Mandatory Reconsiderations ESA needing to claim JSA

Rosie W - 07 November 2013 03:13 PM

Hmm, interesting - just received a decision notice dated 1 November with no mention of mandatory reconsideration.. It’s a right to reside decision refusing income related ESA (as a top up). We will almost definitely be appealing.

Call me cynical but is it more than coincidence that when the client is not be able to get appeal rate ESA the DWP seem happy to allow the case to go straight to the Tribunals Service and bypass MR?

SamW - 07 November 2013 03:36 PM

Rosie W - 07 November 2013 03:13 PM

Hmm, interesting - just received a decision notice dated 1 November with no mention of mandatory reconsideration.. It’s a right to reside decision refusing income related ESA (as a top up). We will almost definitely be appealing.

Call me cynical but is it more than coincidence that when the client is not be able to get appeal rate ESA the DWP seem happy to allow the case to go straight to the Tribunals Service and bypass MR?

The amendment to the DA Regs (Reg 3ZA(1)) does not require all decisions to be subject to MR from 28/10/13 - only where the decision includes a statement that there is only a right of appeal if the SSWP has considered an application for revision.

This allows DWP to continue issuing decision which carry a right to go straight to appeal if, for example, the IT can’t yet issue a decision containing the required statement or the staff haven’t yet undergone MR training perhaps???

Sorry, I’m unclear on what “straight to appeal” means here. Can there still be cases where the DWP forward appeals to the tribunal service?

No matter what the letter says about appeal rights, might it be that if Rosie appeals her decision to the office dealing with the claim, they will simply (re)consider it, and reply with a Mandatory Recon Notice? And if instead she appeals directly to the tribunal service, they may not accept the SSCS1 it as it doesn’t include evidence of the MRN step?

Craven CAB welfare benefits - 07 November 2013 05:44 PM

No matter what the letter says about appeal rights, might it be that if Rosie appeals her decision to the office dealing with the claim, they will simply (re)consider it, and reply with a Mandatory Recon Notice? And if instead she appeals directly to the tribunal service, they may not accept the SSCS1 it as it doesn’t include evidence of the MRN step?

Apologies as the phraseology I was using was inaccurate, for some reason I’ve always had it in my head that filling in a GL24 was appealing direct to the tribunals service rather than requesting a reconsideration first, when in fact your GL24 still went through the DWP first. I think that probably comes from the impression I’ve had that the GL24 recon process, certainly for WCA appeals, always seemed to be a swift rubber stamping of the original decision and pass it on to the Tribunal Service to sort out.

The point I was making was that the big problem with MR is in relation to WCA appeals, where previously the client would be getting paid whilst the DWP carried out their reconsideration process. In a case regarding RTR it doesn’t make a great deal of difference as the client would not receive any ESA anyway until they succeeded at tribunal. So if you send a valid appeal back to the DWP in one of the latter cases it doesn’t really matter how they react.

If I had a post 28/10 WCA decision that does not mention MR I would send a GL24 back along with a request for the ESA appeal rate to be put into payment immediately. The question of whether the DWP could then respond and say that they had changed their mind and now feel that MR is necessary is beyond me but instinct suggests to me that they couldn’t. As above, the cynic in me is not expecting to see any WCA decisions without the MR paragraph.

Rosie W - 04 November 2013 10:22 AM

Some people are referring to posts by number which would be a helpful shortcut to finding them in a thread of this length - if I could see the numbers! They have disappeared after the redesign - any help please?

hi rosie ....

we’ve tweaked the settings and hope that’s sorted out your display issues? (have checked with tony, and it’s worked for him)

best wishes - shawn

shawn - 08 November 2013 12:06 PM

hi rosie ....

we’ve tweaked the settings and hope that’s sorted out your display issues? (have checked with tony, and it’s worked for him)

best wishes - shawn

It has - thanks!

Bryan R - 06 November 2013 04:39 PM

They as do I believe it has wide enough legal scope to be within reach of a FtT and a UT.

It is on this basis and there advice and help in my submission I have put it forward for appeal to the FtT.

The FtT and UT have their own; discrete, set of procedure rules. The CPr hold no sway in welf land.

I’ve a hand in making a lot of claims under the CPr at this moment in time (16 in all) and I am assured the Civil Courts have a very different approach from Tribunals and administrative decision making as a whole. For the most part a decision being disputed in a Civil Court will not have been made under a proscribed scheme whereas that’s certainly the case in Social Security (and Child Support)

Also the CPr reflect the Limitation Act however there’s no free standing, analogous legislation in Social Security, we have, instead, delegated legislation that develops the ‘98 SSA & the TCEA 2007/TP (FtT)(...) Rules

The means of making and challenging decisions in Social Security have evolved along very different lines than the Civil Courts.

