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Mandatory Reconsiderations
We have a client with an ESA claim which is blocking new JSA claim (he does not want to appeal).
We have been informed that it it impossible for client to make claim for JSA whilst there is a ‘live’ claim for ESA in place. The JC manager said it was impossible to have both in place because the claims were on different ‘platforms’.
Thinking about MR, will an ESA claim be closed whilst MR is taking place to allow JSA claim or will system be amended to allow both (with client having to reclaim when either successful at review or at point of appeal.)
“Thinking about MR, will an ESA claim be closed whilst MR is taking place to allow JSA claim or will system be amended to allow both (with client having to reclaim when either successful at review or at point of appeal.)”Quote
This is purely an admin problem. Legislatively, a claim ceases to subsist once a decision is made on it. So, in law, there is no extant claim just a series of decisions. The DWP’s admin systems don’t support two different sets of benefit information. That’s the problem. Legally, your client is quite within his rights to demand that he be allowed to make the claim for JSA while having his ESA disallowance decision reviewed. He should kick up sufficient fuss with the relevant people (perhaps using his M.P.) to get things moving.
But, as to your question, God only knows how the DWP will sort this administrative mess out.
I would be vary wary of trying to claim JSA during the dispute. I have just received an explanation from the DWP after a four month battle with them, explaining that because ESA is paid in arrears, serious payment problems were caused by a fast JSA claim close to ESA ending as the system could not handle it. This was a pretty isolated case - once they’re trying to deal with this en masse the prospects of any JSA being paid in time for it to be worthwhile don’t look at all good.
I would be vary wary of trying to claim JSA during the dispute. I have just received an explanation from the DWP after a four month battle with them, explaining that because ESA is paid in arrears, serious payment problems were caused by a fast JSA claim close to ESA ending as the system could not handle it. This was a pretty isolated case - once they’re trying to deal with this en masse the prospects of any JSA being paid in time for it to be worthwhile don’t look at all good.
Absolutely. Realistically, once MR is in, it’s going to be a judgement call on a case by case basis. Some clients will have sufficient other income to ride the MR stage without claiming JSA but others will have no choice but to do so (and contend with the competing claims fall-out).
see also the posts in the ESA MR thread -
most ESA claimants will have little choice but to claim JSA.
The problem is with the DWP IT system which can’t have both a ‘live’ ESA and JSA claim. Claimants will be ‘encouraged’ to make their JSA claim on line. DWP can (must) take a clerical claim if their are ‘problems’ with the IT.
Advice we have received from the DWP states ‘if, however, the claimant has successfully claimed another benefit such as Jobseekers Allowance during the mandatory reconsideration period, then this will remain in payment pending the appeal hearing, unless the claimant asks for their ESA to be reinstated’.
So, the DWP are accepting JSA claims will be submitted by ESA claimants, hopefully clients will not get sanctioned to death and DM’s are sympathetic to their situation !!!
Doubt it. People have been bounced back and forwards from JSA to IB and back for god knows how long now.
I have had numerous clients fail ESA medicals, claim JSA, sign on and are told by their adviser they are too ill and they should close their JSA claim and put in a new ESA claim, which of course they may not be able to do if theyve just lost a tribunal and its under 6 months from when medical failed. Grrrr…....
Just reading the DWP guides today on MR.
Sorry if this is covered elsewhere; but am I right in thinking that if someone is late with their MR, and the DM does not accept it and refuses to carry out a MR; then that will be the end of that dispute? Doesn’t this extend a DM’s powers enormously?
I posted this here.
http://www.rightsnet.org.uk/forums/viewthread/5322/
CPAG’s article on mandatory revision states that the DWP’s line is that if a late revision request is not accepted then there is no right of appeal. I would hope to see that challenged on the ground that it breaches article 6 of the HRA which states:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.
http://www.cpag.org.uk/content/new-appeals-rules-and-procedures
maybe if a late reqeust is refused it would fall to JR to challenge that first before an appeal could be founded, !!!???
It is not that clear cut. If there was a doubt whether there was a right of appeal you would lodge one anyway, particularly as it would be lodged directly with The Tribunals Service, thus giving it the immediate decision over whether it had jurisdiction. You would also seek legal advice as to whether to apply for judicial review at the same time so that all bases are covered. Another compelling reason to try to appeal is that if there is a right of appeal a judicial review application would probably be refused. As the old saying goes, shoot ‘em all and let God sort them out.
The reg I used to rely on for asking a tribunal to decide whether an appeal had been made in time, ie Reg 32(1) D&A, has been omitted from 28/10/13 under the same regs which introduce MR.
