New appeals rules and procedures

Issue 235 (August 2013)

New rules about appeal rights and making appeals against benefit decisions are due for widespread implementation from 28 October. Simon Osborne describes what is happening.

Overview

From 28 October 2013, new appeal rules and procedures that already apply to universal credit (UC) and personal independence payment (PIP) are due to be extended to benefits administered by the DWP. Housing benefit is not included – the appeal arrangements for that benefit will remain the same. It is understood that for benefits (child benefit and guardian’s allowance) and tax credits administered by HMRC, the new rules and procedures will be introduced from April 2014, although this is not yet confirmed.

The changes are:

  • a requirement to have had, on request, a revision of the benefit decision before the right of appeal arises: so-called ‘mandatory reconsideration’;
  • where mandatory reconsideration applies, the appeal is to be made directly to HM Courts and Tribunals Service, and not to the decision maker: so-called ‘direct lodgement’;
  • time limits for DWP responses to appeals sent to HM Courts and Tribunals Service – but not until October 2014.

What is mandatory reconsideration?

This clumsy term is the official name given to the requirement that before appeal rights arise a request for the decision to be revised must be made, and that the decision maker then accepts that request so as to consider a revision. If the revision is considered, the claimant is sent a decision on the result of that in a ‘mandatory reconsideration notice’. If the claimant is still unhappy, s/he may then appeal. For example, the revision decision may refuse to change the original decision, in which case the claimant may remain unhappy and so wish to appeal. The usual time limit for appeal applies, from the date the decision in the mandatory reconsideration notice was sent. Note that a revision is required: a supersession will not do. The overall effect is to end the right of direct appeal against an initial benefit decision.

The DWP is clear that if the request for revision is late and is not accepted by the decision maker, there is no revision, and there will be no right of appeal. In effect, therefore, the mandatory reconsideration notice is the official recognition of a right of appeal. 1The actual rules that apply to UC and PIP do not read quite as clearly as that. They say that under mandatory reconsideration a claimant has the right of appeal ‘only if the Secretary of State has considered on an application whether to revise the decision...’ (emphasis added).2 The official line is that if there has been a request for a revision, but it is late and the request is not then accepted for consideration, then the decision maker will not have gone on to ‘consider whether to revise’ the decision. Consequently, there is no revision, no mandatory reconsideration notice and no right of appeal. The government has pointed out that it has eased the late revision rules by removing the requirement that the application has ‘merit’ and removing the provision that the fact that the claimant was ignorant of, or misunderstood, the law cannot be taken into account.3

Disputes about whether there has been a mandatory reconsideration will be decided by HM Courts and Tribunals Service, but in practice it will normally look for a mandatory reconsideration notice – ie, a revision decision.

The requirement to have a revision (even if that does not actually change the original decision) means that revision grounds and time limits will become especially important in retaining appeal rights. Standard advice is to request a revision within one month of the sending of the decision wherever possible, to ensure a revision on ‘any grounds’ and guaranteeing that there will be a mandatory reconsideration.

Otherwise, a request for a statement of reasons for the decision can slightly extend the time allowed for revision (if the DWP accepts that reasons were not already included in the decision, which is rare), a late request for an any grounds revision can be made, or a revision can be carried out ‘at any time’ on limited grounds (usually restricted to cases of official error). But all of those depend on the DWP accepting the request and going on to consider a revision – if not, then there is no right of appeal.

Late requests for any time revisions are likely to be the most important route here.

Rules currently differ slightly for UC and PIP (and contribution-based jobseeker’s allowance (JSA) and contributory employment and support allowance (ESA) under the UC system) and other benefits, but in essence involve a 13-month time limit, a requirement to show why late revision is sought, why it is ‘reasonable’ to grant it and how ‘special circumstances’ meant it was not practicable to meet the one-month time limit.4 Official guidance says that this should be applied broadly, and the claimant should not be required to show ‘unexpected’ or ‘exceptional’ circumstances.5

When does mandatory reconsideration apply?

Mandatory reconsideration has applied to UC and PIP since April. It is expected that mandatory reconsideration will apply to other DWP benefit decisions dated on or after 28 October 2013. That includes decisions about JSA and ESA.

The original benefit decision should include a statement to the effect that there is a right of appeal only where the decision maker has considered on an application whether to revise the decision. (If there is no such statement, then mandatory reconsideration does not apply.) Also, the decision should include the one-month time limit for an ‘any grounds’ revision and of the possibility for requesting a statement of reasons where that is not already included. If mandatory revision applies but the claimant attempts to appeal straight away, that may be treated as a request for a revision.6

How is a mandatory reconsideration requested?

There are no new arrangements for requesting a revision. It is simply a matter of requesting a revision (or at least asking that the decision is looked at again or be reconsidered) in the normal way, within the standard one-month time limit wherever possible. There is no official form. The request does not have to be in writing but it is better that it is, especially if the standard one-month time limit has not been complied with. The mandatory reconsideration process will involve a decision maker contacting the claimant by telephone before the revision is made, to ‘talk through’ the disputed decision and invite her/him to submit any additional evidence.7

Making an appeal

Following the mandatory reconsideration, the appeal must be lodged directly with HM Courts and Tribunals Service and not, as before, with the decision maker.8 This is called ‘direct lodgement’. HM Courts Service has produced a new appeal form (Form SSCS1 – How to appeal against a decision made by the Department from Work and Pensions) and guidance about the process.

