Advice for Decision Making

Who decides claims and applications

A1002:

A1010:

Making decisions

A1015:

When decisions become valid

A1030:

What decisions are made by DMs

A1040:

Other decisions and determinations

A1045:

Reference to HM Revenue and Customs

A1050:

Credits

A1051:

Credits awarded by HM Revenue and Customs

A1052:

Credits awarded by DWP

A1060:

Determinations on incomplete evidence

A1064:

JSA determinations

Referring a claimant for a medical examination/consultation
Reference by the DM

A1080:

PIP

A1081:

Reference by First-tier Tribunal

Limited capability for work and limited capability for work

A1082:

related activity

A1084:

Meaning of health care professional (ESA and UC)

A1085:

Meaning of medical practitioner

A1086:

Meaning of Health Professional (PIP)

A1087:

Failure to attend for medical examination/consultation

A1091:

Has the appointment been cancelled

A1092:

Good cause (ESA)

A1093:

Good reason (PIP & UC)

A1100:

Outcome decisions

A1105:

First-tier Tribunals and outcome decisions

A1111:

How is the decision recorded

A1113:

Defective decisions

A1116:

How is the decision notified

A1118:

When is the decision notified

A1119:

Failure to notify the decision

A1120:

Explanation

A1130:

Request for written statement of reasons

A1150:

Finality

A1152:

Changing a First-tier Tribunal's decision

A1160:

Claim or award disallowed

A1170:

Revision following backdating request

A1180:

Finality of determinations

A1200:

General principles of common law

Estoppel (personal bar in Scotland)

European Convention on Human Rights

A1261:

Human Rights Act 1998

Evidence

Responsibility for collecting evidence

A1330:

Evidence from HM Revenue and Customs

A1332:

Further Information Sharing Provisions

A1340:

Standard of proof - balance of probability

A1350:

Failure to provide evidence

A1372:

Treated as not having LCW

A1380:

Corroboration of evidence

A1390:

Contradictory evidence

A1391:

Self-contradictory evidence

A1392:

Inherently improbable evidence

A1400:

Claimant's own evidence

A1405:

Burden of proof

Evidence in certain situations

A1420:

Destruction of documents

A1430:

Evidence of Departmental procedures

A1431:

Evidence of a decision

A1440:

Evidence given in confidence

A1450:

Appeals: Address of partner from whom claimant is separated

Decisions given by other courts

A1474:

Appellate authorities

A1475:

Upper Tribunal decisions

A1490:

Court of law

A1492:

Rehabilitated offenders

The role of Assessment Providers

Exchange of medical reports

A1590:

Consent and medical evidence

A1595:

Appeals

Areas where information gathering and decision making functions
must always be undertaken by separate members of staff ............. Appendix 1

Chapter A1: Principles of decision making and Evidence

Contents

A1001:

Who decides claims and applications

A1002:

A1010:

Making decisions

A1015:

When decisions become valid

A1030:

What decisions are made by DMs

A1040:

Other decisions and determinations

A1045:

Reference to HM Revenue and Customs

A1050:

Credits

A1051:

Credits awarded by HM Revenue and Customs

A1052:

Credits awarded by DWP

A1060:

Determinations on incomplete evidence

A1064:

JSA determinations

Referring a claimant for a medical examination/consultation
Reference by the DM

A1080:

PIP

A1081:

Reference by First-tier Tribunal

Limited capability for work and limited capability for work

A1082:

related activity

A1084:

Meaning of health care professional (ESA and UC)

A1085:

Meaning of medical practitioner

A1086:

Meaning of Health Professional (PIP)

A1087:

Failure to attend for medical examination/consultation

A1091:

Has the appointment been cancelled

A1092:

Good cause (ESA)

A1093:

Good reason (PIP & UC)

A1100:

Outcome decisions

A1105:

First-tier Tribunals and outcome decisions

A1111:

How is the decision recorded

A1113:

Defective decisions

A1116:

How is the decision notified

A1118:

When is the decision notified

A1119:

Failure to notify the decision

A1120:

Explanation

A1130:

Request for written statement of reasons

A1150:

Finality

A1152:

Changing a First-tier Tribunal's decision

A1160:

Claim or award disallowed

A1170:

Revision following backdating request

A1180:

Finality of determinations

A1200:

General principles of common law

Estoppel (personal bar in Scotland)

European Convention on Human Rights

A1261:

Human Rights Act 1998

Evidence

Responsibility for collecting evidence

A1330:

Evidence from HM Revenue and Customs

A1332:

Further Information Sharing Provisions

A1340:

Standard of proof - balance of probability

A1350:

Failure to provide evidence

A1372:

Treated as not having LCW

A1380:

Corroboration of evidence

A1390:

Contradictory evidence

A1391:

Self-contradictory evidence

A1392:

Inherently improbable evidence

A1400:

Claimant's own evidence

A1405:

Burden of proof

Evidence in certain situations

A1420:

Destruction of documents

A1430:

Evidence of Departmental procedures

A1431:

Evidence of a decision

A1440:

Evidence given in confidence

A1450:

Appeals: Address of partner from whom claimant is separated

Decisions given by other courts

A1474:

Appellate authorities

A1475:

Upper Tribunal decisions

A1490:

Court of law

A1492:

Rehabilitated offenders

The role of Assessment Providers

Exchange of medical reports

A1590:

Consent and medical evidence

A1595:

Appeals

Areas where information gathering and decision making functions
must always be undertaken by separate members of staff ............. Appendix 1

Chapter A1: Principles of Decision Making and Evidence

A1001 Introduction « A1300

This chapter is about applying the principles of decision making and evidence in
relation to
1. UC
2. PIP
3. new style JSA (hereafter referred to as JSA)
4. new style ESA (hereafter referred to as ESA).
Note
1: ADM Chapter M1 contains guidance on the meaning of new style JSA and
new style ESA.
Note
2: Guidance on decision making and evidence for benefits not listed above is
in DMG Chapter 01.
Note
3: The guidance comes into effect (1) from 8.4.13 for PIP and from 29.4.13 for
UC, JSA and ESA.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 1(2) & 1(3)

A1002 Who decides claims and applications

Decisions on claims and applications are made by the Secretary of State. In practice
the Secretary of State does not make decisions personally. Instead, under the
Carltona principle officials act on the Secretary of State's behalf, provided that he is
satisfied that they are suitably trained and experienced to do so. Throughout this
guide these officials are called decision makers (DMs).
Note: Application means an application for a revision or supersession.

A1003

The Carltona principle dates from a judgment of the Court of Appeal in October
19431. The judgment said that the Secretary of State could not possibly make every
decision for which he is constitutionally responsible and accountable to Parliament.
The Secretary of State is therefore entitled to authorise a person of suitable authority
to exercise these functions on his behalf.

1 Carltona Ltd v. Commissioners of Works and others

A1004

The Secretary of State provides training and approved guidance to DMs on how to
make decisions on his behalf. The ADM itself is one such form of guidance, advising
DMs how to apply SS law. DMs should note that approved guidance must be
followed when applying the law to the facts of the case. However, DMs may request
advice from DMA Leeds on the application or clarification of the ADM in cases of
doubt.
Note: See A1460 for guidance about legal advice as evidence.

A1005

The DM takes all necessary actions on behalf of the Secretary of State, including
1. gathering
information :
2.making decisions on claims and applications :
3.dealing with administrative matters such as suspension of payment.
Note: The DM is not an independent officer.

A1006

Although a DM may undertake all these functions, in some circumstances it may be
appropriate to divide functions between different members of staff. However, there
are some areas in which functions must always be undertaken separately for
business and/or system security. See Appendix 1 for details.

A1007

The DM must make a decision by considering all the evidence and applying the law,
including any relevant case law, to the facts of each case. Where the legislation
specifies or implies discretion, the DM's judgement must be reasonable and made
with unbiased discretion.

[A1008-A1009]

A1010 Making decisions

Generally, each decision must be given on the facts as they exist at the date of the
decision and not in anticipation of a future state of facts (1). But there are variations
and exceptions, for example where entitlement begins after the date of the claim.
Entitlement can be established from a date after the date of the claim under :
1.the advance claim provisions (2) or :
2.the principle that the DM must consider the claimant's circumstances down to
the date on which the claim is decided.
Note: See ADM Chapter A2 for further guidance on deciding claims.

1 R(G) 2/53; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 32 - 34

A1011

A decision may be revised or superseded for past periods when facts relating to the
period were not known at the time. For further guidance on revision and
supersession, see ADM Chapters A3 and A4.

Example

Following an investigation, a JSA claimant is found to have been outside GB over a
year ago for a period of one month. The effect of this is that there is no entitlement to
JSA for that one month period. The decision awarding JSA is superseded to disallow
JSA for the period outside GB only. Entitlement after the period outside GB is
unaffected.

A1012

A fact is either a relevant circumstance or an occurrence which :
1.exists at the time the decision is given and :
2.is known, accepted or proved to be true.

A1013

The DM may use the help of an expert in cases where a question of fact needs
special expertise (1). An expert is a person who appears to the DM to have knowledge
or experience in determining a particular question of fact (2).
1 SS Act 98, s 11(2); 2 s 11(3)

Example

Norman claims PIP. A report is obtained from a HP. The DM then considers all the
evidence to decide whether Norman is entitled to PIP.

A1014

If the decision is found later to be inaccurate it can be altered by
1. revision (1) :
2.supersession (2) :
3.appeal (3).
1 SS Act 98, s 9; 2 s 10; 3 s 12

A1015 When decisions become valid « A1119

A decision is valid as soon as it is properly recorded by the DM. If a decision is not
acted upon or not communicated to the relevant parties, this does not invalidate the
decision (1). However a decision is not fully effective unless, and until it is notified (2). See A1116 - A1118 for guidance on how and when decisions are notified and for failure
to notify the decision see A1119.
1 R(P) 1/85; 2 R(U) 7/81; R (Anufrijeva) v Secretary of State for the Home Department & Another [2003]
UK HL 36

[A1016-A1029]

A1030 What decisions are made by DMs

The DM :
1.decides any claim for a relevant benefit :
2.makes contribution decisions on credits (see A1050) :
3.makes any decision that is made under, or by virtue of, a relevant enactment
(see A1031).
These decisions are called outcome decisions. It is important that DMs distinguish
between outcome decisions and other decisions and determinations. This is
because only outcome decisions carry the right of appeal to the FtT (1). See A1100

A1102 « A1101

for further guidance on outcome decisions.

1 R(IB) 2/04

A1031 « A1030

A relevant enactment (1) is any enactment in :
1.the JS Act 95 :
2.Part 1 of the WR Act 07 :
3.Part 1 of the WR Act 12 :
4.Part 4 of the WR Act 12
1 SS Act 98, s 8(4); SS Act 98; SS A Act 92

[A1032-A1039]

A1040 Other decisions and determinations

There are other decisions made by DMs which are not outcome decisions. These
are :
1.the decisions in ADM Annex E, which are generally determinations made as
part of an outcome decision :
2.determinations or findings of fact.

A1041

Determinations and findings of fact are not outcome decisions, but part of the
process which goes towards making the outcome decision (1). The DM should ensure
that a determination is not notified as an outcome decision with appeal rights. Such a
decision would be defective, and may be set aside as invalid on appeal to the FtT (2).
1 R(IB) 2/04; 2 R(IS) 13/05

Example

Sandy claims UC as a single person. It is later established that she is living with a
partner who is in full time work. The DM determines that they are LTAHAW. As a
consequence of this determination the award of UC is terminated. Any subsequent
appeal would be against the decision to terminate the award of UC and not the
LTAHAW determination.

A1042

The DM can not make a decision on issues in respect of NI Contributions, SSP,
SMP, statutory adoption pay or statutory paternity pay which are decided by HMRC (1)
(see ADM Annex C).
1 SSC (ToF) Act 99, s 8(1)

[A1043-A1044]

A1045 Reference to HM Revenue and Customs

Entitlement to ESA and JSA depends on the contribution conditions being satisfied.
In practice the NI contribution record is usually obtained and any decision is based
on the assumption that the record is factually correct. However, where there is a
dispute about the record, the matter must be referred by the Secretary of State to
HMRC for a formal decision (1). See ADM Chapters A3, A4 and A5 for guidance on
how decisions and appeals are handled after a reference to HMRC.
Note: See A1050 - A1053 where the dispute is about whether credits should be
awarded.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42 - 43

A1046

The Secretary of State remains responsible for deciding whether the contribution
conditions are satisfied in relation to ESA and JSA including
1. the earnings factor derived from them
2. which are the relevant income tax years
3. the years in which the contributions must have been paid or credited
4. the commencement of a PLCW
5. the start of the relevant benefit year.

[A1047]

A1048

DMs should note that appeals against decisions about contributions matters made
by HMRC are heard by the FtT (Tax Chamber)1.

1 SSC (ToF) Act 99, s 11; R(IB) 1/09

[A1049]

A1050 Credits « A1030 « A1045

The Secretary of State remains responsible for deciding credits questions (1). In
practice some credits decisions are taken on the Secretary of State's behalf by
HMRC (2).
1 SS Act 98, Sch 3, paras 16 & 17; 2 SSC (ToF) Act 99, s 17

A1051 Credits awarded by HM Revenue and Customs

HMRC considers whether to award credits for
1. SSP
2. SMP
3. Statutory adoption pay
4. jury service
5. periods of wrongful imprisonment or detention in legal custody
6. auto credits for
6.1
16-18 year olds
6.2
men aged 60-65
7. approved training where not awarded by DWP
8. Gulf crisis credits.

A1052 Credits awarded by DWP

DWP considers whether to award credits for
1. LCW
2. unemployment
3. approved
training.
For further guidance on awarding credits, see The Credit Title Guide.

A1053 « A1045

Where :
1.a claim is disallowed because the contributions conditions are not satisfied
and :
2.the claimant alleges that they should be awarded credits for a past period
the DM should decide the credits issue before dealing with the dispute about the
contributions conditions. This may mean referring the credits claim to HMRC for a
decision where appropriate.

Example

A claim for ESA is disallowed because the claimant failed the second contribution
condition in one of the relevant years. In that year the claimant had been awarded 48
unemployment credits through two awards of JSA. In the remaining period he had
been on holiday. The claimant argues that he should be awarded credits for the
missing weeks. The DM awards two unemployment credits, and revises the ESA
disallowance to award benefit.

[A1054-A1059]

A1060 Determinations on incomplete evidence

The DM can make assumptions about certain matters where the evidence required
to make a determination for the purposes of an outcome decision is incomplete (1).
This enables an outcome decision to be made without waiting for information. A
further determination can be made and the decision revised or superseded as
appropriate when the evidence is received. See ADM Chapters A3 and A4 for
guidance on revision and supersession.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 39

[A1061-A1063]

A1064 JSA determinations

Where a determination falls to be made on whether a person is treated as receiving
relevant education (1) and there is not enough evidence to make that determination the
DM makes the determination on the basis that the missing evidence is adverse to
the claimant (2).
1 JSA Regs 13, reg 45; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 39(3)

[A1065-A1079]

Referring a claimant for a medical examination/consultation
Reference by the DM

A1080 PIP

Before making a decision on a claim for, or entitlement to PIP the claimant may be
referred to a HP approved by the Secretary of State for a consultation (1). The referral
can be made at the initial, revision or supersession stage of a claim. The HP will
decide which form the consultation will take (face to face, telephone, paper based or
fast track for the terminally ill). See ADM Chapter P2.
Note: Telephone consultations are likely to be used to gather information and it is
unlikely for an assessment to be conducted on the basis of a telephone consultation
only.
1 WR Act 12, s 80(4); SS (PIP) Regs, reg 8 & 9

A1081 Reference by First-tier Tribunal

The FtT may refer a claimant for a medical consultation or assessment where
information is needed to determine an appeal (1) and an issue raised by the appeal (2)
1. is whether the claimant satisfies the disability conditions for PIP (3) :
2.relates to the period for which the disability conditions for PIP is likely to be
satisfied :
3.is the rate of an award of PIP
1 SS Act 98, s 20(2); 2 TP (FtT) (SEC) Rules, rule 25; 3 WR Act 12, s 78 & 79

A1082 Limited capability for work and limited capability for work-related activity

Where a DM is determining LCW or LCWRA whether on a claim for benefit or
credits, the claimant can be referred for an examination (1) by a HCP approved by the
Secretary of State.

1 ESA Regs 13, reg 19 & 35; UC Regs, reg 44

[A1083]

A1084 Meaning of health care professional (ESA and UC)

A HCP is (1) :
1.a registered medical practitioner or :
2.a registered nurse or :
3.a registered occupational therapist or physiotherapist (2)
1 UC Regs, reg 2; ESA Regs 13, reg 2; 2 Health Act 99, s 60

A1085 Meaning of medical practitioner

A medical practitioner is defined in the UK as a registered medical practitioner. This
definition includes a person outside the UK who has the equivalent qualifications as
those of a registered medical practitioner (1).
1 SS A Act 92, s 191

A1086 Meaning of Health Professional (PIP)

A Health Professional has to be approved by the Secretary of State (1). There is no
definition of what type of Health Professional may be approved (2). Examples of a
Health Professional are
1. Occupational therapist :
2.Nurse (Level 1)
3. Physiotherapist
4. Doctor
5. Paramedic.
1 WR Act 12, s 80(4)(c); 2 PIP Regs, reg 9(5)

A1087 Failure to attend for a medical examination/consultation

In PIP cases if the claimant fails, without good reason, to attend or submit to a
consultation (1) the DM will make a "negative determination". If good reason is shown
the claimant will be referred for another consultation. In ESA or UC cases where an
LCW or LCWRA determination is required, and the person fails, without good cause
(ESA) or good reason (UC), to attend or submit to a medical examination, the DM
should follow the guidance in ADM Chapters F5 and V. See also A1092.

1 WR Act 12, s 80(5); PIP Regs, reg 9

A1088

Generally, in the case of :
1.a claim, the DM should disallow :
2.an application for revision, the DM should notify that the decision is not
revised (see ADM Chapter A3) :
3.an application for supersession, the DM should make a decision not to
supersede (see ADM Chapter A4).
Note:
When the DM makes a "negative determination" in PIP cases then the claim
will be disallowed. In cases where the claimant is in receipt of an award of PIP and a
"negative determination" is made the award will be superseded to terminate
entitlement.

A1089

There may be some cases where it is not appropriate to give a decision as in ADM.
This is where the DM was able to award benefit on the existing evidence, and the
examination was required in order to establish whether a higher rate of benefit
should be awarded. This does not apply to PIP.

[A1090]

A1091 Has the appointment been cancelled

Claimants cannot fail to attend the medical examination/consultation if the
appointment has already been cancelled (1). The DM should investigate any
indications that the claimant had made contact with the issuing office before the time
of the examination. This is so that they can satisfy themselves that the appointment
has been left open for the claimant.
1 R(IB) 1/01

A1092 Good cause (ESA) « A1087

Good cause is not defined in legislation but a number of UT Judges' decisions deal
with it. It includes any facts which would probably have caused a reasonable person
to act as the claimant acted (1), for example
1. the claimant's health at the time
2. the nature of the claimant's illness
3. the information that the claimant received
4. whether the claimant was outside GB at the time
5. whether there was any postal delay. Note: See DMG Chapter 02. 1 R(SB) 6/83

A1093 Good reason (PIP & UC)

See ADM Chapters P2 and G1 for guidance on good reason for PIP and UC.

A1094

For details on how to obtain and weigh up the medical evidence see A1520 - A1599.

[A1095-A1099]

A1100 Outcome decisions « A1030

The most important issue for a claimant who makes
1. a claim or
2. an application for
2.1
revision or
2.2 supersession
is the outcome of that claim or application. For a claim, the claimant wants to know
whether the claim has been successful, and if so, how much benefit will be paid and
from when. See Chapters A3 & A4 for guidance on revision and supersession.

A1101

The decision on a claim or application is called an outcome decision because it tells
the claimant the outcome of the claim. An outcome decision incorporates all
subsidiary determinations such as the separate elements of entitlement to benefit
and the day that benefit will be paid. A1102
The claimant has a right of appeal against outcome decisions only (1) as listed in ADM
Annex D. An outcome decision on a claim, for example, is whether or not the
claimant is entitled to benefit. As part of the process of making that decision, the DM
makes determinations or findings of fact which lead to the outcome. These
determinations generally do not have the right of appeal - see Annex E2. Although an
appeal is against the outcome decision, in practice the claimant may wish to focus
on a component part of the decision. For further details on appeals see ADM
Chapter A5.
1 SS Act 98, s 12 & Sch 3; 2 s 12 & Sch 2

Example 1

A woman is receiving UC and has three children. Following investigation, the DM
determines that she has been LTAHAW with the father of her children since before
the date of claim. The awarding decision is revised for ignorance of a material fact.
The outcome decision is that she is not entitled to UC from the date of claim as her
partner works F/T. The claimant has the right of appeal against that decision,
although the issue under appeal is the question of LTAHAW.

Example 2

A man who works P/T makes a claim for JSA. The DM makes determinations about
treatment of earnings and availability. The outcome decision is that he is entitled to
JSA.

[A1103-A1104]

A1105 First-tier Tribunals and outcome decisions « A1152

The FtT is not required to substitute an outcome decision for the decision under
appeal (1). The power enabling them to deal only with the issues raised by the appeal (2)
does not have the effect that they have to make a decision on every issue if there is
a more appropriate way of dealing with those issues. Where the FtT decides the
issue but does not give a new outcome decision, the case is sent back to the DM.
See ADM Chapter A5 for more details about the FtT and outcome decisions.

1 R(IS) 2/08; 2 SS Act 98, s 12(8)(a)

A1106 « A1152

If the case is remitted to the DM, a new outcome decision should be made
incorporating the FtT decision. The FtT decision is binding on the DM, subject to
supersession or appeal. See ADM Chapters A4 and A5 for further guidance.

[A1107-A1110]

A1111 How is the decision recorded « A1113 « A1434

In most cases the decision is recorded on the Department's computer system.
However, where a decision is revised or superseded, departmental procedures may
require that it is recorded clerically, e.g. on form LT 54. A revision or supersession must
1. identify the person to whom it relates
2. identify the decision it is changing
3. specify whether it is revising or superseding an earlier decision and
4. specify the grounds or authority for doing so.
Example - ESA
In a case where the claimant is in receipt of ESA and has previously passed the
WCA, and on a further WCA fails to satisfy the test, the record of the decision
should say
"I have superseded the decision dated ...[date] awarding ESA/credits. This is
because the Secretary of State has received medical evidence following an
examination by a HCP approved by the Secretary of State, since that decision was
given.
...[The claimant] does not score 15 points or an aggregate score of 15 points where
both physical and mental health descriptors apply. The work capability assessment
is not satisfied.
As a result, [the claimant] does not have limited capability for work and is not entitled
to employment and support allowance/credits from and including ... [date]."

A1112 « A1434

Where more than one decision needs changing on revision or replacing on
supersession, each decision should be identified where possible. This is particularly
important in overpayment cases.

A1113 Defective decisions

Where a decision following revision or supersession is appealed, it is the formal
record of the decision which will be considered by the FtT. Failure to set out the
basis for the decision in the record may result in the FtT declaring it to be
1. defective
or
2. unidentifiable as a revised or superseded decision.
DMs should ensure that this is not necessary by following the guidance in A1111.

A1114

In most cases the FtT should perfect or correct such decisions (1). However, where it is
not possible to identify whether the decision under appeal is a superseded or revised
decision, the FtT may conclude that it is not possible to remedy any defects, for
example because there is no effective date, or the decision is in reality a
determination of fact. In such cases the DM may need to make a decision which
complies with the requirements for revision or supersession as appropriate (2). This
may have the effect that the decision takes effect from a later date in cases where
the effective date is the date of the decision. There may also be an impact on any
overpayment decision.

1 R(IB) 2/04; 2 R(IS) 13/05

[A1115]

A1116 How is the decision notified « A1015

The written notification of an outcome decision is issued to the claimant either
clerically or by computer (1). The notification contains :
1.information which gives the effect of the decision such as whether there is
entitlement to benefit and where appropriate the amount payable and when it
is payable from and
2. a statement to the effect that there is a right of appeal only if the Secretary of
State has considered an application for revision (2) - see ADM Chapter A3 :
3.information regarding the time limits for making an application for
reconsideration (3).
Where the claimant has the right of appeal following consideration of an application
for revision then the claimant must be given written notice of the decision and the
right of appeal (4).

1 SS Act 98, s 2(1)(a); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 7(1)(b); 3 reg 7(3) (a); 4 reg 51(2)(a)

A1117 « A1130 « A1131

The information about revision and appeal rights invites the claimant to ask for an
explanation of the decision - see A1120 - A1124. The claimant is also advised that a
written statement of reasons can be requested if no reasons for the decision were
given in the notification (1) - see A1130 - A1135.
Note: PIP notifications do not advise about a statement of reasons as the
notifications contains sufficient information to be treated as such.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 51(2)(b) & reg 7(3)

A1118 When is the decision notified « A1015

A decision is notified :
1.when it is handed to the claimant or appointee or :
2.on the day it is sent by post to the person's last known address (1).
Where a decision is posted, DMs should bear in mind that the notification may not
leave the office on the day that it is produced (2). A decision may also be sent by
means of an electronic communication (3). The time and date of receipt is that
recorded on an official computer system (4).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 3(2); Inte Act 78, s 7; 2 R(IB) 1/00; 3 UC, PIP, JSA & ESA (C&P) Regs,
Sch 2, para 1; UC, PIP, JSA & ESA (D&A) Regs, reg 4; 4 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 5(3)

A1119 Failure to notify the decision « A1015

A decision is not effective unless and until it is notified - see A1015. This can lead to
disputes about whether the time for revision or appeal has expired, or whether the
condition for making an overpayment decision is satisfied. It is therefore important to
ensure that evidence is available to show that a decision has been notified. Evidence
of notice can be a clerical or computer record (1).
1 R(CS) 4/07

A1120 Explanation « A1117

Where :
1.a claimant or their representative queries a decision by
1.1 asking for it to be explained or
1.2 requesting a written statement of reasons or
1.3 making an application for revision or supersession or
1.4 making an appeal and :
2.the decision is not changed by revision or supersession
the DM or another suitably trained officer should offer the claimant or representative
an informal explanation of the decision. The claimant or representative should be
contacted by telephone if possible, unless they have specifically requested a
response in writing.

A1121

The purpose of the explanation is to help the claimant understand the decision, and
to clarify any areas of dispute in the event of an application for revision or appeal.
Note: Although an explanation is preferable, it is not a compulsory step in the
revision or appeal process.

A1122

The explanation must
1. be
personalised :
2.be given in a manner that is clear, understandable and effective :
3.explain why the decision was made :
4.explain the effects of the law on the facts :
5.deal with any further points the claimant or representative may make :
6.ensure that the claimant understands the decision even if they do not agree
with it :
7.ensure that the revision and appeal process including time limits is explained.

A1123

If the claimant :
1.cannot be contacted or
2. does not want an explanation or
3. is not satisfied with the explanation
the action which prompted the offer of an explanation should be continued in the
normal way. For applications for revision, see ADM Chapter A3.

A1124 « A1117

Where
1. the explanation followed an application for revision or an appeal and
2. the claimant accepts the explanation
they should be asked whether they wish the application or appeal to go ahead. See
ADM Chapter A5 for guidance on withdrawing an appeal.

[A1125-A1129]

A1130 Request for written statement of reasons « A1117 « A1133 « A1134

Where an outcome decision is notified without a statement of the reasons for the
decision, the claimant has one month from the day following the date of notification
to ask for the written statement (1). Claimants can ask for a written statement of
reasons, for example by asking for an explanation of a decision, either orally, by
telephone or in person at an appropriate office, or in writing. They do not have to
use the specific words "request for a written statement of reasons". Where the
application is made orally, the Department must keep a record of the conversation.
The DM must supply the statement within 14 days of receiving the request or as
soon as practicable afterwards (2). See ADM Chapters A3 and A5 for guidance on
extending the revision and appeal period where a written statement is requested.
This does not apply to PIP - see A1117.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(3)(b) & 51(2)(b); 2 reg 7(4) & 51(3)

A1131

A written statement of reasons should
1. be personalised
2. give an explanation of why the decision was made
3. provide details of the law used to make the decision, and how it was applied
4. give information about the extended time limit for revision and appeal.
The DM should note when the statement is issued in order to calculate time limits for
revision and appeal where appropriate.
Note: This does not apply to PIP - see A1117.

A1132

Where a decision is revised, the claimant can request a written statement of reasons
for the decision in its revised form, even if a statement was provided for the original
decision. This is because there is a right of appeal against a decision as revised.
Rights to request a written statement of reasons should always be notified when a
decision has the right of appeal.

A1133

Where a decision is not revised, there is no right to request a statement of reasons
for the refusal to revise, as this is not a decision with a right of appeal. The rights to
request a statement or appeal the original decision still exist subject to time limits.
See A1130 and ADM Chapter A5 for guidance on time limits. See also ADM Chapter
A3 for guidance on mandatory reconsideration and the effect on appeal rights when
the claimant makes a late application.

A1134

Where the request for a written statement of reasons is made outside the one month
period in A1130, the statement should still be issued so that the claimant can
understand why the decision was made. However, the claimant should be advised
that the time for applying for revision, or for an appeal, is not extended.

A1135 « A1117

In exceptional circumstances a further written statement can be provided, for
example where the claimant requires further clarification of the decision.

[A1136-A1149]

A1150 Finality « A1151 « A1212

A decision made by a DM, the FtT or the UT is final (1) unless it is
1. revised (decisions of DMs only)
2. superseded
3. terminated after an award has been suspended
4. changed or replaced on appeal
5. corrected
or
6. set aside (decisions of the FtT or the UT only).
Note: See A1180 - A1181 for guidance on finality of determinations.

1 SS Act 98, s 17(1)

A1151 « A1212

Where a decision is changed or replaced as in A1150, the new or revised decision
becomes the final decision on the claim, even where it does not change the
outcome (1). But see A1152 - A1153 where an outcome decision is not replaced on
appeal.
1 R(I) 9/63

A1152 Changing a First-tier Tribunal's decision « A1151

Where the FtT
1. allows an appeal on the issue or issues raised
2. does not give an outcome decision
3. remits the case to the DM
the DM must follow the FtT's decision when dealing with the matters referred back
for subsequent decision. See A1105 - A1106 for further guidance.

A1153 « A1151

The FtT's decision on the issues it has dealt with is final unless
1. there are grounds to supersede the decision (see ADM Chapter A4) or
2. the DM considers it is erroneous in law and applies for permission to appeal
(see ADM Chapter A5)1.
1 SS Act 98, s 17(1)

[A1154-A1159]

A1160 Claim or award disallowed

Where a claim is disallowed or an award is disallowed following supersession, a
later claim for the same period cannot be determined. The DM should give a
decision on the later claim from the date following the disallowance.

Example

A decision awarding ESA which is superseded and disallowed on 21 July from and
including 9 July is effective down to 21 July. Entitlement can only be considered from
22 July if a claim is then made for any period before 22 July.

A1161

Where a disallowance is given by a DM, the claim is disallowed for the period from
the first date covered by the claim to the date of the decision. However, where the
disallowance is confirmed on appeal to the FtT or the UT, the period of the
disallowance is not extended up to the date of the FtT's decision. This is because
the FtT cannot take account of any changes after the date of the DM's decision (1).
1 SS Act 98, s 12(8)(b)

[A1162-A1169]

A1170 Revision following backdating request

The DM should also consider whether a request for backdating, in a case where an
award is made following termination of an earlier award for the same benefit, should
be treated as an application for revision of the decision which ended that award. This
applies where the claimant in the backdating request argues that :
1.the decision ending the previous award was incorrect or :
2.the new claim should be backdated to the day following the last day of the
previous award.

[A1171-A1179]

A1180 Finality of determinations « A1150 « A1212

Normally, determinations embodied within an outcome decision are not conclusive
for the purposes of a further claim for the same benefit (1).
1 SS Act 98, s 17(2)

Example

Following a change of address, a claimant is found to be LTAHAW with a partner
who is in F/T work. Her award of UC is superseded on a relevant change of
circumstances. The DM also decides that the overpayment is recoverable due to the
claimant's failure to disclose. On an appeal against the overpayment decision, the
DM's findings on LTAHAW in the supersession decision is not binding on the FtT.
The finding is also not conclusive on a further claim for UC.
A1181 - A1199

A1200 General principles of common law

The DM must make a decision taking account of common law principles and
European law. The common law principles are
1. definitions of words and phrases
2. relevant law
3. estoppel (personal bar in Scotland) and res judicata
4. natural justice.

A1201 Definitions

The DM can find definitions of words and phrases
1. within the Acts
2. at the beginning of each set of regulations
3. in case law (the UT, Court of Appeal, Supreme Court and the ECJ)
4. in the Interpretation Act 1978.
The DM may use a dictionary if none of these sources contains a definition (1).

1 R(SB) 28/84

A1202

Headings and side notes can be helpful in understanding a provision as can the
explanatory memorandum attached to a SI. These are not part of the legislation but
are permissible aids to construction (1) which can be used to aid understanding.
1 R v. Montila & Ors

[A1203-A1204]

A1205 Relevant law

When a DM is determining a claim or application, the relevant law is the law applying
at the time the claim or application is made. Where there is a change in a particular
legal provision so that it
1. ceases to have effect or
2. begins to take effect
during the period of a claim or application, the DM should apply the change in the
law only from the date of the change (1) unless the legislation has retrospective effect
or there are specific transitional provisions.
1 R(I) 4/84

A1206 Uprating

Legislation provides for benefit rates to be altered in accordance with the Uprating
Order without the need for the DM to supersede the previous awarding decision (1).
1 SS A Act 92, s 155(3); s 159A(3); s 159C(2) & 159D(2)

[A1207-A1209]

A1210 Estoppel (personal bar in Scotland)

In general law the doctrine of estoppel, known in Scotland as personal bar, has the
effect of blocking or preventing a person from alleging or proving in later
proceedings, matters which have already been decided in earlier proceedings (1).
When this doctrine is applied by DMs it is called res judicata (see A1212 - A1213).

1 R(I) 9/63

A1211

The doctrine of estoppel does not apply where the claimant :
1.on the advice or a promise given by the Secretary of State, has formed a view
about future benefit rights and :
2.has taken a particular course of action.
The DM must decide the matter solely on the basis of the relevant legislation, even
though the decision may be contrary to the original advice or promise (1).
1 R(P) 1/80, R(SB) 8/83 & R(SB) 4/91 Appendix

Example

A claimant in receipt of UC is considering extending his mortgage. He rings his local
Jobcentre Plus office and is told that the new mortgage would be met as part of his
housing costs. He takes out the new mortgage. The DM decides that the loan is not
eligible for housing costs. Estoppel does not apply, because the DM is not bound by
the advice given by another person in the Department.

A1212 Res judicata « A1210

Res judicata prevents a judicial authority from deciding a matter that has already
been decided by a person of similar status. This principle is given effect for DMs by
a provision in legislation (1) and is also known as the principle of finality (see A1150 to
A1151).
Note: This does not apply to most determinations and findings of fact - see A1180 to
A1181.

1 SS Act 98, s 17

A1213 « A1210

Once a DM has made a decision, a further decision cannot be given on the period of
that claim, or the outcome of an application for revision or supersession, except
where the later decision is given by way of
1. revision or
2. supersession or
3. appeal (1).
1 R(S) 1/83(T), R(SB) 4/85

[A1214-A1219]

A1220 Natural justice

There is a common law requirement that DMs should observe the rules of natural
justice. The rules are not prescribed collectively but they represent the manner in
which justice is expected to be achieved. An unbiased approach is needed,
reflecting the principle that impartiality is at the heart of the judicial process.

[A1221-A1259]

A1260 European Convention on Human Rights

The ECHR is a treaty of the Council of Europe. The Convention contains Articles
which guarantee a number of basic human rights. In addition, Protocols have been
signed which are to be regarded as additional articles to the Convention. The main
Convention Rights are set out in ADM Annex G.
Note: Please see ADM Chapters C1 to C4 for guidance on EC law.

A1261 Human Rights Act 1998

The Human Rights Act 1998 which gives effect in the UK to the rights and freedoms
guaranteed under the European Convention on Human Rights came into force
2.10.00.

A1262

Public authorities, including courts and both the FtT and the UT are under a duty to
act compatibly with the Convention rights and all legislation must be read compatibly
with the Convention rights as far as it is possible to do so. Also, courts and both the
FtT and the UT should have regard to the jurisprudence of the EctHR and decisions
and opinions of the Commission and Committee of Ministers.

A1263

DMs applying the normal principles of decision making, which are
1. natural justice
2. consideration of evidence
3. standard of proof and
4. application of relevant law
should not find themselves in breach of Article 6 of the Convention. This is because
they are already expected to determine questions without bias or discrimination and
within a reasonable timescale.

A1264

For further guidance on appeals to the FtT and the UT involving human rights, see
ADM Chapter A5.

[A1265-A1299]

Evidence

A1300 Introduction

The guidance in the following paragraphs sets out the general principles which the
DM should follow regardless of the benefit or business area involved. See A1001 for
details of the authorisation of suitable people to exercise the function of DM on
behalf of the Secretary of State.

A1301

The DM should approach the determination of claims and applications objectively by
always :
1.considering the evidence :
2.from that evidence, establishing the facts of the case :
3.applying the law to those facts.

A1302

Proper consideration and careful recording of evidence when making and recording
decisions are essential. It is particularly important that telephone conversations and
interviews are accurately recorded. This approach assists DMs dealing with disputes
and may avoid appeals. It also helps in any subsequent appeal proceedings.

A1303

The provision of sufficient information or evidence to establish the NINO is a specific
requirement for certain benefits. For details see ADM Chapter A2.

[A1304-A1309]

A1310 Types of evidence

DMs, like any other statutory authority, must base all decisions on evidence. There
are three types of evidence
1. direct
- for example, a statement by an employer regarding work
2. indirect
- for example, a statement by someone who did not see the claimant
working but saw them leaving and arriving home everyday wearing work clothes
3. hearsay - for example, a statement by someone recording what they were
told about the claimant's work.

A1311

Each type of evidence may be either
1. documentary - for example, certificates or wage slips
2. oral - for example, a statement given verbally (such as in a telephone call)
3. real - something tangible, for example, a wage packet with the money in it.

A1312

The DM can use all three types of evidence. Some carry more weight than others (1).
The weight given should be carefully judged in the circumstances of the particular
case. As a general rule, direct evidence is more significant than indirect or hearsay
evidence. Also, the closer in time to the event the DM obtains and considers the
evidence, the more helpful it is likely to be.

1 R(I) 4/65

A1313

There may be situations where the DM has "secondary" evidence as opposed to
"primary" evidence, for example where an ESA medical report refers to a video
recording which is unavailable or no longer exists. The lack of the primary evidence
does not mean that the secondary evidence is not admissible, and appropriate
weight should be given to it.

Example

Joanne, in receipt of enhanced rate mobility and standard rate daily living
components of PIP, was videotaped by private investigators in a personal injury
claim. The tapes were shown to her consultant and he wrote a report, part of which
said "It is clear that she is able to walk and would be able to perform the majority of
tasks associated with daily living". The decision awarding PIP was superseded and
the award terminated. Through various delays, by the time the claimant's appeal is
heard by the FtT, the video is no longer available but the report is. The claimant
argues that without the tape (primary evidence) the secondary evidence should not
be relied upon to end the award of PIP. The FtT has to have regard to all the
evidence before it, including the report, and has to weigh all such evidence and
reach a conclusion.

[A1314-A1319]

A1320 Responsibility for collecting evidence

Evidence on which the DM decides the claim is collected on behalf of the Secretary
of State. In some cases this person will also be the DM. Evidence can be collected
by telephone, letter or interview. Where evidence is collected by letter, a copy of a
letter asking specific questions should always be kept with the reply. Where
evidence is collected by telephone, the questions asked should be recorded along
with the replies. See A1451 et seq in fraud cases. Documentary evidence carries the
most weight and is preferred.

A1321

The circumstances in which statements are obtained - that is, voluntarily or during
an interview under caution - can be important. Where the circumstances are not
clear, an explanation should be attached to the statement.

[A1322-A1329]

A1330 Evidence from HM Revenue and Customs

Any information held by HMRC for the purposes of
1. contributions functions
or
2. SSP
or
3. SMP
may (or on request by an officer authorised by the Secretary of State must) be given
to an officer of the DWP where the information is required for SS purposes (1). This
enables the DM to obtain information about matters such as contribution records and
employed earners employment.

1 SS A Act 92, s 121E

A1331

In the same way information held by the DWP for SS purposes may be given to
HMRC where necessary for their functions.
1 SS A Act 92, s 121F

A1332 Further Information Sharing Provisions « A1333

LAs may provide information to the Secretary of State of the type set out in A1333 in
relation to UC (1).

1 WR Act 12, s 130(7)(a)

A1333 « A1332

The information referred to in A1332 is (1)
1. whether a resident is meeting in full the cost of the provision to them of
residential care and if so the date this started and the period over which the
cost is intended to be met
2. whether the LA is funding or has funded in full or in part the cost of the
provision to a resident of residential care and if so
2.1 the date from which the funding started and the period covered or
intended to be covered by it
2.2 the date the funding stopped or is intended to stop
2.3 the enactment under which the funding is being or was provided
2.4 whether there exists any agreement enabling the LA to recover the cost
of the funding on the sale of the resident's home and if so, whether that
recovery has commenced or when it is intended to commence
2.5 whether the LA has entered into a deferred payment agreement with
the resident and if so the date this started and the period the agreement
is intended to cover
Note:
This also includes information about when the provision of the service begins
or ends or is likely to do so.

1 The Social Security (Information-sharing in relation to Welfare Services etc) Regulation 2012, reg 3

A1334

The Secretary of State may provide information to an LA or an authority which
administers HB (or their service providers or persons exercising functions on their
behalf) for (1)
1. determining a person's eligibility or continued eligibility for a disabled person's badge
2. determining whether to make to any person a disability adaptation grant, a
disabled facilities grant or a discretionary housing payment and if so the
amount of that grant or payment :
3.determining whether a person applying for housing support services, the
provision of domiciliary care or the provision of residential care is liable to
contribute towards the cost of the service and if so the amount :
4.identifying households eligible for support under the troubled families
programme and providing appropriate types of advice, support and assistance
to members of such households under that programme
Note: 4.4 applies to LAs in England
1 The Social Security (Information-sharing in relation to Welfare Services etc) Regulation 2012, reg 5

[A1335-A1339]

A1340 Standard of proof - balance of probability « A1390

The DM must decide claims and applications on the balance of probability. This is
not the same as "beyond reasonable doubt", the standard test for proof in criminal
trials.

A1341

The balance of probability involves the DM deciding whether it is more likely than not
that an event occurred, or that an assertion is true (1). It does not mean that the
claimant can be given the benefit of the doubt (2). If the evidence is contradictory the
DM should decide whether there is enough evidence in favour of one conclusion or
the other to show which is the more likely. The DM may decide on the basis of
findings made on the balance of probability or may find that there is not enough
evidence to satisfy them about findings one way or the other.

1 R(I) 4/65; 2 R(I) 32/61

A1342

Alternatively the DM may find that there is insufficient evidence to establish the facts
one way or the other and ask for more evidence (1). Claimants must supply all
information and evidence required in connection with the decision (2). The DM should
do as much as possible to see that all the necessary evidence is brought to light.
1 R v. Secretary of State ex parte CPAG [1990] QB (54)0; 2 UC, PIP, JSA & ESA (C&P) Regs,
reg 37- 38, JSA Regs 13, regs 31 - 32

[A1343-A1349]

A1350 Failure to provide evidence

If the claimant fails to provide the requested evidence or information a penalty may
be imposed e.g. for failure to sign a declaration in claims for JSA.

A1351

Evidence requirements for JSA are in benefit specific guidance.

A1352

When making a decision, the DM should decide the importance of the failure and
any reasons given for not providing evidence, as this could cast doubt on the facts
previously provided. See A1405 for guidance on the burden of proof.

Example 1

A UC claimant states that there is no capital or income from the sale of her
business, because the money from the sale was used to clear the business debts.
The DM asks for evidence of the transaction. The claimant is unable to produce any.
The transfer of the business was within the family. The DM is entitled to take the
view that it is more likely that the claimant has not disposed of the assets of the
business.

Example 2

A jobseeker states he left his employment because of a grievance with the
employer, but on being asked to provide more details, does not reply. The DM can
impose a sanction because the jobseeker has not proved good reason for leaving
his employment voluntarily.

Example 3

A PIP claimant completes the claim form but does not return the claimant
questionnaire ("How Your Disability Affects You"). Despite a reminder the form is
never returned. The DM makes a negative determination and disallows the claim for
PIP.

[A1353-A1371]

A1372 Treated as not having LCW

Where the claimant has not replied to enquiries requesting evidence of LCW (1), there
are special rules to treat a person as capable of work. They apply if the claimant fails
without good cause to
1. return the questionnaire for the WCA (2)
2. attend or submit to a medical examination (3).
See ADM Chapters F5 and V.
1 ESA Regs 13, reg 33; UC Regs, reg 43; 2 ESA Regs 13, reg 34; UC Regs, reg 43(3);

3 ESA Regs 13, reg 35; UC Regs, reg 44

A1373

See ADM Chapters F1 and V where a claimant fails to provide medical evidence.

[A1374-A1379]

A1380 Corroboration of evidence « P6004

There is no rule of law that corroboration of the claimant's own evidence is
necessary 1. But the DM should not accept evidence, from the claimant or anyone
else, uncritically. It needs to be weighed carefully, in the light of the circumstances of
the case.
1 R(I) 2/51; R(SB) 33/85

Example

A man claims UC. He states he has capital of £20,000. The DM therefore decides
that he is not entitled to UC. Four weeks later the man makes another claim for UC.
He states that he has spent all of his capital, but he cannot produce evidence of any
expenditure. The DM decides that the man still has capital of £20,000 and that he is
not entitled to UC.

[A1381-A1389]

A1390 Contradictory evidence

If the evidence is contradictory, the DM should :
1.try to resolve the discrepancy or :
2.decide that there are sufficient grounds to decide the point on balance of
probability - see A1340 et seq.

A1391 Self-contradictory evidence

The claimant's own evidence may include statements which conflict with each other.
These mutually contradictory statements usually need explaining.

Example

An ESA claimant suffering from low back pain fails to attend for a medical
examination. He states that he is unable to travel to the medical centre by public
transport due to his disability and cannot afford taxi fares. When asked how he
manages for shopping etc he replies that he needs very little because he takes the
bus to his parent's house each day and they provide his meals. The distance
between the claimant's house and his parent's is similar to that between his house
and the medical centre. The DM decides that the claimant's reason for not attending
the medical is not enough on its own to excuse the failure.

A1392 Inherently improbable evidence

The DM may decide that a claimant's statement is inherently improbable. This is
where it is very unlikely that what has been asserted can be true.

Example

Following an investigation, the DM finds that a UC claimant has been receiving
£1,000 a month occupational pension and disallows the award of UC. The claimant
states that he had no idea that this money had been credited to his bank account.
The DM decides that this is inherently improbable, and that the overpayment is
recoverable.

A1393

In some cases the DM may decide that uncorroborated evidence (that is, evidence
not supported by any other evidence) cannot be accepted because it is self-
contradictory or improbable. Such evidence may contradict itself, or other evidence
before the DM, or the DM may consider that it is unlikely to be true. In such cases
the DM may request further evidence. If none is available the DM should decide the
claim on the evidence provided already.

[A1394-A1399]

A1400 Claimant's own evidence

A claimant's statement, whether oral or in writing, is evidence. It is often the best
evidence and sometimes the only evidence available, even after enquiries. In such a
case, the DM must decide whether the claimant has discharged the burden of proof.
See A1405 et seq.

Example 1

A claimant was overpaid JSA for several years because an increase in the hourly
rate for his P/T work was not taken into account. During the investigation he stated
that he had declared the increase at an interview at the Jobcentre Plus office. He
said he remembered the conversation in detail, including the fact that the interviewer
said that she would write down the details and make sure that the increased income
was taken into account. The claimant could not remember any other details of the
interview or completing the claim form which stated that his P/T earnings had
increased. The DM decided that the statement was unlikely to be true. This view was
reached after considering the claimant's selective memory of events and was
reinforced because he had not disclosed recent changes in his hours and income.
The DM decides that the claimant has not discharged the burden of proof.

Example 2

A woman declared maintenance payments at the beginning of her UC claim and
regularly reported changes. During an investigation it is found that an increase in
these payments has not been taken into account for three months. There is no
record of disclosure of the increase. The claimant states that she declared the
additional income in a letter in which she also reported that her son had left the
household. The letter cannot be found but the award had been adjusted to remove
the child element around the date of the alleged letter. The DM decides that, on the
balance of probability, the claimant had reported the change in income and it had
been overlooked in dealing with the family circumstances.

A1401

The DM should look at each statement made by the claimant and assess it on its
merits. A statement may occasionally be so extraordinary that it casts doubt on the
credibility of the person and any other statements they have made. The DM should
be careful in assessing these matters on written evidence alone. It may be
necessary to interview the claimant to get clarification or further information.

A1402

If it is clear from the case papers that a claimant has previously made statements
which have proved to be incorrect, the DM is entitled to regard evidence provided by
that claimant critically, regardless of whether these statements were genuine errors
or attempts to mislead.

[A1403-A1404]

A1405 Burden of proof « A1352 « A1400

A clear understanding of where the burden of proof lies helps the DM to weigh the
evidence and decide whether further evidence should be sought. DMs should note
that :
1.initially the burden lies with the claimant to prove that the conditions for a
claim are satisfied (1) but they should do as much as possible to ensure that the
claimant has every opportunity to provide all relevant evidence :
2.where they wish to show that an exception to a condition of entitlement is not
satisfied, the burden of proof rests with them (2) :
3.there is no presumption in favour of the claimant
4. where an allegation is denied by the claimant it is generally for DMs to prove
the facts :
5.the burden of proving that the conditions for revision or supersession are
satisfied lies with the person who applies for revision or supersession :
6.in overpayment cases the burden of proof for the purposes of determining the
sum to be recovered falls on them (3) (see ADM Chapter B3 )
7. where a criminal court convicts a person of an offence related to obtaining or
receiving benefit, that conviction shifts the burden of proof relating to the same
benefit and period at issue from them to the claimant (4).
Note: Where 5. applies the question of whether the conditions for revision or
supersession are satisfied must be considered separately from the question of
whether the decision should be revised or superseded.
1 R (SB) 2/83(T); 2 Department for Social Development v Kerr [2004] UKHL 23;
3 SS A Act 92, s 71; R (SB) 34/83; 4 R(S) 2/80

[A1406-A1419]

Evidence in certain situations

A1420 Destruction of documents

The Department destroys documents in order to meet the obligations of the Data
Protection Act. No one can make any presumptions about what evidence the
documents might have contained (1). This means that claimants cannot say that the
destroyed documents must have supported their case. This principle does not apply
if the claimant can prove that the documents were disposed of with the sole intention
of destroying evidence.

1 R(IS) 11/92

A1421

The DM should take account of any available evidence and make a decision on the
balance of probabilities. Where it is impossible to reconstruct the document the DM
should not assume any fact but decide the question on the basis of any other
evidence.

A1422

The DM must consider the burden of proof when looking at evidence. This can rest
with either the claimant or the DM.

[A1423-A1429]

A1430 Evidence of Departmental procedures

Where a case relies on systems of work or Departmental forms no longer available,
the DM should
1. get evidence of the system of work or
2. explain why the original form is not available.
The DM could then decide on the balance of probabilities whether the procedures
were properly followed.

Example

An overpayment of PIP has been identified. The DM is looking at recoverability.
Benefit is paid to the claimant by direct payment. The DM knows the benefit cannot
be paid by direct payment unless the claimant signs a declaration of understanding
and agreement that overpayments may be recovered (1).
The DM decides that the prescribed conditions for recoverability are satisfied even
though the original document has been destroyed under normal destruction
procedures.
1 SS (POR) Regs, reg 11(2)(b)

A1431 Evidence of a decision

It may be necessary for the Secretary of State to produce evidence of a decision of a
DM, for the purpose of an appeal for example. If so, the evidence of the decision
should contain a certificate signed on behalf of the Secretary of State stating that the
document is such a record. The certificate must be signed by an officer specifically
authorised to do so (1).

1 SS Act 98, s 39ZA

A1432 « A1433

A certificate should not be produced where there is no evidence that a decision was
made or recorded, or that the decision was different from that provided in any
explanation or recorded in a response to the FtT.

A1433

Where A1432 applies, the DM should not use the certification process to construct a
record of what ought to have been decided. DMs should be aware that it is a false
statement which could lead to criminal sanctions (1).

1 Perjury Act 1911, s 5

A1434

Where the decision was made electronically, the DM should :
1.produce a computer printout showing the decision history and :
2.provide an explanation of codes used in the computer record.
See A1111 - A1112 for guidance on recording decisions.

