Mandatory reconsideration: another fine mess
Simon Osborne describes the latest mandatory reconsideration problems and solutions.
Since October 2013, it has been a requirement to have a decision on a DWP-administered benefit revised before appeal rights arise – a provision widely referred to as ‘mandatory reconsideration’ (MR). A very similar provision (requiring a ‘review’ rather than a revision before appeal) has applied to tax credits and HMRCadministered benefits since April 2014.1
Many advisers and other advocates for claimants regarded the introduction of MR with suspicion. In contrast to the official view of the MR process as a quick way of resolving disputes with a need for appeal, it was widely viewed by advisers as an unnecessary extra stage in the process of challenging a decision, which would have the effect of discouraging claimants from appealing. Indeed, appeal numbers have declined dramatically.
In Bulletin 241, p4, we described some early problems with MR. Since then, more practical details have emerged2 revealing even greater problems with the practical application of the MR process. The effect has been to increase concern that the process is much more a barrier to the exercise of legitimate appeal rights than a useful way of resolving disputes without a tribunal hearing.
Welfare rights advisers are reporting widespread problems with the practical application of MR. So far most reports concern the DWP operation of the process, with an associated problem concerning clerks at HM Courts and Tribunals Service (HMCTS). The main problems include the following.
- Claimants who have asked for a decision to be looked at again are being told that they have not requested an MR, as they have not specifically asked for a ‘mandatory reconsideration’.
- Claimants requesting an MR are being told it must be in writing, or that a late request (ie, outside the standard one month) for MR cannot be accepted.
- Claimants are being contacted (often by telephone) to be told that they must request an explanation of a decision before they can have an MR.
- Claimants are being contacted (often by telephone) to be told that the initial explanation or response to the MR request is that the decision will not be changed, and the claimant must request an MR again before it is formally passed for a decision to a ‘disputes resolution team’. This arises from the DWP employing a two-stage approach to the MR process, whereby the revision is initially looked at by the team that issued the decision to see if it can ‘review’ it, a verbal explanation provided, and only if the claimant insists on continuing is the dispute passed to a disputes resolution team.3
- Claimants (often in the course of a verbal explanation of the decision) are being discouraged from seeking to continue with the challenge or to appeal – eg, by insistence that the decision is correct and will not be changed.
- Decisions issued following revision are not being labelled ‘mandatory reconsideration notice’ (MRN), with HMCTS clerks subsequently telling claimants that without an MRN the appeal will be struck out.
Solutions: what the law says
The law is unsatisfactorily drafted. In particular, it does not actually define the terms ‘mandatory reconsideration’ or ‘mandatory reconsideration notice’, and indeed the words ‘mandatory reconsideration’ only specifically appear in the law about tribunal procedures. So these terms are at best convenient shorthand and at worst confusing legalese; however, they are in widespread use.
That said, even in its somewhat clumsy current form the law simply does not support the application of any of the problem-causing approaches identified above. So pointing out what the law does or does not require is almost always relevant in getting a better, correct approach applied.
The basic MR rule (for DWP benefits) is at regulation 3ZA of the Social Security (Decisions and Appeals) Regulations 1999 No.991. In particular, sub-paragraph (2) requires:
‘In a case to which this regulation applies, a person has the right of appeal…in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision…’
In short, a ‘mandatory reconsideration’ is actually a revision. A revision has to be accepted and ‘considered’ before the right of appeal arises. Although there is no bar to the DWP considering the revision using a two-stage process, there is no requirement for any sort of initial ‘review’ stage or ‘explanation’ to have been given before a revision can be requested or considered. Neither is there a bar to requesting a revision verbally (although in prac tice it remains advisable to do so in writing). There is also no requirement specifically to request a ‘revision’, and no requirement specifically to ask for a ‘mandatory reconsideration’.
The clearest sense in which a revision has been considered is where there is a decision on a revision (the official view is that if there is a simple refusal to even look at a revision request – eg, because it is completely out of time – a revision has not been ‘considered’). It does not matter if the outcome is that the original decision will not be changed, and there is no requirement for there to be any further revision before the appeal right arises.
If the DWP contacts a claimant to say that it has looked at the decision again and does not propose to change it, that could mean that a revision has been considered even where it has not yet been passed to the disputes resolution team. However, given that the HMCTS rules require a ‘notice’ of the revision (see below), in practice it is advisable to insist that the DWP either issues a decision at that point, or pass it immediately to the disputes resolution team.
