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A rushed question regarding MR
Hi All
I’ve not time to look this up so am looking for validation of what I believe is correct. I’ve seen two MR decisions so far, both revised favourably for my clients, one into WRAG and one reduced sanction period.
In both cases the replies state that to challenge them again, i.e Support Group and no sanction at all, then we’d need to go down the MR route again.
That can’t be right! Surely?
It can’t be right. When a decision is revised under section 9, any appeal is against the original decision as revised. That is to say, an appeal is not against the new decision to revise.
That means that the new provision that:
...there is a right of appeal under subsection (2) in relation to a decision only if the Secretary of State has considered whether to revise the decision under section 9
can only refer to a section 8 or 10 decision and not a revision decision itself. It must then follow that where the SoS has in fact revised, he must necessarily have considered whether to do so.
Edited to add: It’ll be interesting to see if the Tribunal now unlawfully attempts to exclude an appeal.
Nope… I think it’s right!
“Consideration of revision before appeal
3ZA. (1) This regulation applies in a case where—
(a)the Secretary of State gives a person written notice of a decision under section 8 or 10 of the Act (whether as originally made or as revised under section 9 of that Act); and .
(b)that notice includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision. .
(2) In a case to which this regulation applies, a person has a right of appeal under section 12(2) of the Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act.
So if the Sec State says “we’ve got to reconsider it” then you’re stuck with it ad infinitum….
Raises an interesting dichotomy for chappie placed in the WRAG.
See Memo DMG 20/13 ( sorry I don’t have a link - I’m a bit of a Luddite)
Para 8 Example 2 - refers to AA being disallowed at claim stage and lower rate AA being awarded after MR. Example states that since the claimant has already had an MR against the decision to to disallow AA, an appeal for Higher AA can be accepted without a further MR.
This should surely apply in the same way to ESA
Nope… I think it’s right!
“Consideration of revision before appeal
3ZA. (1) This regulation applies in a case where—(a)the Secretary of State gives a person written notice of a decision under section 8 or 10 of the Act (whether as originally made or as revised under section 9 of that Act); and .
(b)that notice includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision. .
(2) In a case to which this regulation applies, a person has a right of appeal under section 12(2) of the Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act.So if the Sec State says “we’ve got to reconsider it” then you’re stuck with it ad infinitum….
Raises an interesting dichotomy for chappie placed in the WRAG.
But there is no power to require this a second time, simply by saying it again. The SoS can keep saying there is no right of appeal, but the regulation says there is once he has reconsidered once. Once the right of appeal arises, it can’t be retracted merely by repeating the prescribed wording. The only dispute about this would be whether ‘the decision’ refers to the original decision or the revision decision itself. That was the point of my post above – it can’t refer to the revision decision itself.
DWP did a Q&A on this dated December 2013 - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/264915/appeals-process-changes-q-and-a.pdf
Q: What happens if someone still thinks DWP’s decision is wrong after a mandatory reconsideration?
If, after mandatory reconsideration, a person still wishes to dispute DWP’s decision, they can appeal against the decision, regardless of whether the decision has been changed or remained the same. Any appeal must be made in writing to HMCTS. The Mandatory Reconsideration Notice will contain details of how to do this. A copy of the notice must be included with the appeal.
It seems to me that for the purposes of 3Z(1)(b) that “the Secretary of State has” already “considered an application for a revision of the decision” so there is a straight right of appeal from the revised decision. Because the policy intention was to resolve an initial dispute informally with a straight right of appeal if the claimant is still not satisfied then, again, it seems to me, that the policy intention has been complied with. This might be different from a revised decision on the SoS’s own initiative. Where the revised decision was on the SoS’s own initiative however, then there has been no dispute so reg 3Z places a requirement for an informal MR to take place before proceeding to appeal. In my view, the policy intention is not to torture the regulations with over literalism which results in placing a series of MR’s in the way of the appellant.
That’s what I thought Paul but in both cases I’ve seen the revised decisions come with the MR notice. I did the SSCS1 for the first and CTS have demanded a recon notice.
As the recon notice wasn’t issued with the WRAG decision I made an application under rule 7(2) for the requirement for the recon notice to be waived but they’ve come back demanding it.
I fear this is going to be a shambles, especially with my Mental Health caseload and their legendary ability to misplace correspondence.
Edit; I need to take this up with HMCTS as the appeal hadn’t even been registered; there’s clearly an instruction with the clerks at the new appeals centre to send SSCS1s back if there’s no MR decision.
Dan, when this starts happening to me I fear for my sanity.
Dan, when this starts happening to me I fear for my sanity.
Sadly I’m already in the madhouse, what with this and yet again today an adviser at JC refusing to accept a recon request over the phone… suffice to say I have taken up smoking again.
DWP did a Q&A on this dated December 2013 - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/264915/appeals-process-changes-q-and-a.pdf
Q: What happens if someone still thinks DWP’s decision is wrong after a mandatory reconsideration?
If, after mandatory reconsideration, a person still wishes to dispute DWP’s decision, they can appeal against the decision, regardless of whether the decision has been changed or remained the same. Any appeal must be made in writing to HMCTS. The Mandatory Reconsideration Notice will contain details of how to do this. A copy of the notice must be included with the appeal.
and therein lies the nub, if they haven’t issued the notice it bounces off HMCTS with nary a Judge’s glance.
Edit: So I’ve asked why
[ Edited: 16 Jan 2014 at 03:57 pm by Dan_Manville ]What about rule 7?:
An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
Clearly an appeal can only be made where a right of appeal exists (the Secretary of State has considered whether to revise), but once it’s argued that he has done so, a failure to include the correct paperwork cannot of itself render void the proceedings. The Tribunal has to apply 7(2) and consider the overriding objective along with Article 6 rights.
That’s a really good point. Where DWP revises a decision in the claimant’s favour but does not issue a decision stating it is a MRN, this would prevent or delay the matter going to appeal. A complaint to DWP would be a good idea, also if worried about being bounced by HMCTS, perhaps include paperwork you have showing that this is a revised decision - original notice, letter of recon and response, cover letter explaining.
Advice to decision makers (ADM) Chapter A3 reads as follows:
“Mandatory reconsideration before an appeal can be made
A3014 A person has a right of appeal in relation to a decision only if the DM has considered, on application, whether the decision should be revised. The claimant must be given a notice that informs them
1.
of the decision, whether as originally made or as revised and
2.
of the time limit for making an application for revision and
3.
that where the notice does not include a statement of reasons for the decision, the person may, within one month of the date of notification of the decision, request that a written statement is provided for the reasons for the decision and
4.
that there is a right of appeal against the decision but this can be exercised only if the Secretary of State has considered an application for revision.”
What about rule 7?:
An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
Clearly an appeal can only be made where a right of appeal exists (the Secretary of State has considered whether to revise), but once it’s argued that he has done so, a failure to include the correct paperwork cannot of itself render void the proceedings. The Tribunal has to apply 7(2) and consider the overriding objective along with Article 6 rights.
Thank you, it was rule 7(2) I quoted in my application for appeal but as mentioned it bounced off the appeals centre without being registered. (That’ll teach me to look stuff up before posting).
So if we proceed on the basis that they are applying 7(2)(b), what is the next step? Can that decision be appealed to the UT? If so I would argue that CH 2042 2011 may be of assistance by analogy.
So if we proceed on the basis that they are applying 7(2)(b), what is the next step? Can that decision be appealed to the UT? If so I would argue that CH 2042 2011 may be of assistance by analogy.
Thank you; I suspect it will be