Benefits for the person you care for

If the person you're looking after wants a decision about their benefit looked at again, or if they decide to appeal to a tribunal, they must take action within certain time limits. The rules are strict. Unless there's a very good reason for delay, they may find that missing a deadline will prevent them from taking any further action.

If they want a decision looked at again, they normally have to ask the Department for Work and Pensions to look at the decision again within one calendar month of the date on the letter telling them about the decision.

To appeal to a tribunal against the decision, the person has one month (a calendar month) from the date the written decision was sent to them. Or if they have already asked for the decision to be reconsidered, they have one month from the date on the letter saying whether or not the decision has been changed.

Statement of reasons

If the person you're looking after wants more information about the reasons for the decision that's been made, they need to ask for a 'written statement of reasons' within one month of being sent the decision. If they're sent written reasons within that month, they have an extra 14 days to ask for the decision to be reconsidered or to appeal against it. If the reasons are not sent within the month, the person you're looking after will have 14 days from whenever they're sent.

To get a further explanation of the decision over the telephone or in person at a benefits office, the person should make sure they appeal or ask for the decision to be reconsidered within the one-month time limit because they will not necessarily receive an extra 14 days.

Sometimes the decision letter may not make it clear whether you have been provided with written reasons. If you're not sure about getting an extra 14 days, be careful to appeal or ask for the decision to be reconsidered within the one-month time limit.

If the person you're looking after has missed the deadline

In some cases, the person you're looking after may be able to get the decision looked at again, or make their appeal, even if the one-month deadline has expired. The time limit can't be extended for more than one year after the deadline has expired.

It's possible to appeal to a tribunal against many decisions about a claim for benefit, but in some cases an appeal will not be possible. The following examples will give you a guide to the decisions that can be appealed against, and those that cannot.

A person claiming a benefit (the claimant) can appeal against decisions about whether:

• They're entitled to the benefit, or the rate they're entitled to.
• They've been overpaid benefit and have to pay it back.
• Their claim has been made in a valid way.
• Their benefit can be backdated.

A claimant can't appeal against decisions about whether:

• Their payment of benefit should be suspended.
• They should receive an interim payment of benefit.
• Someone can be their 'appointee' for benefit purposes (an appointee is someone who acts on the claimant’s behalf for benefit purposes).
• Their claim for one benefit could be treated as a claim for a different benefit. In some cases, the claimant can legally challenge a decision like this in court, even if they can't appeal through a benefit tribunal.

Deciding whether to challenge

If a claimant is not happy with the decision about their claim, they will need to decide whether they want to appeal to a tribunal straight away, or whether they want to ask for the decision to be looked at again. There are advantages and disadvantages to asking for the decision to be reconsidered.

Advantages

The claimant may receive a favourable decision more quickly than if they appealed to a tribunal.  The claimant may avoid the inconvenience or stress of attending a tribunal hearing.

If the decision-maker looks at the claim again and the claimant is still unhappy with the decision, they would still normally have an opportunity to appeal to a tribunal.

Disadvantages

If the claimant hasn’t got any further evidence to send, or they can’t point out any obvious mistakes in the decision, it's probably unlikely that the decision will be changed at this stage.

An appeal may be the best way of proceeding, and the claimant would only be delaying matters if they first ask for the decision to be reconsidered.

Deciding whether to ask for reasons for the decision

In many cases, the letter informing the claimant of the decision about their claim for benefit will be quite brief and they will want to get more information.

The claimant could telephone or visit a benefits office in person to ask for an explanation. If they do so, they need to remember that the one-month time limit for challenging the decision is still likely to apply. If the claimant asks for written reasons, the time limit could be extended by 14 days.

It may not always be clear whether the decision letter includes reasons or not. To be safe, the claimant should appeal or ask for the decision to be looked at again within the one-month time limit.

If the claimant isn't given reasons for the decision, or the reasons are quite brief, they will find much more information in the case papers. These are sent out by the Department for Work and Pensions (DWP) after a claimant has sent in an appeal form. If the claimant would like the case papers at an earlier stage, they can ask for them to be sent to them.