[A1435-A1439]

A1440 Evidence given in confidence

If evidence raises any question of confidentiality, the matter must be resolved before
it is put to the DM. If any confidential evidence is disclosed to the DM, that evidence
must be disclosed to the FtT. However, the FtT may make an order prohibiting the
disclosure or publication of confidential evidence (1).

1 TP (FtT) (SEC) Rules, rule 14

A1441

All evidence available to the DM should be available to the FtT (1) and disclosed to the
claimant or representative (2) except medical evidence that is harmful to the claimant's
health.

1 TP (FtT) (SEC) Rules, rule 24(4)(b); 2 R(S) 1/58

A1442

All information obtained in the course of deciding a claim is confidential between the
claimant and the statutory authorities. It follows that personal details of one
claimant should not be put to the DM as evidence for the claim of another
claimant. An exception would arise if a claimant alleges to have responsibility for a
child or children included on another person's claim.

A1443

Information given in confidence from a third party, such as
1. social workers or
2. doctors or
3. letters containing allegations where the writer has not given written permission
for the contents to be disclosed or
4. verbal allegations where permission has not been given should not be
available to the DM when making the decision.

A1444

All information obtained in the course of deciding a claim should be regarded as
confidential.

A1445

All the evidence that is put to the DM must be put to the FtT if a claimant appeals.
This includes confidential evidence. See ADM Chapter A5 for details.

[A1446-A1449]

A1450 Appeals: Address of partner from whom claimant is separated

Where a document shows any details which could lead to the location of the
claimant being discovered by the other party, these details must not be made known
to the FtT if the separated partner has asked for their whereabouts not to be
divulged. If this information is not to be released the DM should :
1.prepare a note to the Presenting Officer to explain the omission to the FtT
and
2. make sure that all copies of the document have the information blanked out.

A1451 Fraud « A1320

To ensure that DMs act independently and fairly officers involved in fraud work do
not make decisions with regard to payment of, or entitlement to, benefit. Cases of
suspected fraud which need a decision must be referred to an officer who is not a
fraud specialist. See Appendix 1.

A1452

Full-time fraud specialists temporarily engaged on other duties and staff who are
employed part-time on fraud work may make decisions while they are carrying out
duties unrelated to fraud work. They must not give a decision on any case :
1.which is the subject of current fraud action or :
2.in which they have been engaged in investigating fraud.

[A1453-A1459]

A1460 Advice on the law « A1004

Advice on the interpretation and application of law in an individual case, for example
from DWP Legal Services or DMA Leeds, should not be disclosed to the claimant,
the claimant's representative or the FtT. This type of information is covered by legal
professional privilege, and as such there is no obligation to disclose it in legal
proceedings. There is no obligation to supply the advice where there is a request to
disclose it under the Data Protection Act 19981. However, if a request to disclose is
made under the Freedom of Information Act 20002 the information may be
disclosable if it is in the public interest to do so.
1 Data Protection Act 98, Sch 7, para 10; 2 Freedom of Information Act 2000, ss 2 and 42

[A1461-A1469]

A1470 Decisions given by other courts

In making decisions, DMs should take account of
1. their own independent conclusions and
2. decisions of appellate authorities including reported UT decisions.

A1471

The DM is bound by decisions of the appellate authorities (see A1474) on questions
which are identical to those they have to decide.

[A1472-A1473]

A1474 Appellate Authorities « A1471

The appellate authorities are
1. the
UT
and :
2.the higher courts.

A1475 Upper Tribunal decisions

Reported decisions are those of general importance. They :
1.deal with points of construction on statutes and regulations :
2.add to the consistent and orderly development of the law :
3.have the agreement of at least the majority of the UT judges :
4.often deal with important questions of interpretation of provisions in the Acts
and regulations :
5.have been selected for reporting by the editorial board of the UT.

A1476

Reported decisions are now numbered using neutral citation, - see Annex K - an
example of which is KS v Secretary of State for Work and Pensions (JSA) [2009]
UKUT 122 (AAC); [2010] AACR 3. To explain the composition of the citation, it is
broken down below into its component parts
1. KS v Secretary of State for Work and Pensions (JSA) refers to the parties to
the appeal and the benefit involved;
2. [2009] UKUT 122 (AAC) refers to the year the decision was made, United
Kingdom Upper Tribunal and the neutral citation number; i.e. the consecutive
number of the case within the year's series and the name of the chamber
making the decision, in this case The Administrative Appeals Chamber; :
3.[2010] AACR 3 refers to the year the decision was reported, the name of the
publication it is reported in and the consecutive reporting number within that
year's series.

A1477

At the head of each reported decision is printed :
1.a brief note of the facts of the particular case and :
2.the substance of the decision.
This headnote is not part of the decision and carries no authority. A guide to reported
decisions can be found in Reported Decisions Digest/Neligan (1). Annex L contains an
explanation of the previous reported decision serial numbers and the benefits to
which they relate.

1 Neligan - Social Security Case Law, Digest of Commissioners' Decisions

A1478

Copies of all reported decisions are held by
1. the President of the TS
2. TS regional offices.
DMs in all offices of the DWP should have access to all reported decisions.

A1479

Reported decisions have the support of the majority of the UT and contain points of
general importance about the interpretation of the law. Both reported and unreported
decisions are sources on the interpretation of legislation. The DM should rely
primarily on reported decisions. Many unreported decisions do not deal with matters
of general importance and are specific only to the facts of a particular case.

A1480

Great care is needed before using an unreported decision as the basis for general
application in similar cases. If decisions of the UT conflict, then a reported decision
has more weight than an unreported one (1). A decision of the UT consisting of 2 or 3
Judges should be preferred to that of a single UT Judge (2). Where a claimant or a
representative produces a decision without warning at a tribunal, the presenting
officer can seek an adjournment so that a copy of the decision can be obtained and
made available to all parties.
1 R(IS) 9/08; 2 R(I) 12/75

[A1481-A1489]

A1490 Court of law

The conviction of a claimant in a court of law for falsely obtaining benefit should not
be ignored and should have a bearing on the case relating to benefit (1). When a
prosecution has taken place the DM should try to obtain
1. all the evidence that was available for the criminal proceedings and
2. evidence of the conviction itself
before giving a decision on benefit, or revising a decision which has already been
given.

1 R(S) 2/80

A1491

The initial responsibility of showing that the conviction relates to the benefit and
period at issue rests on the DM. A conviction for an offence relating to the same
benefit and period at issue before the decision making authorities has the effect, on
reconsideration, of shifting the burden of proof on to the claimant who has been
convicted. The claimant must show, on the balance of probability, that there is
entitlement to the benefit at issue.

A1492 Rehabilitated offenders

It is a criminal offence for anyone whose official duties involve access to official
records to disclose information about spent convictions of rehabilitated offenders
other than in the course of those duties (1). See A1493 et seq.

1 ROO Act 74, s 9

A1493 « A1492

An offender who has been sentenced on conviction to
1. a term of imprisonment or
2. detention in legal custody
of not more than 2½ years can be rehabilitated by avoiding re-conviction for a
serious offence within a specified period beginning with the date of conviction (1).

1 ROO Act 74, s 1 & s 5

A1494

When an offender has completed the rehabilitation, the conviction becomes spent
and evidence relating to it is only admissible in proceedings before a judicial
authority (1). DMs are judicial authorities within the meaning of the Act (2).

1 ROO Act 74, s 7(3); 2 s 4(6)

A1495

The DM should only consider evidence relating to spent convictions when that
evidence is essential to the determination of the claim. The DM is then acting within
official duties for the purposes of the Act.

[A1496-A1499]

A1500 Employment tribunals

Decisions of FtTs are not binding on Employment Tribunals or vice versa. Although
the issues before the tribunals have much in common, they are not identical (1). The
DM should consider any relevant evidence given to an Employment Tribunal, but
does not have to take the same view of its credibility or draw the same inferences.
1 R(U) 2/74; R(U) 4/78

[A1501-A1509]

A1510 Coroner's court

A Commissioner declined to follow the decision of a Coroner's jury, declaring that it
was the duty of Commissioners to determine the probabilities, having regard to the
evidence before them (1). DMs have the same duty.
1 R(I) 25/60

[A1511-A1519]

A1520 Medical evidence « A1094

In general, medical evidence should be treated in the same way as any other
evidence. Medical training is not required, but there are additional considerations for
DMs.

A1521

Medical evidence is often given as a medical opinion and is not conclusive. See
ADM Chapter A4.

A1522

The DM is entitled to reject an opinion (1) where there is direct or circumstantial
evidence which raises a strong inference against the opinion. Where doctors or
HCPs or Health Professionals (PIP) disagree, the DM has to decide, on the balance
of probabilities, which of the contrasting opinions is more likely to be correct. The
view of the claimant's own doctor is not conclusive (2).

1 R(S) 4/60; 2 R(S) 4/56

A1523

Where a decision hinges on a medical issue the DM must seek advice from Medical
Services or the Health Professional if they have any doubt about
1. whether the evidence is sufficient to make a decision, or
2. how it should be interpreted.

A1524

It should be remembered that the onus is on the claimant to provide evidence in
support of their claim. The DM may consider that additional evidence will help
Medical Services give better advice. If this can be obtained quickly, either from the
claimant or elsewhere, it should be requested. However, if the information is then
delayed, the claim form should be sent to Medical Services who should be told that
further evidence has been sought but not received. It will be for Medical Services to
decide how then to proceed. For PIP evidence gathering is the responsibility of the
Health Professional. On receipt of the Health Professional's assessment the DM
may, in consultation with the Health Professional discuss the need for further
evidence.

A1525

The DM may refer any question of special difficulty to one or more experts for
examination or report (1). An expert in this context may include, for example,
1. a registered medical practitioner
2. a physiotherapist
3. a nurse.
Examination includes a physical examination if the claimant agrees (2). Referral to an
expert may be made through Medical Services. See benefit specific guidance for
more details.
Note: For PIP it will fall to the Health Professional to determine what, if any, further
evidence is required.

1 SS Act 98, s 11(2) & s 19; 2 R(I) 14/51

A1526

The DM should decide the claim in the light of all the evidence including the HCP or
HP's report.

A1527

For PIP the assessor reports are advice following a consultation and are not
considered "medical".

[A1528-A1539]

The Role of Assessment Providers

A1540 PIP

Following an initial claim for PIP, the claimant will complete a claimant questionnaire
("how your disability affects you"). This will ask for details about their ability to carry
out the daily living and mobility activities. This will be sent to the Assessment
Provider. The Assessment Provider is a Health Professional who will undertake the
consultation.

A1541

The Health Professional will decide what additional evidence, if any, is required.
Prior to the Health Professional giving an opinion the claimant will, in the majority of
cases, be called for face to face consultation. The subsequent report will be sent to
the DM. Where the DM is not content with the assessment report the DM will
discuss with the DWP advisor who will liaise with the appropriate Health Professional
to resolve the matter.

[A1542-A1550]

A1551 ESA and credits

To be entitled to ESA a claimant must have LCW (1). Claimants who are not treated as
having LCW have to answer a questionnaire. The questionnaire is designed for the
claimant to give as much information as possible about their condition and how it
affects them in their daily functioning and how they manage their condition. Medical
Services are responsible for gathering the information required. This includes
sending the questionnaire.

1 WR Act 07, s 1(3)(a)

A1552

Medical Services will also provide an independent medical opinion on the claimant's
condition, functionality and their ability to perform activities related to work. They do
not provide a diagnostic examination.

A1553

The questionnaire and the medical opinion are referred to the DM to consider
whether the claimant has LCW. See ADM Chapter F5 for full guidance.

A1554 UC

UC claimants can receive (1) an LCW or an LCWRA element if they have, or can be
treated as having LCW or LCWRA. See Chapter F1.
1 UC Regs, reg 39(1), 27(1)(a), reg 40(1)(a), reg 27(1)(b)

[A1555-A1569]

A1570 Exchange of medical reports

A claimant may argue that a medical report produced for another benefit should be
used to decide a claim or dispute. The DM should, if possible, obtain a copy of the
report and take it into account when making the decision.

A1571

The same applies when a DM is sent a medical report by another officer of the
Department. For example, an officer dealing with a claim for ESA may be sent
medical reports obtained for the purpose of a compensation recovery case.

A1572

DMs should bear in mind that medical reports are produced in order to determine
whether the person satisfies the conditions of entitlement for a particular benefit and
that some of the findings might not be relevant to another benefit. If reports appear
to conflict, DMs must take into account the level of expertise of the HCPs
concerned. For example, a HP is specially trained to assess disability in the context
of a claim for PIP and their evidence may therefore be preferable to that of another
HCP when deciding a claim for that benefit. DMs should consult Medical Services or
the Health Professional if they have difficulty interpreting the medical advice.

A1573

The DM also needs to be aware of other factors which may affect the weight to be
given to the report as evidence. For example, where a WCA report is used as
evidence to disallow an award of ESA or credits, and the decision is overturned on
appeal, the WCA report may not be a useful source of evidence when deciding a
claim for PIP.
Note: For the purposes of PIP medical reports are referred to as "assessment
reports".

[A1574-A1589]

A1590 Consent and medical evidence

Claims for ESA and PIP which include consent to collect medical evidence include
consent to the information being made available to the decision making authorities.
The whole report should be disclosed to the claimant or representative unless A1591
applies.

A1591 « A1590

Medical evidence should not be disclosed to the person to whom it relates if
disclosure would be harmful to the health of that person. If a report from a GP or
consultant is signed to indicate that no information need be withheld, the report can
be disclosed on request as normal. In PIP cases the Health Provider will indicate on
the report that the assessment does not contain harmful information. Where the GP
states that information in the report is harmful, the DM should consider whether it
should be disclosed, asking Medical Services for advice in cases of doubt. In PIP
cases a form is completed where the report contains harmful information that is not
to be copied to the claimant. The DM should take account of the evidence where it is
relevant.

A1592

Where the DM considers that disclosure of medical evidence would be harmful, the
evidence should not be disclosed to anyone acting for the person concerned unless
the DM is satisfied that it is in the interest of the person to do so. If the evidence is
disclosed it should be on the understanding that it will not be disclosed to the person
to whom it relates.

[A1593-A1594]

A1595 Appeals

Where :
1.medical evidence used to make a decision is considered by the DM to be
potentially harmful and :
2.an appeal is made against the decision
the appeals officer should prepare two sets of documents including the response.

A1596

The first set should have all evidence including that considered to be potentially
harmful medical evidence, with a form explaining what evidence is considered to be
potentially harmful medical evidence and why. The form will ask the FtT for a ruling
on disclosure (1).

1 TP (FtT) (SEC) Rules, rule 14

A1597

The other set should have the potentially harmful medical evidence obliterated. The
response should not be sent to the appellant.

A1598

On receipt of the FtT's ruling, the clerk will :
1.send the appropriate response as directed together with the pre-hearing form
to the appellant and representative and :
2.send a copy of the ruling to the Department.

A1599 « A1094

The Department's file should be noted to ensure that the ruling is followed in any
contact with the appellant or representative. The appropriate response should be
issued to the presenting officer if there is to be one.

[A1600-A1999]

Appendix 1
Areas where information gathering and decision making functions must always be undertaken by separate members of staff
1. Allocation of NI numbers
2. Determinations about LTAHAW and LTACP
3. Fraud investigation
4. Instrument of payment replacement
5. Dealing with claims and applications from relatives.

Chapter A2: Claims

Contents

A2001:

National insurance credits

A2002:

A2003:

Definitions used in this chapter

Making a claim

A2019:

General requirement to make a claim

A2021:

Considering the claimant's entitlement down to the date of decision

A2024:

Staying a decision

A2025:

Circumstances where a claim for UC is not required

A2027:

Circumstances where a claim for ESA is not required

A2028:

Making a claim for UC

A2032:

Claims to UC by members of a couple

A2041:

Date of claim for UC

A2043:

Time limit for claiming UC

A2048:

Advance claims to UC - Prisoners...

A2050:

Making a claim for PIP

A2055:

Date of claim for PIP

A2060:

Time limit for claiming PIP

A2061:

Advance awards of PIP

A2062:

Advance claims to PIP

Making a claim for ESA

A2065:

Claims to ESA by telephone

A2069:

Claims to ESA in writing

A2073:

Claims to ESA where there is no entitlement to SSP

A2075:

MA claimed before confinement

A2077:

MA claimed after confinement

A2079:

Time limit for claiming ESA

A2080:

Advance claims to ESA

Making a claim to JSA

A2081:

Attendance at an appropriate office

A2085:

Making a claim to JSA in writing

A2089:

Makiing a claim for JSA by telephone

A2095:

Advance claims to JSA

A2096:

Time limits for claiming JSA

A2097:

Extending the time for claiming JSA by 3 months

A2099:

Extending the time limit for claiming JSA by 1 month

A2102:

Interchange with claims for other benefits

A2107:

After a claim has been disallowed as defective

A2108:

No trace of claim

A2110:

Amendment of claims

A2111:

Withdrawal of claims

A2112:

Evidence and Information in connection with a claim

A2118:

Evidence and information in connection with an award

A2126:

Alternative means of notifying changes of circumstances

A2127:

Information provided to rent officers

A2130:

Evidence and information required from pension fund holders

A2134:

Attendance in person

A2135:

Duration of award

Claims to JSA made during periods connected with public holidays . A2137

A2138:

Appointees

A2140:

Power of attorney

A2143:

Deputies / Guardians

A2145:

Claims at Death

A2146:

Requirement to attend for consultation

A2147:

Provision of NINOs

A2152:

NINO Exemptions

Appendix 1 - Use of Electronic Communications
Appendix 2 - Claims for JSA during periods connected with public holidays

Chapter A2: Claims

A2001 Introduction

This chapter is about decision making on claims for
1. UC
2. PIP
3. new style JSA (hereafter referred to as JSA)
4. new style ESA (hereafter referred to as ESA).
Note
1: ADM Chapter M1 contains guidance on the meaning of new style JSA and
new style ESA.
Note
2: Guidance on claims for benefits not listed above is in DMG Chapter 02.
Note
3: The guidance comes into effect (1) from 8.4.13 for PIP and from 29.4.13 for
UC, JSA and ESA.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 1(2) & 1(3)

A2002 National insurance credits

DWP is responsible for making decisions on NI credits. Because the method of
claiming or applying for them is not the same as it is for benefits, information about
them is contained in the relevant operational guides.

A2003 Definitions used in this chapter

"Appropriate
Office"
means (1)
1. an office of DWP or
2. any other place designated by the Secretary of State in relation to any case or
class of case as a place to, or at which, any claim, notice, document,
evidence or other information may be sent, delivered or received, including a
postal address specified for that purpose or
3. in the case of a person who is authorised or required to use an electronic
communication for any purpose, an address to which such communications
may be sent in accordance with prescribed regulations (2).
Note:
Where an individual office or address has been specified e.g. for PIP then this
is where correspondence must be sent.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 2; 2 Sch 2

A2004

"Assessment Period" means a period as defined in prescribed legislation (1) see ADM
Chapter C1.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 2; UC Regs, reg 21

A2005

"Benefit" means UC, PIP, ESA or JSA (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 2

[A2006-A2007]

A2008 "Claimant" means for
1. UC (1), a single claimant or each of joint claimants
2. PIP (2), a person who has made a claim or is entitled to PIP
3. JSA (3), a person who claims JSA
4. ESA (4), a person who has claimed ESA.

1WR Act 12, s 40;; 2 Part 4, PIP (Regs) 2013, reg 2; 3 JS Act 95, s 35(1); 4 WR Act 07, s 24(1)

A2009

[See memo ADM 04 14 [not found]] "Couple" means (1)
1. a man and woman who are married to each other and are members of the
same household
2. a man and woman who are not married to each other but are LTAHAW
3. two people of the same sex who are civil partners of each other and are
members of the same household or
4. two people of the same sex who are not civil partners of each other but are
living together as if they were civil partners
Note: For guidance on "living together" See ADM Chapter E4.

1 WR Act 12, s 39

A2010

"Earned
income"
means (1) remuneration or profits derived from
1. employment under a contract of service or in an office, including elective
office or
2. a trade, profession or vocation or
3. any other paid work or
4. any income treated as earned income under prescribed legislation (2).

1 UC Regs, reg 52 &2 Chapter 2

A2011

"Electronic
communications"
means (1) a communication transmitted (whether from
one person to another, from one device to another or from a person to a device or
vice versa) by
1. means of anelectronic communications network or
2. other means but while in an electronic form.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 2; Electronic Communications Act 2000, s 15(1)

A2012

A2013

"Partner" means one of a couple (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 2

A2014

A2016

A2017

"Writing" includes writing produced by means of an electronic communication (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 2 & Sch 2

A2018

Making a claim

A2019 General requirement to make a claim

In general, it is a condition of entitlement to benefit that a claim is made, or is treated
as made, in the time and manner specified for that benefit in the regulations (1). If this
condition is not satisfied there is no entitlement to benefit. It is not necessary for the
other conditions of entitlement to be considered. There are some instances when a
claim is not required for UC or ESA (2), see A2025 to A2027.

1 SS A Act 92, s 1(1); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 6, 7, 9(6) & 9(7)

A2020

A claim ceases to exist once it has been decided by the DM (1). If a claim is disallowed
the decision disallowing it cannot be superseded because of a change in
circumstances which occurred after the decision. A further claim may be made as a
result of the change of circumstances (2). Further details about the finality of decisions
are in ADM Chapter A1. Further details about supersession are in ADM Chapter A4.
1 SS Act 98, s 8(2)(a);2 s 8(2)(b)

A2021 Considering the claimant's entitlement down to the date of decision

A claim for a future period continues to run until it is decided by the DM (1). When
giving a decision on the claim, the DM must consider the claimant's entitlement for
each day in the period starting with the first day claimed for and ending with the date
of the DM's decision. This may mean that further information should be obtained
from the claimant to ensure that there has been no further change of circumstances
since the claim was made.

1 SS Act 98, s 8(2)(a)

A2022

If the claimant is entitled to benefit for any day in that period, benefit should be
awarded. This is so even if the claimant later ceased to be entitled. If the claimant is
entitled to benefit on the date of the DM's decision, a definite or indefinite period
award for the future should be made, as appropriate. For PIP awards are made for a
fixed term unless it is considered that a fixed term award is inappropriate.
A2023

A2024 Staying a decision

The DM has no power to leave a valid claim undecided but in some circumstances
the DM may stay making a decision. Staying means that the DM does not have to
make a decision (or may make a restricted decision) in cases which may be affected
by the outcome of an appeal to the courts in another case which has yet to be
decided (1). Further details about staying are in ADM Chapter A5.
1SS Act 98, s 25

A2025 Circumstances where a claim for UC is not required « A2019

[See ADM memo ADM 2 14] A claim for UC is not required (1) when
1. a decision is made as a result of a change of circumstances, whether as
originally made or revised, that the person is not entitled to UC in cases
where but for the receipt of earned income they would have continued to be
entitled to an amount of UC and
2. at the date of notification to an appropriate office of the change of
circumstances referred to in A2025 1. the person was in receipt of earned
income and
3. not more than 6 months have elapsed since the last day of entitlement to UC
and
4. the person provides such information as to their income at such times as may
be required and the DM is satisfied that the claimant has provided such
information as may be required to determine whether an award may be made
and if so the amount and
5. since the last day of entitlement to UC the person's circumstances have
changed such that, if the person were entitled to UC, the amount payable
would not be less than the minimum amount of UC under prescribed
legislation (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 6(1); 2 UC Regs, reg 17
Example 1
David's award of UC ends because his earnings increase. 4 months later his
earnings decrease so that a new award of UC can be made. No claim is required.
Example 2
Jackie's award of UC ended because a child for who she had responsibility left the
benefit unit. Jackie had income from employment at this time. Four months after her
award ended she notifies the department that the child has re-joined the benefit unit.
The new award of UC starts from the first day of the assessment period in which the
child re-joined the benefit unit. No new claim is required.

A2026

A claim for UC is also not required (1) where
1. a claim to UC has been made and a decision is made, whether as originally
made or revised, that they are not entitled to UC in cases where but for the
receipt of earned income they would have been entitled to an amount of UC
and
2. at the time the decision in A2026 1. was made the person was in receipt of
earned income and
3. not more than 6 months have elapsed since the date of the claim and
4. the person provides information as to their earned income at such times as
may be required and the DM is satisfied that the claimant has provided such
information as may be required to determine whether an award may be made
and if so the amount and
5. their circumstances change such that if they were entitled to UC the amount
payable would not be less than the minimum amount under prescribed
legislation (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 6(2); 2 UC Regs, reg 17

A2027 Circumstances when a claim for ESA is not required « A2019

A person may be entitled to ESA without having to make a claim (1) where
1. the claimant has made and is pursuing an appeal against a decision that
embodies a determination that they do not have LCW and
2. the appeal relates to a decision to terminate or not to award ESA for which a
claim was made.
Note:
If a pending appeal award made without a claim is terminated a claim is
required in order to establish further entitlement to ESA.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 7

A2028 Making a claim for UC

A claim may be made for UC by a single person or members of a couple jointly (1).
Unless A2030 applies, a claim for UC must be made by means of an electronic
communication as set out in Appendix 1 to this Chapter (2).

1 WR Act 12 s 2; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 8(1)

A2029

A claim for UC made electronically is defective if it is not completed in accordance
with any instructions of the Secretary of State (1).
Note: Notification to the claimant that a claim is defective will be in writing. This
includes electronic notification.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 8(3)

A2030 « A2028

A claim to UC may be made by telephone call to a telephone number specified by
the Secretary of State
1. if the claim falls within a class of case for which the Secretary of State
accepts telephone claims or
2. where in any other case the Secretary of State is willing to do so (1).
A claim so made is properly completed if all the information required to determine
the award is provided during the call and defective if not (2).
Note: Telephone claims will be accepted from claimants who do not have access to
or cannot use a computer.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 8(2); 2 reg 8(4)

A2031

If a defective claim to UC is made then the claimant must be informed of the
defect(s) and the effect on the date of claim (1). The claim is treated as properly made
in the first instance if in the case of
1. a telephone claim, the person corrects the defect or
2. an electronic claim, a claim completed in accordance with any instruction of
the Secretary of State is received in an appropriate office
within one month or such longer period as the Secretary of State may consider
reasonable from the date on which the claimant is first informed of the defect (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 8(5) & reg 10; 2 reg 8(6)

A2032 Claims to UC by members of a couple

Where a claimant is a member of a couple and may make a claim to UC as a single
person under prescribed legislation (1) but instead makes a claim for UC jointly then
that claim is to be treated as a claim made by that person as a single claimant (2).

1 UC Regs, reg 3(3); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 9(1)

A2033

A claim to UC made jointly by a member of a polygamous marriage who is not a
party to the earliest marriage in the polygamous marriage is to be treated as a claim
made by that member as a single person (1). This applies where the other party to the
polygamous marriage lives in the same household. A polygamous marriage is a
marriage where a party to it is married to more than one person and took place in a
country which permits polygamy (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(2); 2 reg 9(3)
Example 1
Abdul and Fatima make a joint claim to UC. Fatima is Abdul's second wife. Abdul's
first wife, Abida also lives in the same house. The claim to UC is treated as a claim
to UC by Fatima as a single person. In order to become entitled to UC Abdul has to
make a fresh claim to UC.

Example 2

Abdul and Fatima make a joint claim to UC. Fatima is Abdul's second wife. Abdul's
first wife, Abida lives in Pakistan. The claim to UC is a joint claim to UC for Abdul
and Fatima.

A2034

A claim made by members of a couple as single persons may be treated as a claim
made jointly by the couple where it is determined that they are a couple (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(4)

Example
Jackie and Colin both make claims to UC as single claimants. However, the DM
determines that they are a couple and treats the claims as a joint claim made to UC.

A2035

Where a DM considers that one member of a couple is unable to make a joint claim
with the other member of that couple, the other member of the couple may claim
jointly for both of them (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(5)
Example
David and Jane are members of a couple. Jane is currently undergoing a short spell
in hospital following surgery. The DM determines that Jane cannot make a joint
claim with David and so David claims jointly for both of them.

A2036 « A2039

Where an award of UC to joint claimants is terminated because they cease to be a
couple then no claim to UC is required by the member of the former couple who
1. does not notify that they have ceased to be a couple where the other former
member of the couple has already so notified or
2. is the second of them to notify that they have ceased to be a couple.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(6)
Example
Tom and Katie are entitled to UC as a couple. Their assessment period is the 3rd of
the month to the 2nd of the following month. They cease to be a couple on 27
November. Tom rings up to notify DWP of this on that date. The DM terminates the
award of UC from the first day of the assessment period in which this change occurs
- namely 3 November. Tom must make a new claim to UC as a single person. He
makes a claim by telephone and is awarded UC from 3 November (he will be
advised when he rings up about backdating so that he does not lose out financially).
Katie is awarded UC from 3 November as a single claimant. She does not have to
make a claim. Her award of UC is suspended until her circumstances are confirmed.

A2037 « A2039

Where awards of UC to single claimants are terminated because they form a couple
who are joint claimants, an award of UC may be made without the need for a claim (1).
The new assessment period can be nominated by the claimant or if they fail to
nominate one, the one which the DM determines (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(7); 2 UC Regs, reg 21(4)
Example
Dave, a single claimant, is in receipt of UC. His first assessment period started on 7
June. He becomes a member of a couple when he moves in with Poppy on 28
August. Poppy is also in receipt of UC. Her assessment period runs from the 14th of
the month. Dave's award of UC is terminated from 7 August. Poppy's award of UC
is terminated from 14 August. An award of UC is made to Dave and Poppy without
the need for a claim. The joint award takes effect from 7 August as this is the date
nominated by them (see ADM Chapter E2 regarding the date of nomination for the
start of the new award).

A2038

[See ADM memo ADM 2 14] A couple who are joint claimants are to be treated as
making a claim for UC where
1. one of them was entitled to UC as a single person and ceased to be entitled
on becoming a member of the couple and
2. that claimant formed the couple with another person who did not previously
have an award of UC as a single person before formation of the couple (1).
In these cases the claim is to be treated as made on the day after the person
mentioned at paragraph 1. ceased to be entitled to UC
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(8)
Example
Bertram is in receipt of UC. His assessment period runs from the 12th of each
month. He moves in with Clarice on 27 June and contacts the Department to say
that he is now part of a couple with Clarice. His award as a single claimant is
terminated. Clarice was not previously in receipt of UC. The DM treats this contact
as a claim for UC jointly between Bertram and Clarice. The date of the new joint
claim is 12 June. The assessment period for this claim still runs from 12 June to 11
July (1). The first payment of UC will be made at the end of this AP.

1 UC Regs, reg 21(3)

A2039

Where a claim is not required as described in A2036 and A2037 a claimant and
every person by whom or on whose behalf UC is receivable must furnish in such
manner and at such times as may be determined such information or evidence in
connection with the formation or dissolution of the couple (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 9(9)

A2040 « L3414

A claim to UC does not have to be made (1) by a single person in circumstances
where a joint award has ended because of the death of the other member of the
couple.In these cases the award of UC will continue as if the person had not died
for the assessment period in which the death occurs and the following two
assessment periods. An award of UC can be made to the single person at the end
of this period without the need for a claim.
1 UC, PIP, JSA & ESA (C&P) regs, reg 9(10); UC Regs, reg 37
Example
Patrick and Ann are awarded UC jointly. The first assessment period runs from 21
January. On 12 March Ann dies. Patrick continues to receive UC at the joint
claimant rate for the assessment periods starting 21 February, 21 March and 21
April. An award of UC to Patrick at the single claimant rate is made from 21 May
without the need for a claim.

A2041 Date of claim for UC

The date on which a claim for UC is made is
1. for a claim made electronically, the date on which the claim is received in an
appropriate office (1) or
2. for claims made electronically where the claimant receives assistance at
home or at an appropriate office (either from the Secretary of State or a
person providing services to the Secretary of State), the date of first
notification of a need for assistance (2) or
3. for a claim made by telephone, the date on which the claim is properly
completed (3) or
4. where the Secretary of State is unable to accept a telephone claim on the
date of first notification of intention to claim, the date of first notification,
provided a properly completed claim is made by telephone within one month
of that date (4) or
5. the first day in respect of which the claim is made, if later than 1, 2, 3 or 4
Note:
A claim for UC can only be made by telephone if it falls within a class of case
for which the Secretary of State accepts claims made in this way
1 UC, PIP, JSA & ESA (C&P) Regs, reg 10(1)(a); 2 reg 10(1)(b); 3 reg 10(1)(c); 4 reg 10(1)(d)
Example 1
Sanjay contacts his local Jobcentre Plus office on 1 June to say that because of
difficulties speaking English he requires assistance with making a claim to UC on-
line. Sanjay is invited into the office where he will receive assistance with making a
claim by a member of staff who speaks his language. Sanjay attends on the 10 June
and successfully makes his claim. The date of claim to UC is 1 June.
Example 2
James makes a claim to UC electronically on 1 March but does not provide
sufficient information about his capital to enable an award of UC to be made. The
claim is therefore defective. James is informed of the defect on 4 March and is told
that he must provide the missing information by 3 April. He provides the information
on the 16 March. The date of claim to UC is 1 March.
Example 3
Mick makes a claim to UC electronically on 1 April. The claim is defective because
he does not provide details of the number of shares he has in Barclays Bank. The
DM informs Mick of the defect on 5 April and gives him until 4 May to respond. Mick
contacts the Department to say that he will not be able to provide the information by
that date because Barclays cannot provide the information by then. The DM
considers this reasonable and allows Mick a further 3 weeks to provide the
information. Mick provides the information on 16 May. The date of claim for UC is 1
April.

A2042

In the case of a defective claim, the date of claim is the first date on which the
defective claim is received or made but is treated as properly made in the first
instance (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 10(2)

A2043 Time limit for claiming UC « L2151 « L3136

The prescribed time for claiming UC is the first day of the period in respect of which
the claim is made (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 26(1)

A2044 « A2045 « A2046

Where the claim to UC is not made within the time specified above then the time
limit for claiming it is to be extended, subject to a maximum of one month to the date
on which the claim is made, but only where
1. any one or more of the circumstances in A2045 below apply or has applied to
the claimant and
2. as a result of that circumstance or those circumstances the claimant could not
reasonably have been expected to claim earlier (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 26(2)

A2045 « A2044

The circumstances referred to in A2044 are that (1)
1. the claimant was previously in receipt of JSA or ESA and notification of expiry
of entitlement to that benefit was not sent to the claimant before the date that
entitlement expired or
2. the claimant has a disability or
3. the claimanthas supplied the Secretary of State with medical evidence that
satisfies the Secretary of State that the claimant had an illness that prevented
the claimant from making a claim or
4. the claimant was unable to make a claim electronically because the official
computer system was inoperative or
5. the claimant had an award of UC which was terminated because they are no
longer a member of a couple and made a new claim as a single person or
6. an award of UC is not made to members of a couple jointly because one of
the couple has not accepted a claimant commitment and
6.1
they cease to be a couple and
6.2
the person who did accept a claimant commitment makes a further
claim as a single person
7. an award of UC to joint claimants is terminated because one of the couple
has not accepted a claimant commitment and
7.1
they cease to be a couple and
7.2
the person who did accept a claimant commitment makes a further
claim as a single person
A2045 Note: 4. applies where DWP's system fails and not the failure of the
claimant's system.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 26(3)
Example 1
Jason makes a claim electronically to UC on 2 May. He indicates that he wishes to
claim from 6 April. He says that he delayed claiming UC as he was in receipt of ESA
until 5 April but was not informed that this was stopping until the 28 April. The DM
decides that the time limit for claiming UC can be extended as Jason could not have
been expected to claim earlier as he was away from home until 2 May. The date of
claim for UC is 6 April.
Example 2
Joanne makes a claim for UC electronically on 3 July. She wishes to claim UC from
20 June. She says that she was prevented from making a claim on the 20 June
because she could not access her on-line account due to system failure. The
system was restored on the 21 June but Joanne did not attempt to make a claim the
next day due to negligence. The date of claim to UC is 3 July.

A2046

Where a claim to UC is made by each of joint claimants then the prescribed time
limit for claiming as above cannot be extended unless both claimants satisfy the
criteria (1) as in A2044.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 26(4)

A2047

A2048 Advance claims to UC - Prisoners « A2049

Advance claims to UC may be made if a claimant does not satisfy the conditions of
entitlement on the date on which a claim is made but will satisfy them for a future
period. The DM must be of the opinion that unless there is a change of
circumstances the claimant will satisfy the conditions of entitlement on this future
date. The future period must begin on a day not more than a month after the date on
which the claim is made. The DM treats the claim as made for a period beginning
with the date from which entitlement will begin (1). Advance claims can only be made if
the person falls within a class of case for which the Secretary of State is willing to
accept them. This class of case is restricted to certain prisoners.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 32

A2049

If A2048 applies then UC can be awarded subject to the condition that the person
satisfies the requirements for entitlement on the first day of the period (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 32(3)

A2050 Making a claim for PIP

A
claim (1) for PIP must be made either
1. in writing on a form authorised by the Secretary of State for that purpose and
completed in accordance with the instructions on the form (this includes by
means of an electronic communication) or
2. by telephone call to the telephone number specified by the Secretary of State
or
3. by receipt by the claimant of a telephone call from the Secretary of State
made for the purpose of enabling a claim to be made.
Note:
The DM has discretion as to the manner in which a claim can be made.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 11(1)

A2051

In the case of a claim in writing the claim must be sent to or received at an
appropriate office (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 11(2)

A2052

A claim for PIP in writing is defective if it is not completed in accordance with any
instructions of the Secretary of State (1). A telephone claim is properly completed if all
the information is provided during the call to determine the award and is defective if
not so completed (2).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 11(3); 2 reg 11(4)

A2053 « A2057 « A2058

If the claim is defective the Secretary of State must
1. inform the claimant of the defect and of the effect on the date of claim (1) and
2. treat the claim as properly made in the first instance if a claim completed in
accordance with any instructions of the Secretary of State is received within
one month, or such longer period as the Secretary of State considers
reasonable, from the date on which the claimant is first informed of the
defect (2).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 11(5); 2 reg 11(6)

A2054 « A2058

Where
1. a claim for PIP is made (1) on behalf of a person who is said to be a person
unable for the time being to act and
2. the Secretary of State has decided not to appoint that person (2) to act on their behalf
then that claim must be treated as properly made in the first instance if a further
claim is made. That further claim must be received within one month, or such longer
period as may be considered reasonable, from the date of notification of the
decision not to appoint someone as an appointee.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 11(7) & (8); 2 reg 57
Example
A claim for PIP is made by Chris for his wife Rosie on 21 August by telephone. Chris
alleges that Rosie is unable to make the claim on her own behalf. Following a home
visit on 28 August the visiting officer decides not to appoint Chris to act on Rosie's
behalf as she is capable of managing her own affairs. The visiting officer tells Rosie
that if she makes a further claim by 27 September then the claim made on 21
August will be treated as properly made.

A2055 Date of claim for PIP « A2057

The date on which a claim for PIP is made is,
1. for claims (1) made in writing by means of an electronic communication, the date
on which the claim is received at an appropriate office or
2. for claims (2) made by telephone, the date on which a claim made by telephone
is properly completed or
3. where a person first notifies an intention to make a claim (3) and provided that a
claim made by writing (produced by means other than electronic
communications) is properly completed and received at an appropriate office
within 1 month or such longer period as is considered reasonable of first
notification, the date of first notification or
4. the first day in respect of which the claim is made if later than 1, 2 or 3.
Note: If the office is closed, for example at the weekend, and a claim is delivered by
hand (or a claim would have been delivered by post if arrangements had not been
made that the PO would not deliver mail) a different date of claim applies. In such
cases the date of claim is the date the claim is delivered by hand or would have
been delivered had the office not been closed (4).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 12(1)(a); 2 reg 12(1)(b); reg 12(1)(c); 4 R(SB) 8/89

A2056

If a telephone claim or claim in writing was defective and is then corrected within
one month or such longer period as is considered reasonable then the date of claim
is the date the defective claim was received or made (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 12(2)(a)

A2057

The date of claim is the date of first notification of an intention to make a claim
where A2055 3. applies where the claim is treated as properly made in the first
instance as in A2053 2..

1 UC, PIP, JSA & ESA (C&P) Regs, reg 12(2)(b)

A2058

Where A2054 applies and the claimant completes a further claim which is defective
then if that further claim is treated as properly made in the first instance as in A2053,
the date of claim is the date on which the claim was made by the person that was
not appointed.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 12 (4)

A2059

Where an award of PIP cannot be made on the grounds of terminal illness (1),
following a claim made by a third party then the date of claim is the date that the
initial claim was made
1. if a further claim is received within one month or such longer time as is
considered reasonable from the date of notification of the decision not to
award PIP on the grounds of terminal illness (1) or
2. where the further claim as in 1. above is defective but is treated as properly
made in the first instance (2)
Note:
A third party can make a claim on the grounds that a person is terminally ill,
without having to be officially appointed to act on that person's behalf. This does not
apply where the claim is being made under the normal rules.
1 WR Act 12, s 82(4); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 12(5)
Example
David makes a claim for PIP for his mother Eleanor on 20 December. David is not
Eleanor's appointee or POA. Eleanor has severe arthritis but is not terminally ill or
incapable of managing her own affairs. Eleanor is informed that she must claim PIP
on her own behalf. She makes this further claim on 15 January. The date of claim
for PIP is 20 December.

A2060 Time limit for claiming PIP

The prescribed time for claiming PIP is the first day of the period in respect of which
the claim is made (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 27

A2061 Advance awards of PIP

An advance award of PIP may be made if the claimant does not satisfy the
conditions of entitlement on the date on which the claim is made but will satisfy them
for a future period, providing that there are no anticipated change of circumstances.
This future period must begin on a day which is not more than 3 months after the
date of the decision on the claim (1). This enables claims to be made during the
Qualifying Period for PIP.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 33(1)

A2062 Advance claims to PIP

A person already entitled to an award of PIP may make a further claim during the
period of 6 months immediately before the current award ends (1). This claim is an
advance claim to PIP. Where such a claim is made the Secretary of State may (2)
1. treat the claim as if made on the first day after the expiry of the existing award
and
2. award benefit accordingly, subject to the condition that the person satisfies
the requirement for entitlement on the date in A2062 1.
Note:
If the advance claim indicates that the claimant's circumstances are such that
the current award can be changed then it may be revised or superseded as
appropriate.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 33(2); 2 reg 33(3)

A2063

Where a claim is decided in advance it must be decided on circumstances obtaining
at the date of the decision. This excludes any prediction of what a person's
circumstances might be at the date of entiltement (1). However, the DM can take
account of any change that will inevitably occur. A change of circumstances
occurring after the claim is decided but before the date of entitlement should be
dealt with by means of revision or supersession.

1 R(DLA) 4/05

A2064

Where an advance claim which is made during existing entitlement is disallowed the
disallowance does not subsist after the date of decision. A further claim may
therefore be made between the date of the decision and the start date of further
entitlement on the basis of changes that have occurred since the decision was
given. Any award of benefit will be effective from the renewal date (1).
1 R(DLA) 4/05
Making a claim for ESA

A2065 Claims to ESA by telephone

A claim to ESA may be made by telephone call to a telephone number specified by
the Secretary of State (1). Where the Secretary of State directs that the person
approves a written statement of their circumstances then the claim is not valid until
the person complies with the direction (2).

1 UC, PIP, JSA & ESA (C&P) regs, reg 13(1); 2 reg 13(2)

A2066

In most cases it is expected that all the information necessary to determine a claim
will be provided during the initial telephone conversation. If the information is not
provided during that telephone call (for example, if the conversation is cut short
unexpectedly) the claim will be defective (1). In these circumstances the Secretary of
State must give the claimant the opportunity to provide the missing information and
also tell them what the deadline is if the date of the initial phone call is to be the date
on which the claim is treated as made (2). Information can be sent by the most suitable
means i.e. by phone or in writing. A claim will also be defective until full information
is provided where, following an initial telephone conversation, the claimant asks for
a call back to be arranged at a later date.

1 UC, PIP, JSA &ESA (C&P) regs, reg 13(3); 2 reg 13(4)

A2067

If the missing information is provided within one month of a defect being drawn to
the claimant's attention (or within such longer period as the Secretary of State
considers reasonable) the claim will be treated as having been properly made in the
first instance (1).

1 UC, PIP, JSA & ESA (C&P) regs, reg 13(5)

A2068

The
date (1) on which the claim is made or treated as made is the first date on which
1. a claim made by telephone is properly completed or
2. a person first notifies the Secretary of State of an intention to make a claim
where a claim made by telephone is properly completed within one month or
such longer period as the Secretary of State considers reasonable of first
notification or
3. a defective claim is received but is treated as properly made in the first instance
or the first day in respect of which the claim is made if later than 1. - 3.
1 UC, PIP, JSA & ESA (C&P) regs, reg 14

A2069 Claims to ESA in writing

A claim for ESA may be made in writing and must be made on an approved form
and in accordance with the instructions on the form (1). If the claim form is not
completed in accordance with the instructions on the form then the claim is
defective (2).

1 UC, PIP, JSA &ESA (C&P) regs, reg 15(1); 2 reg 15(2)

A2070

If the claim is defective the Secretary of State must advise the person making it of
the defect and the provisions relating to the date of claim (1).

1 UC, PIP, JSA &ESA (C&P) regs, reg 15(3)

A2071

If the defects are corrected and are done so within one month, or such longer period
as the Secretary of State considers reasonable, of the date the defects were first
drawn to their attention then the claim must be treated as if properly made in the first
instance (1).

1 UC, PIP, JSA &ESA (C&P) Regs, reg 15(4)

A2072

The
date (1) on which the claim is made or treated as made is the first date on which
1. a properly completed claim is received in an appropriate office or
2. a person first notifies an intention to make a claim, where a properly
completed claim form is received within one month or such longer period as
the Secretary of state considers reasonable of first notification or
3. a defective claim is received but is treated as properly made in the first instance
or the first day in respect of which the claim is made if later than 1. - 3. above.
Note: If the office is closed, for example at the weekend, and a claim is delivered by
hand (or a claim would have been delivered by post if arrangements had not been
made that the PO would not deliver mail) a different date of claim applies. In such
cases the date of claim is the date the claim is delivered by hand or would have
been delivered had the office not been closed (2).
1 UC, PIP, JSA & ESA (C&P) regs, reg 16; 2 R(SB) 8/89

A2073 Claims to ESA where there is no entitlement to SSP

A claim for ESA is treated as made on an earlier date where a person
1. has previously given notice of incapacity to an employer and
2. has been notified in writing by the employer that there is no entitlement to
SSP (1).

1 SSP (Gen) Regs, reg 7

A2074

The claim is treated as made (1) on the date that the employer accepts as the first day
of incapacity provided that the claim is made within 3 months beginning with the day
on which the claimant is notified in writing that there is no entitlement to SSP (2).
1 UC, PIP, JSA &ESA (C&P) regs, reg 17(1); 2 reg 17(2)

A2075 MA claimed before confinement

Where
1. it has been certified (1) that a woman is expected to be confined and
2. she makes a claim for MA before the confinement
that claim may, unless the DM decides otherwise, be treated as a claim for ESA (2).

1 SS (Med Ev) Regs; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 18(1)

A2076

The claim for MA can be treated as a claim to ESA (1) for the period
1. from the earlier of
1.1
the beginning of the 6th week before the EWC or
1.2 the
ADC
2. to the 14th day after the ADC.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 18(1)

A2077 MA claimed after confinement

Where
1. it has been certified (1) that a woman has been confined and
2. she makes a claim for MA within three months of the date of confinement
that claim may be treated as a claim instead of or also for ESA (2)

1 SS (Med Ev) Regs; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 18(2)

A2078

The claim to MA can be treated as a claim instead of or also for ESA for the period (1)
1. beginning with the ADC and
2. ending 14 days after that date.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 18(2)

A2079 Time limit for claiming ESA

The prescribed time for claiming ESA is the day in respect of which the claim is
made and the period of 3 months immediately following it (1). A month means a
calendar month (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 28; 2 Inte Act 78

A2080 Advance claims to ESA

An advance award may be possible if a claimant does not satisfy the conditions of
entitlement on the date on which a claim is made but will satisfy them for a future
period. The future period must begin on a day which is no more than three months
after the date of claim. The DM treats the claim as made for a period beginning with
the date from which entitlement will begin. No disallowance is needed for the period
from the date claimed to the date entitlement begins (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 34
Making a claim to JSA

A2081 Attendance at an appropriate office

A person wishing to claim JSA must (1), unless directed otherwise, attend in person at
an appropriate office or such other place, and at such time as may be specified in
the claimant's case.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 19

A2082

Where a person is required to attend an appropriate office attends at the time and
place specified and, if so requested, provides a properly completed claim form at or
before the time they are required to attend then the claim is to be treated as made
on whichever is the later of
1. first notification of intention to make that claim or
2. the first day in respect of which the claim is made.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 20(1)

A2083

Where a person is required to attend (1) but either
1. fails to do so without good cause at either the place or time or
2. does not provide a properly completed claim form at or before the time when
they are required to attend
then the claim is to be treated as made on the first day on which the person does
attend at the specified time or place or provides a properly completed claim form, or
if later, the first day in respect of which the claim is made.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 20(2)

A2084

The time for providing a properly completed claim form may be extended to a date
no later than one month after the first notification of intention to make that claim (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 20(3)

A2085 Making a claim to JSA in writing

Except where a person is required to attend at an appropriate office (1), a claim to JSA
may be made in writing on a form authorised for the purpose of the claim and
delivered or sent to an appropriate office. Such a claim must be made in accordance
with the instructions on the form.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 21(1); 2 reg 21(2)

A2086

A written claim is properly completed if completed in accordance with the instruction
on the form and defective if not so completed (1). If the claim is defective then the
claimant must be advised of that defect and the effect on the date of claim (2).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 21(3); 2 reg 21(4)

A2087

If the defects are corrected within one month, or such longer period as the Secretary
of State considers reasonable, of the date the defects were first brought to the
attention of the claimant, then the claim must be treated as having been properly
made in the first instance (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 21(5)

A2088

The date on which a written claim to JSA is made (1), or is treated as made, is the first
date on which
1. a properly completed claim form is received in an appropriate office or
2. a claimant first notifies an intention to make a claim where a properly
completed form is received in an appropriate office within one month or such
longer period as considered reasonable of first notification or
3. a defective claim is received but is treated as properly made in the first instance
or the first day in respect of which the claim is made is later than at 1 - 3.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 22

A2089 Making a claim for JSA by telephone

Except where
1. a person is required to attend an appropriate office or
2. the Secretary of State directs that the claim must be made in writing
a claim to JSA may be made by telephone to the number specified by the Secretary
of State if such a claim falls within a class of case for which telephone claims are
accepted or in any other case where the Secretary of state is willing to do so (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 23(1)

A2090

Claims made by telephone are properly completed if all the information required to
determine the claim is provided. A telephone claim is defective if this information is
not provided (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 23(2)

A2091

Where a telephone claim is defective the claimant must be advised of the defect and
the effect on the date of claim (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 23(3)

A2092

If the defect is corrected within one month, or such longer period that is considered
reasonable, of the date that the defect was first drawn to the claimants attention
then the claim must be treated as if it had been properly made in the first instance (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 23(4)

A2093

The
date (1) on which the claim is made or treated as made is the first date on which
1. a claim is properly completed or
2. a claimant first notifies an intention to make a claim where the claim is
properly completed within one month or such longer time period as is
considered reasonable of first notification or
3. a defective claim is received but is treated as properly made in the first instance
or the first day in respect of which the claim is made if later than at 1 - 3.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 24

A2094

A2095 Advance claims to JSA

An advance award of JSA may be possible if a claimant does not satisfy the
conditions of entitlement on the date on which a claim is made but will satisfy them
for a future period. The future period must begin on a day which is no more than
three months after the date of claim. The DM treats the claim as made for a period
beginning with the date from which entitlement will begin. No disallowance is
needed for the period from the date claimed to the date entitlement begins (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 34

A2096 Time limits for claiming JSA

The prescribed time for claiming JSA is the first day of the period in respect of which
the claim is made (1). However, if the claim is not made within the prescribed time then
the time for claiming can be extended by either 3 months or 1 month. In cases
where the time is extended by 1 or 3 months then the claim is treated as made on
the first day of the period of which the claim is made (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 29(1); 2 reg 29(6)

A2097 Extending the time limit for claiming JSA by 3 months « A2098

The prescribed time for claiming JSA may be extended by a maximum of 3 months
to the date on which the claim is made where
1. the claim is made late and
2. one or more of the circumstances specified in A2098 apply and
3. as a result of those circumstances the claimant could not reasonably be
expected to make the claim earlier (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 29(2)

A2098 « A2097

The circumstances referred to in A2097 2. are (1)
1. the claimant has difficulty communicating because of
1.1
learning, language or literacy difficulties or
1.2
the claimant is deaf or blind
and it was not reasonably practicable for the claimant to obtain assistance
from another person to make his claim or
2. the claimant was caring for a person who is ill or disabled and it was not
reasonably practicable for the claimant to obtain assistance from another
person to make his claim or
3. the claimant was given information by an officer of DWP which led them to
believe that a claim to JSA would not succeed or
4. the claimant was given written advice by a solicitor or other professional
adviser, a medical practitioner, an LA or a person working in a Citizens
Advice Bureau or similar advice agency, which led the claimant to believe that
a claim for JSA would not succeed or
5. the claimant was required to deal with a domestic emergency affecting them
and it was not reasonably practicable for them to obtain assistance from
another person to make the claim or
6. the claimant was prevented by adverse weather conditions from attending the
appropriate office.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 29(3)

A2099 Extending the time limit for claiming JSA by 1 month

The prescribed time for claiming JSA may be extended by a maximum of a month to
the date on which the claim is made where
1. the claim is made late and
2. one or more of the circumstances specified in A2100 apply and
3. as a result of those circumstances the claimant could not reasonably be
expected to make the claim earlier (1)

1 UC, PIP, JSA & ESA (C&P) Regs, reg 29(4)

A2100 « A2099

The circumstances in A2100 2. are (1)
1. the appropriate office where the claimant would be expected to claim was
closed and alternative arrangements were not available or
2. the claimant was unable to attend the appropriate office due to difficulties with
their normal mode of transport and there was no reasonable alternative
available or
3. there were adverse postal conditions or
4. the claimant was previously in receipt of ESA and notification of expiry of
entitlement to that benefit was not sent to the claimant before the date that
the entitlement expired or
5. the claimant had ceased to be a member of a couple within the period of one
month before the claim was made or
6. during the period of one month before the claim was made a close relative of
the claimant had died. Close relative means partner, parent, son, daughter,
brother or sister or
7. the claimant was unable to make telephone contact with the appropriate office
where the claimant would be expected to notify an intention of making a claim
because the telephone lines to that office were busy or inoperative or
8. the claimant was unable to make contact by means of an electronic
communication where the claimant would be expected to notify an intention of
making a claim because the official computer system was inoperative.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 29(5)

A2101

A2102 Interchange with claims for other benefits

A claim to ESA by a woman may be treated in addition or in the alternative as a
claim to MA (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 25(1)

A2103

A claim to MA may be treated in addition or in the alternative as a claim to ESA (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 25(2)

A2104

Where it appears that a person who has made a claim to PIP is not entitled to it but
may be entitled to DLA or AA, the Secretary of State may treat the claim
alternatively or in addition to as a claim to either DLA or AA (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 25(3)

A2105

Where it appears that a person who has made a claim to DLA or AA is not entitled
to it but may be entitled to PIP, the Secretary of State may treat the claim
alternatively or in addition to as a claim to PIP (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 25(4)

A2106

In determining whether the Secretary of State should treat a claim alternatively or in
addition to another claim (the original claim) then the Secretary of State must treat
the alternative or additional claim, whenever made, as having been made at the
same time as the original claim (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 25(5)

A2107 After a claim has been disallowed as defective

If a claimant seeks to correct the defects in a claim after it has been disallowed as
defective the DM should
1. decide that the disallowance cannot be revised or superseded because the
submission of the new information or evidence is a change of circumstances
that occurred after the claim was decided (1) and
2. consider whether the new communication can now be taken as the start of an
attempt to make a new claim.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(2); SS Act 98, s 8(2)(b)

A2108 No trace of claim

It may be contended that a claim has been made in writing but there is no trace of it.
There may also be situations where other information suggests that a document
was received but is no longer available or cannot be found. The DM must decide, on
the balance of probabilities, whether a claim was made and if so the date of receipt.
The normal information and evidence conditions for establishing a properly made
claim must be satisfied.

