Mandatory reconsideration.

Hi folks. Silly question time im afraid! Probably a simple yes or no answer but here we go :

As of yesterday I believe that the automatic right to appeal ESA disallowance has been removed and that a mandatory reconsideration request must be made first, which can take 2-3 months to process.

During this Recon period no benefit is paid at assessment rate hence no benefit.

I will have to advise that disallowed ESA claimants make a claim for JSA so that they can put food on the table etc.

If after 3 months the DWP refuse to change their decision and then allow an appeal can the claimant close their JSA claim and receive the assessment rate instead, or will they have to continue their JSA claim until tribunal?

Thanks in advance, as always.

Thanks tony. So you are saying that people who appeal an ESA decision will still receive the assessment phase rate at the moment as apparently the mandatory recons dont kick in with ESA until October.

From 8 April 2013 the mandatory recons apply to PIP.

From 29 April 2013, the mandatory recons ONLY apply to UC and “new style” JSA and “new style” ESA.

“new style” ESA/JSA = contributory ESA or contribution based JSA that would be claimed by a person who would have to claim UC rather than income related ESA or income based JSA to top it up were they eligible for a top up.

In other words a person who fails LCW test for ESA will still be able to go straight to appeal UNLESS they are a person for whom UC would be the appropriate means tested benefit were they to be entitled to a means tested benefit.

So don’t worry about ESA mandatory recons for the time being (as almost no one is going to be effected by this for ages).

The scope of the new rules are described in Reg 1 of the UC, PIP, ESA and JSA D&A) Regulations (SI 2013 No. 381):

1.—(1) These Regulations may be cited as the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013.
(2) They come into force—
(a)in so far as they relate to personal independence payment and for the purposes of this regulation, on 8th April 2013;
(b)for all remaining purposes, on 29th April 2013.
(3) These Regulations apply in relation to—
(a)an employment and support allowance payable under Part 1 of the 2007 Act as amended by Schedule 3 and Part 1 of Schedule 14 to the 2012 Act (to remove references to an income-related allowance);
(b)a jobseeker’s allowance payable under the Jobseekers Act as amended by Part 1 of Schedule 14 to the 2012 Act (to remove references to an income-based allowance);
(c)personal independence payment; and
(d)universal credit.

They will need to make new regulations to apply mandatory recons elsewhere in the benefits system.

Martin

[edited to give a more detailed explanation]

One odd (anoraky) point to note about the amendment to the Tribunal Procedure rules is that they say the appeal is to be lodged direct with tribunal etc etc in any case where mandatory reconsideration applies. They then define mandatory reconsideration as follows:

“(9) For the purposes of this rule, mandatory reconsideration applies where the notice of the decision being challenged includes a statement to the effect that there is a right of appeal in relation to the decision only if the decision-maker has considered an application for the revision, reversal, review or reconsideration (as the case may be) of the decision being challenged.”.

What that means is that if the DWP get things wrong and accidentally include this warning in a case to which the UC, PIP, ESA and JSA (D&A) Regs do not apply you still file directly with the tribunal.

I’ve read in various places that mandatory reconsideration will apply to all benefits (apart from HB) from October 2013. From what I understand from the previous posts, there is currnetly no statute in place to allow this to happen?

I presume that this means that until new regs are put in place, (non-new style) ESA claimants who are appealing a LCW decision can continue to get paid until their appeal is decided upon, and to the best of anyone knowledge there are no immediate plans to introduce such regs?