that DR X was suitably qualified to write the
report – he would have had access to all of Mr Simpson’s medical history –
and therefore he could accept it as an accurate assessment of Mr Simpson’s
mobility and care needs. He was not persuaded by Miss Astle’s argument that
the report was flawed because he had never met Mr Simpson.
Accordingly, he made the decision that Mr Simpson was not entitled to DLA.
The Tribunal is asked to dismiss the appeal.
The law used in making this decision
Mobility Component
Higher rate conditions
To be entitled to the higher rate of the mobility component of disability living
allowance a person must:
be unable to walk or virtually unable to walk because of a physical
disability.
Social Security Contributions & Benefits Act 1992, section 73;
Social Security (Disability Living Allowance) Regulations 1991,
regulation 12
Lower rate conditions
To get lower rate of the mobility component of disability living allowance a
person must be so severely disabled, physically or mentally that they need
guidance or supervision from another person for most of the time when
walking out of doors. Any ability a person has to walk on familiar routes
without guidance or supervision is not taken into account.
A person who is able to walk is not to be taken as satisfying the condition of
being so severely disabled physically or mentally, that he cannot take
advantage of the faculty out of doors, without guidance or supervision from
another person most of the time, if he does not take advantage of the faculty
in such circumstances because of fear and anxiety.
The above paragraph shall not apply where the fear or anxiety is
a symptom of a mental disability; and
so severe as to prevent the person from taking advantage of the faculty
in such circumstances.
Social Security Contributions & Benefits Act 1992, section 73 (1)(d)
Social Security (Disability Living Allowance) Regulation 1991 regs 12(7)
and (8).
Unable or virtually unable to walk
People are considered to satisfy this criterion if their physical condition is such
that:
they are unable to walk at all; or
their ability to walk out of doors is so limited, as regard the distance over
which or the speed over which or the length of time for which or the
manner in which they can make progress on foot without severe
discomfort, that they are virtually unable to walk; or
the effort needed to walk would put their life at risk or be likely to lead to
a serious deterioration in their health.
Where a person lives or works, or the nature of the work they do cannot be
taken into account.
Social Security (Disability Living Allowance) Regulations 1991,
regulation 12
Virtually unable to walk
Virtually unable to walk means unable to walk to any appreciable extent or
practically unable to walk. The base point is total inability to walk. This is
extended to take in people who can technically walk but only to an
insignificant extent.
Social Security Commissioner's decisions R (M) 1/78 and R (M) 1/91
Danger to life or serious deterioration in health
The exertion required to walk is the only consideration when deciding whether
a person satisfies this condition.
Any serious deterioration in health is where there was a worsening of the
condition from which:
they would never recover; or
they would recover after a significant period of time, for example 12
months; or
recovery could only be made after medical intervention.
Social Security Commissioner's decisions R (M) 3/78 and R (M) 1/98
Aids and appliances
People cannot normally be treated as unable or virtually unable to walk if they
can use an artificial limb or aid to help them walk unless they are without both
legs.
Social Security (Disability Living Allowance) Regulations 1991,
regulation 12(4)
Guidance
Guidance may be physically leading or directing the person or by oral
suggestion or persuasion.
Supervision
For the lower rate of the mobility component supervision can be:
(i) when another person is monitoring the disabled person's physical or mental
state for signs that some intervention may be needed to encourage the
person to continue walking; or
(ii) checking the route ahead for obstacles, dangers or places or situations
which may upset the person.
Coaxing, encouraging, persuading or providing distraction by way of
conversation may come within the meaning of "supervision".
Care Component
Lowest rate conditions
To get disability living allowance for help with personal care at the lowest rate
a person must be so severely disabled physically or mentally that they:
need attention with bodily functions for a significant portion of the day;
or
if aged over 16, are unable to prepare a cooked main meal.
Social Security Contributions & Benefits Act 1992, section 72(1)(a)
Day conditions
To satisfy the day care conditions for disability living allowance for help with
personal care a person must need from another person either:
frequent attention with bodily functions throughout the day; or
continual supervision throughout the day to avoid substantial danger to
themselves or others.
Social Security Contribution & Benefits Act 1992, section 72(1)(b)
Night conditions
To satisfy the night care conditions for disability living allowance for help with
personal care a person must be so severely disabled physically or mentally
that they need from another person either:
prolonged or repeated attention at night in connection with bodily
functions; or
someone to be awake during the night for a prolonged period or at
frequent intervals in order to avoid substantial danger to themselves or
others.
Note: there are special conditions for some people on renal dialysis.
Social Security Contributions & Benefits Act 1992, section 72(1)(c)
Significant portion
The word "significant portion" should be given its ordinary meaning of not
negligible or trivial. It refers only to the length of time a person requires
attention. What amounts to a "significant portion of the day" depends largely
on a person's individual circumstances. An hour may be considered
reasonable in many cases.
Bodily functions include such things as:
eating and drinking
washing and dressing
using the toilet
Help with bodily functions does not normally include help with domestic
duties, for example, shopping, cooking, or cleaning, but it could, for example,
include help with laundry where this forms part of a continuous episode of
attention of a personal and intimate nature in connection with a bodily
function.
Social Security Commissioner's decision R (A) 2/80 Appendix, Cockburn
v Secretary of State for Social Security
Attention is some personal service of an active nature, which is reasonably
required in connection with bodily functions and is given in the physical
presence of the severely disabled person. This can include help by means of
the spoken word, for example, persuading a person to do something like
eating, or warning a visually impaired person of danger outdoors. Attention to
enable a disabled person to take part in a reasonable level of social activity
can be included.
Social Security Commissioner's decision R (A) 2/80 Appendix, Secretary
of State for Social Security v Fairey
Social Security (Disability Living Allowance) Regulations 1991,
regulation 10C
Unable to cook a main meal
This is a hypothetical test of whether a person has the ability to perform the
various tasks necessary to make a meal, if they had the ingredients. This
includes the mental ability to plan a meal. It has nothing to do with a person’s
actual domestic arrangements.
Social Security Commissioner's decision R (DLA) 2/95
Frequent throughout the day
Frequent means several times, not once or twice. Attention must be required
throughout the day. The ordinary definition of frequent is "occurring often or in
close succession". Whether attention is given frequently depends on the
length of time which passes between each spell of attention. A person cannot
get the middle or highest rates of the care component of disability living
allowance if the only help they need is with getting in and out of bed, or if they
only need a little help when dressing and undressing in the morning and at
night.
Social Security Commissioner's decision R (A) 2/80 Appendix
Continual means going on all the time, subject to brief interruptions only.
Supervision means staying close to people in order to be able to prevent or
deal with substantial danger. It often means having to stay in the same room.
Just being on hand does not count as supervision unless someone needs to
be there to prevent a serious accident or other danger that is likely to happen.
People who are mentally competent should be expected to arrange for
supervision when undertaking any potentially dangerous activity such as
bathing and so would not necessarily need continual supervision.
Social Security Commissioner's decision R (A) 1/88 Appendix and R (A) 5/90
Substantial danger
The phrase "substantial danger" should not be too narrowly construed.
Substantial danger can result from a fall, exposure, neglect and in many other
circumstances.
The word "substantial" is left to discretion in each case.
Social Security Commissioner's decision R (A) 1/73
Watching over means that another person has to stay awake at frequent
intervals or for a prolonged period during the night to be able to intervene and
prevent or deal with substantial danger. It is not enough for the attendant to
be asleep and ready to wake up and intervene when required.
Prolonged and repeated means that someone must need help at night for
more than a few minutes, or that it is needed several times. 'Prolonged' has
been interpreted as meaning 20 minutes or more; 'repeated' as twice or more.
Social Security Commissioner's decision R (A) 2/80 Appendix
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 12 - Attendance allowance – Disallowance of claim
Section 1:
Personal Details
Mrs K Begum
17 Horton Street
Leeds
LS99 0AA
National Insurance Number
ZZ000001A
Date of Birth: 5 August ----
Benefit Attendance
allowance
Date of claim:
17 August ----
Date decision made: 1 November ----
Date decision notified:
14 November ----
Date of mandatory reconsideration:
18 November ----
Date of appeal: 4 March ----
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or
delivered:
Names and addresses of any other
respondents and their representatives
(if any):
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
[--/--/----]
[--/--/----] Response
Pages (-)
[--/--/----]
[--/--/----]
Appeal letter and supporting
evidence
Pages (-)
[--/--/----]
[--/--/----]
New claim for attendance
allowance
Pages (-)
[--/--/----]
[--/--/----]
Secretary of State’s
certificate
Pages (-)
[--/--/----]
[--/--/----]
Medical report from GP
Pages (-)
[--/--/----]
[--/--/----]
Advice from Medical
Services
Pages (-)
[--/--/----]
[--/--/----] Disallowance
decision
Pages (-)
[--/--/----]
[--/--/----]
Request for Mandatory
Reconsideration
Pages (-)
[--/--/----]
[--/--/----]
Record of mandatory
reconsideration / LT54
Section 3 : The decision under appeal
Mrs Begum is not entitled to attendance allowance.
Section 4: The facts of the case
On 17/08/----Mrs Begum claimed attendance allowance. (Page(s) [ - ] ). The
basis for her claim was that she suffered from joint pain, arthritis, shortness-of
breath and chest pain.
On 2/10/---- the Secretary of State issued a certificate. (Page(s) [ - ])
On 16/10/---- a medical report was completed by the appellant's GP. (Page(s)
[ - ])
On 31/10/---- advice was obtained from the department’s Medical Services.
(Page(s) [ - ]).
On 1/11/---- the claim was disallowed. It was notified to the appellant
on
14/11/-
On 31/12/---- a late application for mandatory reconsideration was received.
The time for applying for revision was extended. (Page(s)
On 26/01/---- the decision was reconsidered. Mrs Begum did not provide any
new written evidence but clarified how her various medical problems affected
her. The clarification of her condition not having told the decision maker
anything new, and in the absence of new evidence, the application was
refused.
On 4/03/---- a letter of appeal was received. (Page(s) [ - ])
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
From the claim form submitted by Mrs Begum, supported by the report from
her GP, it is apparent that Mrs Begum does have several medical conditions
that are of relevance to the award of AA.
Mrs Begum was on moderate medication for pain in her joints, but was not
under specialist care or having physiotherapy. Mrs Begum said she suffered
from incontinence but there is no medical evidence for this nor is she on
medication. There is no medical evidence she is at risk of harm moving
around her home and supervision is not required. She has some pain when
so doing. She is fully able to self care both by day and night – not without
some difficulty, but using appropriate aids as necessary. She is not prone to
falls or stumbles and she is aware of common dangers.
The advice from the department’s HCP said that she was able to self
care; that she is not considered to be at serious risk of danger when
left alone either day or night.
No new evidence was presented at the mandatory reconsideration stage.
And the clarification Mrs Begum gave during that discussion did
not
change the value of the evidence already provided.