Its use is not mandatory but is recommended (in any case certain basic requirements including reasons for the appeal remain mandatory). It is understood that if the current appeal form (GL24) is inadvertently used where mandatory reconsideration applies, that will not in itself invalidate the appeal. In England and Wales, ‘direct lodgement’ appeals should be sent to HMCTS SSCS Appeals Centre, PO Box 1203, BRADFORD BD1 9WP. In Scotland, they should be sent to HMCTS SSCS Appeals Centre, PO Box 27080, GLASGOW G2 9HQ.

The standard time limit for the appeal is that it must be received at HM Courts and Tribunals Service within one month after the date on which the claimant was sent the result of the mandatory reconsideration – ie, the revision decision in the mandatory reconsideration notice.9 Late appeals remain possible – ie, the tribunal can waive the one-month rule.

The tribunal rules require that a copy of the mandatory reconsideration notice is included with the claimant’s notice of appeal.10It is understood that to facilitate that, claimants will be sent two copies of the mandatory reconsideration notice. However, it should also be noted that the tribunal has the power to waive the requirement to include a copy (as with any other requirement under the tribunal rules)11 – so that a claimant who identifies her/his revision decision well enough might have her/his appeal accepted even without a copy of the mandatory reconsideration notice.

If a claimant attempts to lodge an appeal with HM Courts and Tribunals Service without having had a mandatory reconsideration, the appeal will be returned with advice that it is not valid and that a mandatory reconsideration from the DWP should be sought.12

Time limits

The DWP has undertaken ‘to introduce time limits to stipulate how long [it] has to respond to an individual appeal’ from October 2014.13 It says that will mean that the DWP will have 28 days to provide an appeal ‘response’ (ie, a set of appeal papers) to be sent to HM Courts and Tribunals Service. Note that there is no intention to introduce any time limit for carrying out a mandatory reconsideration. Note also that at

time of writing the relevant rule is unamended (including for UC and PIP), and merely requires the decision maker to provide a response ‘as soon as reasonably practicable’.14

Comment

The DWP denies that mandatory reconsideration involves an extra step in the appeals process or that it constitutes an important change in appeal rights.15

Very arguably, it is both. If revisions are (as the DWP says) carried out anyway it is difficult to see what extra value in terms of dispute resolution there is in requiring one. Someone who wishes to dispute a decision more than a month after the original decision is currently (apart from in UC and PIP cases) able to request a late appeal, even if a late revision is refused. Under mandatory reconsideration s/he cannot. If her/his request for a late or an ‘any time’ revision is refused, then (on the official approach) s/he will not have the right of appeal at all. Judicial review is the only legal redress.

Furthermore, claimants will be without the benefit claimed pending the outcome of their request for a mandatory reconsideration. In ESA cases (currently the majority of appeals), it remains that ESA pending appeal is only payable when an appeal has been made – ie, not while a mandatory reconsideration is pending. The very real concern is that many claimants will abandon their dispute because of the simple need to sustain themselves and their families.

 


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. See, for example, ‘Detailed Lines to Take for Customer Representative Groups’, www.dwp.gov.uk and Advice for Decision Makers, A3015 and A5043, www.dwp.gov.uk
  • 2. Reg 7(2) The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 No.381 (the ‘UC, PIP etc D&A Regs’)
  • 3. DWP, Mandatory consideration of revision before appeal, Government response to public consultation, September 2012 (DWP), p16. At time of writing, only the UC, PIP etc DA Regs late revision rule was in this form.
  • 4. Reg 6 UC, PIP etc (D&A) Regs; reg 3 Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991. It is assumed that reg 3 of the latter regulations will be aligned with regulation 6 of the UC, PIP etc (D&A) Regs, in particular to remove the requirement that the late application has ‘merit’ and that the claimant’s ignorance of or misunderstanding of the law cannot be taken into account.
  • 5. Advice for Decision Makers, A3016
  • 6. Reg 7 UC, PIP etc D&A Regs
  • 7. DWP, Appeals Reform: an introduction, April 2013, www.dwp.gov.uk
  • 8. Rule 22 The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 (the ‘Tribunal Rules’)
  • 9. Rule 22(2)(d)(i) Tribunal Rules
  • 10. Rule 22(4)(a)(i) Tribunal Rules
  • 11. Rule 7 Tribunal Rules
  • 12. ‘Detailed Lines to Take for Customer Representative Groups’ at www.dwp.gov.uk
  • 13. DWP, Appeals Reform: an introduction, April 2013, www.dwp.gov.uk
  • 14. Rule 24(1)(b) Tribunal Rules
  • 15. ‘Appeals Process Changes – Customer Representative Group Questions and Answers’ , V1.0a, DWP, December 2012, www.dwp.gov.uk