A2109

A statement that a claim was sent but never received should be considered carefully
as there may be many reasons why enquiries were delayed. The DM should obtain
evidence to support the statement if there are grounds to doubt it (1). Grounds for
doubt might exist because, for example, there is a long delay between the date it is
said that a claim was sent and the date when enquiries are made. The date which is
of relevance is the date on which the claim is made and that is the date on which the
claim is received by an appropriate office (2), not the date of sending the claim.
1 R(I) 2/51; R(SB) 33/85; 2 R(G) 2/06

A2110 Amendment of claims

A person who has made a claim may amend (1) it at any time before a determination
has been made on the claim. The amendment may be made
1. in writing received at an appropriate office or
2. by telephone call to a number specified by the Secretary of State or
3. in such other manner as the Secretary of State may decide or accept.
Any claim amended as above may be treated as if it had been amended in the first
instance.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 30

A2111 Withdrawal of claims

A person who has made a claim may withdraw (1) it at any time before a determination
has been made on the claim. The withdrawal may be made
1. in writing received at an appropriate office or
2. by telephone call to a number specified by the Secretary of State or
3. in such other manner as the Secretary of State may decide or accept.
Any such notice of withdrawal has effect when it is received.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 31

A2112 Evidence and Information in connection with a claim « A2117

A person who makes a claim for benefit, or on whose behalf a claim is made (other
than JSA) may be required to (1)
1. supply information and evidence in connection with the claim or any question
arising out of it, as is considered appropriate and
2. do so in a manner as determined within one month of being required to do so
or such longer period as is considered reasonable (1).
Note:
There are specific information and evidence requirements for PIP - see ADM
Chapter P2 for information and evidence requirements for PIP.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 37(1-3)

A2113

Where a claim for UC has been made by joint claimants, information relating to that
claim may be supplied by the Secretary of State to either or both members of the
couple for any purpose connected with the claim (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 37(4)

A2114

Where a person is a member of a couple and may make a claim to UC as a single
person (1) and entitlement to UC or the amount of UC may be affected by the
circumstances of a partner (1), the Secretary of State may require the partner to
1. confirm the information given about the partner's circumstances or
2. to supply information or evidence in connection with the claim, or any
question arising out of it, as may be required
within one month of being required to do so, or such longer period as is considered
reasonable (1)

1 UC Regs, reg 3(3); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 37(5)

A2115

A landlord or rent officer may be required to supply information and evidence in
connection with a claim for UC that may include an amount for housing costs. This
must be supplied within one month or such longer period as is considered
reasonable (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 37(6)

A2116 « A2117

Every person providing relevant childcare (1) where the claimant's award of UC is to
include an amount in respect of childcare costs (2) must supply information and evidence
1. in connection with the claim or
2. on any question arising out of it, as may be determined
within one month of being required to do so or such longer period as is consider
reasonable (3).

1 UC Regs, reg 35; 2 reg 31; 3 UC, PIP, JSA & ESA (C&P) Regs, reg 37(7)

A2117

Guidance at A2112 to A2116 also relate to cases where it is not a condition of
entitlement that a claim to benefit be made (1). The guidance also relates to potential
awards of benefit (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 37(8); 2 reg 37(9)

A2118 Evidence and Information in connection with an award

A2118 to A2123 apply to any person entitled to benefit, other than JSA, and any
other person by whom or on whose behalf, payments of such benefit are
receivable (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 38(1)

A2119

A person must supply in such manner as may be determined within the period
applicable under specified legislation (1) such information or evidence as may be
required for determining whether an award should be revised or superseded (2).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 45(4)(a); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 38(2)
Note: See ADM Chapter A4 for the period in which information or evidence should
be supplied.

A2120

A person must supply in such manner and at such times as may be determined
such information or evidence as the Secretary of State may require in connection
with payment of the benefit awarded (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 38(3)

A2121

A person must notify any change of circumstances which the person might
reasonably be expected to know might affect (1)
1. the continuance of entitlement to benefit or
2. the amount of benefit awarded or
3. the payment of benefit
as soon as reasonably practicable after the change occurs.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 38(4)

A2122

The
notification (1) of a change of circumstances must be
1. given in writing or by telephone and
2. sent, delivered to or received at the appropriate office
Note:
The Secretary of State may specify that the change in circumstances must be
notified in a particular way. There is also discretion to accept notification by methods
other than by in writing (including electronic notification) or by telephone

1 UC, PIP, JSA & ESA (C&P) Regs, reg 38(5)

A2123 « A2118

Where UC has been awarded to joint claimants, information relating to that award
may be supplied by the Secretary of State to either or both members of the couple
for any purpose connected to that award (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 38(6)

A2124

Every person providing relevant childcare (1) where the claimant's award of UC is to
include an amount in respect of childcare costs (2) must supply information and evidence
1. in connection with the award or
2. on any question arising out of it, as may be determined
This must be done within one month of being required to do so or such longer
period as is considered reasonable (3).

1 UC Regs, reg 35; 2 reg 31; 3 UC, PIP, JSA & ESA (C&P) Regs, reg 38(7)

A2125

Where the award of UC includes an amount as a result of the claimant regularly and
substantially caring for a severely disabled person (1), the Secretary of State may
require the claimant to furnish a declaration signed by the severely disabled person
confirming the particulars of that severely disabled person, which have been given
by the claimant (2). See ADM Chapter F6.
1 UC Regs, reg 29; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 38(8)
Example
Quentin is in receipt of UC which includes the carer element as he has caring
responsibility for his disabled partner Julian. The DM asks Quentin to obtain a
written statement, signed by Julian to determine whether the details given by
Quentin are correct.

A2126 Alternative means of notifying changes of circumstances

In such cases and subject to such conditions as the Secretary of State may specify,
the duty to notify a change of circumstances may be discharged by notifying the
Secretary of State as soon as reasonably practicable where the change of
circumstances is a
1. birth or death, through an LA or a county council in England, by personal
attendance at an office specified that LA or county council, provided the
Secretary of State has agreed for it to facilitate such notification (1) or
2. death, by telephone to a telephone number specified for that purpose by the
Secretary of State (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 39(a); 2 reg 39(b)

A2127 Information provided to rent officers

DWP must provide rent officers with information that is requested to enable the rent
officer to carry out functions as in prescribed legislation (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 40(1); Housing Act 1996, s 122

A2128

The information referred to may include information required to make a
determination and may include (1)
1. the name and address of the UC claimant in respect of whom the Secretary of
State has applied for a determination
2. the amount of any rent
3. the amount of any service charge payments
4. the number of bedrooms
5. the name and address of the claimant's landlord.
Note:
Landlord means any person to whom a claimant or partner is liable to make
payments in respect of the occupation of the claimant's accommodation.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 40(2)
AS (12)9
The landlord must provide the rent officer with information or evidence as is
reasonably required to make a determination (1) and which the rent officer is not able
to obtain from DWP (2). This evidence may include whether the property is let at an
affordable rent as defined in prescribed legislation (3).
1 Rent Officers (universal Credit Functions) Order 2013;
2 UC, PIP, JSA & ESA (C&P) Regs, reg 40(3); 3 reg 40(4)

A2130 Evidence and Information required from pension fund holders « A2131 « A2133

Where a claimant or their partner is aged not less than 60 and is a
1. member of, or is a person deriving entitlement to a pension under a personal
pension scheme or
2. an occupational pension scheme
they must provide information where required to do so (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 41(1)

A2131

The
information (1) required in A2130 is
1. the name and address of the pension fund holder and
2. such other information including any reference or policy number needed to
enable the personal pension scheme or occupational pension scheme to be identified

1 UC, PIP, JSA & ESA (C&P) Regs, reg 41(1)(a-b)

A2132 « A2133

Where the pension fund holder receives a request for details of the personal
pension scheme or occupational pension scheme then they must provide the
Secretary of State with information calculated in prescribed legislation (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 41(2)

A2133

The guidance at A2130 - A2132 does not apply to PIP (1). Any reference to "claimant"
also includes a person where it is not a condition of entitlement to benefit that a
claim is made.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 41(5)

A2134 Attendance in Person

Every person who makes a claim for benefit (apart from JSA), or any person entitled
to benefit (except JSA) and any other person by whom or on whose behalf
payments by way of such a benefit are receivable must
1. attend at such place and on such days and at such times as the Secretary of
State may direct and
2. supply information or evidence under prescribed regulations (1).
This applies to PIP claimants in cases where they are required to attend to provide
information or evidence. Prescribed legislation (2) applies to PIP claimants who may
be called for a consultation.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 35, reg 37-39 & reg 41; 2 SS (PIP) Regs, reg 9

A2135 Duration of awards

Claims for
UC (1) are to be treated as made for an indefinite period and any award is
to be made for an indefinite period.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 36(1)

A2136

A2137 Claims to JSA made during periods connected with public holidays

See Appendix 2 of this Chapter in relation to claims for JSA made during periods
connected with public holidays (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 36(2)

A2138 Appointees

The Secretary of State can appoint a person to act on behalf of someone who is or
may be entitled to benefit and is unable to act, for example because of mental
health problems. The DM should treat any action of an appointee as if it had been
taken by the claimant, noting that
1. appointments are not possible if someone has already been legally appointed
to act on behalf of the claimant. This may be a deputy, attorney or a receiver (1).
In Scotland this might be a judicial factor or any guardian acting or appointed
under specific legislation (2) who has the power to act on behalf of the claimant
2. the person must apply in writing. Individual appointees must be over 18 years
old (2)
3. an appointee can be a body of people such as a firm of solicitors or a health
authority (3).
For further details about the appointment of appointees, the DM should refer to the
Agents, Appointees, Attorneys and Deputies Guide.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 57;

2 Adults with Incapacity (Scotland) Act 2000; 3 R(SB) 2/87; R(A) 2/81

A2139

Where an appointment (1) has been made
1. it may be revoked by the Secretary of State at any time
2. the person appointed may resign after giving one months notice to do so
3. any appointment is to be terminated when the Secretary of State is notified
when a deputy, receiver, attorney or judicial factor/guardian in Scotland is
appointed with full powers.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 57(8)

A2140 Power of attorney

A POA is a legal document (a deed) by which one person gives another person
authority to handle their affairs. The power may be a
1. general power - to handle all the person's affairs
2. specific power - to handle some of the person's affairs
3. power for a limited period - for example, while the person is ill or abroad (1).

1 Power of Attorney Act 71

A2141

In England and Wales the validity of POA depends on whether it is a General or
Lasting POA (1). A General POA expires when the customer becomes mentally
incapable. A Lasting POA must be registered before it can be used. It remains valid
even after capacity is lost (2).
Note: For more information see the Agents, Attorneys, Appointees and Deputies
Guide.

1 Enduring Power of Attorney Act 85; 2 Mental Capacity Act 05

A2142

In Scotland the validity of a POA when a person becomes mentally incapable
depends on the authority used to grant the power and the date it was granted (1).
Note: For further details about POA, see the Agents, Appointees, Attorneys and
Deputies Guide.
1 Adults with Incapacity (Scotland) Act 2000

A2143 Deputies/Guardians

Where a person is incapable of managing their own affairs and therefore incapable
of authorising someone else to act on their behalf, the Court of Protection may
appoint a deputy to act for the person. A deputy who is appointed to act in all
matters may make claims to benefit without further authority from the Secretary of
State. Deputies replaced receivers in England and Wales as a consequence of
specific legislation (1). People already appointed as receivers under specified
legislation (2) will continue in that capacity but will be treated as deputies (3).

1 Mental Capacity Act 2005; 2 Mental Health Act 1983; 3 UC, PIP, JSA & ESA (C&P) Regs, reg 57

A2144

In Scotland a Sheriff may appoint a guardian to act in a similar way to a deputy (1).
Note: For further details about Deputies/Guardians, see the Agents, Appointees,
Attorneys and Deputies Guide.
1 Adults with Incapacity (Scotland) Act, s 57(1)

A2145 Claims at Death

On the death of a person who has made a claim for benefit the Secretary of State
may appoint such a person as they may think fit to proceed with the claim and any
related issue of revision, supersession or appeal (1). See ADM Chapter B1 for further
guidance on payments after death.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(1)

A2146 Requirement to attend for a consultation

Before making a decision on a claim for PIP (1) the claimant may be required to attend
and participate in a consultation with a person approved by the Secretary of State.
This also applies where a re-determination of a claimant's ability to carry out
activities is required (2). Decisions on whether a consultation is required are made by
the Health Professional. This does not apply to ESA and UC which have separate
provisions.
1 WR Act 12, s 80; PIP Regs, reg 8; reg 11

A2147 Provision of NINOs

The provision of sufficient information or evidence to establish the NINO is a specific
requirement for (1)
1. PIP
2. UC
3. ESA
4. JSA
Note: This does not apply to a child or qualifying young person in respect of whom
UC is claimed (2).

1 SS A Act 92, s 1(1A) & (1B); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 5

A2148

There is no entitlement to benefits unless the claim is accompanied by sufficient
information or evidence
1. to confirm the NINO quoted belongs to the claimant and any adult affected by
the provisions
2. to enable the NINO to be traced where the NINO is unknown
3. to enable a NINO to be allocated where the claimant or adult does not have a
NINO and they apply for one (1).
1 SS (NINO: Exemption) Reg 97

Example

The claimant does not hold a NINO. The claimant should make an application for a
NINO and provide sufficient information and evidence to enable a NINO to be traced
or allocated. Notional entitlement to benefit should first be established and then the
claimant referred to the NINO allocation service.

A2149

The requirements must be satisfied each time a relevant claim to benefit is made.
The DM should not accept that they are satisfied simply because they were
accepted as satisfied on an earlier claim. Conflicts in the evidence from the claimant
and Departmental records should be resolved before the claim is referred to the DM.

A2150

If the provisions are not satisfied the DM decides that there is no entitlement
because a condition of entitlement is not met. If the NINO is produced after a
disallowance, or there is a doubt about a number during an award, reconsideration
may be appropriate.

A2151

Where a claim is made jointly from a couple the NINO provisions must be satisfied
for both claimants. If the conditions are not satisfied for either claimant the benefit
should be disallowed. If a single claimant forms a joint claim couple with someone
who was not a UC claimant and that person does not have a NINO or does apply for
one to be allocated then no award should be made.

A2152 NINO Exemptions

Where a claim to benefit is received a NINO is required for both the claimant and
any adult jointly entitled to claim. In the majority of cases where a NINO cannot be
allocated to either the claimant or any adult in the claim there are grounds for
deciding that the claimant is not entitled to the benefit.

A2153

In a small number of cases a NINO will not be allocated to a partner of the claimant
where these individuals have no right to be in the UK and do not already have a
NINO. These claims should not be disallowed for this reason. However if the partner
already possesses a NINO they are required to state this on the claim form.

A2154

Where a claimant's partner is ineligible to claim UC but is part of the assessment
unit (e.g. they do not meet the HRT) they will be referred to the NINO allocation unit.
It is not a condition of entitlement that the ineligible partner must have a NINO.
Appendix 1
Use of Electronic Communications
Definition
1
"Official computer system" means (1) a computer system maintained by or on behalf of
the Secretary of State to
1. send or receive any claim or information or
2. process or store any claim or information
Note
:
"information" includes evidence and information authorised or required to be
given in a notice or certificate
1 UC, PIP, JSA & ESA (C&P) Regs, reg 2
Use of electronic communications
2
The Secretary of State may use an electronic communication in connection with
claims for, and awards of any benefit (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 1
Conditions for the use of electronic communications by other persons
3
A person other than the Secretary of State may use an electronic communication in
connection with the matters specified in paragraph 2 if the conditions in paragraphs
4 to 8 are met (1).
Note : "Approved" means approved by means of a direction given by the Secretary
of State.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 2(1)
4
The first condition is that there is in force an authorisation given by the Secretary of
State by means of a direction permitting the person concerned to use electronic
communication (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 2(2)
5
The second condition is (1) that the person uses an approved method of
1. authenticating the identity of the sender
2. electronic communication
3. authenticating any claim or information delivered by means of electronic communication
4. submitting any claim or information to the Secretary of State.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 2(3)
6
The third condition is that any claim or information sent by electronic communication
is in an approved form (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 2(4)
7
The fourth condition is that the person keeps such records in written or electronic
form as may be specified by the Secretary of State (1) in a direction.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 2(5)
8
Where a person submits a claim or evidence by a method other than that approved
by the Secretary of State then that claim or evidence shall be treated as not
having been submitted (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 2(6)
Use of Intermediaries
9
The Secretary of State may use, and may require other persons to use,
intermediaries in connection with (1)
1. the delivery of any claim or evidence by means of an electronic
communication and
2. the authentication or security of anything transmitted by electronic means.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 3
Effect of delivering information by electronic means
10
Any claim or information which is delivered by electronic means is to be treated as
having been delivered on the day the conditions
1. in paragraphs 4 to 7 above and
2. under any applicable Act or regulation
are satisfied (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 4(1)
11
The Secretary of State may make a direction determining that any claim or
information is to be treated as delivered on a different day from that set out in
paragraph 10 above (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 4(2)
12
Information shall not be taken to have been delivered to an official computer system
by means of an electronic communication unless it is accepted by the system to
which it is delivered (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 4(3)
Proof of delivery
13
The use of an approved method of electronic communications is to be presumed (1),
unless the contrary is proved, to have resulted in delivery, in the case of any
1. claim or information falling to be delivered to the Secretary of State, if the
delivery is recorded on an official computer system or
2. information that falls to be delivered by the Secretary of State, if the despatch
of that information is recorded on an official computer system.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 5(1)
14
If delivery has not been recorded on an official computer system it will be presumed
that it has not taken place (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 5(2)
15
The time and date of receipt of a claim or information shall be presumed, unless the
contrary is proved, to be that recorded on an official computer system (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 5(3)
Proving the identity of a sender or recipient
16
If it is necessary to prove the identity of
1. a person who sent a claim or information to an official computer by electronic
means or
2. the recipient of a claim or information from an official computer system
the sender or recipient shall be presumed to be the person recorded as such on the
official computer system (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 6(1)
17
Any claim or information delivered by an approved method of electronic
communication on behalf of another person is to be deemed to have been delivered
by that person unless they prove that it was delivered without their knowledge or
connivance (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 6(2)
18
If it is necessary to prove the content of a claim or information sent by electronic
means, the content will be presumed to be that recorded on an official computer
system (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 7
Appendix 2
Claims for JSA during periods connected with public holidays
1
Special provisions apply where a claim to JSA is made (1)
1. in the case of Christmas and New Year holidays, in the period beginning with
the start of the 35th day before the first day of the office closure and ending on
midnight between the last day of office closure and the following day
2. in the case of Easter Holidays, in the period beginning with the start of the
16th day before the first day of the office closure and ending at midnight
between the last day of office closure and the following day
3. in the case of any other public holiday, a period beginning with the start of the
14th day before the first day of office closure and ending at midnight between
the last day of office closure and the following day
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 4, para 3
2
A claim for JSA may be treated as a claim for that benefit for a period (1) (specified in
the decision) not exceeding 35 days after the date of claim where that claim is made
during the period specified in paragraph 1.1 above.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 4, para 2(a)
3
A claim for JSA may be treated as a claim for that benefit for a period (1) (specified in
the decision) not exceeding 21 days after the date of claim where that claim is made
during the period specified in paragraph 1.2 or 1.3 above.
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 4, para 2(b)
4
"Public Holiday" means Christmas Day, Good Friday or a bank holiday, or in
Scotland a bank holiday or local holidays (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 4, para 1(a)
5
"Christmas and New Year holidays" means in
1. England and Wales, the period beginning at the start of Christmas Day and
terminating on the end of New Years Day. If New Year Day is a Sunday the
period ends at the end of 2nd January.
2. Scotland, the period beginning at the start of Christmas Day and ending on
the end of 2nd January. If New Year Day is a Saturday or Sunday the period
terminates at the end of 3rd January.
6
Easter Holidays means the period beginning at the start of Good Friday and
terminating at the end of Easter Monday.
7
"Office closure" means a period during which an appropriate office is closed in
connection with a public holiday (1).
1 UC, PIP, JSA & ESA (C&P) Regs, Sch 4, para 1(d)

Chapter A3: Revision

Contents
Revising decisions and handling appeals

A3001:

Which decisions can be revised

A3010:

A3013:

When should the DM consider revision

A3014:

Mandatory reconsideration before an appeal can be made

A3019:

Reporting changes during the application period

A3023:

Advance award

A3025:

Revision and supersession

A3026:

What if an application for revision is not accepted / admitted

A3030:

How are applications for revision made

A3033:

Who reconsiders decisions

A3034:

How are decisions revised

A3038:

Burden of proof

A3039:

Consideration of previous law

A3040:

Can revision apply to abolished benefits

A3041:

Correction of accidental errors

A3042:

What is an accidental error

A3043:

How are accidental errors corrected

Time limits for revision

A3046:

What is the application period

A3049:

A3050:

Late applications

A3058:

Revision instigated by the DM

A3060:

Challenging a revised decision

Revising decisions during the application period

A3061:

When should a decision be revised

A3065:

A3067:

What if more information is needed

Vol 1 Amendment 34 June 2010
Which decisions cannot be revised

A3072:

PIP and ESA - Special rules for the terminally ill

A3074:

What happens when a decision is not revised

A3080:

Revision where an appeal is pending before a court in another case

Issues for decision by HM Revenue and Customs

A3081:

When to refer to HM Revenue and Customs

A3083:

A3086:

Action when HM Revenue and Customs decision received

A3091:

Late award of contributions and credits

Revising decisions at any time

A3092:

Revision while appeal is going on

A3093:

A3096:

When should a decision not be revised

A3098:

Revision for official error

A3100:

Meaning of official error

A3104:

Revision for error of fact

A3105:

ESA

A3109:

Revision following appeal against an earlier decision

A3111:

Revising decisions on JSA

A3112:

Revision decisions on PIP

A3115:

Revising decisions on UC

A3117:

Revision of sanction decisions

A3118:

Revising decisions on sanctionable benefits (loss of benefit provisions

A3119:

Revising decisions on linked benefits

A3121:

Revising decisions and determinations with no appeal rights

A3123:

Decisions given without authority

A3125:

Revision of advance awards

A3127:

Effective date of a revised decision

Chapter A3: Revision

Revising decisions and handling appeals

A3001 Introduction

This chapter is about revising decisions and handling appeals for
1. UC
2. PIP
3. new style JSA (hereafter referred to as JSA)
4. new style ESA (hereafter referred to as ESA).
Note
1: ADM Chapter M1 contains guidance on the meaning of new style JSA and
new style ESA.
Note
2: Guidance on revision and handling appeals for benefits not listed above is
in DMG Chapter 03.
Note
3: The guidance comes into effect (1) from 8.4.13 for PIP and from 29.4.13 for
UC, JSA and ESA. DMs should note that mandatory reconsideration is being
introduced from 8.4.13 for PIP, 29.4.13 for UC and 28.10.13 for JSA and ESA.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 1(2) & 1(3)

A3002

The revision process allows the DM to re-examine the facts of the case, take any
further evidence into consideration, the law used and other issues such as how
discretion was applied when making a decision. Revising a decision can avoid the
need for cases to proceed to the FtT.

A3003

Where a decision is challenged, the DM reconsiders it, and revises the decision if it
is appropriate to do so. Where it cannot be revised, supersession may be
appropriate. The DM should always consider revision first.

A3004

The revision process applies to
1. UC, PIP, JSA and ESA
2. decisions on credits

A3005

Where a claimant or other eligible person wants to challenge a decision, they should
be encouraged to contact DWP to discuss the decision or ask for an explanation. If
they want to challenge the decision formally they must apply for a revision so that
the DM reconsiders the decision. This is known as mandatory reconsideration - see A3014. It is only after this has been considered that the claimant can exercise their
right of appeal. An appeal made directly to DWP before a mandatory

reconsideration has been requested will be treated by the DM as a request for
mandatory reconsideration. Reconsideration is the process by which
1. an application for revision of a decision is considered or
2. a decision is looked at again following an appeal application.
The process includes making a record that a reconsideration has been carried out
and what the result is.
Note: When a claimant or other eligible person wishes to appeal a decision, notice
of the appeal will be sent directly to HMCTS rather than DWP. If an appeal is lodged
with HMCTS which has not been subject to the mandatory reconsideration process
then it will be treated as invalid and the claimant will be advised to request
reconsideration.

A3006

At the end of the mandatory reconsideration process the DM
1. revises favourably and issues a new outcome decision or
2. revises unfavourably and issues a new outcome decision or
3. refuses to revise, i.e. makes a decision not to revise (this is not an outcome
decision)
A decision not to revise is not appealable, but its effect may be to renew the appeal
rights arising from the original decision (see A3074).
Note: There is no limit to the number of times that a decision (including a
supersession decision) can be revised.
Example
A claim for PIP is disallowed. The claimant asks for a reconsideration and supplies
further evidence. The DM determines that although the claimant's ability to carry out
mobility and daily living activities are more limited than originally determined the
limitations are not sufficient to enable an award of PIP to be made. The DM decides
not to revise the original decision.

A3007

A decision cannot be revised where claimants report a change of circumstances
after the decision was made. The claim or supersession rules apply instead (see A3019 et seq).

A3008

There is no limit to the number of times a claimant can apply for a decision to be
revised. The timing of the further application may affect the reconsideration process.
For example, if the further application is made outside the application period, only
the limited revision provisions apply (see A3092).

A3009

Where
1. an application was made within the application period and

2.
the DM has not revised the original decision and
3. a further application is made outside the application period and
4. the DM finds no grounds to revise the original decision and
5. the extended time limit for an appeal (see ADM Chapter A5) has not expired
the claimant should be reminded about the right of appeal against the original
decision when the refusal to revise is notified.

A3010 Which decisions can be revised

The revision process applies to all the decisions of the Secretary of State that can
be superseded or appealed. A list of the decisions that can be appealed (1) is at
Annex D. A list of decisions and determinations that are not appealable (2) is at Annex
E.
1 SS Act 98, s 12(1) & Sch 3; UC, PIP, JSA & ESA (D&A) Regs, reg 50 & Sch 2;

2 SS Act 98, Sch 2; UC, PIP, JSA & ESA (D&A) Regs, Sch 3

A3011

Decisions of the FtT and UT cannot be revised. For guidance on superseding
decisions of the FtT and UT see ADM Chapter A4.

A3012

DMs can also make corrections to accidental errors in decisions of the Secretary of
State. Further details are at A3041 et seq.

A3013 When should the DM consider revision

The DM should reconsider a decision when a claimant challenges it by applying for
revision for example by asking for it to be looked at again. This should not be
confused with the occasions when a claimant is looking for clarification of a decision
by asking for more information. Where a claimant has asked for, and been given, an
explanation of a decision, the DM should ensure that the claimant is satisfied with
the explanation and is not challenging it.

A3014 Mandatory reconsideration before an appeal can be made « A3005

A person has a right of appeal in relation to a decision only (1) if the DM has
considered, on application, whether the decision should be revised. The claimant
must be given a notice that informs them (2)
1. of the decision, whether as originally made or as revised and
2. of the time limit for making an application for revision and
3. that where the notice does not include a statement of reasons for the
decision, the person may, within one month of the date of notification of the

decision, request that a written statement is provided for the reasons for the
decision and
4. that there is a right of appeal against the decision but this can be exercised
only if the Secretary of State has considered an application for revision.
Note:
The mandatory reconsideration process is being introduced in April 2013 for
UC and PIP and October 2013 for ESA and JSA.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(2); 2 reg 7(1) & 7(3)

A3015

Where a claimant makes a late application for revision and the reasons for lateness
are not accepted by the DM, the claimant has no right of appeal to the FtT in
relation to the original decision. In these cases follow guidance at A3026 - A3029. A
claimant will only be able to challenge the decision of the DM not to extend the time
limit by means of a JR. There is no right of appeal to the FtT. See A3046 for
guidance on the time limits for making an application.

A3016

The normal time limit for applying for a reconsideration can be extended if certain
conditions are met (see A3050) which includes satisfying the "tests" of
"reasonableness" and "special circumstances". These tests are not defined in
legislation but should be interpreted broadly. DMs should therefore allow an
application for an extension of time where the person is able to explain why their
application for a revision is late. Applicants are not expected to show unexpected or
exceptional circumstances. But, if an applicant cannot explain why their application
was not made in time, then the DM may not be able to consider their case. When
considering whether to extend the time limit DMs should also have regard to the
claimant's rights under article 6 of the ECHR - see Annex G.

A3017

Where a written statement of reasons is requested it must be provided within 14
days of receipt of request or as soon as practicable afterwards (1). If the notification of
the decision contains a statement of reasons then any further requests for a written
notification has no effect.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(4)

A3018

Where there is no right of appeal against a decision as there has been no request
for reconsideration then the purported appeal may be treated as an application for
revision (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(5)

A3019 Reporting changes during the application period « A3007

During the application period where
1. a claimant reports a change of circumstances or
2. evidence or information is received indicating that there has been a change of circumstances

the DM may only revise the decision to take account of the change where it
occurred before the decision had effect (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(2)

A3020 « A3125

Where the change occurs after the original decision had effect, the DM cannot
revise to take account of the change. The action to take depends on
1. whether the original decision disallowed or made an award of benefit or
2. in the case of disallowance, when the change occurs.

A3021 « A3125

If the original decision awarded benefit, the supersession provisions apply instead (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 33

A3022

Where the original decision was a disallowance, and the change occurred
1. before the decision was made, the supersession provisions apply or
2. after the decision was made, a further claim is required (1).
See also A3028 where the change is notified in an application for revision.
1 SS Act 98, s 8(2)(b)

A3023 Advance award « A3075

This rule does not apply in the same way where the DM makes an advance award (1).
The DM can revise to take account of changes which occurred before the decision
was made (2). See also A3125 for changes removing entitlement which occur before
the relevant date, but are notified after that date. Any changes which occur after the
date the decision was made, but before the relevant date, and are notified before
that date, should be considered under the supersession rules. See ADM Chapter A4
for guidance on supersession.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 32-34; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 5(2); R (DLA) 4/05
Example
The claimant made an advance claim for PIP on 14.11.15, and the DM awarded the
standard rate daily living component and the standard rate mobility component from
12.4.16. The decision was made and notified on 9.3.16, and a week later the
claimant reported that his condition had deteriorated following a stroke on 7.12.15.
The DM revises the decision made on 9.3.16 to award enhanced rate daily living
component and enhanced rate mobility component. The DM also considers whether
the existing award should be superseded on a relevant change of circumstances.

A3024

For the purposes of advance awards, the relevant date is the date the claim is
treated as made where the DM is satisfied that the claimant (1)
1. does not satisfy the conditions of entitlement at the date of claim but
2. will do so within

2.1
one month for UC or
2.2 three months for ESA and JSA
after the date of claim or
3. will do so within three months for PIP
after the date of the decision.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 32-34

A3025 Revision and supersession « A3077

Decisions should not be superseded where they can be revised instead. This rule
does not apply where
1. the decision could be revised and
2. further circumstances arise which are not in the revision rules, but are in the
supersession rules (1).
In these cases, the decision should be revised as appropriate, and then superseded
to take account of the supersession rules.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 32
Example
The claimant has been awarded the enhanced rate of the mobility component of
PIP. He challenges the decision, as he feels the period of the award is too short. He
also notifies that his condition has deteriorated, and applies for the daily living
component. The DM revises the decision to extend the period of the award, and
supersedes the decision as revised to award the standard rate of the daily living
component.

A3026 What if an application for revision is not accepted / admitted « A3015

Where the DM is unable
1. to accept an application for revision because it is late or
2. to admit an application for revision outside the maximum period
the DM should consider whether the provisions allowing revision at any time apply.

A3027 « A3029

If it is not possible to revise the decision at any time, the DM should consider the
supersession rules instead. The application for revision can be treated as an
application for supersession (1). The outcome of the supersession depends on
whether the DM considers the original decision is correct. The DM should

1.
supersede the decision on the grounds that it was erroneous in law or based
on ignorance of or a mistake as to a material fact where the outcome is
changed or
2. make a decision not to supersede the original decision (2) or
3. exceptionally, make no decision and notify that the decision is not
superseded (2).
Note:
The decisions at 3027 1. and 3027 2. onlycarry the right of appeal.
1 UC, PIP, JSA & ESA (D&A) Regs, reg; 33; 2 R(DLA) 1/03; Wood v Secretary of State for

Work and Pensions [2003] EWCA Civ 53

A3028 « A3021

Where the DM considers that the application for revision should be dealt with as an
application for supersession for a relevant change of circumstances, it is still
important to record and notify that the decision is not revised.

A3029 « A3015

Where
A3027 1. applies, the new decision is effective from
1. the date of the application (1) or
2. the date of the relevant determination where appropiate (2).
1 SS Act 98, s 10(5); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 35(5)
Example
A claimant entitled to UC returns form MI (12), and the DM calculates allowable
housing costs element. Two months later, the claimant calls in at the office to say
that the award of housing costs element is incorrect, and asks for arrears to be paid.
The visit is treated as an application for revision. After further investigation, the DM
finds out that the claimant forgot to return another form MI (12) completed by a
different lender for a separate allowable loan. The DM decides that the time for
applying for revision cannot be extended. The DM notifies that the decision is not
revised. The decision is superseded from the first day of the assessment period in
which this is notified.

A3030 How are applications for revision made

A claimant can ask for a decision to be revised, for example by asking for it to be
looked at again, either orally or in writing. There is no application form for a revision.
Where the application is made orally the Department must keep a record of the
conversation. The Secretary of State can also instigate revision of decisions where
an appeal is received. See A3098 for guidance on revision for official error.

A3031

Where a claimant applies for a decision to be revised on any ground the application
or notification must be made at an appropriate office (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(1)(b)

A3032

An appropriate office is (1)

1. in the case of a contribution decision, any National Insurance Contributions
Office of HMRC or any office of DWP or
2. the DWP office or other place whose address is shown on the original decision
1 UC, PIP, JSA & ESA (D&A) Regs, reg 2 & reg 5(1)(b)

A3033 Who reconsiders decisions

DMs can reconsider a decision that they or another DM has given (1). Where possible,
although not a legal requirement, the expectation is that the mandatory
reconsideration should be carried out by a different DM.
See ADM Chapter A1 for guidance on revision and supersession of decisions of
former authorities.
1 SS Act 98, s 9 & s 10

A3034 How are decisions revised

The DM should
1. clarify the grounds for reconsideration where appropriate
2. identify the decision to be reconsidered
3. identify the evidence used by the DM to make the original decision
4. telephone the claimant to ensure all available evidence has been considered
5. obtain further evidence as appropriate
6. keep a record of all the main steps taken during the reconsideration process
such as requests for evidence and any conversations with the claimant
7. decide whether the decision needs to be revised and, if so, on what grounds
where appropriate and when the decision takes effect
8. consider whether any offset is appropriate and whether there is any
overpayment (further details are in ADM Chapter D1).
Note:. There is no need to look at the whole decision again (but see A3065).

A3035

Where a claimant makes an application for revision, the result will be either a
revision of the original decision (whether favourable or otherwise) or a decision not
to revise that decision i.e. a change or no change. Whatever the resulting decision,
it must be recorded properly. There is no legal prescription about the format the
record should take, but whether the decision is given clerically or via IT, offices must
follow the procedures laid down in the relevant procedural guidance.

A3036

On receipt of an appeal response request from HMCTS, in response to a decision
made following mandatory reconsideration, the DM should, in every case, consider
whether the decision can be revised. If it can be revised to the appellant's
advantage the DM should revise the decision and the appeal may lapse. However,

where revision will not address all that has been asked for in the appeal see A3096.
This paragraph gives guidance on when a decision should not be revised. The
claimant can
1. apply for the decision as revised to be revised again or
2. make a further appeal.
Note: The claimant, and HMCTS, must be notified if an appeal is lapsed.

A3037

The appeal proceeds if
1. the decision is not revised or
2. the decision is revised, but not in the appellant's favour or
3. the DM considers that the decision could be revised partially in the claimant's
favour but it has not been possible to contact the claimant to establish if they
wish their appeal to continue, and so the decision is not revised or
4. the decision is superseded. In this case the appeal proceeds against the
period from the date of the decision under appeal to the date of the
superseding decision.
Note:
Special rules apply where the decision is revised, but not in the appellant's
favour (see ADM Chapter A5).

A3038 Burden of proof

The person who wants to change the decision has the burden of proving, where
necessary, that it should be changed. The claimant has the responsibility of proving
the case if they apply for a revision (1). The onus is on the DM if the Secretary of State
initiates revision. In a case where documents have been lost or destroyed the
burden of proof does not alter (2).
1 R(I) 1/71; 2 R(IS) 11/92

A3039 Consideration of previous law

The DM may need to consider the effect of law previously in force. If questions arise
involving the revision of awards for past periods, decisions must be made in
accordance with the law as it was at that time (1). If particular rates are to be applied,
the rates are those which applied at the period of time. Any erosion in value, for
example old benefit rates compared to new, is not considered (2).
1 R(SB) 48/83; 2 R(I) 1/86

A3040 Can revision apply to abolished benefits

Decisions on benefits which have been abolished can still be revised in limited
circumstances (1) (see ADM Chapter A1).
1 SS A Act 92, Sch 10; Inte Act 78, s 16

A3041 Correction of accidental errors « A3012 « A3049

DMs can correct accidental errors, including slips of the pen, in their own decisions
or those of other DMs (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 38

A3042 What is an accidental error

An error is only accidental when the intended decision is clear, and it is obvious that
the error occurred when recording it. Accidental errors include
1. slips of the pen
2. arithmetical mistakes
3. errors in the text
4. text entered in the incorrect place.

A3043 How are accidental errors corrected

A decision can be corrected by striking out the wrong words or date, inserting the
correct ones, and signing and dating the correction. If the correction is more
complex a fresh decision should be given and clearly identified as a corrected
decision. If the correction is made after a copy of the decision has been sent to the
claimant then a written notice of the correction should be given to the claimant (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 38(3)

A3044

Where a decision of a DM is corrected, the time for applying for revision and for
making an appeal begins on the day the corrected decision is notified (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 38(4)

A3045

Where the error is made by the FtT it should be returned to the FtT to consider
correction. Further details are in ADM Chapter A1.
Time limits for revision

A3046 Introduction « A3015 « A3076

Claimants can apply for revision of decisions if they think they are wrong or unfair.
The timing of the application determines how it is dealt with by the DM. For appeals
to the FtT, UT and the Courts see ADM Chapter A5.

A3047 « A3049

Where an application is made outside the time limits as in A3049 et seq and it does
not satisfy the criteria for a late application, the DM should consider the `any time'
revision procedure. Where this is not applicable the DM should consider whether
the decision can be superseded.

A3048

See A3074 for guidance on what happens when a decision is not revised.

A3049 What is the application period « A3047 « A3052

For claimants, the period begins on the day following the date of notification of a
decision by the Secretary of State on a claim or supersession (1). A decision may be
revised where the application is made
1. within one month of notification of the original decision (subject to A3041 -
correction for accidental errors) or
2. where a written statement of reasons is requested and is provided within the
one month period, within 14 days of expiry of the one month period or
3. where a written statement is provided after the one month period, within 14
days of notification of the written statement or
4. within the appropriate period where a late application is accepted (see A3047).
Note:
A month means a calendar month (2).
1 SS Act 98, s 8 & 10; UC, PIP, JSA & ESA (D&A) Regs, reg 5(1)(b); 2 Inte Act 78, Sch 1
Examples of one month period

Example 1

On 18 November a claimant is notified of the decision on his claim for ESA. The one
month period is 19 November to 18 December.

Example 2

On 31 December a claimant is notified of the decision on her claim for JSA. The one
month period begins on 1 January. The calendar month ends on 31 January.
Example 3
On 29 January a claimant is notified of the decision on his claim for JSA. The
calendar month ends on the last date of the following month - 28 February. In a leap
year use 29 February.
Note:
The DM can only determine the date of posting on the balance of
probabilities. Unless the DM is certain that a notification was posted on a particular
date, the one calendar month must always be extended by one day where the
claimant makes an application on the day following the end of the one month period.

A3050 Late applications « A3016 « A3076 « A3099

The one month time limit for applying for revision can be extended where all of the
conditions in A3051 - A3054 are met (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 6

A3051
The first condition is that an application for an extension of time has been made to
an appropriate office (1). The application need not be in writing, it may be made in
person or by telephone.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 6(2)

A3052

The second condition is that the application must
1. explain why the extension is sought and
2. include sufficient information to enable the decision to be revised to be
identified and
3. be made within 13 months of the latest date by which the application for
revision should have been received (1) as in A3049.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 6(3))
Example 1
On 12.11.14 a claimant is notified of the decision on his claim for JSA. The
application period is 13.11.14 to 12.12.14 (ordinarily, a late application might be
possible up to 12.12.15). The claimant requested a statement of reasons within the
one month period, and this was provided on 10.12.14. A late application, where
appropriate, can be made up to and including 26.12.15 (the 13 month late
application period is extended by 14 days).
Example 2
On 9.2.15 a claimant is notified of the decision on his claim to ESA. The application
period is 10.2.15 to 9.3.15 (ordinarily, a late application might be possible up to
9.3.16). The claimant requested a statement of reasons. This was not provided until
15.3.15 (some 6 days after the initial one month application period ended). A late
application, where appropriate, can be made up to and including 29.3.16 (i.e. the 13
month late application period is extended by a total of 20 days, being 14 days plus 6
days for the delayed issue of the written statement of reasons).

A3053

The third condition which must be satisfied for a late application to be accepted is
that it is reasonable to grant the application for the extension of time (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 6(4)

A3054 « A3050

The fourth (and final) condition is that (1)
1. there are special circumstances for the lateness and
2. as a result of the special circumstances the application for revision could not
be made within the time limit.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 6(5)

A3055

The term
"special circumstances" is not defined in legislation and should be
interpreted broadly. It can include factors such as

1. the applicant, partner or dependant has died or suffered serious illness
2. the applicant is not resident in UK
3. normal postal services were adversely affected.
4. the claimant has learning or language difficulties
5. the claimant has difficulty in obtaining evidence or information to support their application
6. ignorance or misunderstanding of the law or time limits
The list is not exhaustive, and each application should be considered on its merits.
For example, where the application concerns a benefit awarded because of LCW or
disability, it may not be appropriate to accept serious illness as a special
circumstance.

A3056

Note that the later the application the more compelling the special circumstances for
lateness must be (1) although applicants are not expected to show that their
circumstances are exceptional. Where the delay is not excessive, the person's
circumstances can be less compelling.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 6(6)

Example 1

The claimant is awarded UC without housing costs in a decision notified on 1
August. At the same time, he is asked to arrange for completion of form MI (12).
Before he can send the form to the building society, he suffers a stroke and is
admitted to hospital for three months. He is discharged home on 6 November. On
11 December he returns form MI (12), explaining why he has not done so earlier. The
DM accepts a late application for revision, and revises the decision to award
housing costs from the date of claim.
Example 2
A claimant is awarded PIP at the standard rate of the daily living component. Three
months after the decision is notified the claimant contacts DWP asking for that
decision to be reconsidered on the basis that they have been waiting for a written
report from a hospital consultant which, in their view, supports the case for an award
at the enhanced rate. They say that they could not obtain this evidence earlier as
the consultant was unable to provide it. The DM considers that the reasons for the
late application are reasonable and that there are special circumstances. The DM
reconsiders the decision.
Example 3
A UC claimant contacts the Department nine months after their award was made
querying the date from which UC was first awarded. They say that they had heard
from a neighbour that they could receive extra money if their award was back dated
but were unsure and had not contacted the Department as they had been busy and
had sufficient money to live off. The DM decides not to allow an extension of time.

A3057
Where a late application has not been accepted, an application for an extension of
time cannot be renewed (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 6(7)

A3058 Revision instigated by the DM

The DM can instigate a revision within one month of notification of the original
decision, and revise it in the same way as for a claimant's application (1).
Note: In cases where a DM considers that the decision may be subject to revision
on their own initiative then a note to this effect should be made on the case.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(1)(a)

A3059

Decisions can also be revised at any time on the DM's own initiative in limited
circumstances. For example, where an award of benefit is affected by an award of
or change to another benefit which takes effect from the date of the original
decision, or the decision is based on official error, the any time revision provisions
apply. For further advice, see A3091 et seq.

A3060 Challenging a revised decision

Where an existing decision is revised, following a mandatory reconsideration, there
are fresh appeal rights and a fresh application period. A claimant can challenge the
revised decision provided the application is lodged within the time limit. A further
application for revision is not required by the claimant who can appeal the decision
as revised immediately.
Revising decisions during the application period

A3061 Introduction

Decisions challenged during the application period can be revised by the DM on any
ground. Where the claimant appeals directly to DWP before mandatory
reconsideration has been considered then the appeal should be treated as an
application for mandatory reconsideration and the claimant is advised that the
appeal has been treated as a request for mandatory reconsideration. The claimant
has a right to appeal the decision as revised. See ADM Chapter A5 for further
guidance.

A3062

Where the decision is revised but not to the claimant's advantage, the appeal
proceeds, but the appeal will be treated as against the decision as revised (1). The
appellant will be given a further month in which to make representations against the
revised decision (2). See ADM Chapter A5 for further details.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 52(1) & 52(2); 2 reg 52(3)

A3063
The DM should always reconsider decisions challenged during the application
period. Claimants do not have to give reasons why they think the decision is wrong
when making an application for revision. The DM may need further evidence or
information to establish if it was based on incorrect facts or law.

A3064

Where the DM notices an error, the decision can be looked at again even if it is
noticed outside the time limits (see A3092 et seq).

A3065 When should a decision be revised « A3034 « A3067

The DM looking at a decision during the application period need not examine all the
facts and circumstances of the case again (1). For example, only one fact may be at
issue. The DM should exercise discretion depending on the circumstances of each
case when deciding what determinations embodied in a decision need to be looked
at again. If the DM notices an obvious error which is not mentioned in the claimant's
application it should be dealt with as part of the revision process.
1 SS Act 98, s 9(2)

Example

1
A person claims UC as a single claimant. She works P/T in the evenings in a call
centre. The DM awards UC taking gross earnings into account. The claimant
disputes the amount of the award. The DM revises the original decision because the
amount of earnings has not been reduced to take account of tax and NI deductions.
No other changes are made to the decision.
Example 2
A jobseeker leaves employment. The DM decides that good reason has not been
shown, and a 156 week sanction is imposed. The jobseeker disputes the period of
the sanction because there has been no previous sanctionable failure. The DM
decides to change the sanction to 13 weeks. No other aspect of the decision is
considered.

A3066

The original decision can be revised during the application period on any ground.
This includes if the DM
1. reaches a different conclusion about the facts of the case
2. decides that the original decision was based on a mistaken view of the facts
3. considers the original decision was based on an incorrect interpretation of the law
4. considers the original decision was based on insufficient evidence
5.
decides that there are new relevant facts which were not known at the time
the decision was made.

Example

A jobseeker fails to attend as required. She makes a statement in writing within five
working days about the failure to attend. The DM supersedes and terminates
entitlement to JSA because it is not accepted that good cause was shown.
Following a request to reconsider the decision, it later comes to light that there was
additional evidence in the claimant's verbal explanation to a member of staff in the
Jobcentre. Taking this additional evidence into account, the DM accepts that good
cause was shown within five working days, and revises the disallowance to reinstate
benefit.

A3067 What if more information is needed

DMs are not bound by what the previous DM concluded about the facts, but they need
to consider cases thoroughly and conscientiously in order to make the reconsideration
process a reality. In particular they must make sure that all existing evidence is looked
at carefully and, where necessary, further evidence obtained. If the claimant provides
any fresh evidence that also must be looked at carefully. However, in looking at the
decision afresh the DM need only look at issues raised by the application for
revision or the appeal (see A3065).

A3068

Although it
is
not a requirement to obtain any further evidence, there will be
occasions when further evidence is necessary. For example if a decision is not
revised wholly in the claimant's favour. In such cases it should be obtained and
looked at carefully along with the existing evidence.

A3069

Should further evidence be required the claimant should be contacted by the most
appropriate method such as by telephone, letter, office interview or visit.

A3070

Where further evidence or information is required from the claimant in order to deal
with an application for revision, the claimant is notified what information or evidence
is required, and given one month to supply it. The one month period can be
extended where the DM thinks it is reasonable to do so (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 20(3)(a) & reg 20(3)(b)

A3071

The decision may be revised on the basis of the
1. evidence where this is supplied within one month of the notification (or within
any extended period) or
2. original application where no response is received within the time allowed (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 20(3)(b) & 20(3)(c)
Which decisions cannot be revised
PIP and ESA - Special rules for the terminally ill

A3072
A decision on PIP or ESA cannot be revised where the application is made within
the one month time limit, on the grounds that the person is terminally ill (1), unless the
application for revision contains an express statement that the person is terminally
ill (1).
Note: Evidence of terminal illness submitted by or on behalf of the claimant enables
the decision to be revised on these grounds.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(2)(c)

A3073

This applies even though the original claim may not have been made expressly
because the person was terminally ill (1).
1 WR Act 12, s 82

A3074 What happens when a decision is not revised « A3006 « A3048

Although the DM should always look again at a decision following an application for
revision, there may not be any reason to revise it. Where
1. the claimant has requested mandatory reconsideration of the decision and
2. the application is within the time limits or a late application is accepted and
3. there is no reason to revise it
the claimant is notified that the DM has decided not to revise the decision.

A3075

The decision not to revise does not of itself carry the right of appeal, although the
claimant has a further period of one month to appeal the original decision (1). See A3023 for action to take when a late application is not accepted.

