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Appeal lapsed, new MR required? 

 

Jane O-P
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Hi,

Situation is:

PIP new claim challenge, went through MR and requested an appeal. DWP then revised decision to award a higher rate. Appeal lapsed.

Client wishes to continue challenging decision so I assisted to request new appeal against the revised decision that caused the appeal to lapse.

HMCTS have rejected appeal in a directions notice from a judge saying we need to ask for a new MR.

Situation is complicated by the loss of the letter informing the client of the revision that caused the appeal lapse. To meet the appeal deadline I submitted a SSCS1 without that decision letter, naively assuming that as that revision had caused the previous appeal to lapse HMCTS would accept that the revision decision exists.

Any thoughts?

CPAG p1338 only references DMG 20/13 http://www.cpag.org.uk/sites/default/files/Memo DMG 20-13.pdf which isn’t the clearest and I’ve looked at 3ZA of the D& A regs but that isn’t very clear either.

Thanks

Jane

     
Stainsby
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I faced a similar situation and I simply sent a copyof the original SSCSC1 and cited the previous appeal reference as evidence that the appeal had lapsed

     
Jane O-P
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Thanks - that makes sense - but they already reference the previous appeal number in the Directions Notice:

“The tribunals service has now been informed that there has only been one mandatory reconsideration notice issued by the respondent and this relates to the previous appeal SCxxxxxxx”

I’ve also found the letter HMCTS sent me when the appeal lapsed which said “if the person who made the appeal thinks the new decision is still wrong, they must lodge a fresh appeal.”

I suspect the problem is that the revision that caused the appeal to lapse is not labelled as a ‘mandatory reconsideration’ and that is what HMCTS are looking for - rather than a revision.

     
Bonnie
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I have a similar case and have contacted a Customer Resolution Manager for clarification.
Once an appeal is lapsed the decision given is a Mandatory Reconsideration. It will give appeal rights on this letter which confirm that you can appeal and in my clients letter it states, ‘a full copy of this reconsideration notice must accompany your appeal’.
It would help our clients and HMCT if this letter was headed as a MR Notice.
Hope this helps

     
Jane O-P
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update:
The relevant law is regulation 7 of The Universal Credit, Personal Independence
Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 https://www.legislation.gov.uk/uksi/2013/381/pdfs/uksi_20130381_301114_en.pdf .

Reg 7 determines when a revision must be considered before an appeal can be lodged:

“Consideration of revision before appeal
7.-(1) This regulation applies in a case where-
(a)  the Secretary of State gives a person written notice of a decision under section 8 or 10 of the 1998 Act (whether as originally made or as revised under
section 9 of that Act)(22); and
(b)  that notice includes a statement to the effect that there is a right of appeal in
relation to the decision only if the Secretary of State has considered an
application for a revision of the decision.”
(2) 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.”

Sweet & Maxwell says the SS has discretion regarding when to issue a notice complying with subpara B:

“The regulation does not even expressly forbid the SoS from issuing a notice complying with subpara (b) when a decision in respect of which such a notice has already been issued has been revised.”

It seems that DWP do have the power to issue a decision that requires a MR before appeal even when there has already been an MR. 

So I requested a late MR to DWP which has been accepted…...

     
Peter Turville
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There is no requirement for a second MR when the original decision has been revised (partially or wholly in the claimants favour) by the DWP under SSA s9(6)(revision before appeal). Note such a decision is not a ‘mandatory reconsideration’ under SS&CS;(DA)Reg 3ZA as that has already been complied with. SS&CS;(DA)Reg 30 and UC etc(DA)Reg 52 deal with the ‘lapsing’ of an appeal following a revision under s9(6).

There is no need for a 2nd MR because the second appeal will still be against the original decision that was previously MR’d, was then subject to an appeal and was then revised before the appeal hearing. In other words the chain of decision making back to the original decision is not broken by the ‘revision before appeal’ decision even though that lapses the original appeal.

