Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DWP making the right noises on Mandatory Reconsiderations

 1 2 > 

Stephen C
forum member

Drumchapel Citizens Advice Bureau

Send message

Total Posts: 10

Joined: 4 February 2019

Hi everyone. New to the forum (and fairly new to the job!)

Some of you will have seen that DWP Minister Justin Tomlinson recently talked about the number of benefit decisions overturned at the Mandatory Reconsideration stage vs the appeals stage. He says that this is primarily due to additional oral and written evidence being presented at appeals stage. Apparently they’re looking to put mechanisms in place to draw out this additional evidence at the MR stage to get more accurate decisions sooner.* https://www.rightsnet.org.uk/welfare-rights/news/item/minister-says-he-has-taken-a-deep-breath-at-poor-quality-of-some-communicat

What do we think? I assumed that MRs were deliberately obstructive and that this explained the discrepancy between the decisions overturned at MR vs appeals stage, but this indicates otherwise. Or is it just the DWP making the right noises? Have they made similar commitments in the past?

*Funny Story: I’m co-located in a Jobcentre and one of the staff members opined recently that one of the reasons for this was that welfare rights advisers actually tell clients not to provide additional evidence until the appeal stage, on the misguided assumption it would make their appeal stronger. It was pretty conspiratorial and I said it wouldn’t make much sense to deliberately draw things out even longer for claimants. But thinking about it, it’s possible that in managing client’s expectations we could inadvertently have this effect (“Don’t worry too much if you get a negative decision at this stage - more decisions are overturned at appeal” etc.) I have found myself redoubling my efforts to get the right decisions first time round.

ub40worker
forum member

Welfare Team, Kensington and Chelsea CAB

Send message

Total Posts: 89

Joined: 23 January 2018

Stephen C - 16 May 2019 04:24 PM

*Funny Story: I’m co-located in a Jobcentre and one of the staff members opined recently that one of the reasons for this was that welfare rights advisers actually tell clients not to provide additional evidence until the appeal stage, on the misguided assumption it would make their appeal stronger. It was pretty conspiratorial and I said it wouldn’t make much sense to deliberately draw things out even longer for claimants. But thinking about it, it’s possible that in managing client’s expectations we could inadvertently have this effect (“Don’t worry too much if you get a negative decision at this stage - more decisions are overturned at appeal” etc.) I have found myself redoubling my efforts to get the right decisions first time round.

I’ve heard this before from other advisers. I also try and make the MR as strong as the Appeal. With regards to getting the appeal rate of ESA in as quick as possible I can understand somewhat but still not good practise in my opinion.

Stainsby
forum member

Welfare rights adviser - Plumstead Community Law Centre

Send message

Total Posts: 316

Joined: 17 June 2010

See https://www.rightsnet.org.uk/forums/viewthread/14271/P30

My client did not provide any extra information in this case and they obviously lapsed the appeal as a damage limitation exercise

The 3JP which heard   [2018] AACR 5 [2018]  held at [26]

“26. We would echo Professor Sainsbury’s scepticism on assertions that streamlining and a mandatory review have real advantages in avoiding unnecessary appeals that have merit. This is because under the 1998 Act (and indeed under the previous statutory scheme) it has always been, and remains, the case that the Secretary of State could (and often did) treat the appeal as an application for revision and revise the decision before it reached the F-tT. Moreover, the experience of two members of this three-judge panel from many years of sitting in the First-tier Tribunal (and its predecessors) was that revision decisions taken after an appeal had been made did not cause any significant administrative problem for tribunals.”

I see MR as just another hurdle to jump before an appeal and it is my experience that most decisions are not overturned on MR no matter what further evidence is supplied. 

I usually do the bare minimum to get the MR over with and then do the real work once I get the MR notice, particularly in ESA cases where the object is to get the appeal acknowledged and ESA back into payment pending appeal, thus avoiding the trap of forcing the client onto UC.

Getting further medical evidence at this stage not only delays things , it will also most likely only result in a stock response along the lines of

“With Regard to Mr X’s GP statement ........, I wish to remind the Tribunal that it is important to distinguish between the role of the health care professional and that of a GP …..A GP does not routinely consider functional restrictions appropriate to the activities and descriptors of the limited capability for work assessment”

There are sound reasons for advising clients not to bother too much with getting further evidence at the MR stage.

