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Late MR request
Anyone yet tried to appeal against a refusal to carry out a mandatory recon because it was submitted late? If so, was the appeal admitted? I have a case involving a large overpayment, but the MR request was submitted several months late. I’m not that hopeful of being able to take this case forward, but if there’s half a chance of getting in front of a tribunal, I’ll give it a go.
As far as I’m aware, you can’t appeal until MR is completed. What you may have is a refusal to reconsider, which isn’t a reconsideration in itself. You could throw it in front of HMCTS anyway to see what they have to say, though.
Complaint to DWP, pressure to admit good reasons for lateness?
Hello Ruthch,
Just a thought Ruth but are the former/present? revision routes open to you as well? Ignorance of material fact…etc. As I say, only a thought and happy to be proven wrong.
Patrick
Thanks everyone. To be honest this isn’t the strongest of cases to argue about, but I do think that a judge would have allowed a late appeal in the interests of justice (there’s potential for criminal proceedings.). I don’t know if in this case there’s strong enough grounds for judicial review, or grounds for an any time revision. Tony has made some valid points about the loss of appeal rights with the introduction of MR, no doubt there will be some interesting challenges in the (hopefully) not too distant future.
Reg’ 7(2) of the UC, etc D&A Regs is in the following terms.
“In a case to which this regulation applies, a person has a right of appeal under section 12(2)
of the 1998 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 that Act”.
My view is that that provision should be construed widely enough to cover these situations otherwise it chokes off the right of appeal under primary legislation and would be arguably unlawful as it breaches the right to an independent hearing under article 6 of the HRA. That is the ground of any JR challenge, and is far from weak.
The JR would be against refusing to admit the appeal, which hasn’t been entered yet (still waiting for the copy of the MR letter from the client). The weakness is the lack of grounds for lateness. I have no doubt there would be strong objections from the DM to admitting the appeal. The weak grounds for lateness would have been an issue pre October 2013, I’m just concerned that the DWP decision makers will exercise their discretion differently to a tribunal judge. I will attempt to enter the appeal, I would just prefer to have a stronger case for testing the process.
I made the point Nevip makes at posts 15 & 16 here but in relation to Reg 3ZA which covers most MRs. Paul, Reg 7 as you know covers literally the one man and his dog (which like its master has to be single and under 25 - in dog years) affected by UC. And I’ve made the point in other threads since that there’s arguably no late MR due to the way they’ve drafted the law. Everyone who has to undergo MR does so because they receive a letter telling them that they must do so and do so within one month. Without such a letter Reg 3ZA would not apply. Once Reg 3ZA does apply, then it basically provides that a revision must be made under section 9 which appears to include a revision under any applicable paragraph of Reg 3 D&A, including official error (3(5)(a)) for which there is notime limit. It’s irrelevant that the merits of your official error request are poor. What matters is that the DM is obliged to consider the revision request and that the appeal clock only starts ticking once he does and notifies you of his decision. I agree, Paul, the HR angle should that not be the case.
I’ve made the point in a few threads hoping to provoke some debate/constructive criticism, but I might as well post in invisible ink (apart from a couple of people who have offered some support). There’s a place for catharsis as well as for, of course, social policy but seems to me (I am becoming more cynical though) that people prefer starting or contributing to threads highlighting problems (you know the type “please provide examples of the how the coalition are a right bunch of ********) rather than engage in possible solutions.
[ Edited: 9 Jun 2014 at 12:55 pm by Tom H ]Yes, that should have been 3ZA of the ordinary D&A Regs and not 7 of the UC, etc..
..Tom, re your reference to writing in invisible ink, etc. You often make posts too long to read which might disengage some of your audience. Not everyone is as expert as you and I suspect much of your longer posts are lost on some. But to even the balance, I’ve been criticised for doing exactly the opposite (too short, no references!!). Just sayin’.... please don’t take a fence.
On the contrary Tony, thanks for the honest and frank feedback. I’d come to that conclusion myself, though it’s taken over 500 posts:) I’ve not noticed any shortness to your posts but rather a refreshing honesty and a willingness to say what you believe regardless of whether it makes you popular. I often think “God, that’s brave of him. He’ll have people queuing up, seeing who can be more self righteous in knocking him” but it doesn’t happen. That’s either out of secret respect. Or fear.
No probs. Don’t change either. Last word on invisible ink. Whilst I defo agree that lengthy posts put people off, I don’t agree that such posts are unnecessary. Quoting law often, another of my traits, also undoubtedly switches people off, especially those who never pick up a law book, but I feel it’s often essential. I think the problem a lot of the time is the expectation that there’s a simple answer when there isn’t always one really. It doesn’t help that I’m drawn to complicated threads, motivated as much, if I’m completely honest, by intellectual stimulation as a desire to help. In fact, I use posts, as I’m sure a lot of us do, to develop knowledge, testing it on scenarios that I might never see in my own caseload. The consolation with a resource like Rightsnet is that you always get more out than you put in, no matter how much you write. That said, the one thing worse than being opposed is being irrelevant. When you reach that point it’s time to stop.
Totally agree Tom. The forums are a great learning tool for all of us. On the other point, it has to be remembered that those of us who work for LA’s are local government officers and when posting under our employers’ credentials have to be careful what we say in case we are laid open to charges of political bias. We would often like to express ourselves more fully but have to be a little more circumspect than those in the non-statutory or not for profit sector.