Appeal to the Upper Tribunal

This information applies to England and Wales.

You can appeal to the Upper Tribunal if you’ve already had a mandatory reconsideration and appealed to the First-tier Tribunal.

Around 75% of people win their First-tier Tribunal.

You can appeal to the Upper Tribunal if there has been a legal mistake. This is called an error of law.

An appeal to the Upper Tribunal can take about a year. Get advice before you appeal.

Get benefits advice before appealing

Financial support

If you’re worried about affording food and other essentials, find out what support is available.

Free food and food banks

Help with gas and electricity bills

If you need financial support for disability-related costs, you might be able to get a grant.

Finding and applying for grants

Benefit payments

When you’re waiting for an appeal decision, benefit payments will continue at the rate they were decided.

For example, if you were awarded PIP standard mobility at a First-tier Tribunal, you would continue to receive this rate until you get the Upper Tribunal decision.

If your amount goes down, you do not owe the money.

You would be owed backpay if your benefits go up. It will be a separate payment and can take about 6 weeks. You will be paid your new rate from the next benefit payment.

Affecting other benefits

While waiting for a benefit appeal decision, your other benefits are not affected. If you think your other benefits have changed, contact the:

• Department of Work and Pensions (DWP) for disability benefits
• Jobcentre Plus for employment benefits

The decision of your appeal could make you:

• eligible for premiums if you win or
• lose premiums if you are not awarded the benefit or receive a lower rate

Disability premiums

Check your eligibility using a benefits calculator.

Benefits calculator (Turn2us)

If you need more help, contact our helpline. 

Paying towards your care

Contributing towards your care is normally means-tested. This is based on a financial assessment.

Financial assessment for social care

If you have the same income, your care payments will not change during an appeal.

If you have a change of income, including benefits, your payments could change. The local authority would review your payment towards your care.

Contact your local authority if you have a change of income and ask them to review the payment towards your care.

For example, PIP daily living can count as income when looking at your care costs.

Your local authority might have hardship grants if you cannot afford care payments. Have a look on your council website or search for grants.

Find your local council and authority (GOV.UK)

Finding and applying for grants

What happens at a tribunal

There are 2 types of benefits tribunal:

• First-tier Tribunal
• Upper Tribunal

A First-tier Tribunal looks at the initial decision to see if it’s wrong.

Appealing a benefits decision

The Upper Tribunal is seeing if there was a legal mistake (error of law) made in the First-tier Tribunal.

Both tribunals have a judge who can ask questions about your appeal.

You are allowed to have a representative who can speak on your behalf. This could be friend or family member.

Representation at tribunal

The tribunal process can last up to 18 months. The waiting time will depend on the backlog and other factors.

Upper Tribunal

A judge will make the decision during an Upper Tribunal. If the case is complicated, a panel of judges will decide. They will look at:

• what happened in the First-tier Tribunal
• the evidence you submitted

Most Upper Tribunals decisions are based on the paperwork. If this is the case, you will not have a hearing.

If the judge decides that they want a hearing, you will be asked about the evidence you have submitted.

When to start a new benefit claim instead of appealing

You should consider starting a new benefit claim if:

• your condition has changed
• you have new evidence that would help your case

You should get legal advice if you want to start a new claim while appealing to the Upper Tribunal.

If the First-tier Tribunal had accurate evidence but their decision does not reflect the evidence, appeal to the Upper Tribunal.

Get benefits advice before appealing

You should get benefits advice before appealing a benefits decision. A benefits adviser could help you to get the best outcome if you need support understanding:

• how the tribunal works
• what your rights are
• the kind of evidence you need, for example how you meet the descriptor for an activity that would make you eligible for PIP

Scope helpline

Find a local benefits adviser (Turn2us)

Representation at tribunal

All representatives can:

• attend your hearing
• speak on your behalf
• offer emotional support

Types include:

• informal representation: free support from someone you know
• advocacy: from a charity or you’d pay for it
• legal representation: normally you’d pay for it

Informal representation

An informal representative might not understand the tribunal process and what makes a strong case. But they might help you by speaking on your behalf.

