Ask CPAG Online - Can you appeal without a MR notice?

The appeal forms SSCS1 and SSCS5 require you to attach a copy of your ‘mandatory reconsideration notice’ and state that ‘If you do not do so, we will be unable to register your appeal until this is provided’.

The tribunal procedure rules state that you must send a copy of the MR notice with your appeal.1 This requirement can be ‘waived’ if it is just to do so, but your appeal can also be ‘struck out’ if you fail to comply with a direction to submit a copy of the MR notice.2 These powers are delegated to clerks in accordance with the tribunal procedure rules and a Practice Statement issued by the Senior President of Tribunals.

If you fail to send a copy of your MR notice with your appeal, a clerk will return the appeal to you with a letter stating that is ‘non- compliant’ and allowing you 21 days to rectify this by resubmitting it with the MR notice. If you do not respond, you will receive a further letter stating the appeal will be ‘struck out’ if you do not respond within 14 days. If an appeal is struck out, you can ask for it to be reinstated within one month (the time limit can be extended). Although these powers can be exercised by a clerk, you have the right to ask a tribunal judge to reconsider any decision made by a clerk within 14 days of the date the decision was issued to you (the time limit can be extended).3

In fact, there is no reference to a MR notice (or MR) in the decision making rules (see Pursuing a Mandatory Reconsideration’), which only refer to ‘revision’ and ‘review’. In practice, however, decision makers should issue you with two copies of a ‘mandatory reconsideration notice’, one of which you should send with your appeal.

In certain circumstances, you may have difficulties obtaining a MR notice and may need to argue that you should be allowed to appeal without one. These are discussed below.

Delays in the issue of a MR notice

If you have been told that a decision on your MR application has been made, but there are delays in issuing a MR notice, you can complain (see What are the time limits?). You could also appeal sending a covering letter with your appeal form explaining why you have not enclosed the MR notice. You will need to give details of your MR application so you should send any copies of relevant correspondence you have.

You should argue that you have a legal right to appeal once the DWP has considered your application or HMRC has carried out a review, regardless of whether you have been issued with a MR notice (see What does the law say?). You should ask for the requirement to submit a MR notice to be waived under the tribunal procedure rules. If your appeal is returned as ‘non-compliant’, you can ask for a tribunal judge to reconsider the decision.

Initial and partial reconsiderations

If the DWP has carried out an ‘initial’ or ‘partial’ reconsideration and not issued a MR notice, you arguably have the right to appeal on the basis that your application has been considered (see On what grounds can you appeal?). You would need to appeal with a covering letter, following the same procedure as above.

Refusals of late applications for MR

See On what grounds can you appeal for possible arguments that you have a right of appeal. As well as setting out your case in a covering letter with your appeal form, you could request that the requirement to submit a MR notice is waived.