A separate Constituency Casework article, Challenging benefits decisions, provides information on the various ways a person can challenge decisions in relation to social security benefits and tax credits. This includes asking for the decision to be revised or superseded, and appealing to an independent First-Tier Tribunal. This page sets out what a person can do if they have appealed to the First-Tier Tribunal and are unhappy with the decision.
Anybody thinking about challenging the decision of a First-Tier Tribunal should seek professional legal advice. A Citizens Advice Bureau or other local welfare rights advice service may be the best first port of call.
Appealing to the Upper Tribunal
Where a person is unhappy with a decision of the First-Tier Tribunal they can appeal to the Upper Tribunal, but this can only be done on the grounds that that the Tribunal made an ‘error of law’. Errors of law could include:
- The First-Tier Tribunal applied the law incorrectly.
- The Tribunal did not follow proper procedure.
- The Tribunal did not make adequate findings of fact or give adequate reasons for its decision.
- The Tribunal took irrelevant matters into account when making its decision.
These are only examples, however. A First-Tier Tribunal’s decision could be wrong in law for a variety of reasons.
Applying for permission to appeal
A person wishing to appeal to the Upper Tribunal must first apply for permission to do so, in the first instance to the First-Tier Tribunal. This must generally be done within one month of the date they were sent the Tribunal’s decision notice or statement of reasons if one was requested. Late appeals may not be accepted.
The application for permission must set out the grounds for appeal – i.e. the errors of law the First-Tier Tribunal made. Someone can’t seek permission to appeal simply on the basis that they disagree with the decision.
If the application for permission to appeal is rejected by the First-Tier Tribunal, a person may make a fresh application for permission directly to the Upper Tribunal. The application must be received by the Upper Tribunal within one month of the date when the First-Tier Tribunal’s refusal was sent. The Upper Tribunal aims to deal with such applications within 10 weeks of receiving them, but this may vary.
Review of decision by First-Tier Tribunal
Before the First-Tier Tribunal decides whether to grant permission to appeal to the Upper Tribunal it must first consider whether or not to review its own decision. It can only do so if it is satisfied that there is an error of law in it. If the Tribunal does review the decision, it can:
- Correct any accidental errors in the decision.
- Amend the reasons for the decision.
- ‘Set aside’ (cancel) the decision without referring it to the Upper Tribunal. It may re-decide the case, or have it heard by a fresh tribunal.
If the First-Tier Tribunal decides not to review its decision, or reviews it and takes no action, it then considers whether to grant the request to appeal to the Upper Tribunal.
If permission to appeal is granted
If permission to appeal to the Upper Tribunal is granted, the person will be sent a copy of the appeal file. They, along with DWP, the local authority or HMRC, are asked for a response and are told the timetable for providing one. The decision maker (e.g. the DWP or HMRC official who made the original benefits decision) is usually asked to provide a response first and the person is given the chance to respond to the reply, usually within one month.
The Upper Tribunal decides whether to decide the case on the basis of the written responses, or whether there should be an oral hearing of the appeal. It must take the person’s views, and those of DWP, the local authority or HMRC into account when deciding whether there should be an oral hearing.
Usually one judge hears the appeal, but in some cases two or three judges may hear it.
The Upper Tribunal aims to deal with appeals within 20 weeks of receipt. However, this is only an indication and the case may take longer, including if the Tribunal decides that there should be an oral hearing.
If the Upper Tribunal decides that the First-Tier Tribunal made an error of law it will usually ‘set aside’ (cancel) the decision. It then has the power to send the case back to the First-Tier Tribunal to hear the appeal again, or to substitute its own decision. If the case is referred back to the First-Tier Tribunal, the Upper Tribunal usually gives directions on how it should reconsider the issues.
If a person disagrees with the decision of the Upper Tribunal, they cannot simply ask it to look at the decision again. However, it is possible for the Upper Tribunal to ‘set aside’ its decision on procedural grounds – i.e. because of some irregularity in how it handled the appeal. A person must usually apply in writing for a decision to be set aside within one month of receiving notice of the Upper Tribunal’s decision.
A person may appeal against an Upper Tribunal decision to the Court of Appeal (or the Court of Session in Scotland), but only if the Upper Tribunal made an error of law (see above).
A person must first apply for permission to appeal, in the first instance to the Upper Tribunal, generally within three months of receiving notice of the Upper Tribunal’s decision.
The Upper Tribunal can, in certain circumstances, review its own decision if an application for permission to appeal is made. Following a review, the Tribunal can decide, among other things, to ‘set aside’ its original decision and make a new one.
If the Upper Tribunal decides not to review its decision, or does so and takes no action, it must consider whether to grant permission to appeal to the Court of Appeal.
If the Upper Tribunal refuses permission to appeal, a fresh application can be made directly to the Court of Appeal or Court of Session.
Permission to appeal to the Court of Appeal or Court of Session cannot be given unless it is considered that the appeal would raise some important points of principle or there is another compelling reason.
If permission to appeal is granted, a notice of appeal must be served on the relevant parties. There are strict time limits for doing this and a person should get specialist advice immediately if they are in this situation.
Judicial review in the High Court (or Court of Session in Scotland) is a way of challenging the decisions of a government department, local authority or tribunal. A person cannot usually go to the High Court/Court of Session for judicial review if they have another independent means of resolving the problem, such as an appeal or using an Ombudsman service.
In England and Wales, if a person wishes to challenge a decision of the Upper Tribunal to refuse permission to appeal against a decision of the First-Tier Tribunal, this can only be done by judicial review, not an appeal.
Judicial review is a two-stage process:
- Permission is sought from the High Court/Court of Session for a judicial review. Permission to apply is only given if the case has a reasonable chance of success.
- If permission is granted, there is a substantive hearing of the case.
Occasionally, it is also possible to challenge the decision of the First-Tier Tribunal by applying for a judicial review by the Upper Tribunal. However, this is usually the case only if there is no right of appeal to the Upper Tribunal against the decision in question.
A person thinking about applying for permission for judicial review should consider obtaining professional advice as there may be costs involved.
- Appeal to the Upper Tribunal (Administrative Appeals Chamber), Gov.uk
- Appeal a benefit decision, Gov.uk
- Upper Tribunal (Administrative Appeals Chamber), Gov.uk
- HMCTS, How to appeal against a decision made by the Department for Work and Pensions, March 2018 (chapter 12) (PDF 720 KB)
- HMCTS, Upper Tribunal (Administrative Appeals Chamber) Frequently Asked Questions (PDF 303 KB)
- CPAG, Welfare Benefits and Tax Credits Handbook 2019-20, chapter 58 (Log-in required)
- CPAG, Upper Tribunal Assistance ProjectCPAG, Judicial Review project
- CPAG, How does Judicial Review work?
- Disability Rights UK, Appeals and Law factsheets
- Public Law Project: An introduction to Judicial Review (PDF 626 KB)