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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

The necessity of an explanation before acceptance of a MR request

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Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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I have just been told -again- by contact centre staff that a verbal explanation must be provided before they will accept a recon request.

Previously that advice was limited to sanction decisions and the advice came from staff at the Jobcentre but this time it’s from the contact centre and is over a very complicated capital issue involving disputed beneficial ownership.

Is this rolling out further?  It’s a blatant attempt to fetter article 6 rights and surely someone needs to do something about it; or is that something simply to wait until next year and hope the other lot get a chance to sort it out?

I despair!

nevip
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Hi Dan

In cases where we lodge the MR on a client’s behalf are we going to have to chuck in a standard sentence at the end threatening then with JR if a verbal explanation is insisted upon first?  This is just getting silly.

Dan_Manville
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nevip - 26 March 2014 01:01 PM

Hi Dan

In cases where we lodge the MR on a client’s behalf are we going to have to chuck in a standard sentence at the end threatening then with JR if a verbal explanation is insisted upon first?  This is just getting silly.

It might be quicker than complaining every time I make an MR request. I’ve already sent a ranty letter to our District Manager which, funnily enough hasn’t been acknowledged yet.

Nicky
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More and more of our clients are contacting us because they have had a telephone call to explain that following their WCA they are to be removed from ESA….this is then followed up by a confirmation letter which generally arrives two weeks later giving MR rights.

We’re also finding that clients are less aware of their right to dispute the decision once they’ve had the phone call, a lot of them think that because they have been telephoned they cannot do anything about the decision except sign on for JSA.

We’re trying to get local press interest to bring awareness to people about their right to dispute a decision.

nevip
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Hi Nicky

Are you doing a social policy form for these kinds of cases?  And are other CABx doing the same?

Nicky
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Yes we do social policy for anything like this - not sure about other bureau - this is something that’s just begun to happen here in the last week or two.

Rosie W
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I’ve started putting in bold 16 point type at the top of the letter (always a letter) “Request for mandatory reconsideration of your decision dated xxxxx”. So far we haven’t had any problems with them pretending this is a request for an explanation although the decisions we’ve had back often refer to them having made 2 attempts to contact the “customer”. I’m thinking of adding a standard paragraph as well to the effect that the claimant does not require any further explanation of the decision, verbal or written but just wants them to go ahead and carry out the reconsideration.

Nicky
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We have a letter we use like that…..has worked so far but the ringing with the explanation before sending the letter is a new development…..

Rosie W
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I’ve just checked back and we had some information via our local JC+ liaison back in January, here’s an excerpt:

“I’ve discussed this with the team that implemented the new system and have confirmed that anyone making a request for a reconsideration will receive a call back.

The reason for this is that the Enquiry Line is staffed by Contact Centre staff who only have a generalist knowledge.  Firstly they will ask if a claimant wants an explanation of the original decision, as there are claimants who do not want to proceed to the mandatory reconsideration stage once they have had a fuller explanation.

If they do not want an explanation they can request to move to the reconsideration stage.  Both explanation and reconsideration will be undertaken using the Outbound Reconsideration Call (ORC).  This will be undertaken by the Disputes Resolution Team (DRT)

The call back is made by a Decision Maker who has a greater depth of knowledge about the subject being reconsidered.  This will enable them to fully discuss the reconsideration, gathering any further evidence that may be relevant at this stage.  The decision will then be looked at again by the Decision Maker.”

I guess we thought we could bypass this by always requesting MR in writing as described - but of course that doesn’t help if the claimant has already made the phone call. I’m not sure how exactly they can insist that everyone has an explanation before they will carry out the reconsideration, especially if they’ve been told the claimant doesn’t want one but how to stop them doing it in practice is less straightforward.

The worry of course is that claimants will give up when they’ve had the “official” explanation of just why the decision is correct.. And those who end up out of time because when they thought they were asking for a reconsideration DWP just know that really they were asking for an explanation (which I think has already been the subject of one or two posts).

nevip
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Here’s a novel idea.  Instead of phoning claimants and attempting in some half a*rs*d fashion to ‘persuade’ them that the decision is ‘correct’ why not include with the decision notice a brief written explanation of the basis for that decision.  Too radical I hear you say.  Ah well!  Perhaps you’re right.  Administration was never my strong point.

Rosie W
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Remember when they used to say the time limit to challenge some decisions couldn’t be extended if you requested written reasons because they were provided with the decision notice….

I’m cross now - just rang Stockton BC re an MR request made in writing which didn’t arrive in the post, had to fax it to them, they confirmed today they received it, a DM looked at it and decided couldn’t revise because no new evidence (same old), tried to phone the client to “explain” and didn’t get an answer - so now it’s been forwarded to the DRT in Stockton to “carry out the mandatory reconsideration”.

Pardon my ignorance but just what exactly was the DM at Stockton doing if not carrrying out a reconsideration??? And how on earth are claimants with no access to advice or assistance able to wade their way through this (insert description of choice here)?

nevip
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This…England!

