Maggie's

When decisions go wrong (II)

Greetings again from west Wales on one of those days when the weather can't decide what it wants to do. One minute the sun threatens to brighten, the next a splattering of raindrops clatters against the window like a handful of gravel thrown to gain attention.

Last week I wrote about challenging and changing wrongful decisions soon after they are made, using 'revisions' to get the DWP to look and think again.

My focus this week - assuming I can draw it from the restless day - is going to be on what happens when the DWP makes wrong decisions it is determined to stick to - digs its heels in and refuses to admit that it has erred. In this situation - when phone calls and letters and any new evidence have failed - Appeal becomes the only option.

 

What is an Appeal?

An Appeal is a consideration of your entitlement to benefit, usually by an organisation separate from and independent of the one that made the original decision.

There is an exceptions though - Social Fund decisions don't actually carry the right of appeal, so disputes about e.g. Crisis Loans, Budgetting Loans or Community Care Grants are, instead, handled by post by the Independent Review Service.

The majority of Appeals end up in a face-to-face meeting with a Tribunal, where you - or someone representing you - can put your side of things in person and you can be asked questions.

A Tribunal - in spite of its name - need only have up to three members - and for some benefits it could be as few as one. One of them (the 'Judge') is qualified in law in some way. Don't be intimidated by the use of the term Judge though - it isn't a criminal court and up until a few years ago exactly the same people were simply known as 'Chairs'. Some were comfy and some were not...

Additional members of a tribunal could be a doctor and/ or a lay person with some sort of knowledge of illness or disability. The 'votes' of the Tribunal members carry equal weight, so for example, if there are three members it's possible for any two of them to reach a 'majority decision' without the third agreeing.   

An alternative to a face-to-face meeting (an 'oral hearing') is a 'paper hearing' - where the same tribunal members simply look at the paperwork pertaining to the decision and reach their conclusion from it. Although this might sound an attractive prospect - especially if your state of health means that attending a hearing in person is going to be an ordeal - the statistics show that you have a far better chance of winning your Appeal if you do attend. In fact statistically, your best chance is if both you and a representative can attend.

If your health is such that you simply can't manage to get to an Appeal, you still have a right to be heard in person and can ask the Tribunal to come to your home. You would, though, need some sort of medical evidence to back up this request.

 

Making an Appeal  

Appeal requests, unlike ones for Revisions, have to be in writing. A letter signed by you, explaining the problem and giving your National Insurance number, the name of the benefit concerned and the date of the decision you want to Appeal is, technically, enough, although they're more accustomed to dealing with requests on an official 'Appeal Form' - a GL24. This can be found tucked inside a leaflet called 'If you Think our Decision is Wrong' which you can read online here :  

These leaflets/ appeal forms can be requested by telephone from the office that issued the decision, but are also available from many advice agencies/ Jobcentres etc.

You have one month from the date of the letter giving you the decision you disagree with to lodge your Appeal - i.e. to get something in writing back to the office that made the decision. The DWP definition of one month is the same date in the next month - i.e. a decision dated the 19th July must be Appealed by the 19th August - a little hard on those wrongly adjudicated against in February who end up having two or three days less in which to act than people similarly aggrieved in January or March!

Seeking advice as to how to word your Appeal is always a good idea, for technically, once it comes before a Tribunal, they are only obliged to address any points you have already raised, even if they spot a further error that you have missed.

Be as detailed as you can about what it is you disagree with. If, for example, you have been awarded the Higher Rate of DLA Mobility but only the Lower Rate of DLA Care, you may want to explain that you are satisfied that the rate of the Mobility Component is the correct one and so only want them to look at the Care part of the award again.

Doing this, though, is no guarantee that your award of Mobility won't be considered again at the Tribunal if something happens to make them believe it might not be correct.

It's not enough either just to say that you think the decision is wrong - you need to add something to explain why - e.g.

'When considering my eligibility for Employment and Support Allowance I feel that the doctor missed relevant points concerning my ability to lift, bend and remain standing for prolonged periods...' or      

'In refusing my claim for Attendance Allowance I don't feel that the decision maker has properly weighed up the evidence before them, preferring the ATOS doctor's report over those of my GP and my Cancer Nurse Specialist even though they have much more contact with me and a far better awareness of my day-to-day difficulties' .

It'll probably help you to frame your arguments by asking the office who made the decision to send you full written reasons for their decision, along with copies of any information used in their decision making - you have a right to see these.

If you miss the one month time limit for Appealing all is not lost - get in touch with them and explain why you were unable to ask earlier - although there is a more absolute time limit of 13 months. Above all, get advice!

