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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Appealing against a refused late mandatory reconsidertion request

 

Ken Butler
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Disability Rights UK

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It’s over a year now since a three judge panel held that there is a right of appeal against a refusal to accept a late mandatory reconsidertion request - CE/766/2016 (now reported as [2018] AACR 5) - 

https://assets.publishing.service.gov.uk/media/5bb61f8040f0b64a3f97a671/_2018__AACR_5ws.pdf

Does anyone know if DWP letters refusing a late mandatory reconsidertion request now state there is right of appeal?

     
WRT Case Worker
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Ken Butler - 09 October 2018 11:35 AM

Does anyone know if DWP letters refusing a late mandatory reconsidertion request now state there is right of appeal?

I haven’t seen one but would that not be a decision for the tribunal, Ken?

I just assumed there are no late appeals following an MR decision anymore. Unless of course the appeal application is 13 months or over. And even then, exceptional circumstances etc.

Thinking about the comment “hijacking the tribunal process” I think the message in the decision of the 3 judge panel was to make it clear to the SoS that it is not for her to decide what’s late and what isn’t.

     
Dan Manville
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Ken Butler - 09 October 2018 11:35 AM

Does anyone know if DWP letters refusing a late mandatory reconsidertion request now state there is right of appeal?

Yes they do. At least the couple I’ve seen.

     
Pete at CAB
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The case at the top of this thread mentions ESA, does anyone know if the same rule applies to late Housing Benefit MR requests?

     
Elliot Kent
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The point from the 3JP decision is that where MR applies to a DWP decision and a request for revision is received outside of the first month but within thirteen months - the DM can refuse to revise on the grounds of lateness if they are not satisfied that there was “good reason” for the delay. However any refusal to revise - whether on the grounds of lateness or on the merits of your case - gets you over the MR bump. Once you are over that bump, you have a full right of appeal against the decision on its merits. It ought to be stressed that you do not need to explain the lateness of the MR request to the Tribunal - your reasons for lateness are effectively irrelevant.

It has no direct application to late appeals once the MRN is issued, to HB appeals (because MR doesn’t apply) or to tax credit decisions (because there is a different legislative scheme).

In answer to Ken’s question - I have no idea. In five years of MRs, I have never seen the DWP refuse one on the grounds of lateness. Certainly I have been emboldened in the sort of requests that I have been making since the 3JP decision and it hasn’t yet caused any issues.

     
CHAC Adviser
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Pete at CAB - 17 October 2018 12:28 PM

The case at the top of this thread mentions ESA, does anyone know if the same rule applies to late Housing Benefit MR requests?

As far as I’m aware HB isn’t subject to MR so you can appeal a decision straight away without a Mandatory Reconsideration (though you can ask for a reconsideration if you wish before appealing).

     
Pete at CAB
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Thanks for the replies, I have a client who has an overpayment decision but is rather late asking for a recon/appeal and I was hoping that a similar rule would apply to requests for revisions of HB decisions.

     
NAI
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Pete at CAB - 17 October 2018 01:17 PM

Thanks for the replies, I have a client who has an overpayment decision but is rather late asking for a recon/appeal and I was hoping that a similar rule would apply to requests for revisions of HB decisions.

The client can appeal within 13 months of the decision to the local authority. If the local authority objects, it has to immediately refer it to a tribunal judge. My experience is that local authorities sit on appeal requests, which usually removes their ability to object. It is well worth reading the Tribunal Rules. They are quite easy to read compared to other regulations.

     
HB Anorak
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The different HB appeal mechanism has pros and cons.  The way the 3JP panel has left things means that for DWP benefits you automatically refresh the time limit to appeal to the Tribunal following an out of time MR, as long as the MR application was made within 13 months.  That doesn’t happen in HB: an out of time revision application which is not entertained by the Council due to lateness does not but any extra time for the appeal - you would still be submitting an out of time HB appeal, but as long as it’s less than 13 months since the original decision most local authorities won’t object.  Experience has taught them that the Tribunal will tend to admit a late appeal that looks as if it has some substantive merit, so there is no point objecting.

Occasionally a council will have the chutzpah to object to the admission of an appeal that was a few weeks late, after said appeal has sat in someone’s inbox for several months … but they mostly realise that wouldn’t look good.

     
HB Anorak
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Pete at CAB - 17 October 2018 01:17 PM

Thanks for the replies, I have a client who has an overpayment decision but is rather late asking for a recon/appeal and I was hoping that a similar rule would apply to requests for revisions of HB decisions.

If it is already outside the absolute max 13 months, there are a couple of alternative arguments.

The first is to look for something wrong with the original decision notice.  There is a very high risk that an overpayment notice will not be fully compliant with the requirements.  It doesn’t have to use the formal language of adjudication, but it needs to be possible for the reader to identify all of the following:

- the decision(s) that have been revised or superseded to create the overpayment in the first place
- the benefit weeks to which the overpayment applies - this will require a subtotal for each individual revision/supersession in a series
- the person or persons from whom the overpayment is recoverable
- the reason why the overpayment is recoverable per se and the reason why it is recoverable from this person

If the notice fails to convey that information, you can argue that a proper notice is still required and no time limits have expired yet.

The second argument relies on the odd status of overpayments, something the UT remarks on from time to time.  An overpayment is not a “relevant decision” as defined in para 1 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (the HB equivalent of the SSA 1998).  There is a right to appeal to a Tribunal against a “determination” that an o/p is recoverable, but arguably all the other rules that apply to relevant decisions do not apply to overpayments.  An overpayment can therefore be adjusted in the claimant’s favour at any time - it is not subject to the time limits that govern the favourable revision of “relevant decisions” because it isn’t one.  See for example R(H) 3/04, which remains good law on this small point even though it is obsolete on its main theme of landlords’ appeal rights.

     
Pete at CAB
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Thanks for the replies, the HB matter is only a few months outside the original one month deadline so I hope that they will reconsider without the need for an appeal. I would like to avoid an appeal if at all possible as I don’t think my client would find it very easy.

     
Stainsby
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I rarely if ever ask for a revision in HB cases, I always go straight for an appeal.  This is for the simple reason that Councils are free to consider revising the decision before it gets to the Tribunal.

If they do not revise the decision, I wait for their bundle and put all the arguments in a written submission at that stage

I only started asking for a revision in social security cases when it became mandatory, before that time I would work on the same principle that DM’s could revise of their own volition if the alternative as to go to all the trouble of writing a submission trying to defend what was a weak case even from their perspective