Social Security Experience Panels - re-determinations and appeals, fraud and special measures for COVID-19: main report

Re-determination and appeal processes

Participants were asked their views on the options available to a client once they have asked for a re-determination or an appeal.

The right to withdraw a re-determination

The re-determination process is designed to help resolve any incorrect decisions without having to go through an appeal. Once a client has asked for a re-determination Social Security Scotland is under a statutory duty to make a new determination. A client has no way of withdrawing that request. Social Security Scotland has to make a fresh determination, regardless of whether or not that client has changed their mind since asking.

Research participants were asked if a client should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision. Mixed views were highlighted by participants.

Circumstances and reasons to withdraw re-determination requests

A few participants who agreed with the proposal noted that one reason to withdraw a re-determination request could be not receiving sufficient advice, or not being sure of getting a positive outcome. Others mentioned that receiving external advice which suggests that the re-determination will not be successful would also be a reason for a client to withdraw a re-determination request.

"I think it's important for people to be able to withdraw their re-determination application, particularly if they haven't had advice." (Interview participant)

"If an award decision was received that the client was unhappy with and then they decided to go for a re-determination; but then they have further advice from a third party who actually advises them that the re-determination will be unsuccessful." (Interview participant)

Others noted that a reason for someone withdrawing a re-determination could be the concern that all or some of their current award would be lost.

"'Maybe I am better off just withdrawing and staying with what I got because they may take it all away' [...] I don't know how the process is going to be with [Adult Disability Payment (ADP)], but for a lot of people it is going to be [lurking] at the back of their mind, there is no fallback, there is no safe fallback if the person is re-assessing and they can actually come away with nothing […] The only scenario I can think of is when someone is worried that they might lose everything through re-determination and there is too much at risk, that's the only scenario." (Focus group participant)

A few participants mentioned that an improvement in the client's health condition or circumstances could be a reason for withdrawing a re-determination request. One participant highlighted that another reason could be the client moving out of Scotland.

"…it could be that the person who suffers from a condition may have improved due to advances in medical technology so, that may have stopped them from being in a position [where] they need to utilise the [social security] service or it may be that they may have moved out of Scotland." (Interview participant)

Most participants highlighted that clients may prefer to withdraw a re-determination request as the process is felt to be too overwhelming, stressful, difficult and/or intimidating. However, a few noted that withdrawing because of those feelings would not necessarily imply that they are not legally entitled to get a higher award.

"It's stressful. For people with mental health needs, they might decide it's too much." (Focus group participant)

"I know some of my friends find it really stressful and wish they could stop the [re-determination] process. I think if they went for that process and their mental health deteriorated, they should be able to stop it if they wanted to." (Interview participant)

Similarly, some participants mentioned that mental health conditions can be exacerbated by re-determination and appeal processes, which could lead to clients withdrawing. A few noted that this is particularly the case when clients do not have professional advice and support.

"A charity helped me to do the re-determination and appeal and I wouldn't like to think of someone being pressured […] When people have poor mental health, it's really hard. […] There would need to be someone empathetic, to speak to the person and find out [why they want to give up]. People will give up because they can't face it. A friend's daughter has multiple sclerosis and had her benefit refused and hasn't appealed, it's awful. A lot of people would withdraw cause they're not coping." (Interview participant)

A few participants were concerned that a client may withdraw a request due to being under pressure from DWP or Social Security Scotland staff to make that decision. This view was based on those participants reporting past examples of when DWP staff had pressured clients to withdraw their appeal.

"What used to happen in DWP is they put pressure on people to withdraw, so that is the issue that concerns me. I don't agree with the whole re-determination thing, but if they do exist there should be a right to withdraw. My concern would be Social Security Scotland putting pressure on clients to withdraw, and ringing up people and putting on pressure to withdraw. (Interview participant)

"I'm a member of various groups where people have been put under pressure from DWP where they say there's no point in appealing, as long as there's no pressure, I think it's fine…" (Interview participant)

Some participants could not think of circumstances in which a client would like to withdraw once they had decided to start a re-determination process.

"I am thinking you have actually setting your request for re-determination so you have gone through that thinking, I mean it is a lot of heavy thinking and that emotional turmoil in the whole process at that point I would have thought the vast majority of people are committed. At that point, I just can't think a scenario after all that [to] think 'oh no, I need to withdraw'." (Focus group participant)

Suggestions and considerations

Participants gave various suggestions for factors to be taken into consideration regarding the proposal of a client being able to withdraw a re-determination.