The decision maker, whilst accepting that Mrs Begum’s medical problems did
have an impact on her life, was not persuaded by her evidence when
compared with that of the HCP. He concluded that she is able to self-care and
thereby satisfy the conditions needed to be awarded AA.
The Tribunal is requested to dismiss the appeal.
The law used in making this decision
Day conditions
To satisfy the day care conditions for attendance allowance a person must be
so severely disabled physically or mentally that they need either:
frequent attention with bodily functions throughout the day; or
continual supervision throughout the day to avoid substantial danger to
themselves or others.
Social Security Contribution & Benefits Act 1992, section 64(2)
Night conditions
To satisfy the night care conditions for attendance allowance a person must
be so severely disabled physically or mentally that they need either:
prolonged or repeated attention at night in connection with bodily
functions; or
someone to be awake during the night for a prolonged period or at
frequent intervals in order to avoid substantial danger to themselves or
others.
Note: there are special conditions for some people on renal dialysis.
Social Security Contributions & Benefits Act 1992, section 64(3)
Bodily functions
Include such things as:
• eating and drinking
• washing and dressing
• using the toilet
Help with bodily functions does not normally include help with domestic
duties, for example, shopping, cooking, or, cleaning, but it could, for example,
include help with laundry where this forms part of a continuous episode of
attention of a personal and intimate nature in connection with a bodily
function.
Social Security Commissioner's decision R (A) 2/80 Appendix, Cockburn
v Secretary of State for Social Security
Attention
Is some personal service of an active nature, which is reasonably required in
connection with bodily functions and is given in the physical presence of the
severely disabled person. This can include help by means of the spoken
word, for example, persuading a person to do something like eating, or
warning a visually impaired person of danger outdoors. Attention to enable a
disabled person to take part in a reasonable level of social activity can be
included.
Social Security Commissioner's decision R (A) 2/80 Appendix, Security
of State for Social Security v Fairey
Social Security (Attendance Allowance) Regulations 1991, regulation
8BA
Frequent throughout the day
Frequent means several times not once or twice. Attention must be required
throughout the day. The ordinary definition of frequent is "occurring often or in
close succession". Whether attention is given frequently depends on the
length of time which passes between each spell of attention. A person cannot
get attendance allowance if the only help they need is with getting in and out
of bed, or if they only need a little help when dressing and undressing in the
morning and at night.
Social Security Commissioner's decision R (A) 2/80 Appendix
Continual
Means going on all the time, subject to brief interruptions only.
Supervision
Means staying close to people in order to be able to prevent or deal with
substantial danger. It often means having to stay in the same room. Just
being on hand does not count as supervision unless someone needs to be
there to prevent a serious accident or other danger that is likely to happen.
People who are mentally competent should be expected to arrange for
supervision when undertaking any potentially dangerous activity such as
bathing and so would not necessarily need continual supervision.
Social Security Commissioner's decision R (A) 1/88 Appendix .and R (A)
5/90
Substantial danger
The phrase "substantial danger" should not be too narrowly construed.
Substantial danger can result from a fall, exposure, neglect and in many other
circumstances.
The word "substantial" is left to discretion in each case.
Social Security Commissioner's decision R (A) 1/73
Watching over
Means that another person has to stay awake at frequent intervals or for a
prolonged period during the night to be able to intervene and prevent or deal
with substantial danger. It is not enough for the attendant to be asleep and
ready to wake up and intervene when required.
Prolonged and repeated
Means that someone must need help at night for more than a few minutes, or
that it is needed several times. 'Prolonged' has been interpreted as meaning
20 minutes or more; 'repeated' as twice or more.
Social Security Commissioner's decision R (A) 2/80 Appendix
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 13 - Carer’s Allowance - Supersession of Award
Section 1:
Personal Details
Lynne Green
230 College Gardens
New Malden
Surrey
KT3 6NT
National Insurance Number AA000000C
Benefit: Carer’s
Allowance
Date of outcome decision:
Date of mandatory reconsideration:
Date of appeal:
Decision maker’s name and address:
Name and address of the decision
maker’s representative (if any):
Address where documents for the
decision maker may be sent or
delivered:
Names and addresses of any other
respondents and their representatives
(if any):
The overpayment decision has been
revised and as it is disadvantageous
then the appeal does not lapse but now
continues against this revised decision
The reasons for the late appeal have
been accepted by the Secretary of
State. Accordingly, the issue does not
need to be considered by the tribunal.
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
[--/--/----]
[--/--/----] Form
GL24
Pages (-)
[--/--/----]
[--/--/----]
Extract from claim form
Pages (-)
[--/--/----]
[--/--/----]
Decision awarding CA
Pages (-)
[--/--/----]
[--/--/----] Notification
of start of employment
Pages (-)
[--/--/----]
[--/--/----] DS1008X
Pages (-)
[--/--/----]
[--/--/----]
Record of notification from HMRC
Pages (-)
[--/--/----]
[--/--/----] DS788X
and earnings breakdown
Pages (-)
[--/--/----]
[--/--/----]
Earnings schedule
Pages (-)
[--/--/----]
[--/--/----]
Disallowance decision (One of the
decisions under appeal.)
Pages (-)
[--/--/----]
[--/--/----]
Prints of CA payments
Pages (-)
[--/--/----]
[--/--/----] Original overpayment decision
Pages (-)
[--/--/----]
[--/--/----] Revised
overpayment decision
Pages (-)
[--/--/----]
[--/--/----]
Request for reconsideration
Pages (-)
[--/--/----]
[--/--/----] Mandatory
reconsideration decision
/ LT54
Pages (-)
[--/--/----]
[--/--/----] Overpayment
Schedule
Pages (-)
[--/--/----]
[--/--/----] Example
of
up-rating notifications
Section 3: The Decision under appeal
Mrs Rose has been overpaid CA, as per the attached Schedule, and that this
is recoverable.
Section 4: The facts of the Case
Carer’s Allowance (CA) was awarded to Lynne Rose from and including
04.06.01 because she was caring for Hannah Rose.
On 31.12.06 Mrs Rose notified the CA unit that she had started work (pages ).
Information obtained from her employer, Sainsbury’s, revealed that her
earnings were below the statutory earnings limit, which at that time was
£84.00 a week (pages ). The award of CA therefore was not affected by this
change and payment of CA continued.
On 26.05.12 the CA Unit received notification from Her Majesty’s Revenue &
Customs (HMRC) national insurance recording system that in the in the
2010/2011 tax year Mrs Rose had gross earnings of £5884.00 page.
Further enquiries regarding the employment were made of Mrs Rose (pages -
-----). She confirmed that she had been employed by Sainsbury’s since
27.11.06, and earned £451.20 4 weekly. At this point all further payments of
CA were suspended as there was now a doubt about her continuing
entitlement.
Further information supplied by Sainsbury confirmed that Mrs Rose’s 4 weekly
earnings were on many occasions over the earnings limit.
The decision made on 4.6.01 was superseded on the grounds of a change of
circumstances, namely that Mrs Rose’s earnings had increased. Effectively
the decision maker made a series of closed period supersessions to disallow
CA for the following periods:
05.02.07 to 16.08.09
14.09.09 to 31.01.10
01.03.10 to 31.01.11
7.On 14.08.12, the Decision Maker further decided that the overpaid CA for
the above periods, amounting to £10,241.95, was recoverable from Mrs Rose
because she failed to disclose the changes in her earnings.
8.On x date she applied for a mandatory reconsideration. Her ground was that
the calculations are based on her monthly income when she believes her
weekly income to be less than that amount for a significant period. The
decision maker explained how the calculation was done but agreed to look at
it again. Having done so he did not change the amount. The application was
refused.
9.A letter of appeal was received from Mrs Rose on 10.10.12. Although
received late by HMCTS the Secretary of State has not objected to it being
admitted.
10.A decision maker looked at again at the calculation and revised the
decision. The revised decision, see page x, was that Mrs Rose had been
overpaid £x – more than the original decision. As this was not advantageous
to her the appeal did not lapse. The decision was notified to Mrs Rose. She
has made no further representations. The appeal is therefore against the
original decision as revised.
Section 5: The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
The only issue in this appeal is whether the calculation of the overpayment is
correct.
Social Security Benefit (Computation of Earnings) Regulations 1996,
regulation 6(2)(a), 8, 10,
Mrs Rose does not dispute that she did not inform the Secretary of State of
the increase in her earnings above the maximum amount allowed for
someone in receipt of CA – as she was legally obliged to do.
Instead, she contends that the method of calculation is wrong because the
Secretary of State has used her monthly and not her weekly earnings.
Mrs Rose is paid 4 weekly and not monthly.
The law provides how weekly earnings are to be calculated when a person is
not paid weekly:
-
when a person is not paid weekly the Decision Maker will work
out the weekly amount. When the earnings are paid 4 weekly, as in this case,
the Decision Maker will multiply by 7 then divide the resultant figure by 28.
The law provides when the amount of a claimant's net earnings fluctuates and
has changed more than once, or a claimant's regular pattern of work is such
that he does not work every week, the earnings may be averaged.
In this case Mrs Rose’s net earnings have fluctuated and changed more than
once. However the Decision Maker has decided not to average Mrs Rose’s
earnings as to do so would be disadvantageous to her. The average weekly
earnings are shown on the schedule and they are all in excess of the earnings
limit. If the decision maker applied these then the overpayment would also
include the period from 18.12.06 to10.06.12.
Mrs Rose incurs care costs of £25.00 per day in respect of her 2 children.
These care costs cannot be allowed because they are paid to Mrs Rose’s
parents. The law states that care costs cannot be allowed as an expense if
they are paid to a close relative of either the claimant or the disabled person.
Finally, I say above that Mrs Rose had a legal obligation to tell the Secretary
of State if her circumstances changed. When she first claimed CA she would
have been told this in her decision notification; she would also have been
made aware of the earnings limit for CA. When benefits are uprated each year
the same messages are sent to claimants. There is no question of Mrs Rose
being unaware of her responsibility to report the change in her earnings.
Turning to the recoverability of the overpayment. Failure to disclose a
material fact can be fraudulent or otherwise. Whilst there is no evidence that
there was any fraudulent intent in this case, nonetheless Mrs Rose did not let
the CA Unit know straight away that her earnings had increased as she had
been instructed to do.
In decision R(SB) 21/82, the Commissioner stated that if an overpayment
occurred as a consequence of a failure to disclose and that there was a clear
causal link between the two, the overpayment would be recoverable,
because, had the claimant disclosed the fact, there would have been no
overpayment.
