Delay by the DWP in providing a universal credit mandatory reconsideration decision

You can use this template if all of the following apply:

• your client has requested a mandatory reconsideration and not received a response at all or not received a response within a reasonable time
• your client is experiencing hardship as a result of the delay
• your client has provided all the evidence that DWP has asked them for

When not to use

Do not use this template if:

• your client has received a mandatory reconsideration notice, the correct route is to appeal
• there has not been an unreasonable delay, you must need a quicker decision, not only want one
• the original decision letter says you cannot request a mandatory reconsideration or you have no right of appeal

The main legal arguments in this template are:

• Under R(C & W) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin), the Secretary of State for Work and Pensions is under a duty to consider all claims for benefit within a 'reasonable time'. What counts as a reasonable time depends on the circumstances, including the impact on the claimant and the complexity of the case.
• The duty to make a decision within a reasonable time applies equally to decisions to 'revise' under s.9 Social Security Act 1998 (SSA) as to decisions on claims under s.8 SSA.
• Comparison can be made with decisions by the Local Government Ombudsman on housing benefit, which found that three months was an unreasonable delay, and delay is unreasonable if it causes injustices such as the loss of the home.
• The government’s stated purpose for introducing the mandatory reconsideration process was "to deliver timely, proportionate and effective justice for claimants, make the process for disputing a decision fairer and more efficient". Therefore, unreasonable delay contravenes this stated purpose and is unlawful.
• Delay in carrying out mandatory reconsiderations of habitual residence test (HRT) decisions disproportionately affects non-UK nationals as they are more likely to receive negative HRT decisions in the first place. Therefore, unreasonable delay in considering a mandatory reconsideration request of an HRT decision amounts to unlawful discrimination contrary to Article 14 ECHR in conjunction with Article 1, Protocol 1.

Information about your client

• name
• address
• national insurance number (NINO)
• date of birth

Background facts

Such as:

• family situation
• nationality/immigration status
• housing details
• any health difficulties or disabilities your client has
• any capacity issues or vulnerability your client has
• what financial hardship your client is experiencing as a result of the subject matter of the mandatory reconsideration request
• any risk that your client will be unable to afford to pay for their housing, heating or food, any need to use food banks
• any detriment to your client's health and welfare or to any of their family members' health and welfare

Information about the decision

• the reason for your client's mandatory reconsideration request, including the relevant law
• the evidence your client has provided to the DWP to support their request and how DWP responded, including dates
• dates of all relevant contacts and decisions
• whether and when your client notified the DWP of their hardship, and how and when the DWP responded, including dates

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.

Mandatory reconsiderations: refusal and delay

Where the need to seek revision before appeal applies (not HB - see JR145: Local authority refusal to award housing benefit for mesne profits), there is a right of appeal against the decision to refuse to revise for official error (PH and SM v SSWP (DLA)(JSA) [2018] UKUT 404 (AAC)). In order to succeed in that appeal you need to show:

• that your application for revision (ie the application they have refused) specifically mentioned official error, and
• that the decision itself was made in consequence of official error

However, where your client has not been advised of their appeal rights, or has been told that they don't have a right of appeal, or your client is homeless or destitute, you may also consider sending a pre-action letter.

'Unreasonable' delay

When working out whether a delay is 'unreasonable', consider that:

"the average (median) waiting times for mandatory reconsiderations are 57 calendar days for PIP, 51 calendar days for universal credit, and 10 calendar days for employment and support allowance (ESA) work capability assessments."

Tom Pursglove House of Commons written answer 31/10/22

Right to reside

This letter will need editing to confirm your client has a qualifying right to reside, ie, if they are not British or Irish that they have either:

• EU Settled Status, or
• EU Pre-Settled Status and a qualifying Right to Reside under the EEA Regs, or
• applied to the EU Settlement Scheme and is awaiting a decision and has a qualifying Right to Reside under the EEA Regs, or
• leave to enter or remain in the UK other than pre-settled status or leave to enter as a holder of an EUSS Family Permit of Travel Permit, or
• non-EEA leave to remain