1 TP (FtT) (SEC) Rules, rule 23(2) & Sch 1; R(IB) 2/04; R(1S) 15/04

A3076

Appeal rights arising from the original decision are only renewed where an
application for revision has been refused and the application was made
1. within the statutory one month time limit (see A3046) or
2. after the statutory one month time limit, and the DM has extended the time
for applying (see A3050).
If neither
1. nor 2. above applies then there is no right of appeal.

A3077

If the time for appealing cannot be extended the DM should always look at whether
the decision under appeal can be revised as in A3092 et seq, or if not, superseded
as in A3025. If the DM decides that there are no grounds for revision or
supersession, the claimant must be notified accordingly. The decision not to
supersede has the right of appeal.

A3078

Where the DM is reconsidering a case because the claimant has appealed following
a reconsideration, and it is decided that revision is not appropriate but supersession
is then the claimant must be notified of this decision.

Example

On 4.11.15 the DM awards the enhanced rate of the mobility component from
22.06.15, the date of the PIP claim. The claimant asks for the decision to be
reconsidered. The DM does not revise the decision and the claimant subsequently
appeals on 18.11.15 on the grounds that he is also entitled to the daily living
component. He sends in a consultant's report with his appeal. The DM considers
that the evidence shows that the claimant's condition has got worse since the award
began. He treats the appeal as an application for supersession, and supersedes the
awarding decision on the grounds that there has been a relevant change of
circumstances. The new decision awarding the standard rate of daily living
component in addition to the mobility component is effective from 31.10.15, after the
qualifying period is satisfied. The appeal goes ahead, and the FtT is limited to
considering whether the daily living component should be awarded for the period
22.06.15 to 30.10.15. If the FtT awards an enhanced rate of the daily living
component, the supersession decision may be revised to take account of the FtT
decision.

A3079

If the decision is revised to the detriment of the claimant, the notification to the
claimant should make clear that the appeal will proceed unless the claimant asks for
it to be withdrawn. For further details, see ADM Chapter A5 .
Note:
The decision should always be notified where the DM revises the decision to
the detriment of the claimant.

A3080 Revision where an appeal is pending before a court in another case

The DM may decide not to make a decision on a look-alike case while a lead case
appeal is pending before the courts (see ADM Chapter A4 for guidance on staying cases).
Issues for decision by HM Revenue and Customs

A3081 Introduction

HMRC is responsible for making decisions on NI contributions issues previously
determined by the Secretary of State (1). A list of these, together with exceptions is at
Annex C to this Volume.

1 SSC (ToF) Act 99, s 8(1)

A3082

Entitlement to ESA and JSA depends on the contribution conditions being satisfied.
In practice the NI contribution record is usually obtained and any decision is based
on the assumption that the record is factually correct. See ADM Chapter A1 for
further guidance about making assumptions. However, where there is a dispute

about the record, the matter must be referred by the Secretary of State to HMRC for
a formal decision.

A3083 When to refer to HM Revenue and Customs

Where the DM considers that before deciding an application for revision of a
decision made on an assumption of facts a formal decision by HMRC is required,
the issue must be referred to HMRC (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(1)
Example
A claim for JSA is disallowed because the NI record shows no contributions for the
two tax years before the benefit year in which the date of claim fell. All other
conditions of entitlement are satisfied. The claimant applies for the decision to be
revised on the ground that she was employed for several years immediately before
claiming benefit, and her wage slips show NI deductions. The DM refers the
question of whether contributions should be treated as paid to HMRC. HMRC
decides that contributions should be treated as paid for the period of employment.
The DM revises the disallowance and awards JSA.

A3084 « A3087 « A3087

While a decision of HMRC is awaited, the DM can (1)
1. determine any other matter on the application (leaving the application
undecided)
2. decide the application on the basis of a preliminary opinion of HMRC on the
issue referred to them
3. defer making a decision on the claim or application.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(3)

A3085 « A3089

Where the referral was made following an appeal, it is not possible to make a further
decision until HMRC's decision is received.

A3086 Action when HM Revenue and Customs decision received

Once the final decision of HMRC is received, the action depends on what decision
had been made before it was received.

A3087

Where a decision had been made on an application for revision in accordance with A30842. the DM should consider whether to revise or supersede in the light of
HMRC's final decision (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(4)(a)

A3088
Where no decision had been made on an application for revision in accordance with A30841. or 3., the DM should make a decision taking HMRC's decision into
account (1). However, if HMRC's decision shows no error or change in the original
decision, the DM should notify that the decision is not revised.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(4)(b)

Example

A claim for JSA is disallowed because the contribution conditions are not satisfied.
The claimant applies for revision on the basis that some contributions from
employment in the relevant tax years have not been included in his record. The DM
defers making a decision pending HMRC's decision. HMRC decide that all
appropriate contributions have been included. The DM notifies that the disallowance
decision is not revised.

A3089

Where the referral was made following an appeal as in A3085 the DM should
consider whether the decision under appeal can be revised or superseded. See
ADM Chapter A5 for guidance.

A3090

A final decision of HMRC includes a decision on an appeal against a decision of
HMRC (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(5)

A3091 Late award of contributions and credits « A3059

A decision not to award a contributory benefit, or to award it at a different rate, may
be revised at any time. The decision may be revised if
1. on or after that decision is made a late paid contribution or credit is treated as
paid at the same time as or before the date on which the original decision not
to award, or award at a lesser rate was made and
2. as a result of the late contribution or credit the original decision would have
awarded benefit or would have awarded it at a different rate (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 17
Revising decisions at any time

A3092 Introduction « A3008 « A3064 « A3077

In the following circumstances decisions made by the DM can be revised at any
time either during or outside the application period without an application from the
claimant (1).
1 SS Act 98, s 9(1); UC, PIP, JSA & ESA (D&A) Regs, reg 8

A3093 Revision while appeal is going on

The DM may revise at any time (1) before the appeal is determined where an appeal,
including a late appeal, is made within the time limits (see ADM Chapter A5).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 11(1)

A3094

This allows the DM to revise the decision under appeal where action to revise does
not start within the one month time limit. For example, the claimant may produce
further evidence after an adjourned hearing which was not previously available to
the DM, but which allows the decision to be revised.

A3095

Where new information is provided after the response has been written and sent to
HMCTS, a revision should be considered. Where the decision is revised, HMCTS
should be informed immediately, especially where the appeal is to be lapsed.

A3096 When should a decision not be revised « A3036

The purpose of lapsing an appeal is to prevent unnecessary appeals going ahead.
The power to revise is discretionary rather than mandatory, and should not be used
in order to prevent an appeal being heard. DMs are therefore advised to consider
whether a decision under appeal should be revised where
1. the revision does not address the issue which is the subject of the appeal and
2. it is likely that a further appeal will be made.
Example 1
The DM decides that a claim for JSA should be disallowed from and including
17.1.17 on the grounds that the claimant has an occupational pension of £300 per
week. The decision is reconsidered on appeal, the issue being whether the claimant
has an occupational pension. The DM notices that the date of disallowance is
incorrect, and should have been 19.1.17. The DM does not revise the decision, and
the appeal goes ahead. The error in the disallowance date should be addressed in
the appeal submission.
Example 2
The DM decides that an overpayment of benefit of £10,855 is recoverable. The
decision is reconsidered on appeal, the issue being whether the overpayment is
recoverable. The DM notices that the amount of the overpayment has been
incorrectly calculated, and should be £10,835. The DM does not revise, and the
appeal goes ahead. The error in the amount should be addressed in the appeal
submission.

Example

3
The DM decides that an overpayment of benefit of £10,855 is recoverable. The
decision is reconsidered on appeal, the issue being whether the amount of the

overpayment is correct. The claimant contends that the amount of the overpayment
is £5,000. The DM notices that the amount of the overpayment has been incorrectly
calculated, and should be £10,835. The DM does not revise the decision as it is
clear that the claimant will make a further appeal. The submission to the FtT should
point out this error in calculation.

Example

4
The DM makes an advance award of the standard rate of the daily living component
of PIP, deciding that the qualifying period was not satisfied at the date of the claim.
The claimant appeals on the ground that the award should have started on the date
of claim, and should have been at the enhanced rate. The DM accepts that the
qualifying period was satisfied at the date of claim, but decides that the claimant is
not entitled to the enhanced rate. The claimant is advised of this via telephone call
but still contends that they consider that they should be entitled to the enhanced
rate and that they would make a further appeal. The DM does not revise the
decision and the appeal proceeds.
Example 5
The DM awards the standard rate of daily living and mobility components of PIP.
The claimant appeals on the grounds that they satisfy the conditions for the
enhanced rate of both components. The DM finds he could revise the decision
awarding benefit at the same rate but 3 weeks earlier. The DM does not revise and
the appeal goes ahead. The error in the date should be addressed in the appeal
submission.
Example 6
The DM awards the standard rate of daily living and mobility components of PIP.
The claimant appeals on the grounds that they satisfy the conditions for the
enhanced rate of both components. The DM reconsiders the decision and decides
that the claimant should be awarded the enhanced rate of the daily living
component but that the award of the mobility component should remain at the
standard rate. The claimant is advised of this and says that they are content with the
proposed new decision and that they will not make a further appeal against the
revised decision. The DM revises the decision and the appeal lapses.

A3097

Where the decision is not revised, but the DM considers it to be incorrect, the
submission should
1. advise the FtT why the decision is not revised and
2. request that the correct decision is substituted for that of the DM.

A3098 Revision for official error « A3030

A decision made by the Secretary of State either initially or on a supersession can
be revised at any time for official error (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 9(a)

A3099

Where the claimant applies for a decision to be revised for official error outside the
application period in A3050 et seq, and the DM does not accept that there was an
official error, the decision not to revise should be notified without appeal rights (1). The
DM should then consider if the decision can be superseded.
1 R (IS) 15/04

A3100 Meaning of official error

An official
error (1) is an error made by
1. an officer of the DWP or HMRC acting as such which was not caused or
materially contributed to by any person outside DWP or HMRC or
2. a person employed by and acting on behalf of a designated authority which
was not caused or materially contributed to by any person outside that
authority.
Designated authority means the Secretary of State or a person providing services to
the Secretary of State (2).
Example : A GP provides an incorrect report on a person who claims PIP. The GP
is also employed part-time by the service provider to provide a report for the
purposes of the PIP claim. The report from the GP in his capacity as an employee of
the NHS cannot constitute an official error as the GP is not providing services to the
Secretary of State.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 2; 2 reg 2

A3101

In considering whether a decision was based on an official error, DMs should note that
1. an official error refers only to a clear mistake of fact or law arising because an
officer has failed to make a decision or take an administrative act that was
required under SS legislation. The officer must not have been acting in a
private capacity for example giving advice to a neighbour
2. the official error must have made the appropriate decision wrong
3. the error must lie in the decision and not merely in the circumstances
surrounding its issue
4. "mistake" refers only to obvious mistakes made by officers on the facts told to
them by claimants or which they had reason to believe were relevant

5. officers of the Department, for example visiting officers, do not have a duty to
interrogate claimants about their circumstances. It is up to the claimant to
make the point about the circumstances to the visiting officers
6. DMs have a duty to consider whether the claimant has caused or contributed
to any mistake
7. there is no general duty on an officer to keep all cases constantly under
review in order to see whether a particular provision might apply in a
particular case, even when that provision may be beneficial to a claimant
8. an alleged failure of consideration is not equivalent to a mistake of fact
9. the provision cannot apply where the mistake, act or omission occurred after
the decision being reconsidered was made. To be relevant, it must have
occurred before or have existed at the time of the decision
10. an error of law by a DM is an official error.
Note: Decisions which are found to be erroneous in law because of a later decision
of a UT or Court cannot be revised on this basis as this does not constitute an
official error (1). The decision should be superseded instead (see ADM Chapter A4).

1 UC, PIP, ESA & JSA (D&A) Regs, reg 2

A3102

Applications for supersession may be treated as applications for revision where it
would be more appropriate to apply the revision rules (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 20(1)

A3103

This is most likely to be where the decision ought to be revised to the claimant's
advantage because it was based on an official error. In these circumstances
revision is more appropriate because the effective date of the revised decision is
more advantageous to the claimant than the effective date of the superseded
decision.

A3104 Revision for error of fact

Decisions can be revised at any time where the DM's decision was better for the
claimant than it should have been, because it was made in ignorance of, or based
on a mistake as to, a material fact (1). For guidance on the meaning of a material fact,
see ADM Chapter A1.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 9(b)

A3105 ESA

A decision awarding ESA may be revised at any time (1) if

1. the awarding decision was made on the basis that the claimant had made
and was pursuing an appeal against a determination that they did not have
LCW and
2. the appeal to the FtT in relation to that original determination was successful

1 UC, PIP, JSA & ESA (D&A) Regs, reg 15(2)

A3106

A decision awarding ESA may be revised at any time (1) if
1. it incorporates a determination that treats a claimant as having LCW until a
determination about LCW has been made (2) and
2. the conditions for treating a claimant as having LCW as referred to in A3106
1. were not satisfied at the time the claim was made and
3. there is a period before the award took effect which falls to be decided

1 UC, PIP, JSA & ESA (D&A) Regs, reg 15(3); 2 ESA Regs 2013, reg 26

A3107

A decision awarding ESA may also be revised at any time (1) where the claimant's
current period of LCW is treated as a continuation of another period of LCW by
virtue of linking rules (2).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 15(4); 2 ESA Regs 2013, reg 86

A3108

Where a decision has been made to terminate ESA because the claimant has
received 365 days benefit (1) and it is subsequently determined that, in relation to the
period of entitlement before that decision was made that the claimant had or is
treated as having had LCWRA then the decision to terminate ESA may be revised (2).
1 WR Act 2007, s 1A; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 15(5)

A3109 Revision following appeal against an earlier decision

The DM may revise a decision at any time following determination of an appeal
against an earlier decision. These decisions may be a decision on a claim or
supersession (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 11(2)(a)

A3110

Where
1. the DM makes a decision, or revises or supersedes a decision ("decision A")
and
2. the claimant appeals against decision A and
3. after the appeal has been made but before it is decided the DM makes
another decision ("decision B")
3.1 whichsupersedes decision A or
3.2 on a further claim and
4. decision A is changed on appeal and

5. the DM would have made decision "B" differently if, at the time they had been
aware of the FtT decision
the DM may revise decision B1.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 11(2)
Example
A claimant in receipt of indefinite awards of PIP daily living and mobility components
at the standard rate notifies on 21.5.13 that he has more care needs. The DM does
not accept that an enhanced rate of care is appropriate, and on 4.6.13 decides not
to supersede the awarding decision. The claimant appeals. He also applies to the
DM for an enhanced rate of mobility component following an accident on 28.6.13.
On 18.7.13 the DM supersedes the awarding decision to award the enhanced rate
mobility component for two years from 28.9.13, but does not increase the daily living
component. The FtT hears the appeal on 16.9.13, and awards the enhanced rate of
the daily living component from 21.5.13. The DM revises the decision of 18.7.13 to
award the enhanced rate of the care component from 28.9.13 and the enhanced
rate of mobility component for the period 28.9.13 - 27.9.16.

A3111 Revising decisions on JSA

A decision awarding JSA may be revised at any time where a person claims JSA because
1. a "conversion" decision (1) has been made that they do not qualify for ESA or
2. a decision has been made terminating ESA (2) because they do not have LCW
and the claimant appeals and is successful at the FtT.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 16(2); ESA (TP, HB & CTB) (EA) (No 2) Regs, reg 5(2)(b);
2 UC, PIP, JSA & ESA (D&A) Regs, reg 16(3)

A3112 Revising decisions on PIP

An advance claim decision can be revised at any time if the circumstances expected
at the effective date of the award do not materialise. This also applies to advance
awards where the claimant does not satisfy the conditions or level of conditions at
the date of claim but would be expected to do so within 3 months of the date of the
DM's decision (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 18(1) & reg 13

A3113

A decision that PIP is not payable for any period may be revised at any time (1) where
1. a determination is made, on incomplete evidence, having made reasonable
enquiries, as to whether the claimant meets the condition that they are a care
home resident where the costs are met out of LA or public funds and

2. after that determination has been made any of the costs of the qualifying
services are recovered from the person for whom they were provided (2).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 18(2); WR Act 12, s 85(2);
2 UC, PIP, JSA & ESA (D&A) Regs, reg 39(5)
Example
David is in receipt of PIP and goes into a care home. The DM, after making
reasonable enquiries is unable to obtain all the evidence and determines that
David's costs are met out of LA funds. A decision is made that PIP is not payable. It
later comes to light that David has his own property and has sold the house. The LA
recovers the qualifying costs from David. The decision that PIP is not payable is
revised.

A3114

A decision may be revised at any time where that decision was made in
consequence of a negative determination if it contains an error to which the claimant
did not materially contribute (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 18(3)
Example
Gerard is in receipt of PIP. He is told to attend for a consultation with a HP. Gerard
fails to attend the consultation and does not reply to letters asking him why he did
not attend. The DM makes a negative determination and terminates Gerard's
award. Gerard contacts DWP asking why his award of PIP has stopped. In the
course of the conversation Gerard says that he notified a change of address some
time ago and that is why he didn't receive the letter telling him to go for a
consultation. The DM notes that a letter from Gerard was received but was never
actioned. The decision to terminate PIP is revised.

A3115 Revising decisions on UC

A decision to apply a benefit cap to UC may be revised at any time (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 19(1); UC Regs, reg 81

Example

Kevin is awarded UC. The award is subject to a benefit cap as the award is in
excess of the prescribed amount. Kevin contacts DWP to say that he thinks the
decision to reduce his award is incorrect as when he made his claim to UC he
incorrectly told DWP that he was in receipt of CHB for 4 children when in fact he
was only entitled to CHB for 2 children. The DM determines that Kevin was in fact in
receipt of UC for only one child and had become confused as to what benefits he

was in receipt of. The DM decides that a benefit cap should not apply to Kevin and
revises the awarding decision accordingly.

A3116

A decision which adopts a determination under prescribed legislation (1) may be
revised at any time in consequence of a rent officer's re-determination. This applies
when the re-determination resulted in an increase in the amount which represents
rent for the purposes of calculating the housing costs element in UC (2).
1 Rent Officers Order 2013; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 19(2)
Example
Warren is in receipt of UC. The award includes the housing costs element. A rent
officer re-determines Warren's rent and increases it. The award of UC is revised to
take into account this re-determination.

A3117 Revision of sanction decisions

A decision may be revised at any time (1) where
1. an ESA award is reduced as a result of the claimant's failure to participate in
work related requirements (2) or
2. a JSA award is reduced as a result of a sanction (3) or
3. a UC award is reduced as a result of a sanction (4).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 14(1)(a-c); 2 WR Act 07, s 11J (1);
3 JS Act 95, s 6J & 6K (1); 3 WR Act 12, s 26(1) &27(1)

A3118 Revising decisions on sanctionable benefits (loss of benefit provisions)

Where a restriction is imposed on a person (1) as a result of
1. being convicted of an offence by a court or
2. agreeing to pay a penalty as an alternative to prosecution and
that conviction is quashed or set aside or the person withdraws the agreement to
pay a penalty then a decision (1) that benefit ceases to be payable may be revised at
any time (2).
1 SS Fraud Act 2001, s 6B, s 7 & s 9; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 14(1)(d-f)

A3119 Revising decisions on linked benefits

Where
1. the DM awards entitlement to a benefit and

2. the claimant (or in the case of UC a member of their family (1)) is awarded
another relevant benefit or an increase in another benefit for a period which
includes the date on which the award of the first benefit took effect
the first decision can be revised (2).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 2; 2 reg 12
Example
A claimant is awarded UC. His child is entitled to DLA from a date prior to the award
of UC. The award of UC can be revised to include the disabled child addition.

A3120

A relevant
benefit (1) includes
1. IB
2. AA
3. SDA
4. DLA
5. CA
6. JSA
7. IS
8. CHB
9. SPC
10. ESA.
11. PIP
12. UC
Note : Credits are not an award of a relevant benefit.
1 SS Act 98, s 8(3)

A3121 Revising decisions and determinations with no appeal rights

Decisions and determinations which have no right of appeal (1) can be revised at any
time. These are mostly administrative decisions such as timing and manner of
payment. See ADM Chapter 1 for details.

1 SS Act 98, Sch 2; UC, PIP, JSA & ESA (D&A) Regs, reg 10 & 50(2) & Sch 3

A3122 « A3125

Decisions that are not appealable are listed in Annex E to this Volume. Where such
decisions are challenged, the Secretary of State can look again at the decision, and
revise or supersede it if it is reasonable to do so, but this is at the discretion of the

Secretary of State. These decisions can also be challenged by means of judicial
review. See ADM Chapter 1 for further guidance.

A3123 Decisions given without authority

Decisions given by DMs which are outside their jurisdiction are nevertheless
effective and may be revised (1). The effect of the revision includes deciding that the
decision should not have been made.

1 R(S) 13/81

A3124 « A3127

A decision of a DM given without authority because no claim has been made for the
period covered by the decision can be revised because of official error (1). It does not
matter whether or not the error was a reasonable one to have made. The statutory
provision is a wide one which is applicable as long as the error on which the revision
was based is genuine.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 9(a)

A3125 Revision of advance awards « A3023

An award on an advance claim is conditional on the claimant's circumstances at the
relevant date. See A3021 for the meaning of relevant date. Changes of
circumstances occurring and effective
1. after the date the claim is decided and
2. before the relevant date
can be dealt with by way of revision where the circumstances in A3122 apply. See
also A3020 for revision where the change is advantageous to the claimant and
occurred before the decision was made.

A3126

Where a change
1. is notified
after the relevant date and
2. has the effect that the conditions of entitlement are not satisfied from that
date the award can be revised (1).
The result of the revision is that the claim is disallowed from the date of claim. It is
important to note that, whilst the effect is the same, revision in this context is done
not under the normal rules (2) but under a free-standing provision. It must therefore
be exercised with discretion and cases where a change is notified long after it
occurred should be referred to DMA Leeds for advice. See also ADM Chapter A4
for guidance on supersession of advance awards.
1 SS Act 98, s 9; UC, PIP, JSA & ESA (C&P) Regs, regs 32-34; UC, PIP, JSA & ESA (D&A) Regs, reg 13;
R(DLA) 4/05; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 5

Example
The current award of PIP expires 25 September. An advance award is decided on
14 April, effective from 26 September. An award is made for standard rate daily
living component. On 4 June the claimant has a successful kidney transplant
operation that is notified to the DM on 12 October. Although the claimant has limited
care needs, the DM decides that these are insufficient for an award of PIP. The DM
revises the decision made on 14 April to disallow the award from 26 September.

A3127 Effective date of a revised decision

A revised decision usually takes effect from the date of the original decision (1). For
details of the exception to this general rule, see A3124.

1 SS Act 98, s 9(3)

A3128

When a decision is revised but the DM decides that the date of the original decision
was wrong then the revision takes effect from the date on from which the original
decision would have taken effect had the error not been made (1).
1 UC, PIP, JSA &ESA (D&A) regs, reg 21

[A3129-A3999]

Chapter A4: Supersession, suspension and termination

Contents

A4001:

Types of decisions that can be superseded

A4002:

Introduction to supersession

A4003:

A4006:

Circumstances when a decision can be superseded

Applications

A4012:

Making a decision to supersede

A4014:

Hopeless applications

A4017:

Admitting an application

A4018:

A4021:

Making a decision not to supersede

A4023:

Treating as an application for supersession

A4024:

Providing information

A4025:

Further information needed

A4026:

Information provided late

A4027:

Issues for decision by HM Revenue and Customs

A4040:

Decision to be superseded is set aside on appeal

A4050:

The process of supersession

A4055:

Recording the decision

Change of circumstances

A4100:

Relevant change of circumstances

Decisions that can be superseded on the ground of change

A4101:

of circumstances

A4102:

Relevant change of circumstance

A4106:

When a change has the potential to be relevant

A4108:

Is a change of opinion a relevant change of circumstances

A4109:

Can a change in law be a relevant change of circumstance

Can a decision be superseded because of a future change

A4110:

of circumstance

A4115:

Supersession of advance awards

A4117:

Supersession for closed period

A4120:

Relinquishment of benefit

A4122:

Effectiveness of the relinquishment

Notification of changes

A4150:

Notification of a change of circumstances

A4151:

A4153:

Categories of people who can notify the change

A4154:

Method of notification

A4155:

Where to notify a change of circumstances

A4158:

UC Childcare Costs

A4159:

UC - Severely Disabled Person Caring Responsibility

Supersession on a change of circumstances - effective dates

Late notification of change of circumstances

A4211:

Meaning of special circumstances

A4212:

Deciding whether it is reasonable to grant the extension of time

A4214:

Decisions advantageous to the claimant

A4215:

Effective dates when changes notified within the time limits

A4216:

Change notified outside the time limits

A4218:

Award of other benefits

A4219:

A4221:

DM's own initiative

Decisions not advantageous to the claimant

A4223:

Effective dates

ESA Decisions

A4224:

Meaning of ESA Decision

A4225:

Meaning of LCW determination

A4227:

ESA Terminally ill Claimants

UC Decisions

Meaning of UC decision

A4233:

Meaning of LCW determination

A4236:

Meaning of "reasonably have been expected to know"

A4238:

UC claimant reaches the qualifying age for SPC

A4239:

UC Hardship Payments

A4240:

UC Terminally ill Claimants

A4241:

Changes in legislation

Error of law
What decisions can be superseded on the grounds of

A4243:

error of law

Circumstances when a decision be superseded on the grounds of error of law....

A4244:

A4245:

Meaning of error of law

A4246:

Reinterpretation of the law

A4250:

A4253:

Appeal against a relevant determination

A4254:

Superseding a first-tier Tribunal or upper Tribunal's decision

A4255:

A4258:

No outcome decision made

A4262:

Stayed appeals

Ignorance of or mistake as to a material fact
What decisions can be superseded on the grounds of

A4264:

ignorance of or mistake as to a material fact

A4265:

Material facts

A4270:

Ignorance of a material fact

A4273:

Mistake as to a material fact

A4275:

Opinions and material facts

A4278:

Supersession of a decision of a DM on grounds of ignorance or mistake

A4280:

Supersession of a decision of the FtT or the UT

A4281:

Effective date

Decisions which cannot be appealed to a First-tier tribunal

Sanction Cases

Reduction in benefit ceases to apply

A4290:

Special rules - late or unpaid contributions

Loss of benefit following benefit fraud offences

Special rules - uprating

A4297:

A4298:

Special rules - UC Housing Costs

Special rules - PIP

A4299:

Terminally ill

A4301:

Special rules - ESA

A4304:

Special rules - UC

A4306:

Determinations on incomplete evidence

A4309:

Determinations as to limited capability for work

A4311:

Alterations affecting UC

A4312:

Claimant fails to attend for or participate in a consultation - PIP

A4314:

Change from JSA to ESA or ESA to JSA

Suspension and termination of benefit

A4317:

Hardship

A4319:

Loss of contact with claimant

A4320:

Immediate suspension

Suspension where a question arises as to whether benefit should

A4322:

be revised or superseded

A4323:

Suspension where an appeal is pending

A4326:

Notification

A4327:

When benefit suspended must be paid - appeal no longer pending

Suspension where an appeal is pending against a decision in a

A4328:

different case

A4330:

What happens if the suspension is lifted

A4331:

Suspension where information has been requested

A4337:

Termination following suspension

A4339:

Extension of the time limit

A4340:

Date from which benefit is terminated

Chapter A4: Supersession, suspension and termination

A4001 Introduction

This chapter is about decision making on claims for
1. UC
2. PIP
3. new style JSA (hereafter referred to as JSA)
4. new style ESA (hereafter referred to as ESA).
Note
1: ADM Chapter M1 contains guidance on the meaning of new style JSA and
new style ESA.
Note
2: Guidance on supersession for benefits not listed above is in DMG Chapter
04.
Note
3: The guidance comes into effect (1) from 8.4.13 for PIP and from 29.4.13 for
UC, JSA and ESA.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 1(2) & 1(3)

A4002 Introduction to supersession

Supersession means changing a decision of the DM, the FtT or the UT and
replacing it, from a later date than the original decision. Certain conditions have to be
satisfied before a decision can be superseded. There is no time limit for making an
application for supersession.

A4003 Types of decisions that can be superseded « A4004

The following decisions may be superseded by a decision made by the Secretary of
State (1)
1. a decision on any claim for a relevant benefit (2)
2. any decision of the Secretary of State that falls to be made under relevant
Acts (3)
3. any decision described in 1. & 2. as revised
but this is subject to regulations.

1 SS Act 98, s 10; 2 s 8(1)(a) & (3); 3 s 8(1)(c) & (4)

A4004

The decisions under relevant Acts described in A4003 2. include
1. a decision to "disqualify a claimant for receiving benefit" on imprisonment (1)
2. a decision to "adjust" benefit where the claimant is receiving treatment as an
in-patient in a hospital (2)
3. a decision whether an overpayment of benefit is recoverable under specific
provisions (3).
This list is not exhaustive. See also Annex D. A decision that can be appealed can
also generally be superseded.
Note: See ADM Chapter D1 for guidance on overpayment decision making.

1 SS CB Act 92, s 113(3); 2 SS A Act 92, s 73(1); 3 s 71

A4005

A decision of the FtT or UT can also be superseded
1. where there has been a change of circumstances since that decision had
effect (1) or
2. where the DM is satisfied that the decision was made in ignorance of a
material fact or was based on a mistake as to a material fact (2) or
3. where the DM is required to supersede the FtT or UT decision made under
the stayed appeals procedures (3) (see A4262 and ADM Chapter A5).
Note: A decision of the FtT or UT cannot be superseded by a DM on the grounds of
error of law.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 23(1)(a); 2 reg 31(a); 3 reg 31(b)

A4006 Circumstances when a decision can be superseded « A4008

[See memo ADM 10 13 [not found]] A decision (referred to below as the "original decision") can
be superseded either when an application has been made by the claimant or on the
DM's own initiative where
1. there has been a relevant change of circumstances since the original decision
1.1 had effect
or
1.2 in the case of an advance award, was made (1)
2. a relevant change of circumstances is anticipated (2)
3. the original decision was
3.1 erroneous in law (DMs' decisions only) or
3.2 made in ignorance of a material fact or was based on a mistake as to a
material fact
and the application period for revision has expired (3)
4. the original decision is a decision without a right of appeal (see Annex D)4
5. a sanction has been imposed in accordance with specified legislation (5)
6. medical evidence has been received from a HCP or HP (other than a JSA
decision)6
7. a determination has been made that the claimant is to be treated as having
LCW or LCW and LCWRA (7)
8. on or after the original decision was made a late or unpaid contribution is
treated as paid under specified legislation (8)
9. a decision (9) which reduces the housing costs element of UC has been made
10. a negative determination decision has been made on an existing award of
PIP (10)
11. a decision has been made in loss of benefit cases (11)
1 UC, PIP, JSA & ESA (D&A) Regs, reg 23(1)(a); 2 reg 23(1)(b); 3 reg 24; 4 reg 25;
5 reg 27; WR Act 07, s 11J(1); JS Act, s 6J(1) & 6K(1); WR Act 12, s 26(1) & 27(1);
6 UC, PIP, JSA & ESA Regs, reg 26(1)(a); 7 reg 26(1)(b), ESA Regs, reg 16, 21, 22 & 29;
UC Regs, part 5; 8 UC, PIP, JSA & ESA (D&A) Regs, reg 29; SS (Crediting etc) Regs, regs 5&6;
SS (Conts) Regs 01, reg 60; 9 UC, PIP, JSA & ESA Regs, reg 30 & Rent Officers Order 2013;
10 UC, PIP, JSA & ESA (D&A) Regs, reg 26(2); 11 reg 28; SS Fraud Act 2001, s 6B, 7 & 9

A4007

To supersede a DM's decision on the ground that it was erroneous in law or made in
ignorance or mistake as to fact, the application for supersession or the decision to
initiate supersession must be made after the period in A4010 has ended (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 24(b)

A4008

If the application is made on any of the grounds listed in A4006, other than a change
of circumstances, during the period in A4010, the decision should be changed by
revision (1).
Note: A negative determination for PIP has the same effect as a change of
circumstances.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 20(1)

A4009

If during the period in A4010 a claimant reports a relevant change of circumstances
or information or evidence is received which indicates that a future relevant change
will occur, or is expected to occur, the DM should supersede the original decision (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(2) & reg 23

A4010 « A4007 « A4008 « A4009 « A4267

The application period for revision is either (1)
1. one month from the date of notification of the original decision or
2. a longer period (but not more than 13 months) allowed for a late application
for revision.
The one month period can be extended by 14 days in certain circumstances, for
example where reasons for the decision were not included in the decision notification
and the claimant asks for a written statement of reasons. See ADM Chapter A3 for
detailed guidance.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5 & 6

A4011 « A4107

A decision which can be revised should not be superseded except where there are
grounds allowing revision and further grounds arise allowing supersession (1). This
allows a decision to be revised and then superseded as part of one process.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 32

Example 1

A claimant has an award of the enhanced rate of the mobility component of PIP. He
disputes the decision, as he feels the period of the award is too short. He also
notifies that his condition has deteriorated and applies for the daily living component.
The DM revises the decision and extends the period of the award of the mobility
component and supersedes the decision as revised to award the standard rate of
the daily living component from a later date.

Example 2

A UC claimant disputes the amount of their award on the basis that their capital has
been determined incorrectly. He also says that he started having caring responsibility
for a severely disabled person. The DM revises the award of UC to alter the amount
payable and supersedes the decision as revised to include the carer element.
Applications

A4012 Introduction

When an application for supersession is received, the DM should consider whether
or not to admit it in order to establish whether an application is hopeless. See A4017
for guidance on admitting applications.

A4013

If the application is admitted, the DM should
1. make a decision to supersede where the outcome is changed (see A4018
A4020) or
2. make a decision not to supersede where the outcome is not changed (see

A4021 « A4020

- A4022).

A4014 Hopeless applications

If the application is not admitted because it is hopeless, the DM should notify the
claimant that no decision has been made and there is no right of appeal (1). DMs
should note that this is not a "decision not to supersede". The existing award
remains in place. The claimant should be notified why no action has been taken on
the matters raised by the application.

1 Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53; R (DLA) 1/03

A4015

A communication from the claimant should not be admitted as an application for
supersession if no further investigation of fact or law could possibly produce a
different decision from the one that has been made. This means that a
communication will not be an application if
1. it only contains abuse or
2. it contains only material that is not relevant to the benefit the claimant has
been awarded (e.g. the claimant has requested extra benefit because of an
increase in the price of cat food) or
3. the amount or period to which the claimant's communication relates is already
the maximum the law allows (1).

1 R(DLA) 1/03

A4016

DMs should note that it will be exceptional to reject an application for supersession
as hopeless.

A4017 Admitting an application « A4012 « A4124

Where there is a possibility that one or more of the conditions for supersession may
be satisfied, the DM should admit a communication as an application for
supersession.

A4018 Making a decision to supersede « A4013

The DM should make a decision to supersede where
1. one or more of the conditions (grounds) are satisfied, for example where
1.1 there has been a relevant change of circumstances
1.2 it is anticipated that a relevant change of circumstances will occur
1.3 a decision was made based on ignorance of or mistake as to a material fact
1.4 there has been an error of law and
2. the outcome is changed (1).

1 R(DLA) 1/03

A4019 « A4124

An outcome is changed where
1. the rate or period of entitlement to benefit is altered or
2. the rate or period for which benefit is payable is altered or
3. the period, amount or recoverability of an overpayment is altered.

A4020 « A4013 « A4267

Where the DM supersedes the previous decision, that decision is replaced from the
effective date of the new decision which carries the right of appeal.
A4021 Making a decision not to supersede The DM makes a decision not to supersede where the outcome is not changed
whether or not the conditions (grounds) to supersede a decision are satisfied. The
decision not to supersede carries the right of appeal (1).
1 R(DLA) 1/03

Example 1

A claimant in receipt of an award of PIP notifies that their condition has worsened.
The DM considers the report of the change, together with medical reports and
advice, and decides that the earlier decision should not be superseded.

Example 2

The claimant's appointee notifies that the claimant, who is entitled to PIP, has
transferred from hospital to a care home. The appointee asks for payment of PIP to
be reinstated as the claimant has left hospital. The DM establishes that the care
home is a similar institution to a hospital. Although there has been a relevant change
of circumstances, PIP still cannot be paid. The outcome is not changed, and the DM
decides not to supersede the earlier decision given on the claim to PIP made whilst
the claimant was in hospital.

Example 3

A claimant returns to work after being in receipt of ESA for 20 weeks. The WCA has
not been carried out. The claimant asks for arrears of a component to be paid from
week 14. The DM should make a decision not to supersede the decision which
awarded entitlement on the grounds that the conditions allowing supersession are
not satisfied.

Example 4

A UC claimant asks for an increase in benefit as they allege that they are caring for a
severely disabled person. The DM determines that this is not the case and decides
that the UC award should not be superseded.

A4022 « A4021

A decision not to supersede has no effective date. It does not replace the earlier
decision (1). If it is revised or overturned on appeal, it then becomes a decision to
supersede with the effective date calculated in the normal way. DMs should ensure that
1. the original decision and
2. the evidence on which it was based and
3. the application for supersession including the date on which it was made are
retained.
1 R(DLA) 1/03

A4023 Treating as an application for supersession

A DM may treat an application for revision or a notification of a change of
circumstances as an application for supersession (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 33(1)

A4024 Providing information

Where claimants apply for supersession, the onus is on them to prove (on the
balance of probabilities) the facts upon which that application is based. They should
supply information to support their application.

A4025 Further information needed « A4026

Where a DM requires further information or evidence in order to consider all the
issues raised by an application for supersession the applicant should be notified that
more information or evidence is required and the decision may be superseded (1)
1. where the applicant provides the further evidence or information within one
month of the notification (or such longer period as the DM may allow) on the
basis of all the evidence and
2. where the applicant does not provide the further evidence or information within
one month (or such longer period as the DM may allow) on the basis of the
original application.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 33(2) & (3)

Example

John has income of £55 a week taken into account in relation to his claim for JSA
(profit from his P/T window cleaning business). In April he asks the DM to look again
at the decision as he says he now has expenses of £25 a week. He says he pays
someone to help him - £20 a week, and has to buy replacement cloths, cleaning
foam etc. for £5 a week. He sends in receipts for the cloths etc. At the beginning of
May the DM asks him to supply copies of wage slips or pay packets for the £20 a
week, but John doesn't reply. At the beginning of June the DM supersedes the
decision from the date of the application in April and takes income of £50 a week
into account.

A4026 Information provided late

Where the information is provided after the time limit allowed by the DM in A4025
and
1. a decision has not been made, the decision should be based on all the
evidence including the late information
2. a decision has been made, the DM should consider whether the decision
needs to be revised or superseded in the light of the late information.

A4027 Issues for decision by HM Revenue and Customs

HMRC are responsible for making decisions on SS contributions issues previously
determined by the Secretary of State (1). See Annex C for a list of these decisions.

1 Social Security Contributions (Transfer of Functions) Act 99, s 8(1)

A4028 « A4029

Entitlement to SS contributory benefits depends on the contribution conditions being
satisfied. In practice the NI contribution record is usually obtained and any decision
is based on the assumption that the record is factually correct. See ADM Chapter A1
for further guidance about making assumptions. However, where there is a dispute
about the record, the matter must be referred by the Secretary of State to HMRC for
a formal decision.

A4029

Where the Secretary of State has decided a claim or another matter on an
assumption of facts about which
1. it appeared to him there was no dispute but
2. had an issue arisen, that issue would have fallen to be decided by HMRC as
in A4028
then the provisions of A4030 - A4034 may apply (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(2)

A4030 « A4029

Where an application is made for supersession and the DM considers that an issue
arises about some question that should be decided by HMRC, that matter should be
referred to HMRC (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(1)

A4031

While a decision of HMRC is awaited, the DM can (1)
1. determine any other issue arising from the application for supersession
2. make a supersession decision on the basis of a preliminary opinion of HMRC
or
3. defer making a supersession decision.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(3)

A4032

Once the final decision of HMRC is received, the action to take depends on whether
the DM has made a supersession decision or has deferred that decision.

A4033

If the DM has made a decision on the basis of a preliminary opinion, he should
consider whether the decision should be revised or superseded (1) in accordance with
HMRC's final decision.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(4)(a)

A4034 « A4029

Where the DM has decided to defer making the supersession decision, a decision
should be made in accordance with HMRC's final decision (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(4)(b)

A4035

A final decision of HMRC includes a decision on an appeal against a decision of
HMRC (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 42(5)

[A4036-A4039]

A4040 Decision to be superseded is set aside on appeal

Where
1. a decision is or is not superseded following an application and
2. the original decision is set aside on appeal to the FtT or UT
the decision to supersede or not may be of no effect (1).

1 R(DLA) 2/04

A4041

An application for supersession on the basis that the original decision was made in
ignorance of a material fact lapses where the original decision is set aside on
appeal.

Example

The claimant is awarded the standard rate of the daily living component of PIP
following a further claim. Following a mandatory reconsideration he lodges an appeal
against this decision with HMCTS. Before the appeal is heard, the claimant also
applies for the decision to be superseded on the grounds that the DM was ignorant
of material facts. The DM decides not to supersede the original decision. On appeal,
the FtT sets aside the DM's original decision and awards the enhanced rate of the
daily living component. The DM's decision not to supersede is of no effect, and there
is no requirement to consider whether the FtT decision should be superseded,
because they were deciding the further claim afresh.

A4042

An application for supersession for a relevant change of circumstances may need to
be processed again, including treating it as an application for supersession of a
different decision, or as a new claim.

Example

The claimant's award of PIP came to an end, and was disallowed when a further
claim was made. On appeal, the FtT awarded the standard rate of the mobility
component. The claimant made a further appeal to the UT who set aside the FtT
decision, and remitted the appeal for rehearing. While the UT appeal was pending,
but before the decision had been set aside, the claimant had applied by telephone
for supersession of the FtT decision so as to award the daily living component on the
grounds of a change of circumstances. The DM made a decision not to supersede,
and the claimant made a further appeal. Both appeals were heard together. The FtT
upheld the disallowance of the further claim, and held that the second appeal lapsed
as there was no awarding decision to supersede. The DM treats the application as a
claim, and makes a decision accordingly.

[A4043-A4049]

A4050 The process of supersession

Once it has been decided that there are grounds for supersession, the DM should
1. identify the decision to be superseded
2. investigate and determine the relevant facts
3. decide whether the facts mean that the terms of the award should change
4. make a decision accordingly. That may be either a decision which is different
from the decision superseded or a decision not to supersede
5. determine the date from which the supersession decision should take effect
6. decide what, if any, overpayment has occurred.

A4051

The DM need not consider any issue (1) that
1. in the case of an application, was not raised by the application or
2. in the case of a supersession at the DM's own initiative, did not cause the DM
to supersede.
1 SS Act 98, s 10(2)

[A4052-A4054]

A4055 Recording the decision

It is important that a record be made of the supersession decision. That record
needs to
1. identify the person to whom it relates
2. specify clearly that the decision is supersession
3. precisely identify the decision that is being superseded and
4. state the grounds allowing supersession to be undertaken.

[A4056-A4099]

Change of circumstances

A4100 Relevant change of circumstances

Where
1. there has been a relevant change of circumstances since the decision
1.1 had effect
or
1.2 was made in the case of an advance award (1) or
2. it is expected that a change will occur
the DM may supersede the decision which is currently in force (2). The application
period for revision is irrelevant in these cases. See also A4115 - A4116.
1 UC, PIP, JSA & ESA (C&P) Regs, regs 32-34; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 23

A4101 Decisions that can be superseded on the grounds of change of circumstances

The following decisions can be superseded on the grounds of a change of circumstances
1. any decision on a claim for a relevant benefit (1)
2. any decision made under relevant Acts (2)
3. any decision in A4101 1. or A4101 2. which has been revised by a DM (3)
4. any decision made by the FtT or UT (4).
1 SS Act 98, s 8(1)(a); 2 s 8(1)(c); 3 s 10(1)(a); 4 s 10(1)(b)

A4102 Relevant change of circumstances

For the purposes of supersession a relevant change of circumstance is a change
which happens after the original decision had effect and which has a relevance to
the award of benefit. A decision disallowing a benefit cannot be superseded if there
is a change of circumstances from a date after the decision had effect. The claimant
must make a fresh claim (1). But see A4103 for an exception to this general rule.

1 SS Act 98, s 8(2)(b); R(A) 4/81

A4103 « A4102

The claim continues to exist until it is decided (1). A new claim may not be required where
1. a claim is disallowed and
2. a change occurs after the date of claim but before the claim was decided and
3. the claimant notifies the change within the time limits (see A4201 - A4213).
Where the effect of the change is that entitlement would begin before the date of the
disallowance (or for PIP, the qualifying period would begin before the date of the
disallowance), the decision can be superseded for a relevant change of
circumstances. The effective date rules apply in the normal way.
1 SS Act 98, s 8(2)(a)

Example 1

A claim to JSA is made on 20.12.17. The claimant is working P/T in a high street
store for 20 hours a week, and the claim is disallowed on 10.1.18. On 22.1.18 she
notifies that her employment, which was a temporary job over Christmas, had ended
on 5.1.18. The change has been reported within one month, so the DM supersedes
the disallowance and awards entitlement to JSA from 6.1.18.

Example 2

A claim to UC is made on 20.12.15. The claim is disallowed on 17.1.16 because the
claimant has capital in excess of £16,000. On 22.1.16 the claimant reports that their
capital fell below £16,000 on 5.1.16. The DM determines that no deprivation has
occurred. The disallowance is superseded and an award of UC is made from
20.12.15.

A4104

To be relevant a change does not have to be a change in the claimant's own
circumstances. The phrase "relevant change of circumstances" should be given a
broad meaning. A relevant change must
1. be of sufficient substance to give serious consideration to supersession
2. have the potential effect of altering some component part of the award of
benefit even if the end result does not actually change the amount of the
award (see A4106).

A4105

The following are examples of a relevant change of circumstances.

Example 1

A jobseeker decides to go on holiday outside the UK. This is a relevant change
because the jobseeker is absent from GB.

Example 2

In PIP cases a person with an existing award of the standard rate of daily living
component whose needs increase on a regular basis is a relevant change because it
may give entitlement to the enhanced rate of the component.

Example 3

A person in receipt of UC starts to live with their partner.

A4106 When a change has the potential to be relevant « A4104

There will be situations where a change has the potential to affect an award of
benefit but the DM ultimately decides that the change does not affect the amount of
benefit awarded. This could happen, for example, because a claimant in receipt of
ESA maintains that their medical condition has deteriorated. The DM may, having
considered the evidence, decide that the change does not affect the existing award.

A4107

The DM should make a decision not to supersede. See A4011 et seq for further
guidance.
Is a change of opinion a relevant change of circumstances

A4108

A change of opinion is not in itself a relevant change of circumstances. This should
be noted when a medical opinion has been obtained after a certificate has been
issued by a claimant's doctor. A report containing a further medical opinion may
however contain evidence of a change of circumstances, for example if a condition
has been wholly cured as a matter of medical fact (1).
Note:
Where new medical evidence is received following examination by a HCP or
HP or other person approved by the Secretary of State, the DM does not have to
identify a change of circumstances in order to supersede. This does not apply to
JSA.
1 R(DLA) 6/01

A4109 Can a change in law be a relevant change of circumstance

A change in the law can be a relevant change of circumstances. However, where a
claim has been disallowed before a change in legislation takes effect, it cannot be
superseded due to a change of circumstance. This is because the claim has already
been disposed of and the decision was correct under the law current at that time (1). A
fresh claim is needed.
1 R(I) 56/54 & R(A) 4/81

A4110 Can a decision be superseded because of a future change of circumstance

A decision may be superseded when it is expected that a relevant change of
circumstances will occur on a future date (1). The DM should be satisfied on the
balance of probabilities that it is likely that the expected change will actually take
place.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 23(1)(b)

A4111 « A4112 « A4112

Where a decision is given for an expected change of circumstances, the DM must
record that it might need to be revised (1) if the change
1. does not occur or
2. occurs on a date other than the one expected.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 5

A4112

Where
A4111 1. applies, the revised decision is that there are no grounds to
supersede. Where A4111 2. applies, the revised decision takes account of the fresh
information about the date of change and changes the effective date where
appropriate.

[A4113-A4114]

A4115 Supersession of advance awards « A4100

An award on an advance claim is conditional on the claimant's circumstances on the
first day of entitlement (1). Changes of circumstances occurring and effective
1. after the date the claim is decided and
2. before the relevant or renewal date
can be dealt with by way of supersession where the circumstances in A4116 apply.
See also ADM Chapter A3 for revision of advance awards.

1 UC, PIP, JSA & ESA (C&P) Regs, regs 32-34; R(DLA) 4/05

A4116 « A4100 « A4115

Where
1. a change (either favourable or unfavourable) occurs and is notified before the
relevant or renewal date is reached or
2. a favourable change is notified after the relevant or renewal date is reached
the DM should consider whether the award should be superseded on the grounds of
a relevant change of circumstances since the decision was made (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 23(1)(a)

Example

PIP current award expires 1 August. Further claim decided 1 March, effective from
2 August. Award is for the standard rate of daily living component and standard rate
of mobility component.
On 1 April the claimant gets worse and his needs change, entitling him to the
enhanced rate of the daily living component. The change is reported 15 July. The
DM supersedes the decision made on 1 March awarding enhanced rate daily living
component from 2 August. The decision on the previous award is also superseded
with effect from 15 July.

A4117 Supersession for closed period

A decision awarding benefit may be superseded for a fixed period to take account of
a change of circumstances which has already come to an end. The supersession
only replaces the original decision for that period.

Example

A claimant is in receipt of JSA. Following a fraud investigation, it is established that
he was working on a building site for over a year. The work finished when he was
laid off. The DM supersedes the awarding decision to disallow JSA for the same
period. The conditions of entitlement should be determined from the first day of the
fresh period of entitlement.

[A4118-A4119]

A4120 Relinquishment of benefit

A claimant may decide that they do not want entitlement to benefit to continue for
example where the amount of benefit is small. The request should be treated as an
application for supersession.

A4121

The claimant may ask not to receive payment of benefit while underlying entitlement
continues. The DM should refuse to supersede following such a request. This is
because if entitlement exists, the Secretary of State has an obligation to pay benefit
in accordance with an award.

A4122 Effectiveness of the relinquishment

The DM should investigate to ensure that the claimant's relinquishment is a genuine
statement of intention, and the consequences explained where appropriate.

A4123 « A4125 « A4127

A request to surrender benefit might not be effective where
1. the claimant is vulnerable or incapable of deciding their affairs and there is no
appointee or
2. the withdrawal is made as a result of threatening or overbearing behaviour,
deception or similar improper behaviour.

A4124

Where the DM is not satisfied that the claimant
1. made the request freely and
2. is capable of fully understanding the implications
the request should be refused. The DM should make a decision that the awarding
decision is not superseded (see A4017 - A4019).

A4125

Where
1. the claimant has been advised of the consequences and
2. the request is genuine and
3. A4123 does not apply
the DM should end entitlement accordingly.

A4126

Once entitlement has been ended as in A4129 - A4131, a further claim is required if
the claimant wishes to receive the benefit again. A change of mind about
relinquishment is not grounds for revision, because it was not a fact in existence at
the time the original decision was made.

A4127

The decision ending entitlement can be revised within the application period if it is
established that the original request to surrender entitlement was not effective as in
A4123. Where the application is made outside the time limits, the DM should
consider whether to revise for official error. See ADM Chapter A3 for advice on
revision.

A4128

If ending entitlement was not in their best interests, and a further claim is made, the
DM has no authority to fix a date of claim to cover a period when the claimant was
not entitled. The normal rules about the prescribed time for claiming still apply (see
ADM Chapter A2). For example, a person who reclaims ESA two months after
surrendering an award can be entitled from the day following the end of that award.

A4129 Ending entitlement « A4126

Where a claimant no longer wishes to receive a benefit, and the DM accepts that the
request is effective, the DM should supersede the awarding decision on a relevant
change of circumstances (1), and terminate the award. The claimant has the right of
appeal. The supersession ends entitlement to, as well as payability of, benefit,
because the award has come to an end with the withdrawal of consent.

1 SS Act 98, s 10; UC, PIP, JSA & ESA (D&A) Regs, reg 23(1)(a)

A4130

The relevant change is that the claimant no longer consents to be entitled to receive
the benefit, or no longer wishes it to be payable. The date of the change is
1. the date specified by the claimant where appropriate or
2. the first pay day following the date of the application or
3. the first pay day following the date the decision is made, where benefit
continues to be paid after the application is made and is not returned or
4. the first day in the assessment period for UC
Note: The claimant cannot surrender benefit for a past period.

Example

A claimant is in receipt of UC. They start work which has the effect of reducing the
amount of UC to £1 for each assessment period. The claimant writes to say that they
no longer wish to receive UC. The DM accepts that the relinquishment is genuine.
The decision awarding UC is superseded on a relevant change of circumstances to
end entitlement, effective from the first day of the assessment period in which the
request for relinquishment was made.