The impact on the mental health of the client

As mentioned above, many participants noted that clients may withdraw a re-determination due to being unable to cope with the process due to stress, frustration and/or mental health conditions. As a result, some highlighted that it is important to identify the reasons for a client withdrawing a request.

"Understanding why they are withdrawing, it is important. People may withdraw due to anxiety, but they are entitled to [the benefit]. It's stressful. Yes, clients should have the opportunity to withdraw. I have concerns that people will withdraw because it's too stressful but they may be legally entitled to it. I know how stressful the process is with DWP. I was awarded the highest level of [Personal Independence Payment (PIP)], but my [relative] who is in worse health than me was awarded less than me. We have to go through a re-determination and it's too stressful for her to do without help from me. If people do withdraw, there should be an option for them to say why. If the reason is 'it's too stressful' then there should be an option to continue with assistance." (Interview participant)

Withdrawing a re-determination request as a choice

Many participants indicated that clients should have the option to withdraw a re-determination as a choice or right. A few suggested that the proposal of withdrawing a re-determination should be framed in a way that avoids pressuring the client to do so.

"…maybe someone's circumstance can change or they might not feel that they've got the strength to go through with it at that particular time, and I don't think anything should be held against them. If payment is involved then that has to be adjusted or stopped, but yeah, I think that's all very fair. As long as it's coming from [the clients] directly. As long as it's their decision entirely and there's not been any pressure put on them." (Interview participant)

Clear guidance

Some participants said that a client should be provided with a clear explanation of the process for withdrawing a re-determination alongside all the necessary information they need to make an informed decision. This guidance should also explain the consequences of withdrawing a request and what the client may lose as a result (e.g. Short Term Assistance).

"But the important thing is people communicate and try to help the person that's pulling out, and make it very clear that they're not trying to be difficult and apply for money you're not entitled to. People have to be given the choice and make it in a way that they understand, because I feel that sometimes it's alright getting a document sent to you, but sometimes people don't have support – even verbally over the phone so that someone understands what their choices are. Just give them advice, let them decide but give them the information that would help them make a decision. There's no wrong answer." (Interview participant)

Advice and support service

Related to the above, a few participants noted that clients should be provided with support and advice about what the best options are for them. This support should prevent the client losing what they may be legally entitled to, and/or avoid the client withdrawing a re-determination request because they feel under pressure to do so.

"Everyone who asks for a withdrawal should be given support and advice. CAB is overwhelmed so I feel there should be some form of advisers, independent of the Scottish Government, who can take on advocacy and support for people undergoing re-determinations and appeals." (Interview participant)

Timescales

One participant mentioned that there should be timescales for when the client can withdraw a re-determination request and those timescales should be clearly communicated.

"There should be a timescale, or there should be a time window where you can withdraw." (Interview participant)

Making a new determination after an appeal is lodged

If Social Security Scotland has completed a re-determination and the client still disagrees with its decision they can appeal. Clients can also appeal if Social Security Scotland fails to make a re-determination on time. Appeals are made to the Social Security Chamber of the First-tier Tribunal for Scotland, which was created in November 2018. The tribunal is run by the Scottish Courts and Tribunals Service, which is independent of the Scottish Government.

Currently, once a client has appealed a benefit decision, Social Security Scotland cannot make a new determination even if it is established that the client's award of assistance is wrong. Social Security Scotland would like to introduce a way of making a new determination at this stage so that errors can be rectified more quickly. This would mean that a client would be offered a new determination without needing the appeal to continue through to a tribunal. Social Security Scotland is also considering whether the option to stop an appeal should only be available if a client is being given everything that they could get from the tribunal. Research participants were asked their views on whether, if a client is offered a new determination, the appeal should end as a consequence. Most participants agreed with the proposal.

Positive impacts of the proposal

Some participants thought that stopping an appeal as a result of a new determination being offered is a reasonable approach, as it will avoid people going through an unnecessary process if the involved parties all agree with the new outcome of the award. It would also save them time.

"Its common sense. What is the point in wasting everyone's time and money?" (Interview participant)

Many participants highlighted that not going through the appeal process would avoid the high levels of stress, worry, anxiety and/or stigma that participants mentioned they had experienced when going through appeals processes in the past.