I request that the tribunal dismiss the appeal.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries. It
can be accessed online
via the DWP's website at http://www.dwp.gov.uk/publications/specialist-
guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP's
website at http://www.dwp.gov.uk/publications/specialist-guides/decisions-of-
the-commisioners
Example 14 - Employment and Support Allowance – Claimant fails
Work Capability Assessment
Section 1
Personal Details
Mr Dave Edmonds
99 Piccadilly Way
Dudley
DY99 10ZZ
National Insurance Number
ZZ000001A
Benefit:
Employment and support allowance
Date of outcome decision:
24 March ----
Date decision notified:
26 March ----
Date of mandatory reconsideration:
2 April ----
Date of appeal:
4 April ----
Decision maker’s name and address:
Name and address of the decision
maker’s
representative (if any):
Address where documents for the
decision maker
may be sent or delivered:
Names and addresses of any other
respondents
and their representatives (if any):
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Pages (-)
[--/--/----]
[--/--/----] Response
Pages (-)
[--/--/----]
[--/--/----]
Letter of appeal and supporting
evidence
Pages (-)
[--/--/----]
[--/--/----]
ESA 50 - questionnaire
Pages (-)
[--/--/----]
[--/--/----]
ESA 85 – medical report
Pages (-)
[--/--/----]
[--/--/----] Scoresheet
Pages (-)
[--/--/----]
[--/--/----] Disallowance
decision
Pages (-)
[--/--/----]
[--/--/----]
Record of mandatory
reconsideration call
Pages (-)
[--/--/----]
[--/--/----] Mandatory
reconsideration
decision
/ LT54
Pages (-)
[--/--/----]
[--/--/----]
Schedule 2 – descriptors for limited
capability for work
Pages (-)
[--/--/----]
[--/--/----]
Schedule 3 – descriptors for limited
capability for work related activity
Section 3: The decision under appeal
Mr Edmonds is not entitled to ESA.
Section 4: The facts of the case
Mr Edmonds was born on 11 Sep 1961. He was awarded employment and
support allowance from and including 07/01/---- on the basis that he was
suffering from anxiety and depression.
Mr Edmonds completed a questionnaire (form ESA50) on 02/02/----. Mr
Edmonds indicated that he had no physical problems but did have mental
health problems in the areas of memory and concentration, going out, coping
with social situations and dealing with other people. (Pages [ - ].)
On 13/03/---- Mr Edmonds underwent his WCA. The health care rofessional’s
report (form ESA85), indicated that he had no physical problems but did have
limitations going out as he needed to be accompanied. (Pages [- ].)
The decision maker carried out an assessment of Mr Edmonds’s
capability
for work taking all the available evidence into account – in this case this was
only the HCP’s report. He decided that he scored 0points for the physical
descriptors and 6 points for the mental descriptors.
As Mr Edmond’s had not reached the necessary threshold required for an
award of ESA, that is, 15 points, on 24.3 the decision was made to supersede
the original award and terminate Mr Edmond’s ESA – effective from 24.3.
Mr Edmonds applied for mandatory reconsideration by telephone stating that
he disputed the decision. He was telephoned on 27/03/---- Mr Edmonds was
asked if he had any further information and he explained that his low
confidence means that he feels unable to meet or talk to people and that he
cannot cope with change. He did not feel that this was reflected in his
WCA.(Pages [ - ])
The decision of 24/03/---- was reconsidered but not revised. (Pages [ -
].)
Mr Edmonds appealed.
Section 5 : The decision maker’s response
The decision maker opposes the appellant’s case.
It would be appropriate for the case to be disposed of without a hearing.
1On 13/03/---- Mr Dave Edmonds was examined by a healthcare professional
in connection with the work capability assessment.
The decision maker considered the healthcare professional’s report and the
other available evidence and decided that Mr Edmonds scored 0 points for the
physical descriptors. This is not disputed.
The decision maker also decided that Mr Edmonds scored 6 points for the
mental descriptors. As he had not reached the 15 points threshold his ESA
award terminated on supersession.
Welfare Reform Act 2007, sections 1, 2, Part 1 Schedule 1 (ESA C)
Social Security (Employment & Support Allowance) Regulations 2008, reg 19,
20, 25, 26, 29 & 30.
The Social Security and Child Support (Decisions and Appeals) Regulations
1999, regulation 6(2)(r)
He has disputed the decision as he thinks he should have scored points for
several other mental health activities:
he has very low concentration and confidence;
doesn’t feel like meeting or talking to people as his behaviour causes
problems with himself and others;
However, against this, is the information provided in the ESA50 and the
HCP report. These indicate that Mr Edmonds:
has no problems with dressing, in the bathroom, maintaining safety in
the bathroom. He is usually able to make meals for himself, do
housework and tidy up.
feels comfortable in his flat, prefers to watch sport, nature programmes
and documentaries on the television and also reads and does
crosswords.
does not experience panic attacks, has no history of disruptive
behaviour and enjoys visits from his family.
does not socialise outside the home but on a good day he uses the bus
to go to the town centre to shop and pay bills. Other days he has to be
accompanied or get someone else to do things.
In the HCP’s opinion Mr Edmonds:
did have limitations going out as he frequently needs to be
accompanied to places even with which he is familiar.
anxiety and depression was mild. He was reinforced in this view by the
fact that Mr Edmond had not seen a specialist and the medication he
used was low strength.
5.The decision maker decided that the weight of the evidence was against Mr
Edmonds. He accepted that he had limitations going out, hence the six points,
but none of the other symptoms were such that they reached the necessary
threshold for the relevant descriptors. Nothing discussed at the mandatory
reconsideration stage shifted him from this view.
In his letter of appeal Mr Edmonds reiterated that he had problems with
memory and concentration, coping with change, coping with social situations,
behaviour with other people, getting on with other people; his anxiety and
depression he has meant he had very low confidence and doesn’t feel like
meeting or talking to people. He has also provided a medical certificate from
his GP, dated 15.4.09,advising he should refrain from work for 8 weeks due to
depression. (Pages [ - ])
The decision maker did not believe that there was anything new in what was
said; and was not persuaded that the medical certificate required that the
original diagnosis in relation to the claimant’s depression should be increased
from mild.
I request that the tribunal dismiss the appeal.
Other matter
9.Should the tribunal decide that Mr Edmonds does have limited capability for
work; I respectfully request that they decide whether or not Mr Edmonds has
limited capability for work-related activity.
If they determine that there is insufficient evidence, for example where there
are no direct equivalent descriptors in the limited capability for work related
activity schedule and insufficient evidence in the customer’s papers for a
decision to be made, the tribunal is requested to refer the case to the
decision maker for determination.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 15 - Personal Independence Payment: No entitlement
Section 1:
Appeal Tribunal Reference Number
SC222/22/2222
Personal Details
Mrs J. Clarke
18 Rose Street
Wolverhampton
WX12 9RE
Name and addresses of any other
N/A
respondents and their representatives
(if any)
Name and address of Appointee (if
N/A
applicable)
Date of Birth
xx/xx/xxxx
National Insurance Number
VO123456D
Benefit
Personal Independence Paymen
Date of Outcome Decision
23/05/13
Date Outcome Decision Notified
24/05/2013
Date of Mandatory Reconsideration
02/07/2013
Decision
Date Mandatory Reconsideration
03/07/2013
Notified
Date of Appeal Request 09/07/2013
Decision Makers Name
Xxxx
Address where documents for the
St Martins House
Decision Maker may be sent or
Bootle BC
delivered.
Stanley Precinct
Bootle
Liverpool
L69 9BN
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
--
15/07/2013 N/A
DWP Appeal response
1 08/07/2013
09/07/2013 Appeal
request
2 10/07/2013
11/07/2103
HMCTS request for Appeal
response
3-36 01/05/2013
03/05/2013
"How
your disability affects you"
(PIP2) form
37 06/03/2013
03/05/2013
Consultant Anaesthetist Pain
Management Service report
38 11/03/2013
03/05/2013 Clinical
Matron report
39 14/01/2013
03/05/2013
Consultant Occupational Health
Physician report
40 -46
14/05/2013 15/05/2013
Health Professional consultation
report
47-51 23/05/2013
New
Claim
decision and notification
52-53 17/06/2013
18/06/2013 Mandatory
Reconsideration
request
54 19/04/2013
18/06/2013
Letter
from Consultant Spinal Neuro
Surgeon
55 undated
18/06/2013
Letter
from
GP
56 undated
18/06/2013
List
of medical contacts
57-58 27/06/2013
28/06/2013
Supplementary Health Professional
(HP) Advice note
59-60 02/07/2013
Mandatory Reconsideration
decision and notification
(LDO note: 3 versions to
demonstrate the potential
notification)
Section 3: The decision under appeal
Mrs Clarke is not entitled to Personal Independence Payment.
Section 4: The facts of the case
Mrs Clarke has an going back condition and is awaiting surgery.
A valid claim for Personal Independence Payment was accepted by phone on
18/04/2013.
A "How your disability affects you" PIP2 form was received on 03/05/2013.
Mrs Clarke indicated she needs help cooking, washing and bathing and
dressing and undressing. She sometimes finds it difficult to mix with others
due to distress and her walking ability is varied (Pages 3 - 36)
A Consultant Anaesthetist Pain Management Service report was received on
03/05/2013 (Page 37)
A Clinical Matron report was received on 03/05/2013 (Page 38)
A Consultant Occupational Health Physician report was received on
03/05/2013 (Page 39)
During the consultation all the evidence provided was considered and the
Health Professional recommended that Mrs Clarke needs to use an aid or
appliance to be able to prepare or cook a simple meal and needs assistance
from another person to get in and out of a bath or shower and assistance from
another person to dress and undress her lower body. Mrs Clarke can stand
and then move more than 50 metres but no more than 200 metres.
The Decision Maker considered Mrs Clarke’s claim of the 18/04/2013 and
decided that although Mrs Clarke has been awarded 7 points for daily living
and 4 points for the mobility component she does not satisfy the disability
threshold criteria.
The Disability Threshold Criteria is the minimum number of points someone
must score to be awarded Personal Independence Payment. Where a total of
between 8 to 11 points is scored for either Daily Living component or the
Mobility component the person will be awarded each component of Personal
Independence Payment at the standard rate. Where a total of 12 points or
more is scored for either Daily Living component or the Mobility component
the person will be awarded each component of Personal Independence
Payment at the enhanced rate.
Therefore Mrs Clarke was not entitled to Personal Independence Payment
from 18/04/13. The reasons for the decision are included in the decision letter
dated 23/05/2013. (Pages 47-51)
The Decision Maker made 3 unsuccessful attempts to telephone Mrs Clarke
to explain the decision, once on 23/05/2013, and twice on 05/06/2013.
A telephone call with Mrs Clarke took place on 07/06/2013. During this call
Mrs Clarke stated that she has received a letter from her Consultant dated
24/04/2013 giving a specific diagnosis of her conditions. She stated that her
medications have increased. She also stated that the decision based on her
needs at the time was understandable, but her needs increased on
20/05/2013 when her injection started to wear off. She has been told she
needs to consider a spinal operation but is afraid of this. Following this
conversation Mrs Clarke wrote in requesting a mandatory Reconsideration on
18/06/2013 (page 54-57).
