Benefit appeals held remotely during COVID

Update: As COVID restrictions have ended, most tribunals are back to in-person hearings. But some may still be held remotely by video call or phone. See info here: https://www.advicenow.org.uk/know-hows/court-and-tribunal-hearings-video-or-phone-call

PREVIOUS INFO

Since COVID, people are not going to benefit tribunals in person. Instead these are being held by phone or video remotely.

Or, in some situations, your case can be decided without a hearing, for example, where it is urgent, in the interests of justice to decide your case quickly, or when they say it is not practical to hold a hearing. The benefit tribunal judges have been given powers to prioritise and deal with cases as they see fit. They are independent of the Department for Work and Pensions.

You can send in your appeal online if it’s for Employment and Support Allowance, Universal Credit or Personal Independence Payments (PIP). The website to lodge your appeal online is here

Some people do better being seen by the appeal panel in person because of being unable to put their case across well in writing. They are put at a disadvantage by the new arrangements. Under COVID, it’s even more important to put in evidence on paper and get welfare rights advice and support for your appeal. Remember that you know your own situation best. If possible, check what is being put forward by your representative and ask questions if you don’t understand something.

Places to get advice and representation include:

• Zacchaeus 2000 (London)
• Citizens Advice Bureau (UK) — find your local branch. They also have online advice pages about benefit appeals.
• Your local claimant action group

Also, people are having problems getting medical evidence from GPs and others during the pandemic for appeals. Try to persuade them to provide evidence by explaining that it is for your welfare as a patient, as without the benefit you need, your health could get worse and stress is affecting your health.

People are using printouts of their medical records which have a lot of detail. Remember that you are not obliged to disclose personal matters which are not relevant to your need for benefits. For example, you can cross out intimate information on your records about sexual health, or gynaecological information.

Appeals for other benefits such as Child Benefit or tax credits are dealt with by post. For those, you can ask for arrangements which are easier to manage, such as email. But you have to contact the clerk of the tribunal and get their agreement for any changes to the way they do things.

We are sharing welfare rights information about the changes to appeal by the Child Poverty Action Group — thanks to Martin Williams at CPAG. His briefing sets out:

•Making an appeal during COVID-19 restrictions

•Changes to how appeals are dealt with by the First-tier Tribunal during the COVID-19 restrictions

•Tips and tactics for dealing with your appeal in the First-tier Tribunal because of those changes

MAKING AN appeal DURING COVID-19 RESTRICTIONS

For some benefits, it is possible to make an appeal online. However, other benefits require printing out a form (SSCS1), filling it in and sending it to the tribunal. That may cause difficulties if, for example, you are not able to get out because you are ‘shielding’ or ‘self-isolating’. Similarly, it might be difficult if your adviser is filling in the appeal for you, and the adviser is working from home and can only contact you remotely.

The following sections present information that may help you to make an appeal despite these difficulties. They cover:

•cases where you can appeal online

•cases that usually you must appeal by post or fax to HMCTS

•housing benefit appeals

This briefing does not explain in detail the rules about time limits for appeals; in general, your appeal should be received within one month of the date on which you were sent notification of the decision (30 days for tax credits). This one month can be extended by a further 12 months if it is fair and just to do so. For all benefits and tax credits except housing benefit, you must generally have received a decision on an application for a ‘mandatory reconsideration’ before you can appeal. Further detailed information about appealing decisions made by the Department for Work and Pensions (DWP) on their website.

CASES WHERE YOU CAN appeal ONLINE

You, or your adviser if you agree, can make an appeal online if the decision that you are appealing against concerns:

•universal credit

•employment and support allowance

•personal independence payment

The advantage of filing an appeal online is that you will then be emailed when things happen in the case (for example, a hearing date is fixed).

CASES WHERE YOU USUALLY MUST appeal BY POST OR FAX TO HMCTS

If you are appealing against another DWP-administered benefit, child benefit or tax credits (ie, any benefit or tax credit except housing benefit), then the normal procedure is that you need to complete:

•for tax credits or child benefit: form SSCS5

•for any other DWP-administered benefit: form SSCS1

The completed form and a copy of the mandatory reconsideration notice should be posted to HMCTS at the address on the last page of the form.

If it is difficult due to COVID-19 restrictions, however, for you to post the appeal within the time limit, then the rules do not explicitly say that you cannot email the appeal to HMCTS. In addition, there is no requirement in the rules that you make your appeal using the SSCS1 form. Using the form, however, ensures that the clerk to the tribunal correctly identifies the document as an appeal and provided you fill it in correctly, that you will give all the required information to get the appeal started.

