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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Henry Brooke on the legality of mandatory reconsideration

Elliot Kent
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An interesting suggestion from retired Court of Appeal judge Sir Henry Brooke in evidence to the Work and Pensions Committee (http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/work-and-pensions-committee/pip-and-esa-assessments/written/75779.html):

“The first relates to the lawfulness of the mandatory reconsideration process.  The idea that a public body should be given a power to reconsider its decisions was discussed in the Law Commission’s 1994 report on Judicial Review and Statutory Appeals, on which I assisted when I was chairman of the Commission.  However, we never envisaged that a claimant’s right of appeal against a decision that took effect immediately could not be exercised at all until such a process had been completed.

Because the Secretary of State was exercising a discretionary power when he introduced the PIP regulations which had this effect, it seems likely that the effect of the UK Supreme Court’s decision in the Unison case would give rise to a very strong argument that the mandatory reconsideration process is unlawful, since it prohibits any access to a court while the MR process is being conducted.”

Peter Turville
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It should also be remebered that in the context at least of PIP that Mobility Allowance / Attendance Allowance / Disability Living Allowance were once subject to ‘mandatory revision’ (although not called that) before appeal before government decided to do away with a two stage challenge process for disability benefits - only for it to resurface in 2013 in a different guise (like so much in the benefits system) as ‘mandatory reconsideration’.

My memory (rose tinted?) of MA/AA/DLA reviews were that they were far more likely to be successful than under MR - the normal time limit was 3 months which gave far more time to prepare the application, gather suporting evidence etc. - however like now it did take a long time to then get a case to appeal after a negative review decision often making the claim to tribunal decsion time scale 12 months plus.

A legal challenge to MR is an interesting prospect!

amended to add;

Looked out a report we prepared in 1992 - DWP stats - 25% of AA and 51% of MA calims were refused. On review 75% of AA and 25% of MA claims were then awarded. Bit of a contrast to current MR outcomes! we also reported at the time that review decision were taking on average 9 months!

[ Edited: 21 Dec 2017 at 04:23 pm by Peter Turville ]