A Letter from the Consultant Spinal Neuro Surgeon was received from Mrs
Clarke on 18/06/2013 (page no 58).
A Letter from her GP was received from Mrs Clarke on 18/06/2013 (page no
59).
A list of medical contacts was received from Mrs Clarke on 18/06/2013 (page
no 60).
On receipt of the further evidence submitted with the mandatory
reconsideration request, the Decision Maker referred the case to the Health
Professional.
The supplementary advice provided by the Health Professional on 28/06/2013
was that the evidence did not support any change to his previous
recommendations (Pages 61 – 62)
On 02/07//13 the Decision Maker reconsidered the original decision but was
unable to change the decision (Pages 65 -66)
On 09/07/13 Mrs Clarke lodged an appeal against the decision that she is not
entitled to Personal Independence on the grounds that she does not agree
with the Decision Maker’s decision as her ability to manage simple every days
tasks were and are becoming more difficult. She stated this occurred between
making the Personal Independence Payment claim and a decision being
reached. (Page 1)
Section 5: The Decision Maker’s response
I oppose this appeal for the following reasons.
Personal Independence Payment is intended to help towards some of the
extra costs arising from ill-health or disability. It is based on how a person’s
condition affects them, not the condition they have. There are two
components of Personal Independence Payment – Daily Living and Mobility.
Each component can be paid at standard rate, or enhanced rate for those with
the greatest needs.
The decision was made in accordance with the Welfare Reform Act 2013
Part 4 Social Security (Personal Independence Payment) Regulations
2013
Entitlement to Personal Independence Payment is determined by an
assessment of the individual’s needs by a health professional to consider the
ability to carry out certain activities.– the Table below list the activities which
are considered. Points can be awarded for each of these activities. A
claimant must score a minimum of 8 points for either the Daily Living or
Mobility components to quality for a standard rate award of either Daily Living
or Mobility; and a minimum of 12 points to quality for higher rate.
The specific legislation for the areas under dispute is the Social Security
(Personal Independence Payment) Regulations 2013, Regulation 4
(assessment) and Regulations 5, 6 (scoring), and Schedule 1 (list of
descriptors against the set of activities for Daily Living and Mobility)
Mrs Clarke is a 54 year old lady. She has an on going back condition and
sciatica and is awaiting surgery. Mrs Clarke attends a Consultant Anaesthetist
Pain Management Service and sees a Clinical Matron and a Consultant
Occupational Health Physician. She takes strong medication for her pain.
Mrs Clarke declared in writing that she suffers with pain in her back which is
continually getting worse. Her condition and treatment are not in dispute.
When submitting her "How your disability affects you" PIP2 form Mrs Clarke
did not claim any needs relating to eating and drinking, managing treatments,
managing toilet needs, communicating, reading and understanding, and
making budgeting decisions. Accordingly no points have been awarded under
these activities
In the PIP2 she said she needed help sometimes to be able to prepare or
cook a simple meal. She relies on family members to help with this on bad
days when standing is difficult. The Decision Maker has accepted that Mrs
Clarke can prepare or cook a simple meal with the use of an aid and has
awarded 2 points for this activity.
Mrs Clarke stated that she requires supervision and help to get in and out of
the bath or the shower. The Decision Maker has accepted that Mrs Clarke
would require assistance to get in and out of the bath or the shower and has
awarded 3 points for this activity.
Mrs Clarke stated that she needs help to dress and undress her lower body.
The Decision Maker has accepted that Mrs Clarke would require assistance
with dressing and undressing her lower body and has awarded 2 points for
this activity
Mrs Clarke stated that sometimes she finds it difficult to mix with others
because of severe anxiety or distress. During the consultation Mrs Clarke was
able to engage with the Health Professional and although her physical
condition could make her feel self conscious she has no cognitive impairment
or mental health issues which would restrict her ability to engage with other
people unaided. The Decision Maker has accepted that Mrs Clarke can
engage with other people unaided and has not therefore awarded any points
for this activity.
Mrs Clarke stated that she needs help to go out due to severe anxiety and
distress. The Decision Maker has accepted that whilst Mrs Clarke’s physical
symptoms could make her feel self conscious she is however able to socialise
and has no mental health problems that would prevent her from being able to
make and plan a journey unaided and has not therefore awarded any points
for this activity.
Mrs Clarke states in the PIP2 that the distance she can walk varies. On good
days her walking is limited and she had fallen once. On bad days she feels so
unsafe she does not go out at all. She stated that it takes her up to 20 to 30
mins to undertake a short walk which used to take only 10 mins The Decision
Maker has accepted that due to severe pain and the effects of her pain control
Mrs can stand and then move more than 50 meters but no more than 200
metres, either aided or unaided and has awarded 4 points for this activity
In her appeal letter Mrs Clarke stated that her condition has deteriorated since
her claim due to the fact she requires additional injections. Her pain level has
increased and she has had another fall. Her increased medication affects her
ability to function safely. She states she now finds it difficult to get out of a bed
or chair and getting to the bathroom and to manage her lower clothing when
using the toilet. Her condition varies from day to day.
She also supplied supporting evidence from her Consultant Spinal
Neurosurgeon which confirms her condition and suggests the need for spinal
surgery and a letter from the Clinical Matron confirming her treatment.
The Decision Maker considered all the new evidence supplied but did not
consider that this supported any change in the points scored.
Mrs Clarke has been awarded 7 points for the daily living component and 4
points for the mobility component. Because she did not meet the disability
threshold of 8 points for either the Daily Living or Mobility components she is
not entitled to Personal Independence Payment.
The assessment criteria cover 10 Daily Living and 2 Mobility activities. These
activities give an overall picture of an individual's daily living and mobility
needs. While I recognise you may have other needs, if these aren't covered
by the assessment criteria, they can't be considered in deciding if you're
eligible for benefit.
Conclusion
The Tribunal is asked to dismiss this appeal and confirm the Secretary of
State’s decision.
The descriptors and points awarded for each activity are in bold and
underlined in the table below.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Daily Living Activities
Activity 1 – Preparing food
1A
I‘ve decided you can prepare and cook a simple meal unaided.
0
1B
I‘ve decided you need an aid or appliance to prepare or cook a
2
simple meal.
1C
I’ve decided you can’t cook a simple meal using a conventional
2
cooker but you can do so using a microwave
1D
I’ve decided you need prompting from another person to
2
prepare or cook a simple meal.
1E
I’ve decided you need supervision or assistance from another
4
person to prepare or cook a simple meal.
1F
1F
I’ve decided you can’t prepare and cook food.
8
Activity 2 – Taking nutrition
2A
I’ve decided you can eat and drink unaided.
0
2B
I’ve decided you need an aid or appliance, or supervision from
2
another person to eat and drink, or you need assistance from
another person to cut up food.
2C
I’ve decided you need a therapeutic source to be able to take
2
nutrition.
2D
I’ve decided you need prompting from another person to eat
4
and drink.
2E
I’ve decided you need assistance from another person to
6
manage a therapeutic source that enables you to take nutrition.
2F
I’ve decided you need another person to get food and drink to
10
your mouth.
Activity 3 - Managing therapy or monitoring a health condition
3A
I’ve decided you can either manage medication / therapy or
0
monitor your health condition unaided, or you don’t need to.
3B
I’ve decided you either need an aid or appliance to manage
1
your medication, or you need supervision, prompting or
assistance from another person to manage your medication or
monitor your health condition.
3C
I’ve decided you need supervision, prompting or assistance
2
from another person to manage your therapy and that this
therapy takes no more than 3.5 hours a week.
3D
I’ve decided you need supervision, prompting or assistance
4
from another person to manage your therapy and that this
therapy takes more than 3.5 hours a week but no more than 7
hours.
3E
I’ve decided you need supervision, prompting or assistance
6
from another person to manage your therapy and that this
therapy takes more than 7 hours a week but no more than 14
hours.
3F
I’ve decided you need supervision, prompting or assistance
8
from another person to manage your therapy and that this
therapy takes more than 14 hours a week.
Activity 4 – Washing and bathing
4A
I’ve decided you can wash and bathe unaided.
0
4B
I’ve decided you need an aid or appliance to wash or bathe.
2
4C
I’ve decided you need supervision or prompting from another
2
person to wash or bathe.
4D
I’ve decided you need assistance from another person to wash
2
either your hair or your body below the waist.
4E
I’ve decided you need assistance from another person to be
3
able to get in or out of a bath or shower.
4F
I’ve decided you need assistance from another person to wash
4
your body between the shoulders and waist.
4G
I’ve decided you can’t wash and bathe at all and need someone 8
else to wash your entire body.
Activity 5 – Managing toilet needs or incontinence
5A
I’ve decided you can manage your toilet needs or incontinence
0
unaided.
5B
I’ve decided you need an aid or appliance to manage your toilet 2
needs or incontinence.
5C
I’ve decided you need supervision or prompting from another
2
person to manage your toilet needs.
5D
I’ve decided you need assistance from another person to
4
manage your toilet needs.
5E
I’ve decided you need assistance from another person to
6
manage your bladder or bowel incontinence.
5F
I’ve decided you need assistance from another person to
8
manage your bladder and bowel incontinence.
Activity 6 – Dressing and undressing
6A
I’ve decided you can dress and undress unaided.
0
6B
I’ve decided you need to use an aid or appliance to dress and
2
undress.
6C
I’ve decided you either need another person to tell you to get
2
dressed or undressed, how to do it or when to keep your
clothes on, or that you need prompting or assistance to select
appropriate clothing.
6D
I’ve decided you need assistance from another person to dress
2
or undress your lower body.
6E
I’ve decided you need assistance from another person to dress
4
or undress your upper body.
6F
I’ve decided you can’t dress or undress at all.
8
Activity 7 - Communicating verbally
7A
I’ve decided you can express and understand verbal
0
information unaided.
7B
I’ve decided you need an aid or appliance to be able to speak
2
or hear.
7C
I’ve decided you can express and understand complex verbal
4
information with help from someone who is trained or
experienced in helping people to communicate.
7D
I’ve decided you can express and understand basic verbal
8
information with help from someone who is trained or
experienced in helping people to communicate.
7E
I’ve decided you cannot express or understand verbal
12
information at all, even with help from someone who is trained
or experienced in helping people to communicate.
Activity 8 – Reading and understanding signs, symbols and words
8A
I’ve decided you can read and understand basic and complex
0
written information either unaided or using glasses or contact
lenses.
8B
I’ve decided you need an aid or appliance, other than glasses
2
or contact lenses, to read or understand either basic or complex
written information.
8C
I’ve decided you need prompting from another person to read or 2
understand complex written information.
8D
I’ve decided you need prompting from another person to read or 4
understand basic written information.
8E
I’ve decided you can’t read or understand signs, symbols and
8
words at all.
Activity 9 – Engaging with other people face to face
9A
I’ve decided you can engage with other people unaided.