A4131 « A4126

For guidance on the effective date of the supersession (1), see A4223 et seq. DMs
should note that although some changes of circumstances must be notified in
writing (2), an application for supersession can be made orally or in writing.
1 SS Act 98, s 10(5); UC, PIP, JSA & ESA (D&A) Regs, Sch 1; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 38
Note: An award of benefit cannot be surrendered in part.

A4132 Death of claimant « L3414

The death of the claimant is a relevant change of circumstances affecting
entitlement to benefit. In the majority of cases, there is no requirement for an
awarding decision to be superseded so as to end entitlement. However, where there
is an overpayment of benefit as a result of late notification of the death, the awarding
decision must be superseded before the DM can consider whether the overpayment
is recoverable (1).
Note 1: See ADM Chapter D1 for guidance on overpayment decision making.
Note
2: See ADM Chapter A2 regarding how death impacts awards of UC in certain
circumstances.
1 SS A Act 92, s 71(5A); SS Act 98, s 10(1)

[A4133-A4149]

Notification of changes

A4150 Introduction

The process of supersession on a change of circumstances is closely linked to the
legal requirement that certain changes be notified to the Secretary of State.

A4151 Notification of a change of circumstances « A4154

Beneficiaries and every person by whom, or on whose behalf, sums by way of
benefit are receivable are required (1) to notify the Secretary of State of any change of
circumstance which they might reasonably be expected to know might affect
1. continuing entitlement to benefit or
2. the amount of benefit awarded or
3. the payment of benefit
as soon as reasonably practicable after the change occurs. In addition there may be
benefit specific rules requiring changes to be notified.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 38

A4152

A4153 Categories of people who can notify the change

A change of circumstances can be notified by
1. the claimant
2. the appointee
3. any person who is an authorised representative for the claimant
4. a representative or agent of the Secretary of State
5. in overseas cases, social security authorities of EC countries, or other
countries that have reciprocal arrangements with the UK.
Note: This list is not exhaustive. The legislation does not specify who may apply for
supersession on a change of circumstances.

A4154 Method of notification

Notification of the changes set out in A4151 must be made (1) to an appropriate office
1. in writing (including electronic communications where appropriate) or by
telephone (unless it is determined that notice must be given in a particular way
or to accept notice other than in writing or telephone) or
2. in writing if in any class of case written notice is required (unless it is
determined to accept notice given otherwise than in writing).
Note:
this does not apply to JSA, which has its own rules (2) concerning reporting
changes.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 38(5); 2 JSA Regs 13, reg 31

A4155 Where to notify a change of circumstances

A change of circumstances should be notified to an appropriate office (1). An
appropriate office is
1. in cases where a person is authorised or required to use electronic
communications, an address where electronic communications may be sent
2. a DWP office or
3. any other place as may be designated (including a postal address).
Note:
Where a notification is received in a different office of the DWP, and is
forwarded to and received by the appropriate office, it should be treated as received
in the appropriate office on the date of receipt in the different office. But see ADM
Chapter D1 in overpayment cases.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 2 & Sch 2

A4156

In the case of a birth or death, the duty to notify (1) may be discharged by notifying the
Secretary of State, as soon as reasonably practicable, by personal attendance at an
office specified by
1. an LA or
2. a county council in England
that the Secretary of State has agreed may facilitate such notifications

1 UC, PIP, JSA & ESA (C&P) Regs, reg 39(a)

A4157

In the case of a death only, the duty to notify (1) may be alternatively discharged by
telephone to a telephone number specified for that purpose by the Secretary of
State.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 39(b)

A4158 UC Childcare Costs

Where a claimant is in receipt of UC childcare costs then a person providing relevant
childcare (1) must provide such certificates, documents, information or evidence in
connection with the award, or any question arising out of it. This must be supplied
within a month or such longer period as may be considered reasonable (2). See ADM
Chapter F7 for when the childcare costs condition is satisfied.
1 UC Regs, reg 33 & 35; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 38(7)

A4159 UC - Severely Disabled Person Caring Responsibility

Some UC claimants may be in receipt of a carer element (1) in respect of the fact that
they have regular and substantial caring responsibilities for a severely disabled
person. The severely disabled person may be required to furnish a signed
declaration to confirm the details which have been given by the claimant (2).
1 UC Regs, reg 29; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 38(8)

[A4160-A4199]

Supersession on a change of circumstances -effective dates

A4200 Introduction « L3414

The effective date of a supersession on a change of circumstances depends upon
whether the result of the supersession would be advantageous or disadvantageous
to the claimant and whether the change has been notified within certain time limits.

A4201 « A4103 « A4212

describes the general rule. However, these paragraphs should be read
together with any of the special rules relating to specific benefits.
A4201 Time limits The general rule is that an advantageous change of circumstances is to be notified
within one month of the date the change occurred. For UC it should be noted that the
change should be notified in the assessment period in which the change occurs.

A4202

The relevant notification period is, for UC the assessment period in which the
change occurs and for ESA, JSA and PIP a period of one month, beginning with the
date on which the change of circumstances occurred (1).
Note: The DM should exercise discretion in cases where a UC claimant notifies a
change promptly but it is received in the next assessment period.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(9)

Example

Cornelius has an assessment period that starts on the 13th of each month and ends
on the 12th of the following month. A change in his circumstances occurs on the
10th of January and he notifies the Department by post. The post is not received
until the 14th of January. The DM exercises discretion and supersedes the award of
UC from the 13th December.

[A4203]

A4204 Late notification of change of circumstances « A4215 « A4216

The time limit for notifying a change of circumstances can be extended provided all
of the five conditions at A4205 to A4209 are satisfied (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(1)

A4205 « A4204

The first condition is that an application for an extension of time is made at an
appropriate office (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(2)

A4206

The second condition is that the application must (1)
1. contain details of the relevant change of circumstances and
2. include the reasons for the failure to notify the change on an earlier date and
3. be made within 13 months of the date the change occurred or
4. for PIP (2), be made within 13 months of the date on which the applicant first
satisfied the conditions of entitlement to the particular rate of benefit

1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(3); 2 Sch 1, part 2, para 14

A4207

The third condition is that it is reasonable to grant the application (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(4)

A4208

The fourth condition is that the notified change is relevant to the decision to be
superseded (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(5)

A4209 « A4204

The fifth condition (1) is that
1. special circumstances are relevant to the application and
2. as a result of those special circumstances it was not practicable for the
applicant to notify the change of circumstances within the relevant notification
period.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(6)

A4210 « A4215 « A4216

A4211 Meaning of special circumstances

The phrase "special circumstances" is not defined in legislation. It can include
factors such as
1. the claimant, or the claimant's partner or dependant has died or suffered a
serious illness
2. the claimant is not resident in the UK
3. normal postal services have been disrupted
This list is not exhaustive and each application must be treated on its merits.

A4212 Deciding whether it is reasonable to grant the extension of time

The DM must have regard to the principle that the greater amount of time that has
lapsed between the time limit for notifying the change and the date of application the
more compelling should be the special circumstances on which the application is
based (1). The DM must take no account of the fact (2)
1. that the applicant or any person acting for them was ignorant of or
misunderstood the law applicable to their case (including the time limit for
reporting changes of circumstance as set out in A4201) or
2. that a UT or a court has taken a different view of the law from that which was
previously understood and applied.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(7)(a); 2 reg 36(7)(b) & 36(7)(c)

A4213 « A4103

An application which has been refused cannot be renewed (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 36(8)

A4214 Decision advantageous to the claimant

Decisions which are advantageous to the claimant include those where
1. the amount of benefit is increased, or is awarded for a longer period (1) or
2. the amount of benefit in payment would be increased but for the application of
a provision in the law (2) restricting or suspending payment of a benefit or
disqualifying a claimant from receiving benefit or
3. a denial or disqualification for receiving benefit is lifted whether in whole or in
part (a partial lifting of a disqualification would include, for example, where the
period of a JSA sanction is reduced in length)3 or
4. a decision to pay benefit to a third party is reversed (4) or
5. an overpayment is not recoverable or the amount recoverable is reduced (5) or
6. the claimant gains financially (6).
Note:
See ADM Chapter D1 for guidance on overpayment decision making.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 52(5)(a); 2 reg 52(5)(b);
3 reg 52(5)(c); 4 reg 52(5)(d); 5 reg 52(5)(e); 6 reg 52(5)(f)

Example

Anna is in receipt of UC. Her assessment period runs from 16th of the month to 15th
of the following month. She rings up on Saturday 16th February to notify a change of
circumstances. The office is closed. She rings up again on Monday 18th February.
The DM supersedes the award of UC from 16th January.

A4215 Effective dates when changes notified within the time limits

Where an appropriate office is notified of an advantageous change of circumstances
within the relevant notification period or within such longer period as may be allowed
under A4204 - A4210, the effective date of the supersession will be
1. for ESA and JSA (1), the first day of the benefit week in which the change occurs
or is expected to occur
2. for PIP (2), the day on which the change occurs or is expected to occur
3. for UC (3) , the first day of the assessment period in which the change occurs or
is expected to occur
Note: See A4217 for PIP cases where the change relates to entitlement to a
particular rate.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, part 1, para 1; 2 Sch 1, part 2, para 12; 3 Sch 1, part 3, para 20

Example

David is in receipt of UC. His assessment period runs from the 17th of the month to
the 16th of the following month. He notifies the Department on the 1st of December
that from the 25th of November he started to care for his elderly mother. The DM
determines that David is caring for his mother on a regular and substantial basis.
The award of UC is superseded to include the carer element from the 17th of
November.

A4216 Change notified outside the time limits

Where an advantageous change of circumstances is notified later than one month
after it occurred, or for UC after the end of the assessment period in which the
change occurred (or such longer period as the DM may have allowed under A4204
A4210) then the effective date of the supersession will be
1. for ESA and JSA (1), from the beginning of the benefit week in which the
notification was made
2. for PIP (2), from the date of notification of the change (but see A4217)
3. for UC (3), from the first day of the AP in which the notification was made (but
see A4219 - A4220)

1 UC, PIP, JSA & ESA (D&A) Regs Sch 1, part 1, para 6; 2 Sch (1), part 2, para 14; 3 Sch 1, part 3, para 21

A4217 « A4215 « A4216

In the case of PIP (1),
1. where the change is relevant to entitlement to a particular rate and
2. the claimant notifies an appropriate office of the change
2.1 no later than one month after the date on which they first satisfied the
conditions of entitlement to that rate or
2.2 within such longer period as may be allowed
the superseding decision takes effect from the date on which the claimant first
satisfied those conditions.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 2, para 15

A4218 Award of other benefits

In the case of PIP where the claimant becomes entitled to another relevant benefit
under prescribed legislation (1) or ceases to be entitled or the rate of another such
benefit alters then the superseding decision takes effect (2) from the date on which
entitlement to the other benefit or an alteration in its rate arises or entitlement ends.
1 SS Act 98, s 8(3); 2 UC, PIP, JSA & ESA (D&A) Regs, Sch 1 part 4, para 31(1) & 31(2)(b)

A4219 UC « A4216

In the case of a UC claimant where
1. the relevant change is that the person's employed earnings are reduced and
2. the claimant provides such information for calculating those earnings at such
times as may be required
the superseding decision takes effect (1) from the first day of the assessment period in
which that change occurred.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3, para 22

Example

Tony is in receipt of UC and works part time in a bingo hall. His assessment period
starts on the 15th of each month. His hours are reduced on 28 February. He informs
DWP of this change and is asked to provide details of his new earnings. Tony does
this and the DM supersedes the award of UC from 15 February to take into account
his reduced earnings.

A4220 « A4216

In the case of UC where the claimant or a member of their family becomes entitled
to another relevant benefit, ceases to be entitled or the rate of another such benefit
alters then the superseding decision takes effect (1) from the first day of the
assessment period in which entitlement to the other benefit or an alteration in it's
rate arises or entitlement ends.
1 SS Act 98, s 8(3); UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 4, para 31(1) & 31(2)(a)

Example

Matt is in receipt of UC and JSA. He starts part time work and receives payment
from this employment in the final week of his assessment period. His award of JSA
is terminated. The DM supersedes the award of UC from the first day of the
assessment period so that JSA is no longer taken into account when determining the
amount of UC payable.

A4221 DM's own initiative

Where DMs supersede on their own initiative to deal with a change of circumstances
and the result is advantageous to the claimant the effective date of supersession
takes effect
1. for ESA and JSA, from the beginning of the benefit week in which action was
started with a view to supersession (1)
2. for PIP, the date on which action was started with a view to supersession (2)
3. for UC, the first day of the AP in which action was started with a view to
supersession (3).

1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1, para 10; 2 Part 2, para 18; 3 Part 3, para 29

A4222

It will often be useful for the DM to make a note of the date they first noticed that
action was needed to deal with a change so that there is evidence of the basis for
the effective date subsequently used.
Decisions not advantageous to the claimant

A4223 Effective dates « A4131

A supersession for a change of circumstances that is not advantageous to the
claimant generally takes effect
1. for ESA and JSA
1.1 from the first day of the benefit week in which the change occurs or is
expected to occur (1) or
1.2 if not practicable as in 1.1, and the change has occurred, from the first
day of the benefit week following that in which the superseding decision
is made (2) or
1.3 if not practicable as in 1.1 and where the change is expected to occur,
from the first day of the benefit week following that in which the change
is expected to occur (3)
2. for PIP (4), from the date on which the change occurs or is expected to occur
(see A4231)
3. for
UC (5), the first day of the assessment period in which the change occurs or
is expected to occur.
Note:
See ADM Chapter D1 for overpayments.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1, para 1; 2 para 3(a);
3 para 3(b); 4 Part 2, para 12; 5 Part 3, para 20

Example 1

Norman is in receipt of UC. His assessment period runs from the 8th of the month to
the 7th of the following month. On the 12th January he notifies the Department that
he has inherited £25,000 from his father's estate and has received a cheque for that
day. The DM supersedes the award of UC to terminate the award from the 8th
January.

Example 2

Jeremy is in receipt of PIP. On 17 January he rings up to inform the Department that
he has moved to the USA permanently since 10 January. The DM supersedes the
award of PIP to end entitlement from 11 January.
ESA decisions

A4224 Meaning of ESA decision

An ESA decision (1) in this section of the guidance is a decision to award ESA that
embodies a determination that the person is or is to be treated as having LCW.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1, para 11

A4225 Meaning of LCW determination « A4226

A LCW determination (1) is a determination whether
1. a person has LCW or
2. can be treated as having LCW.

1 WR Act 07, s 1(4) & s 8; ESA Regs 13, reg 15 & 16

A4226

In the case of an ESA decision where there has been a LCW determination as in A4225where the DM is satisfied that the claimant (1)
1. failed to notify the appropriate office of a change of circumstances which the
claimant is required to notify and
2. could reasonably have been expected to know that the change of
circumstances should have been notified
then the award of ESA is superseded from (2) either the date on which the claimant
ought to have notified the change of circumstances or if more than one change has
taken place between the date from which the decision to be superseded took effect
and the date of the superseding decision, the date the first change should have been
notified. See A4235 - A4236.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1 para 7; 2 para 8

A4227 ESA Terminally ill Claimants

When a claimant applies for a supersession which contains a statement that they
are terminally ill then the superseding decision takes effect from the date the
claimant became terminally ill (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1, para 9

A4228 Ending entitlement

Where entitlement ends, or is expected to end as a result of a change of
circumstances the superseding decision takes effect from the day the change
occurs or is expected to occur (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1, para 4

Example

David is in receipt of ESA. He starts work on 1.11.16. His award of ESA is
terminated from 1.11.16.

A4229

Where an ESA claimant has been detained in hospital under prescribed legislation (1)
and ceases or is expected to cease to be so detained for less than a week the
superseding decision takes effect from the day on which the change of
circumstances occurs or is expected to occur (2).
1 Mental Health Act, s 45A & s 47; 2 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 1, para 4

A4230 PIP Decisions

A PIP decision in this section of the guidance is a decision to award either or both
the daily living or mobility components of PIP (1).

1 WR Act 12, s 78(1) & (2) & s 79(1) & (2); UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 2, para 19

A4231 « A4223

Where the DM is satisfied that the claimant (1)
1. failed to notify an appropriate office of a change of circumstances relating to
disability issue and
2. could reasonably have been expected to know that the change of
circumstances should have been notified
the award of PIP is superseded from (2) either the date on which the claimant ought to
have notified the change of circumstances or the date on which the first change
ought to have been notified if more than one change has taken place between the
date from which the decision to be superseded took effect and the date of the
superseding decision. See A4236. "Reasonably expected to know" only refers to
changes in a claimant's disability and their ability to carry out activities.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 2, para 16; 2 para 17
UC decisions

A4232 Meaning of UC decision

The UC decision in this section of the guidance means a decision to award UC
which embodies a determination that a person has, or is treated as having LCW (1).
1 WR Act 12, s 37; UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3, para 30

A4233 Meaning of LCW determination

A LCW determination (1) is a determination whether
1. a person has LCW or
2. can be treated as having LCW.

1 WR Act 12, s 37(1) & 37(6); UC Regs 13, reg 39

A4234

Where the DM is satisfied that the claimant
1. failed to notify an appropriate office of a change of circumstances which the
claimant is required to notify and
2. could reasonably have been expected to know that the change of
circumstances should have been notified then the award of UC is superseded
from (1)
either the first day of the assessment period in which the claimant ought to have
notified the change of circumstances or the first day of the assessment period in
which the first change ought to have been notified if more than one change has
taken place between the date from which the decision to be superseded took effect
and the date of the superseding decision (2) (see A4236).

1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3, para 23; 2 para 24

A4235 « A4226

For ESA and PIP, if it is not reasonable for the claimant to know that the change
should have been notified then the supersession decision takes effect from the date
the decision is made (1). For UC the effective date is the first day of the assessment
period in which the DM makes the decision (2).
1 SS Act 98, s 10(5); 2 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3, para 25

A4236 Meaning of "reasonably have been expected to know" « A4226 « A4231 « A4234

The test of reasonableness is not defined in law. It is similar to the test established
by case law for recoverable overpayments arising from failure to disclose material
facts (see ADM Chapter D1). When considering that guidance the DM should take
into account such matters as
1. the likely extent of the claimant or appointee's knowledge of the reasons for
awarding the benefit involved
2. the information given to the claimant about notification of changes of circumstances
3. the claimant's ability to recognise when a gradual improvement results in a
relevant change of circumstances.

A4237

A slight change in the claimant's ability to carry out activities would not normally be a
change that a person could reasonably be expected to notify. However, where the
change is gradual there may be a point at which the person could reasonably have
been expected to know that a change should be reported.

Example 1

A claimant has an award of the enhanced mobility and enhanced daily living
components of PIP because of the effects of progressive heart disease. On 8.11.19
the claimant undergoes a successful heart bypass operation, but does not report this
until 1.6.20. Further evidence is obtained from the hospital showing a significant
improvement in the claimant's walking ability and reduced care needs, within three
months of the operation.
The DM decides that the claimant is not entitled to either component from 9.2.20.
The claimant was aware of the basis of the award and could reasonably have been
expected to know that the improvement should have been notified. The
supersession decision takes effect from 9.2.20

Example 2

The claimant has a cataract. She satisfies the WCA because she cannot see well
enough to read 16 point print at a distance greater than 20 centimetres. The DM has
determined that she has LCW. She has an operation to remove the cataract. After a
period of recuperation her vision is improved to the extent that three weeks after the
operation she is able to read a newspaper without using her magnifying glass. The
DM decides that she could reasonably have been expected to know that the
improvement in her ability to see should have been notified. The supersession
decision takes effect three weeks after the operation, when the change should have
been notified.

Example 3

The claimant has a heart condition and is receiving out-patient treatment at a
hospital. He scores points for walking, and lifting, carrying and reaching, satisfying
the WCA. At first he was unable to walk further than 200 metres. But with exercise
this has improved and he can now walk more than 200 metres. The doctor reports
that he still has problems with lifting, carrying and reaching. The DM decides that it
was not reasonable for him to know that the change should be notified, because the
improvement was gradual and only affected one activity. The supersession decision
takes effect from the date it is made.

A4238 UC claimant reaches the qualifying age for SPC

When a claimant reaches the qualifying age for SPC in an assessment period and
makes an advance claim for SPC then a superseding decision made in
consequence of the person reaching that age takes effect on the date on which the
change occurs or is expected to occur (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3, para 26

A4239 UC Hardship Payments

A decision to make or stop making hardship payments takes effect from the date
prescribed in legislation (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3 para 27; UC Regs, reg 117

A4240 UC Terminally ill Claimants

Where a claimant makes an application for supersession which expressly states that
they are terminally ill the superseding decision takes effect from the first day of the
assessment period in which the claimant becomes terminally ill (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 3 para 28

A4241 Changes in legislation

Changes to legislation can constitute a relevant change of circumstances. Where
there has been a change in legislation the superseding decision has effect from the
date the law changed. Where the change has not yet taken place the superseding
decision takes effect from the date the change in legislation takes effect (1).
Note: In some cases the effective date is not always the change in law. For example
if an ESA or UC claimant attends a WCA and the effect is that they are due a higher
rate of benefit the effective date is the date of the DMs decision. If the claimant
applies for a supersession in the light of the changes to legislation the effective date
will be the date of application.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 4 para 32 & 33

Example

A PIP claimant is in receipt of the standard rate mobility component due to visual
impairment. A future change in legislation from 11.4.21 means that the claimant will
be entitled to the enhanced rate. The DM identifies that the claimant will become
entitled and supersedes the award in advance of the coming into force of the
legislation and awards the enhanced rate mobility component from 11.4.21.

A4242

Error of law

A4243 What decisions can be superseded on the grounds of error of law

Some decisions of a DM can be superseded when the decision was wrong in law.
The decision can be superseded either on an application or on the DM's own
initiative. These are any decision
1. on a claim for a relevant benefit (1)
2. under relevant acts (2)
3. as in
1. or 2. which has been revised (3)
Note:
A decision of the FtT or UT cannot be superseded by the DM on these
grounds.
1 SS Act 98, s 8(1)(a); 2 s 8(1)(c); 3 s 10(1)(a)

A4244 Circumstances when a decision can be superseded on the grounds of error of law

Supersession on the grounds of error of law only apply where (1)
1. an application was received more than one month (or such longer period as
might be allowed) after the date the original decision was notified or
2. the DM decided to act on their own initiative more than one month after the
date the original decision was notified.
Note: There will be cases where the DM is able to revise a decision which was
wrong in law on the grounds of official error. This route is available where the error is
solely the responsibility of the DM.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 24

A4245 Meaning of error of law

The Courts have set out (1) categories of circumstances in which errors of law may be
found. These are
1. making perverse or irrational findings on a matter or matters that were
material to the outcome ("material matters")
2. failing to give reasons or any adequate reasons for findings on material matters
3. failing to take into account and/or resolve conflicts of fact or opinion on
material matters
4. giving weight to immaterial matters
5. making a material misdirection of law on any material matter
6. committing or permitting a procedural or other irregularity capable of making a
material difference to the outcome or the fairness of the proceedings
7. making a mistake as to a material fact which could be established by objective
and uncontentious evidence, where the appellant and/or his advisers were not
responsible for the mistake, and where unfairness resulted from the fact that a
mistake was made
Note: As errors in law will usually also be official errors allowing revision, this
provision has limited use. See ADM Chapter A3 for guidance on the meaning of
official error.
1 R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982

A4246 Effective date

Where a decision is superseded on the grounds of error of law the effective date is
1. for JSA or ESA the first day of the benefit week (1)
2. for UC the first day of the assessment period (2)
in which the superseding decision, or where applicable, the application for
supersession was made (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(3); 2 reg 35(4)

[A4247-A4249]

A4250 Reinterpretation of the law

Sometimes UTs and higher courts give decisions that change a previously held
interpretation of the law. These decisions will sometimes mean that earlier decisions
of DMs were wrong in law.

A4251 « A4253

A decision by the UT or a court that the decision of the DM or the FtT out of which
the appeal arose was wrong in law is known as the "relevant determination".

A4252

Where
1. an application is made for a supersession decision relating to entitlement to
benefit (regardless of whether it is made before or after the relevant
determination) and
2. a decision on that application falls to be made in accordance with the relevant determination
then the effective date of that supersession will be the date of the relevant
determination (1).
Note: A judgement in an ECJ reference counts as a "relevant determination".
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(5)

A4253 Appeal against a relevant determination « A4254

Where
1. a UT or court makes a relevant determination (see A4251) and
2. the Secretary of State appeals against that determination and does not stay
decisions and
3. an award of benefit made in consequence of the relevant determination is
suspended and
4. the relevant determination is reversed on appeal
the suspension is lifted and the decision made by the DM in 3. is superseded on the
ground of error of law (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 37(5)

A4254 Effective date

Where a DM's decision is superseded as in ADM A4253, the decision takes effect
from the date on which the earlier decision took effect (1). No arrears are paid when
the suspension is lifted.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 37(5) & 37(6)

Example

The claimant appeals against a DM's decision. The FtT dismisses the appeal,
upholding the DM's view of the law. The claimant appeals to the UT, but this is again
dismissed on the same point. The claimant then makes an appeal to the Court of
Appeal, which succeeds. The Secretary of State appeals this to the Supreme Court.
At the same time the Secretary of State receives applications in look-alike cases
seeking benefit on the basis of the Court's decision. The Secretary of State
supersedes existing decisions but suspends payment under these new awards
pending the outcome of the appeal of the Supreme Court. The Supreme Court then
upholds the Secretary of State's appeal. The Secretary of State then lifts the
suspensions and supersedes the decision made following the Court of Appeal's
decision, effective from the same date as those decisions. This ensures that no
benefit is paid in consequence of the Court of Appeal's (erroneous) decision.

A4255 Superseding a First-tier Tribunal or Upper Tribunal's decision « A4256 « A4257

An FtT's or UT's decision can be superseded where
1. the decision arose from ignorance of or mistake as to some material fact (1) and
as a result the decision to be superseded was more advantageous to the
claimant than it otherwise would have been or
2. it was made after the appeal was stayed (2)
3. there has been a relevant change of circumstances (3)

1 UC, PIP, JSA & ESA (D&A) Regs, reg 31(a) & 37(1); 2 reg 31(b) & 37(4); 3 reg 23

A4256

Where
A4255 1. applies the superseding decision takes effect for
1. JSA and PIP, the date the FtT's or UT's decision took or was to take effect
from (1)
2. ESA or UC, when the material fact does not relate to the LCW determination
or if it does and the DM is satisfied that at the time the decision was made the
claimant knew or could reasonably be expected to know of it and that it was
relevant - the first day of the benefit week or the assessment period in which
the Tribunal's decision took or was to take effect (2).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 37(2); 2 reg 37(3)

A4257 « A4262

Where
A4255 2. applies the superseding decision takes effect for
1. PIP, from the date on which the decision of the FtT or UT would have taken
effect had it been decided in accordance with decision which was the subject
of the lead appeal (1)
2. JSA or ESA from the first day of the benefit week in which the Tribunal's
decision would have taken effect had it been so decided (2)
3. UC, from the first day of the assessment period in which the Tribunal's
decision would have taken effect had it been so decided (3).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 37(4)(a); 2 reg 37(4)(b); 3 reg 37(4)(c)

A4258 No outcome decision made

Where the FtT does not give an outcome decision after allowing an appeal, the DM
must follow the FtT's decision on the issues it has dealt with when dealing with the
matters referred back for subsequent decision unless
1. there are grounds to supersede the FtT's decision or
2. the DM considers it is erroneous in law and applies for leave to appeal (see
ADM Chapter A5)1.

1 R(IS) 2/08

A4259

Where
1. the DM incorporates the FtT's decision into a new decision
1.1 on a claim or
1.2 revising or superseding an earlier decision and
2. the facts have changed since the time of the decision under appeal
the DM should not supersede the FtT's decision in order to take account of the
change in the facts. This is because the DM must determine all the facts down to the
date of the new decision - see ADM Chapter A2. The FtT cannot take account of
circumstances which had not arisen at the time of the decision under appeal (1).

1 SS Act 98, s 12(8)(b)

A4260

Similarly, if the FtT's decision, other than an outcome decision, is incorporated into a
DM's decision, and there are grounds to supersede, it is the DM's decision which
must be superseded, not the FtT's decision.

A4261

Note that the claimant cannot ask for the DM's decision to be
1. revised (during the application period or for official error) or
2. superseded for error of law
where the only issue raised by the application relates to the incorporated FtT's
decision. The claimant should apply for leave to appeal to the UT against the FtT's
decision.

A4262 Stayed appeals « A4005

ADM Chapter A5 describes the procedure where appeals are stayed at FtT or UT
level. Where
1. the tribunal or UT decides the appeal as if the lead appeal had been
determined in the most unfavourable terms for the appellant (1) and
2. the DM is required to supersede the tribunal or UT's decision once the lead
appeal is determined (2)
the effective date of the supersession is the date the FtT or UT's decision would
have taken effect if it had been decided in accordance with the decision which was
the subject of the lead appeal (3) (see A4257).
1 SS Act 98, s 26(4)(b); 2 s 26(5); UC, PIP, JSA & ESA (D&A) Regs, reg 31(b); 3 reg 37(4)

A4263

DMA Leeds will give guidance following the determination of lead cases on whether
supersession is required.
Ignorance of or mistake as to a material fact

A4264 What decisions can be superseded on the grounds of ignorance of or mistake as to a material fact

Supersession of
1. any decision on a claim for UC, PIP, ESA or JSA (1)
2. any decision made under relevant Acts (2)
3. any decision in A4264 1. or A4264 2. which has been revised by a DM (3)
4. any decision made by the FtT or UT (4).
can be made on the grounds of ignorance of or mistake as to a material fact.
1 SS Act 98, s 8(1)(a); 2 s 8(1)(c); 3 s 10(1)(a); 4 s 10(1)(b)

A4265 Material facts

A material fact is one which is relevant to a decision on a claim or application. Any
fact which has to be determined before a decision can be given is a material fact.

A4266

A fact which is itself not immediately relevant can be important to a decision if the
process of reaching a decision has been influenced by it.

Example

The FtT does not accept a claimant's evidence because they consider it not to be a
true statement of the facts. The claimant then produces evidence to prove the fact
was correct. The DM supersedes the decision because it is based on a mistake as
to a material fact.

A4267

An application for supersession because of ignorance of, or a mistake as to, a
material fact may not always result in a supersession decision. See A4010 - A4020
for further guidance.

A4268

There is a distinction between a primary fact and a secondary fact. A primary fact is
a fact established directly by evidence. A secondary fact is found by applying the
process of reasoning to evidence.

A4269

DMs often make an inference of fact by reasoning from the evidence before them. If,
however, they are wrong because the reasoning was wrong, the decision is not
based on a mistake as to a material fact. DMs cannot supersede decisions just
because they would have reached a different decision on the same evidence (1) (but
see A4273).
1 R(I) 3/75

A4270 Ignorance of a material fact

A decision may be superseded if the DM is satisfied that it was given in ignorance of
some material fact. A material fact is one which is relevant to
1. an award of benefit
2. a claimant commitment
3. a labour market question
4. an overpayment recoverability decision
and has to be identified before a decision is given. The fact must exist at the time the
original decision is given (1).

1 CAO v Combe (Court of Session 1999)

A4271

It is presumed that a DM is aware of the facts included in the papers available to
make a decision. This presumed knowledge prevents supersession because of the
ignorance, but supersession because of a mistake as to a material fact may be
possible.

A4272

Sometimes a question has to be decided by making an adverse assumption about a
relevant fact because the DM has been unable to obtain sufficient evidence (1). If
evidence is then provided which shows the DM's assumption is wrong the original
decision can be superseded because of ignorance of a material fact. If the evidence
is provided within the dispute period, revision would be appropriate.
1 R(SB) 18/81; R(SB) 29/83

Example

A jobseeker fails to provide evidence that he is actively seeking work after a request
from the Secretary of State. The DM decides that he is not actively seeking
employment, and disallows the claim for JSA. The claimant later produces his record
of job applications. The DM supersedes the original decision because it was made in
ignorance of the material fact that the claimant was actively seeking employment.

A4273 Mistake as to a material fact « A4269

A DM may misinterpret the evidence and make a mistake as to a material fact (1). If
the mistake was wholly the responsibility of the DM, or of another official of the
DWP, it would be an official error and the decision would be revised (see ADM
Chapter A3). If the claimant had contributed to the mistake, it would not be an official
error and the decision would be superseded (2).

1 R(G) 8/55; UC, PIP, JSA & ESA (D&A) Regs, reg 9; 2 reg 22

A4274

The mistake may be made when dealing with the claim, for example by a DM
misreading information in a document. It may be made by another official, for
example by a receptionist recording an incorrect date. The revision provisions should
always be considered where the new decision would be advantageous to the
claimant.

Example 1

A claimant has an award of the standard rate of the daily living component of PIP.
Two years later the claimant reports that her daily living needs have increased. The
DM examines the case and finds that the evidence obtained at the time of the
original claim shows that the claimant needed more assistance with her daily living
activities. The DM revises the original decision for official error. The effective date is
the date of the original award.

Example 2

A claimant is awarded UC. The DM overlooked the fact that income of £290 a month
was in payment. Two years later on a routine case check the DM realises that the
income should have been taken into account. The DM supersedes the original
decision on a mistake as to a material fact. The effective date is the date the DM
started the routine check.

Example 3

The DM decides that the jobseeker was not available for work because he was in
prison for the period 3 July to 28 August. The jobseeker later realises that he got his
dates mixed up, and he was actually in prison for the period 28 July to 3 August. The
DM supersedes his decision because it was based on a mistake as to a material
fact.

A4275 Opinions and material facts

Opinions should be distinguished from facts. DMs often take into account opinions of
other persons, for example doctors, in making decisions. Medical opinion does not
form a material fact (1).

1 R v. Secretary for Social Services ex parte Loveday [15.2.83]

A4276

Because it is not a material fact, a change of medical opinion is not of itself a ground
for supersession. A DM's decision awarding benefit as a result of a medical opinion
cannot be superseded because it was based on a mistake as to a material fact, if
another doctor provides a different opinion based on the same facts. This is because
there is no specific or primary fact about which the DM was mistaken (1). For further
guidance on medical opinion/fact see benefit specific guidance.

1 R(S) 4/86

A4277

However, medical opinions are often expressed in reports which may contain
evidence, such as clinical findings or statements by the claimant, from which the DM
can infer facts. This may enable the DM to show that the original facts would not
have been found, or were found incorrectly, if the new facts had been known (1). A
change of opinion where there are different facts may be evidence that the original
decision was based on ignorance of or mistake as to some material fact (2).
1 R(I) 3/75; 2 R(DLA) 6/01

A4278 Supersession of a decision of a DM on grounds of ignorance or mistake « A4280

Where the decision to be superseded is one made by a DM, it can be superseded
on the grounds of ignorance of or mistake as to a material fact where either (1)
1. an application is made more than one month after the original decision was
notified (or a late dispute is not admitted - see ADM Chapter A3)
2. the DM commenced action with a view to supersession more than one month
after the original decision was notified.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 24

A4279

A decision based on ignorance of, or mistake as to, a material fact may have arisen
because of official error. In that case revision may be appropriate (1). DMs should also
consider whether revision is appropriate where the decision was more advantageous
than it would have been if the material fact was known (see ADM Chapter A3).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 9

A4280 Effective date

The effective date of a supersession to which A4278 applies will be for
1. JSA or ESA, the first day of the benefit week in which the superseding
decision or application for supersession was made (1)
2. UC, the first day of the assessment period in which the superseding decision
or application for supersession was made (2)
3. PIP, on the date the decision is made (3).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(3); 2 reg 35(4); 3 SS Act 98, s 10(5)

A4281 Supersession of a decision of the FtT or the UT

A decision of the FtT or UT may be superseded at any time on the grounds of
ignorance or mistake as to a material fact (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 31(a)
Effective date

A4282 Advantageous

If the effect of the supersession would be advantageous to the claimant the effective
date is (1)
1. where the supersession is made as a result of an application, the date the
application was received or
2. where the supersession was undertaken at the DM's own initiative, the date
the decision was made.
1 SS Act 98, s 10(5)

A4283 Disadvantageous

Where the effect of the supersession of the FtT or UT decision would be to the
disadvantage of the claimant the effective date is for
1. JSA and PIP, from the date on which the decision of the FtT or UT took or
was to take effect (1)
2. ESA or UC (2) where the fact does not relate to the LCW determination or does
relate to it and the DM is satisfied that at the time the decision was made the
claimant knew or could reasonably be expected to know of it and that it was
relevant, from the first day of the benefit week or the first day in the
assessment period in which the decision of the FtT or UT took or was due to
take effect.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 37(2); 2 reg 37(3)
Decisions which cannot be appealed to a First-tier Tribunal

A4284 Introduction

Annex E lists decisions and determinations that are not appealable. Such decisions
can be superseded at any time either on an application or at the DM's own initiative (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 25

A4285 Effective date

The effective date will be (1)
1. the date of the application for supersession or
2. the date the decision was made when made on the DM's own initiative
1 SS Act 98, s 10(5)

A4286 Sanction Cases

ESA, JSA and UC claimants can be sanctioned under certain circumstances (1). A
superseding decision to apply a sanction takes effect for ESA (2)
1. where the claimant has not been paid ESA for the benefit week in which the
Secretary of State determines that the amount of the award of ESA is to be
reduced, the first day of that benefit week or
2. where the claimant has been paid ESA for the benefit week referred to in A42861. the first day of the first benefit week for which the claimant has not
been paid ESA or
3. where the amount of the award of ESA for the benefit week referred to in
paragraph A4286 1. or 2. is already subject to a reduction because of a
previous sanctionable failure, the first day in respect of which the amount of
the award is no longer subject to that reduction.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 27; 2 ESA Regs, reg 54 & reg 35(10)(a)

A4287

A superseding decision to apply a sanction takes effect for JSA (1)
1. where the claimant has not been paid JSA for the benefit week in which the
sanctionable failure occurred, the first day of that benefit week or
2. where the claimant has been paid JSA for the benefit week referred to in A42871. the first day of the first benefit week for which the claimant has not
been paid JSA or
3. where the amount of the award of JSA for the benefit week referred to in A42871. or A4287 2. is already subject to a reduction because of a previous
sanctionable failure, the first day of the first benefit week in respect of which
the amount of the award is no longer subject to that reduction.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(10)(c); JSA Regs 13, reg 22

A4288

A superseding decision to apply a sanction takes effect for UC (1) from
1. the first day of the assessment period in which the DM determines that the
amount is to be reduced or
2. if the amount of the award is not reduced as in A4288 1. the first day of the
next assessment period or
3. if the amount of the award for the assessment period as in A4288 1. or 2. is
already subject to a reduction because of a previous sanctionable failure, the
first day in respect of which the amount of the award is no longer subject to
that reduction
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(10)(e); UC Regs, reg 106

A4289 Reduction in benefit ceases to apply

Where a person has had an award of benefit sanctioned as above and the reduction
is suspended or terminated then the decision to impose the reduction can be
superseded (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 27(2)

A4290 Effective date

For ESA, JSA and UC the reduction is suspended for any period during which a
fraud sanction applies. The reduction ceases to have effect on the day that period
begins (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(11)(a), 35(11)(c) & 35(11)(e);

ESA Regs, reg 56; JSA Regs 13, reg 24; UC Regs, reg 108

A4291

The reduction is terminated where, since the date of the most recent sanctionable
failure, the claimant has been in paid work (1)
1. for a period of at least 26 weeks (ESA) or 182 days (JSA) or
2. for more than one period where the total of those periods amounts to at least
26 weeks (ESA) or 182 days (JSA).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(11)(b) & 35(11)(d); ESA Regs 13, reg 57; JSA Regs 13, reg 25

A4292 « A4293

For UC claimants the reduction is terminated where since the date of the most
recent sanctionable failure, the claimant has been in paid work for a period of, or for
periods amounting to at least 26 weeks and the claimant's weekly earnings during
that period or periods were equal to or exceed their individual threshold or
prescribed legislation in relation to apprenticeships apply (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 11(f); UC Regs, reg 90(4) & reg 109(1)

A4293

The effective date is either the first day of the assessment period in which A4292 is
satisfied or where that date falls outside a period of entitlement to UC, from the
beginning of the first assessment period in relation to any subsequent award (1).
1 UC Regs, reg 109(2)
Loss of benefit following benefit fraud offences

A4294 Sanctionable benefit

A decision can be superseded (1) where
1. it is a decision that a sanctionable benefit is payable and
2. that benefit ceases to be payable or is reduced under the provisions allowing
restrictions on the payment of benefit following convictions for benefit fraud
offences.
Note: See ADM Chapter B2 for further guidance.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 28

A4295 Effective date

The effective date (1) will be the first day of the disqualification period as set out in
regulations (2).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(12); 2 SS (Loss of Benefit) Regs, reg 2

A4296 Special rules - uprating

The uprating of benefit will not normally require a supersession decision (1).
1 SS A Act 92, s 159A; s 159C; s 159D

A4297 Special rules - late or unpaid contributions

Where a late or unpaid contribution is treated as paid at an earlier date then the DM
can supersede (1) the original decision. The superseding decision takes effect from the
date on which the contribution is treated as paid (2). See ADM Chapter A3 where a late
paid contribution or credit is treated as paid on or before the date of the original
decision.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 29; 2 reg 35(13)

A4298 Special rules - UC Housing Costs

Where the housing costs element is reduced following a determination made under
specified legislation then the award of UC may be superseded (1).The effective date is
the first day of the assessment period following the day on which that determination
is received by DWP (2).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 30; 2 reg 35(14)
Special rules - PIP

A4299 Terminally ill

For the purpose of PIP, the fact that a person is terminally ill is not a relevant change
of circumstances, unless1 an application for supersession contains an express
statement that the person is terminally ill and is made by
1. the terminally ill person or
2. any other person claiming to act on that person's behalf whether or not that
other person is acting with the knowledge or authority of the terminally ill
person.
Note:
Where an application for supersession is made without an express statement
of terminal illness but evidence is received of terminal illness from either the
claimant or on behalf of the claimant then the application for supersession should be
treated as one made on the grounds of terminal illness.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 23(2)

A4300

If the application for supersession is made expressly on the grounds of terminal
illness then this constitutes a relevant change of circumstances. The effective date
of the supersession is the date of the change (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(1)

A4301 Special rules - ESA

Where a claimant applies for supersession on the grounds that they have LCWRA
the effective date of the supersession is the date of the application (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(6)

A4302

Where a determination is made that the claimant has
1. LCW
or
2. LCWRA
or
3. LCW and LCWRA
and it is the first determination then the effective date of the supersession takes
effect from the beginning of the 14th week of entitlement (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(7)

A4303

Where
1. the claimant was previously entitled to ESA for no more than 13 weeks and
2. the assessment phase had not ended in the previous award and
3. the claimant's current PLCW is treated as a continuous PLCW
the supersession decision takes effect from the beginning of the 14th week of the
claimant's continuous PLCW (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(8)

A4304 Special rules UC

A decision that embodies a determination that the claimant has LCW or LCW and
LCWRA takes effect from the beginning of the assessment period in which the
decision is made (DMs own initiative) or the application for supersession was made (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(9)(b)

A4305

Some awards of UC are not to include the LCW or LCWRA elements until certain
circumstances are satisfied. In these cases the elements are not included until the
beginning of the assessment period that follows the assessment period in which the
relevant period ends (1). See ADM Chapter F5.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 35(9)(a)

A4306 Determinations on incomplete evidence

Where, for the purposes of deciding a claim or making a supersession decision, a
determination has to be made as to whether
1. a person is to be treated as receiving relevant education under specific
regulations (1) and
2. it appears to the DM that he is not in possession of all the evidence or
information needed to make that determination
the determination shall be made on the assumption that the missing evidence or
information is adverse to the claimant (2).

1 JSA Regs 13, reg 45; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 39(3)

A4307

Where
1. a determination falls to be made as what housing costs are to be included in
an award of UC and
2. it appears to the DM that he is not in possession of all the evidence or
information needed to make that determination
the determination may be made on the assumption that the housing costs to be
included in the award are those that can be determined (1) using evidence or
information that is in the DM's posession (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 39(4)

A4308

Where
1. a determination falls to be made as to whether a PIP claimant meets the
condition in prescribed legislation regarding costs of qualifying services for
care home residents (1) and
2. it appears to the DM that he is not in possession of all the evidence or
information needed to make that determination after having made reasonable enquiries
the determination may be made on the basis of the information or evidence that is in
the DM's possession (2).
1 WR Act 12, s 85(2); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 39(5)

A4309 Determination as to limited capability for work

When a DM determines (including after a change of circumstances) that for the
purposes of ESA or UC a claimant
1. has or does not have LCW or
2. is to be treated as having or not having LCW
then this determination is conclusive for any further decisions on ESA or UC (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 40(1) & reg 40(2)

A4310

Where an issue arises (1) whether a person is or is to be treated as having or not
having LCW or is terminally ill for the purposes of UC or ESA then that issue should
be determined by the DM. This is notwithstanding any other matters that fall to be
determined by another authority.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 40(3)

A4311 Alterations affecting Universal Credit

Where a person disputes the figure used to calculate earnings from employment for
any assessment period for UC then the Secretary of State must
1. inform the person that they may request a decision in relation to the amount of
UC payable in relation to that assessment period and
2. where such a decision is requested, provide it within 14 days of receiving the
request or as soon as practicable afterwards
In these cases the decision takes effect on the same date on which the alteration of
the person's employed earnings takes effect (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 41; SS A Act 92, s 159(D)(2) & (3)

A4312 Claimant fails to attend for or participate in a consultation - PIP

Where a PIP claimant fails without good reason to attend for or participate in a
consultation a negative determination shall be made (1). This only applies if written
notice of the date, time and place of the consultation was issued at least 7 days in
advance or unless the claimant agreed to accept a shorter period of notice. A
negative determination means that the claimant does not meet the requirements of
entitlement to the daily living component or the mobility component (2). A supersession
decision can be made to end entitlement to PIP (3). The effective date of the decision
is the date of the DM's decision (4).
Good reason includes the claimant's state of health at the relevant time and the
nature of their disability. The DM should exercise discretion when determining good
reason.
Note 1: A decision made in consequence of a negative determination may be
revised at any time if it contains an error to which the claimant did not materially
contribute (5).
Note 2: See Chapter P2 for guidance on PIP assessments.
1 PIP Regs, reg 9; 2 WR Act 12, s 80(6); 3 UC, PIP, JSA & ESA (D&A) Regs, reg 26(2);
4 SS Act 98, s 10(5); 5 UC, PIP, JSA & ESA (D&A) Regs, reg 18(3)

Example 1

Jackie is sent a written request to attend a consultation but does not attend. She tells
the DM that she did not attend because she was in hospital and did not receive the
letter. The DM accepts that Jackie has shown good reason for not attending.

Example 2

Kevin is sent a written request to attend a consultation but does not attend. He tells
the DM that he didn't go because he didn't want his award of PIP to be looked at
again. The DM decides that Kevin has not shown good reason for not attending and
makes a negative determination.

Example 3

Warren does not attend the consultation. He tells the DM that he didn't attend
because on the day of the consultation he suffered an epileptic seizure and was
admitted to hospital. The DM accepts that Warren has shown good reason.

A4313

An existing PIP claimant may be required to provide any information or evidence
required to determine if they have limited or severely limited ability to carry out daily
living or mobility activities, for example on the form "How your disability affects you".
In such cases the claimant must provide the information or evidence within one
month from the date of the request or within such longer period as is considered
reasonable.
Where the claimant fails without good reason to provide the information or evidence
then a negative determination must be made (1). The effective date is the date of the
DM's decision (2).
1 PIP Regs, reg 8; 2 SS Act 98, s 10(5)

A4314 Change from JSA to ESA or ESA to JSA « A4315

Where
1. a person is awarded ESA or JSA ("the existing award") and if
2. that award did not exist, an award could be made for JSA or ESA ("the
alternative benefit") were a claim made for it
then when a claim is made for the alternative benefit, the DM may supersede the
existing award to bring it to an end (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 48(1), (2) & (3)

A4315

Where A4314 applies the existing award ends on the day immediately before the
first day on which the award of the alternative benefit takes effect (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 48(4)

A4316

Waiting days do not have to be saved in where either an award of ESA or JSA is
made (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 48(5) & 48(6)
Suspension and termination of benefit

A4317 Hardship

DMs should always have regard to the question of whether hardship will result from
their decision when considering suspension of benefit, either wholly or in part. This
applies both to circumstances where the DM is considering an immediate
suspension or where the claimant has been asked to provide information.

A4318

For issues to be considered when deciding if hardship would result see benefit
specific guidance.

A4319 Loss of contact with claimant

If contact with the claimant is lost the DM should consider suspension and
termination to help prevent the accumulation of long periods of arrears.

A4320 Immediate suspension

The DM may suspend the payment of benefit immediately, either wholly or in part,
where a question has arisen about the claimant's entitlement to benefit or some
component part of it (1). Payment can also be suspended after 14 days, where there
has been a failure to satisfy information requirements (2).

1 SS Act 1998, s 21 & UC, PIP, JSA & ESA (D&A) Regs, reg 44; 2 reg 45

A4321 « A4331

Suspension may be appropriate where a question has arisen during the currency of
an award
1. about whether the claimant satisfies the conditions of entitlement to benefit (1)
2. about whether an award of benefit should be revised or superseded (2)
3. about whether an overpayment of benefit is recoverable (3)
4. about whether the claimant is still residing at the last address notified to the
Secretary of State (4)
5. about the award of benefit because an appeal is pending against a decision
made by a FtT, UT or a court (5)
6. because an appeal is pending in a different case before a UT or a court, and it
appears to the DM that the outcome of that case might require the award to
be revised or superseded (6).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 44(2)(a)(i); 2 reg 44(2)(a)(ii);
3 reg 44(2)(a)(iii); 4 reg 44(2)(a)(iv); 5 reg 44(2)(b); 6 reg 44(2)(c)

A4322 Suspension where a question arises as to whether benefit should be revised or superseded

Where a question arises about whether a decision awarding benefit should be
revised (1) or superseded (2) the DM should consider whether a suspension of the
payment of benefit is appropriate. If it looks as though the revised or superseded
decision would result in
1. an increase in entitlement, there is no need to consider suspension
2. a decrease in entitlement, consider suspending payments of the amount in question
3. a loss of entitlement to benefit, consider suspending the whole of the
payment.
1 SS Act 1998, s 8; 2 s 10

Example

If a question arises about a claimant's entitlement to a UC housing element consider
suspending payment of the element pending enquiries to resolve the doubt.

A4323 Suspension where an appeal is pending

The DM may suspend payment of benefit, wholly or in part, where an appeal is
pending against the decision (1), if in the opinion of the DM the likely outcome of the
appeal is that there would be no entitlement to the benefit or part of the benefit in
question.

1 SS Act 1998, s 21(2)(c); UC, PIP, JSA & ESA (D&A) Regs, reg 44(3)

A4324

Appeal in this context means an appeal against a decision by the
1. FtT
2. UT or Three Judge Panels
3. High Court, the Court of Appeal, the Court of Session in Scotland and the
Supreme Court.

A4325

An appeal is pending (1) where a decision of the FtT, UT or a court has been made
and
1. the Secretary of State is waiting to receive that decision or
2. in the case of the FtT decision the Secretary of State
2.1 is considering whether to apply for a statement of reasons or
2.2 has applied for a statement of reasons and is waiting to receive it or
2.3 has received the statement of reasons and is considering whether to
apply for leave to appeal to the UT or
3. the Secretary of State has received the decision and is considering whether to
apply for permission to appeal against it or
4. an application for permission to appeal has been made but not determined or
5. permission to appeal has been granted and the Secretary of State is
considering whether to proceed with an appeal or
6. an appeal has been made but has not yet been determined.
1 SS Act 98, s 21 & UC, PIP, JSA & ESA (D&A) Regs, reg 44(4)

A4326 Notification

The Secretary of State must give written notice (1) to the claimant of his proposal to
1. in the case of the FtT decision, apply for a statement of reasons
2. apply for permission to appeal or
3. make an appeal
as soon as reasonably practicable.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 44(5)
Note:
As the regulations require the Secretary of State to notify his proposal to take
the actions listed above, he must send the notification before taking the action.

A4327 When benefit suspended must be paid - appeal no longer pending

Payment of benefit that has been suspended must be made if (1)
1. in the case of the FtT decision, the Secretary of State does not apply for a
statement of reasons within one month of the day he receives notice of the
FtT's decision
2. in the case of any decision, the Secretary of State does not
2.1 make an application for permission to appeal or
2.2
when permission is granted, make an appeal
within the relevant time limit
3. the Secretary of State withdraws his appeal or application for permission to appeal
4. the Secretary of State is refused permission to appeal where he cannot renew
his application or make a further application for permission to appeal.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 46(c) & 46(d)

A4328 Suspension where an appeal is pending against a decision in a different case

The DM may suspend benefit wholly or in part where (1)
1. an appeal is pending in another case (the lead case) before a UT or a court
and
2. it seems to the DM that, if the lead case were determined in a particular way
an issue would arise as to whether the award of benefit in the case before the
DM (the look-alike case) should be revised or superseded (2).