If you cannot get a printed SSCS1, then all the rules require in terms of the content of the appeal for it to be properly made is that it has the:

•name and address of the appellant;

•the name and address of the appellant’s representative;

•an address to which documents about the appeal can be sent;

•the name and address of the respondent (ie, typically the DWP office);

•the reason you disagree with the decision; and is

•signed by the appellant.

Additionally, you are supposed to attach a copy of the mandatory reconsideration notice to the appeal to show that you have made an application for mandatory reconsideration (a revision) and it has been refused.

Getting the appeal signed and a copy of the mandatory reconsideration notice to send with the appeal are likely to be difficult. One option to consider if, for example, you need to get these documents to your representative so they can file the appeal is to take a photograph of the mandatory reconsideration notice and your signature using a smartphone and email those to your representative.

If you cannot get the appeal signed or you are unable to attach the mandatory reconsideration notice (for example, because you cannot get a copy to your representative and they are making the appeal on your behalf), then it is still worth sending in a document or email (see below) that contains all the above information.

That document or email should also contain an explanation of why the appeal cannot be signed and/or why the mandatory reconsideration notice cannot be attached along with a request that this failure to follow the rules is waived under rule 7(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules because of the difficulties you have in complying with the rules due to the COVID-19 restrictions.

It is possible that if you do that, a tribunal caseworker will write to you asking you to correct the failure to follow the rules within 14 days. If you are unable to comply with such a request, you should write back asking that request to be reversed by a tribunal judge using the procedure in rule 4(3).

The appeal usually needs to be posted or faxed to an address in Bradford; it is advisable to do so, if you can without putting yourself in a situation where there is a risk to your health. However, if you cannot manage to post or fax the appeal due to the COVID-19 restrictions, then note:

1There are free internet services that allow you to send a fax from your computer over the internet.

2If that is not possible, then you can try to email to HMCTS the notice of appeal, which as discussed above could be a letter with the required information; most representatives are used to emailing documents to the local HMCTS (although not to emailing appeals). In the email you can explain the difficulties of sending the appeal by post or fax. All new appeals for claimants living in England or Wales are initially processed at Bradford Direct Lodgement Centre. The email address there is bradforddlcqueries@justice.gov.uk. In Scotland, the equivalent email address is sscsa-glasgow@justice.gov.uk.

If you do take any of these steps and your appeal is not accepted as a valid appeal, then firstly, if you can later get the documents you can try to make the appeal again. Additionally, it is possible to challenge a decision refusing to admit your appeal by seeking permission to appeal to the Upper Tribunal. Your adviser can contact CPAG’s Upper Tribunal Assistance Project about doing that. Note the time limit for asking for permission to appeal is usually one month from the date on the correspondence from the tribunal telling you that your appeal will not be admitted because it is not properly made. If your appeal is struck out for not being properly made, then you may not need (or be able) to get a statement of the reasons for the decision to strike out your appeal before you are able to apply for permission to appeal.

HOUSING BENEFIT APPEALS

Housing benefit appeals should be sent to the local authority. Again, these are supposed to be signed. If that is difficult in practice, then you could try sending a picture of the signature. If you do that, then it is important to explain in the email the difficulties you have in posting the appeal due to coronavirus and ask the local authority to accept the appeal as validly made in the circumstances.

CHANGES TO HOW APPEALS ARE DEALT WITH BY THE FIRST-TIER TRIBUNAL

From 10 April 2020, the rules for First-tier Tribunals dealing with benefit appeals have been changed to allow appeals to be decided without a hearing in some cases. Generally, the rules make it clear that the tribunal must hold a hearing to decide the appeal unless both sides (you and the decision maker) agree that the case can go ahead without a hearing and additionally the tribunal is satisfied that the case can be decided fairly without a hearing (rule 27). However, the new rule allows a tribunal to go ahead without a hearing, even where one of the parties objects, providing:

•the matter is urgent;

•it is not reasonably practicable for there to be a hearing (including via video or telephone); and

•it is in the interests of justice to decide the case.

Additionally, because of the COVID-19 restrictions the senior president of tribunals has issued a practice direction that allows the president of the Social Entitlement Chamber (the judge in charge of the chamber of the First-tier Tribunal that deals with benefit appeals) to issue further instructions on dealing with appeals differently during the COVID-19 restrictions. That includes procedures for full time judges to sift appeals and deal with them in a different way to usual.