0
9B
I’ve decided you need to be prompted by another person to
2
engage with other people.
9C
I’ve decided you can only engage with other people with
4
support from someone who is trained or experienced in helping
people to engage in social situations.
9D
I’ve decided you can’t engage with other people at all because
8
doing so would cause you significant mental distress or you are
likely to behave in a way which could harm you or another
person.
Activity 10 - Making budgeting decisions
10A I’ve decided you can make complex budgeting decisions
0
unaided.
10B I’ve decided you need prompting or assistance from another
2
person to make complex budgeting decisions.
10C I’ve decided you can make simple budgeting decisions with
4
prompting or assistance from another person.
10D I’ve decided you can’t make any budgeting decisions at all.
6
Mobility Activities
Activity 11 – Planning and following a journey
11A I’ve decided you can plan and follow the route of a journey
0
unaided.
11B I’ve decided you need prompting from another person to
4
undertake a journey to avoid causing you significant mental
distress.
11C I’ve decided you can’t plan the route of a journey.
8
11D I’ve decided you can follow the route of an unfamiliar journey
10
with help from another person, assistance dog or orientation
aid.
11E I’ve decided you can’t undertake any journey because it would
10
cause you significant mental distress.
11F I’ve decided you can’t follow the route of a familiar journey
12
without another person, assistance dog or orientation aid.
Activity 12 – Moving around
12A I’ve decided you can stand and then move more than 200
0
metres, either aided or unaided.
12B I’ve decided you can stand and then move more than 50 metres 4
but no more than 200 metres, either aided or unaided.
12C I’ve decided you can stand and then move unaided more than
8
20 metres but no more than 50 metres.
12D I’ve decided you can stand and then move using an aid or
10
appliance more than 20 metres but no more than 50 metres.
12E I’ve decided you can stand and then move more than 1 metre
12
but no more than 20 metres, either aided or unaided.
12F
I’ve decided you can stand and then move more than 1 metre
12
but no more than 20 metres, either aided or unaided.
Example 16 - Personal Independence Payment – No Entitlement
Section 1:
Appeal Tribunal Reference Number
SC111/11/11111
Personal Details
Mrs Marharet Dali
18 Reed Street
Wolverhampton
WX13 7ER
Name and addresses of any other
respondents and their representatives
(if any)
Name and address of Appointee (if
N/A
applicable)
Date of Birth
12/05/1949
National Insurance Number
MD158761B
Benefit
Personal Independence Payment
Date of Outcome Decision
03/07/2013
Date Outcome Decision Notified
04/07/2013
Date of Mandatory Reconsideration
02/08/2013
Decision
Date Mandatory Reconsideration
06/09/2013
Notified
Date of Appeal Request 14/09/2013
Decision Makers Name
XXXX
Address where documents for the
St Martins House
Decision Maker may be sent or
Bootle BC
delivered.
Stanley Precinct
Bootle
Liverpool
L69 9BN
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
--
21/09/2013 N/A
DWP Appeal Response
1 14/09/2013
14/09/2013 Appeal
request
2 15/09/2013
16/09/2013
HMCTS request for Appeal
Response (DL6)
3 - 31
10/04/2013 11/04/2013
"How your disability affects you"
(PIP2) form
32 – 51
18/04/2013
19/04/2013 Health
Professional consultation
report
52
03/07/2013
New Claim decision and notification
53 02/08/2013
03/08/2013
Mandatory Reconsideration request
54
10/08/2013 11/08/2013
GP Supporting letter
55 – 58
21/08/2013 21/08/2013
Supplementary Consultation Report
59 06/09/2013
Mandatory Reconsideration
decision and notification
Section 3: The decision under appeal
Mrs Dali is not entitled to Personal Independence Payment
Section 4: The facts of the case
Mrs Dali lives with her family and has suffered from Diabetes Mellitus and
hypertension for approximately 3 years.
A valid claim for Personal Independence Payment was accepted by phone on
08/04/2013.
A "How your disability affects you" PIP2 form was received on 11/04/2013.
Mrs Dali indicated she has a problem with remembering to take her
medication, preparing a meal, getting to the toilet and washing and dressing.
(Pages 3 - 31)
A Face to Face consultation took place on 18/04/2013. In the opinion of the
Health Professional Mrs Dali did not meet any of the Daily Living or Mobility
Component descriptors. (Pages 32-51)
The Decision Maker considered Mrs Dali’s claim of 08/04/2013 taking all
available evidence into account and decided Mrs Dali did not meet any of the
descriptors for Daily Living or Mobility Component and as a result was not
entitled to Personal Independence Payment from 8/4/13. The reasons for the
decision are included in the decision letter. (Pages52 )
The Decision Maker telephoned Mrs Dali on 10/07/2013 to explain the
decision reasons.
Mrs Dali was unhappy with the overall outcome of the decision dated 03/07/13
and advised the decision maker she would consider her next steps. Mrs Dali
did not present any additional information. .
Mrs Dali requested a Mandatory Reconsideration on 03/08/2013 because she
believed she met some of the descriptors for Daily Living. (Page 53)
GP supporting letter was received on 11/08/2013. (Page 54)
Supplementary advice was provided by the Health Professional on
21/08/2013 recommending that Mrs Dali needs help with taking nutrition and
with medication (Pages 55-58 )
On 06/09/2013 the Decision Maker reviewed the original decision and
awarded 5 points for Daily Living. However Mrs Dali remains not entitled to
Personal Independence Payments from and including 08/04/2013 because
she does not meet the disability threshold criteria. The reasons for the
Mandatory Reconsideration decision are included in document. (Page 59)
On 14/09/13 Mrs Dali lodged an appeal against the decision that she is not
entitled to PIP on the grounds that she does not agree with the choice of
descriptor under activities 2 and 3, and therefore she disputes the points
awarded.
Section 5: The Decision Maker’s response
I oppose this appeal for the following reasons.
Personal Independence Payment is intended to help towards some of the
extra costs arising from ill-health or disability. It is based on how a person’s
condition affects them, not the condition they have. There are two
components of PIP – Daily Living and Mobility. Each component can be paid
at standard rate, or enhanced rate for those with the greatest needs.
The decision was made in accordance with the Welfare Reform Act 2013
Part 4 Social Security (Personal Independence Payment) Regulations
2013
Entitlement to Personal Independence Payment is determined by an
assessment of the individual’s needs by a health professional to consider the
ability to carry out certain activities.– the Table below list the activities which
are considered. Points can be awarded for each of these activities. A
claimant must score a minimum of 8 points for either the Daily Living or
Mobility components to quality for a standard rate award of either Daily Living
or Mobility; and a minimum of 12 points to quality for higher rate.
The specific legislation for the areas under dispute is the Social Security
(Personal Independence Payment) Regulations 2013, Regulation 4
(assessment) and Regulations 5, 6 (scoring), and Schedule 1 (list of
descriptors against the set of activities for Daily Living and Mobility)
Mrs Dali is a 53 year old lady. She has had type 2 diabetes for several years
and raised blood pressure since the birth of her last child. Mrs Dali takes
various medications supplied by her GP and attends diabetic clinic at her local
surgery once a week. Mrs Dali declared in writing and at the face to face
consultation that she suffers with pain in her joints and back and also has
slight visual and hearing loss. Her condition and treatment are not in dispute.
When submitting her PIP2 Mrs Dali did not claim any needs relating to
taking
nutrition, communicating verbally, reading and understanding, engaging
with other people, or
making budgeting decisions. Accordingly no points
have been awarded under these areas.
In the PIP2 she said she needed help to wash, bathe and dress. At the
assessment centre she was able to climb on and off the couch and her joint
movements were normal. She was able to remove and replace some items of
clothing unaided. She was also able to rise from a chair on several occasions.
Given the level of mobility and flexibility shown by these actions, the Decision
Maker considered that Mrs Dali does not satisfy any of the descriptors for
washing and bathing, managing toilet needs or dressing and
undressing. Mrs Dali states in her PIP2 claim form she is unable to peel or chop food and
so cannot make a meal. At the consultation she showed a normal grip and
dexterity and she confirmed she is able to knit and crochet. The Decision
Maker therefore concluded, based on this evidence, that Mrs Dali is able to
prepare a simple meal and so does not satisfy the descriptors for
preparing a
meal.
As Mrs Dali scores no points for daily living she is not entitled to the daily
living component.
At the consultation Mrs Dali indicated she did not need help to plan or follow a
journey although she would prefer to have someone with her. For this reason
therefore the Decision Maker has decided not to award any points for
planning and following a journey. Mrs Dali states in her questionnaire she has problems walking and needs
someone to hold her to help her keep her balance. No medical evidence has
been presented to show that she has any balance problems and no
medication has been prescribed for this. Mrs Dali stated at her assessment
that she can walk around the supermarket with the aid of a trolley and she
was seen to walk around the consultation centre unaided.
Given this level of mobility, in particular the fact that she can move around
unaided, the Decision Maker has decided Mrs Dali does not satisfy the
descriptors for
moving around. As Mrs Dali scores no points for mobility she is not entitled to mobility
component
On her request for reconsideration Mrs Dali said she had needs in relation to
taking nutrition, and managing therapy or monitoring health care. A GP’s letter
was received which stated that Mrs Dali has never achieved good diabetic
control. She had to be given tablets because she could not understand the
importance of a correct diet and does not understand the need to take her
tablets regularly or monitor her blood sugar. Her blood sugar remains high.
Without her family’s support she would not eat appropriate foods and her
diabetic control would deteriorate. Her daughter-in-law tells me that without
supervision she would eat sweets all day and eat large portions of food. In
order to try to keep her on a reasonable diet all food is prepared for her, and
food and sweets locked away.
The Decision Maker accepted Mrs Dali needs prompting to take nutrition and
awarded 4 points for
taking nutrition. The Decision Maker also accepted that
she needs help or prompting to take medication and awarded 1 point for
managing therapy or monitoring a health condition. Although the decision
had revised the points scored, as it was only 5, it meant Mrs Dali was still not
entitled to Personal Independence Payments because she did not meet the
disability threshold of 8 points for either the Daily Living or Mobility
components.
In her appeal Mrs Dali explained that she does not believe that the correct
points have been award under activity 2
, taking nutrition. In order to score a
higher level of points for this activity Mrs Dali would need assistance from
another person to manage a therapeutic source to enable her to take nutrition.
She is able to convey food or drink to her mouth without help. I do not accept
therefore that Mrs Dali requires this level of support and I support the
descriptor and points awarded.
Mrs Dali also does not believe that the correct points have been awarded
under activity 3
Managing therapy or monitoring a health condition. Although she has a history of poor compliance and her diabetes is not
controlled, I do not accept that she requires any more help or prompting to
manage therapy or monitor a health condition.
Conclusion
The Tribunal is asked to dismiss this appeal and confirm the Secretary of
State’s decision.
