Appeal tribunal guide

DISABILITY LIVING ALLOWANCE

APPEAL TRIBUNAL GUIDE

1. INTRODUCTION

This guide is intended for use by claimants for benefits whose applications have been refused or have not been awarded at the rate which they consider to be warranted by their circumstances, and who are either considering lodging an appeal, or have already done so.

It is designed for use by claimants who intend to pursue their application for appeal on their own.
The purpose of this guide is to assist you to appeal and to help you to understand the steps involved in pursuing an appeal to an oral hearing with an Appeal Tribunal. The guide will help you to understand how the Tribunal will consider your application and the steps which you will need to take in order to convince an Appeal Tribunal that your claim is justified.
Appeal Tribunals cover appeals in respect of many types of benefit/allowances.
Remember, once a decision has been made to refuse an award which you think is not the right one for your situation, it is up to you to prove that you are entitled to the benefit or allowance.

2. WHAT TO DO AFTER YOU GET THE INITIAL DECISION ON YOUR ALLOWANCE.

After you have received an unfavourable decision, you have the right to appeal that decision. You have one month from the date of the decision letter to submit the request for appeal. Your appeal request must contain specific reasons why you disagree with the decision and state points which you consider should make you eligible for the benefit/allowance.

However if you find yourself outside the time limit, it is worth sending in your appeal, as the time limit can be extended. Include a letter explaining why your appeal is late.
Your appeal request should be made in writing on an official GL24 appeal form or you can appeal by letter.
3. SUBMITTING THE OFFICIAL GL24 FORM
The booklet entitled ‘ If you think our decision is wrong ‘ and numbered GL24 must be obtained from your local Department of Work and Pensions office, which will normally be able to send it to you by post. The form on which to make the appeal is attached to the back of the booklet and should be detached before submission.
Again, you must remember that there are strict time limits on the submission of this form. It must be sent in within one month of the date shown on the letter giving the decision on your benefit/allowance.
When completing the form, make sure that you provide all of the information requested. You are asked to supply the name and address of your representative but if you do not want the service of a representative leave this section blank. This guide is intended mainly for people who are to manage their own case and not have a representative.
DISABILITY NOTTINGHAMSHIRE ARE CURRENTLY UNABLE TO ASSIST AS REPRESENTATIVES.
When completing the ‘Grounds for appeal’ section on the form, you should provide detailed reasons as to why you think the decision is wrong. If you have any letters giving evidence of these copies should be included with the GL24. If you have requested letters of evidence but they are not yet available, put a statement in the ‘Grounds of appeal’ to the effect that further evidence has been requested and will be forwarded as soon as it is received. Again, remember to keep copies of all documents sent.
If you do not use the official GL24 form you can submit a letter of appeal. The letter must show your details ie Name, Address, National Insurance Number and the name of the allowance you are appealing against and you should give full reasons as to why you are appealing. Remember your appeal letter must be sent in within one month from the date on your decision letter.
4. EVIDENCE
The submission of additional evidence is an essential element of proving your entitlement to the benefit /allowance you are claiming. You should ensure that all potential sources of additional evidence to support your claim are written to for example your GP, Consultant, Physiotherapist or other medical professional with whom you have contact and who may be aware of your medical condition and how it affects you on a day to day basis.
Any additional evidence which you may get should be considered carefully to establish whether the information provided by the writer is supportive of your case. The decision of whether or not to submit it is yours.
A Tribunal can only make a decision on the basis of the evidence placed before it. It does have the authority to request the provision of additional medical evidence only under certain very limited circumstances but there is no obligation upon the Tribunal generally so to do. It is important, therefore, that the evidence you gather should be as comprehensive and relevant as possible.

Some of the written evidence which the Tribunal will consider is as follows:

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  Your original application form
  
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  The report of any doctor appointed by the DWP who has seen you.
  
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  Reports requested by the DWP from any other medical source i.e. a G.P, Consultant or Specialist you may have seen recently.
  
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  Reports from other professionals, medical or otherwise, who may be familiar with how your medical condition affects you.
  

In addition to the above, the Tribunal will also take into account oral evidence which you will give in response to a series of questions from Tribunal members.

The Tribunal is an independent body but it has to work strictly within the rules which govern the benefit or allowance it is considering. It has to consider your situation at the date the benefit department made their decision. It cannot take into account any deterioration or improvement of your condition since that date. This, therefore, means that all of your answers to questions must relate to -

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  In the case of Disability Living Allowance (DLA), your difficulties with walking and/or your personal care needs as they were at the earlier date and not as they are now.
  

You should remember that the Tribunal is not a Court of Law but is there to look at the facts of your case, so your oral evidence needs to be as detailed as you can make it. You need to be very specific about the how your medical problems affect you.

