Welfare Benefits

What is Welfare Benefits law?

Osbornes Law are one of the few law firms to have a contract with the Legal Aid Agency in the area of Welfare Benefits law.

However, legal aid is only in scope for cases before the Upper Tribunal. This means that legal aid is not available for generic advice on welfare benefits issues, or for appeals of benefit decisions before the First Tier Tribunal.

Welfare Benefit Appeals

If you have received a negative decision in your first appeal, however, and wish to explore the possibility of an appeal to the Upper Tribunal we may be able to assist you with this under our Welfare Benefits contract.

We also continue to provide assistance in appeals before the First Tier Tribunal and general advice in respect of welfare benefits matters. If possible we will try to agree a fix fee for work done on your case. In rare cases we may be able to apply for exceptional funding from the Legal Aid Agency to cover work that is out of scope for legal aid (such as appeals before the First Tier Tribunal), but we cannot guarantee that we will be able to do  this in all cases.

There are also various situations in which there is no right of appeal in respect of a decision in relation to welfare benefits, or regarding a policy or rule implemented by a local authority or the Department of Work and Pensions.

In these cases the only way in which a decision can be challenged is by way of a claim for Judicial Review.

We have set out more detail on this in the FAQs section below. However, as Osbornes Law has a public law contract, as well as a Welfare Benefits contract, we are in a strong position to be able to assist clients by bringing Judicial Review claims in relation to welfare benefits issues in appropriate cases.

Osbornes Law has experience in dealing with issues involving all types of welfare benefits, including

• Universal Credit
• Housing Benefit
• Personal Independent Payments
• Disability Living Allowance
• Employment and Support Allowance
• Income Support
• Jobseekers Allowance
• Child Benefit
• Tax Credits
• Pension Credit.

What do I need to do?

In most cases if you disagree with a decision by a benefits agency, such as a local authority or the Department of Work and Pensions (“DWP”), you have one month in which to challenge the decision. The first stage is to ask the decision maker to reconsider their decision (in cases involving the DWP this is called the “mandatory reconsideration” stage, and in Housing Benefit cases it is called a “revision”).

If you remain dissatisfied after this stage you will need to make an appeal. In most cases the time limit for submitting an appeal is one month from the date of the mandatory reconsideration or revised decision.

You should keep a clear record of all correspondence and interaction with the body making decisions on your benefits. Ideally this should all be in writing. In relation to Universal Credit most interaction with the DWP will be through the online journal, which will provide a written record of what you and the DWP have said.

Frequently Asked Questions

When can I bring a claim for Judicial Review in relation to welfare benefit cases?

The following are examples of cases where a claim for Judicial Review is appropriate:

• Public law challenges. This is where a challenge is brought to legislation or a policy that is considered to be unlawful. Recent examples of this include challenges to the “bedroom tax” and the “benefit cap”.
• Decisions where there is no right of appeal to the First Tier Tribunal. These include:
  • A failure or refusal to carry out a mandatory reconsideration of a decision;
  • A decision to suspend (as opposed to terminate) a payment of benefit;
  • Whether or not to waive recovery of an overpayment;
  • A refusal to carry out an “any time” revision. In certain circumstances a benefit authority can consider revising a decision even where the normal time limit for an appeal has passed (13 months). If the benefit authority refuses to carry out an anytime revision then this can only be challenged by way of Judicial Review.

• Refusal of by the Upper Tribunal to grant permission to appeal from the First Tier Tribunal
• Interim decisions by a First Tier Tribunal judge. A Judicial Review to the Upper Tribunal can be brought against interim decisions of the First Tier Tribunal Judge regarding the case management of the appeal under the Tribunal’s procedure rules. There is no specific right of appeal to do this, so Judicial Review before the Upper Tribunal is the only option to effectively challenge an interim decision.

Are there any circumstances in which Judicial Review can be used if there is a right of appeal to the First Tier Tribunal?

Judicial Review is a remedy of last resort, which means that in most cases where there is an alternative route to challenge a decision, such as an appeal to the First Tier Tribunal, a claimant will be expected to pursue that route. However, in some situations it may be possible to bring a Judicial Review claim even where there is technically a right of appeal to a Tribunal.

This can happen where the alternative remedy is not effective, such as where the consequences of waiting for the appeal to be heard before the First Tribunal would be so serious that waiting for the hearing would deny the claimant any meaningful benefit of success at that hearing. An example of this could be where Housing Benefit has been refused and a client is facing a possession claim under mandatory rent arrears grounds., but by the time the Housing Benefit appeal is concluded it will be too late because a Court would have made a possession order. In this situation a claim for Judicial Review may be appropriate. As a result of welfare reforms and problems with the administration of benefits there can be situations in which individuals are left without any benefits and are at risk of destitution. In such cases sometimes Judicial Review will be the only effective remedy.

Can I challenge a decision of the First Tier Tribunal because I am unhappy with the result?

An appeal to the Upper Tribunal can only proceed on a point of law, not just because you are unhappy with the decision of the First Tier Tribunal. It will be necessary to demonstrate that there has been some failing by the First Tier Tribunal. Points of law can include a failure to take into account relevant evidence, reliance upon irrelevant considerations, a misunderstanding of legislation, and a failure to apply relevant binding case law.

Useful links

• Child Poverty Action Group  https://cpag.org.uk/
• Shelter https://www.shelter.org.uk/
• Disability Rights UK    https://www.disabilityrightsuk.org/
• Citizens Advice Bureau https://www.camdencabservice.org.uk/
•  Age UK https://www.ageuk.org.uk/
• Turn2 https://www.turn2us.org.uk/