"A huge positive would be that you wouldn't have to attend a tribunal and be put through the process […] being in court having to explain my health to three strangers, in my opinion was degrading. It made me feel a lesser person." (Focus group participant)

"It takes stress off people. The tribunal is a really stressful process, it's a lot of pressure, it can cause suicide. Waiting for the tribunal causes anxiety and some people can't take it." (Interview participant)

Many also noted that not going through the appeal process would provide financial savings to the government, tribunals service, and advocacy organisations.

"I dread to think what my appeal costed, a huge folder of paper, the judge and the doctor read it all, not to mention the folk that work in the DWP and the chap from the charity - and it cost me a huge amount of stress. The mental cost plus the financial cost to government and charity must have been enormous." (Interview participant)

A few highlighted that receiving a new determination would involve shorter timescales for getting the award as opposed to the lengthy timescales involved when going through the appeal process and a tribunal.

"If a person gets a new decision, they should be given opportunity to withdraw [their] appeal. This means their payment will go ahead quicker and they will not be dealing with the stress and length of time waiting for a tribunal." (Interview participant)

Many participants mentioned that they would have positive feelings such as joy, relief and trust in the system if receiving a new determination at this stage. Those positive views were also highlighted in relation to avoiding the appeal process.

"If my appeal was ended and I got a new re-determination I would have been pleased because mistakes can be made and appeals can be scary." (Interview participant)

Participants also noted that receiving an apology and acknowledgement of the error by Social Security Scotland would reassure them that the Scottish Government is delivering an improved system – particularly when comparing this new approach with those used by the DWP.

"…for a government body to be honest, that would be a huge thing; because dealing with DWP you know the lies that are told. For a government body to hold its hands up and say we recognise there was a mistake, that would be really positive." (Focus group participant)

However, a few participants noted that they would still feel unsure and suspicious about being offered a new determination at this stage due to previous negative experiences with DWP.

"My main concern would be that they would try and fob me off at a lower level [of the award]." (Interview participant)

Being offered the highest level of the award and the right of continuing an appeal

Participants were asked if they agreed or disagreed that a new award decision should only be offered at this stage if it gives the client everything they could get from the tribunal (i.e. top level awards for both elements of their benefits). Most participants agreed with this proposal and – as above – they mentioned that it would save costs and time alongside reducing worry and stress for the client.

However, participants also highlighted mixed views on some aspects of the proposal. Many thought that the appeal process through the tribunal should only be stopped if the client receives the highest level of the award for both components of their award (i.e. daily living and mobility).

"It should only be the case if it was for the highest award for both elements." (Interview participant)

Some participants said the duration of the award offered could influence the decision of clients to continue with the appeal process. Related to this, a few felt that the tribunal should only be stopped if the top-level awards were granted for life/an indefinite duration, due to health conditions that are not going to improve.

"There's the time limit on it, you might not get the time that you wanted on it, because some of them can be quite short. Me and my husband got timescales put on things where we have lifelong conditions and I think that might be something that would make people want to go ahead with an appeal, if they have a short time on the award." (Interview participant)

"Why should we have to keep reapplying when our conditions are only going to get worse? If the award is top level for both elements and for life then the tribunal should be cancelled. But that's the only circumstance." (Interview participant)

Many participants stated that the choice to appeal should remain after a client receives information about their new award. A few said that regardless of the award being granted the decision of whether to continue or stop an appeal should remain with the client.

"Social Security Scotland should not be able to stop the appeals, even if the client gets max benefits. Only the clients should have the right to stop the appeals […] Under all circumstances, I oppose Social Security Scotland being able to stop an appeal. The right of appeal is that of the claimant and it should be for the client to decide to stop the appeal, not the Agency." (Interview participant)

Some participants interpreted the meaning of 'maximum award' differently, which led to different perspectives regarding consent. They noted that clients have different disabilities and illnesses so the award offered and its elements are variable. Thus, decisions around the new determination and appeal process should be the option of the client.

"…everyone is different, illnesses cause different symptoms. It depends on the client in terms of elements. Decisions should depend on the client." (Interview participant)

Comprehensive information

Some participants highlighted that the client should be provided with comprehensive and clear information about the new award, the appeal process, and the future choices that they have. Furthermore, a few participants highlighted that Social Security Scotland and/or the tribunal service should also have all the necessary information to avoid making an incorrect decision.

