Ros White considers CPAG’s recent test case success in the Upper Tribunal.
Since 2013, where a claimant wishes to challenge a refusal of benefit, there has been a requirement to apply for a revision (referred to as a ‘mandatory reconsideration’) before appealing to the First-tier Tribunal. Under the Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991 (‘the 1999 regulations’), a claimant is entitled to request a revision within a month of the decision on ‘any grounds’ and a late application for revision can be accepted by the DWP within 13 months of the decision.
The Upper Tribunal decision
In R (CJ) and SG v Secretary of State for Work and Pensions (ESA)  UKUT 324 (AAC), a three-judge panel of the Upper Tribunal considered whether the DWP was correct to say that there is no right of appeal to the First-tier Tribunal where a request for a revision is refused on the grounds of lateness, and that judicial review is an adequate route of challenge in those cases.
Noting that the DWP’s position meant that it had become, to all intents and purposes, the ‘gatekeeper to the independent tribunal system’, the Upper Tribunal said:
‘In our view, the intendedor unintended consequence of the Secretary of State’s stance is that it will result in a significant number of claimants who are entitled to benefits not being paid them because: (a) they miss the time limit for a mandatory reconsideration, and (b) either they do not judicially review thatdecisionortheirreviewfailsbecausethe decision is within the parameters of the test for an extension of time.’ (paragraph 80)
As a result, the Upper Tribunal concludes that judicial review is not an adequate remedy and holds that:
‘… a claimant, from whom the Secretary of State receives a revision application under regulation 3ZA (2) of the 1999 Regulations, and to whom the Secretary of State responds by stating that the application is late and does not meet the criteria for extending time under the 1999 Regulations, has a statutory right of appeal to the First- tier Tribunal against the decision of which revision had been sought.’ (paragraph 1)
Position for claimants following the judgment
The DWP has confirmed that it is not seeking leave to appeal against the Upper Tribunal decision and has issued guidance in DMG Memo 17/17 and ADM Memo 21/17. That guidance states that, where a claimant appeals to the First-tier Tribunal following the refusal to accept a late mandatory reconsideration request, the tribunal ‘will be able to consider the substance of the decision that the claimant applied to have revised and not just the question of lateness’.
However, it is clear from paragraph 1 of the Upper Tribunal judgment that a claimant whose application for revision has been rejected on the grounds of lateness has an absolute right of appeal against the decision s/he applied to have revised and that, as a result, a tribunal should not consider the question of lateness at all.
The guidance also states that a refusal to revise on an application made outside the 13-month limit will not attract a right of appeal. However, although the Upper Tribunal suggested that this may be the case, it explicitly refused to decide on the issue as ‘it did not arise on the facts of either of the cases before us and was not the subject of any detailed argument. So it is for another day.’ (paragraph 92)
The Upper Tribunal decision does not apply to tax credits. The relevant law is worded slightly differently, and it remains to be seen whether HM Revenue and Customs will change its current policy that there is no right of appeal following the refusal of a late mandatory reconsideration request.
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