Risk in asking for a review

Remember that by appealing or asking for a review, the claimant risks the DWP or tribunal deciding to reduce or stop a current benefit. If you're unsure about whether to challenge a decision, or how to make a challenge, seek advice from a welfare benefits advice service.

If the person you're looking after wants their benefit decision to be reconsidered, or they have appealed to a tribunal, they should gather evidence as soon as they can.

What type of evidence would be useful?

It's best to start by looking at the reasons for the decision. This will then help the claimant to decide what kind of evidence will help present their case.

Any notes or diary the person you look after has kept about their condition, their personal care needs or their mobility or problems could be extremely useful. It will give the DWP or tribunal a good picture of their daily routine and the problems they experience.

Letters or notes from family, friends or carers can also be very useful because people who see the claimant in their own home and know their daily routine may have detailed knowledge about their personal care needs.

Family, friends or carers may be prepared to go to a tribunal hearing with the claimant, but even if they aren't willing or able to do so, the written evidence they provide could still be helpful.

The person you look after should ask family, friends or carers to make sure names and addresses are on any letter or notes, and they should sign and date it. It would be helpful if they mention how they know the person you look after, and how long they have known them.

Family, friends or carers do not need to write information in a formal way, but the clearer it is, the more likely it is to help.

Medical evidence

Often, the family doctor (GP) of the person you look after will provide a report to the DWP, and this should be in their case notes. If the person that you look after feels there's something in the GP’s report that's incorrect or confusing, it would be helpful to see the GP and ask them to explain what they have said. The GP may be prepared to write a further letter to the DWP on their behalf, but may charge a fee.

The person you look after may also have had a medical examination by an independent doctor appointed by the DWP. If the report contradicts anything their own GP has said, it may be useful for the person you look after to show it to their GP and ask them to comment. Again, the GP may be prepared to write a further letter for them.

If the person you look after needs evidence from their GP or other healthcare professionals (such as a hospital consultant), ask them to be as specific as possible. For example, if the person you look after was refused the higher rate of AA because the DWP did not think that they needed any help during the night, they should discuss the type of help they need with the GP, and why.

If a medical professional asks the person you look after to pay for a medical report and they can't afford it, they may be able to have it paid for by public funding (legal aid). To do this, they would need to find a firm of solicitors or other legal advice organisation that does this type of work.

If the person you look after would like to get the decision about their benefit claim changed, they may find it helpful to get some support:

• To give them any information they need about the benefit.
• To advise them about tactics, deadlines and what evidence would be useful.
• To represent them at a tribunal or advise them about the procedure at a tribunal.

Advice about the law

The person you look after may be able to argue their case on a common sense basis and, in many cases, they will be the best person to give information about their own circumstances and health problems. Sometimes there are more complex legal reasons for their benefit being refused. It is particularly important to find help if:

• The person you look after doesn’t fully understand the case papers.
• The person you look after doesn't know how to argue against the reasons given by the Department for Work and Pensions for refusing their claim.

The following organisations may be able to help:

• Citizens Advice Bureau.
• A local law centre.
• A local authority welfare rights service. Contact the local authority to see if there's one in the area.
• A firm of solicitors which specialises in welfare benefits. The person you look after may qualify for public funding (legal aid). Note that this doesn't cover the cost of representing them at a tribunal.
• A voluntary organisation such as a carer’s centre or DIAL (Disability Information and Advice Line).

If the person you look after has a particular health condition, such as multiple sclerosis or autism, they may find that there are local and/or national organisations that have information and advice to help argue their case.

There are two ways for the person you look after to challenge a decision. They can ask for the decision to be looked at again, or they can appeal against the decision.

If the person you look after wants the decision to be looked at again by the Department for Work and Pensions:

• They can telephone or visit a benefits office to ask for the decision to be reconsidered, but it's better to put the request in writing. If the person you're looking after (the claimant) has telephoned or visited an office, they could write a letter to confirm that they want the decision looked at again.
• The claimant could try to explain in writing why they think the decision is wrong. It's not enough just to say that they disagree with it.
• If possible, the claimant should send any further evidence with their written request. If it's not available yet, they should mention in their letter that they will send it as soon as they can.
• The claimant should keep a copy of their letter and any further evidence.

