Ask CPAG Online - How should you pursue a mandatory reconsideration?
There is no right of appeal against an ESA entitlement decision unless the DWP has ‘considered on an application whether to revise the decision’. The DWP call this process of revision mandatory reconsideration (MR).
The following points are particularly relevant when pursuing a MR of an ESA decision:
- It is important to understand the different legal processes involved in getting an ESA decision changed. To take an example, if you are getting ESA and your condition worsens, you can write to the DWP to request a supersession to get into the ‘support group’, a mandatory reconsideration if the supersession is unsuccessful, and then appeal to an independent tribunal if the MR is unsuccessful.
- You should always apply for a MR in writing (or confirm a telephone application in writing) to the office which issued the disputed ESA decision, making it very clear at the top of your letter that you are applying for a MR. Keep a copy of the letter. Contact the DWP if you do not receive a response (preferably before the time limit for applying for a MR has expired), to check the application was received and is being dealt with.
- Try to ensure that your application is submitted within the one month time limit. If it is close to the end of the allowed period, consider making the application by telephone and following it up with a letter of confirmation. It may also be possible to find out the email address of the office and submit the application or confirmation by email.
- If the application is late, consider whether there are grounds for requesting a MR on the basis of ‘official error’, for which there is no time limit. Possible grounds would include if DWP had clear evidence of your LCW which they failed to take into account (note, however, that only clear and obvious errors to which you did not contribute are likely to be sustainable grounds).
- Otherwise, consider whether there are grounds for requesting an extension of the one month time limit (up to a maximum of 13 months). You must show that it was not practicable for your application to have been made in time because of ‘special circumstances’, which could include illness or disability, or wrong advice or ignorance about the time limits. The later your application is, the more compelling the reasons must be. Note that the DWP takes the view that there is no right of appeal against a refusal to extend the time limit.
- You can request a MR on any ground, but it is clearly necessary to establish that the disputed decision was wrong. The decision notice should include details of the decision and why it was made (including details of the relevant LCW descriptors and scores). If it does not, you can ask for a statement of written reasons, which extends the time limit for requesting a MR. You can also request a copy of the ESA85 medical report following your assessment with Maximus, which is normally used in determining WCA decisions.
- To dispute a LCW decision, you will need to establish that you score at least 15 points on the LCW descriptors, or should be treated as having as having LCW e.g. on the basis of a ‘substantial risk to health’. To dispute a decision that you do not have LCRWA, you must establish that a relevant descriptor applies, or that you should be treated as having LCRWA e.g. to avoid a substantial health risk.
- In all cases, new supportive medical evidence is likely to be the key to a successful application. Where you are disputing a decision that you do not have LCW because you failed to attend a Maximus medical, you must usually establish ‘good cause’ for the failure, backed by any new supporting evidence you have.
- The MR process is likely to include telephone calls from the DWP to ‘explain’ their decision and ask whether you have any further information or evidence you wish to submit. You need to be aware that your responses can influence the outcome of the MR (and even in some cases result in an application being treated as withdrawn).
- New supportive medical evidence is likely to maximise your prospects of a successful outcome. It may also, however, delay the completion of the MR if you first have to obtain the evidence which will then need to be considered by a DWP decision maker.
- You are not entitled to ESA pending a MR about whether you have LCW and if this leaves you in financial hardship, it is clearly in your interest to try to get the MR completed as quickly as possible, so that benefit can be restored or you can appeal to an independent tribunal (when ESA may become payable again). It can be difficult to balance maximising the chances of success by obtaining and submitting new evidence, and minimising delay by not doing so. If new and significant supporting evidence can be obtained quickly, it will generally be in your interests to do so, but you should not delay applying for a MR while getting more evidence.
- Sometimes the DWP carry out an ‘initial’ revision to see whether a decision can be changed before sending the MR to a ‘disputes resolution team. This may result in a partial revision (e.g. a decision that you have LCW but not LCWRA). There is no legal basis for requiring you to request a further MR following an initial or partial revision, or an ‘explanations’ and you should only withdraw an application if you are completely happy with the revised decision.
- There are often long delays in getting a MR decision. You should contact the DWP to try to find out what is happening. It may be necessary to make a formal complaint to the DWP and if necessary the Independent Case Examiner or the Ombudsman. You could also ask your MP for help. As a last resort, you should specialist advice about the possibility of threatening and pursuing judicial review proceedings. At the end of the MR process, you should receive two copies of a MR notice.