How to expedite a social security appeal

02 August 2013
Issue 235 (August 2013)

Tom Royston from Garden Court North Chambers provides some ideas on how to cope with delays in getting appeals listed before a Tribunal.

What do you do when some outrageous social security decision is made refusing your client entitlement to a means tested benefit, you send off an appeal and then… nothing! The decision maker does not revise the decision, but neither does s/he send it off to the Tribunal.

Her Majesties Revenue and Customs (HMRC) are particular offenders. Tax credits can consititute the majority of a family’s income, yet all advice workers will have seen examples of appeals which take months or even years to be forwarded to the First-tier Tribunal. The Department for Work and Pensions (DWP) and local authorities are also regularly guilty of delay.

 Long delay is frustrating, and of questionable legality. The First-tier Tribunal (Social Entitlement Chamber) Rules of Procedure 2008 provide:

Rule 24 – Responses and replies

(1) When a decision maker receives the notice of appeal or a copy of it, the decision maker must send or deliver a response to the Tribunal

         (b)…as soon as reasonably practicable after the decision maker received the notice of appeal.

Advisers who have tried without success to persuade the decision maker to forward the appeal to the Tribunal sometimes ask whether the decision maker’s failure to act can be judicially reviewed. Although it is worth considering, especially in very urgent cases, the short answer is ‘probably not’. This is because judicial review is a ‘last resort’ solution. And there is, in many of these cases, a practical alternative.

That alternative is likely to be to ask the Tribunal to exercise its case management powers under the Rules by directing the decision maker to provide a submission within a set time:

Rule 5 – Case management powers

(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time…

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

(a) extend or shorten the time for complying with any rule practice direction or direction;

(d) permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party;

It is unusual for the Tribunal to be asked to issue such directions before it has administratively been notified by a government department of the existence of an appeal. But it undoubtedly has the power to do so: see FH v Manchester City Council (HB) [2010] UKUT 43 (AAC) and Social Security Decision R(H) 1/07. Note especially paragraph 15 of FH: a Respondent’s delay of 9 months in a housing benefit appeal was described as ‘plainly far too long’, and the Upper Tribunal did not object to a First-tier Tribunal direction that a response be produced within two weeks.

Because a request to issue directions in respect of an unnotified appeal is unusual, some Tribunal offices may not deal with it efficiently. It is therefore sensible to chase up any request, and also to make it clear to the administrative staff what action they need to take, eg ‘please put it in front of the duty judge urgently...’

If the Tribunal issues a direction requiring the respondent to produce a submission and bundle, and that direction is not complied with, you can then seek a further direction debarring the respondent from further participation in the appeal and summarily determining the appeal in the appellant’s favour. Alternatively, you can ask the Tribunal to ‘roll up’ those stages together.

If the Tribunal fails to respond, or issues a decision refusing to make a direction, or makes an unwelcome direction, it may become appropriate to consider judicial review or further appeal (probably of the Tribunal, not the decision maker). If you find yourself in that position, seek specialist advice immediately.

So, in a case where you want an appeal determined quickly:

a. request on the appeal form that the claim is dealt with urgently. Specify whatever time limit you think reasonable in the circumstances for the appeal to be sent to the Tribunal, and explain why that level of urgency is appropriate;

b. if the appeal is not forwarded within that time to the Tribunal, write to the respondent to:

i. repeat the request for urgency; and

ii. state that if the respondent does not comply with Rule 24 within a further specified time, an application will be made to the Tribunal for a direction compelling the respondent to comply; then

c. if that does not produce an adequate response, write to the Tribunal asking it to direct the respondent to take action.

Key factors (in addition to the length of the delay) which may persuade a judge to issue directions include:

a. the appellant being on a reduced income pending the appeal;

b. the delay causing consequential problems – for example a risk of homelessness;

c. the interests of children or other vulnerable people being adversely affected;

d. the stress of waiting having a demonstrably adverse effect on the appellant’s health;

e. an absence of explanation for the delay; and

f. apparently strong grounds of appeal.

A model letter which can be sent to the Tribunal is available to download on the right. Delete any part of it which does not apply in your case, insert details where suggested in bold, and feel free to add any extra representations which seem appropriate.

The model letter does not specify time scales, because what is reasonable will depend upon the facts of an individual’s case. If an appeal relates to a historic overpayment which is not presently being recovered, and the fair determination of the case will not rely on the memory of a witness, a delay of some months may well be acceptable because delay causes little prejudice to the appellant. If, however, an appeal is against a decision depriving a person of all or most of his subsistence income, or the appellant suffers from a mental health problem which makes the delay particularly bad for his health, a much quicker hearing may be needed.

A modified version of the letter can of course be used to request expedition where the appeal has in fact been forwarded to the Tribunal, and the delay is caused by the Tribunal’s listings section.

Finally, it is important to stress that the power to expedite appeals should be called upon only where genuinely required. Judges will expect advisers to be able to distinguish between cases where expedition is merely convenient, and where it is necessary to do justice to a particular appellant.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.