They could be a:

• friend
• family member
• health care professional

Advocacy

An advocate will be experienced in helping you to be heard during a tribunal hearing.

They might have experience of:

• the benefit appeal process
• tribunal hearings

You will have to find an advocate.

Disability Rights UK has a list of advocacy organisations who could help.

Legal representation

A legal representative:

• will understand the tribunal process
• can help you build a strong case, meaning the best chance of winning your appeal

This can be important if:

• your case is complicated
• you are appealing to the Upper Tribunal

During the hearing they can speak on your behalf.

You normally cannot get a legal representative through legal aid. This means you will have to pay for it.

Appealing without legal representation

You can appeal without legal representation. You could represent yourself. Get advice before doing this.

Representing yourself in court or tribunal

If you cannot find someone

You could ask for your appeal to happen over a video or phone call if that would make it easier for someone else to take part.

You can ask for another date for your tribunal, but this will probably mean that you will need to wait longer.

Get legal advice if you need more support

You do not need legal support to appeal a benefit decision. But it’s highly recommended.

Legal support can help with:

• planning your case and written statement
• representation (not included when using legal aid)

The DWP does not pay for legal expenses.

You can either:

• get free advice from a lawyer (sometimes called pro bono) or charity
• use legal aid
• pay for your legal advice

The Disability Law Service has a free helpline providing legal advice on welfare benefits issues.

Finding free or affordable legal help (Citizens Advice)

Legal aid

Legal aid is free or discounted legal support. You normally cannot get legal aid for the First-tier Tribunal. But you might qualify when you appeal to the Upper Tribunal.

Eligibility for legal aid depends on your income and savings.

Legal aid (GOV.UK)

You could try:

• Civil Legal Advice, which can help you if you qualify for legal aid. If they cannot help you, they’ll suggest somewhere you might be able to get advice.
• Law Centres Network, which has a list of law centres with a legal aid contract for this work.

Most legal aid will not include a representative who can go to your hearing and speak on your behalf.

How to appeal to the Upper Tribunal

Making an appeal to the Upper Tribunal has up to 6 stages:

1. Using the Statement of Reasons to find an error of law.
2. Asking the First-tier Tribunal for permission.
3. Submitting your appeal to the Upper Tribunal.
4. Waiting for a decision.
5. Upper Tribunal hearing (only in some cases).
6. Decisions the Upper Tribunal can make.

You need to do a mandatory reconsideration and the First-tier Tribunal first.

Appealing a benefits decision

Before appealing to the Upper Tribunal, get advice.

Get benefits advice before appealing

1. Use the Statement of Reasons to find an error of law

You will get a letter when the First-tier Tribunal has made a decision.

When you receive the letter, you have 1 month to start the appeal process to the Upper Tribunal. You can only appeal to the Upper Tribunal if there has been an error of law.

An error of law is when:

• the decision does not match the evidence
• there is not enough evidence to back up the decision
• the decision is against the law (legislation or case law)

To start the appeal process, reply to the decision letter, asking the tribunal service for the Statement of Reasons. The Statement of Reasons is a detailed explanation of the First-tier Tribunal’s decision.

It takes around 1 month for tribunal service to send you the Statement of Reasons.

How to find an error of law

The Upper Tribunal cannot look at new evidence. There must be an error of law to appeal.

Compare the Statement of Reasons with the evidence in the appeal bundle to look for an error of law.

The Upper Tribunal can also decide if there was a breach of natural justice. For example:

• A DWP representative is in the room with the panel when you are not.
• You’re 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. For example, you had a hospital appointment.
• You do not have the interpreter you requested.
• The tribunal pressures you to drop issues in the appeal. For example, it offers to award a component if you agree to drop another component.
• You did not receive notice of the hearing, and it is not your fault.
• You asked for an oral hearing, but this did not happen.
• You did not receive the Secretary of State’s appeal response in enough time before the hearing for you to read it properly.

An error of law is the only reason you can go to the Upper Tribunal. If you are unsure, get legal advice.