1 SS Act 98, s 21(2)(d); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 44(2)(c)

A4329

The appeal in question does not have to involve the same benefit. But if it appears
the outcome of the appeal would have an effect on the award being considered by
the DM then suspension can still be considered.

A4330 What happens if the suspension is lifted

When the suspension is lifted the DM
1. reinstates all or part of the benefit where it is appropriate to do so
2. revises or supersedes the award of benefit
3. makes, revises or supersedes the award of benefit in accordance with the
directions of the FtT, UT or court
4. makes, refuses to make, revises or supersedes the award of benefit in
accordance with the directions of the UT or court given in the different case.

A4331 Suspension where information has been requested

The DM can suspend (1) payment of benefit when they are considering whether an
award of benefit should be revised or superseded. This applies to (2)
1. a person who has had benefit suspended as in A4321
2. a person who has applied for a decision to be revised or superseded
3. a person who is required to provide information or evidence
4. a JSA claimant who has been asked to provide documents, certificates or
other evidence
5. a person whose entitlement to ESA or UC is conditional on their having or
being treated as having LCW

1 SS Act 98, s 21(2)(b); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 45(2)(a)-(e)

A4332

When the DM has asked the claimant to provide information (1) they must
1. supply that information (2) within a period of 14 days beginning with the date on
which the notification was sent or such longer period as the DM allows in that
notification or
2. supply that information (3) within such longer period as he satisfies the DM is
necessary in order to enable him to comply with the requirement
in default of which payment of benefit may be suspended.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 45(1) & 45(3); 2 reg 45(4)(a)(i); 3 reg 45(4)(a)(ii)

Example

Matt is self employed and is in receipt of UC. He is asked to send in details of his
earnings within 14 days and told that if he doesn't his UC may be suspended. Matt
fails to do this and his award of UC is suspended.

A4333

Alternatively, the claimant must satisfy the DM within 14 days beginning with the date
on which the notification was sent that either (1)
1. the information does not exist or
2. it is not possible for him to obtain it

1 UC, PIP, JSA & ESA (D&A) Regs, reg 45(4)(b)

A4334

Where the DM requires documents, certificates or other evidence from a JSA
claimant under other legislation (1) then this must be supplied within 7 days beginning
with the date on which notification was sent in default of which payment of JSA may
be suspended (2).

1 JSA Regs 13, reg 31(3); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 45(5)

A4335

The DM should impose the 14 day period where there is a serious doubt about the
claimant's award. Examples are where
1. information has been received indicating that there may be undeclared
income or capital or an undeclared non dependant or partner
2. a data match anomaly
3. the claimant has failed to co-operate with a Benefit Integrity Centre review by
failing to participate in a telephone review and subsequently fails to return a
fully completed postal review form.
4. BIC has no contact number and reverts immediately to the postal process
5. BIC has been unable to make contact by telephone and reverts to the postal process
6. BIC has conducted a telephone review but further information is required and
sends a letter requesting this information

A4336

When considering whether to extend the 14 day period the DM should take into
account all the circumstances including
1. the claimant's circumstances and the nature of the information requested
2. whether there are difficulties in obtaining the information (e.g. where
verification, which may not be readily available, has to be sought from a third
party such as a bank)
3. any difficulty the claimant may have in obtaining the information due to
disability, illness or family circumstances
4. circumstances beyond the claimant's control such as hospitalisation,
bereavement or postal disruption
5. whether the nature of the award causes difficulties e.g. overseas awards
This list is not exhaustive and each case should be considered on its merits.
Extension is at the discretion of the DM. Before making a decision to suspend the
DM must consider hardship.

Example 1

A claimant fails to comply with a Benefit Integrity Centre review by failing to
participate in a telephone review. The DM issues a letter asking them to provide
information relating to his award. This letter asks the claimant to provide the
information within 14 days of the day it was sent. The letter also states that failure to
provide the required information will result in suspension of benefit. The claimant
does not respond to the letter and the DM decides to suspend benefit.

Example 2

An allegation is received that the claimant has a large amount of capital in numerous
savings accounts. The DM issues a letter asking them to provide evidence of their
capital within 14 days of the date of issue of the letter. The claimant responds within
14 days, denying the allegation and says that they have only small amounts of
capital in several accounts. The claimant says that it will take a month to provide this
information. The DM considers this is reasonable and does not suspend benefit and
allows the claimant a month in total to provide the information.

A4337 Termination following suspension

The DM must consider terminating benefit where
1. the claimant has been required to provide information (this applies where
payment has been suspended both immediately and following failure to satisfy
information requirements) and
2. has failed to do so within one month or such longer period as appropriate and
3. payment of benefit has been suspended in full (1).
It should be noted that it is not possible to terminate benefit if the suspension is a
partial one. In this situation the suspension remains in place indefinitely.

1 SS Act 98, s 23; UC, PIP, JSA & ESA (D&A) Regs, reg 47

A4338

The time limit of one month may be extended where the DM considers in all the
circumstances it is reasonable to do so. A decision terminating benefit in these
circumstances will be a supersession decision. This decision carries the right of
appeal (1).
1 SS Act 98, s 23; SS CS (D&A) Regs, reg 47

A4339 Extension of the time limit

When considering whether to extend the time limit for providing information, the DM
should take into account all the circumstances including
1. the circumstances of the claimant and the nature of the information requested
2. whether there are difficulties in obtaining the information itself, for example
where verification, which may not be readily available, has to be sought from
another source such as a bank or a building society
3. any difficulty the claimant may have in obtaining the information due to
disability, illness or family circumstances
4. where the nature of the benefit itself, for example, overseas cases, creates its
own difficulties.
This list is not exhaustive. Each case must be based on its merits.

A4340 Date from which benefit is terminated

Benefit is terminated with effect from the date on which the payment of benefit was
suspended.

A4341

DMs should note that if it transpires that entitlement should have terminated from an
earlier date, then this termination provision cannot be used. Instead, the original
decision should be revised or superseded, with the effective date of termination
being determined as appropriate (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 47(2)

Example

Original outcome decision 1.4.13. Benefit suspended 1.7.13. Because the claimant
does not respond to requests for information entitlement is terminated from 1.7.13.
On 1.10.13 the Secretary of State discovers that entitlement should have ended on
1.5.13 as a result of new information coming to light. He revises the decision to
terminate benefit and then supersedes the decision of 1.4.13, effective from 1.5.13.

[A4342-A4999]

Chapter A5: Appeals - PIP and UC only

Contents

A5001:

Changes and further claims during the period before a hearing

A5010:

A5020:

The rules of natural justice

A5023:

Overriding objective

A5025:

The Human Right Act 1998

A5030:

Further evidence received

A5035:

Failure to comply with rules

A5040:

Which decisions can be appealed to the First-tier Tribunal

A5041:

Decisions which cannot be appealed

A5043:

Decisions not revised

A5045:

Notice of decision against which appeal lies

A5050:

Who can appeal to the First-tier Tribunal

A5060:

Making an appeal to the First-tier Tribunal

A5065:

Time limit for appealing to the First-tier Tribunal

A5067:

Appeals following decisions whether or not to revise

A5070:

Late appeals

A5100:

Action when an appeal is made

A5102:

Identifying the decision appealed against

A5110:

Appeal not duly made

A5150:

Appeals outside First-tier Tribunal jurisdiction

A5159:

Lapsing an appeal

A5165:

Decision not to the claimant's advantage

Appeal awaiting outcome of other proceedings

A5180:

Employment or other tribunal pending

A5181:

Criminal proceedings contemplated or pending

A5183:

Appeal on the same subject as a case before the Court

A5194:

Withdrawing an appeal

A5220:

Reinstatement of withdrawn appeal

When is an appeal struck out

Reinstatement of appeal

A5270:

Hearings

A5286:

Evidence

A5287:

Non disclosure of documents and information

A5294:

Extracts from documents

A5304:

A5305:

Presentation of statements

Overpayments

A5306:

Warning and instructions issued to claimants

A5307:

Disclosure not made to administering office

A5308:

Rehabilitated offenders

A5311:

Exchange of medical reports

A5320:

Witnesses

A5322:

No power to compel attendance

A5325:

Attendance of employers

A5330:

Writing the response to the First-tier Tribunal

A5335:

Recommendation to the First-tier Tribunal

A5336:

Outcome decision required

A5337:

Outcome decision not required

A5338:

Completion of appeal response

Use of unreported Upper Tribunal decisions

Northern Ireland Commissioners' decisions and Court of

First-tier Tribunal procedures

A5365:

Composition of the First-tier Tribunal

A5366:

Other members

A5369:

Membership for certain types of appeal

A5372:

Tribunal member unavailable

A5386:

Hearings and notice given

Reference for medical examination and report

A5410:

Medical examination by the First-tier Tribunal

A5412:

Directions

The hearing

A5417:

Attendance of presenting officer at oral hearing

A5420:

Function of the First-tier Tribunal

A5422:

Options open to the First-tier Tribunal

A5425:

First-tier Tribunal's power to substitute decisions

A5426:

First-tier Tribunal's power to correct decisions

A5428:

Responsibility of the appellant

Presenting officer's role..........................................................................................

Conduct of the presenting officer

A5432:

Order of proceedings

A5433:

Presenting the appeal

A5434:

What standard of proof of evidence is required

A5435:

What evidence is admissible

A5436:

Questioning witnesses

A5440:

Recall of witnesses

Introduction of new material

A5441:

By the presenting officer

A5442:

By the appellant

A5446:

Unreported decision produced at the hearing

A5447:

Summing up

A5448:

Adjournments - presenting officer at the hearing

A5451:

Action following adjournment

A5460:

Resumed hearings

A5470:

Appeal outstanding at appellant's death

A5480:

Report of any exceptional incidents

The First-tier Tribunal's decision

Late application for statement of reasons

A5508:

Record of proceedings

Consideration of the First-tier Tribunal decision

Where a party thinks the decision is wrong

A5521:

Accidental error

A5530:

Setting aside First-tier Tribunal decisions on procedural grounds

A5550:

Decisions that cannot be implemented

A5557:

Potential appeals to the Upper Tribunal

A5558:

Late applications

A5564:

First-tier Tribunal consideration of application for permission to appeal

A5570:

Suspension of payment of benefit

A5585:

Appeals remitted by the Upper Tribunal

A5592:

Supersession of the First-tier Tribunal decision

A5600:

Appeals to the Upper Tribunal and the Courts

A5620:

Who can appeal to the Upper Tribunal

Application for permission to appeal to the Upper Tribunal

A5640:

Application to the Upper Tribunal

A5643:

Late applications

A5645:

Decision on permission to appeal

A5647:

Notice of appeal

A5660:

Composition of Upper Tribunal

A5661:

Withdrawal of applications and appeals

A5663:

Reinstatement of withdrawn applications and appeals

A5664:

Consideration of decision under appeal

A5670:

Death of appellant

A5680:

Striking out of proceedings

A5683:

Power to extend time limits

A5685:

The Upper Tribunal's decision

A5689:

Parties to an appeal

A5690:

Correction and setting aside

A5700:

Appeals to Court of Appeal or Court of Session

A5701:

Who may apply for leave

Suspension of benefit

A5900:

Judicial review

A5903:

Judicial review of an Upper Tribunal decision

A5904:

Action on receipt of a claim for judicial review

Examples of the type of case suitable to request strike out of appeal on basis of no reasonable prospect of success................... Appendix 1
Aide memoire for DMs seeking a Secretary of State's application
for permission to appeal to the Upper Tribunal ............................... Appendix 2

Chapter A5: Appeals - PIP and UC only

A5001 Introduction

The following chapter contains guidance for dealing with appeals covering
1. PIP from 8.4.13 and
2. UC from 29.4.13.
Note: DMs should note that guidance on dealing with appeals for all other benefits
can be found in DMG Chapter 06.

A5002

Claimants can
only appeal to a FtT where the DM has first considered an
application for revision of the original decision (1) (see ADM Chapter A3: Revision).
Where a claimant makes an appeal before mandatory reconsideration has been
requested then the appeal should be treated as a request for a mandatory
reconsideration.

1 SS Act 98, s 12(3A); UC, PIP, JSA & ESA (D&A) Regs, reg 7

A5003

If, following the mandatory reconsideration, the claimant wishes to pursue an appeal
then they must send their notice of appeal directly to HMCTS (1). HMCTS will then
send the notice of appeal to DWP along with the mandatory reconsideration notice
and any supporting documents to request that a response is prepared.

1 TP (FtT) (SEC) Rules, rule 22(2)(aa)

A5004

The Secretary of State must
1. provide the person with the right of appeal (see A5050) a written notice of the
decision including their appeal rights (1) and
2. tell the person with the right of appeal that where the notice in 1. above does
not include a statement of reasons, they may, within one month of the date of
the notification of the decision, request that a statement of reasons is
provided (2). The statement must be provided within 14 days of the request or as
soon as practicable thereafter (3).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 51(2)(a); 2 reg 51(2)(b); 3 reg 51(3)

A5005

When making their appeal to HMCTS, the claimant must include with their notice of
appeal, a copy of the notice of the result of the mandatory reconsideration issued by
DWP (1). Where the mandatory reconsideration notice has not been included, HMCTS
will return the notice of appeal to the appellant and advise that the appellant either :
1.provide the mandatory reconsideration notice or :
2.contact DWP to request a mandatory reconsideration if one has not already
been carried out (1).

1 TP (FtT) (SEC) Rules, rule 22(4)(a)(i)

A5006 « A5030

Once the DM receives the request for an appeal response from HMCTS, this is the
point at which the DM should :
1.identify cases that are out of the FtT's jurisdiction (see A5150) or that have no
reasonable prospect of success (see A5233) and apply to the FtT for strike
out or :
2.revise the decision to the claimant's advantage (1) if further evidence enables
them to do so and so lapse the appeal (see A5160).

1 SS Act 98, s 9(6); UC, PIP, JSA & ESA (D&A) Regs, reg 52(1)

A5007

The
DM
must notify HMCTS and the appellant if any decision under appeal is
changed by revision or supersession. The DM must tell the FtT in the appeal
response what the effect of the revision or supersession will have on their
jurisdiction, for example
1. appeal
lapsed :
2.appeal now against unfavourable revised decision :
3.jurisdiction limited to period/issues not covered by the supersession.

A5008

An appeal to the FtT is a rehearing of the whole outcome decision. The FtT does not
have to consider any issue which is not raised by the appeal. However, as the FtT
exercises an inquisitorial role, it is open to them to look at the whole decision entirely
afresh (1).

1 SS Act 98, s 12(8)(a)

A5009

Where an issue is raised after the appeal is made, the parties to the appeal should
have notice of it and a reasonable opportunity to deal with it.

A5010 Changes and further claims during the period before a hearing

DMs should note that the FtT may take account of evidence produced after the
decision under appeal, where it provides information relevant to that decision (1). For
example, where the claimant produces a medical report showing a change of
diagnosis, the FtT can consider the report.

1 R(DLA) 2/01 & 3/01

A5011

Any circumstances which change after the date of the appealed decision cannot be
taken into account by the FtT (1). Any changes should be referred to the DM to
consider whether supersession is appropriate.

1 SS Act 98, s 12(8)(b)

A5012

The DM may supersede the decision under appeal before the appeal is heard.
However, the appeal does not lapse. See ADM Chapter A4: Supersession.

A5013

Where a further claim is made and has been determined, the FtT cannot consider
any period after the effective date of the decision on that claim. The FtT should
always be informed in a further response where a further claim is decided before the
hearing.

A5014

Once the appeal is heard and the FtT has made a decision, the DM may need to
revise any
1. decision on a further claim or
2. superseded decision
to take account of the FtT's decision (1). See ADM Chapter A3: Revision.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 11

[A5015-A5019]

A5020 The rules of natural justice « A5360

There is a common law requirement that tribunals should observe the rules of
natural justice (1). Natural justice is the manner in which justice is expected to be
achieved. It can be described as fair play in action (2).

1 R(S) 4/82(T); 2 R(IS) 5/93

A5021

Natural justice relates solely to procedural unfairness. The requirements for the rules
of natural justice are
1. an absence of personal bias on the part of the FtT and :
2.an obligation to base their decision on evidence and
3. whether or not there is an oral hearing, to consider fairly the contentions of all
people entitled to be represented (1).

1 R(S) 4/82(T)

A5022 « A5360

The duty to ensure a fair hearing includes giving the claimant the opportunity to
comment on their observations made during an oral hearing where they intend to
rely on them as evidence for the decision. The FtT must not take account of
observations unless they are :
1.relevant to the issues under appeal or the time of the decision under appeal
or :
2.reliable as evidence of the claimant's condition (1).
1 R(DLA) 8/06

A5023 Overriding objective

The FtT rules have what is known as an overriding objective rule (1). This contains
requirements for the FtT to deal fairly and justly with a case. This means
1. dealing with the case in proportion to
1.1 its importance
1.2
the complexity of the issues
1.3
the anticipated costs
1.4
the resources of the parties
2. avoiding formality and seeking flexibility in proceedings
3. ensuring all parties are able to participate fully
4. using any special expertise of the FtT effectively
5. avoiding unnecessary delay.

1 TP (FtT) (SEC) Rules, rule 2

A5024

All parties to the appeal must help the FtT to further the overriding objective and
must co-operate with the FtT in general (1).
1 TP (FtT) (SEC) Rules, rule 2(4)

A5025 The Human Rights Act 1998

The HR Act requires that so far as it is possible primary and subordinate legislation
must be interpreted in a way which is compatible with the Convention rights (1). The
High Court, Court of Appeal, Supreme Court and the House of Lords can make
declarations of incompatibility under s 4 of the Act, but FtTs and the UT do not have
such power. Where the FtT finds that it is impossible to interpret primary legislation
as compatible it must apply that legislation as enacted. This is because
incompatibility does not affect the validity or continuing effect of incompatible
legislation (2). Unlike EC law there is no doctrine of supremacy so as to give
Convention law precedence over domestic law.

1 Human Rights Act 98, s 3; 2 s 4(6)(a)

A5026

Regulations which are not protected by primary legislation, because their
incompatibility does not arise from the primary legislation that they are made under,
may be found to be incompatible by the FtT. These provisions would be outside the
power conferred by the primary legislation under which they are made and therefore
ultra vires. By making such regulations the relevant Minister would have acted
unlawfully (1).

1 Human Rights Act 98, s 6

A5027

DMs should ensure that, where the claimant raises a substantial human rights issue
in his appeal, HMCTS is made aware of this issue at the outset. If such an issue is
raised for the first time at an oral hearing presenting officers should request an
adjournment for consideration of a further response.

A5028

As with other grounds of appeal it is not sufficient for a claimant to make a general
statement that the decision in question breaches the Convention on the Human
Rights Act. The claimant should identify :
1.the asserted breach of the convention :
2.the Article which is said to be breached :
3.the remedy sought in respect of the breach :
4.the legal principles and authorities relied upon and :
5.any error in law on the part of the DM in consequence of the breach.
For further guidance on Convention Rights, see ADM Chapter A1: Principles of
decision making and evidence and Annex G.

A5029

Where a human rights issue is raised on a case and the DM requires advice on the
matter, they should contact DMA Leeds without delay.

A5030 Further evidence received

Where further evidence is received at any time before the FtT gives its decision, e.g.
following an adjournment, a further reconsideration of the decision under appeal
must be carried out. This is despite there having already been earlier
reconsiderations. See also A5006. HMCTS will refer any such further evidence to
the DM for their consideration.

[A5031-A5034]

A5035 Failure to comply with rules « A5419

The FtT has several options where a party to an appeal has failed to comply with the
rules. The FtT can :
1.waive the requirement to comply (1) :
2.require the failure to be remedied (2) :
3.strike out the party's case (3) :
4.refer the matter to the UT to decide where a failure by a person to comply with
a requirement imposed by the FtT (4)
4.1 to attend at any place to give evidence
4.2 otherwise to make themselves available to give evidence
4.3 to swear an oath in connection with giving evidence
4.4 to give evidence as a witness
4.5 to produce a document
4.6 to facilitate inspection of a document or any other thing (including
premises).

1 TP (FtT) (SEC) Rules, rule 7(2)(a); 2 rule 7(2)(b); 3 rule 7(2)(c); 4 rule 7(2)(d) & 7(3); TCE Act 07, s 25

A5036

The UT has the same powers as the High Court in England and Wales and the
Court of Session in Scotland. They can therefore summons a person to give
evidence etc. Non-compliance with such a summons could result in serious
penalties.

[A5037-A5039]

A5040 Which decisions can be appealed to the First-tier Tribunal

Decisions which can be appealed are listed in ADM Annex D. They include decisions
on claims and supersession whether as originally made or as revised (1).
1 SS Act 98 s 12(1) & Sch 3; UC, PIP, JSA & ESA (D&A) Regs, reg 50(1) & Sch 2

A5041 Decisions which cannot be appealed

Claimants might make an appeal against decisions which do not carry the right of
appeal (1) (see ADM Annex E). These are
1. administrative decisions (1)
2. determinations necessary to an outcome decision (2).
Where the FtT has no jurisdiction to hear the appeal, it will be struck out (see A5150
- A5151 and A5230 - A5243).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 50(2); Sch 3; 2 SS Act 98, Sch 2; 2 s 12(2)

A5042

A5043 Decisions not revised

A notification that the DM has not
1. revised
or :
2.accepted a late application for revision of
a decision is not a decision with the right of appeal. Where an appeal is made
against these decisions HMCTS will consider it as out of jurisdiction (see A5150
A5151). For guidance on when a decision should not be revised, see ADM Chapter
A3: Revision.

A5044

Where a decision is not revised, it may still be possible to appeal the original
decision to the FtT. See A5065 et seq for further guidance

A5045 Notice of a decision against which an appeal lies « A5046

A person with the right of appeal must be
1. given written notice of the decision and their right to appeal the decision and
2. told that, where that notice does not include a statement of reasons, they can
request one and they must do so within a month of the notification of that
decision (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(3)(b)

A5046

Where requested in A5045 2., that statement of reasons must be provided by the
Secretary of State within 14 days of the request or as soon as practicable
afterwards (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(4)

[A5047-A5049]

A5050 Who can appeal to the First-tier Tribunal « A5004 « A5620

In addition to the claimant (1), other people have a right of appeal to the FtT. An appeal
is accepted where it is made by
1. a person appointed by the Secretary of State (2) to proceed with a claim of a
person who has claimed benefit and subsequently died (3) or
2. a person appointed by the Secretary of State (4) to act on behalf of another (5) or :
3.a person who claims PIP on behalf of a terminally ill claimant (6) or :
4.any person from whom any amount payable by way of a relevant benefit is
recoverable, but only if their rights, duties or obligations are affected by a
decision (7) (see ADM Chapter D1: Overpayments for UC and DMG Chapter 09
for PIP).
1 SS Act 98, s 12(2); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 57; 3 UC, PIP, JSA & ESA, (D&A) Regs,
reg 49(a); 4 UC, PIP, JSA & ESA (C&P) Regs, reg 56; 5 UC, PIP, JSA & ESA (D&A) Regs, reg 49(b);

6 reg 49(c); 7 reg 49(d); SS A Act 92, s 71ZB, 71ZG & 71ZH

A5051

The DM does not have the right of appeal to the FtT. Where there is any doubt
about a decision, the DM should consider whether it would be appropriate to revise
or supersede the decision instead.

A5052

Where a person who does not have the right of appeal makes an appeal against a
decision, see A5110 et seq.

[A5053-A5059]

A5060 Making an appeal to the First-tier Tribunal « A5110

The notice of appeal must include (1) :
1.the name and address of the appellant and any representative :
2.the address where documents for the appellant should be sent :
3.the name and address of any respondent other than the DM :
4.details as to why the appellant thinks the decision may be wrong :
5.whether the appellant will require an interpreter at any hearing and for which
language or dialect :
6.whether the appellant intends to attend or be represented at any hearing.

1 TP (FtT) (SEC), Rules, rule 22(3)

A5061

Along with the notice of appeal, the appellant must also provide
1. a copy of the mandatory reconsideration notice :
2.any statement of reasons that the appellant may have :
3.any documents the appellant has to support their case that have not already
been sent to the Department (1).

1 TP (FtT) (SEC) Rules, rule 22(4)

A5062

Where the appeal form or letter does not give all the details required, see A5110

A5116

below.

[A5063-A5064]

A5065 Time limit for appealing to the First-tier Tribunal « A5044 « A5070 « A5339

The time limit within which the claimant must make an appeal (1) to the FtT is one
month after the date the appellant was sent the DM's mandatory reconsideration
notice (1).
Note: The decision is notified when it is posted or handed to the claimant or, where
the claim is for UC, when it is notified via the claimant's online UC account. For
guidance on rights to request a written statement and time limits, see ADM Chapter
A3: Revision.

1 TP (FtT) (SEC) Rules, rule 22(2)(aa)

A5066 « A5339

Where the decision is handed to the claimant, the Department should ensure that
the date of notification is recorded in the claimant's case papers. The response to
the FtT should include the date notification was handed to the appellant.

A5067 Appeals following decisions whether or not to revise

Where the DM revises a decision, the right of appeal is against the original decision
as revised (1). The original decision is treated as made on the date it is revised solely
for the purposes of calculating appeal time limits (2).
1 R(IS) 15/04; 2 SS Act 98, s 9(5)

[A5068-A5068]

A5070 Late appeals

Where an appeal is made to the FtT outside normal time limits, the appellant must
include a request for an extension of time and the reason why it is late (1). If the
appellant does not then HMCTS will request reasons. A late appeal will normally be
treated by the FtT as having been made in time if neither the DM nor any other
respondent objects (2). In this situation the FtT will extend the time for appealing (3).
1 TP (FtT) (SEC) Rules, rule 22(6); 2 rule 22(8); 3 rule 5(3)(a)

[A5071-A5079]

A5080 The time limits in A5065 begin when the decision is notified. It is therefore important
to ensure, especially in cases where it is alleged that the decision notice has not
been received, that the decision has been notified correctly. For guidance on how a
decision is notified see ADM Chapter A1: Principles of decision making and
evidence.

A5081 « A5082

The following are examples of special circumstances when it might be appropriate
for the DM to not object to HMCTS accepting an appeal as made in time :
1.difficulty in getting an appointment with a representative (especially in rural
areas) :
2.problems in writing the appeal for a blind person living alone :
3.difficulty in obtaining an appeal form :
4.allegation that the decision notice was not received :
5.inability to read, write or understand English where the appellant lives alone :
6.change of address during one month period :
7.allegation that an earlier appeal was made :
8.inability to understand the decision notice where the person has a mental
disability or learning difficulties and lives alone.

A5082

The list at A5081 is intended only as a guide. For example, a person might not be
living alone, but the other people in the house may not be willing to help.
Alternatively, a person living alone may have family or friends who visit regularly to
check post. Each case should be considered on its merits.

[A5083-A5099]

A5100 Action when an appeal is made

When an appeal is made, or further evidence is obtained after an appeal is made,
the DM should consider whether the original decision should be revised and the
appeal lapsed once they are passed the papers by HMCTS. This applies even
though a mandatory reconsideration will have already been done.

[A5101]

A5102 Identifying the decision appealed against

In most cases an appeal is made against the last decision made on a claim or
application. However, claimants may make an appeal against an earlier decision
which has been revised or superseded. Where the appealed decision has been
1. revised, the claimant should be advised that this decision has been amended
by the later decision. See A5160 et seq for further action or
2. superseded, the claimant has the right of appeal against the previous decision
as the superseded decision does not entirely replace it. For example, there
may be a limitation on payability of arrears.

[A5103-A5109]

A5110 Appeal not duly made « A5052 « A5062

It will be for HMCTS/FtT to decide whether the appeal has been duly made taking
into account the information required (see A5060). If it has not been duly made then
HMCTS will write to the person making the appeal to provide that information. There
may however, be information that HMCTS is not aware of that means the appeal
would not be accepted as duly made. For example where the person making the
appeal does not have written authority to do so from the claimant. In that case, DWP
would have to return the papers to HMCTS to investigate.

[A5111-A5149]

Appeals outside First-tier Tribunal jurisdiction

A5150 « A5006 « A5041 « A5043 « A5233

The FtT has the authority to decide whether an appeal is within the tribunal's
jurisdiction. HMCTS will only send the appeal to DWP once they have accepted it.
However, this does not prevent the DM from referring a case back to the FtT 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.

1 SS Act 98, Sch 2; UC, PIP, JSA & ESA (D&A) Regs, Sch 3

A5151 « A5041 « A5043

The mandatory reconsideration notice issued by the DM will state what decision the
claimant can appeal to the FtT. Without this notice, HMCTS may not progress the
appeal.

[A5152-A5158]

A5159 Lapsing an appeal

Where the appeal is accepted by HMCTS, the DM can still consider revising the
decision under appeal, the outcome determines whether the appeal lapses. An
appeal should be lapsed where the revised decision is to the claimant's advantage (1).
Note:
An appeal cannot be lapsed where the decision is superseded.

1 SS Act 98, s 9(6)

A5160 « A5006 « A5102 « A5168

A5161

So where a revision would not give the claimant all they are asking for in the appeal,
the DM will contact the claimant before revising to ask them if they would still want to
appeal if the revised decision were made. If the claimant says they would :
1.still appeal, then the decision would not be revised and the appeal goes ahead
with our response including details of the revised decision and that we cannot
revise the decision as this would mean the appeal would have to lapse or :
2.be happy with the revised decision, the DM would make that revised decision
and lapse the appeal. The claimant would be informed of their appeal rights
against the revised decision.
Note: If the claimant cannot be contacted then the appeal should not be lapsed.

Example 1

The DM decides that a claim for UC should be disallowed from and including
17January on the grounds that the claimant's income exceeds the maximum amount
of the award. The mandatory reconsideration confirms the earlier decision. On
receiving the appeal from HMCTS, the issue in the appeal is whether the claimant
has income, the DM notices that the date of disallowance is incorrect, and should
have been 19 January. The DM does not revise the decision, and the appeal goes
ahead.

Example 2

The DM decides that an overpayment of PIP of £10,855 is recoverable. The
mandatory reconsideration confirms the earlier decision. The decision is
reconsidered on appeal, the issue being whether the overpayment is recoverable.
(PIP is subject to guidance in DMG Chapter 09 and so recoverability is an
appealable decision). The DM notices that the amount of the overpayment has been
incorrectly calculated, and should be £10,835. The DM does not revise, and the
appeal goes ahead.

Example 3

The DM decides that there has been an overpayment of UC of £10,855. The
mandatory reconsideration confirms the earlier decision. The decision is
reconsidered on appeal, the issue being whether the amount of the overpayment is
correct. The DM notices that the amount of the overpayment has been incorrectly
calculated, and should be £6,255. The DM contacts the claimant who says they are
happy with this and do not want to continue with the appeal. The DM revises the
decision and the appeal is lapsed.

A5162

Where the decision is not revised, but the DM considers it to be incorrect, the
response should
1. advise the tribunal why the decision is not revised and
2. request that the correct decision is substituted for that of the DM.

A5163

A decision is to the claimant's advantage (1) when the outcome is that
1. any benefit paid to the appellant is greater or for a longer period as a result of
a revision
2. it would have resulted in a greater amount of benefit being payable but for the
effect of any restriction or suspension of payment of, or disqualifying a
claimant from receiving some or all of the benefit or
3. as a result of the decision, a denial or disqualification for the receiving of any
benefit if lifted wholly or in part or
4. it reverses a decision to pay benefit to a third party or
5. the amount of a recoverable overpayment is reduced or is no longer
recoverable or
6. a financial gain has or will accrue to the claimant as a result of the decision.
This list is not exhaustive and each case should be considered on its facts.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 52(5)

A5164

A5165 Decision not to the claimant's advantage

Where the revised decision is not to the claimant's advantage, the appeal should be
treated as made against the decision as revised (1). The claimant must also be invited
to make further representations within one month of notification of the revised
decision (2).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 52(2); 2 reg 52(3)

A5166

If the decision is not revised following reconsideration, the reconsideration is not a
decision. The appeal continues and the DM prepares the appeal response to be sent
to HMCTS.

A5167

After the end of that period, or within that period if the claimant consents in writing,
the appeal to the FtT must proceed, except where :
1.the DM further revises the decision in light of further representations from the
claimant and :
2.that decision is more advantageous to the claimant than the decision before it
was revised (1).

1 UC, PIP, JSA & ESA (D&A) Regs, reg 52(4)

A5168

The appeal lapses where
1. the claimant provides further information and
2. the revised decision can be revised again and
3. the effect of the new decision is that the conditions in A5160 are satisfied for
the original decision (1).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 52(4)

Example

The DM awards UC of £40. Mandatory reconsideration confirms this award. The
claimant appeals, and the DM revises the decision to award £35. The claimant
provides more information, as a result of which the DM is able to revise again and
award £40.50. The appeal lapses.

A5169

Where the result of the further revision is not to the claimant's advantage, the appeal
proceeds to HMCTS with a response in the normal manner.

[A5170-A5179]

Appeal awaiting outcome of other proceedings

A5180 Employment or other tribunal pending

Where a claimant has already appealed to another tribunal or authority (including the
FtT) on a matter connected to the present appeal, HMCTS should be asked to delay
or postpone the present appeal hearing to await the outcome of the other
proceedings.

A5181 Criminal proceedings contemplated or pending

If 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 should be brought to the attention of HMCTS.

A5182

The response should not be delayed where criminal proceedings are being brought
by the Department against the claimant. The matter should be brought to the
attention of HMCTS with details of how far those proceedings have progressed. The
FtT decides whether the tribunal hearing should be delayed or postponed.

A5183 Appeal on the same subject as a case before the Court

An appeal to the FtT may be affected by the outcome of an appeal to the Court on
the same subject. The DM can require the FtT to
1. not determine the appeal, but refer the case to the DM (1) or
2. stay the appeal until the appeal to the Court is decided (2) or
3. decide the appeal as if the appeal to the Court had been decided
unfavourably for the claimant where the FtT considers this to be in the
interests of the appellant (3).
Appeals where this might apply will be identified by DMA Leeds. For further guidance on staying appeals see ADM Chapter A4: Supersession, suspension and termination. 1 SS Act 98, s 26(2); 2 s 26(4)(a); 3 s 26(4)(b)

[A5184-A5193]

A5194 Withdrawing an appeal

Once an appeal has been lodged with HMCTS, it may be withdrawn by the claimant
or representative
1. in writing to the FtT (1) or
2. at an oral hearing but only where the FtT agree to the withdrawal (2) or
3. by telephone to HMCTS (3).
1 TP (FtT) (SEC) Rules, rule 17(1); 2 rule 17(2) & (3); 3 Practice Statement on

Delegation of Functions to Staff

A5195

HMCTS will inform all parties to an appeal when an appeal lodged with HMCTS has
been withdrawn.

[A5196-A5219]

A5220 Reinstatement of withdrawn appeal

A party to an appeal who has withdrawn their case may also apply to the FtT for it to
be reinstated (1). Such a request must be made in writing and be received within a
month after :
1.the date the FtT received the written request to withdraw the case or :
2.the date of the hearing if the withdrawal was made verbally (2).

1 TP (FtT) (SEC) Rules, rule 17(4); 2 rule 17(5)

A5221

- A5229
When is an appeal struck out

A5230 The appellant « A5041 « A5235 « A5240

The FtT will automatically strike out appeal proceedings if the appellant has failed to
comply with a direction where the direction stated that failure to comply would result
in strike out (1).

1 TP (FtT) (SEC) Rules, rule 8(1)

A5231 « A5234

Where the FtT have no jurisdiction to hear the appeal then they must strike out the
whole or part of the proceedings unless they transfer the case to another court or
tribunal (1).

1 TP (FtT) (SEC) Rules, rule 8(2)(a)

A5232 « A5234 « A5240

The FtT have the option to strike out proceedings if the :
1.appellant fails to comply with a direction by the FtT where the direction stated
that failure to comply may result in strike out :
2.appellant failed to co-operate with the FtT to the extent that the proceedings
cannot be dealt with fairly and justly :
3.FtT considers there is no reasonable prospect of appellant being successful (1).

1 TP (FtT) (SEC) Rules, rule 8(3)

A5233 « A5006 « A5235 « A5904

While it is only the FtT who have the authority to strike out proceedings, the DM is
able to apply to the FtT for cases to be struck out. So where the DM identifies a case
that they think
1. is outside of the FtT's jurisdiction, they should take action as per A5150 or
2. has no reasonable prospect of success, they should send the case to HMCTS
before writing the appeal response including details of the appeal and why
they think there is no reasonable prospect of success.
Note:
Appendix 1 to this Chapter gives examples of the types of case that may be
suitable for applying for strike out on grounds of no reasonable prospect of success.

A5234 « A5240

The FtT may not strike out proceedings under A5231 or A5232 2. and 3. above
before allowing the appellant the opportunity to make representations to the FtT
about the matter (1).
1 TP (FtT) (SEC) Rules, rule 8(4)

A5235 The respondent

The strike out provisions described in A5230 - A5233 above also apply to the
respondent (i.e. DWP) except that for the respondent this means that rather than the
proceedings being struck out, the respondent would be barred from taking any
further part in the proceedings (1). The respondent must be given the opportunity to
make representations to the FtT on the proposed bar before it is imposed.

1 TP (FtT) (SEC) Rules, rule 8(7)(a)

A5236

The
DM
must respond to a direction from the FtT as the direction can be
accompanied by a warning that DWP may be barred from the proceedings if they fail
to comply. When a direction is received it will include a time limit within which the DM
must respond. The DM can request an extension to this time limit if they have to
seek information or advice before responding. A direction should never be ignored
and the DM can always refer the case to DMA Leeds for advice if they do not feel
able to respond to the direction without assistance.

A5237

If failure to comply with the direction does result in DWP being barred from
proceedings, the FtT is then able to continue with the hearing without taking any
account of the appeal response submitted by DWP. It can then determine any or all
issues under appeal against DWP (1). So it is extremely important that the direction is
complied with.

1 TP (FtT) (SEC) Rules, rule 8(8)

A5238

The DM does have the right to challenge a direction (1), for example if they feel it is
unreasonable for DWP to provide the information requested or DWP does not have
the relevant authority to obtain the information.
1 TP (FtT) (SEC) Rules, rule 6(5)

A5239

A5240 Reinstatement of appeal

If proceedings have been struck out under A5230 or A5232 1., the appellant can
apply in writing to the FtT for proceedings to be reinstated (1). Where the respondent
has been barred from taking further part in the proceedings as in A5234, then they
can apply to the FtT for the bar to be lifted (2). An application for reinstatement or lifting
of the bar has to be made within a month of the striking out or barring being notified (3).
1 TP (FtT) Rules, rule 8(5); 2 rule 8(7)(b); 3 rule 8(6)

[A5241-A5269]

A5270 Hearings

The FtT must hold a hearing, which means an oral hearing (1), before making a
decision on the appeal unless :
1.each party to the appeal has
1.1 consented to
or
1.2 not objected to
the matter being decided without a hearing and :
2.the FtT considers it can decide the appeal without a hearing (2).

1 TP (FtT) (SEC) Rules, rule 1(3); 2 rule 27(1)

A5271

Each party to the proceedings is entitled to attend a hearing (1). At least 14 days notice
of the hearing should be given. Exceptionally this can be less with the consent of all
parties or where there are urgent reasons for shorter notification (2). Hearings should
be in public unless the FtT decide otherwise (3).

1 TP (FtT) (SEC) Rules, rule 28; 2 rule 29; 3 rule 30(1)

A5272

The FtT can direct that a person be excluded from all or part of the hearing where
they consider that that person's :
1.conduct is likely to disrupt the hearing or :
2.presence is likely to prevent someone from giving evidence or talking freely or :
3.presence would counteract the effect of withholding information likely to cause
harm or :
4.attendance would defeat the purpose of the hearing (1).

1 TP (FtT) (SEC) Rules, rule 30(5)

A5273

The FtT can also exclude a witness from the hearing until they give their evidence (1).
1 TP (FtT) (SEC) Rules, rule 30(6)

[A5274-A5285]

A5286 Evidence

All evidence
1. relevant to the appeal and
2. available to the DM
should be available to the tribunal and disclosed to the appellant or representative (1).
(see ADM Chapter A1: Principles of decision making and evidence).
Note: Advice on the law, such as guidance on an individual case, is not evidence
and should not be disclosed to the appellant, representative or tribunal. See ADM
Chapter A1: Principles of decision making and evidence for further details.
1 R(S) 1/58

A5287 Non disclosure of documents and information « A5334 « A5350

The FtT may give an order prohibiting the disclosure or publication of :
1.documents or information relating to the appeal or :
2.any matter which would enable the public to identify any person whom the FtT
considers should not be identified (1).

1 TP (FtT) (SEC) Rules, rule 14(1)

A5288 « A5290

The FtT may give a direction prohibiting disclosure of documents and information to
a person if :
1.the FtT is satisfied that disclosure would cause that person, or someone else,
serious harm and :
2.the FtT is satisfied that it is in the interests of justice and proportionate to do
1
so .

1 TP (FtT) (SEC) Rules, rule 14(2)

A5289

Any party to the proceedings can request that the FtT give such a direction. If they
do then they must :
1.exclude the relevant document or information from the rest of the papers
provided to the person they wish the non disclosure to effect and :
2.provide the FtT with the excluded document or information and the reason for
its exclusions (1).

1 TP (FtT) (SEC) Rules, rule 14(3)

A5290

The FtT will then decide whether to give a non disclosure direction, bearing in mind
the criteria in A5288 (1).

1 TP (FtT) (SEC) Rules, rule 14(4)

A5291

If the person to whom the directive has been made has a representative, the FtT can
direct that the representative can see the relevant document or information provided
the FtT is satisfied that :
1.disclosure to the representative would be in the interests of the person they
represent and :
2.the representative will not disclose the document or information to the person
they represent unless they have the consent of the FtT (1).

1 TP (FtT) Rules, rule 14(5) & (6)

A5292

The appellant is asked to produce any relevant documents, for example, business
accounts, to HMCTS when they return the pre-hearing enquiry form.

[A5293]

A5294 Extracts from documents

The Department may submit extracts from lengthy documents, for example, a set of
accounts. The response writer should
1. indicate which part of the document is to be copied by the Department and
ensure that the typed extract is clearly headed "Extract from..." giving the
necessary identifying details
2. ensure that the complete document or a copy of it is available at the hearing
3. provide a transcript and ensure the original tape is available at the hearing
where an interview has been tape recorded.
Note:
Extracts should never be taken from interviews under caution. The whole
document should be provided (1).
1 R(I) 10/58

[A5295-A5303]

A5304 Copyright

Permission is not needed to reproduce printed material covered by copyright for an
appeal to the FtT or the UT (1). If an extract of printed material is needed for a
response, the document can be photocopied and its source noted on the copy.
1 Copyright Act 56, s 6(4)

A5305 Presentation of statements

The Department should ensure that
1. written statements are signed with an explanation of why they were made and
signed unless the reason is self-evident (1)
2. all evidence that is hard to read, especially records of interviews or phone
calls, is typed and signed
3. the original documents are available at the hearing where practicable
4. the advice in DMG Chapter 01 about evidence given in confidence is followed
where the evidence refers to imprisonment
5. anonymous letters are not included.
1 R(G) 1/63
Overpayments

A5306 Warning and instructions issued to claimants

If an appeal is made against a recoverable overpayment, the evidence should include
1. the warnings and instructions in a printed form
2. a copy of any leaflet sent to the claimant if the advice in that leaflet is relevant.
If the particular print of a form or leaflet is no longer available, the nearest equivalent
should be included. If there have been any changes to the warnings and instructions
to the claimant then the DM should include an explanation as to the effect, if any,
those changes have on the case.

A5307 Disclosure not made to administering office

Where
1. the appeal is against a recoverable overpayment decision and
2. the ground of appeal is that disclosure was made to another office or part of
another office of the Department
the DM should include evidence of Departmental procedures for links between
sections, whether by computer or otherwise, and whether they broke down during
the period of the overpayment.

A5308 Rehabilitated offenders

It is a criminal offence for anyone whose official duties involve access to official
records to disclose information about spent convictions of rehabilitated offenders
outside the course of those duties. In this connection the response writer should
note that :
1.evidence referring to a spent conviction should only be included where justice
can only be done by doing so :
2.if it is essential to refer to a period when the claimant has been in prison but
has not been convicted of an offence, for example on remand, this should be
made clear in the response.

[A5309-A5310]

A5311 Exchange of medical reports

When a claimant disputes or appeals a decision and argues that a medical report
produced for another benefit is more favourable to them, the DM should, if possible,
obtain a copy of the other report and take it into account when reconsidering the
decision. The decision may need to be revised or superseded in the light of the other
report. See ADM Chapters A3: Revision and Chapter A4: Supersession, for further
guidance.

A5312

The DM may also use a report produced for another benefit as evidence, for
example where it is sent by another part of the Department.

A5313

If an appeal proceeds, include a copy of the other report in the appeal documents
and refer to it in the appeal response.

A5314

The DM should also ensure that the tribunal is made aware of any decision making
and appeals process which may have followed the production of the report.

[A5315-A5319]

A5320 Witnesses

Any person with a right to be heard (see A5395) at an oral hearing has the right to
call witnesses and put questions to another person called as a witness.

A5321

The FtT may issue a summons (or citation in Scotland) to any person in GB
requiring them to attend a tribunal hearing as a witness or order them to answer
questions or produce evidence (1). The summons must
1. give 14 days notice of the hearing (or shorter period if the FtT direct) and
2. make provision for the person summonsed to be paid necessary expenses
and say who will pay them, where they are not a party to the appeal (2).
1 TP (FtT) (SEC) Rules, rule 16(1); 2 rule 16(2)

A5322 No power to compel attendance

No person can be compelled to give evidence or produce any document that they
could not be required to do in a court of law in the part of the UK where the
proceedings are to be heard (1). Where a summons or order has been made it must
state :
1.that the person subject to the summons or order can apply to the FtT to vary
or set it aside if they have not had the opportunity to object to it and :
2.the consequences of failure to comply with the summons or order (2).

1 TP (FtT) (SEC) Rules, rule 16(3); 2 rule 16(4)

A5323

The following general points apply to the attendance of witnesses :
1.a claimant does not have the right to demand the presence of an officer
whose evidence is unfavourable to him or her (1)
2. if a claimant wants to question a witness to resolve a conflict in evidence, the
presenting officer should agree to an adjournment if necessary (2).

1 R(SB) 1/81; 2 R(SB) 10/86

A5324

If it is likely that the evidence obtained by a visiting officer, special investigator or
other officer will be challenged, the Department should arrange for that officer to
attend. Witnesses can give direct evidence and give the appellant (or representative)
an opportunity to question that evidence (1).
1 R(SB) 10/86

A5325 Attendance of employers

The Department should not normally ask an employer to attend as a witness or send
a representative except
1. where there is a material conflict between the employer's written evidence and
that of the appellant or
2. where the employer could otherwise make a material contribution to the
tribunal's consideration of the case.

A5326

Where a witness is required, the witness should have first-hand knowledge of the
relevant facts. For example if the evidence of overtime disclosed on wages records
is to be questioned, the witness should be the person who made up the wage
records, not the office manager who was not personally involved.

[A5327-A5329]

A5330 Writing the response to the First-tier Tribunal « A5338

The main purpose of the written appeal response is to provide the FtT and the
claimant with a comprehensive explanation of the reasons for the DM's decision.
There is an agreement between DWP and HMCTS that, although the legislation
currently only requires a response as soon as reasonably practicable after the
receipt of the appeal papers from HMCTS (1), DWP will provide a response within 28
calendar days. The response must always contain (2) :
1.the name and address of the DM who made the decision against which the
claimant is appealing :
2.the name and address of the presenting officer, if one is going to attend the
hearing :
3.the name and address of the relevant DWP office where documents can be
sent :
4.the names and addresses of any other respondents and their representatives,
if known :
5.whether the Secretary of State opposes the appeal and if so the grounds for
that opposition if this is not already set out in any documents the FtT has
6. any further information or documents that the FtT issues a direction for.

1 TP (FtT) (SEC) Rules, rule 24(1)(b); 2 rule 24(2)

A5331

The response should :
1.focus on the circumstances that existed at the time that the appealed decision
was made and :
2.deal solely with the issues raised by the appeal.

A5332

The response writer should adopt the role of friend of the court (1). This means that the
response should :
1.give proper emphasis to points in the claimant's favour and :
2.deal with any unresolved points put forward by the appellant. Account should
be taken of these even if they are, in the response writer's opinion, only
vaguely relevant to the question at issue.

1 R(I) 4/65, Appendix

A5333

Along with the appeal response, the DM must also provide :
1.a copy of any written record of the decision and subsequent mandatory
reconsideration and any statement of reasons for those decisions and :
2.copies of all other relevant documents that the Secretary of State holds (1).

1 TP (FtT) (SEC) Rules, rule 24(4)(a) & (b)

A5334

Unless the FtT has made an order prohibiting the disclosure of certain documents (1)
(see A5287 et seq), the DM must provide a copy of the appeal response and any
other papers to each other party to the appeal. If the party has a representative then
they must be provided with a copy of any papers and therefore there is no need to
provide them to the party (2). If they wish, the appellant can then make a written
submission or supply other documents in reply to the DM's appeal response (3).
1 TP (FtT) (SEC) Rules, rule 14; 2 rule 11(6); 3 rule 24(5)-(7)

A5335 Recommendation to the First-tier Tribunal

In order to assist the FtT to take the most appropriate course of action, the response
to the FtT should indicate whether, if the appeal succeeds on the issue raised, there
are other issues which require determination. If so, the response should also state
whether the Secretary of State considers that the FtT should deal with them, or
whether they should decide the issue under appeal and refer the case to the DM for
a final outcome decision to be made.

A5336 Outcome decision required

The following example is where the response writer may wish to request that the FtT
give an outcome decision.
Note:
If the FtT does not accept the recommendation, the DM must comply with the
FtT's directions.

Example

The DM decides that a claim for UC is disallowed because the claimant is not in GB.
The claim form has given sufficient information to decide all other conditions of
entitlement. The response requests the FtT to give an outcome decision on
entitlement if the appeal on the issue of being in GB is allowed.

A5337 Outcome decision not required

The following examples are where the response writer may wish to request that the
FtT refers the case for the DM to give an outcome decision.

Example 1

The DM disallows a claim for PIP as the claimant has not been able to show they
satisfied the residence and presence conditions. The DM's response requests the
FtT to remit the claim to the DM to deal with the daily living and mobility component
activities should the FtT decide the residence and presence conditions are satisfied.

Example 2

The DM disallows a claim for UC on the basis that the claimant has capital in excess
of the £16,000 limit. In the response to the FtT, the DM asks that if they should find
that the capital is less than £16,000, the FtT remit the case to the DM so that
enquiries can be made about the claimant's earnings.

A5338 Completion of appeal responses

Appeal responses are made in a standard format depending on the focus of the
response. For general advice on the contents of responses see A5330 et seq.
Detailed guidance on the completion of appeal response templates can be found in
Departmental operational guidance.

A5339 Personal details

The response should contain
1. the claimant's name and NI number
2. the date the decision appealed was made
3. the date the decision was notified to the claimant (see A5065 - A5066)
4. the date the mandatory reconsideration was undertaken
5. the date the mandatory reconsideration notice was sent to the claimant.

A5340 The decision

The exact wording of the decision as notified to the claimant should be included. The
response writer should not paraphrase or make corrections to the decision. DMs
should ensure that the outcome is recorded, and not the determination which is the
issue under appeal.

[A5341]

A5342 Summary of facts

The summary should
1. be a plain statement of facts in a simple narrative form
2. contain only those facts relevant to the case
3. exclude opinions or assumptions not supported by the evidence.

A5343

The facts of the case should also include an explanation of the reasons for the
decision and the mandatory reconsideration process. The explanation of the
decision should cover the outcome and how the issues under appeal were decided.
The reconsideration process should include details of information supplied by the
claimant and its consideration.

A5344

Where the facts refer to a particular document, an appropriate cross-reference to the
page number should be made.

A5345 Law and case law

The response should list
1. the sections of Acts
2. the numbers of regulations :
3.any European legislation, for example Regulations and Directives :
4.relevant case law
used to make the decision about the issues under appeal.

A5346 Use of unreported Upper Tribunal decisions « A5446

The response writer should note the following points on unreported UT decisions :
1.response writers should not normally rely on unreported UT's decisions as
authority or refer to them in responses :
2.the response writer should take account of an unreported decision if a
claimant refers to it :
3.in exceptional cases copies of unreported decisions and advice on their
application are available from DMA Leeds :
4.if the facts are clearly distinguishable so as to make the legal principles in the
unreported case inapplicable, the response writer should say so in the
response :
5.reported decisions which clearly cover the point at issue should be included
because they take precedence over unreported decisions.