The senior president has also issued a practice direction that supplements the usual rules about the ‘composition’ of a tribunal. The composition of a tribunal refers to which people should be part of the tribunal that decides the case; for example, a case about personal independence payment is heard typically by a tribunal consisting of a judge, a doctor and a person with experience of disability.

The chamber president has separately issued a guidance note explaining how those two practice directions will take effect in relation to benefit and tax credit appeals:
Chamber President’s Guidance Note No.3. (SSCS) Contingency Arrangements and Composition of Tribunals on or after 24th March 2020 pursuant to the Pilot Practice Directions dated 19th March 2020.

The way in which appeals are now being dealt with as a result of these new procedures is as follows:

•A full time judge looks through all appeals.

•If both you and the benefit agency against whose decision you have appealed has agreed the case can be decided without a hearing, then the judge will either decide the case on the papers alone or put the case to be decided by a panel including other members such as medical members and disability members.

•If either you or the benefits agency has said that you do want a hearing, then the judge will:

•Firstly, decide whether it is highly likely that you will win your appeal or at least partially win your appeal. If the judge decides that is the case and thinks the case can be decided fairly without a hearing, then the judge can either:

•decide the case himself or herself (even if the case would usually have to be dealt with by a panel including a medical member) and issue a ‘provisional decision’ to the parties; or

•direct that the case should be listed for paper determination before a panel of two or three members, making directions about the composition of the tribunal if needed.

•If the judge considers that you would not win your appeal if it was to be dealt with on the papers, then the judge should:

•Arrange for your appeal to be dealt with via a telephone hearing before a judge alone or a panel of two or three, including a medical member and possibly a disability member. Telephone hearings can be done via a conference call so that you, your representative, the tribunal and any representative from the benefit agency that made the decision are all on the line.

•Make directions for further evidence. When this new evidence is received, the judge can then reconsider whether your appeal could now be allowed on the papers as above. (Obtaining evidence such as GP records, however, is probably not an option during this crisis.)

•If the tribunal sends you a provisional decision, then you should consider whether or not to accept it. If you accept a provisional decision, you are then sent a final decision that will usually be in the same terms. If you, or the benefit agency whose decision you have appealed against, do not accept a provisional decision, or if the judge has, for some reason, decided the proposed provisional decision was mistaken, then you will either be sent a revised provisional decision or offered a telephone hearing.

TIPS AND TACTICS FOR DEALING WITH YOUR appeal IN THE FIRST-TIER TRIBUNAL BECAUSE OF THOSE CHANGES

PREPARE CASE ON PAPERS

The changes to how appeals are dealt with by the First-tier Tribunal make it important that your case is presented as clearly as possible to the tribunal, with as much supportive evidence as possible, as early in the case as possible and, if at all possible, within a month after getting the appeal papers.

CONSIDER PROVISIONAL DECISIONS CAREFULLY

Additionally, careful consideration must now be given to whether or not you should accept a provisional decision. It is possible that if you do not accept a provisional decision and there is a subsequent hearing, you could end up with less than was in the provisional decision.

DELAYS AND GETTING CASES EXPEDITED

Finally, it is likely that the ability of the benefit agencies to deal promptly with the tribunal will suffer during the COVID-19 restrictions.
If your case is urgent – for example, if unless you win the appeal then you do not have universal credit and your family’s only other income is child benefit – then it is important that you email the tribunal to ask for your appeal to be expedited. In the email, explain the difficulties you are having because of lack of income during the COVID-19 crisis. Your adviser should be able to help.

OBTAIN PAPERS AND NOTICES ELECTRONICALLY

Many advice agencies who represent people during benefit or tax credit appeals now have all their workers working from home. It may be difficult for advisers to access post sent to their usual offices, making it hard to get hold of appeal papers posted by the DWP. In such cases, advisers should email HMCTS, giving your appeal reference and explaining the situation. They should ask for the papers to be sent to them electronically. If HMCTS refuse, advisers could write formally asking for a direction under rule 6 that the papers are sent to them electronically, and the tribunal will have to decide whether that is appropriate.

KEEPING HMCTS INFORMED ABOUT CONTACT DETAILS

If your adviser has moved out of the office and can no longer receive post or take telephone calls on the numbers originally provided to HMCTS, your adviser should email HMCTS and provide new contact details to ensure she or he is informed about any hearings, etc.