Get legal advice if you need more support

If you miss the deadline

If you miss the 1-month deadline but you want to appeal, you can still ask for the Statement of Reasons.

Try to meet these deadlines as the First-tier Tribunal might refuse to give you the Statement of Reasons if it has been longer than 1 month.

2. Ask the First-tier Tribunal for permission

When you have the Statement of Reasons you have 1 month to start your appeal for Upper Tribunal. You do this by asking the First-tier Tribunal for permission.

Write a letter explaining:

• why you think the decision was legally wrong
• the result you want

You could title it ‘application for permission to appeal to the Upper Tribunal’.

You should make copies of the:

• letter you wrote
• tribunal decision notice
• Statement of Reasons

Send all of these to the tribunal clerk. The address will be on the Statement of Reasons letter.

You should keep the originals of the tribunal decision notice and Statement of Reasons.

3. Submitting your appeal to the Upper Tribunal

If you get permission from the First-tier Tribunal, you have 1 month to submit your appeal to the Upper Tribunal. If you cannot meet the deadlines, explain why. The tribunal might consider late applications.

Apply to the Upper Tribunal with a UT1 form (GOV.UK)

If the First-tier Tribunal refuses you

If you are refused permission to go to the Upper Tribunal, you can apply to the Upper Tribunal for permission to appeal. You must:

• include your name, address and the details of any representative you have
• include details, for example, the date of the decision you want to appeal
• give the reason for your appeal
• give reasons why you are applying late, if applicable
• say if you want an oral hearing
• include copies of the First-tier Tribunal’s decision, the Statement of Reasons and the notice of refusal to accept the Upper Tribunal application

If the DWP disagrees with the decision or an appeal to the Upper Tribunal

If the DWP disagrees with the First-tier Tribunal decision, it can appeal it if an error of law has happened.

The DWP will be notified when you appeal to the Upper Tribunal. If the DWP disagrees, it can ask the Upper Tribunal to dismiss the case. If this happens, you will receive a letter saying that the DWP wants to oppose the appeal.

Normally the judge will decide to continue with the Upper Tribunal.

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.

4. Waiting for a decision

When you have submitted your appeal to the Upper Tribunal, you may have to wait around 20 weeks, but waiting times can vary. They will decide if you need a hearing or make a decision.

You might have to wait longer for a decision if:

• it is a complicated case
• more evidence and information are needed for the court to decide
• a hearing is needed

5. Upper Tribunal hearing

If you need to attend a hearing, you will receive a letter.

You can ask for a written hearing, but it's usually better to attend in person. It is possible to have a hearing:

• face to face
• by video call
• by phone

This could give you a chance to show how your condition affects you. Tribunal members can ask you questions and make a better informed decision.

The meeting place should be accessible for you. Contact the Upper Tribunal if you have any access needs and need a reasonable adjustment. They may ask you to explain why you need this adjustment. For example, your condition means you need to lie down to manage pain.

You should get the decision on the day of the hearing or a few days after.

If you cannot attend

If you are unable to attend, contact the court as soon as you can.

The judge can decide whether to postpone or go ahead with the hearing without you.

If you have a good reason, like being in hospital, they should change the date.

If you want to attend, it’s best to ask for it to be postponed.

Rearranging a tribunal hearing can cause delay.

The hearing is adjourned

If your hearing is adjourned, you will receive a letter. The letter will explain why it has been postponed.

The most common reason is because more evidence is needed. If they need you to submit more evidence, it will say on the letter.

Sometimes the hearing is adjourned on the day. This could be because someone cannot attend.

6. Decisions the Upper Tribunal can make

If the Upper Tribunal finds an error in law, they will use the evidence you submitted to the First-tier Tribunal to make a decision.

If there is not enough information, it can refer the case to a new First-tier Tribunal.

You would be owed backpay if your benefits go up. It will be a separate payment and can take about 6 weeks. You will be paid your new rate from the next benefit payment. If your amount goes down, you do not owe the money.

Further appeals

You can go to the Court of Appeal, and then the Supreme Court, but only if there is an error in law.

Court of Appeal (GOV.UK)