Challenging a disability benefit determination in Scotland
Social Security Scotland (SSS) use the word ‘determination’ to describe a benefit decision.
You should receive a determination letter from SSS about eight to 12 weeks after your application form has been received. The letter will let you know whether your CDP or ADP claim has been successful or not. The determination letter will also inform you of your right to challenge their determination by requesting a CDP or ADP re-determination. It’s very important to remember that you can’t appeal without having gone through the re-determination process.
If your application is successful, the letter will include which components you’ve been awarded, how much you’ll receive and the date of your first payment. CDP is awarded indefinitely (until they turn 16) but will have a review date indicated in the letter.
If you’re unhappy with the determination because your claim has been unsuccessful, you should challenge it by asking for a re-determination.
Not what I expected
If you’ve been awarded a lower rate than you expected, or than you were getting before, you need to consider if challenging the determination is the right thing to do. 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.
What is a re-determination?
If SSS don’t award you CDP or ADP, or you feel you’ve been awarded the wrong amount, because they’ve made an error or missed important evidence you submitted with your claim, you can ask them to look at your application again. This is called a re-determination.
You can ask for a re-determination by phone or by filling in and returning a CDP or ADP re-determination form within 42 days of the date on your determination letter. It’s much better to be on time with your request, but if you have a very good reason, you can request a re-determination up to 12 months after the determination. If you think you might miss the time limit, it’s a good idea to request a re-determination by phone.
The determination letter from SSS should explain its decision and detail the evidence used. In your request for a re-determination, you should 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 four to eight weeks. If SSS have taken longer than 56 days to complete a re-determination you can also ask for an appeal.
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 the decision to not change, increase or decrease the amount of CDP or ADP you’re getting. It should also respond to any of 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.
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 are the government body that organises the courts and tribunals in Scotland and is independent of SSS.
Around half of all appeals are successful, usually because the tribunal takes a different view of the evidence to SSS. New evidence can also be crucial in getting determinations changed, but don’t 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. The tribunal will decide whether to accept your late appeal.
How do I appeal?
You can appeal in two ways.
Social Security Scotland
PO Box 10309
Most of the questions on the appeal form are straightforward, but 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 like, “The determination maker has underestimated my child’s needs and not considered all the evidence.”
However, what you write here is what the tribunal will read in advance, so it’s a good idea to try and write something a bit more detailed, especially if you’re not going to attend the hearing.
What happens now?
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) as you can explain why you disagree with the decision.
In their response, SSS will explain why they made their first determination and their re-determination. Read this carefully as 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, for example, how difficult it is for you or your child to hear in noisy environments. Or you can write about why you disagree with something SSS have written. You don’t have to write to the tribunal, but it can sometimes 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.
What happens 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 and then they, and the other panel members, will ask questions.
Tribunals are informal and are there to ask questions, establish the facts and make a determination on the balance of probabilities (whether something is more likely than not), in accordance with the law. 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, which 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, such as if you disagree with a school report or something SSS wrote.
What happens 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, and you will be sent one as well. Seek advice if this happens. You can get in touch with 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. If your or your child’s needs have increased since the original claim or you have better supporting evidence, it’s worth claiming the benefit again.
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, but 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, so 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 can’t be challenged just because you disagree with its findings, or even because another tribunal hearing all the same evidence might have made a different decision.
If you do decide to challenge a decision of the First-tier Tribunal, 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 and then contact our Freephone Helpline who’ll be able to advise you further.