The descriptors and points awarded for each activity are in bold and
underlined in the table below.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Daily Living Activities
Activity 1 – Preparing food
1A
I‘ve decided you can prepare and cook a simple meal unaided.
0
1B
I‘ve decided you need an aid or appliance to prepare or cook a
2
simple meal.
1C
I’ve decided you can’t cook a simple meal using a conventional
2
cooker but you can do so using a microwave.
1D
I’ve decided you need prompting from another person to
2
prepare or cook a simple meal.
1E
I’ve decided you need supervision or assistance from another
4
person to prepare or cook a simple meal.
1F
I’ve decided you can’t prepare and cook food.
8
Activity 2 – Taking nutrition
2A
I’ve decided you can eat and drink unaided.
0
2B
I’ve decided you need an aid or appliance, or supervision from
2
another person to eat and drink, or you need assistance from
another person to cut up food.
2C
I’ve decided you need a therapeutic source to be able to take
2
nutrition.
2D
I’ve decided you need prompting from another person to eat
4
and drink.
2E
I’ve decided you need assistance from another person to
6
manage a therapeutic source that enables you to take nutrition.
2F
I’ve decided you need another person to get food and drink to
10
your mouth.
Activity 3 - Managing therapy or monitoring a health condition
3A
I’ve decided you can either manage medication / therapy or
0
monitor your health condition unaided, or you don’t need to.
3B
I’ve decided you either need an aid or appliance to manage
1
your medication, or you need supervision, prompting or
assistance from another person to manage your medication or
monitor your health condition.
3C
I’ve decided you need supervision, prompting or assistance
2
from another person to manage your therapy and that this
therapy takes no more than 3.5 hours a week.
3D
I’ve decided you need supervision, prompting or assistance
4
from another person to manage your therapy and that this
therapy takes more than 3.5 hours a week but no more than 7
hours.
3E
I’ve decided you need supervision, prompting or assistance
6
from another person to manage your therapy and that this
therapy takes more than 7 hours a week but no more than 14
hours.
3F
I’ve decided you need supervision, prompting or assistance
8
from another person to manage your therapy and that this
therapy takes more than 14 hours a week.
Activity 4 – Washing and bathing
4A
I’ve decided you can wash and bathe unaided.
0
4B
I’ve decided you need an aid or appliance to wash or bathe.
2
4C
I’ve decided you need supervision or prompting from another
2
person to wash or bathe.
4D
I’ve decided you need assistance from another person to wash
2
either your hair or your body below the waist.
4E
I’ve decided you need assistance from another person to be
3
able to get in or out of a bath or shower.
4F
I’ve decided you need assistance from another person to wash
4
your body between the shoulders and waist.
4G
I’ve decided you can’t wash and bathe at all and need someone 8
else to wash your entire body.
Activity 5 – Managing toilet needs or incontinence
5A
I’ve decided you can manage your toilet needs or incontinence
0
unaided.
5B
I’ve decided you need an aid or appliance to manage your toilet 2
needs or incontinence.
5C
I’ve decided you need supervision or prompting from another
2
person to manage your toilet needs.
5D
I’ve decided you need assistance from another person to
4
manage your toilet needs.
5E
I’ve decided you need assistance from another person to
6
manage your bladder or bowel incontinence.
5F
I’ve decided you need assistance from another person to
8
manage your bladder and bowel incontinence.
Activity 6 – Dressing and undressing
6A
I’ve decided you can dress and undress unaided.
0
6B
I’ve decided you need to use an aid or appliance to dress and
2
undress.
6C
I’ve decided you either need another person to tell you to get
2
dressed or undressed, how to do it or when to keep your
clothes on, or that you need prompting or assistance to select
appropriate clothing.
6D
I’ve decided you need assistance from another person to dress
2
or undress your lower body
6E
I’ve decided you need assistance from another person to dress
4
or undress your upper body.
6F
I’ve decided you can’t dress or undress at all.
8
Activity 7 - Communicating verbally
7A
I’ve decided you can express and understand verbal
0
information unaided.
7B
I’ve decided you need an aid or appliance to be able to speak
2
or hear.
7C
I’ve decided you can express and understand complex verbal
4
information with help from someone who is trained or
experienced in helping people to communicate.
7D
I’ve decided you can express and understand complex verbal
8
information with help from someone who is trained or
experienced in helping people to communicate.
7E
I’ve decided you cannot express or understand verbal
12
information at all, even with help from someone who is trained
or experienced in helping people to communicate.
Activity 8 – Reading and understanding signs, symbols and words
8A
I’ve decided you can read and understand basic and complex
0
written information either unaided or using glasses or contact
lenses.
8B
I’ve decided you need an aid or appliance, other than glasses
2
or contact lenses, to read or understand either basic or complex
written information.
8C
I’ve decided you need prompting from another person to read or 2
understand complex written information.
8D
I’ve decided you need prompting from another person to read or 4
understand basic written information.
8E
I’ve decided you can’t read or understand signs, symbols and
8
words at all.
Activity 9 – Engaging with other people face to face
9A
I’ve decided you can engage with other people unaided.
0
9B
I’ve decided you need to be prompted by another person to
2
engage with other people.
9C
I’ve decided you can only engage with other people with
4
support from someone who is trained or experienced in helping
people to engage in social situations.
9D
I’ve decided you can’t engage with other people at all because
8
doing so would cause you significant mental distress or you are
likely to behave in a way which could harm you or another
person.
Activity 10 - Making budgeting decisions
10A I’ve decided you can make complex budgeting decisions
0
unaided.
10B I’ve decided you need prompting or assistance from another
2
person to make complex budgeting decisions.
10C I’ve decided you can make simple budgeting decisions with
4
prompting or assistance from another person.
10D I’ve decided you can’t make any budgeting decisions at all.
6
Mobility Activities
Activity 11 – Planning and following a journey
11A I’ve decided you can plan and follow the route of a journey
0
unaided.
11B I’ve decided you need prompting from another person to
4
undertake a journey to avoid causing you significant mental
distress.
11C I’ve decided you can’t plan the route of a journey.
8
11D I’ve decided you can follow the route of an unfamiliar journey
10
with help from another person, assistance dog or orientation
aid.
11E I’ve decided you can’t undertake any journey because it would
10
cause you significant mental distress.
11F I’ve decided you can’t follow the route of a familiar journey
12
without another person, assistance dog or orientation aid.
Activity 12 – Moving around
12A I’ve decided you can stand and then move more than 200
0
metres, either aided or unaided.
12B I’ve decided you can stand and then move more than 50 metres 4
but no more than 200 metres, either aided or unaided.
12C I’ve decided you can stand and then move unaided more than
8
20 metres but no more than 50 metres.
12D I’ve decided you can stand and then move using an aid or
10
appliance more than 20 metres but no more than 50 metres.
12E I’ve decided you can stand and then move more than 1 metre
12
but no more than 20 metres, either aided or unaided.
12F
I’ve decided you cannot, either aided or unaided, stand or move 12
more than 1 metre.
Example 17 - Universal Credit - Limited Capability for Work
Section 1:
Personal Details
Ms Leda Swann
7 Laconia Road
Town
County
Postcode
Date of Birth
12/03/1972
National Insurance Number AA000000A
Name and address of Appointee (if
N/A
applicable)
Benefit Universal
Credit
Date of Outcome Decision
21/02/2014
Date Outcome Decision Notified
22/02/2014
Date of Mandatory Reconsideration
03/03/2014
Decision
Date Mandatory Reconsideration
04/3/2014
Notified
Date of Appeal Request 08/03/2014
Decision Makers Name and Address
Beth Smith
Wigan
Postcode
Name and address of decision makers
N/A
representative (if any)
Address where documents for the
Wigan
decision maker may be sent or
Postcode
delivered
Name and addresses of any other
N/A
respondents and their representatives
(if any)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Not
08/03/2014 10/03/2014 Appeal
request
included
Not 14/03/2014
18/03/2014
HMCTS request for response
included
Not
01/11/2013 01/11/2013
UC claim form
included
Not
11/11/2013 11/11/2013 Declaration of claimant’s work
included
search intention/activity.
13-18 11/03/2014
11/03/2014
Limited capability for work
descriptors
19-21 14/11/2013
16/11/2013
New Claim decision
22 04/02/2014
04/02/2014
WCA
summary
23-25 07/02/2014
09/02/2014 WCA
decision
26 11/02/2014
17/02/2014
Change of circs summary
27-29 22/02/2014
24/02/2014
Supersession decision
30 27/02/2014
27/02/2014
Mandatory Reconsideration request
Not
03/03/2014 03/03/2014 Record of explanation
included
31-34 03/03/2014
05/03/2014
Mandatory Reconsideration
decision / LT54
Section 3: The decision under appeal
Ms Swann’s UC is not to be increased to include the disability element
because she failed her WCA.
Section 4: The facts of the case
A claim for Universal Credit was received on 01/11/2013. (Not included)
It was decided that Ms Swann was entitled to Universal Credit from
01/10/2013 (decision pages 19-21)
On 30/03/2014 Ms Swann completed a LCW questionnaire in which she
stated that she had a problem with her back which affected her ability to move
around and that she had trouble with social situations due to depression and
occasional anxiety attacks. (not included)
On 02/04/2014 Ms Swann underwent a WCA. In the opinion of the Health
Care Professional Ms Swann does not satisfy any of the physical or mental
health descriptors.
The Decision Maker carried out an assessment of Ms Swann’s capability for
work taking into account all the available evidence and decided that she
scored 0 points on the physical and 0 points on the mental descriptors.
Accordingly, she did not have limited capability for work and was not awarded
this element of Universal Credit. (not included)
On 21/04/2014 a supersession decision was made that Ms Swann was not
entitled to Limited Work Capability element as part of her claim to Universal
Credit. (pages 27-29)
Ms Swann requested a mandatory reconsideration on 27/04/2014. (Page 30)
The Decision Maker telephoned Ms Swann on 02/05/2014 to discuss the
application. (Not included)
On 06/05/2014 the Decision Maker reconsidered the decision but did not
change it. The reasons for this are included as pages 31-34.
On 09/05/2014 Ms Swann appealed.
Section 5: The Decision Maker’s response
The Decision Maker opposes the appellant’s case.
Ms Swann completed a questionnaire in which she identified that she has
difficulties with moving around and mental health activities.
On 4th February 2014 Ms Swann was examined by a Healthcare Professional
in connection with the Work Capability Assessment.
Ms Swann reported that she had mental health problems and a long-term
back problem. She reported that she has suffered form anxiety attacks. She
was vague about the details of these and said that the last one was three
months ago. She spoke normally and was able to hear conversational
speech. She didn’t report any vision problems.
In the opinion of the HCP she did not satisfy any of the physical or mental
health descriptors. The decision maker agreed.
During the mandatory reconsideration discussion Ms Swann repeated much
of what she had put in the ESA 50 and what she had told the HCP. There was
no new evidence. Accordingly that application was refused.
Again her grounds for appealing reveal nothing new.
