Disability Living Allowance (DLA) is a benefit for people with disabilities, both children and adults. It is aimed at people who need help looking after themselves and at people who find it difficult to walk or to get around. This page gives information on revisions and appeals.
CHANGES TO THE SYSTEM
The system of decision making, reviews and appeals is undergoing drastic change and the new system affects all social security benefits. In the case of DLA the new system was implemented on 18/10/1999 . The information in this leaflet applies to the majority of social security benefits.
The new system is intended to simplify the process by having one set of rules covering almost all benefits and just one kind of appeal tribunal.
WHO WILL MAKE THE DECISIONS?
The Secretary of State, in practice by a DWP officer acting on his behalf, will be responsible. He/she will be based in the local DWP office and there will no longer be any Decision Makers or adjudicating medical practitioners.
Appeals will be made to an Appeal Tribunal and will be administered by a new DWP agency called The Appeals Service (TAS), and this will replace the Independent Tribunal Service from April 2000.
WAYS OF CHANGING DECISIONS
Once a decision is made it is final unless it can be changed by one of the following methods:
- revise the decision
- supersede the decision
- appeal against the decision
In addition, decisions made by Appeal Tribunals and Commissioners may also be corrected if there is an accidental error.
There is a 'dispute period' of one month after the Secretary of State's decision is sent to you in which you can challenge the decision for any reason at all, by asking the DWP for a 'revision'. Outside of one month, you can challenge the decision only if there has been a change in circumstances or on certain other grounds. Depending on which grounds apply, this will be either by way of a 'revision' or'supersession'. One key difference between the two procedures is that benefit is paid under a revised decision from the same date as the original decision whereas for a supersession there is generally no backdating (but there are exceptions).
Under the new system, one set of rules applies to almost all benefits and there are no special procedures like the 'any grounds' and 'any time' reviews that used to apply to DLA.
Any decision by the Secretary of State on a claim or supersession may be revised in the following circumstances.
Outside one month - A decision can be revised at any time if:
- Within one month - If you miss the deadline you can ask for a late revision, but you must have special reasons for the delay.
HOW TO ASK FOR A REVISION
- it arose from an official error by the DWP
- it was taken in ignorance of any material fact or based on a mistake about any material fact and was more 'advantageous' to you as a result
- you or your partner or dependent child become entitled to another qualifying benefit
- it was a decision imposing a sanction on your Jobseekers Allowance
- the Secretary of State is satisfied that it is reasonable to allow a late revision
Your request does not have to be in writing, you can phone or go along in person; we recommend you put it in writing and keep a copy. However, if you have made a very detailed claim supported by evidence, it is unlikely that a revision will result in a higher award. You will have to speak to the Explanation Team who will explain to you how the decision was reached, and they may attempt to persuade you to withdraw your challenge. You are entitled to say that you do not want an explanation, or you can listen and say that you are challenging the decision regardless. If you appeal your claim will automatically be reviewed before the appeal papers are prepared, so it is not really of any benefit to ask for a revision.
If you do decide to go ahead and ask for a revision - if you are asked for more information or evidence it is important to respond within one month as if you don't the Decision Maker may go ahead with the revision based on the evidence they already have.
The revised decision takes effect from the date the earlier decision took effect, so that benefit can be backdated to the original date of claim.
If the decision is revised, you have a fresh right of appeal within one month of being sent the decision, even if the award is unchanged. However, if the Secretary of State refuses to revise the decision, you only have a right of appeal (against the original decision) if your application for revision was made within the one month time limit.
If you are outside the one month time limit and none of the other grounds outlined apply an application for a late revision may be accepted if:
- the application for revision has 'merit' - this is not defined
- the delay was caused by special circumstances - you must give reasons why
Apply in writing giving details of your reason for delay and why you think the decision should be revised. You cannot get a late revision more than 13 months after the date the decision was sent to you.
This is the way to get a decision changed if there has been a change to your circumstances since the decision was made; an example is that your medical condition has become worse. The Secretary of State can also decide to supersede a decision without a request being made.
It is best to write and ask for a decision to be superseded, but you can phone or go in person to the DWP office. The DWP need not take into account anything that is not 'raised by' your application, so make sure you give all the reasons why you think the decision should be changed. If they ask for more information or evidence, make sure you respond within one month. If you don't they may go ahead based on the evidence they already have.
You have a right to appeal within one month if the Secretary of State supersedes the decision, even if the award is left unchanged as a result. However, you do not have the right to appeal if the Secretary of State refuses to supersede the decision. Look carefully at your grounds for applying for the supersession and give all the information you can that might be relevant (see DLA leaflet - PINNT). If it concerns your medical condition you must get medical evidence to back up what you say. Be warned that your award can be decreased as well as be increased.
The general rule is that the new decision will only take effect from the day you apply for the supersession or from the day the decision is made on the supersession if the Secretary of State initiated it, so benefit will not generally be backdated.
Change of circumstances
If you notify the change within one month, benefit is fully backdated. If you tell the DWP about a change of circumstances that happened more than a month ago, you can still get full backdating if you can show there are special reasons for the delay.
