Forum Home → Discussion → Decision making and appeals → Thread
Appeal or MR?
Client refused ESA in decision dated 18/10/13.
Appeal made - old system - correct so far.
Decision changed - on 03/12/13 - Client put into WRAG - letter gives right of appeal.
Is this right or does he need to request an MR?
Client requests MR as wants to be in SG.
On 27/02/14 letter to say decision unchanged. Letter says no right of appeal but needs to ask for an MR. As an added complication the ESA office accept that this letter was not actually posted to the client until 27/03/14.
Did the letter dated 3 Dec advise that the appeal had lapsed? There’s conflicting authority on this. If his original appeal included an argument that he should be in the SG as well as having LCW and, on revision, the DM accepts the latter but not the former then it’s arguable that in substance the decision is not more advantageous and his original appeal does not lapse. There is caselaw on this which you’ll find in the commentary to Reg 30 D&A (and there’s been a more recent UT judgment too).
If the original appeal lapsed, the letter of 3/12/13 notifying of the revision did not mention MR so Reg 3ZA D&A does not apply in my view and a new appeal could have been made rather than MR.
There’s arguably no legal basis for the MR application that is then subsequently made although it is undoubtedly an ordinary revision request under Reg 3(1)(b) D&A. They refuse to revise so that extends the time limit for appealing. But the new refusal to revise now contains an invitation to make a MR. I don’t think there’s a legal basis for that invitation and the client can go straight to appeal. That’s because Reg 3ZA which governs MR applies only to a decision under section 8 or 10 (including one revised under section9). Here, the decision is not revised so the decision of 3/12/13 remains the operative one and there wasn’t a MR invitation in the 3 Dec letter).
But you could just go with the DWP’s flow I suppose and ask for the MR. Otherwise, you might have some HMCTS clerk in Bradford sending your appeal back to you. Either that or apply for a direction that the original appeal has not lapsed.
[ Edited: 3 Apr 2014 at 01:27 pm by Tom H ]Thanks for this Tom.
The original appeal did not ask for the support group and the appeal was lapsed (I think correctly) when the C was put into the WRAG.
I think you are correct in that the C did have a right of appeal against the 03/12/13 decision, and indeed still has this right.
However is this case surely the appeal has to go to the ESA office, rather than directly to the tribunal service.
I have decided to wrote to ESA either (a) to appeal or (b) if they dont like this to carry out an MR.
I think that’s a sensible course of action. Whilst you mentioned in your original post that the 3 Dec letter gave him a right of appeal, it wasn’t clear whether it expressly requested the appeal be sent to the DWP or Tribunal. Rule 22 Tribunal Procedure Rules envisages appeals being sent to the Tribunal where there is both (i) no MR invitation and (ii) no request to send the appeal to the DWP (if it mentions the right of appeal but is silent on where it goes to then Rule 22 implies it should go to HMCTS). Where the letter does state that the appeal should be sent to DWP then Rule 23 kicks in and only then can it safely be sent to the DWP.
[ Edited: 3 Apr 2014 at 03:00 pm by Tom H ]No MR was required and there was a right to appeal. It was a standard appeal - the disputed decision having issued prior to 28 October, and altered (after 28/10) by way of an ‘any-time’ revision.
So the second decision is already a revised decision and a second GL24 ought to have been submitted.
Yep, that’s pretty much what we said. Except, its not a late appeal because the refusal to revise extends the time limit for appealing against the 3/12/13 decision.
In all liklihood, the JC would have taken the MR request as a supersession request, the outcome of which is subject to MR.
I don’t think they’re that clever Tony. The post stated in any event that the letter refused to revise rather than refused to supersede. The job is difficult enough already without us having to start assuming that “refusal to revise” means “refusal to supersede” and vice versa.
On balance therefore, I think I’d be inclined to late appeal the revised decision using a GL24 (you’ll need a covering letter), and MR what is probably a refusal to supersede and have them heard together, if you can actually get them to a hearing.