The regulations state that the Limited Capability for Work assessment
assesses the ability to perform specific physical activities and, where
there is a mental illness to cope with day to day living. Points are
awarded to reflect limitations and a score of 15 points is needed to
satisfy the test.
Universal Credit Regulations 38 – 44
The Decision Maker’s conclusion, taking into account variability and reliability
is that Ms Swann is unlikely to have significant difficulty mobilising, sitting and
standing, using upper limbs, communicating with others, understanding
others, getting around safely, controlling bowels and bladder, staying
conscious when awake. Equally he doesn’t believe she has any mental health
issues. Finally, he also considers it unlikely that finding Ms Swann not to have
Limited Capability for Work would pose a risk to anyone’s health. The
evidence on these issues provided in the HCP’s report is preferred to that
provided by Ms Swann in her ESA 50 and the discussion at the MR stage.
I request that the appeal is dismissed.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Example 18 - Universal Credit - Sanction imposed due to not
attending an arranged job interview
Section 1:
Personal Details
Mr G Reynolds
44 Gloria Street
Town
County
Postcode
Date of Birth
12/03/1982
National Insurance Number AA000000A
Benefit Universal
Credit
Date of Outcome Decision
04/06/2013
Date Outcome Decision Notified
05/06/2013
Date of Mandatory Reconsideration
10/06/2013
Decision
Date Mandatory Reconsideration
10/06/2013
Notified
Date of Appeal Request 24/06/2013
Decision Makers Name and Address
Beth Smith
Wigan
Postcode
Name and address of decision makers
N/A
representative (if any)
Address where documents for the
Wigan
decision maker may be sent or
Postcode
delivered
Name and addresses of any other
N/A
respondents and their representatives
(if any)
Name and address of Appointee (if
N/A
applicable)
Section 2: Schedule of evidence
Page Nos
Date of
Date of
Brief description of document
document
receipt/issue
Not
18/07/2013 19/07/2013 Appeal
request
included
Not
22/07/2013 23/07/2013 HMCTS request for response
included
Not
15/04/2013 17/04/2013
UC claim form
included
Not
16/05/2013 18/05/2013 Declaration of claimant’s work
included
search intention/activity.
6-7 17/04/2013
17/04/2013
New Claim decision
8
Report that claimant did not attend
interview
9-11 05/06/2013
05/06/2013
Sanction
decision
12 10/06/2013
10/06/2013
Reconsideration request
Not
14/06/2013 14/06/2013 Record of explanation
included
13-15 14/06/2013
14/06/2013
Mandatory Reconsideration
decision / LT54
Section 3: The decision under appeal
Mr Reynolds’s Universal Credit is to be subject to a sanction because he
failed to attend a job interview.
Section 4: The facts of the case
1A claim for Universal Credit was received on 03/05/2013. (Not included)
It was decided that Mr Reynolds was entitled to Universal Credit from
03/05/2013
On 25.5 Mr Reynolds failed to attend a job interview.
On 3.6 he was telephoned to ask why he didn’t attend.
On 04/06/2013 a 91 day high level sanction was imposed with effect from
03/06/2013
The reasons for the decision are included as page Nos 9-11
Mr Reynolds requested a mandatory reconsideration on 15/06/2013. (Page
No 12)
The Decision Maker telephoned Mr Reynolds on 16/06/2013 to discuss the
application. (Not included)
On 16/06/2013 the Decision Maker reconsidered the decision of 04/06/2013
but did not change it. The reasons for this are included as pages Nos 13-15.
Mr Reynolds appealed on 19.7.13
Section 5: The Decision Maker’s response
The Decision Maker opposes the appellant’s case.
During a telephone call to Mr Reynolds on 03/06/2013 to ask why he had
failed to attend the interview, he said that he had forgotten about it due to
having a number of other job interviews at around the same time. Mr
Reynolds said that he had had an interview on 24/05/2013 and that he was
going over that in his mind while preparing for another interview on
30/05/2013. Mr Reynolds said that this proved that he was looking for work.
During the discussion of his mandatory reconsideration Mr Reynolds repeated
the above. There was nothing new.
The law says that as a condition of receiving Universal Credit the
claimant must attend job interviews as arranged and take all reasonable
action in for the purpose of obtaining paid work.
Universal Credit Regulations, Regulation 94
The regulations allow for time to carry out paid work, voluntary work, a work
preparation requirement, or voluntary work preparation, or to deal with
temporary childcare responsibilities, a domestic emergency, funeral
arrangements or other temporary circumstances. The regulations do not
specify claimant forgetfulness as a valid reason for not attending an interview.
I request that the Tribunal dismiss the appeal.
Access to statute and case law for appellants
Copies of the law referred to in this response are available at some libraries.
It can be accessed on-line via the DWPs website at
www.dwp.gov.uk/publications/specialist-guides/law-volumes/
Reported decisions of The Upper Tribunal Office from 1991 can be accessed
on-line via the DWP’s website at www.dwp.gov.uk/publications/specialist-
guides/decisions -of-the-commissioners/
Appendix 8
Role of the Presenting Officer
1. The Presenting Officer (PO) functions before the FtT are to:
Give a summary of Department for Work and Pensions (DWP) case as
set out in the appeal response
Assist the FtT with oral submissions on the law
Question the appellant’s case
Draw the FtTs attention to new points in the appellant’s favour, in
particular where the appellant is unrepresented
Help the FtT to focus on the questions to be considered
2. The PO may also be called upon to:
Describe DWP procedures where these have a bearing on the appeal
Provide information about earlier claims/decisions
Deal with new points as directed (obtaining advice from DMA Leeds
during an adjournment if necessary).
3. Before the hearing the POs should:
Identify which decision(s) is being appealed, clarifying the point with the
appellant if necessary
Ensure they are familiar with the:
facts of the case
decision under appeal
grounds for the appeal
written appeal response
law (both legislation and case law) underpinning the decision.
4. In cases with a medical aspect to the appeal, ensure that they are familiar
with the medical history of the appellant.
5. Where operational issues may be discussed or the decision-making
history of the case is relevant, ensure they understand them.
6. Highlight or list separately the key issues and the points that the FtT
should focus on.
7. Contact the original DM if:
The reasons for the decision are not clear
Relevant evidence appears to be missing from the papers
The Mandatory Reconsideration Notice (MRN) is missing
There is no clear evidence of a decision essential to the appeal, for
example a supersession decision where the appeal concerns a
requirement to repay an overpayment.
8. Revise or supersede, or arrange for a revision or a supersession to be
carried out if the decision under appeal is wrong. If the decision is revised,
ensure that the appeal is either lapsed or treated as an appeal against the
revised decision.
9. Arrange for the attendance of a witness, if one is necessary or if the
attendance of a witness has been directed by the FtT.
The hearing
10. When invited to speak, the PO should:
Describe the factual background to the decision
Explain the legal basis for the decision
State the appellant’s grounds for appeal
Explain why the decision is, in the DM’s view, correct
If there are any additional matters which should be brought to the FtTs
attention, a later award for example, mention them at an early stage in
the proceedings.
11. If the response is deficient in some way, or the PO has not been able to
have a decision corrected, they should say so at the outset of proceedings.
12. Once the appellant has explained the grounds for appeal, the PO may,
with the FtTs permission, put questions to the appellant and any witness. Any
questions should be relevant and courteous.
13. The PO should send any new evidence to HMCTS before the hearing if at
all possible. If new evidence, new grounds of appeal, or unfamiliar case law is
introduced by the appellant, the PO should ask for a short adjournment to
consider whether:
it can be dealt with on the spot, or
an adjournment is necessary to enable a new written response to be
made.
14. If the new evidence suggests that the decision under appeal was wrong,
the PO should readily submit that the appeal should succeed, or that a
different decision should be made.
15. The PO may be asked questions about the history of claims and should be
ready to provide additional information. The PO should be ready to explain
abbreviations and unusual terms, or to describe departmental procedures.
16. In summing up, the PO should remind the FtT of the questions to be
considered. If there are points in the appellant’s favour which have been
overlooked, the PO should draw attention to them.
17. If, at the conclusion of the hearing, the decision under appeal appears to
be correct, the PO should say so during any final observations to the FtT.
18. If an adjournment is directed, the PO should ensure that any directions are
precise as to what the FtT require and who should obtain it. It is particularly
important that where additional medical evidence is requested, the questions
to be answered are clear.
After the hearing
19. Where the appeal is successful, the PO should report back to the decision
maker with a brief account of the reasons why the FtT came to its decision.
20. Where the decision is given at the hearing, the PO should, if possible,
check the decision to ensure that there are no obvious errors which could be
corrected immediately.
21. POs may be called upon to attend Tribunal User Group meetings arranged
by HMCTS, where issues of concern to HMCTS customers are discussed.
They might also be asked to participate in local PO network groups to share
best practices.
Appendix 9 – Example Schedule of Evidence
Page No
Date of
Date of
Brief description
Document
receipt/issue
of document
Appendix 10 – Request for First-tier Tribunal documents
Appellant’s Details
Other Party Details
NINO :
NINO:
Surname: Surname:
Other Names:
Other Names:
FtT Ref:
FtT Ref:
Other Ref
Hearing Details:
Hearing location:
Hearing date
Urgent – benefit suspended
We are considering whether to apply for leave to appeal to the Upper Tribunal
and are unable to complete our action on the information contained within the
decision notice.
Would you please therefore send us the FtT’s statement of material facts and
reasons for the decision and a record of the proceedings.
Signed: Date:
Print Name:
Section:
Room: Site:
Telephone
Appendix 11 - Examples of appeals likely to raise difficult
issues
General – all benefits
Complicated evidence or legislation
New legislation or case law
Serious errors in decision making process
Difficult judgemental element
Human rights
Overpayments
Late claim
Fraud cases
Vulnerable Customers
AA/DLA
SMI
Persons subject to immigration control
Benefit reduced following revision or supersession
Whether the customer has a physical or mental disability (DLA mobility
component only)
Bereavement Benefit / Widow’s Benefit
Date of death
Date/validity of marriage
Date/validity of civil partnership
Carers Allowance
Exportability of Benefit
Retrospective disallowances because of non-declaration of earnings causing
large overpayments.