If the person you're looking after wants to appeal

They will need to appeal in writing, normally using an appeal form (see Common questions, below). This is contained in a leaflet called If you think our decision is wrong (leaflet GL24). This leaflet also contains information about the appeals process. You can obtain this form from a benefits office or advice organisations.

On the appeal form, the claimant has to provide:

• Their name, address, telephone number; date of birth and National Insurance number.
• They will need to say whether they have arranged for someone to represent them at the appeal and, if so, the representative’s contact details. If they want a representative but don’t yet have one, they will be able to supply this information at a later date.
• The name of the benefit that they're appealing about, and the date of the decision.
• The reasons why they disagree with the decision. These should be as specific as possible. For example, if the decision-maker at the Department for Work and Pensions (DWP) doesn’t agree that the person you're looking after is unable to prepare a cooked main meal, the claimant should explain exactly why they're unable to do so.
• The claimant needs to sign and date the form.

If the claimant has any further information or evidence available at this stage, they can send it with the appeal form. This can increase the chance of the DWP changing the decision instead of the case going to an appeal tribunal.

The claimant must make sure that the benefits office receives the appeal within one month of the date on the letter telling them about the decision. For more information see Deadlines (above).

Common questions

Can the person I'm looking after just send a letter?

If they're near the deadline for appealing but they don’t have the right form, they could send a letter. It is important to include all the information mentioned above. It will then be up to the chair of the tribunal to decide whether or not the claimant’s appeal has been made in a valid way.

What if the person I look after missed some information?

The DWP may return the claimant’s appeal form or letter asking them to provide any information left out. The claimant should be allowed at least 14 days to return this. Even if the DWP has not asked for further information, the claimant can still send any if they think it's important. They should send it as soon as possible.

One of the ways to challenge a decision is to ask the DWP to look at the decision again. The other is to appeal to an appeal tribunal.

When the person you're looking after asks the Department of Work and Pensions (DWP) to reconsider a decision, a decision-maker can ask the person you look after to attend a medical examination and use the medical report from this to help them to come to a new decision.

You don't have to explain your case in person. The decision-maker will base their decision on any forms you have completed, reports from any medicals you have attended, and any letters or other documents you have sent. The decision-maker can ask you to attend a medical examination if you ask them to look at their decision again.

What the DWP will look at

When reconsidering a decision, a decision-maker within the DWP will examine all the case papers. The case papers are the forms the person you're looking after has completed, reports from any medicals they have attended, and any letters or other documents they have sent. Having looked at the case papers, the decision-maker will see if they can come to a different decision. They will inform the person you're looking after of the outcome.

If they have been refused a benefit, they will need to send in more evidence to show why they think they're entitled to benefit. It's worth getting someone to help them challenge the decision. If they have been refused a benefit then they have one month to ask the DWP to look at the decision again. If the DWP agrees that they're entitled to the benefit, they will be paid it from the day that they first asked for it.

If the person you look after is already getting some Disability Living Allowance (DLA) or Attendance Allowance, and he or she asks the DWP to look at the decision again, the decision-maker can remove a component of DLA as well as award one. It can also decide to pay a lower rate of a component as well as increasing the amount it pays. You should seek advice if you're worried about this.

The person you're looking after can ask the DWP to look at a decision again at any time if they want to dispute the level of benefit they're already receiving. For instance, if you're getting the lowest rate of the care component of DLA and you believe you might be entitled to the middle rate. However, you will only be paid at a higher rate from the date that you asked them to look at the decision again.

If a decision has been made on your claim and it was based on an official error, then the decision can be looked at again at any time. If the benefit is awarded, it will be paid from the date of the original claim.

The person that you're looking after (the claimant) may want to challenge a benefit decision by appealing to an appeal tribunal. An appeal tribunal is independent from the Department of Work and Pensions (DWP). Appeals are organised by the Tribunals Service, which also employs the tribunal members who make the decisions at appeal hearings.

Once the person you're looking after has requested an appeal in writing against a benefit decision, the Tribunals Service will send them an enquiry form asking whether they want an oral or paper hearing.

