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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DWP making the right noises on Mandatory Reconsiderations

 

Stephen C
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Drumchapel Citizens Advice Bureau

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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
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Welfare Team, Kensington and Chelsea CAB

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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
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Welfare Rights Adviser, Plumstead Community Law Centre

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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
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Benefits Adviser, Isle of Wight CAB

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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
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Welfare Rights Adviser, Plumstead Community Law Centre

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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
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Information and Advice Resources, Age UK

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

KPI’s for mandatory reconsideration

     
Andyp5 Citizens Advice Bridport & District
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Citizens Advice Bridport & District

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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!