We have finally recieved a response to our detailed questions on MR and the WCA ESA to JSA and back again issue:

“2. The Appeals Project Team confirm that acknowledgement will be sent for every written or telephone request for mandatory reconsideration.

3. AlI of the available information on the appeals journey is available to stakeholders on the DWP Website for external stakeholders which I understand you have access to.”

Note my post in the decision making & appeals thread on MR malpractice and the first actual WCA decision we have seen.

We met with our local managers recently to go through our set of questions (though more questions arising all the time). They were very helpful but def said no written acknowledgement would be sent out however the MR request was made and advised logging date time and name of advisor when logging it by phone just in case. Just a case of watch this space I think.

So Esther reckons just around 14 days to do an uncomplicated Mandatory Recon, or MaRe as we sometimes refer to these in our office:

http://www.rightsnet.org.uk/news/story/dwp-would-expect-straightforwad-esa-mandatory-reconsideration-to-take-aroun

Its been just over 4 weeks of the new system, and fair enough there may be pre-28th Oct decisions still being appealed, but has anyone had much experience of, especially, ESA fit-for-work claimants pursing a MaRe and having to claim JSA in the meantime?

Does her forecast of 14 days suggest that clients consider simple “Look at the decision again, I have no further evidence at this point” to get through the process ASAP, as I think has been previously mooted?

I think she was ‘talking as her belly guides her’ as they used to say in the Potteries. She’ll change the facts to fit her views once again when things don’t work out as she’s claimed.

My point was and remains this:

An Administrative decision is 3 months with regards to CPR 54. Thus I believe as this is a starting point for an ADMINISTRATIVE DECISION, this does in effect create a base from where to spring, and believe an MR should not be allowed to take any longer than this.

I don’t think anyone on here would disagree that MR decisions should be made within three months.  It’s simply the remedy that is being disputed.  I agree with Dan that the CPR have no bearing on Social Security appeals.  That doesn’t mean they have no relevance.  We need to be clear as to the terms we use.  The tern “administrative decisions” is too loose.  All decisions of public authorities are administrative decisions in one sense.  It’s just that some decisions are subject to a discrete appeal regime with its own rules and procedures, such as benefit entitlement decisions, council tax valuation decisions, etc. 

Other decisions, usually where there is in built discretion, such as DHP decisions, are not.  The only remedy here is to bring the oversight of the High Court to bear through judicial review.  Directly appealable decisions of public authorities can also invite the scrutiny of the courts but this is usually (there are exceptions which are not relevant here) on grounds of maladministration.  One such ground is delay.  It is here that the CPR apply.  This is the tricky part as JR proceedings are not easy to bring within short spaces of time unless you can demonstrate some real urgency, such as the risk of harm if permission is not granted straight away or an interim injunction is not issued.  In such circumstances so called pyjama judges (so called due to the-rare and subject to a lot of folklore-practice of hauling one out of bed in the middle of the night) can be called upon.  This kind of event is practically unheard of, if at all, in the benefit system.

Time will tell of course.  The DWP has tied itself into this and unless it’s properly resourced with proper front line advice and robust IT systems, real hardship could be the result in some cases.  With cut backs to legal aid and decreases in solicitors doing this kind of work JR is going to be outside the scope of many.  It may be that a letter before action is sufficient to produce a quick decision but then again it might be that in the light of what I’ve said in the beginning of this paragraph that the DWP will just call the person’s bluff.  And, there will be little that The Tribunals Service can do until an appeal is finally lodged or you can get the case in front of them under the tribunal rules to determine a point of jurisdiction.

Attached is a response received from the Minister for Disabled People. This is in response to the detailed procedural issues we have raised via local MPs - see post 44 in this thread.

It seems DWP are unable to answer the procedural points!

nevip - 03 December 2013 02:35 PM

  Directly appealable decisions of public authorities can also invite the scrutiny of the courts but this is usually (there are exceptions which are not relevant here) on grounds of maladministration.  One such ground is delay.

I feel it’s important to mention that another such ground is discrimination and where ESA is so far off the rails such issues could prove useful tools in our armory. Although recent case law only discusses mental health the overarching principle could apply to many other disabilities.