A5347 « A5446

Where :
1.the claimant cites an unreported decision after the response is sent to
HMCTS and :
2.there is insufficient time to prepare a supplementary response
the presenting officer should cover the matter in the oral presentation to the FtT, or
request an adjournment.
NB: See Annex K (Neutral citation) for details of how reported and unreported
decisions are now numbered.
Northern Ireland Commissioners' decisions and Court of Appeal

A5348 judgments

Response writers should contact the Office of the Social Security Commissioners,
Child Support Commissioners & Pensions Appeal Commissioners (NI) when a
Northern Ireland decision is involved and there is no reported decision in GB dealing
with the point at issue.

A5349

Commissioners' decisions and judgments of the Court of Appeal in Northern Ireland
may be persuasive but are not binding on the decision making authorities in GB (1).
However, where the relevant statutory provisions are identical, the same
interpretation should be applied by the judicial authorities throughout the UK (2). For
example, where a view of the law is fully argued before the Court of Appeal in
Northern Ireland, and the law is the same in GB, the FtT should follow it (3).
1 R(S) 5/85; 2 R(SB) 1/90; 3 R(IB) 4/04

A5350 Relevant evidence

The response should contain the relevant evidence that was available to the DM
when the decision was made unless for other reasons it should be excluded (see A5287 et seq). All the relevant evidence before the DM should be presented to the
FtT. See ADM Chapter A1: Principles of decision making and evidence.

A5351

The relevant evidence should be listed in a schedule, with the documents
themselves numbered by page for cross-references.

[A5352-A5359]

A5360 First-tier Tribunal procedures

The FtT's procedure is decided by the presiding member of the FtT within a
framework laid down in rules (1) and in Practice Statements issued by the Senior
President of Tribunals. The presenting officer should be aware of procedures.
Decisions of Commissioners and UT Judges on tribunal procedures are summarized
in RDD (2). Failure to observe proper procedures or established rights may leave the
FtT's decision open to challenge on grounds of natural justice (see A5020 - A5022).
1 TP (FtT) (SEC) Rules; 2 Reported Decisions Digest

[A5361-A5364]

A5365 Composition of the First-tier Tribunal

The FtT will consist of between one and three members depending on the type of
appeal and as decided by the Senior President of Tribunals (1). Where the FtT is made
up of just one member than that person must be a FtT judge (2). Where the FtT is
made up of two or more members then the Senior President of Tribunals will decide
how many are to be FtT judges and how many are to be other members and will
select one to be the presiding member who will chair the FtT. The presiding member
has the casting vote if votes are otherwise equally divided (3).
1 FtT & UT (Composition of Tribunal) Order, arts 2 & 3; 2 art 4; 3 arts 5-8

A5366 Other members « A5367

A person who is not a judge can qualify to be a member of a Social Security FtT (1) by
being :
1.a registered medical practitioner (2) or
2. an
accountant (3).
1 Practise Statement on the Composition of Tribunals, para 7;

2 Qualifications for Appointment of Members to the FtT & UT Order, art 2(2)(a); 3 art 2(2)(i)

A5367

As well as people with specific qualifications as in A5366, certain other people with
relevant experience with regard to social security matters can also become
members of the FtT. These people are those who are not a registered medical
practitioner but who have experience dealing with the physical or mental needs of
disabled people because they :
1.work with disabled people in a professional or voluntary capacity or :
2.are themselves disabled (1).
1 Qualifications for Appointment of Members to the FtT & UT Order, art 2(3)

A5368 « A5371

A5369 Membership for certain types of appeal « A5370 « A5371 « A5372

Where the appeal relates to
1. LCW
2. LCWRA :
3.limited or severely limited ability :
4.recovery of benefits
the FtT must consist of a FtT judge and a member who is registered medical
practitioner (1).

1 Practice Statement on the Composition of Tribunals, para. 5

A5370 « A5372

Where an appeal would normally be heard by a FtT judge sitting alone (1) or by a FtT
constituted as per A5369, the Chamber President can decide that specific types or
extra members must be included where :
1.financial matters are an issue in the appeal then the tribunal member is an
accountant or :
2.the appeal involves complex medical issues then an additional member is
included who is a registered medical practitioner or :
3.for the purposes of
3.1 providing further experience for a FtT judge or member or
3.2
monitoring decision making standards
an additional FtT judge or member is included (2).

1 Practice Statement on the Composition of Tribunals, para. 6; 2 para. 7

A5371

Where an appeal which would normally be heard by the FtT constituted as in A5368
or A5369 but which only raises questions of law, the Chamber President can direct
that a FtT Judge may hear the case or a judge and a member who has the relevant
experience and qualifications for the issued raised (1).
1 Practice Statement on the Composition of Tribunals, para. 8

A5372 Tribunal member unavailable

There may be occasions where although a FtT would normally consist of more than
one member (see A5369 and A5370), this is not possible. So for example, because
of adverse weather conditions one or more members are unable to attend the
hearing. Where the hearing is otherwise able to go ahead as all other parties who
are intending to be present are at the venue, it would be sensible to be able to
continue with the hearing. Primary legislation does allow for an appeal to be heard in
the absence of one or more but not all of the members, providing all the parties
1
agree .

1 TCE Act 07, Sch 4, para 15(6)

A5373

DWP has come to an agreement with HMCTS that in circumstances where
1. a member is, at short notice, unable to attend the venue and
2. the DWP has already told HMCTS that a PO will not be attending the hearing,
or the DWP PO agrees and
3. the appellant and/or any representative agrees
the FtT will hear the appeal in the absence of one or more of the members.

A5374

The FtT must however, always include a tribunal judge. So where a three person
tribunal is reduced to two people, one must be a judge (1), or where reduced to one
person, that person must be a judge (2). Where a judge is not available then the
hearing cannot go ahead.
1 The FtT & UT (Composition of Tribunal) Order 2008, art 6; 2 art 4(1)

[A5375-A5385]

A5386 Hearings and notice given

Each party to the appeal is entitled to attend the hearing. Reasonable notice of a
hearing of at least 14 clear days, giving the time and place of the hearing, must be
given to each party to the proceedings. The FtT may give shorter notice with consent
of the parties or in urgent or exceptional circumstances (1).

1 TP (FtT) (SEC) Rules, rule 29(2)

A5387

If a party to the appeal fails to attend a hearing, the FtT may decide to hear the
appeal in their absence if the FtT :
1.is satisfied the party was notified or that reasonable steps were taken to notify
the party and :
2.considers that it is in the interests of justice to proceed (1).

1 TP (FtT) (SEC) Rules, rule 31

A5388

A hearing means an oral hearing (1) and should be held in public unless the FtT decide
otherwise (2). It also includes a hearing conducted in whole or part by video link,
telephone or other instantaneous two-way electronic communication.

1 TP (FtT) (SEC) Rules, rule 1(3); 2 rule 30(1)

A5389

Where the FtT decide the hearing or part of it is to be held in private, they may also
decide who can be permitted to attend the hearing, or part of it (1).
1 TP (FtT) (SEC) Rules, rule 30(4)

[A5390-A5394]

A5395 Right to be heard « A5320

The following are entitled to be present and be heard at tribunal hearings (1)
1. the claimant
2. the DM

1 TP (FtT) (SEC) Rules, rule 28

A5396

Any person entitled to be heard at a tribunal may be accompanied or represented by
another person (1). This applies whether or not the representative has professional
qualifications. The representative can do anything that the party could do, except
sign a witness statement (2).
1 TP (FtT) (SEC) Rules, rule 11(1); 2 rule 11(5)

[A5397-A5404]

A5405 Use of experts

Where the FtT considers it requires special expertise not otherwise available to it, it
may seek assistance from a person with the relevant knowledge or experience (1).
1 TCE Act 07, s 28(1)

A5406 Reference for medical examination and report

Where an appeal is against a decision on a claim for or entitlement to a relevant
benefit in A5407 the FtT may refer a claimant to a health professional for
examination and report where it is considered necessary to determine the appeal (1).

1 SS Act 98, s 2; TP (FtT) (SEC) Rules, rule 25(3) & Sch 2

A5407 « A5406

Relevant benefit
Prescribed circumstance
PIP Whether the claimant has limited or severely limited ability (1)
1 WR Act 12, s 78 & 79
UC
Whether the claimant has LCW or LCWRA (1)

1 WR Act 12, s 37

A5408

Where there is an oral hearing, the tribunal may not carry out a physical examination
of the appellant (1)
1 SS Act 98, s 20(3)(a)

[A5409-A5411]

A5412 Directions

The FtT may at any time give a direction that relates to the conduct or disposal of
proceedings (1). Such a direction can include amending, suspending or setting aside
an earlier decision. The types of direction the FtT can give are as follows :
1.extend or shorten the time for complying with any rule practice directives or
direction :
2.consolidate or hear together two or more sets of proceedings or part of
proceedings which raise common issues or treat a case as a lead case :
3.permit or require a party to amend a document :
4.permit or require a party or another person to provide documents, information,
evidence or submissions to the FtT or a party :
5.deal with an issue in the proceedings as a preliminary issue :
6.hold a hearing to consider any matter :
7.decide the form of any hearing :
8.adjourn or postpone a hearing :
9.require a party to produce a bundle for a hearing
10. stay proceedings (in Scotland sist proceedings)
11. transfer proceedings to another court or tribunal if that court or tribunal has
jurisdiction over the matter and
11.1 the FtT no longer has jurisdiction due to a change of circumstances
since the proceedings started or
11.2 the FtT considers the other court or tribunal is a more appropriate place
for the determination of the case or
12. suspend its own decision until the FtT or UT has decided on
12.1 an application for permission to appeal against the decision or
12.2 any appeal or review of the decision.
1 TP (FtT) (SEC) Rules, rule 5

[A5413-A5416]

The hearing

A5417 Attendance of presenting officer at oral hearing

Where there is a hearing any person, including the DM, may be represented by
another person at the FtT. The DM who made the decision under appeal can attend
the hearing and present the case personally. However, the DM is usually
represented by the presenting officer. The presenting officer as the DM's
representative has all the same rights and powers as the DM who gave the decision.

A5418

Decisions on attendance of the presenting officer at oral hearings are made by the
relevant business unit. However, the FtT do have powers to direct a person to attend
a hearing and all parties have a duty to co-operate with the FtT (1). This can include
directing that a presenting officer attend. If a FtT Judge issues such a direction then
DWP is under a duty to obey that direction. If attendance is not possible, for example
the presenting officer may be ill on the day of the hearing and there is nobody else
who could attend in their place, then the DM should apply to the FtT as soon as
possible to amend, suspend or set aside its direction as appropriate (2).

1 TP (FtT) (SEC) Rules, rule 2(4)(b); 2 rule 6(5)

A5419

Failure to comply with such a direction could result in the FtT taking action it thinks
appropriate which could include striking out the party's case (1). This means that DWP
would be barred from taking further part in the proceedings and the FtT would not
need to take any account of the DWP appeal response (2). See A5035 re FtT powers
on failure to comply.
1 TP (FtT) (SEC) Rules, rule 7; 2 rule 8(7)(a) & (8)

A5420 Function of the First-tier Tribunal

The FtT's function is inquisitorial not adversarial (1). It is not a matter of the DM versus
the appellant. The FtT should make a full investigation into the matter under appeal
and not just rely on evidence presented to them by the parties (2).

1 R(SB) 2/83(T); 2 R(SB) 12/85

A5421

The FtT's jurisdiction on appeal is to make any decision the DM could have made,
whether on a claim or an application for revision or supersession. However, a FtT is
not required to substitute an outcome decision for that which is under appeal. The
power enabling them to deal only with the issues raised by the appeal (1) does not
have the effect that they have to make a decision on every issue if there is a more
appropriate way of dealing with those issues.
1 SS Act 98, s 12(8)(a); R(IS) 2/08

A5422 Options open to the First-tier Tribunal « A5423 « A5425 « A5515

The FtT has the power to
1. dismiss the appeal or
2. allow the appeal on the issue and
2.1 substitute an outcome decision or
2.2 substitute an outcome decision subject to matters of calculation
referred to the DM or
2.3 refer the case back to the DM to make an outcome decision or
3. adjourn to enable further information to be obtained before making a decision
as in 1. or 2. above or
4. make a consent order at the request of the parties and making appropriate
provisions as agreed by the parties (1).
Note: While consent orders under A5422 4. above are an option for the FtT,
presenting officers should not agree to any suggestion of a consent order.

1 TP (FtT) (SEC) Rules, rule 32(1)

A5423

When deciding which option in A5422 2. or 3. above applies, the FtT will take into account
1. the difficulty of outstanding issues
2. the likelihood of a further appeal
3. whether the Secretary of State is better placed
3.1 to decide the issue
3.2 to get further information
4. the wishes of the parties.

A5424

The FtT should bear in mind that an appeal against a FtT decision cannot be made
on a question of fact.

A5425 First-tier Tribunal's power to substitute decisions

The FtT has the power to substitute a decision for that of the DM, in order to correct
defects or change the grounds for revision or supersession where appropriate. It can
also substitute a revision for a supersession, and vice versa, within limited
circumstances. (See A5422 2.1 and 2.2). This is where a ground is required for
revision, which overlaps with a ground required for supersession, i.e. in cases of
ignorance of or mistake as to some material fact, and error of law or official error (1).
See A5510 where a tribunal decision is incomplete.
1 R(IB) 2/04

Example

The DM revised a decision awarding UC for ignorance of a material fact, determining
that the claimant knew the fact and could reasonably be expected to know that it was
relevant to the decision. Entitlement was removed from the date of claim. The FtT
finds that the claimant did not and could not reasonably be expected to know the
fact. The FtT substitutes a supersession decision for the revised decision.

A5426 First-tier Tribunal's power to correct decisions

Where the FtT upholds the outcome of a decision which is otherwise defective, they
only need correct it if :
1.it is wrong in some way, e.g. relying on an incorrect ground for supersession
or :
2.there is likely to be some practical benefit to the claimant or the decision
making process in the future (1).

1 R(IB) 2/04

A5427

Exceptionally, the FtT may decide that the decision is so fundamentally flawed that it
cannot be corrected. In such cases the decision is invalid, and the appeal should be
dismissed on the grounds that no proper decision has been made. The DM should
make the decision again ensuring that the flaws are not repeated (1).
1 R(IS) 13/05

Example

A single claimant is in receipt of UC. Following an investigation, the DM makes a
determination that she is LTAHAW with her partner. No findings are made about
whether they are entitled to UC as joint claimants, nor when they began to live
together. The award of benefit is ended. On appeal, the FtT decide that they have no
jurisdiction to hear the appeal as no valid decision has been made, nor is it clear
whether the awarding decision should have been revised or superseded.

A5428 Responsibility of the appellant

The primary responsibility to make a case to the FtT rests with the appellant.
However as appellants, in general, are not familiar with the law, the FtT should
consider the appeal without insisting that the appellant points to the precise legal
provision under which the claim or application is made.
Presenting officer's role at the hearing

A5429 Before the hearing

In advance of the hearing, the presenting officer should review the case and satisfy
themselves that the right decision has been reached on the evidence available. If
they do not think the right decision has been made then they should reconsider the
original decision, lapse the appeal where appropriate and notify the FtT.

A5430 At the hearing

The role of the presenting officer is to present the Secretary of State's case and
support the FtT to make the right decision based on the conditions set out in
legislation. The presenting officer should not
1. put questions to any appellant or witness in a hostile manner
2. think in terms of "winning" the case. The objective should be to assist the FtT
to assess the facts, relevant law and case law relating to the case. This is
done by highlighting the questions to be decided and by clarity in the
presentation, evidence, argument and advice to the FtT.

A5431 Conduct of the presenting officer

The presenting officer should not
1. discuss the case with the FtT when a party to the appeal is absent unless
directed to do so because the appeal is to proceed in the appellant's absence
2. address the FtT about the case before the arrival of the appellant (1)
3. enter the FtT room before or leave after the appellant (2)
4. discuss the merits of individual cases with appellants and their representatives
either before or after the hearing.
Failure to observe these simple rules may result in an application being made to set
aside the decision of the FtT on the grounds of a breach of the rules of natural
justice.
1 CP 127/49(KL); 2 R(U) 44/52

A5432 Order of proceedings

The FtT do not have the strict rules and atmosphere of formal legal proceedings.
The presiding member decides whether the appellant or the presenting officer is
invited to speak first and how the presentation should be made.

A5433 Presenting the appeal

The presenting officer should not read out the response word for word unless asked
to do so, but should
1. state, as fully as possible, the grounds for the appellant's appeal
2. describe the appellant's circumstances at the date of the decision, and try to
ensure that all the relevant facts are made known, particularly where the
appellant does not attend the hearing
3. explain the legal basis for the decision
4. assist the FtT to focus their attention on the issues raised by the appeal.

A5434 What standard of proof of evidence is required

The FtT should not require the same high standard of proof as is required in criminal
cases 1. The burden of proof usually rests on the appellant but the standard of proof
required is that of a balance of probabilities. The appellant's evidence should be
accepted unless it is self-contradictory or inherently improbable (2).
Note:
Where the revision or supersession was requested by DWP, the burden of
proof is with the DM.
1 R(I) 32/61; 2 R(I) 2/51

A5435 What evidence is admissible

The FtT may consider any evidence, direct or circumstantial, first-hand or second-
hand (hearsay), directly or indirectly relevant to the question for determination. But
note that
1. a bald assertion of fact, unsupported by personal knowledge is not evidence.
This includes an assertion by a presenting officer
2. presenting officers can only give evidence if they have some personal
knowledge of the facts which they obtained when acting for the Secretary of
State, for example by interviewing the appellant. The presenting officers would
then assume the role of a witness (1) and would be open to questioning :
3.an assertion of fact by an appellant's representative is not evidence unless
backed up by a witness with personal knowledge. Often that witness is the
appellant in which case the presenting officer should get confirmation of the
assertion. The appellant then becomes a witness and is open to questioning (2).
1 R(SB) 10/86; 2 R(I) 36/61

A5436 Questioning witnesses

A presenting officer should not question any witness in a hostile or disbelieving
manner. The presenting officer should be calm, polite and unruffled. Courtesy is
proper before the FtT; any other approach is unlikely to be effective in obtaining
helpful answers from the witness.

A5437

The presenting officer should never accuse a witness of giving untruthful evidence
but should suggest that
1. the witness is mistaken
2. the FtT might find it difficult to reconcile the witness's statement with the other
known facts or statements.

A5438

Where
1. the FtT does not give the presenting officer the chance to question the
appellant or
2. the presenting officer does not accept the oral evidence
the presenting officer should ask the FtT for permission to put questions. If the
evidence obtained differs substantially, the FtT may pursue the matter themselves. If
they do not, the presenting officer may need to question the witness more closely to
resolve discrepancies and test the truth of the evidence.

A5439

If, despite a request to question an appellant or witness, the presenting officer is not
allowed to exercise that right, the presenting officer should not pursue it further at
the hearing but should ask the FtT to include in the record of proceedings a note of
the request and of the refusal.

A5440 Recall of witnesses

A witness may be recalled to give further evidence by
1. the presenting officer or any other party
2. the FtT even after the parties have retired and the FtT has begun its
deliberations.
Where the FtT has recalled a witness, all parties should return to the FtT before the
further evidence is heard.
Introduction of new material

A5441 By the presenting officer

The presenting officer should avoid raising completely new points or introducing new
evidence not included in a written response. If the presenting officer is forced to do
so at the hearing, they should
1. explain the reason and suggest an adjournment for the appellant to have an
opportunity to consider the matter
2. seek an adjournment if the appellant does not attend. This will allow a further
written response to be made and give the appellant an opportunity to respond
to the fresh points.

A5442 By the appellant

The presenting officer should not object to new evidence or points being introduced
by the appellant. However, it should be pointed out that such submissions and
further evidence should normally be provided to the FtT within a month after the date
on which the DM sent their response (1). Documents submitted as evidence by an
appellant, employer or other witnesses, for the first time at a hearing should be
included in the FtT record or copied. The presenting officer should ask the FtT, if the
appellant does not attend, to record the contents of the document and if possible
have it copied before returning it to the person who produced it.

1 TP (FtT) (SEC) Rules, rule 24(6) & (7)

A5443

If the new evidence raises issues of fact or law not reasonably foreseeable at the
time the response was prepared, the presenting officer should establish details of
the new material and its precise legal effect. The presenting officer should then
1. decide whether a response can be made at the hearing on the basis of the
new material or legal position arising or
2. seek an adjournment to give the presenting officer the opportunity to deal with
the fresh material (1).

1 R(F) 1/72

A5444

If the material produced concerns a matter that is outside the jurisdiction of the FtT,
for example where the evidence does not relate to the condition of the claimant at
the time the decision appealed against was made, the presenting officer should
submit that the FtT should disregard it (1).
1 SS Act 98, s 12(8)(b)

A5445

A5446 Unreported decision produced at the hearing

If an unreported decision is produced without warning at the hearing, the presenting
officer and the FtT should read and consider it. See A5346 - A5347 for guidance on
the use of unreported decisions. If the appellant or the FtT member merely quoted
an unreported decision not available to the FtT, an adjournment should be sought so
that a copy can be obtained and made available to all parties.

A5447 Summing up

In the summing up the presenting officer should
1. remind the FtT of the questions for determination
2. readily suggest a change in the ground of the original decision if further
evidence or argument has been put forward justifying that approach
3. submit the appellant's appeal should succeed if the new evidence or
argument justifies this.

A5448 Adjournments - presenting officer at the hearing

The FtT decides whether to adjourn a hearing. The presenting officer, or the
appellant, can request an adjournment.

A5449

Since a presenting officer is expected to prepare in advance the ground for an
effective hearing, the FtT is usually slow to grant an adjournment. There are a
number of facts it normally takes into account :
1.there has to be a new relevant issue arising in the course of the hearing (or
exceptionally just before it) which could not reasonably have been foreseen
and needs further enquiries or consideration
2. whether the adjournment would cause any of the other parties to the
proceedings hardship or prejudice their case.

A5450

A presenting officer might ask initially for a very short adjournment, for example to
read an unreported UT's decision produced by the appellant for the first time at the
hearing. This may lead to a request for further adjournment to another date. If the
presenting officer's request for an adjournment is refused the FtT should be asked
to note the request on the record of proceedings.

A5451 Action following adjournment

Following an adjournment, the FtT judge/presiding member must direct on the
record of the adjournment notice the enquiries to be made. The notice should clearly
set out all the FtT's requests and directions including who should obtain the relevant
information.
A5452 - A5459

A5460 Resumed hearings « A5590

A resumed hearing before a single FtT judge can usually be heard by the same
person. When a two or three member FtT has adjourned, it is rarely possible to
arrange for the appeal to continue before the same members. If at the subsequent
hearing the FtT is differently constituted, the proceedings are a complete rehearing
of the case.

A5461

The following general points apply to resumed hearings
1. all evidence should usually be heard again and recorded by the FtT
judge/presiding member
2. oral evidence need not be given again at the rehearing. Although the matter is
considered again the FtT can accept the recorded evidence of a witness from
the original hearing, provided the rules of natural justice are not infringed (1)
3. the FtT judge/presiding member may ask questions based on the notes of
evidence given at the previous hearing, but it is not sufficient to simply read
over the record of the decision and ask the appellant to confirm that it is
2 correct
4. all members of the new FtT should have the opportunity to ask questions
about the evidence presented.

1 R(U) 3/88; 2 R(S) 1/87

A5462 « A5590

A further response should be made to the FtT if
1. the presenting officer or DM wishes to comment on further evidence received
2. there are other aspects that the presenting officer or DM wishes the FtT to
consider.

[A5463-A5469]

A5470 Appeal outstanding at appellant's death

On the death of a person who has made a claim for benefit, the Secretary of State
may appoint someone to act in the place of the appellant in relation to any appeal
relating to the claim (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(1)

A5471

If the Secretary of State does not appoint a person to proceed with the appeal and
any executors or personal representatives do not wish to proceed, the FtT
judge/presiding member should decide how the appeal should be dealt with. The
presenting officer should suggest the following
1. where there are executors to the deceased's estate, the appeal should be
determined even though the executors have refused to proceed with it (1)
2. where there are no executors the appeal should be abated (2). The appeal is
then suspended but can be revived (3).

1 R(P) 2/62; 2 R(SB) 25/84; 3 R(1) 2/83

A5472

The FtT also has power make a direction to substitute a party where circumstances
have changed since the start of the proceedings (1).
1 TP (FtT) (SEC) Rules, rule 9

[A5473-A5479]

A5480 Report of any exceptional incidents

When the hearing is completed, the presenting officer should make a note of any
exceptional incidents, for example where the FtT does not allow the presenting
officer to question a witness. The presenting officer should draw the attention of the
DM who prepared the response to any difficulties met at the hearing. This may help
the DM to decide whether an appeal to the UT is appropriate when the FtT decision
is received.

[A5481-A5499]

The First-tier Tribunal's decision

A5500 Decision notice « A5504

The FtT may give a verbal decision at the hearing. Whether they do this or not, they
must also provide all parties with a written decision notice which should include
notification of :
1.the right to apply for a written statement of reasons and :
2.any appeal rights and time limits (1).

1 TP (FtT) (SEC) Rules, rule 33

A5501 « A5560

The FtT's decision notice should explicitly record what it has decided and make it
clear whether :
1.an outcome decision has been made (including those subject to calculation by
the DM) or :
2.the final decision on entitlement has been remitted to the DM (1).

1 R(IS) 6/07

A5502

The decision notice may be sent by electronic mail. When calculating time limits for :
1.requesting a statement of reasons :
2.requesting the record of proceedings
a decision notice is sent when it is properly addressed and sent by electronic mail (1).
1 TP (FtT) (SEC), Rules, rule 13

A5503 Statement of reasons

The FtT may give reasons for a decision which disposes of the proceedings :
1.verbally at the hearing or :
2.in a written statement of reasons (1).
1 TP (FtT) (SEC), Rules, rule 34(2)

A5504 Late application for statement of reasons « A5560

Within a month of the written decision notice being issued, any party to the appeal
can make a written application for a written statement of reasons if one has not
already been provided as in A5500. This can be requested even if the reasons were
given verbally at the hearing. The FtT must then issue the written statement of
reasons within a month of receipt of the application or as soon after as is reasonably
practicable (1). There is no specific provision for a late application for a written
statement of reasons, however the FtT does have a wide ranging power to extend
the time for complying with any provisions in the rules (2).
Note: The DM should not request a statement unless the case is being considered
as a potential appeal to the UT.
1 TP (FtT) (SEC) Rules, rule 34(3)-(5); 2 rule 5(3)

[A5505-A5507]

A5508 Record of proceedings

The FtT judge or presiding member is required to make a record of the hearing
sufficient to indicate the evidence taken. It can be in whatever form the FtT member
may direct (1).

1 Practice Statement on Record of Proceedings, para 2 & 3

A5509 « A5510

The FtT must keep a copy of :
1.the record of proceedings :
2.the decision notice :
3.any written reasons for the FtT's decision
for a period as in A5510 (1).

1 Practice Statement on Record of Proceedings para. 4

A5510 « A5425 « A5509 « A5511

The period is (1) :
1.six months from the date of
1.1 the FtT's decision
1.2 any written reasons for the FtT's decision
1.3 any correction of the decision notice (2)
1.4 a refusal to set aside the decision for procedural reasons (3)
1.5 a determination of an application for permission to appeal to the UT or :
2.until the date when the documents in A5509 are sent to the UT in connection
with an appeal or an application for permission to appeal if that is within the
six months in 1..

1 Practice Statement on Record of Proceedings, para. 5; 2 TP (FtT) (SEC) Rules, rule 36; 3 rule 37

A5511

Any party to the proceedings may apply in writing for a copy of the record of
proceedings within the time limit in A5510, and a copy must be sent to the party (1).
1 Practice Statement on Record of Proceedings, para. 6

[A5512-A5514]

Consideration of the First-tier Tribunal decision

A5515 Decision incomplete

Where the FtT decision is incomplete the DM should refer the case back to the FtT
immediately for a decision to be made. The DM should explain that all matters raised
by the appeal have not been decided (1). However the DM should be aware that FtT
does have the power to just decide on certain issues (see A5422 1., 2.1 and 2.2).
1 R(S) 9/81

A5516 Case remitted to DM

If the case is remitted to the DM, a new outcome decision should be made
incorporating the FtT's decision. The FtT's decision is binding on the DM, subject to
supersession or appeal. (See ADM Chapter A1: Principles of decision making and
evidence for guidance on finality of decisions and ADM Chapter A4: Supersession.)

A5517

The DM's new decision will itself have a right of appeal. However, the claimant
cannot use this appeal to re-open the issue decided by the FtT, unless there are
grounds to supersede.

Example

A claim for UC is disallowed on the grounds that the claimant has capital in excess
of £16,000. On appeal, the FtT decides that the capital is £9,500, and remits the
claim to the DM. The DM makes a further decision on the claim taking into account
the amount of capital as decided by the FtT, which results in a further disallowance
as income exceeds the maximum amount payable. On a further appeal, the claimant
cannot raise the issue of the amount of capital as decided by the FtT, unless they
can show that the FtT was ignorant of material facts.

A5518 Liberty to apply

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"1. There is no further right of appeal against the DM's calculation,
but the FtT's decision about the calculation can be appealed to the UT.

1 R(IS) 2/08

[A5519]

A5520 Where a party thinks the decision is wrong

There are a number of options available to the appellant and DM if they think the
FtT's decision is wrong. The decision notice issued by the FtT includes information
to the appellant to encourage him to choose the correct option. The different options
open to appellants and the DM are set out below.

A5521 Accidental error

The FtT may, at any time, correct accidental errors or omissions in a decision,
direction or any document produced by it. If corrected, all parties must be sent a
copy of the corrected decision notice, direction or document (1). The time limit for then
applying for a written statement of reasons would only be extended if an entirely new
decision notice is issued. If the original decision notice is just corrected then the time
limit runs from the date the original decision notice was issued.
1 TP (FtT) (SEC) Rules, rule 36

[A5522-A5529]

A5530 Setting aside First-tier Tribunal decisions on procedural grounds « A5531

Any party to the appeal can apply for the FtT decision to be set aside where
1. a document relating to the appeal was not
1.1 sent to or received at an appropriate time by
1.1.a
a party to the proceedings or
1.1.b
the party's representative or
1.2 sent to the FtT at an appropriate time or
2. a party to the proceedings or a party's representative was not present during
the hearing or
3. there has been some other procedural irregularity in the proceedings (1).

1 TP (FtT) (SEC) Rules, rule 37

A5531

The FtT may set aside a decision, or part of a decision and re-make the decision, or
relevant part of it if :
1.the FtT considers that it is in the interests of justice to do so and :
2.one or more of the conditions in A5530 1. to 3. applies (1).

1 TP (FtT) (SEC) Rules, rule 37(1)

A5532

Where an application for set aside is made it must be in the form of a written
application received by the FtT no later than a month after the date on which the FtT
sent notice of the decision to the party (1). The FtT has the power to extend this time
limit as appropriate (2).
1 TP (FtT) (SEC) Rules, rule 37(3); 2 rule 5

[A5533-A5549]

A5550 Decisions that cannot be implemented

There may be instances where it is impossible to implement the decision of the FtT.
In these cases, the DM should consider whether the decision can be corrected or set
aside by the FtT.

A5551

If
1. the decision cannot be corrected or set aside or
2. there has been no factual mistake which gives grounds for supersession
the only course open to the DM is an appeal, with permission, to the UT. See A5560
- A5564 for guidance on potential appeals and time limits.

A5552 « A5651

In some cases the FtT refer cases back to the DM, for example to recalculate a
recoverable overpayment. If there is then a dispute between the DM and the
appellant, the DM should put the case before the FtT again so that they can finally
determine the appeal (1).
1 R(SB) 11/86

[A5553-A5556]

A5557 Potential appeals to the Upper Tribunal « A5558

An appeal to the UT can be made only on a point of law (1), with the permission of the
FtT, or the UT. The time limits for applying for leave to appeal are :
1.to the FtT - within one month of the latest of the dates that the FtT sends the applicant
1.1 the relevant decision notice
1.2 written statement of reasons, if the decision disposes of
1.2.a
all issues in the proceedings or
1.2.b
a preliminary issue that was the result of a direction or
1.3 notification of amended reasons for or correction of the decision
following a review or
1.4 notification than an application for the decision to be set aside is
unsuccessful (2) or
2. to the UT - within one month of the date that the FtT's decision refusing
permission or rejecting the application was sent to the applicant (3).
1 TCE Act 07, s 11(1); 2 TP (FtT) (SEC) Rules, rule 38(3); 3 TP (UT) Rules, rule 21(3)

A5558 Late applications

If the application made to the FtT as in A5557 1. is sent after the one month limit or
after any extension of that limit (1) then the application must include a request to
extend the time limit and why the application was not provided in time (2).

1 TP (FtT) (SEC) Rules, rule 5(3)(a); 2 rule 38(5)(a)

A5559 « A5651

Where the FtT does not extend the time limit as in DMG 06561 then they must not
allow the application (1).

1 TP (FtT) (SEC) Rules, rule 38(5)(b)

A5560 « A5551

Where the DM thinks that the FtT's decision is wrong on a point of law, the case
should be identified as a potential appeal to the UT and sent to DMA Leeds as soon
as possible. Before sending the case, the DM should obtain the statement of
reasons from HMCTS. The request must be made in writing on the appropriate form
within one month of the decision notice being given or sent. See A5501 - A5504 for
further guidance.
Note: Where suspension is appropriate, see A5570 et seq.

A5561

Applications for permission to appeal on behalf of the DM are made by DMA Leeds.
DMs, appeals officers and presenting officers should note that only officers of the
Department employed at DMA Leeds are authorized to make applications on behalf
of the Secretary of State. For further guidance see A5600 et seq.

A5562

An application for leave to appeal against the FtT decision that would be supported
by the DM before the UT cannot be made, even though the DM may wish to obtain
authority in an area of the law that is open to dispute (1).

1 R(I) 68/53(T)

A5563

Where the FtT decision is not in the appellant's favour, but the DM believes that the
decision is in error of law, the DM should consider sending the case to DMA Leeds,
who will then decide whether to make an application for permission to appeal in
order that
1. the appellant's interests are protected or
2. the law on a particular point is established.
Note:
This only applies where the error of law is significant. DMs should ensure that
the claimant does not intend to make an application for permission to appeal.

A5564 First-tier Tribunal consideration of application for permission to appeal « A5551 « A5620

The first thing that the FtT should do on receiving an application for permission to
appeal is to consider whether to review the decision (1). If the FtT decides not to review
or reviews but decides to take no action on all or part of the decision, the FtT must
still decide whether to give permission to appeal for all or part of the decision (2).

1 TP (FtT) (SEC) Rules, rule 39(1) & 40; 2 rule 39(2)

A5565 « A5566 « A5640

The FtT must send a record of its decision on the application to all parties as soon
as possible. If the FtT refused permission to appeal then with the record of decision
it must also send :
1.a statement of reasons for refusal :
2.notification of the right to make an application to the UT and the relevant time
limits for doing that (1).

1 TP (FtT) (SEC) Rules, rule 39(4)

A5566

Where the FtT has given permission to appeal on limited grounds it must still provide
the information as in A5565 for those aspects for which permission was refused (1).
1 TP (FtT) (SEC) Rules, rule 39(5)

[A5567-A5569]

A5570 Suspension of payment of benefit « A5560

The DM can suspend payment of benefit awarded by the FtT whilst an appeal to the
UT is considered (1). The suspension is imposed on receipt of the FtT's decision
notice. The DM has one month from receipt of the decision notice to inform the
appellant that a statement of the reasons for the FtT's decision is to be requested,
with a view to appealing to the UT. If the appellant is not told within that month the
suspension must be lifted.

1 SS Act 98, s 21; UC, PIP, JSA & ESA (D&A) Regs, regs 44 & 46

A5571

The suspension is maintained if, within one month of receiving the statement of
reasons, the DM informs the appellant that an application for permission to appeal to
the UT has been made. The written notice must be
1. issued after the application for permission has been sent to the chairman of
the FtT and
2. posted to the appellant within the time limit.

A5572

Where such an application is made, the suspension may continue until the
application and any consequent appeal are decided.

A5573

For further guidance, see ADM Chapter A4: Suspension.

[A5574-A5584]

A5585 Appeals remitted by the Upper Tribunal

Where the UT decide that the FtT's decision is erroneous in point of law (1), the UT
may (but not must) set it aside (2) and if it does must either :
1.remit the case to another FtT with different members to the first with directions
for its reconsideration (3) or :
2.re-make the decision by making any decision which the FtT could make if it
were re-making the decision and make any appropriate findings of fact (4).
Note:
The UT need not set aside a decision, even where there is an error of law, if
the error makes no difference to the outcome

1 TCE Act 07, s 12(1); 2 s 12(2)(a); 3 s 12(2)(b)(i) & (3); 4 s 12(2)(b)(ii) & 4

A5586

When the UT sets aside the FtT's decision, but does not replace it, the effect is to
remove the FtT decision. The only decision remaining is the disputed decision by the
DM.

A5587

The UT's decision and a copy of all the documents available to the UT is sent to the
DM via DMA Leeds. The decision may contain directions from the UT to the new FtT
to help them decide the appeal.

A5588

A new response is only required if the Agency is directed to produce one by a FtT or
the UT, or on the advice of DMA Leeds.

A5589

Whether or not a new response has been requested, the DM should inform the FtT
of any events such as a decision on a claim or supersession made since the
decision went under appeal.

A5590

The proceedings should be by way of a complete rehearing and all the evidence
should be taken again (see A5460 - A5462)1.

1 R(S) 1/87

A5591

Where the DM receives an application to reconsider the disputed decision before the
rehearing, the application should be considered as in A5452.

A5592 Supersession of the First-tier Tribunal decision

The DM can supersede the decision of the FtT in the same way as a decision of
another DM, with one important exception (1). This is where the DM considers the
FtT's decision was erroneous in law. In such cases, the DM should consider whether
an application for leave to appeal to the UT is appropriate (see A5600 et seq). For
further guidance see ADM Chapter A4: Supersession.
1 SS Act 98, s 10(1)(b)

[A5593-A5599]

A5600 Appeals to the Upper Tribunal and the Courts « A5561 « A5592

DMs should note that all action on these appeals is taken or directed by DMA Leeds.
No other officer of the Department is authorised to represent the Secretary of State
by making or commenting on applications for leave at any stage.
Note: See Appendix 2 re process for seeking permission to appeal to the UT.

A5601

An application for permission to appeal to the UT can only be made on the ground
that the decision of the FtT is erroneous in point of Iaw (1).

1 TCE Act 07, s 11(1)

A5602

The FtT considers whether to review the decision (see DMG 06564 et seq). If the
FtT does not review the decision, the FtT decides whether or not to give permission
to appeal.

A5603

Where
1. the claimant
and
2. DMA Leeds on behalf of the Secretary of State
apply for permission to appeal, or otherwise expresses the view that the decision
was erroneous in point of law, the FtT shall set aside the decision for rehearing
without considering whether it is erroneous in law (1).

1 SS Act 98, s 13(3)

A5604

The FtT sends a copy of the decision to each party to the appeal.

[A5605-A5619]

A5620 Who can appeal to the Upper Tribunal

An appeal may be made with leave from the decision of the FtT by
1. a
DM (1) (but see A5564) :
2.a claimant claiming relevant SS benefits (2) :
3.any trade union or association that has the right of appeal (3) (see A5621) :
4.the person from whom an amount is recoverable where a recoverable
overpayment is involved (4) :
5.a person whose right to II benefit is, or may be, affected by the decision
appealed against (5) :
6.those listed in A5050 (6).
1 SS Act 98, s 14(3)(a); 2 s 14(3)(b); 3 s 14(3)(c); 4 s 14(3)(d); 5 s 14(4);

6 UC, PIP, JSA & ESA (D&A) Regs, reg 49

A5621 « A5620

A trade union or association has the right of appeal where :
1.the claimant is a member at the time of the appeal and was a member
immediately before the question arose (1) :
2.the question relates to a deceased person who was a member of the union at
the time of death (2) :
3.in II cases the claimant, or for IDB, the deceased, was a member of the union
at the time of the relevant accident (3).

1 SS Act 98, s 14(5)(a); 2 s 14(5)(b); 3 s 14(5)(c)

A5622

Any association which exists to promote the interests and welfare of its members
has the same right of appeal as a trade union (1).
1 SS Act 98, s 14(6)

[A5623-A5639]

Application for permission to appeal to the Upper Tribunal

A5640 Application to the Upper Tribunal « A5643

If the FtT refuse permission to appeal or do not admit it, an application can be made
direct to the UT (see A5565). Such an application should be in writing and should be
received by the UT no later than a month after the date the FtT sent to the appellant
its refusal of permission to appeal or refusal to admit the application for permission
to appeal (1). Where the UT receive an application for a decision to be corrected, set
aside or reviewed, or for permission to appeal against a decision, they may treat it as
an application for any one of those things (2).

1 TP (UT) Rules, rule 21(3); 2 rule 48

A5641 « A5648

The application must include (1) :
1.the name and address of the appellant :
2.the name and address of any representative of the appellant
3. an address where the documents for the appellant should be sent :
4.details of the decision being challenged :
5.grounds on which the appellant is relying :
6.whether the appellant wants a hearing.

1 TP (UT) Rules, rule 21(4)

A5642

The appellant must also provide with the application (1) a copy of :
1.any written record of the decision being challenged :
2.any separate written statement of reasons for the decision and :
3.if the application is for permission to appeal against the decision of another
FtT
3.1 the notice of refusal of permission to appeal or
3.2 the notice of refusal to admit the application for permission to appeal.
1 TP (UT) Rules, rule 21(5)

A5643 Late applications

If the application to the UT is made later than the time in A5640 or any extension of
time allowed by the UT (1) then the application must include a request for extension of
time and reasons why it was not on time (2). The UT can only admit the application if
they have extended the time limit (3).

1 TP (UT) Rules, rule 5(3)(a); 2 rule 21(6)(a); 3 rule 21(6)(b)

A5644

If the application to the UT is for permission to appeal against the decision of
another FtT which was refused due to not being made on time, then the application
to the UT must include reasons why the application was late. The UT may then only
admit the application if it considers it to be in the interests of justice (1).
1 TP (UT) Rules, rule 21(7)

A5645 Decision on permission to appeal

If the UT refuses permission it must send a written notice of the reason for refusal to
the appellant (1).

1 TP (UT) Rules, rule 22(1)

A5646

If the UT gives permission :
1.it must send written notice of permission to all parties :
2.a copy of the application should be sent to all parties (this becomes the notice
of appeal) :
3.it may determine the appeal without any further response if the appellant and
each respondent consent (1).
1 TP (UT) Rules, rule 22(2)

A5647 Notice of appeal « A5650

The appellant must still provide a notice of appeal to the UT within a month of the
notice of permission from the FtT being sent to the appellant where :
1.another FtT gave permission for a party to appeal to the UT or :
2.the UT give permission and in doing so directed that the application was not to
stand as a notice of appeal (1).

1 TP (UT) Rules, rule 23(1) & (2)

A5648

The notice of appeal should contain the information as per A5641 1. to 5. and where
the UT has given permission to appeal, the UT case reference should also be
provided (1).

1 TP (UT) Rules, rule 23(3)

A5649

If another FtT granted permission to appeal, the appellant must provide with the
notice of appeal a copy of: :
1.any written record of the decision being challenged
2. any separate written statement of reasons for that decision
3. the notice of permission to appeal (1).

1 TP (UT) Rules, rule 23(4)

A5650

If the notice of appeal is provided to the UT later than the time limit in A5647 or any
extension granted by the UT (1) the notice should include a request for an extension
and the reason why the notice was not provided on time. The UT may only admit the
notice of appeal if it has extended the time (2).

1 TP (UT) Rules, rule 5(3)(a); 2 rule 23(5)

A5651

The UT must send a copy of the notice and any other documents to each
respondent (1).
1 TP (UT) Rules, rule 23(6)

A5552

A5559

A5660 Composition of Upper Tribunal

The UT must consist of at least one UT Judge, however, the Senior President of
Tribunals can decide that an UT can consist of up to three members (1). Where there
are two or three members of the UT then the Senior President of Tribunals must
select one of the Judges to be the presiding member and chair the UT. The
presiding member has the casting vote if votes are equally divided (2).
1 FtT & UT (Composition of Tribunal) Order, art 3; 2 arts 7 & 8

A5661 Withdrawal of applications and appeals

A party may withdraw its case or any part of it by sending the UT a written notice of
withdrawal or orally at a hearing (1).

1 TP (UT) Rules, rule 17(1)

A5662

An appeal to the UT can only be withdrawn with the approval of the UT. Withdrawal
of an application for permission to appeal does not require such approval (1).
1 TP (UT) Rules, rule 17(2)

A5663 Reinstatement of withdrawn applications and appeals

A party that has withdrawn its case can apply to the UT for it to be reinstated (1). This
must be received by the UT within one month after the date
1. the UT received the withdrawal request or
2. the date of the hearing if the withdrawal was made orally.
(See A5683 for applications outside the time limit.)
1 TP (UT) Rules, rule 17(4)

A5664 Consideration of decision under appeal

If the DM considers the FtT's decision should be superseded (1), DMA Leeds should
be contacted urgently.
1 SS Act 98, s 10(1)(b)

[A5665-A5669]

A5670 Death of appellant

The death of an appellant does not automatically stop an appeal to the UT. A
personal representative or an appointee can pursue an appeal. A personal
representative is :
1.an executor, where there is a will :
2.an administrator, appointed by the Court.
If there is no personal representative or the Secretary of State is unable to appoint a
person to proceed with the appeal, the UT decides whether the appeal should be
decided or abated. An appeal which is abated may be revived if the Secretary of
State subsequently appoints someone to act, otherwise the matter is regarded as
closed (1).
1 R(I) 2/83; R(SB) 25/84

[A5671-A5679]

A5680 Striking out of proceedings

Proceedings :
1.will automatically be struck out if the appellant has failed to comply with a
direction of a UT which said that failure to comply would result in proceedings
being struck out (1) :
2.must be struck out (2) if the UT
2.1 does not have jurisdiction and
2.2 does not transfer the proceedings to another court or tribunal :
3.may be struck out (3) if
3.1 the appellant failed to comply with a directive of a UT which said failure
to comply with lead to the proceedings being struck out or
3.2 the appellant has failed to co-operate with the UT so that the UT cannot
deal with the proceedings fairly or justly or
3.3 the proceedings are not an appeal from another FtT or judicial review
proceedings and the UT considers there is no reasonable prospect of
the appellant's case succeeding.

1 TP (UT) Rules, rule 8(1); 2 rule 8(2); 3 rule 8(3)

A5681

The appellant must be given an opportunity to make representations before the UT
can strike out the proceedings (1).

1 TP (UT) Rules, rule 8(4)

A5682

Once struck out, the appellant may apply for the proceedings to be reinstated (1). Such
an application must be in writing and received by the UT within one month after the
date that the UT sent notification of the striking out to the appellant (1). (See A5683).
1 TP (UT) Rules, rule 8(5) & (6)

A5683 Power to extend time limits « A5663 « A5682

The UT has general powers to extend time limits for complying with the rules (1) so a
person outside the normal time limits would need to apply for an extension of time.
1 TP (UT) Rules, rule 5(3)(a)

A5684

A5685 The Upper Tribunal's decision

UT Judges may form their own views on the issues arising from appeals and are not
restricted to what is said by the appellant, representatives of the appellant, or the DM
where they are not the appellant (1).

1 R v Deputy II Commissioner ex parte Moore [1965] IQB 456; R(I) 4/65 Appendix

A5686

The UT who holds that the decision of the FtT was wrong in law may, but does not
have to, set aside the FtT's decision. If it does then the UT must either :
1.remit the case to the FtT, giving directives for its reconsideration or :
2.re-make the decision (1).

1 TCE Act 07, s 12(2)

A5687

If the UT remit the case to the FtT then it may :
1.direct that the FtT which reconsiders the case is not made up of the same
members as those on the FtT whose decision has been set aside :
2.give procedural directives to the FtT who reconsider the case (1).

1 TCE Act 07, s 12(3)

A5688

If the UT decide to re-make the decision then it may make :
1.any decision which the FtT could make and :
2.findings of fact that it considers appropriate (1).
1 TCE Act 07, s 12(4)

A5689 Parties to an appeal

The principal parties to an appeal are
1. the DM
2. the claimant in cases involving social security benefits, labour market
questions and contributions questions
3. the person from whom an amount is recoverable where a recoverable
overpayment is involved
4. a person whose right to II benefit is affected by the decision appealed
against (1).
1 SS Act 98, s 13(4)

A5690 Correction and setting aside

A UT Judge may correct or set aside his own decision at any time. A decision may
be corrected if it contains an accidental error (1) and may be set aside if the UT
considers that it is in the interest of justice to do so and that one or more of the
following conditions are satisfied :
1.a document relating to the proceedings was not sent to or received at the
appropriate time by a party or a party's representative or
2. a document relating to the proceedings was not sent to the UT at an
appropriate time or :
3.a party or representative was not present at an oral hearing or :
4.there has been a procedural irregularity.

1 TP (UT) Rules, rule 43(1) & (2)

A5691

Any application to set aside a decision given by the UT must be
1. in writing
and :
2.received no later than one month after the date on which the UT gave notice
of the decision (1).
1 TP (UT) Rules, rule 43(3)

[A5692-A5699]

A5700 Appeals to Court of Appeal or Court of Session

An appeal against a decision of the UT on a question of law should be made to the
Court of Appeal or, in Scotland, the Court of Session (1). All action on appeals to the
Courts will be taken by DMA Leeds.
1 SS Act 98, s 15

A5701 Who may apply for leave

An application for leave to appeal from a decision of the UT may be made by :
1.any person who was entitled to appeal against the FtT's decision :
2.any other person who was a party to the FtT proceedings.
1 SS Act 98, s 15(3)

A5702 Leave to appeal

Appeals to the Court of Appeal or Court of Session can be made only :
1.with the permission of the UT (1) or :
2.with permission of the appropriate court (2).

1 TCE Act 07, s 13(4)(a); 2 s 13(4)(b)

A5703

It is for the UT to specify the appropriate court to which appeal should be made (1).

1 TCE Act 07, s 13(11)

A5704

If the UT refuses leave to appeal the application can be renewed before the Court of
Appeal or the Court of Session (1). There is no right of appeal against a refusal of a UT
to accept an application made out of time, and it cannot be renewed before the
Court (2).

1 TP (UT) Rules, rule 45(4)(b); 2 R(SB) 12/83; R(S) 8/85

[A5705]

A5706 Time limits

The applicant has three months from the date of notification of the written UT's
decision to apply for leave to appeal (1).
1 TP (UT) Rules, rule 44(3)

A5707 Suspension of benefit

As with FtT decisions, the DM can suspend payment of benefit resulting from a UT
decision. For further guidance, see Chapter 04.

[A5708-A5899]

A5900 Judicial review

The decision making authorities are subject to judicial review, that is the controlling
jurisdiction of the High Court (Court of Session in Scotland), because the High Court
has legal authority to decide questions affecting peoples' rights (1).

1 [1924] 1KB, 171, 205

A5901

The result of judicial review differs from that of an appeal. An appeal :
1.examines the decision under appeal, and decides whether it is one which
could be made on the basis of the facts found and the relevant law and :
2.if the decision is found to be erroneous, either refers it back to be made again,
or substitutes a fresh decision.

A5902

A judicial review considers a case to find out if there is a fault in the decision making
process. If a fault is found the Court usually
1. quashes the decision, and :
2.makes an order for the decision making authority to consider the question
again.
In exceptional cases, the Court may make its own decision.

A5903 Judicial review of an Upper Tribunal decision

The Court exercises its jurisdiction to quash an UT decision by way of judicial review
only if there are compelling reasons in the interest of justice (1). In approaching such
cases the Court takes account of :
1.the existence of the right of appeal on a question of law to the Court of Appeal :
2.the fact that Parliament has set limits to this right.
1 RA 5/83, Appendix; R(SB) 12/83, Appendix; [1892] 1QB (60)9

A5904 Action on receipt of a claim for judicial review

All action on claims for judicial review is taken by the Office of the Solicitor, Litigation
and Employment Division, Floor 2, Caxton House, 6-12 Tothill Street, London SW (1)H
9NA. Where a claim for judicial review, including a proposal to bring a claim for
judicial review, is received, it should be forwarded to the above address immediately.

