Ask CPAG Online - On what grounds can you appeal?
You can appeal on any grounds, but you need to try to establish that:
- the relevant decision was wrong; and
- you are entitled to the disputed benefit in accordance with the law and any relevant case law.
As well as presenting the facts of your case, you should refer to the relevant law and submit any supporting evidence from third parties. In ESA and disability benefit appeals, supportive medical reports are often decisive.
Your grounds and evidence may be the same as you used in your MR application, but you are entitled to rely on additional grounds and evidence. You should also be ready to address the arguments and facts used by the decision maker to refuse your MR application, as set out in the MR notice.
Your appeal is against the original decision and not the MR decision. You must establish that the decision was wrong on the date it was made in accordance with your circumstances at the time. The tribunal cannot take into account any subsequent changes in your circumstances.
Can you appeal if your MR was refused because it was late?
If your application for a MR is refused on the grounds that it was made outside the time limit and DWP or HMRC refuse to extend the time limit, they may say you have no right of appeal because they have not carried out a MR.
It is arguable, however, that this is wrong because either DWP has ‘considered’ the application or HMRC has carried out a review (see Pursuing a Mandatory Reconsideration), albeit for the restricted purpose of deciding whether to extend the time limit. There is a further difficulty with tax credits cases, in that you must have been given notice of the conclusion of the review for you to have a right of appeal.
It is also arguable that the absence of appeal rights is incompatible with Article 6 of the European Convention on Human Rights. If you do submit an appeal, it is for HMCTS to decide whether it has jurisdiction to admit it. The first problem you are likely to encounter, however, is that you will not have a MR notice. If the appeal is rejected, your only legal remedy would be judicial review.