If the DWP were really serious about overturning bad decisions before Tribunal they would overturn them regardless of whether the evidence came in at the MR stage or as part of a submission to the Tribunal given that a decision can be revised at any time before the appeal is heard, and the appeal will lapse

[ Edited: 16 May 2019 at 05:34 pm by Stainsby ]
Mr Finch
forum member

Benefits adviser - Isle of Wight CAB

Send message

Total Posts: 421

Joined: 4 March 2011

It’s very difficult to say whether someone, who is saying phrases very similar to those said by his predecessors that turned out to be disingenuous, is on this occasion being more genuine.

I am as certain as I am about anything that mandatory reconsideration was introduced entirely in bad faith and with its main aim as blocking appeals by creating both an opportunity to dissuade and by removing immediate access to appeal-rate ESA.

The problem with the new approach is that he’s still talking about new ‘written and oral evidence’. Until the DWP accept that 90% of this is oral evidence and that it is substantially the same evidence that is being given in the claim form and in MR letters (but perhaps tested more by some cross checking questions) it won’t mean much as they’ll still be confused why this ‘new evidence’ isn’t being produced.

Stainsby
forum member

Welfare rights adviser - Plumstead Community Law Centre

Send message

Total Posts: 316

Joined: 17 June 2010

As the 3JP which heard   [2018] AACR 5 [2018]  said ” we have been here before”.

I have seen a few DWP submissions recently which argue that the” Gray Report” found that the WCA and PIP assessment were robust and reliable. ( a conclusion which is at odds with House of Commons Work and Pensions Committee report “PIP and ESA Assessments” published on 7 February 2018.)

The Gray reports have been much criticised but even then, they don’t exactly support what Tomlinson is now saying. Indeed,  it is noted in Chapter 4 of the second report at [36] that

“Discussions with Tribunal Judges have however suggested that, rather than further written evidence, it is cogent oral evidence from the claimant at the hearing that is by far their most common reason for overturning decisions. This either means that this evidence is not sufficiently well-collected during the assessment or is not convincingly analysed or written-up. It may also mean that Tribunal Judges and Health Professionals are routinely coming to differing judgements based on the same evidence”

Tomlinson is arguably misleading parliament in the light of this

 

[ Edited: 17 May 2019 at 11:41 am by Stainsby ]
Paul_Treloar_AgeUK
forum member

Information and advice resources - Age UK

Send message

Total Posts: 1831

Joined: 7 January 2016

This kind of sums up for me what MR has been used for essentially.

KPI’s for mandatory reconsideration

Andyp5 Citizens Advice Bridport & District
forum member

Citizens Advice Bridport & District

Send message

Total Posts: 493

Joined: 9 January 2017

Can’t help thinking what we should be asking nearly 6 years after they came in, have they added anything in a qualitative sense to the disputes process?

Has access to justice been made easier for claimant’s, is it an easy process to use, how well are the DWP/HRMC implementing it, what barriers if any, are there e.g. gatekeeping or blatant obstruction, have MR’s brought value to the process i.e. quickly disposing of cases (in a good way)?

Oh gawd i’m off, i’m boring myself again!

Scrap them asap!

 

Dan Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2208

Joined: 15 October 2012

Andyp5 Citizens Advice Bridport & District - 17 May 2019 12:04 PM

Can’t help thinking what we should be asking nearly 6 years after they came in, have they added anything in a qualitative sense to the disputes process?


Qualititive? No, but from a quantitive perspective loads of people have been discouraged from appealing so I think they’ve acheived what they hoped they would do.

 

Benny Fitzpatrick
forum member

Welfare Rights Officer, Southway Housing Trust, Manchester

Send message

Total Posts: 491

Joined: 2 June 2015

There is also the not-uncommon scenario, where evidence submitted at MR stage and resulting in no change to the decision, is actually the same evidence on which the Tribunal overturn the decision, remarking about why the DWP had not done so at MR stage.