The enquiry form also asks the person whether they have any more evidence to send, and if there are any dates they would be unable to attend an oral hearing if they have asked for one. It also asks whether they need an interpreter or any other special arrangements to be made. They must return the enquiry form within 14 days. The appeal may not go ahead if the form is not returned in time.

The DWP will prepare the case papers and send one copy to the person and one to the Tribunals Service.

Oral appeal hearings and paper appeal hearings

An oral hearing is a tribunal where the person you are looking after appears in person and explains why they think the decision on the benefit you have claimed is wrong. The tribunal will ask them questions about their care needs and difficulties with walking.

A paper hearing is one where they do not attend. The tribunal looks at all the information in the case papers that it has and makes a decision based on that information. The papers include the claim form, any letters that have been sent to them, any medical reports and documents from the Department for Work and Pensions (DWP).

Before the appeal tribunal

In most cases, the person you are looking after stands a better chance of success if they choose an oral hearing, especially if the appeal concerns a disability benefit. This is because most of us are better at explaining things by talking to other people than by putting things in writing. Also, the tribunal will be able to ask questions and may raise points that the person did not know were relevant.

The person you are looking after may be able to find someone to represent them at the appeal hearing. A specialist advice worker from an advice centre may be able to do this. If they do have a representative, they would normally still need to attend the hearing with the representative. This is because they may have to answer questions about their care needs and difficulties with walking and a representative cannot do this for them.

If a specialist advice worker cannot represent them, they may be able to help the person you are looking after to prepare for the tribunal. The representative may also be able to help put their argument for having benefit awarded or awarded at a higher rate in writing.

The enquiry form asks them to say if the claimant will be sending further evidence and if so by what date. Try to get any evidence to the Tribunals Service by the date they have given. This is especially important if they have asked for a paper hearing because they will not necessarily know when that hearing is going to take place.

If the person has chosen an oral hearing, they should be given at least 14 days notice of the date, unless they have agreed to less notice.

How the appeal works

The tribunal at an oral hearing will be made up of one to three members, but it is always chaired by a legally qualified person. At a Disability Living Allowance or Attendance Allowance hearing there will be three members: the chairman or chairwoman, a medical practitioner and someone with an understanding of matters to do with disability.

The rules of procedure are not very strict. The chairman or woman of the tribunal decides who speaks and when, but the chair must make sure that the person you are looking after gets a fair chance to state their case. They will be asked questions about their case, and they will be given the opportunity to explain their situation.

The decision is usually made on the same day, and they will be given a short decision notice telling them what decision has been made by the tribunal.

You can ask for a decision to be reconsidered at any time if there has been an official error in making the decision.

For Child Benefit and Guardian’s Allowance, this means an error made by an officer of Her Majesty’s Revenue and Customs (HMRC) or a person providing services to HMRC.

For benefits other than Child Benefit and Guardian’s Allowance, this means an error made by an officer of the Department of Work and Pensions (DWP), or a local authority or HMRC. It also means someone acting on behalf of, or providing services to, a local authority. Finally, other than for housing benefit and council tax benefit, it also includes errors made by someone providing services to the DWP.

The following might be errors of law:

• The decision-maker had evidence when they decided on your case, but they failed to take it into account even though it was relevant.
• The DWP, local authority or Inland Revenue had written evidence of your entitlement but failed to give it to the decision-maker dealing with your claim when the earlier decision was made.
• The decision-maker made an error of law. However, this does not apply if the decision-maker made an error of law after a later decision of a commissioner or a court.

In order to argue that there is an official error, you must show that no one else caused or contributed to the official error. This means that it will not be an official error if you, your partner or your representative cause or contributed to the official error.

If the person you're looking after is unhappy about the way in which their benefit claim has been processed or the way in which they were personally treated, they can make a complaint.

