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Winning before the appeal is heard

16 March 2006

A joint study by the DWP and the Appeals Service has come to the damning conclusion that half of all the disability appeals they looked at would never have happened if the DWP did its job properly.

One major issue the report highlights is the failure to consider additional evidence submitted by claimants prior to the appeal. Benefits and Work is now providing its members with access to a previously confidential DWP appeals guide, the Code of Appeals Practice and sample letters. Together they will to allow claimants and representatives to put pressure on decision makers to look again at decisions under appeal and provide written evidence that they have done so. The letters can be used both for DLA/AA and for incapacity for work appeals.

Inadequately trained
When a claimant appeals without first having asked for the decision to be looked at again, the decision maker should carry out a reconsideration to decide if the decision is correct before forwarding the papers to the Appeals Service. Every time the claimant submits new evidence in relation to their appeal the decision maker should carry out a further reconsideration and also make a further submission to the appeals service if appropriate. If, in the course of the reconsideration, the decision maker concludes that the original decision was wrong they should issue a revised decision which may carry new appeal rights.

However, the study, by the Disability and Carers Service (the part of the DWP that administers disability benefits) and the Appeals Service Joint Steering Committee summarised in Decision Makers Exchange Issue 61 (February 2006, Members only) found that

". . . nearly half the cases examined should not have gone to the tribunal on the basis of the evidence obtained. Either the wrong decision was made, the decision was made with insufficient evidence or following further evidence being received post submission, no revision was made."

This adds to the growing collection of evidence that decision makers are failing to do their job and that the DWP knows it. A 142 page report just out from the Decision Making Standards Committee found that:

"The reconsideration process is not working effectively. There is insufficient communication with customers to resolve issues at the earliest possible stage. . . Many staff have been inadequately trained and lack a sound understanding of the DMA process."

In addition, recent annual reports from Judge Michael Harris, President of the Appeals Service give the impression that he is on the point of consuming his own wig in impotent fury at the DWP's continuing failure to follow their own decision making procedures.

Code of Appeals Practice
Many of the procedures that the DWP should follow are set out in the previously confidential Code of Appeals Practice This contains instructions to decision makers on how to deal with all aspects of appeals and, until now, has not been available to claimants or representatives. However, Benefits and Work has now obtained a copy of the code, which runs to nine chapters plus appendices and bulletins.

Sell-by date
When providing us with a copy of the code the DWP told us "the current version of CAP is out of date in some areas that reflect the law and procedures, especially in relation to the creation of Jobcentre Plus, and is currently undergoing a complete rewrite". Little wonder then, that Decision makers get so many things wrong.

However, of particular interest to us is a very recent bulletin about reconsiderations which is very definitely not out of date. The bulletin, dated November 2005, was sent out to decision makers "to emphasise the key role that reconsideration plays in the Decision Making process" and is in effect an order to decision makers to start taking reconsiderations seriously.

One point made very strongly in the bulletin is that where additional evidence is received once an appeal has been lodged, the decision maker must carry out another reconsideration and keep a record of having done so. As the reports above have discovered, this is something which decision makers have very clearly not troubled to do in the past. Every representative has experience of submitting very powerful medical evidence that they know will be taken extremely seriously by an appeal panel but which is simply ignored by the decision maker who is content to leave it all to the tribunal.

Pressure
We believe that, if pushed hard enough, the November bulletin along with the Decision Makers Exchange and the Decision Makers Procedural Guide could help some claimants to get a favourable decision without having to go to an appeal.

To this end we've produced sample letters for claimants and for advisers to enclose with a copy of any additional evidence, quoting from the above publications. The letters forcefully remind the decision maker of their duty to reconsider and ask to be provided with a copy of the record of the reconsideration, the result and any further submission to the tribunal. Where decision makers fail to follow their own guidance it will be open for advice agencies, in particular, to make multiple complaints about the same decision making team. It may rapidly become less time consuming for decision makers to do their job properly than to deal with the effects of failing to do so.

Use with caution
One issue to bear in mind when using these letters is the potential effect of a reconsideration. In relation to an incapacity for work claim any reconsideration which results in a changed decision can only be to the claimant's advantage - they will be found incapable of work.

For DLA there could be a reduction of the award, in which case the appeal would still go ahead. But more problematic is an increase but not to the level that the claimant believes is correct. Where the award is improved the appeal lapses even if the claimant is not happy and the appeal process then has to be begun again. Of course, a reconsideration should take place every time additional evidence is sent in, whether you ask for it or not. But where you are hoping for a much higher award you may prefer not to encourage the decision maker to look again.

In this regard it's worth noting that the CAP instructs decision makers not to revise a decision in the customer's favour once an appeal date has been set unless the customer specifically asks them to do so.

It's also worth noting that as far as we know Decision Makers exchange only goes to DLA/AA decision Makers, so IB decision makers may not have seen a copy of it - at least, not unless they're members of Benefits and Work.

The Code of Appeals can be viewed from this link,

Letter from claimant requesting reconsideration of a DLA decision.

Letter from claimant requesting reconsideration of an incapacity decision.

Letter from advisor requesting reconsideration of a DLA decision. (Organisational members only)

Letter from advisor requesting reconsideration of an incapacity decision. (Organisational members only)