MANDATORY RECONSIDERATION: Solving or creating problems?
February 2020 edition of CPAG's Early Warning System e-bulletin for England & Wales
CPAG wants to know how often MR goes smoothly for advisers, and when it has done, whether you had to do something extra to avoid the problems outlined below. Complete our short MR survey to tell us how well MR works for you.
Mandatory Reconsideration: what are the problems?
Below is an overview of the MR problems that advisers have told us about over the past few months.
CPAG already raised these issues about universal credit in our Computer says 'No!' report in July 2019. We need to keep hearing about your cases to identify, or keep the pressure on the DWP for, improvements. You can tell us about your cases by email email@example.com or submit an online form.
Failure to acknowledge or action MR request
UC and ESA
1. Claimants advised at the Jobcentre, over the phone and in the journal that an MR is not possible.
Examples include claimants seeking to challenge a work capability decision or a failure to include appropriate elements from the start of claim. One claimant was told that an MR was inappropriate because "the system is always right".
If you're not sure whether a decision can be challenged of appealed, contact CPAG for advice. Email firstname.lastname@example.org or call 020 7812 5231 between 10am-12pm or 2pm-4pm Monday-Friday.
2. MR requests submitted in the journal receiving no acknowledgement or response
3. Posting an MR request means waiting 5 weeks for the DWP to receive, scan, upload and allocate the letter to the appropriate decision maker.
4. Repeated MR requests apparently ignored until an official complaint is made
5. Claimants advised to pursue Real Time Information dispute instead of MR challenge
Examples include a discrepancy between earnings amount reported by the RTI system and amount actually received. Further examples concern the way earnings are counted in the assessment period in which they were received, rather than apportioned over the assessment periods in which they were earned.
Compel the DWP to promptly correct RTI errors by sending a judicial review pre-action protocol letter.
Difficulties receiving or accessing MR notices
6. Claimants waiting too long for their MR requests to be processed
Examples include people waiting as long as 14 months to receive the outcome of a sanctions challenge and 8 months for a MRN regarding a claim refused for failure to accept a claimant commitment.
The latest information we have on the DWP’s MR processing times is from an FOI response in February 2019, when the DWP stated “we expect most cases to be decided within 40 days”.
Next month, the High Court will be considering whether a 22 week wait for an MR request to be processed is a breach of the human right to a fair trial "within a reasonable time". You can read more about the case on the BBC website.
7. MR requests stalling following a claim closure
We are hearing that claim closures or subsequent new claims are halting the MR process for previously submitted requests.
8. Claimants cannot access MRN from a closed claim once a new claim has started
A claimant can view the journal in a closed claim (although they cannot take action) but only until they start a new claim, when a new journal will be created.
Until the DWP resolve this issue, safeguard your clients’ appeal rights by printing and/or saving details of refused or closed UC claims (screenshots of journal entries, copies of letters and statements) before assisting claimants to start a new claim (when the closed claim history will no longer be accessible).
Claimants may be able to proceed directly to appeal to Tribunal without an MRN. They would need to ask the Tribunal to waive the requirement for an MRN, provide evidence that they requested MR, evidence of any subsequent correspondence with the DWP and explain how an ongoing delay would affect their appeal prospects or cause significant hardship.
Other familiar issues
Advisers have also been telling us about the following related issues.
9. DWP failing to provide appeal bundles
Examples include the DWP failing to provide an appeal bundle in a UC matter for 6 months following a Tribunal direction to do so. The Tribunal cannot permit any further delay and will be obliged to decide the matter on papers provided by the claimant only.
In another case, the DWP took over a year to produce the appeal bundle.
10. Losing out on ESA pending appeal
We are still hearing that ESA claimants challenging a termination of their benefit are not being told about ESA pending appeal. They consequently claim universal credit and often remain worse off even when their appeal is successful.
11. Refusing to backdate when entitlement corrected
Examples include the DWP correcting entitlement from now on (presumably by inputting a change of circumstances) and refusing to correct entitlement from the start of the claim. Advisers have told us that claimants are getting a previously missing housing element included in their universal credit but it’s not being backdated, leaving the claimants with substantial arrears, deductions going forward as well as ongoing risk of homelessness.
Claimants in this situation may proceed to Tribunal if they received an MRN. Without an MRN, they would need to ask the Tribunal to waive the requirement for one, provide evidence that the DWP responded to the MR request (deciding to supersede instead of revise entitlement) and explain how their appeal prospects or circumstances may be affected by any ongoing delay.
12. Ineffective consent policy
Advisers are telling us that their most vulnerable claimants are obliged to chase up their MR requests themselves because the DWP is still refusing to acknowledge authorisation for an adviser to act on their behalf, even when explicit consent has been placed in the journal.
Although the issues with consent clearly need to be addressed, an effective work around is conferencing your client into your phone calls to the DWP.