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The Tribunal's Decision. What happens next?

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Category: Benefits
Published on Sunday, 16 November 2008 20:44
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It is not enough to disagree with the decision that the Tribunal panel reached when hearing your case.   There are unfortunately many people who experience the NO AWARD decision, and by this time most are so stressed out that their illness often becomes worse.  Many people feel frustrated and feel as if they're being called liars because they believe they should meet the criteria for receipt of benefit. 

You need to keep in mind that you are not a liar, and that even though your illness cannot be seen it has an all to real impact on your life.
It is the Commissioner's job to ensure that the Tribunal process is carried out with the legislation being interpreted correctly, and to ensure that the correct tests for each criteria to entitlement are used in each case.

If you have a Tribunal Representative they will be guiding you at this time to ensure they give you the best advice possible so that you can make the best choice for your situation.  If you do not have a Tribunal Representative it may be a good idea to get some advice to help you through this process.
Preparation and Choices
Once you have had your decision at Tribunal you may not have been given an award that you believe is suitable to your condition or any award of benefit at all, now it's time to make a decision you have two options:
  1. You can decide to accept the decision and make a fresh claim for benefit or,
  2. Appeal to the commissioner.
Appealing to the Commissioner can be a long drawn out process and there is no guarantee of success, and it would be a good idea to get a fresh claim for DLA in, or to identify what other benefits you might be entitled to in the case of a IB refusal.In order to identify any benefits you may be entitled to and to get some help with completing claim forms you should contact your local advice agency (CAB, DIAL, Welfare Rights etc) or you can contact the FMAUK benefits helpline.

There are very limited reasons why you can appeal to the Commissioner.  If you can identify an error in the law in how your decision was made then it will be brought before the Commissioner, who will decide whether or not there has been an error made.There are very strict time limits for appealing to the Commissioner and it would only be in very exceptional circumstances that they may accept a late appeal.

On the day of your Tribunal the Chairperson should explain that you have the right to appeal the decision they have made, and that you can ask for a written statement of reasons. In order to even attempt to appeal to the Commissioner you must ask for a written statement of reasons within one month, you can also ask for the complete transcript and/or notes from the hearing. If you do not do this you will not be able to proceed further unless there are some very good reasons for being unable to ask for the statement of reasons within the time frame.

Once the statement of reasons has been sent to you then you need to go through this very carefully, this is where you have to find out how they've made their decision, and what if any error they might have made in your case.  The only reason an appeal will proceed to the Commissioner is if the Tribunal made an error in law.  A Tribunal representative can help you review the statement of reasons and may be able to identify an error in law.

Areas of Law
The areas of law are very specific for appeal:

  1. It contains a false proposition of law (e.g.: the law has been misinterpreted or the wrong test has been applied.)
  2. The decision is supported by no evidence (the tribunal's decision must be based on the evidence and the correct application of the law must be used.)
  3. The decision is one which no reasonable tribunal could have come to (to fall under this category the decision must be perverse or irrational.)
  4. There has been a breach of the rules of natural justice.
  5. There has been a failure to state reasons for the decision (basically you need to be able to understand how the tribunal reached its decision, you don’t need to actually agree with the decision)
If you are able to identify an error or errors in law for how your decision was made by reviewing the statement of reasons you will then need to write up the errors called a 'submission' this is your interpretation of how the tests were applied incorrectly in your circumstances, the intent is to persuade the commissioner to agree with your view and that the Tribunal applied the wrong test in your case.  When this is done within the time limit your submission, the statement of reasons and your appeal form need to go back to the Tribunal Appeals Service.  The Chairperson will review your appeal to see if they believe there is merit in your appeal.  If they believe there is merit they may at this stage re-list your hearing, however this is not frequently done.

Your appeal will then be sent to the Office of the Commissioner, and a copy of your appeal will be sent to the department dealing with your benefit.  The department will then respond to your appeal submission with one of their own, basically saying why they believe the tribunal’s decision is the correct one, though sometimes they may actually agree with your appeal.
If the DWP believe there has been an error in law they may agree that a rehearing is best (again this doesn’t happen very often).
  • You will be sent a copy of the department’s ‘submission’ you will have the opportunity to respond to this.
  • The responding back and forth may take quite some time as the Commissioner will not make a decision until all the responses are in.
  • Make sure you read carefully what you've been asked to enclose when responding to the commissioner and make sure your response is sent to the commissioner in the specified time limit which will also be on the letter.
  • Also make sure that you keep a copy of all correspondence and that you send it all by recorded delivery.

What the Commissioner does
The Commissioner will then have a very close look at all the information from the tribunal's decision, the statement of reasons and your and the DWP's submissions, and they will then decide if the tribunal made a mistake in applying the legislation for your benefit.

The Commissioner can decide to handle this in a number of ways. 
The appeal can be dismissed (meaning the commissioner believes based on the evidence he/she has seen that the tribunal did not make an error in law.) The appeal can be upheld (meaning you identified an error in law) the Commissioner then has to decide if he/she can make an appropriate award of benefit or if the appeal needs to be reheard by a new tribunal panel.

Once the Commissioner has made their decision what ever they have decided is what will happen, they can direct the DWP to award benefit at the rate they decide is suitable in your circumstances or it will be reheard by a different tribunal panel. You may received a negative decision from the Commissioner and may decide to take it further, and if your are awarded some level of benefit the DWP also has the right to take the matter to the House of Lords for a decision.  If you do decide to take it further you will need to have a solicitor to take your case as it would be heard in the House of Lords.

Sending Documents
When sending documents for appeal or for any benefit application if you deliver it in person get a receipt, if you send it through the post send it signed for/recorded delivery.  This is your proof that they have received your papers. When sending any information to the DWP or TAS it is always worthwhile to retain a copy of the information for yourself so that you do not have to recreate all the information from scratch in case of a file going missing.

DISCLAIMER:
Please be advised this guide is for information only.  We strongly advise that you receive help from your local benefits advice centre for any benefit applications or appeals. 

***There is no guarantee that following the advice provided will result in an award of benefit.***

When speaking about your claim, you must claim only the symptoms you as an individual have. 
Each person with Fibromyalgia has symptoms individual to them, and may have additional conditions and  symptoms.  You have to fill out application forms as honestly and as accurately as possible.

The DWP (DLA/IB/AA/ESA or other benefits) and the Tribunal Appeals Service tribunal panel have the ability to award a continuation of an award at the same level.  To change any component that they have awarded at the level they believe is suitable for each individuals circumstances and condition(s),they can also reduce your award or remove it completely and they can decide what dates your award will begin and/or end based upon the evidence for each case/person.

Help on specific benefit questions can also be accessed through FMAUK’s benefits helpline. by Shannon Dalshaug

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