Mandatory reconsideration: problems and solutions

Issue 241 (August 2014)

Martin Williams looks at some of the problems thrown up by mandatory reconsideration and direct lodgement of appeals (see Bulletin 235: New appeals rules and procedures) and what advisers can do to try to solve them.

Partially successful revisions

Where a claimant has partially succeeded on revision, CPAG has seen cases where the claimant, on being notified of the new decision, is not sent a mandatory reconsideration notice (MRN). Instead, s/he is sent a notification that again states that the right of appeal will not arise until the decision maker has refused to consider a (further) revision.

Despite what the new notice says, the claimant in this situation has an immediate right of appeal and the notice is in effect an MRN:

  • There is no right of appeal against a revised decision. Rather, the appeal right is against a decision on a claim or on a supersession as revised.1
  • What that means, in effect, is that there is a right of appeal against the revised decision but, strictly speaking, the appeal is against the original decision as if it had been made in the revised form.
  • The mechanism through which a right of appeal is made not to arise until a mandatory reconsideration is conducted is triggered by the inclusion, in the notification of decision, of words stating that no right of appeal exists unless a revision has been considered.2
  • So, in cases where the notice of the revised decision again includes those words, one can argue that a further revision is not required.
  • This is because it is the original decision that is being appealed. The condition that must be satisfied for a right of appeal to exist against that decision is that ‘the Secretary of State has considered on an application whether to revise the decision’3 – so, in this case, the Secretary of State in fact has considered such an application, and then made a revision.

DMG Memo 20/134confirms this is the correct approach at paragraph 4.

The next issue is the more practical one of how you bring an appeal. The Tribunal Rules5 provide at rule 22(4)(a)(i) that a valid appeal must include a copy of ‘the notice of the result of mandatory reconsideration’ (the MRN). The rules do not define what this document is. Given that the notice of the decision as revised does indeed state what the decision maker has decided to do following the application for revision, it must be regarded as the required notice (see more on this below).

Valid appeals

Another area which has caused problems is with the way in which the Direct Lodgement Centre (DLC) at Her Majesty’s Courts and Tribunals Service (HMCTS) deals with appeals.

One issue is that clerks to the Tribunal are in effect performing the judicial function of deciding whether or not an appeal has been made that complies with the rules. A Practice Statement,6 made under rule 4 of the Tribunal Procedure Rules, seeks to delegate to clerks (called ‘compliance clerks’ at HMCTS) various functions to deal with appeals which are not properly made – ie, they do not contain the required information or do not have attached the relevant documents such as the MRN. Clerks now have powers to waive a requirement to include all the information or relevant documents, require the information or documents to be provided, or strike out an appeal when the relevant information or documents are not provided (after giving the direction to make good the appeal which states that failure to do so will, or may, lead to striking out).

The situation is made more unsatisfactory because, as explained above, what determines whether a claimant has a right of appeal is that the decision maker has ‘considered on an application whether to revise the decision’. However, the Tribunal Rules instead simply require a claimant to provide an MRN. This is despite the fact that there is no legal requirement on the decision maker to issue a document which calls itself an MRN. Whether the decision maker does or does not issue an MRN is not the test of whether a right of appeal exists. In those circumstances, making provision of such a document a procedural requirement of a valid appeal is bound to cause confusion.

Two examples of where such problems may occur can be given.

  • The first, already referred to, is where a claimant has been partially successful on revision. In such situations, although it is arguable a right of appeal does exist, the DWP may well not issue an MRN.
  • The second relates to the fact that the DWP appears to have a procedure whereby when a request for revision is received, the team that made the decision first considers whether it can revise. Only if it cannot do so does it then pass the request to the Disputes Resolution Team to conduct the mandatory reconsideration. So only in the second situation is an MRN issued. However, it must at least be arguable by a claimant that this first internal reconsideration already means that the decision maker has considered on an application whether to revise and that the appeal right has therefore arisen.

In both these situations, all that a claimant can do is to present the letter s/he has received from the DWP and point out how this letter shows that the decision maker has clearly considered an application for revision and, therefore, it should count as an MRN despite the fact that it does not state that this is what it is. Whenever a clerk writes to a claimant stating that an appeal is not validly made and/or requiring further documents to be provided, claimants have a right, under rule 4(3) of the Tribunal Rules, to request a tribunal judge consider afresh whether the appeal is validly made. Such requests should be made within 14 days of the date on which the letter was sent (although time can be extended).

Practical problem: getting ESA reinstated

A claimant who ‘has made and is pursuing’ an appeal against a decision that s/he does not have limited capability for work, and who provides medical certificates, is treated as having limited capability for work and is therefore entitled to employment and support allowance (ESA) while pursuing the appeal.7

However, claimants often experience a delay of some weeks between making their appeal and getting their ESA reinstated. The delay is caused by the fact that after the appeal is made, a number of steps take place before the section of the DWP responsible for ‘rebuilding’ the ESA award is aware that an appeal has been made.

1. The appeal documents are delivered, through the post, to the HMCTS.

2. HMCTS checks the appeal is properly made and inputs it to its systems.

3. Next HMCTS sends notification that the appeal has been made to the DWP in the post.

4. The DWP then passes this notification through its internal postal system to the section dealing with the appeal.

5. Finally, that section must notify the section responsible for rebuilding the claim.

During this entire period the claimant is a person who has made and is pursuing an appeal. As such, s/he is entitled to ESA. However, in most cases, the DWP is not (due to the laborious procedure above) aware that this is the case until some weeks after the appeal is posted.

For a claimant who wants her/his ESA put into payment more quickly (eg, because s/he is struggling to maintain a jobseeker’s allowance claim), it may be possible to do things differently. Firstly HMCTS has con-firmed to CPAG that:-

‘if there is any reference to financial hardship on the SSCS1 or the appeal letter, the compliance team at the DLC will pick this up and flag it to the registration team. Once the appeal is registered, the registration team will email a copy of the acknowledgment letter (which is sent to the appellant) to the relevant DWP office.’8

Therefore, making clear reference to financial hardship on the appeal documents should speed things up.

A second method (which can be used in tandem with the first) depends upon having email contacts for the relevant section dealing with the case in the benefit delivery centre (BDC) that is responsible for rebuilding the claim. The first step is to send the appeal documents to the DLC by recorded delivery. On the next day, obtain proof that they have been received by using the online Royal Mail tracker system. Then email the relevant BDC copies of SSCS1 appeal form, MRN and any other documents sent with the appeal, together with the proof that it was sent to and received by the DLC. The email should explain to the BDC that, as there is now evidence that it is more likely than not that the claimant has made and is pursuing the appeal against the decision, then s/he is now entitled to ESA.

A sample email is available to download on the right.

It is arguably unlawful if the DWP refuses to put the ESA award into payment on the basis of such representations.

 


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