Complaints about the Department for Work and Pensions

They would normally need to take the following action if their complaint is about the service from the Department of Work and Pensions (DWP):

• First, contact the person who was dealing with their claim, or the manager. There is no need to wait until there has been a decision on the claim.
• If they are not satisfied, they could then ask for the details of the district manager and contact them with their complaint.
• If they are still not satisfied, they can contact the chief executive. The district manager will give them the contact details.
• If they are still not happy, there is an independent case examiner who can look at their complaint, particularly if it involves failure to follow proper procedures, excessive delay or poor customer service. They should normally contact the independent case examiner no later than six months after the final response is received from the DWP. The independent case examiner can be contacted on 0845 606 0777 (textphone 0151 801 8888).

At any stage, the person you are looking after can ask their MP to take up the complaint on their behalf. He or she may agree to refer the matter to the Parliamentary and Health Service Ombudsman. The ombudsman would investigate their case if they think the person may have suffered injustice because of the action or inaction of the DWP.

Common questions

Will they be entitled to any compensation?

The DWP will sometimes agree to pay compensation to the person you're looking after. An official guide is used to help calculate the amount the claimant should be paid. They should ask to be compensated not only for any benefit they have lost, but also for interest on the arrears of benefit and to cover any expenses, such as telephone calls. They should also ask for payment to compensate them for any hardship or distress caused by the mistake.

What if we want to complain about a delay?

The DWP has target times in which to process claims for different benefits. If the claim takes longer to process than indicated, the claimant may be entitled to compensation. See DWP: complaints and appeals in External links.

What if they want to complain about the medical examiner?

If the person you look after wishes to complain about the medical examination, they can contact the medical services centre at the address shown on their appointment letter. The medical services customer relations team should acknowledge and deal with the complaint.

How can we complain about how the appeal was handled?

If the complaint is about the way the claimant's appeal has been processed (for example, they were not sent paperwork), they should contact the tribunal service itself.

If they're concerned about the way in which members of a tribunal behaved towards them during an appeal hearing, they need to contact the chair of the region where the tribunal was heard. To find out who this is they can contact the Tribunals Service.

There are times when people are paid more benefit than they are entitled to. An overpayment of benefit may occur because the Department of Work and Pensions (DWP) made a mistake. It might also be caused by the person you are looking after making a mistake or contributing to an error.

A mistake could be made in two ways. They might have failed to tell the DWP something they should have, or they might have misrepresented an important fact. Sometimes the DWP can recover the overpayment (this means asking the claimant to pay it back)

Decisions about overpayments

There are several reasons why the DWP can look into whether someone has been overpaid. These include the DWP finding out that the person you are looking after no longer has the same level of care needs, following a medical examination, or because of information received from a medical professional. The DWP will look at the person's entitlement to Disability Living Allowance (DLA) or Attendance Allowance (AA) and decide whether or not they have been overpaid.

It will then investigate whether the claimant contributed to the error that caused the overpayment, even if it was not deliberate. Unless the money is legally recoverable (because the person you are looking after failed to disclose information or misrepresented information), they will not have to pay back the overpayment. If the claimant feels under pressure from the DWP to do so, they should seek advice from a welfare benefits specialist or legal advice service.

If it was the claimant’s appointee who failed to disclose or misrepresented something to the DWP, it can recover an overpayment from an appointee or other third party if they are acting on the claimant's behalf and it is reasonable to do so under the circumstances.

How overpayment is reclaimed

The DWP may decide not to recover the overpayment, if it is quite small. They also have discretion not to recover all or some of the overpayment if the claimant can argue that they acted in good faith and recovery would cause hardship.

A recoverable overpayment can be deducted from the ongoing benefit payments of the claimant. In some cases the DWP may want to take proceedings in court against the person claiming the benefit to recover the money. This happens quite rarely, and in this situation they will need legal advice.

The person you are looking after could challenge the decision that they've been paid the wrong amount or that it can be recovered from them. The claimant would also be able to appeal against the overpayment amount or the period of time it covers.

Many overpayments are caused by innocent mistakes. Just because there has been an overpayment does not mean that the person you are looking after has acted dishonestly. If the DWP decides that fraud is involved, they could prosecute them. Alternatively, the person you are looking after may be given the option of paying a penalty, which would be 30% of the overpayment.

If the person you are looking after is accused of acting dishonestly or fraudulently, they will need to get legal advice as soon as possible.