"…what I would say is that so long as the client gets everything they can and nothing is missed out, because what we find is that if even a bit of information is missed out that could have an impact on what the appeal decision would be. So that's very important, they've got to get all information so that they can make a proper informed decision." (Interview participant)

Many participants made suggestions about the kind of information that clients should be provided with when being offered a new determination. Some highlighted that being given information on how the decision has been reached would improve transparency.

"It would be good to see the history showing the trail of what has happened. Don't see any issue with transparency in the system, if they're not providing transparency they are depriving you of a potential resource you could use in the future." (Focus group participant)

Many participants said that they would want an explanation which provides the reasons for offering the new award and identifies any mistakes that were made.

"I would like to know what mistake has been made and at what stage." (Interview participant)

"I would want to know what information had changed their minds. If they got new evidence what was it. That will help me ensure that next time I have to apply I can provide all the necessary information. I have been through this with DWP and they got it wrong but they didn't want to back down and say they had got it wrong. So, it is down to interpretation and lack of understanding of disabilities. DWP think we are all scam artists trying to get money for nothing." (Interview participant)

Others mentioned that they would like to know what evidence has been considered and the duration of the new award.

"I would want to know what evidence the change was based on – did my doctor send them something new, for example. If one person looked at it and said stick with original and then a few months down the line the decision is changed I would want to know why [...] I would want to know how long I'm going to get my award for so I can start preparing myself for a review." (Interview participant)

Clear communication and guidance

Many participants highlighted that the client should be provided with comprehensive and clear information about the new award offered, appeals process and future choices that they have. A few mentioned that communication with the client should also offer advice and support if required. Others stated that this support should be provided more broadly for all processes involving re-determinations and appeals.

"…it's all about communication, it's all about talking to the client or the person; what you're talking about and explaining to them what it's all about so that they understand, and make it a clear picture so that they know if they want to go and do a further appeal and they know exactly where they stand, because if something happens they can go back and have the evidence there. It's all about how people are treated and how they speak to them, and whether it's face to face or over the phone, it's important that they're not there to catch you out like some people would do. They may want to appeal, it's putting across to make it so they know they have the right to appeal […] it's all to do with communication and speaking about it." (Interview participant)

Relatedly, a few participants suggested that clients should have a 'cooling off' period after receiving a new award offer so that they have enough time to get support and consider whether to accept this offer or not.

"Cooling off periods is a good thing for [getting] advice and support, if there was some other area that you think could be useful, maybe a named person or a named department that they could get in touch with." (Interview participant)

Concerning channels of communication, many participants suggested that Social Security Scotland should have a diverse range of ways to communicate with clients and inform them of the new award. Participants felt that having a range of methods available would address the different communication needs of each client.

"It would be good to know how the decision has been reached. They should receive this information in a way that suits the individual; [for instance] by email, letter or a phone call." (Interview participant)

Additionally, a few participants suggested that the wording of the information provided should be in plain English, using friendly and simplified language.

"Speak to a person in their terms, no big words […] Word things in a different way. Wording in a way that people with communication difficulties can understand. Some people can't read and write, so might sign something without knowing what they are signing." (Interview participant)

Some participants noted that it is important to have all information regarding the new determination provided in letters or emails so that clients can keep a hard copy, in case they are needed as evidence for accessing other services (e.g. blue badge) or for other benefit decisions in the future.

"A letter might give you more information and you've got proof, I would prefer a letter or email something I could physically keep in case I needed it in the future." (Interview participant)

Reasons for wanting the appeal process to continue

Many participants noted some situations in which a client may want to continue with the appeal process even if offered a new determination. A few participants noted that a client may want to go to court to highlight what has happened to their claim and to show the evidence/proof which was not considered from the start of the application.

"…some people might want to have their day in court and highlight what's happened…" (Interview participant)

Some participants mentioned that a client may want the appeal process to continue if one of the two components of the award has not been upgraded with the new determination. Others said that a client may decide the appeal process should continue if they do not agree with the duration of the new award they are offered. This can particularly be the case for clients with lifelong conditions.

"If Social Security Scotland upgrade one element but not the other element; I think the tribunal should continue. I have been awarded PIP for life, but my sister also has lifelong conditions and only has her award until next year. We have to go through the whole process again next year to go through the application. I understand Social Security Scotland is going to make everyone re-apply every 5 years. Why should we have to keep re-applying when our conditions are only going to get worse?" (Interview participant)

The new determination and giving consent

Participants were asked if they agree or disagree that the client should be asked for their consent before a new determination is made. Mixed views were given.

