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Chapter A5: Appeals - PIP and UC only

Contents
A5001:Introduction
A5010:Changes and further claims during the period before a hearing
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A5220:Reinstatement of withdrawn appeal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
A5230:The appellant
A5235:The respondent
A5240:Reinstatement of appeal
A5270:Hearings
A5286:Evidence
A5287:Non disclosure of documents and information
A5294:Extracts from documents
A5304:Copyright
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
A5339:Personal details
A5340:The decision
A5342:Summary of facts
A5345:Law and case law
A5346:Use of unreported Upper Tribunal decisions

Northern Ireland Commissioners' decisions and Court of
A5348:Appeal judgments
A5350:Relevant evidence
A5360: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
A5395:Right to be heard
A5405:Use of experts
A5406: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..........................................................................................
A5429:Before the hearing
A5430:At the hearing
A5431: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
A5500:Decision notice
A5503:Statement of reasons
A5504:Late application for statement of reasons
A5508:Record of proceedings
Consideration of the First-tier Tribunal decision
A5515:Decision incomplete
A5516:Case remitted to DM
A5518:Liberty to apply
A5520: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
A5702:Leave to appeal
A5706:Time limits
A5707: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

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.
Note:
Once the DM actually makes that revised decision then the appeal must lapse
so it is important that the DM considers whether revision is the appropriate course of
action to take.

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.