My experience of MR is that it doesn’t really matter what you submit, DWP will ignore it and uphold the decision. That hurdle cleared, we can concentrate on the “real” appeal. This suggests to me that MR was only ever intended to be a hurdle or barrier to appeal, as pointed out above, the Department have always had the power to revise anyway.

Andyp5 Citizens Advice Bridport & District
forum member

Citizens Advice Bridport & District

Send message

Total Posts: 493

Joined: 9 January 2017

Dan Manville - 20 May 2019 12:10 PM
Andyp5 Citizens Advice Bridport & District - 17 May 2019 12:04 PM

Can’t help thinking what we should be asking nearly 6 years after they came in, have they added anything in a qualitative sense to the disputes process?


Qualititive? No, but from a quantitive perspective loads of people have been discouraged from appealing so I think they’ve acheived what they hoped they would do.

 

Absolutely agree with you Dan!

I was being mischievous with the post, because any excuse to flag up the iniquities of the MR’s is an excuse not to be turned down.

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 2096

Joined: 17 June 2010

Benny Fitzpatrick - 20 May 2019 03:26 PM

There is also the not-uncommon scenario, where evidence submitted at MR stage and resulting in no change to the decision, is actually the same evidence on which the Tribunal overturn the decision, remarking about why the DWP had not done so at MR stage.

My experience of MR is that it doesn’t really matter what you submit, DWP will ignore it and uphold the decision. That hurdle cleared, we can concentrate on the “real” appeal. This suggests to me that MR was only ever intended to be a hurdle or barrier to appeal, as pointed out above, the Department have always had the power to revise anyway.

Exactly this.

Have heard this “new evidence at appeal stage” nonsense for 30 plus years now. It’s just that. Nonsense.

Va1der
forum member

Welfare Support Worker - Community Renewal Edinburgh

Send message

Total Posts: 32

Joined: 7 May 2019

First post on the forum, and it’s on my favourite topic of MRs! (sarcasm, in case there was any doubt).

One of the main issues I am concerned with is the amount of clients that are reluctant to claim UC while they appeal a decision. In that respect I like to get the MR off ASAP, just to get it out of the way, and get the benefit instated pending appeal. In that respect I am almost tempted to submit a deliberately lacking MR, to the effect that the client gets a negative decision sooner rather than later. However, I am not of the habit to submit artificially bad work, especially if that may come back to haunt at the appeal stage.
In terms of evidence it seems to me that the DWP may be failing in their legal obligations if we attach evidence that indicates that something serious has been ignored/overlooked by the DM. For instance, that the client should have been identified as vulnerable, and better protected from a termination of their claim. In such cases it seems very worthwhile to make a well calculated MR with evidence attached. After all, I have heard of a few mystical cases where MRs have been successful, although I am not aware of the particular circumstances.
It would be useful if we could track those cases down, and see what the causes were, and whether they were case-specific, treated by particular DMs, or dependent on the language used in the submission, for instance.

That being said, I have had a few clients recently that have submitted their MR over the phone (which I would generally not advise) before seeking advice, that have had a negative decision back in as little as 2 weeks. This naturally allowed me to get the SSCS1 sent asap.

From a policy/bureaucratic perspective I think MRs make sense, as a tool to dissuade people from appealing, and thus saving the government that expenditure. However, it seems to me that if a change was to come to the current MR procedure it would be if the amount of MRs that progressed to appeal was so great that it added a cost greater than the savings of missed appeals, presumably by a margin significant enough to clearly show up in the budgets.

[ Edited: 21 May 2019 at 03:37 pm by Va1der ]
stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 791

Joined: 22 August 2013

i tend to do standard letters for mandatory re con (unless its an unusual set of circs or technical appeal) for a few reasons:

1. even where ive submitted evidence that the decision is clearly wrong it rarely makes a difference
2. in most cases my client wont be saying anything at the appeal that hasnt already been said in the pip2 and at the medical
3. with esa in particular (given the % of successful recons) its often better to have a negative decision quickly than potentially drag the process out

As for hope the department will have an epiphany here, i remind myself this is the department that said..now i dont have this word for word but its fairly accurate…just because the decision was overturned on appeal does not mean that the original decision was wrong.

