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Refusal of late MRs - DWP delay

 

 

Andrew Dutton
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Derbyshire Welfare Rights Service

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I have rarely (never before?) known DWP to refuse a late MR, but I have just had a fistful of refusals, all for the same client.

I contacted DWP in November 2015 to challenge a JSA sanction and to ask if there were any others hanging around in the background. No response.

In spite of repeated complaints, I got nothing until May 2016, when a long list of 2015 sanctions were sent to me.

MR requests were sent in for each - some late, some not. No response.

It has taken until today for the client - not me - to be sent a sequence of letters refusing the MRs one by one on grounds of lateness.

Fuming letter sent in response, requesting them to think again as the delay was all on their part.

I suspect that the DRT that replied in the end had no idea of the background history - but if they didn’t - WHY didn’t they???

Has anyone else come across anything similar??? Tactics for getting a better response?

     
Jon (CHDCA)
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Welfare Benefits, Craven CAB, N Yorks

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MR requests were sent in for each - some late, some not.

If you sent MR requests in May 2016 in respect of sanction decisions made in 2015, I’m not sure how they weren’t all late? Or do you mean that no proper decisions were issued at all until you queried them?

Anyway, see if CPAG are still looking for test cases in this area?
http://www.cpag.org.uk/test-case-referrals

     
Andrew Dutton
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Derbyshire Welfare Rights Service

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I sent the requests in May because my initial contact made in November was ignored and it took repeated complaints to get the reply in May.

     
Martin Williams
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Welfare Rights Advisor, CPAG, London

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Hi Andrew-

There are no time limits to request a revision of a sanction decision. See WBTCH at page 1268.

In general sanction decisions can be challenged at any time by way of an application for revision under section 9 of the Social Security Act 1998. This is provided for as follows:

a. For JSA Work Programme sanctions, regulation 3(6) of the D&A Regulations provides for revision of a sanction decision “at anytime”.

b. For ESA work related activity sanctions, regulation 3(5C) and 1(3) allow for such a sanction decision to be revised at anytime if it contains an error to which the claimant did not contribute.

c. For IS work related activity sanctions, then regulation 3(7CD) allows for revision at anytime provided that the decision contained an error to which the claimant did not materially contribute.

(similar provision for UC too).

On the facts you describe an interesting issue now arises:

a. The time-limit for bringing an appeal is one month following the decision being sent to the claimant.

b. When appealing against a decision that has been revised (or where an application for revision has been made but was refused), then technically the appeal is against the original decision.

c. An exception exists where the claimant made an application for a revision within one month (ie under regulation 3(1) of the D&A Regulations) or such longer time as was allowed under regulation 4 (ie where time is extended for special reasons).

d. Thus, if a claimant was to apply for a revision after the one month time period and was not to make an application for time to be extended (or did and time was not extended) then even though the Decision Maker must under the above rules still consider whether to revise, the time for bringing an appeal would run from the date of the original decision and not the refusal to revise (see R(IS)15/04 and Beltekian v Westminster CC [2004] EWCA Civ 1784.

Note that it is CPAG’s view in any event that there is a right of appeal against the refusal to extend time for late revision. One way of arguing this is that such a decision is itself a section 8(1)(c) SSA 1998 decision which carries a right of appeal under section 12(1)(a) as it is made “on an award” of benefit (albeit a little indirectly). There are other ways to argue it too (that to construe things otherwise deprives a claimant of an article 6 right ECHR etc).

We have a testcase pending before UT (transferred in JR) on this topic at present.

My advice would be to (1) write back pointing out the no time limit point (2) appeal the negative decisions in any event and (3) consider LBA for JR.

Martin

      [ Edited: 16 Jan 2017 at 05:08 pm by Martin Williams ]
Andrew Dutton
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Derbyshire Welfare Rights Service

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Martin - many thanks. This has dragged on so long that I can barely think clearly on it. Will act as you suggest.

     
Andrew Dutton
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latest - I have now received eleven (count ‘em, eleven) appeal subs from the DWP.

All of these address the decision to sanction and not the refusal to MR the cases.

Thank you again Martin.