I agree that there are human rights implications if a refusal to reconsider effectively stops your right of appeal. R(IS) 15/04, as we know, held that where an application for an “any grounds” revision, ie the same type of revision as an MR, is made late and the DWP do not extend the time limit, the remedy would be either a late appeal against the original decision whose revision you had been seeking in your late revision application, or judicial review. Obviously, where a DM refuses to consider a late MR application, the option of late appealing the original decision is not available precisely because the MR notice has not been issued. That would point to JR as the remedy.
However, the commentary to section 9 SSA 98 (see page 231 of Volume 3 Social Security Legislation 2013/14) notes that no attempt appears to have been made to argue in R(IS)15/04 that section 9(5) SSA included a reference to a refusal to revise. In the case of Wood the CA held that a decision under section 10 SSA included a reference to a refusal to supersede. The commentary implies that a similar argument might be made regarding section 9 so that if a DM refused to even consider looking at a late request for MR, it could be argued that that nevertheless amounted to a refusal to revise and, therefore, under the principle in Wood, to a revision decision. The one month time limit would then run under section 9(5) from the date of that revision decision/refusal to revise.
Of course, the Wood reasoning does not naturally extend to revision, not least because it would appear to make otiose Reg 4 D&A which allows for an extension of the one month revision time limit. But I think the UT may eventually come up with a variant of Wood, perhaps restricted to those cases where a late MR application is not accepted by a DM which has the effect of denying appeal rights, and leaving all other revisions subject to R(IS)15/04.
Wood of course would not help someone who is attempting to bring a late MR application that’s more than 13 months since the date of the original decision whose revision is sought. However, I don’t think anyone would argue with that. It’s not as if people are looking for greater rights than they had before 28 Oct 2013; just the same rights.
[ Edited: 16 Oct 2013 at 10:13 pm by Tom H ]DWP has today published a “1 page summary: what to do when a claimant wants to appeal against a DWP benefit decision”
I still maintain that the DWP’s view on late appeals is fundamentally wrong. There is a time limit for actually revising under 3(1), but no time limit on considering whether to revise. It is the latter that is needed, not actual revision. The DWP are separating the process into a two-stage one of admission before consideration, but that distinction isn’t there in the regulation. The time limit in 3(1) is a limit on the revision going ahead (i.e. one of the factors to consider), not a limit on admitting the application before considering it.
If I’m wrong about that, then there are a number of other paragraphs in regulation 3 that the Secretary of State could be asked to consider revising under besides 3(1), and they have no time limit. The requirement is that the SoS has considered whether to revise under section 9, not under regulation 3(1) specifically. In most cases the decision will be not to revise, but the SoS will have nevertheless then have considered whether to.
I don’t think Simon Osborne’s article in WRB 235 is saying that the DWP are necessarily correct in asserting that a person cannot appeal where their request for a late revision is rejected for being out of time. What he says in the article is that the rules “do not read quite as clearly as that”.
What the regs says is that a person does not have a right to appeal until the SSWP has “considered on an application whether to revise the decision ” (reg 3ZA). I think having a think about it and then not revising the decision because the claimant was late with his application is considering whether to revise a decision. Looks like this will be one of the first issues for tribunals to get to grips with.
I don’t know how relevant the old caselaw is now we have a new appeal deadline. The new deadline in rule 22 is:
(d) in other cases—
(i) if mandatory reconsideration applies, within 1 month after the date on which the appellant was sent notice of the result of mandatory reconsideration;
This seems to me to mean that the question is what constitutes the result of a mandatory reconsideration. Does it include where the SSWP decides that the revision is out of time and time should not be extended? I don’t see why not. In R(TC)1/05 the commissioner decided that the appeal was against the original decision where the time limit for revision is not extended and what mattered then was whether it was more than one (or 13) months since the decision which was the subject of the appeal. This is different: it all depends on whether it is more than a month since the “notice of the result of the mandatory reconsideration”. I think it is arguable that the letter saying we are not changing the decision because you dragged your feet in asking us to look at it again is the “result of mandatory reconsideration”
The DMG contains the following sentence.
“But, if an applicant cannot explain why their application was not made in time, then the DM may not be able to consider their case”.
I think that there is a heavy implication here that the DWP are going to decide that where late revision requests have not been admitted then these will be situations where the DWP has not “considered” whether to revise or not and thus block off a right of appeal. I’ll bet money on it. In my view, that is wrong and the DWP are just playing at semantics. As I’ve already said, if this happens claimants should appeal anyway as TTS will have direct jurisdiction. But, I can see this going to the appellate courts to sort out. It is just going to be a mess.
http://www.dwp.gov.uk/docs/m-20-13.pdf