Update - 25 September 2017 - on 4 August 2017 a three-judge panel of the Upper Tribunal decided that, where a claimant makes a mandatory reconsideration request at any time within 13 months of the original decision, s/he will, if dissatisfied, subsequently be entitled to appeal to a First-tier Tribunal. CPAG's press release and the judgment are available here. The DWP has recently confirmed that it will not be appealing against the Upper Tribunal judgment and has issued guidance on the judgment in DMG Memo 17/17 and ADM Memo 21/17.
SG v Secretary of State for Work and Pensions (Appeal CE/766/2016) and R (CJ) v Secretary of State for Work and Pensions (JR/3861/2016)
These two linked cases concern the Department for Work and Pensions’ (DWP) refusal to accept late mandatory reconsideration (‘MR’) requests, regardless of the claimant’s circumstances and reasons for lateness, thereby apparently leaving the claimant without a right of appeal to an independent tribunal.
The Welfare Reform Act 2012 introduced changes from October 2013 that added an additional, preliminary step to the appeal process in benefit decisions. (A similar requirement also exists in respect of tax credit appeals). The purported reason for this change to social security legislation was to enable disputes over benefit decisions to be resolved internally, as far as possible, without cases needing to be referred to the tribunals thereby reducing unnecessary cost, delay and stress.
However, the reality in practice is that a claimant has a short-time limit of one month for making an initial MR request and, while this can be extended up to 13 months where there are good reasons for lateness, there is a lack of transparency and consistency as to the circumstances in which late MR requests will be accepted. Furthermore, the result of a refusal to accept a late MR request is purportedly that the claimant loses their right to appeal the benefit decision to an independent tribunal and instead their only recourse is to judicial review which is a much more complicated process with cost implications. Despite the draconian effects of a refusal to accept a late MR request, such decisions are not being made by more senior caseworkers nor ones who have even partial independence nor any legal training.
The DWP has confirmed that there were 1,544,805 mandatory reconsideration requests between October 2013 and February 2017. However, it is unknown how many were refused on the grounds of lateness. No judicial review claims were commenced in the courts against any such refusals showing that judicial review is not an effective remedy.
In the two joined cases, CPAG argues that the lack of access to an independent tribunal in such circumstances is a breach of the claimants’ rights under Article 6 ECHR, i.e. the right of access to an independent and impartial tribunal in the determination of one’s civil rights.
On claiming employment and support allowance (ESA) in October 2014, SG, who suffers from severe anxiety and depression, was found not to have limited capability for work and was refused ESA. Unaware of her appeal rights, SG did not request a review of the decision. Instead she decided to apply for jobseeker’s allowance (JSA). It was only in August 2015, when SG sought advice from an advice agency that she became aware of her appeal rights against the ESA refusal and a late MR request was filed on her behalf. The SSWP refused this request in October 2015 on the grounds that there were no good reasons for lateness and that she had no right of appeal against the original decision the previous year.
CJ has learning difficulties, various physical disabilities and limited capacity for reading and writing. She applied for ESA and was refused in December 2015. It was only in May 2016, that she sought advice from a welfare benefits officer who put in a request for a mandatory reconsideration of the decision to refuse ESA. There were a number of good reasons why CJ was late in requesting a review, including the care for her elderly mother. In July 2016, her request for a mandatory reconsideration was refused on the grounds of lateness, despite a late MR request of a refusal of personal independence payment (PIP) made at the same time and giving the same reasons for lateness being considered substantively.
This matter was challenged by CPAG by way of both a statutory appeal and judicial review. The cases were heard before a three-judge panel in the Upper Tribunal on 22 May 2017. The judgment was handed down on 3 August 2017. The UT, chaired by Chamber President Mr Justice Charles, found the Secretary of State’s position unlawful. It would, he said, improperly make the Secretary of State ‘gatekeeper to the independent tribunal system’. The correct position, as declared by the UT, is that where a claimant makes a mandatory reconsideration request at any time within 13 months of the original decision, she will, if dissatisfied, subsequently be entitled to pursue her challenge to a tribunal.
In relation to late mandatory reconsideration in tax credits see Appeal rights and tax credits (Welfare Rights Bulletin 262, Feb 2018) which also contains a template pre-action judicial review letter.