The most recent appeal statistics show that in 68% of Personal Independence Payment (PIP) cases and 65% of Employment and Support Allowance (ESA) cases, decisions by the Department of Work & Pensions (DWP) were changed in the claimant’s favour. These benefits together form the vast majority of the total number of cases heard by social security appeal tribunals.
The statistics about outcomes in disability benefit and ESA appeals repeatedly show that the claimant is much more likely to be successful if they are able to attend their appeal hearing and give evidence in person, rather than where the appeal is decided on the written evidence only.
However, the idea of appearing in front of an appeal tribunal can feel quite daunting to many of our clients. So it is helpful to advise anyone planning on attending one on exactly what and who is involved in a disability or ESA appeal hearing.
The hearings are supposed to be as informal as possible. They usually take place in offices or in rooms in court buildings, with all parties sitting round a table.
The tribunal members are independent of the DWP. A legally qualified member – the judge – and a doctor hear ESA appeals. Disability benefit appeals have a ‘disability member’ in addition. The only other person who may normally take part is a presenting officer from DWP. Their role is to act as a ‘friend of the court’ and assist the tribunal to come to the correct decision, not to defend the original decision made by DWP. More presenting officers have been recruited recently to participate in hearings but there are still not enough to attend every hearing.
The claimant may be accompanied to the hearing. If they attend with a partner, friend or carer that person will not usually contribute to proceedings unless invited by the judge. But they may be asked to help out a claimant who has trouble answering the questions.
A more formal representative can also accompany the claimant. They may, for example, be a paid or voluntary worker for Citizens Advice or a charity, or may work for a law centre or as a solicitor. They may prepare a written submission to explain the claimant’s case for the tribunal to read in advance. During the hearing they can ask the claimant questions to draw out relevant evidence, and may make oral submissions on why they believe their client’s appeal should succeed.
Before the hearing starts the tribunal members should have read all of the written information and evidence in the claimant’s appeal file. This includes the DWP’s explanation of its decision, forms completed by the claimant, reports about any face-to-face medical assessment, and letters from doctors.
After introductions have been made the judge may ask the claimant (called the appellant) or their representative for clarification on what specific outcome is being sought. Then the main part of the hearing takes place. This usually involves the doctor and the disability member asking the claimant lots of questions about their circumstances at the date that the original decision was made. These are usually questions about their disabilities and any other health conditions, followed by questions relating to the qualifying conditions for the benefit. So, for example in PIP appeals, the claimant is asked about how they manage their daily living needs, such as preparing meals, washing and communication. The judge will take notes and may interject occasionally and ask for clarification on a point. If there is a presenting officer they may ask some questions of the claimant, but sometimes even when they attend they do not ask any.
Once all parties, including the claimant’s representative, are satisfied that they have asked all relevant questions, and given any evidence or submission that they wish to, all parties except the tribunal members leave the room. They then sit alone and discuss the evidence before coming to a decision together. The tribunal’s role is to look at all the evidence and make a decision based on ‘the balance of probabilities’. The claimant is then either called back into the room to be given the decision, with written confirmation, or may be told the decision will be posted to them within a few days.
When our clients get a wrong initial decision on their ESA or disability benefit it is often crucial to their material and mental well-being to pursue challenges to get the correct outcome. And, if the statistics don’t lie, then it is more likely than not that it’s worth their while pursuing their claim as far as appearing before an appeal tribunal.
For further information on appeal applications and appeal hearings:
Charlie Callanan is a welfare rights adviser with over 16 years’ experience in the statutory and voluntary sectors.