Further appeal to the Upper Tribunal
This is not a comprehensive account of the Upper Tribunal. Do not use this as a substitute for legal advice.
Around 69% of people win their First-tier Tribunal (FTT) but if you disagree with the First-tier Tribunal decision, you can appeal to the Upper Tribunal.
If you are eligible for legal help on income grounds, you may find a trained legal adviser or a solicitor to help with an appeal to the Upper Tribunal.
- Civil Legal Advice can help you find a local legal service or solicitor. It can also check if you can get legal aid.
- The Law Centres Network has a list of law centres with a Legal Aid Contract for this work.
- Scope is not qualified to offer this level of advice.
Read about appealing to the Upper Tribunal to help you decide whether you might have grounds for a further appeal.
An appeal to the Upper Tribunal is likely to take about a year. You might want to consider:
- making a new claim for the benefit you are trying to get
- asking for another review of the current level of entitlement to that benefit.
These are complex issues. Seek advice about your situation and whether you need to make a new claim for a benefit while appealing to the Upper Tribunal. Be aware that the Upper Tribunal often resubmits the appeal to the First-tier Tribunal.
It’s possible to appeal to the Upper Tribunal without legal representation. Find more about finding legal advice, which also links to resources about self-representation.
Upper Tribunal: first steps
1. Decide within a calendar month of the tribunal panel’s decision whether you want to challenge it. Ask the tribunal service for a statement of reasons. The judge will send this to you within a further month. This will include the reasons for the decision. You will need to examine this document to try to find an error in law.
2. Ask for permission to appeal the First-tier decision, within a calendar month.
3. Check the statement of reasons for any error in law. This is the single reason which enables you to go to the Upper Tribunal.
4. If you get permission, appeal to the Upper Tribunal.
5. If the First-tier Tribunal refuses, apply to the Upper Tribunal for permission to appeal.
Examples of errors in law are:
- The tribunal failed to follow legislation including case law.
- There is no evidence to support its decision.
- The tribunal gave an unfavourable decision after a physical examination.
- The facts are inconsistent with the decision.
- The decision failed to take account of things that were relevant or took account of irrelevant things.
- It did not give enough evidence.
- It did not provide adequate reasons for its decisions.
- There is a breach of the rules of natural justice.
Examples of breaches of natural justice are if:
- Any DWP representative is in the room with the panel when you are not.
- You are not allowed to call witnesses.
- The tribunal refuses to postpone or to adjourn, when you told them you could not attend and you had a good reason.
- You don’t have an appropriate interpreter, and you requested one.
- The tribunal tries to exert pressure on you to drop issues in the appeal. For example, it offers to award one component if you agree to drop another component.
- You didn’t receive a notice of the hearing, and it isn’t your fault.
- You asked for an oral hearing, but this didn’t happen.
- You didn’t receive the Secretary of State’s appeal response in enough time before the hearing for you to read it properly.
- The panel made a decision at a paper hearing that is less favourable than the one you appealed against, without giving you warning that they intended to do this.
The DWP can also ask permission from the First-tier Tribunal to take the appeal to the Upper Tribunal, on any of these grounds. If you win your appeal in the First-tier Tribunal, it can review its own decision.
Your application to the First-tier Tribunal will make the panel reconsider its decision. It can set the decision aside if it made an error in law. It can amend the reasons for the decision if they think this was not well explained. It can’t consider new arguments without setting the original decision aside; it can only re-write the reasons for the decision. If you and the First-tier Tribunal agree that there was an error in law, then the decision must be set aside.
If the First-tier Tribunal refuses you permission to go to the Upper Tribunal
In this case, you can apply to the Upper Tribunal for permission to appeal. You must:
- include your name, address and the details of your representative if you have one
- include details, for example, the date of the decision you want to appeal
- give grounds for your appeal
- give reasons why you are applying late, if applicable
- say if you want an oral hearing
- enclose copies of the First-tier Tribunal’s decision, the statement of reasons and the notice of refusal to accept the Upper Tribunal application
Withdrawing an appeal
You can withdraw your appeal at any time until the decision. You may to have to ask the Upper Tribunal for permission to withdraw the appeal though.
The Upper Tribunal cannot consider any new evidence. It must consider whether the First-tier Tribunal did its job properly.
Decisions the Upper Tribunal can make
The Upper Tribunal can refuse the appeal, or accept it if there is an arguable case about a possible error in law. If the Decision Maker and you agree, the Tribunal can set aside the First-tier’s decision.
If the Upper Tribunal finds an error in law in the First-tier Tribunal’s decision without new evidence, it can give the decision the First-tier Tribunal should have given. It can also make fresh or further findings of fact and give a new decision.
If there is not enough information, it can refer the case to a new First-tier Tribunal.
You can go to the Court of Appeal, and then the Supreme Court, but only if there is an error in law.