5. THE ENQUIRY FORM
When you have submitted the form GL 24, you will, in due course, receive a pack of papers which should include the following:

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  A statement of reasons for the decision made
  
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  Information concerning the relevant law about the benefit/allowance claimed
  
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  A copy of your application form
  
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  A copy of the medical report(s) or other evidence obtained by the decision maker to make the decision
  
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  A copy of all evidence which you may have submitted

  A couple of days later you will receive an ‘ENQUIRY FORM’.

  
  

The purpose of the Enquiry form is for you to confirm that you still wish to proceed with your appeal. Several months may have passed since you submitted your appeal and your circumstances might have changed so you no longer wish to proceed. This form needs to be completed and returned to the Tribunal Service office stated on the front of the form within 14 days. If it is not returned, it is likely that your appeal will be ‘struck out’ i.e. it will be regarded as withdrawn and no further action will be taken.

6. THE TRIBUNAL
You will in due course receive a letter from the Tribunal Service which tells you the date and time of your hearing.
If you live within the Nottinghamshire area, you most likely will have to go to either Nottingham or Chesterfield. You will be sent a map of its location.
When you get to the Tribunal building you will be directed into the waiting room. A clerk will come and take your details and ask if you have any additional evidence to submit. If you have any last minute evidence, you should bring five copies and give four to the clerk for the Tribunal. The clerk will also ask if you have any travelling expenses. You may claim public transport fares incurred or car expenses will be paid for the mileage you have done to get to the Tribunal.
Taxi fares will only be paid if they have been previously authorised. To request authorisation, you need to phone the Tribunal Service office prior to the date of your hearing.
You will then be directed into the Tribunal room.

The Disability Living Allowance (DLA) Hearing
The DLA is, in effect two separate allowances: one for mobility and the other for your personal care needs. These are called components i.e. Mobility Component and Care Component and will be referred to as such.
As this is intended to be only a brief guide as to the Tribunal procedures, the following is a summary of the requirements for different rates of payment of the two components.
Mobility Component

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  The high rate is primarily for people with physical difficulties walking out of doors on level ground
  
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  The low rate is for people who need to be accompanied when somewhere unfamiliar to them regardless of their physical ability to walk.
  

Further information about the mobility components is given further on in this guide.

Care Component

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  The low rate is paid to people who are either unable to prepare a cooked main meal for themselves only or who have personal care needs from another person for a significant portion of the day. ( In some cases, both criteria may apply )
  
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  The middle rate is paid if you have a sufficient level of personal care needs either during the day or during the night.
  
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  The high rate is for people with a sufficient level of personal care needs during both the day and the night.
  

Further information about the care components is given further on in this guide.

There are normally three persons on the appeal panel : the Judge, who is legally qualified, a doctor and a third member who is ‘a person with experience of disability’ and who will be a person who may be disabled themselves or has worked with disabled people. The function of the Judge is to ensure that all the legal requirements for holding a Tribunal and relating to the DLA are met.
The doctor is there to advise on medical matters concerning your claim. A medical examination will not be carried out but you will be observed for any discrepancies between you claimed medical problems and how you conduct yourself in the Tribunal.
The usual procedure when you enter the Tribunal room is that the Judge will introduce him/herself and the other members of the panel. The Judge will tell you that the Tribunal is an independent body and also advise you that all of your answers to the panel’s questions must relate to the date when you submitted your application - the panel cannot take into account any change in your condition since that date.
You may get the opportunity to make a statement about your application before the panel starts to ask you questions but this is not always the case and you may also be asked to state which components and at what level of payment you are seeking.
If you are female and there is an all male panel, you have the right to request that the hearing be postponed so that a female member can be appointed.
The normal practice is for the doctor to ask you questions about your medical history i.e. when the medical condition(s) causing you to have mobility problems or care needs first started, the specialists you may have seen, what medical interventions are currently being undertaken or have been undertaken in the past and how effective they have been, the medications you take and any aids which you may use to help you cope with your disabilities.
If you are claiming the Mobility Component at the high rate, you have to have a physical disability to qualify. There several groups of physical disability which give rise to qualification for the Mobility Component at the high rate and, for most of these, payment of the allowance is straightforward and anyone within these categories should not need to appeal.
The category of people who are ‘virtually unable to walk ‘ is the category into which most of our clients fall and this is the hardest to prove to the satisfaction of the Tribunal.
For the purpose of this guide, it is assumed that you fall within this group but if you have any doubts, please contact DISABILITY NOTTINGHAMSHIRE for further advice.
For the Tribunal to decide that you are ‘virtually unable to walk’ you need to prove that your:

‘ability to walk out of doors is so limited, as regards :

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  The distance over which, or
  
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  The speed at which, or
  
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  The length of time for which, or
  
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  The manner in which (you) can make progress on foot without severe discomfort, that (you are) virtually unable to walk.’
  