If you are applying for a higher rate or another component of DLA benefit it can be paid from the date you first satisfy the 3 month or 6 month backward qualifying period as long as you notify the change of circumstances within one month of first completing the qualifying period.
You have a right to appeal to an Appeal Tribunal against any decision of the Secretary of State on a claim or on a revision or supersession, unless it is specifically listed in law as one with no right of appeal. There is no right of appeal against:
- most administrative decisions about claims and payment of benefit, but there are exceptions so it is always worth enquiring about
- entitlement to industrial injuries, constant attendance allowance, exceptionally severe disablement allowance or Christmas bonus
- a decision by the Secretary of State when a test case is pending
You must be given a written decision and informed of your right to appeal. If this does not include reasons for the decision you have the right to written reasons within 14 days.
Time limits for appeal
You must appeal within one month of the date of decision. If you have asked for written reasons for the decision then the time limit is extended by 14 days.
If you miss the deadline you can lodge a late appeal if there are reasonable prospects of your appeal succeeding and it is in the interests of justice to allow you to appeal. You must have 'special circumstances' which are relevant to the delay: examples include that your spouse or dependent has suffered serious illness, you live outside the UK or that postal services were disrupted.
Making an Appeal
You apply on form GL24 'If you think our decision is wrong', obtainable from your local DWP office, Jobcentre Plus, Post Office or advice agency. You can also download it from www.dwp.gov.uk .You must give details of the decision you wish to appeal against, such as which benefit is involved and the date of the decision, and details of why and how you think the decision is wrong. Sign it, take a copy and make sure it is received at the DWP office within the one-month time limit.
There are certain circumstances that may prevent your appeal from proceeding such as:
Revising before the appeal
- • the decision is revised to your advantage (see below)
- • the appeal is misconceived (see below)
- • your appeal is struck out, for example you do not reply to requests in the time allowed
- • there is a test case pending
When your appeal is received, the DWP will first check to see if they can revise the decision you are appealing against. If it is revised then your appeal lapses if the new decision is more advantageous to you - even if it does not give you everything you wanted. To continue with your appeal you must start again with a new appeal within one month of the revised decision. If it is not more advantageous, then your appeal will go ahead against the revised decision. You will have one further month in which to give further arguments and evidence for your appeal against the new decision. The DWP may decide to revise the decision yet again in the light of the further information and evidence you provide; otherwise the appeal will go forward for hearing.
A decision is more 'advantageous' if more benefit is paid, the award is for a longer period, a denial of benefit or disqualification is lifted, an amount of recoverable benefit is reduced, it reverses a decision to pay benefit to a third party or you will get some financial gain.
Your appeal will be struck off if it is misconceived. This is defined as one that is 'frivolous or vexatious' or 'obviously unsustainable and has no prospect of success'. The DWP will explain why they think the appeal is misconceived.
Test Cases pending
The outcome of your appeal may depend in some way on the result of another case pending at the courts. If this happens the Secretary of State will require the tribunal or Commissioner not to make a decision on the appeal but to refer it back to the DWP until the test case is decided; or to deal with the appeal, in which case the tribunal or Commissioner will either hold the appeal until the test case has been decided, or determine it as if the test case had been decided unfavourably to you. If the result of the test case turns out to be favourable the decision should be superseded.
OPTING FOR AN ORAL HEARING
When your appeal is lodged you will get an initial acknowledgement. When the DWP send your appeal to The Appeals Service they will also send you a copy of their submission on your case together with a pre-hearing enquiry form. This asks you to choose whether you want an oral hearing or a paper hearing - in other words, do you want to attend the hearing in person? PINNT suggest that it is better for patients to ask for an oral hearing, as the full extent of your care or mobility needs may not become obvious until you are asked at your appeal.
Make sure you return the pre-hearing enquiry form within 14 days. Read the submission the DWP sent to you so you can see where you might need to dispute it, and if you haven't already done so, see if there is a local advice centre that can advise you and perhaps support you during the hearing itself.
The tribunal need not consider any issue that is not raised by the appeal; however if there is any part of your award you are not happy with then say so. It is important to remember that the tribunal can only consider circumstances that existed at the time of the decision you are appealing against and if your circumstances change in the time you are waiting for the appeal to be heard then you should consider making another claim.
You must be given at least 14 days notice of the time and place of the hearing and you can ask for a postponement. Write to the clerk giving reasons. If the hearing is still carried on in your absence, you will have to get help in applying for a 'set aside' (assuming you disagree with the decision). You are entitled to have someone with you to represent you and you can also bring a companion along for support.
The Appeal Tribunal can be made up of one, two or three people depending on the issue under appeal and in the case of DLA a typical composition will be a lawyer, a doctor and a person experienced in the needs of disabled people. The President of the Appeal Tribunal may decide to include an additional member if they think further experience is needed. The Appeal Tribunal itself may decide it needs to call on an expert to attend the hearing or to give a written report, but this person won't take part in the Appeal Tribunal's deliberations.