Strictly you probably don’t need to bother about the second decision, but in anticipation of a difficult and protracted administration dispute, and battle with TTS, I think I’d be taking every possible option.
Yes, that’s what he’s doing by the looks of it:)
[ Edited: 3 Apr 2014 at 04:06 pm by Tom H ]Actually the most recent decision does not mention the words revise or supersede.
It says they have looked again at the decision and have not changed it.
As the client had asked for a (mandatory) revision I interpreted the letter as a refusal to revise. It is possible that the letter is actually a refusal to supersde ... or maybe it is both.
Where Nevip’s quote when you need it about a word meaning whatever you choose it to mean.
You mean this Tom.
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”
And if nothing else, this thread just goes to demonstrate how messy things have become since the introduction of MR. I think Nevip has the rights of it.
That’s the one Paul. Makes me laugh every time.
Tony, the decision of 3 Dec was a revised decision so the time limit for appealing it started to run, as you know, from 3/12 rather than 18/10 - section 9(5) SSA:
“(5) Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.”
However, the person chose not to appeal as you say. I’d said in my original post that he could have appealed it. Instead, he made a revision request. He called it a mandatory revision but it couldn’t be because the letter of 3 Dec had not invited him to make a MR. Nevertheless, and as stated in my first post, it was undoubtedly an ordinary revision request made within one month (ie under Reg 3(1)(b) D&A). They cannot stop you requesting revision in the ordinary way even where they choose (for whatever reason) to leave out the MR invitation from the decision letter. We don’t know here whether the omission of the MR invitation was deliberate. But that’s irrelevant.
I’m at a loss to understand how you’ve interpreted that above revision request as a supersession request on the facts provided. Of course, a supersession request could not be ruled out, eg if in his request he stated that he disagreed with the 3 Dec decision (which, as a revision, is effective from 18 Oct) because his condition had worsened since 18 Oct, but there was nothing to suggest that in the OP. On the contrary, by applying for mandatory revision he seemed to be saying that on 18/10/13 (rather than at some point afterwards) he satisfied the SG and so wanted the decision revised. Where there is any confusion the law, as you know, states that a decision cannot be superseded where it can be revised.
But the DM refuses to change the decision. I accept I misread that part of the OP (I thought it said refused to revise). However, it hardly matters because it’s obvious that when the DwP responds to an express request for revision and states that the decision is unchanged, we can infer that that’s a refusal to revise, unless we’re living in Wonderland.
Provided his revision (ie, his purported MR request) was made within one month of 3 Dec, the refusal to revise extends the time limit for appealing – see Sch 1 to the Tribunal Procedure Rules which gives you a further month from the date of the refusal to revise. Obviously if you maintain that the decision is a refusal to supersede (or supersession at same rate) then yes it would be a late appeal then. However, it seems likely that it was simply a refusal to revise in which case it’s an “in-time” appeal (provided the new GL24 is made within a month of the letter refusing to change the decision).
And I merely said it’s arguable that the decision is not more advantageous, without committing myself. I also later agreed that appealing and seeking MR (“the two stage approach” as you call it) was a sensible course of action.
It seems, Tony, that you’ve attempted to set out an explanation for why the last letter choosing not to change the decision included a MR invitation whereas the earlier one (3 Dec) did not, ie because the last letter must have been a refusal to supersede. Whilst it’s an impressive attempt (which cannot be ruled out), the reality was probably just the computer spitting out MR invites irrespective of context.
[ Edited: 3 Apr 2014 at 06:15 pm by Tom H ]tony, sorry for post 5 being discourteous in its tone. I read back my last post and honestly I sometimes cannot understand what it is I am saying:). Take care.
I’ll second all of that, Tony, especially about the stressful nature of the work. Add to that the fact that when you hit “send” or “submit post” it can be difficult to rescind. Also agree that it would make a difference re the revision point. I’ve hardly got the chance to read recent caselaw nowadays but I recall (without being able to find it) a relatively recent case which overturned the argument which I have used myself in the past that you cannot revise a revision. I had that case in mind when I posted earlier.