WB Upper Tribunal Service

Birmingham Community Law Centre has a contract with the Legal Aid Agency to advise and assist with Welfare Benefits appeals to the Upper Tribunal.

If you have had your benefits appeal hearing at the First-tier Tribunal and you think the judge got the decision wrong, then you may be able to get legal aid for us to help you appeal to the Upper Tribunal. You will need to show that there has been an error of law in the tribunal’s decision. See below for details of what is an error of law.

After your appeal hearing you must:

  1. Ask for a statement of reasons;
  2. Ask the First-tier Tribunal for permission to appeal to the Upper Tribunal;
  3. If permission is refused, apply directly to the Upper Tribunal for permission;
  4. If permission is granted, appeal to the Upper Tribunal.

You can only get legal aid for stage 3 onwards. We will assess you to see if you qualify and we will help with your appeal to the Upper Tribunal.

If you need help with stage 1 or stage 2, then please contact us or you can use our standard letters in the resources section.

Appealing to the Upper Tribunal

The decision notice
After your First Tier Tribunal (FTT) hearing, the judge will hand a ‘decision notice’ of the FTT’s decision to both parties or it will be posted to both parties as soon as practicable.

The statement of reasons
As the decision notice only states the FTT’s decision in brief, you are not allowed to appeal to the UT without first obtaining the FTT’s ‘statement of reasons’. You must ask for the statement of reasons in writing within one month of the decision notice being given or posted – although the FTT has power to extend this.

The record of proceedings
When you receive the statement of reasons you should also receive the FTT’s ‘record of proceedings’. These are the FTT’s notes of what happened during the hearing and can help establish appeal grounds. If you do not receive the record ask the HMCTS to send it to you.

Asking the FTT for leave to appeal
To appeal to the UT you must first ask the FTT itself for leave (permission) to appeal. This must be received by the HMCTS within one month of the date that the FTT’s statement of reasons was posted to you.

Write a letter stating why you think the decision was legally wrong and what result you seek. Head it ‘Application for permission to appeal to the Upper Tribunal’. Make a copy, and send it to the clerk to the tribunal with copies of the tribunal’s decision notice and its statement of reasons. If there is no statement of reasons, the tribunal has discretion to treat the application as a request for one. An application can only be allowed without a statement of reasons if the tribunal thinks it is in the interests of justice to do so.

Reviewing the decision
On receiving your application for permission to appeal, the FTT can review its decision. In particular, the FTT can, (i) correct an accidental error in the decision; (ii) amend the reasons for the decision; or (iii) set aside the decision.

The tribunal must write to ask each party if it has any comments before it changes its decision following a review. If it sets aside the decision, it must make a new decision or order a rehearing. You must be sent a notification of any new or amended decision. If you think that the new or amended decision contains an error of law, you have one month from the date that the notification is sent to ask again for permission to appeal to the Upper Tribunal.

If the FTT sets aside its decision
If the FTT sets aside its decision, a new FTT made up of different members is arranged that will hear the appeal afresh.

If the FTT grants leave to appeal
When the FTT sends you written notice granting leave to appeal, you must give written notice of appeal to the UT on form UT1 within one month.

If the FTT refuses leave to appeal
When the FTT sends you written notice refusing leave to appeal, you can apply direct to the UT for leave to appeal within one month on form UT1.

The Upper Tribunal (UT)

The Upper Tribunal is part of the Administrative Appeals Chamber within the Ministry of Justice and it decides appeals from decisions of the FTT in social security, tax credits, child trust fund, child support maintenance, housing benefit and council tax benefit cases. All tribunals are chaired by judges.

The UT is independent of the Department for Work and Pensions (DWP), HM Revenue and Customs (HMRC) and local authorities. UT decisions set legal precedent: their interpretation of the law and their reasoning must be followed by FTTs and decision-makers.

The only ground for appealing to the UT against the FTT decision is that the FTT has made an ‘error of law’. Both the benefit claimant and the decision-maker can appeal to the UT. An error of law is one of the following:

  • The tribunal got the law wrong or misinterpreted it.
  • There is no evidence to support its decision.
  • The facts it found are such that, had it acted reasonably, and interpreted the law correctly, it could not have made the decision it did.
  • There is a breach of the rules of natural justice.
  • It does not give proper findings of fact or provide adequate reasons for its decision.

Outcomes of an appeal to the Upper Tribunal

The UT can do any of the following:

  • If it finds that a FTT decision is wrong in law it can give the decision that the FTT should have given – if it can do so without making fresh or further findings of fact; or
  • It can make fresh or further findings of fact, and then give a decision; or
  • If there aren’t enough findings of fact, and it doesn’t make new findings, it can refer the case to a new FTT. It may give directions to the new tribunal to make sure the error of law is not repeated.

There is a quicker procedure: if both you and the decision-maker agree on an outcome, the UT can set aside the FTT’s decision by consent.

The appeal process can take several months and may not be successful. Always think about making a fresh claim if the FTT refused benefit, or asking for a supersession if it awarded benefit at a lower rate than expected.

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