Subject to Immigration Control
Compensation Recovery (CRU)
Covered in General list
Employment and Support Allowance (ESA)
Vulnerable Customer
Ancillary workers
Asylum seekers/PFA/HRT
Capital (including deprivation/diminishing capital)
Employer’s sick pay
Housing costs/high housing costs/re-mortgages
Income
Sanctions
Polygamous marriages
Relevant education
Remunerative work
Student income
Membership of the household
Temporary absence
Trust funds
IS/JSA
Ancillary workers
Asylum seekers/PFA/HRT
Capital (including deprivation/diminishing capital)
Compensation payments on termination of employment
Customary holiday
Employer’s sick pay
Housing costs/high housing costs/re-mortgages
Income
Refusing to enter into a JSAG
Availability and ASE
Sanctions
LTAHAW/LTACP
Polygamous marriages
Relevant education
Remunerative work
Student income
Membership of the household
Temporary absence
Trust funds
Industrial Injuries Disablement Benefit (IIDB)
MAT
Cases where assessment has been adjusted as a result of CRU / fraud
investigation
Posthumous cases
Simultaneous appeals for one or more PD and/or accident
Appeals for 2 Industrial accidents on the same day
Appeals evidence containing potentially harmful medical evidence
Claim for one PD received, but another one diagnosed (most commonly found
in asbestos-related diseases)
Copious and complicated evidence
SSAT
Cases involving CRU and / or Fraud evidence
Stress cases
REA cases, particularly those involving earnings and/ or regular employment
issues.
Simultaneous appeals for one or more PD and/or accident
Maternity Allowance (MA)
Late paid contributions and Small Earnings Exception Certificates
Personal Independent Payment (PiP)
Persons subject to immigration control
Benefit reduced following revision
Benefit reduced following planned intervention
Benefit reduced following unplanned intervention
Negative determination because of failure to provide information
Negative determination because of failure to attend assessment
Reassessment cases where PIP disallowed or awarded at a rate less than
previous award of DLA (including rising 16s)
Recovery from Estates (RFE)
Failure to disclose details of estate/capitol after death
Pension Credit / State Pension
Date/Validity of Marriage
Date/Validity of Civil Partnership
Universal Credit
Good cause for failure to return questionnaire or attend and submit to medical
examination
Multiple element appeals
Appeal including WCA as well as other elements
Joint claims where partner has a WCA
See also IS/JSA (excluding ‘Refusing to enter into a JSAG’)
Appendix 12 - Non disclosure of evidence
To: HMCTS
From:
Date:
SURNAME:
OTHER NAMES:
NINO:
It is considered that disclosure of the evidence at pages [identify page
numbers in unedited bundle] of the documents below should not be made to
[identify party to whom evidence should not be disclosed] as it would be
likely to cause them serious harm.
This is because [give reasons e.g. evidence in harmful information page of
GP report, advice from medical services, where a child or vulnerable adult
would be at risk if they were identified].
The response and documents have not been sent to the appellant or
representative.
Please refer this appeal to the FtT for a ruling in accordance with rule 14 of
The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber)
Rules.
Please notify this office of the outcome of the reference.
Signature :
Appendix 13
REQUEST FOR CONSIDERATION OF AN APPEAL TO THE UPPER
TRIBUNAL DMA
Leeds, Room 1S25, Quarry House, Leeds LS2 7UB
Senders name:
Senders full address:
Section: Floor
No:
Sender’s and Claimant’s phone nos:
Claimant’s name:
Claimant’s address:
NINO:
Benefit involved: (for example ESA,
Subject involved: (for example LCW,
JSA, IS, RP, UC)
Overpayment, LTAHAW,)
Is payment of benefit suspended?
YES/NO (delete as appropriate)
Have you included a copy of the
If not, please say why:
WSOR?
YES/NO (delete as appropriate)
Have you included a copy of the
If not, please say why:
Record of Proceedings? HMCTS
should provide a copy of the Record
of Proceedings with the WSOR.
YES/NO (Delete as appropriate)
On what date was the WSOR sent to
Date:
you by HMCTS?
If you have exceeded the one
calendar month time limit, please
explain the delay in referring this case
to DMA.
Have you included a copy of the
tribunal decision notice?
YES/NO (delete as appropriate)
Where applicable, please give an
estimate of the amount of benefit
involved:
REQUEST FOR CONSIDERATION OF AN APPEAL TO THE UPPER
TRIBUNAL DMA
Leeds, Room 1S25 Quarry House, Leeds LS2 7UB
Error of Law
Please explain clearly what you consider is the Error of Law in this case:
(For guidance on what constitutes an Error of Law please see below)
Examples of what constitutes an Error of Law
The provisions of the act or regulations have been misinterpreted.
Benefit has been awarded in circumstances, or for an item, not provided
for or specifically excluded by the act or regulations.
The decision is not supported by evidence.
The decision is such that no person acting judicially and properly
instructed about the relevant law could have reached it.
There has been a breach of natural justice.
There are other errors in law, that is:
Taking irrelevant evidence into account or
Ignoring relevant evidence or
Giving reasons for decisions which imply faulty reasoning.
Note: This list is not exhaustive
Appendix 14
Examples of cases suitable to request strike-out on the basis of
‘no reasonable prospect of success’.
1. This list is not exhaustive but is a selection of situations that have been
identified as the type of case that may be suitable for the DM to request strike-
out.
2. It covers as many benefits as possible. However, if a benefit is not listed it
does not mean that a DM requested strike-out is not possible. The DM must
decide whether any other type of case is suitable for requesting a strike-out,
using the principles set out in this appendix
Employment and Support Allowance
Work Capability Assessment
3. Evidence indicates a physical medical condition where the claimant cannot
score 15 points under the physical descriptors. Suitable referrals would mainly
focus on those claimants that have been deemed by the DM only to satisfy
one or two physical descriptors due to their physical medical condition. The
available evidence should support the view that the claimant cannot score 15
points. No case where the claimant has indicated that there are mental health
issues should be put forward for consideration.
Contribution condition
4. Appellant does not dispute their earnings but they believe they should be
entitled to the contributory based element of the benefit. These conditions are
laid out in law and must be met for a contributory based payment to be made.
This would only be suitable where HMRC have made a decision confirming
that the NI record is correct.
ESA(C) - 365 days expiry
5. Claimant is appealing against ESA(C) expiry as 365 days ESA (C) already
paid and cannot continue beyond this period.
Age limitation
6. Decision not to pay IB/ESA cases where the appellant has attained State
Pension age, and therefore the benefit cannot be paid beyond that date.
Disability living allowance/attendance allowance
Age limitation
DLA Higher rate mobility for children under 3 years of age.
DLA Lower rate mobility for children under 5 years of age.
Over 65 and DLA is requested.
Age
7. A decision not to award DLA to a claimant who is over 65 (no recourse to
DLA unless previously in receipt of DLA on 65th birthday and claims again
within one year. Could be entitled to a mobility component).
Backdating
8. A decision where there is no entitlement before the date of claim (i.e. no
claim was made); or where there is no indication of a previous claim (i.e. no
alleged earlier claim).
Residence and presence
9. Disallowance re eligibility. Dates or other information (including
exportability rules) may need clarifying before deciding it is appropriate to
apply for an appeal to be struck out on grounds of no reasonable prospect of
success.
No physical disability
10. Claiming higher rate mobility when there is no evidence of a physical
disability (i.e. mental health issues only) when deeming provisions do not
apply.
Payability
Imprisonment – claimant is appealing against payability decision.
Issues relating to dates, type of conviction etc - establish that there is
no dispute as to the primary facts before deciding it is appropriate to
apply for appeal to be struck out on grounds of no reasonable prospect
of success.
Hospital/residential care – claimant is appealing against payability.
Issues in respect of admittance, discharge dates, types of hospital
funding, residential care funding arrangements - establish that there is
no dispute as to the primary facts before deciding it is appropriate to
apply for appeal to be struck out on grounds of no reasonable prospect
of success.
Change of circumstances/deterioration
11. Can only apply if the change of circumstances or deterioration has
occurred after the date of the decision being appealed.
Carers allowance - Qualifying benefit
12. No qualifying benefit in payment on a new claim.
Jobseekers allowance - Good cause
13. Decision is not to consider good cause where the claimant appeals against
the specified time limit (5 days), in which they must provide an explanation for
failure to attend a mandatory interview (usually fortnightly job review). They
are not disputing that they did not respond within 5 days, but the only reason
they provide is that they forgot their appointment.
Income support
Conditions of Entitlement
14. Lone parents claiming IS when they no longer satisfy the “lone parent”
conditions due to the changes in qualifying age for the youngest child.
Deductions
15. Decision to implement deductions at set rates, for example, fines that are
deducted at a fixed rate cannot be changed, and claimants may appeal the
amount being deducted because they consider it is too high.
Industrial injuries disablement benefit
Cannot claim within 3 years of a disallowance
16. Claimant disallowed PD A10 and advised they cannot claim again within 3
years but does claim again. Unless it can be waived to satisfy the 5 year time
limit for making a claim, the 3 year period is set in law and cannot be altered.
Not on prescribed list
17. A decision where the claimant is claiming, with an illness not on the
prescribed illness list, and who had been disallowed.
Social fund
Winter fuel payments
18. A decision not to award a payment because:
the person applying has not attained the qualifying age
the person is in legal custody under sentence imposed by a court
the appeal is against the amount which is prescribed for the specific
circumstances of the claimant.
Sure start maternity grants
19. A decision not to award a payment because:
the claimant (or partner) does not have an award of a qualifying benefit,
and that is not in dispute
the claim is made outside the prescribed time limits
Funeral payments
20. A decision not to award a payment because:
the claimant or partner does not have an award of a qualifying benefit,
or is not a person in respect of whom a second adult council tax rebate
could be awarded
the claim is outside the prescribed time limits
Retirement pension
NI Contribution disputes
21. Appeal is against a decision based on NI qualifying conditions, and where
HMRC has given a formal decision confirming that the NI record is correct.
Disputes involving paydays
22. The claimant disputes non payment of RP for a part week, from the date
they attained state pension age to the beginning of their first benefit week.
Bereavement benefit, widowed parent’s allowance, bereavement
allowance & bereavement payment
Qualifying conditions not met
23. A decision not to award benefit because:
there was no marriage
there were no/insufficient contributions, and that is not disputed
the cessation of widowed parent’s allowance where the qualifying child
has attained the age at which there would be no entitlement to child
benefit.
52 week maximum period
24. Appeals against the 52 week maximum period of an award of
bereavement allowance.
State pension credit - Conditions of entitlement
25. A decision that there is no entitlement to SPC because the appellant has
not reached the qualifying age for SPC.
Appendix 15
Request to HMCTS to strike-out an appeal on the grounds of ‘no
reasonable prospect of success’.
To: Her Majesty’s Courts and Tribunals Service
Claimant’s Name:
NINO:
DOB:
Address:
Telephone
Case Code
Evidence considered in strike-out request
Decision dated:
Reconsideration dated:
Appeal letter dated:
Further evidence submitted
Detailed reasons for our request to Strike-out: (a)
Conclusion:
In view of the above, I submit that this appeal should be struck-out, as it has
no reasonable prospect of success. I refer this case to the First-tier Tribunal
under rule 8(3) (c) of the Tribunal Procedure (First-tier Tribunal) (Social
Entitlement Chamber)Rules 2008
Staff Name:
Office Name
Notes for completion
(a) This is where you would build your detailed argument. For example AA
Backdating – details of no previous claim date etc, quoting the
regulation/legislation appropriate to show the claim cannot be awarded.