[A5905-A5999]

Appendix 1
Examples of the types of case suitable to request strike out of appeal on the basis of no reasonable prospect of success - A5233
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. It covers as
many benefits as possible but where a benefit is not listed, this would not necessarily
mean that DM requested strike out was not possible. It would be up to the DM to
decide whether any other type of case was suitable using the principles set out in
this memo.
Employment and Support Allowance (Cont)
Work Capability Assessment
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
Contribution conditions are laid out in law and must be met for a payment to be
made. This would only be suitable where HMRC have made a decision confirming
that the NI record is correct.
Age limitation
Decision not to pay ESA cases where the appellant has attained State Pension age
and therefore the benefit cannot be paid beyond that date.
Jobseekers Allowance (Cont)
Good cause
Decision 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) and they are not
disputing that they did not respond within 5 days but the only reason they provide is
that they forgot their appointment.
Universal credit
Decision to disallow entitlement on basis of capital exceeding £16,000. Claimant
appeals although they do not dispute they have the capital but disagrees with the
capital limit being set at £16,000.
Personal independence payment
Appeal against disallowance of PIP for a person under the age of 16. PIP is for
working age people only, 16 to 64.
Any appeal to PIP from a person over pension age, where benefit has not been
claimed before.
Appendix 2
Aide memoire for DMs seeking a Secretary of State's application for permission to appeal to the Upper Tribunal (DMG 06600)
Introduction
1
All applications for permission to appeal to the UT on behalf of the S of S are made
only by DMA Leeds. If it is considered that an appeal might be appropriate, take the
following action to notify DMA Leeds immediately.
2
It is very important that anyone considering requesting that DMA Leeds apply for
permission to appeal to the UT, does so within the timescales described below.
Many potential Secretary of State appeals have to be returned because they are late.
Administrative delays are almost never accepted by the FtT or the UT as a reason
for a late application. Cases must be sent to DMA Leeds within one month of the
date the FtT send the written statement of reasons (WSoR). As DMA Leeds
have to work within the same timescales sufficient time must be allowed for DMA
Leeds to work through the necessary processes within the same one month
deadline.
3
In most instances, the FtT's decision should not be implemented if the case is
referred to DMA Leeds. As soon as an application for permission to appeal to the UT
is being considered
1. suspend benefit
and :
2.send the claimant a DL/Susterm 6 (found in the Suspension and Termination
Guide on the DMA Leeds part of the intranet). This tells the claimant that the
FtT's decision is not being implemented as an application for permission to
appeal the FtT's decision to the UT is being considered).
Action to take
4
Once a case is identified as one where permission to appeal the FtT's decision may
be appropriate, the following action should be taken :
1.request a written statement of reasons (WSoR) from the FtT within one
calendar month of the date that the decision notice was issued to all parties.
The request should be made on the form at Appendix 10 of both the pre and
post 28.10.13 versions of the Code of Appeals Procedure. :
2.when the WSoR is received, consider if an application to the UT is still
appropriate. It must be remembered that an appeal can only be made where
we consider that the FtT's decision is erroneous in law, e.g. consider whether
2.1 the provisions of the act or regulations/rules have been misinterpreted
or misapplied
2.2 the decision is not supported by evidence
2.3 the decision is such that no person acting judicially and properly
instructed about the relevant law could have reached it
2.4 there has been a breach of natural justice
2.5 there are other errors of law, e.g.
2.5.a
taking irrelevant evidence into account or
2.5.b
giving reasons for decisions which imply faulty reasoning or
2.5.c
ignoring relevant evidence
Note: This list is not exhaustive.
5
If an application is considered appropriate :
1.refer the case to DMA Leeds :
2.all documents referred must be clearly marked with office/business unit
address and contain
2.1 a proforma (Appendix 13 of both pre and post 28.10.13 versions of
CAP) stating clearly the grounds for appeal and where appropriate an
estimate of the amount of benefit involved
2.2 the DM's written response to the FtT and numbered enclosures and
2.3 any other written response made, received from, or handed in, by any
party to the appeal on the day of the FtT hearing and
2.4 the FtT's decision and
2.5 the WSoR for the decision and
2.6 papers relating to any action taken after the FtT's decision has been
made; for example, if an application is made to set aside the FtT's decision
2.7 set a three monthly reminder to await the outcome and
2.8 set further three monthly reminders if the case is still outstanding when
the BF matures.
6
When DMA Leeds has decided whether or not to seek an application to appeal, they
will inform the DM by e mail. The DM must then send DL/SUSTERM 7 to the
claimant to inform them of what further action will be taken.

Chapter A6: Staying

Contents
Staying where an appeal is pending before a Court in another case

A6001:

Stayed decisions

A6010:

When is an appeal pending

A6030:

Which courts are involved

A6031:

Cases where the DM should stay making a decision

Staying decisions where the likely outcome of the lead case

A6040:

would result in no entitlement to benefit or credits

Staying where the likely outcome of the lead cases would affect

A6050:

the benefit decision in some other way

A6060:

Stayed appeals

A6070:

Look-alike appeals not yet lodged with HMCTS

A6075:

Look-alike appeals already lodged with HMCTS

What happens if the claimant challenges the decision to stay a

A6080:

look-alike claim or appeal

A6085:

What happens when the lead case is decided

A6090:

Action by DMs

Chapter A6: Staying

Staying where an appeal is pending before a Court in another case

A6001 Stayed decisions

The DM may decide not to make a decision (1) where an appeal is pending before a
Court in another case if the DM is considering
1. determining an application for benefit or credits
2. revising a claim to benefit
3. superseding a claim to benefit and
4. is aware that there is an appeal pending before a court in another case and
5. that the outcome of the appeal may affect the decision in some way.

1 SS Act 98, s 25

A6002

The case on appeal at a Court is known as the lead case. The case that is stayed is
known as the look-alike case.

[A6003-A6009]

A6010 When is an appeal pending « A6060

An appeal is pending where (1)
1. an appeal has been made, but has not yet been decided or
2. an application for leave to appeal has been made, but a decision on whether
leave is to be granted has not yet been made or
3. the time limit has not expired for making (2)
3.1
an appeal where an application for leave to appeal has been granted,
but the appeal has not yet been made or
3.2
an application for leave to appeal and
4. the Secretary of State certifies in writing that he is considering an appeal
against a decision and
5. the DM considers that such an appeal may affect the decision in the look-alike
case.

1SS Act 98, s 25(5); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 53(2)

A6011

DMA Leeds will identify lead case appeals that are pending and will issue
notifications detailing the point of law in dispute and the type of benefits which are
affected by the decision. DMA Leeds will also issue a certificate where the Secretary
of State is considering an appeal.

[A6012-A6029]

A6030 Which courts are involved

The courts before which relevant applications for permission to appeal or appeals
can be pending are
1. the High Court
2. the High Court in Northern Ireland
3. the Court of Appeal (England and Wales)
4. the Court of Session (Scotland)
5. the Court of Appeal in Northern Ireland
6. the Supreme Court
7. the ECJ.

A6031 Cases where the DM should stay making a decision

The DM may stay making a decision (1), because an appeal is pending in another
case, when considering
1. a claim to benefit or
2. an application for credits or
3. revising or superseding an existing award of benefit or credits
and the DM considers that the effect of the likely outcome of the appeal is that there
would be no entitlement to benefit or credits or the likely result of the appeal would
affect the benefit decision or credits in some other way (2).
1 SS Act 98, s 25(2); 2 s 25 (2) &(3)(a)

[A6032-A6039]

A6040 Staying decisions where the likely outcome of the lead case would result in no entitlement to benefit or credits

If the outcome of the lead case is possible to mean that there would be no
entitlement to benefit or credits, the DM will stay the decision until the outcome of the
lead case is known (1).

1 SS Act 98, s 25(2)

A6041 « A6081

In exceptional circumstances, a DM may decide cases where staying would
otherwise be appropriate. This is where the claimant would suffer hardship as a
result of staying the decision. For example where
1. the amount of benefit involved is likely to be significant, or
2. the lead case will not be resolved for some considerable time.
For advice on issues to be taken into account when considering hardship - see benefit specific guidance.

[A6042-A6049]

A6050 Staying where the likely outcome of the lead cases would affect the benefit decision in some other way

In deciding whether the lead case will affect the decision in some other way, the DM
must determine the claim or application as if the lead cases had already been
decided and that the outcome was most unfavourable to the claimant (1).
1 SS Act 98, s 25(3)(b); UC, PIP, JSA & ESA (D&A) Regs, reg 53(1)

Example

The lead case concerns the payment of the carer element. A DM has before him a
look-alike case that involves the same element. Using staying provisions he
identifies that even if the lead case were decided in most unfavourable terms, the
claimant would be entitled to a standard allowance, but not the element. Only the
payment of the element is in doubt.
The DM decides and awards the standard allowance. The decision on the carer
element will be stayed until the lead case is decided.

[A6051-A6059]

A6060 Stayed appeals

The arrangements for staying also apply to look-alike appeals that depend on the
outcome of a lead case on appeal to the Courts. Guidance at A6010 also applies in
terms of when an appeal pending in these circumstances (1).

1 SS Act 98, s 26(6); UC, PIP, JSA & ESA (D&A) Regs, reg 53(1)

A6061

The Secretary of State can direct an FtT or UT not to hear a look-alike appeal. In
these cases the appeal is returned to the DM to hold pending the outcome of the
lead case (1).

1 SS Act 98, s 26(2)

A6062

Where the Secretary of State decides that the look-alike appeal should not be
returned the FtT or UT may
1. stay the decision on the look-alike case pending the outcome of the lead case
or
2. where it is in the interests of the claimant, determine the look-alike case as if
the lead case had been decided in the most unfavourable terms for the
claimant (1).
1 SS Act 98, s 26(4)

[A6063-A6069]

A6070 Look-alike appeals not yet lodged with the HMCTS

Appeals officers should check all submissions for potential look-alike appeals.
Where a look-alike appeal is identified the appeals officer will refer the appeal
response to HMCTS in the normal way and note the AT (37) asking for the appeal
hearing to be deferred pending the decision on the lead case. HMCTS will notify all
PTTP if the hearing is deferred. This guidance applies to cases where
1. the outcome of the lead case is likely to mean that there will be no entitlement
to benefit
2. the issue or issues raised in the look-alike appeal relate wholly to the point(s)
of law in dispute in the lead case or
3. the additional issues raised in the appeal are non-appealable decisions.

[A6071-A6074]

A6075 Look-alike appeals already lodged with the HMCTS

DMA Leeds will send HMCTS and The Upper Tribunal Office a copy of the lead case
certificates. Separate arrangements have been agreed with HMCTS for the handling
of look-alike appeals that have already been lodged with them.

[A6076-A6079]

A6080 What happens if the claimant challenges the decision to stay a look-alike claim or appeal

There is no right of appeal against a decision to stay a look-alike claim or a look
alike appeal (1).

1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 8

A6081

The DM can reconsider the decision in the light of all the available facts that may be
presented by the claimant, and if appropriate make a decision on the case (see A6041 for guidance on hardship).

[A6082-A6084]

A6085 What happens when the lead case is decided

DMA Leeds will notify the outcome of the lead case.

A6086

Claimants might approach the DM for a decision on their stayed appeal immediately
following the Court's decision. DMs should not take any action to decide the stayed
case until they have received formal notification and guidance on the outcome of the
lead case.

[A6087-A6089]

A6090 Action by DMs

DMs should identify all look-alike cases and appeals returned to them by HMCTS.

A6091

DMs decide the claim where the decision was stayed in full

A6092

Where the lead case has been decided in a way which changes the interpretation of
the law, DMs should revise or supersede the decision (1). The decision will be revised where
1. only part of the decision was stayed (2)
2. the appeals officer decided not to forward a look-alike appeal to HMCTS
3. HMCTS returned a look-alike appeal on the request of the DM (see ADM
Chapter A3 for guidance on revision).

1 SS Act 98, s 25(4); 2 s 26(3)

A6093

Where the look-alike appeal was forwarded to the FtT and they decided the appeal,
the DM should supersede the decision (1) (see DMG Chapter 04 for guidance on
supersession).

1 SS Act 98, s 26(5)

A6094

DMA Leeds will give guidance following the determination of lead cases on whether
revision or supersession is required.

[A6095-A6999]

Annex L

Prefixes to Reported Commissioner's decisions
Note: This was the style for reporting decisions prior to 2010 - see Annex K for
current version
R(A)
Attendance Allowance
R(CR)
Compensation recovery
R(CS) Child support
R(DLA)
Disability living allowance
R(DWA)
Disability working allowance
R(F)
Child benefit (formerly family allowance)
R(FC) Family credit
R(FG)
Forfeiture - general (bereavement benefit and widow's benefit)
R(FIS)
Family income supplement
R(FP)
Forfeiture - pension (retirement pension)
R(G)
General - (bereavement benefit, carer's allowance (formerly invalid care allowance), child's special allowance, death grant, guardian's allowance, maternity allowance, widow's benefit, including forfeiture cases before 2003)
R(H)
Housing benefit and council tax benefit
R(HR)
Home responsibilities protection
R(I)
Industrial injuries scheme benefits
R(IB)
Incapacity benefit and NI credits
R(IS)
Income support and social fund
R(JSA) Jobseeker's allowance
R(M) Mobility allowance
R(P)
Pension (retirement pension, including forfeiture cases before 2003)
R(PC) Pension credit
R(S)
Sickness benefit, invalidity benefit, severe disablement allowance and non-contributory invalidity pension
R(SB) Supplementary benefit
R(SSP)
Statutory sick pay
R(TC) Tax credits
R(U) Unemployment
Benefit

Annex C

Issues for decision by HM Revenue and Customs :
1.whether a person is or was an earner, and if so what category (1) :
2.whether a person is liable to pay contributions, and if so the amount (2) :
3.whether a person was entitled to pay contributions that he was not liable to
pay, and if so the amount (3) :
4.whether contributions of a particular class have been paid in respect of a
period (4) :
5.any issues about Statutory Paternity Pay, Statutory Adoption Pay, SSP or
SMP, including entitlement (5) :
6.liability of directors for company's contributions (6)
7. whether
7.1 a person is or was an employee or an employer
7.2 an employer is or was entitled to make deductions from contributions,
and if so the amount
7.3 a payment should be made to an employer, and if so the amount
7.4
two or more employers are treated as one for the purposes of employment of the long-term unemployed (7) 8.
whether to give or withdraw approval to a transfer of liability to contributions (8) :
9.whether a person is liable to a penalty, and if so what the penalty should be (9) :
10.any other contributions issues other than the exceptions below (10)
1 SSC (ToF) Act 99, s 8(1)(a); SS CB Act 92 Pts I-V; 2 SSC (ToF)
Act 99, s 8(1)(c); 3 s 8(1)(d); 4 s 8(1)(e); 5 s 8(1)(f) & (g);6 s 8(1)(h); SS A Act 92, s 121C; 7 SSC (ToF) Act 99,
s 8(1)(i); JS Act 95, s 27; 8 SSC (ToF) Act 99, s 8(1)(ia); SS CB Act, Sch 1 para 3B(1)(b); 9 SSC (ToF) Act 99,
s 8(1)(k)&(l); SS CB Act 92, Sch 1 para 7A(2) and 7B(2)(h); 10 SSC (ToF) Act 99, s 8(1)(m);
Exceptions to paragraphs 2 and 10
Any decision about Class 4 contributions except
1. whether a person is excepted from or deferred from liability to pay Class 4
contributions (1).
2. incidental issues relating to calculation of profits and recovery of Class 4
contributions (2).
1 SSC (ToF) Act 99, s 8(2)(a); SS CB Act 92, s 17(1); 2 SSC (ToF) Act 99, s 8(2)(b); SS CB Act 92,
s 17(3)&(4) and 18

Annex D

Decisions and determinations that are appealable
Benefit decisions
1. All decisions, other than those in Annex E, made on a claim for or award of a
relevant benefit (1), including whether there has been a valid claim (2) or if the claim
is defective.
1 SS Act 98, s 12(1)(a); 2 UC, PIP, JSA & ESA (C&P) Regs, regs 8, 11, 13, 15, 19, 21 & 23
2. Entitlement to and amount of a benefit for which no claim is required (1).
1 UC, PIP, JSA & ESA (C&P) Regs, regs 6 , 7, 9(6) & 9(7); SS Act 98, Sch 3, paras 1-2
3. Whether benefit to which a claimant is entitled is not payable because (1)
3.1 the claimant is disqualified for receiving benefit (2)
3.3 the claimant is in hospital (3)
3.4 a sanction has been imposed (4)
3.5 a PIP claimant is in a care home, hospital or in prison (5)
1 SS Act 98, Sch 3, para 3; 2 SS Act 98, Sch 3, para 3(a) WR Act 07, s 18;3 SS CB Act s 113(2);
4 SS Act 98, Sch 3, para 3(f); WR Act 12, s 26-28 & s 46; ESA Regs 13, reg 50-61;
5 SS Act 98, Sch 3 para 3 (h &i)
4. Payments to third parties (1) (but see Annex E for exceptions).
1 SS Act 98, Sch 3 para 4
5. Whether an overpayment of benefit is recoverable, and if so, the amount (1).
1 SS A Act, s 71,71A, 71ZB, 71ZG & 71ZH
6. Decisions about a proposal to make or vary a claimant committment (1).
1 SS Act 98, para 8; JS Act 95, s 9 & 10
7. A decision as to the amount of a relevant benefit that is payable under
prescribed legislation (1).
1 SS Fraud Act 01, s 6B, 7, 8 &9; SS Act 98, Sch 3, para 3A
Contributions decisions
1. Whether a person was precluded from regular employment by home
responsibilities (1).
1 SS Act 98, Sch 3 para 16
2. Whether a person should be credited with earnings or contributions (1).
1 SS Act 98, para 17; SS CB Act 92, s 22(5)

Annex E

Decisions and determinations that are not appealable
1. A decision treating a claim for MA as a claim to ESA (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(a); UC, PIP, JSA & ESA (C&P) Regs, reg 18
2. Interchange with claims for other benefits (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(b); UC, PIP, JSA & ES (C&P) Regs, reg 25
3. A decision as to the evidence or information required in connection with a
claim (1).
Note: This does not apply to JSA.
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(c); UC, PIP, JSA & ES (C&P) Regs, reg 37
4. Making payments by direct credit transfer into a bank or other account (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(d); UC, PIP, JSA & ESA (C&P) Regs, reg 46
5. Payment of UC (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(e); UC, PIP, JSA & ESA (C&P) Regs, reg 47
6. Payment of PIP, including the payday and payment at a daily rate between
periods in hospital or similar accommodation (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(f) - 1(h);
UC, PIP, JSA & ES (C&P) Regs, regs 48 - 49 & reg 50(1)
7. Payment of ESA and JSA (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(i) & 1(j);
UC, PIP, JSA & ESA (C&P) Regs, reg 51 & 52
8. Extinguishment of the right to payment of benefit except a decision to extend
the 12 month period where there is good cause (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(k); UC, PIP, JSA & ESA (C&P) Regs, reg 55
9. Payments upon death (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(l); UC, PIP, JSA & ESA (C&P) Regs, reg 56
10. Decisions about appointees (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(m); UC, PIP, JSA & ESA (C&P) Regs, reg 57
11. Payments of UC and PIP to third parties in the claimant's interests (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(n); UC, PIP, JSA & ESA (C&P) Regs, reg 58
12. For UC, payments of mortgage interest direct to lenders (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(o); UC, PIP, JSA & ESA (C&P) Regs, reg 59
13. Payment of the mobility component of PIP in certain circumstances (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 1(p); UC, PIP, JSA & ESA (C&P) Regs, Part 6
14. For JSA, a decision made on incomplete evidence (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 2; UC, PIP, JSA & ESA (D&A) Regs, reg 39(2)
15 For UC (1) a decision,
1. in default of a nomination of the assessment period when 2 separate
claimants become a couple (2)
2. in default of an election to award the carer element (3)
3. to award a particular amount of UC dependent upon age (4)
4. which adopts a rent officer's decision (5)
5. alterations to UC under prescribed legislation (6)
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 3-6; 2 UC Regs, reg 21(4);
3 reg 29; 4 SS Admin Act s 160C(2); 5 Housing Act s 122; 6 WR Act 12, s 159D(1)(b)
16. Suspension of payment of benefit (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 7; UC, PIP, JSA & ESA (D&A) Regs, Part 5
17. Staying making a decision (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 8; SS Act 98, s 25 &26
18. Whether to pay travelling expenses (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 9; SS A Act, s 180
19. Deductions of fines except a decision on whether there is sufficient benefit to
make a deduction (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 10; Fines (Deductions from IS) Regs
20. Deductions of CC or CT except a decision (1)
1. whether there is an outstanding sum due of the amount to be deducted
2. whether there is sufficient benefit to make a deduction
3. on the priority to be given to a deduction
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 11; Community Charges (Deductions from IS)
(No 2) Regs, Community Charges (Deductions from IS) (Scotland)
Regs & Council Tax (Deductions from IS) Regs
21. A decision that a sanctionable benefit is not payable or is to be reduced under
prescribed legislation (1) where the only ground of appeal is that any of the
conviction was erroneous or the offender did not commit the benefit offence (2).
1 Fraud Act, s 6A(1), s 6B, 7 & 9; 2 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 12
22. For PIP, any decision on payments on account, overpayments and recovery
except a decision as to (1)
1. offset of a prior payment against a subsequent award (2)
2. whether excess payment has been credited to a bank account (3)
3. deductions in calculating recoverable amounts (4).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 13; 2 SS (POR) Regs, reg 5; 3 reg 11(1); 4 reg 13
23. A decision on payments on account except a decision on bringing a payment
on account of benefit into account (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 14;SS (Payments on Account of Benefit) Regs 13, reg 10
24. A decision on recovery of benefits (1) except
1. a decision as to the person from whom an overpayment of housing
payment is recoverable (2)
2. the treatment of capital to be reduced (3)
3. the sums to be deducted in calculating recoverable amounts (4)
4. sums to be deducted where there is a change of dwelling (5)
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 15; 2 SS (Overpayments and Recovery)
Regs 13, reg 4(3); 3 reg 7; 4 reg 8; 5 reg 9
25. Reciprocal agreements with countries outside the UK (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 16; SS A Act 92, s 179
26. Authorisation on the application of SS schemes to employed and self
employed earners and their families moving within the EC (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 17; Council Reg (EEC) 1408/71, Art 22(1) & 55(1)
27. Uprating of benefit (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 18; SS A Act part 10
28. A decision to apply the benefit cap (1).
1 SS Act 98, Sch 2 para 8A; WR Act 12, s 96

Annex G

EXTRACTS FROM THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
PART I
Rights and Freedoms
Article 2
Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3
Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term "forced or compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during conditional
release from such detention;
(b) any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
(c) any service exacted in case of an emergency or calamity threatening the life
or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
Article 5
Right to liberty and security
1.
Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful
order of a court or in order to secure the fulfilment of any obligation prescribed
by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or
vagrants;
(f)
the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.
3.
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this
Article shall be brought promptly before a judge or other officer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4.
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
5.
Everyone who has been the victim of arrest or detention in contravention of the provisions
of this Article shall have an enforceable right to compensation.
Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice the interests of
justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of
the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
Article 7
No punishment without law
1.
No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the time when
it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at
the time the criminal offence was committed.
2.
This Article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.
Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2.
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.
Article 9
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or for the protection of the rights and
freedoms of others.
Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11
Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State.
Article 12
Right to marry
Men and women of marriageable age have the right to marry and to found a family, according
to the national laws governing the exercise of this right.
Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.
Article 16
Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties
from imposing restrictions on the political activity of aliens.
Article 17
Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any
right to engage in any activity or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater extent than is provided for in the
Convention.
Article 18
Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be
applied for any purpose other than those for which they have been prescribed.
PART II
The First Protocol
Article 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce
such laws as it deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.
Article 2
Right to education
No person shall be denied the right to education. In the exercise of any functions which it
assumes in relation to education and to teaching, the State shall respect the right of parents to
ensure such education and teaching in conformity with their own religious and philosophical
convictions.
Article 3
Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret
ballot, under conditions which will ensure the free expression of the opinion of the people in
the choice of the legislature.
PART III
The Sixth Protocol
Article 1
Abolition of the death penalty
The death penalty shall be abolished. No one shall be condemned to such penalty or
executed.
Article 2
Death penalty in time of war
A State may make provision in its law for the death penalty in respect of acts committed in
time of war or of imminent threat of war; such penalty shall be applied only in the instances
laid down in the law and in accordance with its provisions. The State shall communicate to the
Secretary General of the Council of Europe the relevant provisions of that law.

Annex K

Neutral citation Background 1.
Since the introduction of the new appeal tribunal structure on 3.11.08, the
Administrative Appeals Chamber (AAC) decided on a new way to report its
decisions. From 1.1.2010, the series of reported decisions selected by the AAC
which replace the reported Commissioners' decisions, will now be known as the
Administrative Appeals Chamber Reports (AACR). These are the decisions of the
UT Judges.
2.
The new appeal tribunal system encompasses more than just social security cases,
these AACR will include decisions from all the AAC's jurisdiction, although inevitably
most of the cases will be social security cases. The method of selection for
reporting will remain as it is now and decisions will only be reported if they have the
broad consent of the AAC as a whole. Reported decisions will therefore continue to
carry greater weight than unreported.
3.
The new way of numbering UT decisions is called neutral citation and is the format
already used by the higher courts, so bringing UT decision in line with other courts
of equal standing. It also enables those with internet access to more easily search
for such decisions as all decisions published on the AAC website will have a neutral
citation.
Reported Upper Tribunal decisions
4.
An example of a neutral citation for a reported UT decision is "KS v Secretary of
State for Work and Pensions (JSA) [2009] UKUT 122 (AAC); [2010] AACR 3". To
explain the composition of the citation, it is broken down below into its component parts
"KS v Secretary of State for Work and Pensions (JSA)" - refers to the parties to
the appeal and the benefit involved. This part should be in italic font.
"[2009] UKUT 122 (AAC)" - refers to the year the decision was made, United
Kingdom Upper Tribunal and the neutral citation number; i.e. the consecutive
number of the case within that year's series and the name of the chamber
making the decision.
"[2010] AACR 3" - refers to the year the decision was reported, the name of the
publication it is reported in and the consecutive reporting number within that
year's series.
5.
The AAC have indicated that names in the citation can be abbreviated, so "KS v
SSWP (JSA) [2009] UKUT 122 (AAC); [2010] AACR 3" is acceptable. This format
should always be used the first time reference is made in an appeal response to a
decision with a neutral citation. Any subsequent references can be in the
abbreviated format "KS v SSWP (JSA)".
6.
This format will be used on all decisions reported from 1.1.2010 onwards. Reported
decisions numbered under the old "R" format can continue to be cited as before,
e.g. R(IS) 1/08.
Unreported Upper Tribunal decisions
7.
Some unreported decisions will also have a neutral citation number. This is where
the decision has not been reported but it has nonetheless been thought to be of
interest to potential parties. The only difference to the form of the citation in an
unreported decision is that it will not contain the final segment of the citation and so
would just be "KS v SSWP (JSA) [2009] UKUT 122 (AAC)".
8.
All other unreported decisions will retain the AAC reference number in the familiar
format "CIS/1234/2010". It should be rare for DMs to need to cite decisions without
neutral citation numbers (other than pre 3.11.08 decisions). However where for
example a claimant or claimant's representative relies on a post 3.11.08 decision
that does not have a neutral citation number, this old file number format can still be
used. Decisions without neutral citation numbers are not be published on the AAC
website, but copies will be provided by the AAC on request.

Annex M

Example of application of s. 27 of SS Act 98
6.12.14
DM disallows benefit.
Claimant appeals to FtT.
1.2.15
FtT uphold the disallowance
Claimant appeals to UT
22.2.16
The UT overturns the FtT decision and awards benefit. Secretary of State appeals to the Court of Appeal 9.4.17
Court of Appeal refer a question on the interpretation of EC law to
the ECJ for a ruling.
11.1.19
ECJ rule on the point. Case returns to the Court of Appeal for final decision. 14.12.19
Court of Appeal take account of ECJ ruling and uphold
the UT's decision.
Claimant is entitled to benefit.
The relevant determination is that of the UT dated 22.2.16

Chapter B1: Payment of UC, PIP, ESA and JSA

Contents

B1001:

Scope of Chapter

When this guidance applies from

When UC, PIP, ESA and JSA payments are made
Time of payment

B1004:

General

How UC, PIP, ESA and JSA payments are made

B1005:

Direct credit transfer

B1006:

Simple Payment service

B1008:

ESA and JSA payments

When and how UC payments are made

B1021:

Period and timing of UC payments

B1022:

Payments of UC at other times

Payment of UC to joint claimants

B1024:

Nomination of bank or other account

B1025:

Which member of the couple may receive UC payments

B1026:

Splitting UC payments between the couple

B1027:

UC claimant claims SPC in advance

When and how PIP payments are made

B1041:

Period of PIP payments

B1042:

Claimant suffering from a terminal illness

B1043:

Amount of PIP less than £5.00 a week

B1044:

PIP pay day

B1045:

Payments of PIP at a daily rate

Payments of PIP at a daily rate between periods in hospital or
other accommodation

B1047:

General

When and how ESA payments are made

B1061:

Period and timing of ESA payments

B1062:

ESA pay day

B1063:

Change to ESA payment period

B1064:

Payments of ESA at other times

B1065:

Change to ESA pay day

B1066:

Payments of ESA less than £1.00 a week

B1067:

Payments of ESA less than 10 pence a week

B1068:

Payments of ESA affected by office closure

B1069:

Definition of "benefit week"

B1070:

Definition of "office closure"

B1071:

Definition of "public holiday"

When and how JSA payments are made

B1101:

Period of JSA payments

B1102:

Payments of JSA at other times

B1103:

Payments of JSA less than £1.00 a week

B1104:

Payments of JSA less than 10 pence a week

B1105:

Payments of JSA affected by office closure

B1106:

Definition of "benefit week"

B1107:

Definition of "office closure"

B1108:

Definition of "public holiday"

B1121:

Fractional amounts of UC, PIP, ESA and JSA

B1122:

Payments of UC, PIP, ESA and JSA to persons under age 18

Failure to obtain payment within 12 months

B1131:

General

B1132:

Right to payment - start of the 12 month period

B1134:

Right to payment - extension of the 12 month period

B1151:

Payment after claimant's death

B1157:

Definition of "next of kin"

Person unable to act

B1171:

Person acting on claimant's behalf

Payment to another person on the claimant's behalf

B1172:

B1173:

PIP

Chapter B1: Payment of UC, PIP, ESA and JSA

B1001 Scope of Chapter

This Chapter gives guidance on when and how payments of
1. UC
2. PIP
3. new style ESA (hereafter referred to as ESA)
4. new style JSA (hereafter referred to as JSA)
are made.
Note 1: ADM Chapter M1 contains guidance on the meaning of new style ESA and
new style JSA.
Note
2: DMG Chapter 08 contains guidance on when and how payments are made
for benefits other than those listed above.
When this guidance applies from

B1002 PIP

This guidance applies to payments of PIP made from and including 8.4.131.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 1(2)

B1003 UC, ESA and JSA

This guidance applies to payments of
1. UC
2. ESA
3. JSA
made from and including 29.4.131.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 1(3)
When UC, PIP, ESA and JSA payments are made
Time of payment

B1004 General

Subject to B1005 to B1173, UC, PIP, ESA and JSA must be paid in accordance with
an award as soon as reasonably practicable after the award has been made (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 45
How UC, PIP, ESA and JSA payments are made

B1005 Direct credit transfer « B1004

Payments of UC, PIP, ESA or JSA are paid by DCT into a bank or other account (1)
1. in the name of the person entitled to the benefit or
1.1 the person's partner or
1.2 a person appointed under specified legislation (2) (see Part 5 of the
Agents, Appointees, Attorneys and Deputies Guide) or
1.3 a person referred to in specified legislation (3) (eg. persons appointed to
act under mental capacity law - see Parts 2, 3 and 4 of the Agents,
Appointees, Attorneys and Deputies Guide) or
2. in the joint names of the person entitled to the benefit and their partner or
3. in the joint names of the person entitled to the benefit and
3.1 a person appointed under legislation (4) (see Part 5 of the Agents,
Appointees, Attorneys and Deputies Guide) or
3.2 a person referred to in legislation (5) (eg. persons appointed to act under
mental capacity law - see Parts 2, 3 and 4 of the Agents, Appointees,
Attorneys and Deputies Guide) or
4. in the name of such persons as are mentioned in legislation (6) (eg. persons
appointed to act under mental capacity law - see Parts 2, 3 and 4 of the
Agents, Appointees, Attorneys and Deputies Guide).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 46(1); 2 reg 57(1); 3 reg 57(2); 4 reg 57(1);
5 reg 57(2); 6 reg 57(2)

B1006 Simple Payment service

The SimP service is a method of paying UC, PIP, ESA and JSA which is specifically
designed for those claimants who, for the purposes of receiving their benefit
payments, are unable to make use of mainstream accounts such as :
1.a bank account :
2.a building society account :
3.a basic bank account :
4.a credit union account :
5.a PO account.

B1007

Payments made under the SimP service are based on an electronic transfer of funds
and should be treated as a DCT payment.

B1008 ESA and JSA payments

ESA and JSA payments are to be paid by DCT within 7 days of the last day of each
successive period of entitlement (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 46(2)

Example 1

Robin is in receipt of ESA. He is entitled to a payment for the period from 8
November to 21 November. That payment should be credited to Robin's bank
account within 7 days of 21 November. Robin's next payment for the period from 22
November to 5 December should be credited to his bank account within 7 days of 5
December.

Example 2

Lisa is in receipt of JSA. She is entitled to a payment for the period from 10 July to
23 July. That payment should be credited to Lisa's bank account within 7 days of 23
July. Lisa's next payment for the period from 24 July to 6 August should be credited
to her bank account within 7 days of 6 August.

[B1009-B1020]

When and how UC payments are made

B1021 Period and timing of UC payments

Except where the DM arranges otherwise, UC is payable monthly in arrears in
respect of each assessment period (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 47(1)

B1022 « B1023

UC is to be paid by DCT within 7 days of the last day of the assessment period.
However, if it is not possible to do so, it must be paid as soon as reasonably
practicable afterwards (1).
Note
1: Operational guidance on the limited circumstances when a claimant may be
paid UC other than monthly is available.
Note
2: ADM Chapter E2 contains further guidance on assessment periods for UC.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 47(2)

Example

Ian is entitled to a UC payment for the monthly assessment period from 2 October to
1 November. That payment should be credited to his bank account within 7 days of 1
November.

B1023 Payments of UC at other times

The DM may make UC payments by DCT and other than in accordance with B1022,
if it appears appropriate to do so for the purpose of :
1.paying any arrears of benefit or :
2.making a payment in respect of a terminal period of an award (see B1027 for
guidance on when this arises) or :
3.for any similar purpose (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 47(3)
Payment of UC to joint claimants

B1024 Nomination of bank or other account

UC joint claimants may nominate a bank or other account into which that benefit is to
be paid (1). Where they have not done so, the DM may nominate a bank or other
account on their behalf (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 47(4); 2 reg 47(5)

B1025 Which member of the couple may receive UC payments

UC payments made to joint claimants may be paid wholly to only one member of the
couple, if the DM considers it to be in the interests of (1)
1. the claimants or
2. a child (2) or a qualifying young person (3) for whom the claimant or their partner or
both are responsible or :
3.a severely disabled person, where the claimant's UC award includes, by virtue
of specified legislation (4), an amount in respect of the fact that a claimant has
regular and substantial caring responsibilities for that severely disabled
person.
Note 1: Operational guidance on deciding which member of a couple may receive
payments of UC is available.
Note 2: ADM Chapter F1 contains further guidance on being responsible for a child
or qualifying young person.
Note 3: ADM Chapter F6 contains further guidance on the meaning of a severely
disabled person and regular and substantial caring responsibilities.
1 SS A Act 92, s 5(3B); UC, PIP, JSA & ESA (C&P) Regs, reg 47(6); 2 WR Act 12, s 40; 3 UC Regs, reg 5;
4 UC Regs, reg 29

B1026 Splitting UC payments between the couple

UC payments made to joint claimants may be split between the couple, in such a
proportion as the DM sees fit, if it is in the interests of (1)
1. the claimants or
2. a child (2) or a qualifying young person (3) for whom the claimant or their partner or
both are responsible or :
3.a severely disabled person, where the claimant's UC award includes, by virtue
of specified legislation (4), an amount in respect of the fact that a claimant has
regular and substantial caring responsibilities for that severely disabled
person.
Note: Operational guidance on the splitting of UC payments between the couple is
available.
1 SS A Act 92, s 5(3B); UC, PIP, JSA & ESA (C&P) Regs, reg 47(6); 2 WR Act 12, s 40; 3 UC Regs, reg 5;
4 UC Regs, reg 29

B1027 UC claimant claims SPC in advance « B1023

Where a UC claimant reaches the qualifying age (1) and makes an advance claim for
SPC, the award of UC is superseded in accordance with specified legislation (2). With
effect from the date the claimant reaches that qualifying age, the amount payable in
respect of the last assessment period, if it is a period of less than 1 month, is to be
calculated as follows:
A x12
Nx
365 For the purposes of this formula
N = the number of days in the period and
A = the amount calculated in relation to that period as if it were an assessment
period of 1 month (3).
1 SPC Act 02, s 1(6); 2 UC, PIP, JSA & ESA (D&A) Regs, Sch 1, para 26;
3 UC, PIP, JSA & ESA (C&P) Regs, reg 47(7)

Example

Bruce is entitled to UC amounting to £311.55 per assessment period and is due to
be paid for the period from 3 December to 2 January. He has made an advance
claim for SPC as he will reach qualifying age on 16 December. The UC award is
superseded from and including 16 December. The amount of UC payable in respect
of the last assessment period is calculated (using the above formula) as follows:
N = 13 (period from 3 December to 15 December)
A = £311.55 (monthly UC entitlement)
Calculation = 13 x (£311.55 x 12) ÷ 365 = £133.16
Bruce is entitled to UC amounting to £133.16 in respect of the last assessment
period.

[B1028-B1040]

When and how PIP payments are made

B1041 Period of PIP payments

Subject to B1042 to B1043 and B1047, PIP is payable at intervals of 4 weeks in
1
arrears .
1 UC, PIP, JSA & ESA (C&P) Regs, reg 48(1)

B1042 Claimant suffering from a terminal illness « B1041

Where a claimant is suffering from a terminal illness and has been awarded PIP
under relevant legislation (1), the DM may arrange for it to be paid at intervals of one
week in advance (2).
Note: ADM Chapter P2 contains further guidance on terminally ill claimants.
1 WR Act 12, s 82; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 48(2)

B1043 Amount of PIP less than £5.00 a week « B1041

Where the amount of PIP payable is less than £5.00 a week, the DM may arrange
for it to be paid in arrears at intervals not exceeding 12 months (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 48(3)

B1044 PIP pay day « B1046

Subject to B1045 to B1046, PIP is payable on the day of the week on which the DM
makes a decision to award that benefit. However, where the decision to award PIP is
made on a Saturday or Sunday, the benefit is to be paid on such day of the week as
the DM may direct in any case (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 49(1)

B1045 Payments of PIP at a daily rate « B1044

Where there is a change in the day on which PIP is payable, it must be paid at a
daily rate of 1/7th of the weekly rate in respect of any of the days for which payment
would have been made but for that change (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 49(3)

B1046 « B1044

Where
1. the amount of PIP payable changes or
2. entitlement to PIP ends
and these events do not occur on the day of the week referred to in B1044, PIP will
be paid at a daily rate of 1/7th of the weekly rate (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 49(4)
Payments of PIP at a daily rate between periods in hospital or other accommodation

B1047 General « B1041

For any day falling within a period to which specified legislation (1) applies, PIP is
payable at a daily rate (which is equal to 1/7th of the weekly rate) and is to be paid
weekly or as the DM may otherwise direct (2).
Note: ADM Chapter P4 contains further guidance on payments of PIP in these
circumstances.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 50(2); 2 reg 50(1)

[B1048-B1060]

When and how ESA payments are made

B1061 Period and timing of ESA payments « B1062 « B1064

Subject to B1063 to B1068, ESA is paid by DCT fortnightly in arrears on the day
determined in accordance with B1062 (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(1)

B1062 ESA pay day « B1061

The day specified for the purposes of B1061 is determined by the last 2 digits of the
claimant's NINO as shown in the following table (1).
NINO - last 2 digits
ESA pay day
00 to 19
Monday
20 to 39
Tuesday
40 to 59
Wednesday
60 to 79
Thursday
80 to 99
Friday
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(2)

Example

Ronnie's NINO is WK (07)1016B. His ESA payday is Monday.

B1063 Change to ESA payment period « B1061

In certain circumstances, the DM may arrange for the claimant to be paid ESA
otherwise than fortnightly (1).
Note: Operational guidance on the circumstances when a claimant may be paid
ESA other than fortnightly is available.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(3)

B1064 Payments of ESA at other times

The DM may make a payment of ESA by DCT and other than as in B1061, if it
appears appropriate to do so for the purpose of
1. paying any arrears of benefit or
2. making a payment in respect of a terminal period of an award or
3. for any similar purpose (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(4)

B1065 Change to ESA pay day

The DM may, in any particular case or class of case, arrange that ESA is paid on
any day of the week. Where the day on which ESA is payable is changed, it must be
paid at a daily rate of 1/7th of the weekly rate for any days for which payment would
have been made, but for that change (1).
Note: Operational guidance on the payment of ESA on any day of the week is
available.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(5)

B1066 Payments of ESA less than £1.00 a week

Where the weekly amount of ESA is less than £1.00 it may be paid in arrears at
intervals of not more than 13 weeks (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(6)

B1067 Payments of ESA less than 10 pence a week

Where the weekly amount of ESA is less than 10 pence, that allowance is not
payable (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(7)

B1068 Payments of ESA affected by office closure « B1061 « B1069 « B1070

Where ESA is normally paid in arrears and payment would be affected by office
closure, the DM may decide to make the payment, for that benefit week, on any day either
1. wholly in advance or
2. partly in advance and partly in arrears (1)
in which case, it will for any other purposes, be treated as if it were paid in arrears (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(8); 2 reg 51(9)

B1069 Definition of "benefit week"

For the purpose of B1068, benefit week means a period of 7 days beginning or
ending with such day as the DM may direct (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(10)

B1070 Definition of "office closure" « B1071

For the purposes of B1068, office closure means a period during which an
appropriate office is closed in connection with a public holiday (1).
Note: ADM Chapter A2 contains further guidance on the meaning of appropriate
office.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(11)

B1071 Definition of "public holiday"

For the purposes of B1070, public holiday means (1)
1. in England and Wales
1.1
Christmas Day or
1.2
Good Friday or
1.3
a Bank Holiday under specified legislation (2) or
2. in
Scotland
2.1
a Bank Holiday under specified legislation (3) or
2.2
a local holiday.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 51(12); 2 Banking & Financial Dealings Act 1971 s 1 & Sch 1;
3 Banking & Financial Dealings Act 1971 s 1 & Sch 1

[B1072-B1100]

When and how JSA payments are made

B1101 Period of JSA payments « B1102

Unless the DM arranges otherwise and subject to B1102 to B1105, JSA is paid
fortnightly in arrears (1).
Note: Operational guidance on the circumstances when a claimant may be paid JSA
other than fortnightly in arrears is available.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(1)

B1102 Payments of JSA at other times « B1101

The DM may make a payment of JSA by DCT and other than as in B1101, if it
appears appropriate to do so for the purpose of
1. paying any arrears of benefit or
2. making a payment in respect of a terminal period of an award or
3. for any similar purpose (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(2)

B1103 Payments of JSA less than £1.00 a week

Where the amount of JSA is less than £1.00 a week, the DM may direct that it is to
be paid at intervals not exceeding 13 weeks (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(3)

B1104 Payments of JSA less than 10 pence a week

Where the weekly entitlement of JSA is less than 10 pence a week, that allowance is
not payable (1).
1 JSA Regs 13, reg 52

B1105 Payments of JSA affected by office closure « B1101 « B1106 « B1107

Where JSA is normally paid in arrears and payment would be affected by office
closure, the DM may decide to make the payment, for that benefit week, on any day either
1. wholly in advance or
2. partly in advance and partly in arrears (1)
in which case, it will for any other purposes, be treated as if it were paid in arrears (2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(4); 2 reg 52(5)

B1106 Definition of "benefit week"

For the purpose of B1105, benefit week means (1) a period of 7 days ending with a day
which is determined by the last 2 digits of the claimant's NINO as shown in the
following table (2).
NINO - last 2 digits
JSA pay day
00 to 19
Monday
20 to 39
Tuesday
40 to 59
Wednesday
60 to 79
Thursday
80 to 99
Friday
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(6); 2 JSA Regs 13, reg 2(2)

Example

Julie's NINO is NM (23)1142A. Her JSA pay day is Wednesday.

B1107 Definition of "office closure" « B1108

For the purposes of B1105, office closure means a period during which an
appropriate office is closed in connection with a public holiday (1).
Note: ADM Chapter A2 contains further guidance on the meaning of appropriate
office.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(7)

B1108 Definition of "public holiday"

For the purposes of B1107, public holiday means (1)
1. in England and Wales
1.1
Christmas Day or
1.2
Good Friday or
1.3
a Bank Holiday under specified legislation (2) or
2. in
Scotland
2.1
a Bank Holiday under specified legislation (3) or
2.2
a local holiday.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 52(8); 2 Banking & Financial Dealings Act 1971 s 1 & Sch 1;
3 Banking & Financial Dealings Act 1971 s 1 & Sch 1

[B1109-B1120]

B1121 Fractional amounts of UC, PIP, JSA and ESA

Where, at the end of a calculation, an amount of UC, PIP, JSA or ESA which is
payable includes a fraction of a penny, that fraction is to be disregarded if it is less
than half a penny. If it is half a penny or more it is treated as a penny (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 53

B1122 Payments of UC, PIP, JSA and ESA to claimants under age 18

Where UC, PIP, JSA or ESA is paid by DCT or by some other means, to a claimant
under the age of 18, this is sufficient to discharge the DM's liability to make
payment (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 54

[B1123-B1130]

Failure to obtain payment within 12 months

B1131 General « B1151 « B1152

Subject to B1134, a claimant's right to a payment of benefit ends if they do not
obtain payment within 12 months of the date that right to payment arose (1). This rule
also applies to a person (2) :
1.appointed under specified legislation (3) (see Part 5 of the Agents, Appointees,
Attorneys and Deputies Guide) or :
2.referred to in specified legislation (4) (eg. persons appointed to act under mental
capacity law - see Parts 2, 3 and 4 of the Agents, Appointees, Attorneys and
Deputies Guide).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 55(1); 2 reg 55(5); 3 reg 57(1); 4 reg 57(2)

B1132 Right to payment - start of the 12 month period « B1133

A right to payment will arise where
1. a sum has been calculated (1) and :
2.notice is given or sent that the sum is ready for collection, on the date of that
notice or, if more than one notice date is given or sent, the date of the first
such notice (see also B1133) and :
3.the DM has arranged for the sum to be paid by DCT on the due date for
payment, or in the case of UC, the date of payment or
4. if neither
2. or 3. applies, on such date as the DM determines (2).

1 R(U) 1/02; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 55(2)

B1133 « B1132

Giving or sending a notice as in B1132 2. is effective even where the sum contained
in the notice is more or less than the sum which the person has the right to receive (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 55(3)

B1134 Right to payment - extension of the 12 month period « B1131 « B1151 « B1152

Where a question arises as to whether the right to payment of any benefit has been
extinguished and the DM is satisfied that :
1.he first received written notice requesting payment of that sum after the
expiration of 12 months from the date on which the right is to be treated as
having arisen and :
2.from a day within that period of 12 months and continuing until the day the
written notice was given, there was good cause for not giving the notice and :
3.no payment has been made by DCT
the period of 12 months is to be extended to the date on which the DM decides that
question (1). This means that a new 12 month period starts on that date.
Note: DMG Chapter 02 contains further guidance on good cause.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 55(4)

[B1135-B1150]

B1151 Payment after claimant's death « B1152 « B1152 « B1153 « B1154 « B1154 « B1156 « B1157

Subject to B1155 and B1156, where a person dies after making a claim for benefit,
the DM may pay or distribute any benefit payable (subject to B1131 to B1134) to or
amongst persons over the age of 16, appointed by the DM, who are
1. personal representatives or
2. legatees
or :
3.next of kin or
4. creditors
of the deceased (1).
Note: ADM Chapter A2 contains further guidance on the appointment of persons to
act in the event of a claimant's death.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(2)

B1152 « B1154 « B1154

Where
1. a deceased person had not obtained payment at the date of death and :
2.right to payment was not extinguished
any sum payable may be paid or distributed as in B1151. Where the rules as in B1131to B1134 apply, the period of 12 months is calculated from the date on which
right to payment of any sum is treated as having arisen in relation to any person
described in B1151 (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(3)

B1153

Payment made by DCT or by some other means, to any person mentioned in B1151
is sufficient to discharge the DM's liability to make payment (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(4)

B1154

Where the DM is satisfied that benefit payable in accordance with B1151 or B1152,
or any part of it, is needed for the well-being of a person under the age of 16, the DM
can pay that sum, or part of it, to a person over the age of 16, provided he is
satisfied that that person will use it for the well-being of the person who is under the
age of 161.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(5)

[B1155]

B1151and B1152 do not apply unless written application for payment of any sum is
made to the DM within 12 months from the date of the deceased's death or within
such longer period as the DM may allow in a particular case (1).

1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(6)

B1156 « B1151

The DM does not require strict proof of title of any person listed in B1151 (1).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(7)

B1157 Definition of "next of kin"

For the purposes of B1151, next of kin means (1) :
1.in England and Wales
1.1 the persons who would take beneficially on an intestacy and
2. in
Scotland
2.1 the persons entitled to the moveable estate of the deceased on
intestacy.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 56(8)

[B1158-B1170]

Person unable to act
Person acting on claimant's behalf

B1171

Where a person has been appointed to act on the claimant's behalf and a payment
is made by DCT to that person, this is sufficient to discharge the DM's liability to
make payment (1).
Note: ADM Chapter A2 and the Agents, Appointees, Attorneys and Deputies Guide
contain further guidance on persons appointed to act on a claimant's behalf.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 57(7)
Payment to another person on the claimant's behalf

B1172 UC

The DM may direct that UC be paid either wholly or in part, to another person on the
claimant's behalf, if it is considered necessary to protect the interests of (1)
1. the claimant or
2. their partner
or
3. a
child (2) or qualifying young person (3) for whom the claimant or their partner or
both are responsible for or :
4.a severely disabled person, where the claimant's UC award includes, by virtue
of specified legislation (4), an amount in respect of the fact that the claimant has
regular and substantial caring responsibilities for that severely disabled
person.
Note 1: ADM Chapter F1 contains further guidance on being responsible for a child
or qualifying young person.
Note 2: ADM Chapter F6 contains further guidance on the meaning of a severely
disabled person and regular and substantial caring responsibilities.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 58(1); 2 WR Act 12, s 40; 3 UC Regs, reg 5; 4 UC Regs, reg 29

B1173 PIP « B1004

PIP may be paid wholly to another person on the claimant's behalf if it appears
necessary to protect the claimant's interests (1).
Note: Operational guidance on when this may apply is available.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 58(2)

[B1174-B1999]

Chapter B2: Restrictions on payment of benefit - benefit offences

Contents (Part 1)

B2001:

Scope and layout of Chapter

B2002:

Introduction to Part 1

B2003:

Disqualifying and sanctionable benefits

B2004:

Disqualifying benefits which are not sanctionable benefits

B2005:

Neither disqualifying nor sanctionable benefits

Conditions for restrictions on payment

B2011:

First benefit offence

B2012:

Meaning of administrative penalty (pre 8.5.12)

B2013:

Meaning of benefit offence

B2015:

Meaning of date of conviction

B2017:

Meaning of disqualifying event

B2018:

B2019:

Meaning of offender

B2020:

Start date of disqualification period ("DQ-day")

B2024:

Meaning of determination day

Second or subsequent benefit offences

B2042:

Start date of disqualification period ("DQ-day")

B2043:

Effect of restrictions on the payment of sanctionable benefit

Sanctionable benefits other than IS, JSA, SPC, ESA and UC

B2065:

Amount payable - IS and ESA(IR)

B2067:

Amount payable - SPC

B2069:

Meaning of relevant sum

B2071:

Rounding

B2072:

Meaning of benefit week

B2073:

Changes in rate of benefit payable - IS, ESA(IR) and SPC

B2074:

Amount payable - JSA

B2075:

Amount payable - joint-claim JSA - single offender

B2076:

Amount payable - joint-claim JSA - both offenders

B2077:

Amount payable - UC

B2078:

Calculating the reduction

B2079:

Daily reduction rate

B2083:

Changes in the rate of benefit payable - UC

Meaning of standard allowance

B2101:

Court decision quashed

B2102:

Right of appeal

B2103:

Changes following administrative agreement

Chapter B2: Restrictions on payment of benefit - benefit offences

Contents (Part 2)

B2201:

Introduction to Part 2

B2202:

Disqualifying and sanctionable benefits

B2203:

Disqualifying benefits which are not sanctionable benefits

B2204:

Neither disqualifying nor sanctionable benefits

Conditions for restrictions on payment

B2221:

First benefit offence

B2222:

Meaning of administrative penalty (post 8.5.12)

B2223:

Meaning of benefit offence

B2225:

Meaning of date of conviction

B2227:

Meaning of disqualifying event

B2228:

B2229:

Meaning of relevant period

B2230:

Meaning of relevant offence

B2231:

Prescribed offences which are relevant offences

B2233:

Meaning of offender

B2234:

Start date of disqualification period ("DQ-day")

B2241:

Meaning of determination day

Repeated benefit offences

B2263: