Mandatory Reconsiderations ESA needing to claim JSA

Damian - 26 September 2013 09:03 AM

Tom H - 22 September 2013 06:01 PM

  When the DWP’s guidance states that ESA pending appeal will be backdated to the “effective date” I suspect it is referring to the date that the appeal was lodged with HMCTS, rather than the date of the decision under appeal.  To be fair that position would appear to reflect the law.

Its always hard to be sure what is meant in these sorts of documents but I think it can’t mean the date the appeal is lodged because the full phrase is the “effective date of the decision”. I suppose this could mean the date of the decision on MR but I don’t think that is likely given the way the phrase is used repeatedly in the thing.

I do share peoples concern that whatever the person who wrote that document think the terms of the regs might be a problem. The phrase “has made and is pursuing an appeal” is in both reg 3(j) of the C&P regs and reg 30(3) of the ESA regs. Can this phrase be said to apply to a period when someone didn’t actually have a right of appeal?

Damian, I had in mind exactly what you say in your last sentence above when I wrote my last sentence above, ie there doesn’t appear to be a legal basis for going back any further than the date of the decision to award ESA pending appeal.  The latter by the way (I thought I’d made it obvious in my 2nd Dec example) was the “decision” I was referring to.  Richard might be right and Reg 30(3) status may be retrospectively awarded to the day after the WCA decision under appeal.

Looking again at that particular extract from Detailed Lines to Take for Customer Representative Groups which is as follows:

“If someone still disputes DWP’s decision after a mandatory reconsideration has been conducted, and submits an appeal, then Employment and Support Allowance will be put back into payment at the assessment rate when they lodge their appeal and will be paid pending the appeal hearing. Payments will resume from the date that DWP receives a request for an appeal response from HMCTS, notifying the Department that the person has lodged an appeal. This will happen automatically, unless the person has made a claim for another benefit such as Jobseekers’ Allowance during the mandatory reconsideration period. If this is the case, and the person wants to claim Employment and Support Allowance pending appeal instead, then they will have to notify DWP of this.

Payments of Employment and Support Allowance will be backdated to the effective date of the decision in the case. Any payments owed for this period will be restored. DWP will subtract any income replacement benefits that may have been claimed during the mandatory reconsideration period from the total owed.”

it probably does suggest arrears right the way back to the day after the decision under appeal (“any” [benefits] paid during the “MR period” are to be subtracted from the ESA) but if we’re not careful we start interpreting mere guidance like it’s law.

What is clear from the above extract, however, is that the DWP are going to assume that you want to stay on JSA unless you say otherwise.  I was thinking of just adding a few lines to the new appeal form to the effect “I would like to claim ESA pending this appeal.  During the Mandatory Reconsideration period I have, as the DWP are aware, been claiming JSA which I understand will have to end before my ESA can re-start.  I further understand, however, that DWP will not cause me hardship by ending payment of my fortnightly payment of JSA before fortnightly payments of ESA are ready to take their place” (something like that).  However, I’m not sure that the DWP are even sent a copy of the appeal form (anyone?).  They are invited by HMCTS to provide a response to the appeal which implies that a copy of the appeal form will be included in HMCT’S letter to the DWP.

Yes, and at what point will the client be told that HMCTS has contacted DWP (if at all)? I can’t see the DWP falling over themselves to go out of their way to contact the client when they receive notifcation that the appeal has been lodged (in order to advise the client that they can safely close down their ongoing JSA claim). It’ll be up to the client, I fear, to repeatedly ring the contact centre at regular intervals to check whether there is a system note indicating that the DWP is aware there is now an ongoing appeal.

1964 - 26 September 2013 12:27 PM

Yes, and at what point will the client be told that HMCTS has contacted DWP (if at all)? I can’t see the DWP falling over themselves to go out of their way to contact the client when they receive notifcation that the appeal has been lodged (in order to advise the client that they can safely close down their ongoing JSA claim). It’ll be up to the client, I fear, to repeatedly ring the contact centre at regular intervals to check whether there is a system note indicating that the DWP is aware there is now an ongoing appeal.

Indeed - this is a big enough problem under the current process with appeals sections not promptly dealing with the appeal on receipt and then notifying ESA processing sections that the appeal has been received and registered! A further point to add to our list.

A BIG PLEE TO YOU ALL

We raised the impact of MR on WCA cases duirng a meeting with the Minister, Mark Hoban, arranged by the MP for Witney. The admin nightmare it will generate for DWP was the one issue around the WCA that appeared to grab ministirial & aids attention. We intend to follow up the MR issue with Hoban & Cameron. Please keep posting your concerns/issues aroung administration of MR in WCA cases.

Just looking at the Detailed Lines doc again.  Woe betide the claimant who answers the call from the DM and who agrees to think about getting extra evidence.  Selected relevant extracts are:

“If a Decision Maker cannot review a case fully in a person’s favour, they will call the person and make them aware that the Decision Maker is likely to reach an adverse decision. During the call, the Decision Maker will ask the person about any aspects of their case which are unclear, and will also ask if they have any further evidence which might help the case (for example, a letter from a health specialist not previously sent to DWP). If the person does have any further evidence, the Decision Maker will advise them where to send it.

The Decision Maker will then go on to conduct the mandatory reconsideration, taking into account any new evidence which has been provided.”

That sounds fair, but wait a second:

“If during the call a person tells the Decision Maker that they have further written evidence which can be sent to the Department, then the Decision Maker will wait to receive this evidence before they reconsider the case. They will postpone the mandatory reconsideration for a month, to allow the person time to send the evidence.” (my emphasis)

So best not to answer the phone, then? Possibly, but be careful:

“the Decision Maker will make at least two attempts to call the person involved to discuss the matter, at least three hours apart. For some benefits, they will make three or more attempts, depending on time constraints.”

But hold your nerve claimant because:

“If the Decision Maker isn’t able to contact the person by telephone, they will go ahead with the mandatory reconsideration on the basis of the evidence that is already available to them.”

I can already hear the DWP spiel: “That’s ok sir I’ll not turn down your reconsideration request.  Have a think about what I said about getting some extra info.  Don’t worry I’ll give you a month.  Bye”

And what’s the betting they blame the delay on making the recon on the fact they’ve been trying unsuccessfully to contact the claimant.  Eagerness to speak to client beforehand, followed by, as 1964 suggests, not a squeak afterwards.

Edit: just checked HMCTS’ guidance (there’s a link at post 32 above) and it confirms at page 17 that a copy of the appellant’s completed appeal form will be issued to the DWP.

Just returning to a point I made at post 28 above about the discretion the new mandatory recon provisions appear to give DMs. 

Who decides what category of decision will contain a mandatory recon notice?  The DMG?  Eg, if Newcastle office were struggling with big backlogs of mandatory reconsideration decisions there seems nothing stopping it temporarily leaving out the MR notice from decision letters, thereby pushing all appeals to HMCTS.  There seems to be a transfer from hard law (legislation) to soft law (guidance) here. 

Accordingly, isn’t there scope for arguing that all the decisions that include an MR notice do not prevent an immediate right of appeal on the simple ground that there is no legal basis for including one in any decision letter?  That is, there is no section of the SSA or other primary legislation which authorises a MR notice (section 9 SSA obviously authorises the making of a revision but that’s not the notice).  Doesn’t section 12 SSA pre-suppose that there is such a provision rather than acting as that provision itself?  I could be completely wrong.

Given the uncertainty, doesn’t subsection (3) of section 12, despite expressly applying to regs made under subsection (2) inform (equally restrict) the type of decisions to which regs under (3A) attach a MR requirement

Hypothetically speaking, of course, it might be of interest to consider how views on the success (or otherwise) of this idea might be influenced if every single person caught up in this were advised to lodge a protest with his or her MP. This might particularly be the case where that MP voted to amend the Act based on DWP assurances that it would simplify the process.

If you take a look at DMG 37/12 section 86 - 90 this in part is useful perhaps

and see the attachment as it is the procedure at JSA interview.

Just like to add if client is being moved onto the JSA Claimant Commitment made possible by the Welfare Reform Act 2012, amendments to Jobseekers Act 1995 and the Jobseeker’s Allowance Regulations 1996. Of which the above download is based,

Amendments can be found here:

http://www.legislation.gov.uk/ukpga/2012/5/notes/division/5/2?view=plain

Is it just me or do the new requirements from the Tribunals Service appear to restrict claimants’ rights rather more than regulation 3ZA actually allows?

SSCS1 form

The statutory requirement appears to be that the SoS has considered whether to revise: not that he has finished considering and issued a prescribed notice. I know the Tribunal can regulate its own procedure, but surely this doesn’t allow a restriction beyond the minimum statutory appeal rights?

It also seems biased, since a claimant might contend that the prescribed condition has been met but the SoS has wrongly refused to issue a notice. Yet this procedure gives an automatic preference to the SoS’s version of events.

MrFinch - 07 October 2013 10:16 AM

Hypothetically speaking, of course, it might be of interest to consider how views on the success (or otherwise) of this idea might be influenced if every single person caught up in this were advised to lodge a protest with his or her MP. This might particularly be the case where that MP voted to amend the Act based on DWP assurances that it would simplify the process.

Or more practically in every case where there is an unreasonable delay in processing the new JSA calim or delay in determining the revision request.

I made a presentation to a local CAB (local MP D Cameron) earlier this week about MR and the imapct on WCA cases. I think its fair to say it gave the bureau a lot to think about in how they might assist claimant through this process and the impact on the workload.

Surprise, surprise, no response from DWP to our detailed questions yet - they don’t even seem to know where they have sent it for advice!!

On an earlier point about DWP IT system being unable to ‘open’ a new JSA claim while the ESA claim is still ‘live’ on the system. It will be interetsing to see how DWP deal with this as most claimants will be encouraged to make their JSA claim on line. How easy will it be for advisers to insist DWP start the claim as a clerical claim (i.e. its done on a good old fashioned paper rather than on the IT system) my understanding is that DWP can still do this and still have the technology (but not the knowledge!)?

Sorry if I asking something already covered elsewhere but had an interesting discussion at the Jobcentre today. Do the new rules re MR/appeal apply to all DECISIONS after 28/10 or all REQUESTS FOR REVIEW after 28/10? ie claimant gets failed WCA decision this week but doesn’t contact for advice until 29/10 - can they still appeal direct using GL24 because the decision was before the change or can they only go for a MR because they asked for it after.

The regs come into force on the 28th and state that the clmt must apply for mandatory recon where they receive a decision notice that includes a statement explaining there is only a right of appeal where DM has reconsidered decision. I am assuming the decision notices sent sent out recently do not include this (?) but as of 28th will include this and so will take effect for decisions from 28th. Please correct if this is wrong.

Will there be a form to complete to ask for a MR or do we just send a letter with a request?

Steve_h - 11 October 2013 08:28 AM

Will there be a form to complete to ask for a MR or do we just send a letter with a request?

There is no special form. Its just asking for a revision really - can be done orally or in writing.
From “Appeals reform: questions and answers” p8

Q: How can someone ask for a mandatory reconsideration?
Some of the ways to ask for a mandatory reconsideration will be laid out in the decision notification that people will receive once an initial decision has been made in their case. For example, they can telephone a DWP Contact Centre that deals with their claim, or send a request in writing to the address given in the decision notification.
There may be other opportunities to ask for a mandatory reconsideration, depending on what benefit they are claiming. For example, if someone is claiming Personal Independence Payment and an adverse decision has been made, a Decision Maker will call them a week after the date on the decision notification. If the person disagrees with the decision in the notification, this would be an ideal

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/244840/appeals-process-changes-q-and-a.pdf

Here is another query on this:

In the Explanatory Memorandum to The social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals)(Amendment) Regulations 2013 (SI 2013/2380), it is said (par 8.2, dot no. 2):

“The Department does not intend to change the current policy following the introduction of mandatory reconsideration…. Provided medical evidence is supplied payment of ESA can be made at the assessment phase rate, backdated to cover the period from when the claim was disallowed”

Does this mean that someone:

who fails the WCA and has their ESA ended on 1/11/13, and
who does not claim JSA during the MR process (because they live off some savings and DLA coming in and did not wish to make a claim that they were capable of work), and
is given a MR decision on 1/12/13 that they are still considered fit for work, and
who appeals that decision and reclaims ESA…....

can have that new ESA claim paid backdated to 1/11/13 (if they can supply medical evidence)?

What is the legislative basis for this (ie rather than just it being DWP policy)? My reading of the ESA regs is that they enable ESA to be claimed during an appeal once it has been made and I thought for backdating a claimant still had to show that they would have been entitled throughout the backdated period (which they could not if they had not appealed until after the MR was completed)? But Im probably missing something…....