Dan_Manville
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My personal rant and an argument I have made to DWp is that I work with a lot of social workers and community health professionals who don’t need the additional barriers to cross; it’s making for an increased workload for them as well as me. Mucho frustration all round!

nevip
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I’ve just seen a client who was phoned by the DWP and told when you lodge your MR don’t tell us what you can’t do but what you can do.  Absolutely priceless.

Tom H
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It wouldn’t be the first time the DwP had fettered its discretion.  Here the discretionary power lies in Reg 3(2) D&A Regs:

“(2) Where the Secretary of State…requires further evidence or information from the applicant in order to consider all the issues raised by an application under paragraph (1)(b) (“the original application”), he…shall notify the applicant that further evidence or information is required and the decision may be revised–

(a) where the applicant provides further relevant evidence or information within one month of the date of notification or such longer period of time as the Secretary of State…may allow; or

(b) where the applicant does not provide such evidence or information within the time allowed under sub-paragraph (a), on the basis of the original application.”

Notice how the “shall” in that passage only applies, in effect, if the DM feels that further info is needed to fully consider the issues raised by the claimant’s revision application.  If the policy is to call back every applicant then it would be a fetter as, clearly, not all revision applications, in fact probably only a minority, would require further clarification/evidence: the dispute instead, as others have said, being about the inferences to be drawn from existing evidence, eg ESA85.

The meaning of “raised” above will almost certainly include implicitly as well as expressly raised.  It follows that a client’s express request not to be contacted by DWP would not, unless health-related, necessarily have to be respected.  Of course, an “explanation” why the decision was made is not authorised by the above Reg 3(2).  But from Rosie’s earlier post it seems that the call back is both an explanation and the kind of info/evidence gathering exercise envisaged by the reg. 

What’s worrying about 3(2) is that, first, there seems no time limit for the DM to “notify” the applicant and, secondly, where an applicant states in their call back that s/he has no further evidence, it potentially allows the MR decision to be delayed by one month.  In fact, where the DM thinks the info would assist his/her decision but the applicant still says “no”, it appears that the DM must wait a month.  What, in case the claimant changes their mind?

But it’s not clear whether Reg 3(2) applies in every MR case.  Reg 3ZA D&A provides:

“(1)  This regulation applies in a case where—

(a) the Secretary of State gives a person written notice of a decision under section 8 or 10 of the Act (whether as originally made or as revised under section 9 of that Act); and

(b) that notice includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision.

(2) In a case to which this regulation applies, a person has a right of appeal under section 12(2) of the Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act.

(3) The notice referred to in paragraph (1) must inform the person—

(a) of the time limit specified in regulation 3(1)…for making an application for a revision; and

(b) that, where the notice does not include a statement of the reasons for the decision (“written reasons”), he may, within one month of the date of notification of the decision, request that the Secretary of State provide him with written reasons.”

It’s worth noting in passing that Reg 3ZA(3)(b) is silent about a verbal explanation.  If anything, by making the duty to provide reasons in the decision notice itself optional, it implies there’s equally no duty on DWP to provide them orally.

The DM’s right to request further info/evidence under Reg 3(2) expressly applies only where a person makes an application for revision under Reg 3(1)(b), whereas Reg 3ZA(2) allows the MR to be based, more broadly, under section 9 SSA.  That is in keeping with the statute (see section 12(3A) & (3B)(a) SSA). 

Section 9(1)(a) provides that revision may be made either within the “prescribed time” (ie one month under Reg 3(1), extendable to 13 months under Regs 3(1)(b)(iv) and 4) or in “prescribed cases or circumstances” (ie the other paragraphs of Reg 3).  Reg 3ZA itself is, interestingly, not one of the latter as it is made under section 12 not 9.  Section 9(1)(b) also makes clear that any decision may be revised on an application, ie not just one revised under Reg 3(1)(b).

To the extent that it is implicit in Reg 3ZA(3)(a) above that the MR must be brought only under Reg 3(1)(b) (ie within 1 month), I think 3ZA would be ultra vires section 12(3A).  But even if that’s not correct then the drafting of 3ZA itself does not appear to limit the MR to one made under Reg 3(1).  Read together, paras (1) and (3)(a) of 3ZA effectively say that if the DWP issues a decision notice advising the claimant of his/her right to apply for MR within one month of that notice, then Reg 3ZA applies.  And what does 3ZA say?  That a right of appeal doesn’t arise unless a revision is applied for under section 9 (Reg 3ZA(2)). 

In most cases, the only alternative revision ground to Reg 3(1)(b) would be 3(5)(a), ie official error.  That might be enough, however, especially as Reg 3ZA(2) links the right of appeal to whether the DM has “considered” making a revision under section 9, rather than to the merits of your revision request.  So it wouldn’t seem to matter that your official error grounds weren’t strong.

Tom H
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In fact, if anything, the weaker the grounds the better as all you want is a MR notice refusing to revise (in Wood, the CA found that a refusal to supersede brought the decision within the terms of section 10 SSA; whilst I can see problems applying the same reasoning to section 9, I don’t think there’s a problem applying it to Reg 3ZA(2), ie “has considered to revise” includes an outright refusal to consider a revision. 

Also worth grounding your MR on official error if you’re making it (the MR) outside of 13 months.