 

What happens next?

For most benefits, once your Appeal has been lodged, the office involved will send copies of all the relevant paperwork on to the Appeals Service. They then take over, sending you a copy of all the papers along with an 'enquiry form' to fill in asking you if you want to proceed with the Appeal.

This has to be returned within 14 days and asks you questions about whether you want an oral hearing or a paper hearing, whether you have a representative etc.

Once the enquiry form is received back by the Appeals Service, eventually - and I mean eventually, as you're facing a wait of at least some months - your Appeal will be listed for hearing. You - and your representative if you have one - should be given 14 days' notice of the date and time, but if you've arranged a representative it's always a good idea to contact them directly at this stage just in case the notification hasn't gone out to them.

The months you spend waiting though can be a good time to gather any supporting evidence or even to try putting your side of things in writing. Some advice agencies will also offer to prepare a 'written submission' for you, even if they are unable to represent you on the day.

Remember, when doing this, that what the Tribunal will be looking at is how you - or things - were at the time of the decision, not how you are now - and try to make this clear when asking anyone to write letters on your behalf.

If you do end up with supporting evidence and/ or a written version of what you'd like to say beforehand, try to get it to the Appeals Service as early as you can so that it can be circulated to all those involved. Similarly, if anything new is added by the office that made the decision, then this should be circulated to you. If you only manage to get a letter at the very last minute though, you can still ask the Tribunal to consider it on the day - making four of five copies in these circumstances can help them decide to say yes!

 

The Appeal Hearing

You'll be given a time at which it is hoped your Appeal will be heard - although be warned that things can run late. Most hearings take between 45 minutes and an hour, although yours might be much shorter or a bit longer.

Different Judges have different ways of running their Appeals, so it's impossible to predict exactly how yours will be - almost invariably though they will want to ask you questions to try to help them reach a decision. These questions may relate to information given on your claim form, information from anyone else, or they might, for example, decide to ask you questions about your daily life - e.g. about how you got to the Tribunal today.

Be aware that if they do this, they're not just making polite conversation - they will be reaching conclusions regarding your walking ability or your need to have someone with you in unfamiliar places... Make sure you tell them then if you had to stop to rest, or, for example, that you've taken extra pain relief to get you through... 

Who else will be there? Well, there'll be the Clerk to the Tribunal who's there to make sure things flow smoothly/ deal with the refunding of travel costs/ answer your questions etc. and the office which made the decision under dispute also has the right to send a representative, although often they don't. They can be quite a mixed bag - sometimes pleasant and non confrontational and sometimes the opposite - which is part of the reason it can really help to take company even if you can't get a representative.

Sometimes Tribunals themselves can feel inquisitorial to the point of the third degree, the style of the Judge having a big influence on this. Try to keep calm and answer their questions as completely as you can - but don't be afraid to ask for a short break if you're starting to feel a bit overwhelmed by it all. On the whole though, they're usually reasonable people simply wanting justice to be done.

What usually happens is that you'll be asked to leave the room whilst they make their decision and then be invited back in to both be told the outcome verbally and given it in a short, written notice. Sometimes though they don't make an immediate decision and you'll have to wait to hear by post. They can also adjourn hearings (e.g. for a medical report) if they don't feel they have sufficient evidence to make a decision.

 

What next?

Well, if the Tribunal has found in your favour, that's almost always all there is to it - it's extremely rare for the original decision making body to challenge Appeal outcomes unless they think the tribunal went very wrong.

If, however, the Tribunal haven't reached the decision you wanted, then it is sometimes possible to either get their deliberations 'set aside' or looked at again by a second, higher tier of adjudication - but only on quite limited, legalistic grounds. If you find yourself in this position then, do get advice.

In fact try to get advice wherever you are in the Appeals process - although it's not impossible to negotiate it alone, it can be a long and at times lonely road to travel and finding someone who can walk with you can make a big difference.

If you have a local Maggie's Centre go and talk to the benefits adviser there - if not then seek out a CAB, a Welfare Rights Unit, a Law Centre or other reputable source of independent advice. And if they don't offer representation, ask them who might...

If, incidentally, you're both turned down at tribunal and can't challenge their decision, don't feel that the door is forever closed. As mentioned above, the tribunal looks at how you were at the time the original decision was made and many people re-apply and get either DLA or ESA even before their Appeal is heard.

With ESA there is a six months time limit after being found fit for work unless your health has deteriorated or you have a new diagnosis, but with DLA there is none... Again, get advice if you can - and good luck.