It is important if you are 'feeding' during the day for several hours to go to the appeal attached to your feed. If you are feeding when attending the hearing, you can discuss your requirements with the clerk beforehand about accessibility and what facilities are available and how your needs can be met in order to enable you to be present at your hearing. You can and should ask for whatever you need - this is the only way to gain improvements for people with disabilities and to make them aware of the problems you face. If you need a break during the hearing (for example, to go to the toilet, to take food or medication or to see to your feed) then ask them for help!!
Remember that hearings often run very late and sometimes people are sent home without the hearing having taken place.
The Tribunal cannot ask you to undergo a walking test for the mobility component of DLA nor carry out a physical examination for any benefit other than a Severe Disablement Allowance or Industrial Injuries Benefit appeal which involves an assessment of the extent of your disability. However, if necessary the tribunal can refer you to a medical practitioner for an examination and report, but you should not rely on the DWP or tribunal getting the medical evidence. Where at all possible you should arrange to get the medical evidence yourself beforehand and it helps if you can sort out what the important issues are first, so you can get medical evidence that focuses on these issues. Your Nutrition Nurse or Doctor might support you by letting you have photocopies of relevant medical documents and be sure to read the PINNT DLA leaflet to identify important points.
You will get a decision notice on the day or soon after. To get a copy of the statement of the reasons for the decisions, you must apply in writing within one month, asking for a 'full written decision'. This may take up to three months to arrive. You'll need this statement if you disagree with the decision and decide to appeal to the Social Security Commissioners; you will not generally be able to lodge an appeal without it. This is more complex and may take more than a year. The Social Security Commissioners' website www.appeals-service.gov.uk contains a downloadable form for appealing and guidance on the procedure involved.
However, if your condition changes then you are able to make a fresh claim.
WHO CAN HELP YOU?
You are much more likely to succeed with an appeal if someone who is familiar with the procedure can help you. There are a number of people and agencies who can advise you on preparing your appeal and support you at the hearing.
You may contact your local law centre (address may be available from PINNT if you can't find it in your telephone directory). Law centres can give benefit advice. Your local Citizens Advise Bureau may also be able to help you and you can obtain forms and leaflets from them as well as advice. They may be able to represent you if you have a problem or an appeal or they can at least tell you if there is a law centre in your area or any other organisation that could provide a representative.
If you are in a union, contact your branch to see if anyone can help you there. A local DIAL group or other disablement advice centre may be able to offer advice and, in some cases may be willing to represent you. Your local council might have a welfare rights unit that could be of help; if not they are likely to be able to give you a list of local advice centres - contact your town hall for information.
Even if there are no free legal advice sessions available in your area you may still be able to get free legal advice and initial assistance from any legal aid solicitor. Under the government's Legal Advice and Assistance Scheme anyone who receives Income Support, income based Jobseekers Allowance, Disability Working Allowance or Family Credit automatically qualifies for free legal advice from any legal aid solicitor, if their savings are not over the set limits. This scheme is usually called the 'Green Form' scheme. In Scotland it is called the 'Pink Form' scheme. Other people in or out of work can qualify if their savings and income are low. The Green Form can cover the cost of preparing for a tribunal; for example, writing letters, getting a medical report, advising on the law, preparing a written submission for you to hand to the tribunal. However it does not cover actual representation at the tribunal hearing except at mental health reviews. Your local Citizens Advice Bureau or Law Society will have a full list of legal aid solicitors in your area.
If your injuries result from an accident, you can arrange free legal consultation by phoning The Accident Line on Freephone 0500 192939.
BOOKLETS WHICH MAY HELP
From Claim to Appeal - a guide to Disability Appeal Tribunals for disabled people and their advisors (1994).
A self- help guide which covers the procedure for challenging decisions about Disability Living Allowance. Covers reviews, Tribunals, and the process for appealing to the Social Security Commissioners.
Priced £4.00 from The Disability Alliance , 1st Floor East, Universal House, 88 - 94 Wentworth Street , London , E1 7SA .
Disability Appeal Tribunals - identifying errors of law (1993)
Advanced training notes which compliment the 'From Claim to Appeal' guide as an additional source of technical information for advisors preparing cases for Disability Appeal Tribunal hearings.
Priced £8.00 from The Disability Alliance , address as above.
PLEASE NOTE: WHILST EVERY CARE HAS BEEN TAKEN BY PINNT TO ENSURE THAT THE CONTENT OF THIS LEAFLET IS ACCURATE, NO LIABILITY IN REPECT OF SUCH CONTENT OR ANY OMISSION IS OR WILL BE ACCEPTED BY PINNT.
THE INFORMATION IN THIS GUIDE IS INTENDED AS GENERAL INFORMATION ONLY AND IS NOT INTENEDED TO BE RELIED UPON BY ANY INDIVIDUAL IN RELATION TO THEIR SPECIFIC CIRCUMSTANCES, IT IS NOT INTENED AS A REPLACEMENT FOR APPROPRIATE PROFESSIONAL ADVICE.