The words in italics in the last paragraph are, except for those in brackets, quoted from the regulations and you will note that you only need to meet one of the criteria. There is no magic maximum walking distance of 50 yards which will automatically qualify you for the allowance – each case is decided on its own merits in strict accordance with the rules so you need to provide the Tribunal with detailed information as to how each aspect of the rules affects your walking ability. You will be asked a series of questions about your difficulties with walking. The doctor will usually ask the questions about your mobility difficulties.

If you are claiming the lower rate Mobility Component, the rules state that you must be ‘so severely disabled physically or mentally that, disregarding any ability (you) may have to use routes which are familiar to (you) on (your) own, (you) cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.’
In the case of children under 16, the rules are somewhat different and you should contact DISABILITY NOTTINGHAMSHIRE if you need further advice if you are applying on behalf of a child. The minimum age for the payment of the High rate of the Mobility Component is 3 years. Low rate cannot be paid until the child is 5 years old.
The lower rate Mobility Component is intended for people who can walk but because of their mental health problems, such as agoraphobia, or physical difficulties, such as sight impairment, need to have someone with them most of the time when they go out of doors, particularly in areas which are unfamiliar to them. You will, therefore, need to give detailed information as to the reasons why you need to have another person with you and the help ( i.e. guidance or supervision ) which they provide.

If you are claiming the Care Component of the DLA, you may well be asked which rate of the allowance you are claiming. The three rates have already been referred to but these will now be looked at in greater detail:
Low Rate – This is based on the ‘cooking test’, which is a hypothetical test of your mental or physical ability to prepare a main meal for yourself only and which takes into account your mental capability to plan and prepare a meal, whether you can turn on water or cooker taps, your ability to peel and cut up vegetables, whether you can lift and carry a small pan and if you can use a conventional oven. The fact that you may never have cooked a meal before is not a consideration and only being able to heat a pre-prepared meal in a microwave should not be considered as failing the test.

Either as an alternative, or in addition, to the ‘cooking test’ you may also qualify for the low rate if you require ‘in connection with (your) bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods).

Middle Rate - Depends on your personal care needs either during the day or during the night. The personal care needs which the Tribunal will take into consideration are confined to the areas about which questions are asked on the application form so it is important that you familiarise yourself with these and your answers beforehand. The Tribunal will be looking for details of the personal care which you get in terms of its frequency and the length(s) of time for which help is given as well as the nature of the help itself.
You, therefore, need to be familiar with your daytime or night-time routine, as appropriate, and the assistance which you get in order for you to able to live as close to normal a life as possible. In this context, it may be helpful for you to keep a daily diary over a week or two to record the details of the help which you have been given and the time of day or night at which that help has been provided.

In the case of a child under 16, you will need to prove that the child needs substantially more care than a ’normal’ child of the same age.

You should note that housework, gardening, shopping and similar tasks do not count as personal care but if you are in any doubt as to whether any help provided would be regarded as personal care, please contact DISABILITY NOTTINGHAMSHIRE.
If you are a person who lives on their own and has nobody to provide you with personal care, you should remember that the Tribunal is looking at the care which you need not the care which you are receiving.
High Rate – Paid if you have personal care needs both during the day and during the night. The Tribunal will be looking for detailed information of the type and frequency of the help you need both during the day and the night. The comments contained in the previous section regarding the Middle Rate of the Care Component apply equally to the High Rate but the level of care must extend over a 24 hour period.
At the conclusion of the questions, you will normally be asked if there is anything you wish to add. This is your opportunity to mention anything which you think has not been covered by the questions and to stress any points which you may think to be of particular relevance.
The Judge will the ask you to leave the room whilst the panel considers its decision. It usually takes 10 to 15 minutes to reach a decision but it can take longer. You will be asked to go back into the Tribunal room and normally given the decision. In rare instances, the panel will not have been able to have made a decision, in which case you will be informed of this and the decision will be sent to you by post.
If you are already in receipt of DLA payments and are seeking an upgrade of your award, your attention is drawn to the fact that the Tribunal has the power to look at the whole of your award again and could come to the conclusion that the payment of all or part of your existing Allowance is not justified and reduce or remove it altogether.
7. EPILOGUE
This guide is intended only to cover the main points of Appeal and Tribunal procedures and deals with the situation which our representatives have experienced for the majority of cases. We cannot, therefore, guarantee that your Tribunal will follow exactly the same pattern, as individual Judges may run their hearings slightly differently.
If you do come across any major variation to the model of the Tribunal procedures, as set out in this guide, or find that any of the information is incorrect for any reason, we would like to hear about it. We would also like to know the outcome of our client’s Tribunal hearing, whether they are successful or not.
Like anyone else, we can all learn from experience and any input from clients can only help to improve our service.