Ask CPAG Online - How is your application decided?
Once your application for MR is received and accepted, there are no rules about how it must be processed and determined. Both DWP and HMRC issue detailed guidance to staff about how to process and determine applications, but not all of it is publically available (see Chapter 3 of the DMG and Chapter A3 of the ADM, and section TCM0014030 of the Tax Credits Manual).
- the process involves staff contacting claimants by telephone to explain the relevant decisions and ask for any further information or evidence;
- MR decisions must be notified in writing (you should receive two copies of a ‘mandatory reconsideration notice’).
A number of interrelated procedural issues can arise, which are addressed below.
There are no statutory time limits for completing a MR (although a tax credits MR must be carried out ‘as soon as is reasonably practicable’). You may be able to minimise delays by submitting information and evidence promptly or deciding not to submit further evidence. If there are lengthy delays in dealing with your application, you could:
- contact the DWP or HMRC to find out what is happening;
- make a formal complaint (DWP Complaints Procedure and HMRC complaints procedure)– and if necessary pursue it to the Independent Case Examiner or the Adjudicator (see Chapter 60 of the CPAG Handbook) - you could also ask your MP for help or complain to the Parliamentary and Health Service Ombudsman;
- as a last resort, seek specialist legal advice about the possibility of taking judicial review proceedings.
‘Initial’ revisions and explanations
Currently, when DWP receive a MR application, the case is initially looked at again to see if it can be changed before it is sent to a ‘Dispute Resolution Team’ for the MR to be carried out. This ‘initial’ revision may involve you being contacted by telephone by the DWP and in some cases receiving a written decision on whether the original decision has been revised. Unless the original decision has been changed wholly in your favour, you should make it clear that you want your MR application to proceed.
The legal status of this initial revision is unclear. Arguably, it unlawfully makes MR into a two stage process, although the DWP deny this and assert that it is part of the MR process and designed to correct decisions as quickly as possible. However, as the initial revision constitutes a ‘consideration’ of whether to revise a decision (see What does the law say?), this should trigger a right of appeal. This is likely to involve making detailed representations and seeking to get an appeal admitted without a MR notice – see Appealing after a Mandatory Reconsideration.
You should not be required to request a further MR if the initial review is unsuccessful and you should challenge any letter or telephone request to do so by asserting that you have already requested a MR. If the DWP do not respond, you may have to make a complaint or threaten judicial review.
There are also reports of claimants being told that they must request and receive an ‘explanation’ (or even two explanations) for a decision before they can request a MR. There is no legal basis for this requirement and both DWP and HMRC appear to have accepted this, although telephone explanations of a decision may form part of the MR process.
If a decision is partially revised in your favour, either after an ‘initial’ review or after a MR, you should not be required to request a further MR. If you are told by DWP or HMRC that you must request a further MR, you should assert that this is unlawful and that you now have the right to appeal to an independent tribunal because:
- there is no statutory power to revise or review a decision which has already been revised or reviewed;
- a revision has been ‘considered’ or a review ‘carried out’ (see What does the law say?).
If this is not accepted, you may need to make a complaint or threaten judicial review).
Guidance to DWP and HMRC staff indicate that the process of determining MR applications normally involves telephone calls to claimants to explain decisions and obtain further information and evidence.
You can expect to receive a call at the beginning and end of the process, and where applicable, further calls from a decision maker. You need to be aware that what you say can influence the outcome of the MR (and even in some cases result in your application being treated as withdrawn).
- You may be given an ‘explanation’ of the disputed decision and asked if you are happy with it. You need to make it clear that you wish to continue with your application unless and until the decision is fully changed in the way you seek.
- You may be asked for further information and evidence which could assist, prejudice, or delay the outcome of the MR.
Further information and evidence
One of the purposes of MR is to enable decisions to be corrected in the light of further information and evidence and you are likely to be asked for any further information or evidence when you are contacted by telephone.
You should bear in mind that any information you give may affect the outcome of the MR, so you should ensure, as far as possible, that it supports your case. If you have or can obtain further supporting evidence, such as a medical report, or a letter from a professional, this will increase the prospects of a successful outcome. It may also, however, delay the completion of the MR as it may l take time for you to get the evidence which will then need to be considered by a decision maker.
Disputed benefit is not payable during a MR, so you may be living on reduced or no benefit. In this case, it is important 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. If you are disputing an ESA decision that you do not have limited capability for work, you may be entitled to claim ESA pending an appeal which can be backdated to cover the MR period (see Benefit Pending a Mandatory Reconsideration). In these circumstances, it is in your interests to reach the appeal stage as quickly as possible to get basic ESA payments restored.
It is often difficult to balance maximising the chances of success by obtaining and submitting additional evidence and minimising delay by not doing so. If you can obtain and submit significant supporting evidence quickly, it will generally be in your interests to do so, but you should not delay applying for a MR while you are getting more evidence.
Getting a decision
You should receive two copies of a mandatory reconsideration notice at the end of the process. If you have been told that a decision has been made or is about to be made and there are delays in getting the notification, you may need to complain and/or seek specialist advice (see 'Time limits'). You may be able to lodge an appeal without a MR notice, but this can involve making lengthy representations (see Appealing after a Mandatory Reconsideration).