Challenging a disability benefit determination in Scotland
This information is for deaf young people and families of deaf children in Scotland. Read our information for England, Wales and Northern Ireland.
Social Security Scotland (SSS) uses the word ‘determination’ to describe a benefit decision. Use this information to challenge a:
- Child Disability Payment (CDP) determination
- Adult Disability Payment (ADP) determination
The determination
You will receive a determination from SSS after you have submitted your form and they have all the information they need. It can take several weeks or months for them to make their determination and send you the letter.
The letter will let you know whether your CDP or ADP claim has been successful or not. The determination letter will inform you of your right to challenge their determination. It will explain how to request a CDP re-determination or ADP re-determination.
It’s important to remember that you can’t appeal without having gone through the re-determination process.
Successful
If your application is successful, the letter will include:
- which components you’ve been awarded
- how much you’ll receive
- the date of your first payment.
CDP is awarded indefinitely (until they turn 16) but will have a review date indicated in the letter.
Unsuccessful
Some CDP and ADP applications will be unsuccessful. If you’re unhappy with the determination for this reason, you can challenge it. Ask for a re-determination.
Not what I expected
In some cases, awards will be lower than expected or lower than you we're previously receiving. If you’ve been awarded a lower rate, you may want to consider challenging the determination. Think about whether it is the right thing to do for you. It’s important to remember that if you ask SSS to look at your award again, there’s a risk that it can go up or down, stop completely or stay the same.
It’s a good idea to get advice in this situation. You can contact our free Helpline.
Re-determination
If SSS do not award you CDP or ADP, or you feel you’ve been awarded the wrong amount. You can ask them to look at your application again. This is called a re-determination.
Ask for a re-determination by phone or by filling in and returning a CDP or ADP re-determination form. A re-determination must be submitted within 42 days of the date on your determination letter.
You have 42 days to submit your re-determination form. If you miss the 42-day time limit, you can still ask for a re-determination. You should give a good reason why your request is late. A good reason may include health issues or waiting for an advice appointment about the determination. SSS might not accept a late re-termination without a good reason.
SSS have 56 days to complete the re-determination.
The determination letter from SSS should explain its decision. It should detail the evidence used. In your request for a re-determination, try to explain what part of SSS’s decision you disagree with and why. You can send in new evidence to support your request.
You should get a response to your request within 4 to 8 weeks. If SSS have taken longer than 56 days to complete a re-determination you can also ask for an appeal.
Re-determination notice
SSS will respond to your challenge by sending you a re-determination notice. A re-determination notice will give details of why they’ve made their new decision. They can decide to increase or decrease the amount of CDP or ADP you’re getting. They can also decide not to change their original determination. SSS should also respond to the points you made in your re-determination request.
If you want to challenge this new determination, you can do this by appealing. Bear in mind that if you've been awarded some benefit, there is a risk that you may lose it by appealing.
Appeal
If you’re still not happy with the new decision made after the re-determination, you can appeal against it. You can only appeal if you’ve requested a re-determination and have received a re-determination letter. Once you’ve received your re-determination letter, you have 31 days to appeal. Late appeals are allowed in some circumstances.
When you appeal a disability benefit re-determination, you’re appealing to the First-Tier Tribunal. The tribunal is part of the Scottish Courts and Tribunals Service (SCTS). SCTS is the government body that organises the courts and tribunals in Scotland. It is independent of SSS.
Around half of all appeals are successful. This is usually because the tribunal takes a different view of the evidence to SSS. New evidence can also be crucial in getting determinations changed. However, do not wait until you have new supporting evidence to appeal as you can send it in later.
If you miss the time limit for appealing, but it’s been less than 12 months since the re-determination, you can make a late appeal. You should give a good reason why your appeal is late. A good reason may include health issues or waiting for an advice appointment about the re-determination. The tribunal will decide whether to accept your late appeal.
How to appeal
You can appeal in 2 ways.
By phone
You can:
- call SSS for free on 0800 182 2222
- use the Text Relay Service at 18001 then 0300 244 4000
- use the contactSCOTLAND app for video relay if you're a British Sign Language (BSL) user
By letter
You can fill in a paper form for appealing CDP or ADP:
Mail the form to SSS at: Social Security Scotland, PO Box 10309, Dundee, DD1 9GF.