The problem can be that admin. staff at HMCTS who look at whether an appeal is valid look for the magic words ‘mandatory reconsideration notice’ and don’t understand that an MR is not required if the appeal is against a s9(6) revision decision (which lapsed the previous appeal).

It can help to send the new appeal with a covering letter and the revision decision and pointing out that the magic words ‘mandatory reconsideration notice’ are not required and requesting that if validity in doubt the appeal is placed before a judge for a direction that it is a valid appeal and should be addmitted.

If HMCTS notify the client that it is not accepted as a valid appeal they should complain to HMCTS. Their staff really should be able to identify and deal with basic procedural issues like this! Revision before appeal existed long before the cahllenge process was ‘simplified’ by the introduction of MR

     
nevip
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Peter Turville - 17 August 2018 12:20 PM

There is no requirement for a second MR when the original decision has been revised (partially or wholly in the claimants favour) by the DWP under SSA s9(6)(revision before appeal). Note such a decision is not a ‘mandatory reconsideration’ under SS&CS;(DA)Reg 3ZA as that has already been complied with. SS&CS;(DA)Reg 30 and UC etc(DA)Reg 52 deal with the ‘lapsing’ of an appeal following a revision under s9(6).

There is no need for a 2nd MR because the second appeal will still be against the original decision that was previously MR’d, was then subject to an appeal and was then revised before the appeal hearing. In other words the chain of decision making back to the original decision is not broken by the ‘revision before appeal’ decision even though that lapses the original appeal.

The problem can be that admin. staff at HMCTS who look at whether an appeal is valid look for the magic words ‘mandatory reconsideration notice’ and don’t understand that an MR is not required if the appeal is against a s9(6) revision decision (which lapsed the previous appeal).

It can help to send the new appeal with a covering letter and the revision decision and pointing out that the magic words ‘mandatory reconsideration notice’ are not required and requesting that if validity in doubt the appeal is placed before a judge for a direction that it is a valid appeal and should be addmitted.

If HMCTS notify the client that it is not accepted as a valid appeal they should complain to HMCTS. Their staff really should be able to identify and deal with basic procedural issues like this! Revision before appeal existed long before the cahllenge process was ‘simplified’ by the introduction of MR

Agreed.

I had a case last year where a revision had clearly been carried out and notified but not on the template MR letter.  Appeal rejected by HMCTS as invalid.  I resubmitted it arguing that the issue was whether the substantive law had been complied with (it had) and that the outward form of decision notices was neither here nor there.  I requested the matter be put in front of a judge.  The judge agreed with me entirely and instructed a clerk to log it onto the system.  Unnecessary time wasting.

 

     
Jane O-P
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Thanks for your comments, it did go in front of a judge - the judge issued a directions notice acknowledging that there had been one MR, but that we had to have another one.

     
Peter Turville
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Jane O-P - 17 August 2018 12:59 PM

Thanks for your comments, it did go in front of a judge - the judge issued a directions notice acknowledging that there had been one MR, but that we had to have another one.

O dear. Unless there is some factual / procedural issue we have all missed the judge has made an error that compounds an error!

You can challenge a direction by requesting another one to amend, suspend or set aside the original - Tribunal Procedural Rule 6(5). The original directions notice should notify you of this - usually in small italics at the end of the notice.

Requesting the original decision be set aside (because the judges direction that a new MR is required is erroneous in law) would seem appropriate in your case.

Another example of why MR is (nearly always) such a waste of everbody’s time and should be abolished!

although you cannot make a complaint about the judge for this - it might be worth writing to the regional judge to draw it to their attention. In my experience it is the sort of issue they are happy to pick up an ‘remind’ their colleagues of the appropriate legislation / procedures.

      [ Edited: 17 Aug 2018 at 01:49 pm by Peter Turville ]
Jane O-P
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Thanks for your help with this.

We requested a new direction and another judge has directed the the appeal should be accepted because it obviously has already been reconsidered.