Many participants who agreed that the client should be asked for their consent before a new determination is made either thought it would be appropriate or felt it would be an important legal element that should be part of the process.

"From a legal point of view I would like to have consent be part of the process." (Focus group participant)

A few participants said that the client should be asked for consent if the award is time limited and there are discrepancies about the length of the award. Others noted that consent should be a requirement as the client may decide to go through a tribunal regardless of being offered a new award.

"You might still need consent depending on how long the award is going to be for. If the appeals process would give a longer award then it may be better going through the appeal, so then maybe consent should be given. If there was to be a discrepancy between the length of the award then consent should be given." (Interview participant)

Length of time would be another factor. If it is a time limited higher award then their consent should be asked for. (Interview participant)

One participant noted that asking for the client's consent shows that the system cares about the client, and that this would represent a change from the negative narrative perceived when communicating with DWP.

"Yes, consent would be a good thing. At any stage if anything was changing I think the client would, it would be better to maybe ask for a client's consent. It shows you're caring about what the client's problem is […] I suppose if I was asked for my consent it would show that there is some sort of care or that you actually care what I think about things, you actually want my consent about what is happening, rather than the DWP attitude where it's just 'like it or lump it' kind of thing, which I really detest. It's much better to be asked than just to be told that this is what we do, just accept it." (Interview participant)

Some participants who disagreed or were not sure that the client should be asked for their consent mentioned that as long as the client has been offered the highest award, the award has been comprehensively explained, and the client knows the next steps; the new determination should be automatic. Furthermore, one participant noted that asking for consent may also create unnecessary stress and/or confusion on the client.

"If it goes entirely in your favour, there would be no point." (Focus group participant)

"Disagree, because giving information every time is confusing." (Interview participant)

When asked how the consent should be given, participants suggested various channels of communication such as phone, email, text, and in person meetings. Some participants mentioned that there should be different formats available depending on the needs of the client. A few participants also highlighted the need to have the consent signed so it is formally recorded.

"Something again that shows, that can be used as evidence if needed, a form sent by email that has to be signed and sent back or something similar. You need to have a record of all these things. I've kept everything just in case and it is handy to do that just in case." (Interview participant)

"Consent should ALWAYS be asked for and ALWAYS be written and signed as emails and verbal consent can go missing. If consent has to be renewed again it should be written signed consent." (Interview participant)

The right to challenge the new determination

Participants were asked their thoughts about the right to challenge decisions in these circumstances. They gave mixed views on the preferences that the client may have in terms of getting a re-determination only, going directly to an appeal or using both mechanisms to challenge decisions. Regardless of the client's preferences, most participants highlighted that the choice to challenge a decision made by Social Security Scotland should be the right of the client.

"People should have a choice if they want to go straight to appeal. If people thought re-determinations were fair they would be more likely to go for a re-determination instead of straight to appeal." (Interview participant)

"The DWP and Social Security Scotland make the decision so we should be able to challenge the decision." (Interview participant)

Some participants suggested that a re-determination should be the first option and if the client still disagrees they could then opt for going to an appeal. A few participants also mentioned that if the re-determination involves an objective 'fresh look' of the decision that should happen before the choice of an appeal.

"Re-determination first, as it says that you disagree with a decision, please inform me why this decision was made, and if you still disagree you can then go to appeal." (Focus group participant)

"I think you need the re-determination process there, but I think that it should go to a different person or even a different person in a different office so colleagues can't discuss the matter. It should be there as a stepping stone, going straight to tribunal could turn people off." (interview participant)

Other participants highlighted that the choice of an appeal should be the last resource as it is a more daunting experience.

"I think appealing is quite daunting, I still think the re-determination thing would be quicker […] if there's anything they want to ask you, you should be told that they will phone and ask you, personally if it was me – it could save a lot of waiting in the long run. I would prefer the re-determination first." (interview participant)

A few participants highlighted that there is a legal obligation to provide the option to challenge the new determination. One participant noted that if clients were not provided with options to challenge a decision, it could be perceived as Social Security Scotland trying to avoid a legal dispute.

"Could be seen as a way for Social Security Scotland to avoid a legal challenge, so that could be another issue." (Focus group participant)

"Re-determination first, then appeal. You need to have these processes when dealing with taxpayers' money and for legal reasons. These processes must be evidence based. (Interview participant)