Poor decision making

You can always submit an appeal, setting out in the section why yout don’t have a notice of MR - the details to date - and ask HMCTS to make directions, as a clerk can under Rule 4, and they can then consider if a waive of the requirement can be given.

We have used this successfully a couple of times

Certainly there are a lot of cases where the process of ‘informal’ resolution takes centre stage and you are left having these sorts of conversations through case managers rather than as part of the appeal process. Often times I have to say that what you end up facing is a belligerent response from case managers insisting that they are correct whilst refusing to engage with any actual reasoning put forward as to why they might not be.

Claimants should never be misled into thinking that informal resolution like this is the only way to deal with issues in the decision making, although it does often have the advantage that if you can point out an obvious error in the decision making and DWP are receptive to this, you can be looking at resolving an issue in a couple of days rather than the months or years it could take in the appeals system.

There is no requirement for a document labelled as a ‘mandatory reconsideration notice’ to be issued before an appeal. The requirement is only that a request for revision has been ‘considered’. It will often be arguable that the case manager’s comments are sufficient to amount to ‘consideration’ of the request enabling an appeal providing it was sufficiently clear that you were asking for revision. If DWP are point blank ignoring your requests, this could be dealt with through JR pre-action letters or by lodging an appeal anyway, as the FtT will often forward this to the DWP requesting they complete an MR if they say this has not been done.

roecab - 12 January 2021 02:49 PM

You can always submit an appeal, setting out in the section why yout don’t have a notice of MR the details to date, and ask HMCTS to make directions, as they can consider a waiver under Rule 4.

We have used this successfully a couple of times

Whilst this may be a practical option, the FtT does not have any power to ‘waive’ the requirement to go through reconsideration as this is a condition precedent for the Tribunal having a jurisdiction to begin with.

Elliott,

“Whilst this may be a practical option, the FtT does not have any power to ‘waive’ the requirement to go through reconsideration as this is a condition precedent for the Tribunal having a jurisdiction to begin with.”

See attached.

We have used this when we have requested an MR and the case manager keeps saying, no MR - the one attached was an MR about earnings, that we did not agree with and brought the client under the benefit cap - they kept saying you cannot MR application of benefit cap, we kept repeating the same thing

We sent those details to HMCTS and this is what came back

So it seems when HMCTS asked the DWP they said it had been through MR, the appeal is progressing but to date the client has never been issued/sent with a notice of MR. Be interestig to see if it is in the appeal bundle, when we get it.

I’ve had a case in the last 7 days when I had the claimant note a disagreement on a UC journal (in this case about housing costs liability).  The claimant got an overnight response continuing to say that the housing costs were correct in her circumstances.  I then advised her to put another note on her journal stating that she wished to confirm the decision given and giving the regulations we thought applied in her case and stating that we would be submitting an appeal.

Decision overturned the next day and the housing costs applied as we had initially requested.

So it does work sometimes.

In the attached document the clerk seems to be certifying that the UC department has confirmed that the MR process has been completed.

The important point is that whilst it is a legal requirement for the SSWP to have “considered” a request for revision, it is not a legal requirement for a magical document labelled “Mandatory Reconsideration Notice” to have been issued. Consideration of a revision could simply take the form of a case manager saying that the decision will not be changed. The Tribunal is entitled to take the view that this is sufficient to meet the requirement. The Tribunal would not be entitled to take the view that it can just waive the requirement for the SSWP to have considered the request.

Elliott,

Agreed, I was noting that one way to get to that point, in these types of scenarios is to put an appeal in, as you noted in your initial response.

Cheers

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/appeal-rights-where-a-universal-credit-claim-has-been-closed-for-non-attendance-at-a-jobcentre-interview-whether-appealable-decision-is-subject-to-requirement-for-mandatory-reconsideration

Have attached the decision in case you don’t have a subscription and extract from a sub

Judge Wikely held in CUC/1389/2019 (paragraphs 20 – 30).  When considering the notification of the decision, that regulation 7(1) (b) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013.

Provides that the requirement to carry out a mandatory reconsideration before a right of appeal is established only applies where the decision notice includes a statement to that effect. In Mrs Burton Bradstock’s case, the decision notice contained only what was written in her journal and therefore the claimant had the right of appeal to the First-tier Tribunal unencumbered by the usual need to apply for a mandatory reconsideration. Please see CUC/1389/2019 attached.