Most of the questions on the appeal form are straightforward. There are some sections you’ll need to think about in more detail. On page 10, you have to write why you disagree with SSS’s determination. You could write something very short.
CDP
“The determination maker has underestimated my child’s needs and not considered all the evidence.”
ADP
“The determination maker has underestimated my needs and not considered all the evidence.”
However, what you write here is what the tribunal will read in advance. It’s a good idea to try and write something a bit more detailed, especially if you’re not going to attend the hearing.
Next steps
After you make your appeal, SSS sends it to the SCTS, and from this point on, any communication will be with them.
SSS then have 31 days to respond to your appeal. With their response, SSS will ask you if you want to attend a hearing for your appeal. It’s normally a good idea to attend a hearing, either in person or via phone. Attending the hearing means you can explain why you disagree with the decision.
In their response, SSS will explain why they made their determination and re-determination. Read this carefully. You may be able to spot mistakes that they’ve made or better understand why they made those decisions.
You have the opportunity to write a letter to the tribunal to explain why you still disagree with the determination. This is called a submission. In your submission, you can ask the tribunal to consider a specific point. They could consider how difficult it is for you or your child to hear in noisy environments. You can write about why you disagree with something SSS have written. You don’t have to write to the tribunal, but it can help.
Remember that you can still send in supporting evidence at this point in the process. Make sure you put the appeal reference number on anything you send and only send photocopies. Don’t send original documents as SSS won’t be able to send them back.
At the tribunal
If you’re attending the hearing, it should be held in the way you requested: in person or by telephone. The Judge will introduce everyone. The Judge and the other panel members will ask questions.
Tribunals are informal. They're there to:
- ask questions
- establish the facts
- make a determination on the balance of probabilities in accordance with the law. The balance of probabilities means whether something is more likely than not.
There are no rules about what you can and can’t say, and you don’t have to prove your case. If you don’t understand a question or can’t answer it, simply tell them this.
Remember, the panel are considering the circumstances when SSS made the determination. This could be some months ago.
The Judge should give you an opportunity to make points yourself, as well as answer their questions. If they don’t, you can ask to do this at the end. Focus on the reasons you appealed and why you think the determination was wrong.
After the tribunal
The tribunal will usually inform you of their decision a few days after the hearing. But in some cases, they may tell you on the day or soon after the hearing is over.
If you win at tribunal
If your appeal is successful, it normally takes a few weeks for the decision to be put into effect. It’s a good idea to send SSS a copy of the tribunal decision when you get it.
SSS might consider appealing against the decision, but this is extremely rare. You will know if this happens as they will ask for a statement of reasons for the tribunal decision. You will be sent one as well. Seek advice if this happens.
In this case, contact our Helpline.
If you lose at tribunal
If your appeal is unsuccessful, your options are limited. You could consider making a new claim for the benefit.
Re-claiming ADP as a deaf young person
If you're a deaf young person it may be worth claiming ADP again if:
- your needs have increased since the original claim
- you have better supporting evidence
Re-claiming CDP as a parent or carer
If you're a parent or carer of a deaf child, it may be worth claiming CDP again if:
- your child’s needs have increased since the original claim
- you have better supporting evidence
If you were awarded CDP or ADP, but you didn’t get as much as you expected, in most cases you should accept the decision. Your award may be increased when it’s next renewed. If you or your child’s needs have increased, you can ask for the claim to be looked at again. Seek advice before you do this because you could lose your current award.
You could challenge the decision. It’s important to remember that a tribunal decision is final. It can only be changed if the tribunal got the law wrong, made an irrational decision or made a serious procedural error. A tribunal decision cannot be challenged just because you disagree with its findings. It cannot be challenged even if another tribunal hearing all the same evidence might have made a different decision.
You can challenge a decision of the First-tier Tribunal. However, it’s very difficult to do without legal advice or support from someone who’s experienced in this kind of work. If you’ve been advised that you should appeal a tribunal decision, you should seek advice.
If you’re considering appealing a tribunal decision, we would suggest you ask for the Statement of Reasons. Then contact our Helpline who’ll be able to advise you further.
More information
Full references for this webpage are available by emailing
informationteam@ndcs.org.uk