Stephen C
forum member

Drumchapel Citizens Advice Bureau

Send message

Total Posts: 10

Joined: 4 February 2019

stevenmcavoy - 21 May 2019 04:32 PM

As for hope the department will have an epiphany here, i remind myself this is the department that said..now i dont have this word for word but its fairly accurate…just because the decision was overturned on appeal does not mean that the original decision was wrong.

 

The full quote is “Most overturned decisions are the result of additional evidence being provided which was not available to the initial decision-maker. This does not mean the original decision was wrong.” https://www.independent.co.uk/news/uk/politics/dwp-fit-to-work-esa-appeal-tribunal-a6923066.html So they were making the same point as Tomlinson in the original post (though that’s from 2016 and many of you with plenty of MR experience have mentioned how rarely it makes a difference).

Elliot Kent
forum member

Shelter

Send message

Total Posts: 1210

Joined: 14 July 2014

I don’t necessarily accept that MR was introduced with malicious intent. I am prepared to assume that DWP higher ups genuinely believe the “magic new evidence” narrative and that the MR process was introduced with the goal of getting that new evidence dealt with at an earlier stage.

This just seems to me to fit with the DWP corporate perspective on its own fallibility. Just as UC is a perfect system and that anyone who says otherwise is lying, DWP decisions or the assessment reports on which they are based are very rarely just “plain wrong” on their own merits. Perhaps they might turn out to be wrong down the road - but its never because a mistake was made and only because something has come out of the woodwork down the road.

But I think this attitude is exactly why MRs don’t work and won’t ever work. DWP are thoroughly unwilling to critically appraise and revisit their own workings. The MR process is so often seen as requiring the claimant to show evidence to override the HCP’s conclusions - and there is little interest in arguments about why the law has been wrongly applied, the facts misunderstood or whatever.

If MRs are not to be scrapped altogether (which they should be), then the only other way I see forward is to adopt some model more akin to homelessness reviews - where typically (at least if they are done properly) there will be a back and forth between the reviewer and the applicant’s reps with suggestions about what evidence is needed, “minded to” decision letters and so forth - all in the context of a ground-up re-appraisal of the case.

But that won’t work either. Homelessness reviews have only ended up that way because of the limited rights of appeal. You can only challenge a homelessness review on the grounds of an error of law - so reviewer’s decisions are put under the microscope on appeal and the reviewer is pretty much directly accountable if the council loses an appeal and has a costs order to pay; which really incentivises careful decision making. As we have de novo appeals and decision makers are not the ones who have to turn up at Tribunal and explain their own decisions, there is pretty much no reason to give two hoots about whether the decision is right or wrong.

Dan Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2208

Joined: 15 October 2012

Elliot Kent - 23 May 2019 10:19 PM

I don’t necessarily accept that MR was introduced with malicious intent.

I suspect you’ll find you’re in the minority there considering it mitigated Tribunal backlogs of around 18 months and diminshed the caseload by more than half in one fell swoop. There’s a lot of evidence that would refute Hanlons Razor in this instance; particularly the infamous KPIs that they insist they no longer work to. Those were quite clearly a high level interference in the process.

DWP decisions or the assessment reports on which they are based are very rarely just “plain wrong” on their own merits. Perhaps they might turn out to be wrong down the road - but its never because a mistake was made and only because something has come out of the woodwork down the road.

You evidently haven’t read the PIP reports that cross my desk every day. I tallied up about 18 months ago and at the time, of 108 that I’d taken to Tribunal, 94 of them made the same mistake; they overlooked friends and family prompting people to attend to their ADLs. The prevalence of findings akin to “they got here, were clean & well fed. There can’t be that much wrong with them” strangely more frequent at the end of the month, drive me to challenge your faith in the system. I’m on 162 now and I’ve lost one in all those. On wearier days my submissions; when I provide them, are often prefaced “once again” or “inevitably” I’m getting so sick of this systemic abuse.

The number of relatives and, often, professionals, who are prevented from contributing to the assessment interviews is also a matter of some concern.

I don’t see many ESA85s since IM but I’ve no doubt the same systemic problems arise there; they certainly did in the early days.