If the person you're looking after has given the Department of Work and Pensions (DWP) incorrect information about themselves or their circumstances, the DWP may argue that they have misrepresented important facts. The DWP may then argue that this has led to paying out too much benefit. This is called an overpayment. The claimant may then be asked to pay some or all of it back.

Important facts

Anything that affects entitlement to the benefit could count as an important fact. This includes information on their care needs or the difficulties they have with walking. Whether a fact is considered important will depend on individual circumstances in each case. Even if the claimant honestly thought the information they were giving was correct, it would count as misrepresentation if it is later found to be incorrect.

Example

Diana applied for DLA mobility component and stated that she could walk less than 10 metres before feeling very out of breath and unwell. She was awarded the benefit because the DWP believed she was virtually unable to walk.

Diana’s benefit claim is reviewed and it becomes clear that she doesn't know how to estimate distances and can in fact walk up to 75 metres before she starts to feel ill.

Even if this mistake was not deliberate, Diana may find that the DWP will argue that she misrepresented an important fact and has been overpaid benefit as a result. She may be asked to pay this back (see Overpayment, above).

Checks

If someone helped the person you are looking after to complete a claim form and they didn't realise that the contents were incorrect, they may be able to argue that the misrepresentation was not their fault. However, the DWP will normally expect them to have done their best to check that the contents were correct before they signed the form.

Even if they have misrepresented some important fact, it may not have caused the overpayment, or may have only caused some of it. They therefore need to find out why they were paid too much benefit. For instance, it is possible that the benefits office obtained the correct information from elsewhere about their entitlement to benefit, but failed to act upon it and it was this failure by the DWP to act that caused the overpayment. If this was the case, then all or part of the overpayment may not be recoverable (wouldn't have to be paid back).

If the DWP decides that the person you are looking after has been overpaid and that the overpayment is recoverable, they can challenge the decision. It is a good idea to get legal help with challenging overpayment decisions if possible.

When challenging a decision to recover an overpayment, it has to be decided whether the overpayment was caused by a misrepresentation of information or whether the overpayment was caused solely by an official error.

If they are challenging a misrepresentation overpayment decision, the person you are looking after may wish to raise some key points:

• The nature of the information they gave to the DWP in relation to the benefit.
• Where and when they sent the information.
• Whether they have any proof that they have provided information, such as receipts for documents handed in at a benefit office or recorded delivery receipts.

If the person you are looking after fails to inform the Department for Work and Pensions (DWP) about an important fact about themself or their circumstances when claiming a benefit this is called a 'failure to disclose'. If the failure to disclose causes the DWP to make a wrong decision about their claim, the person could be overpaid benefit and the DWP may try to recover the overpaid benefit from them.

Anything that affects their entitlement to the benefit could count as an important fact. This includes information on their care needs or the difficulties they have with walking. Whether a fact is classified as important depends on the individual circumstances in each case.

The person you're looking after is expected to disclose a fact if the DWP told them that it is something they need to report and the person you are looking after knew of the fact in question. The DWP lists the sort of facts they should be told about in the letters and leaflets they send out with each benefit claim.

Even if the DWP did not tell the person that the fact that caused the overpayment was one that should be disclosed, they still need to inform the DWP of any changes that might affect entitlement to benefit. The rules are:

• If the person you are looking after knew about the fact.
• The fact was some change in their circumstances.
• It was reasonable to expect them to believe the change might affect their benefit. There is a duty upon them to inform the DWP of the fact. If they do not do so this will be considered as a failure to disclose, and any overpayment will be recoverable (has to be paid back).

If the DWP makes a decision that you have been overpaid and that the overpayment is recoverable from you, you can challenge the decision. It may be a good idea to get legal help if possible.

When challenging a decision to recover an overpayment, it has to be decided whether the overpayment was caused by a failure to disclose information or caused solely by an official error.

Some of the main points you may wish to raise if you are challenging a failure to disclose overpayment decision are:

• What information have you given to the DWP in relation to this benefit?
• Where and when did you send the information?
• Do you have any proof that you have provided information, such as receipts?