Unsurprisingly, attempts to dissuade claimants from persisting with their dispute are not specifically referred to one way or the other. But any such activity is a clear attempt to interfere with the exercise of the claimant’s right to appeal and, as such in an individual case, could well be a breach of the right to a fair trial at Article 6 of the European Convention on Human Rights.
The rules concerned are those that deal with procedures before the First-tier Tribunal, namely The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 (the ‘Tribunal Procedure’ rules).
Clerks to the tribunal are able to make decisions about some rules, including in particular that at rule 22(4)(a), which requires that for an appeal to be properly made, the appellant must provide with the notice of the appeal a copy of:
‘(i) the notice of the result of the mandatory reconsideration…’
Failure to do so could, following the appropriate notice, result in the clerk striking out the appeal. The reference to the ‘notice of the result of the MR’ is the rule that requires, in effect, an MRN to accompany the appeal. But there is no authority for requiring, as some clerks have reportedly done, that there is a document with the actual words ‘mandatory reconsideration notice’ on it. Rather, there must simply be a document communicating the outcome of the MR (ie, the revision decision) which can rightly be treated as a ‘notice’. Claimants could point to this, and remind the clerk that the DWP makes no requirement to issue a document that actually uses those words.
Additionally, it could be pointed out that, under rule 4(3), a claimant has a right to ask (within 14 days) that an insistence by the clerk that the appeal is not validly made or that another document must be produced is considered afresh by a judge.
Solutions: in practice
In correspondence, the DWP has given ‘clear instructions across DWP operations’ about several of the problems described above, in the form of a ‘Gatekeeper memo 03.15.38’.4
Those instructions, which should be cited to the DWP if necessary, include the following:
- ‘there is widespread misunderstanding of the Dispute process’;
- ‘“Mandatory reconsideration” is DWP terminology. It is not necessary for the customer to use those exact words in order to raise a dispute’;
- ‘It was never the intention that full verbal or written explanations should be a mandatory requirement prior to an MR. The explanation, whether verbal or written, is a discretionary step and whether to undertake one should be driven by the customer’;
- ‘A Mandatory Reconsideration Notice should be sent in all cases where an MR decision outcome has been made.’
Regarding discouraging claimants from continuing with the dispute, DWP staff are told:
‘customers must be given the correct advice… if a customer thinks a decision is wrong we must follow the process outlined in this memo.’ It may be worthwhile pointing out both what the law does (or does not) require in combina tion with these official instructions.
The MR process should in essence simply be a requirement that a claimant has a revision considered before s/he can appeal. So the decision-making process should be: (1) original decision; (2) if the claimant is unhappy with the decision, revision request and decision; (3) if the claimant remains unhappy, appeal. Where, because of the sort of problems described in this article, that does not happen, claimants should be encouraged to insist on their ability to appeal (be it to a benefit office or tribunal clerk) and also to complain about the handling of their case.
It is clear that in too many cases the MR process has become a bureaucratic quagmire in which claimants wishing to purse a challenge, and indeed some DWP staff, have become bogged down. It is hard not to ascribe the fall in appeal numbers at least partly to these problems. Theoretically, having a quick ‘review’ of a decision and a meaningful
explanation of how it was reached could be of value to some claimants. But for many this is not the practical experience, and it is equally hard not to feel, whatever official intentions may be, that MR is simply a barrier erected in the way of claimants wanting an independent reconsideration of a decision. Hopefully, a combination of the recent official instructions to staff, combined with the continued support of welfare rights advocates in insisting on appeal rights, will at least improve matters.
Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.
- 1. For an outline of the basic rules about DWP benefits, see ‘New appeals rules and procedures’, Bulletin 235, p4; for tax credits and HMRC benefits, see ‘Mandatory reconsideration of HMRC decisions’, Bulletin 241, p5.
- 2. ‘Mandatory reconsideration: problems and solutions’, Bulletin 241, p4; correspondence to CPAG from welfare rights advisers, and in particular reports collected by welfare rights workers and communicated to the DWP in correspondence by Neil Bateman, specialist adviser in welfare rights and social policy. Our thanks to Neil for sight of this correspondence, now available at www.rightsnet.org.uk/forums/viewthread/6906/P60/#34884
- 3. A stark example of this two-stage reconsideration process is in the DWP statistical release ‘Jobseeker’s Allowance and Employment and Support Allowance sanctions: decisions made to September 2014’, (at www.gov.uk) which presents statistics based on distinction between ‘reviews’ and ‘mandatory reconsideration’.
- 4. Email from Graham Dumbell, DWP Benefit Directorate, to Neil Bateman, 5 March 2015