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Out of time mandatory recon
Anyone tried requesting mandatory recon out of time and if so, how did it go? Client awarded PIP enhanced rate mob, no daily living. Decision letter dated 20 March. There are clearly arguable points for daily living (he got 7…). There is also evidence that his condition (epilepsy) has deteriorated since the date of the decision. I’m thinking if we go for late MR request and it’s refused, it may look a bit fishy to them if we then say he’s got worse, although we will have evidence to back that up. To date we haven’t tried a late MR request so have no idea how these are being treated.
It’s easy - you make the request and then when you chase it up a while later they tell you there’s no record of it.
Any increased care or mobility needs since the date of the original decision would have to be he subject of a new claim.
Re the late mandy, I’ve done a few now (ESA & PIP) and all have been accepted. May be more luck than judgement, but hey- so far so good.
There was a recent thread on late MR vs change of circs. I think that there is no time limit for bringing a MR. Reg 3ZA D&A basically says that if (i) a person receives a decision letter which advises about the right to make a MR within one month then (ii) they can request a revision under any ground. One such ground is official error (irrespective of the merits of the case using such ground). There is no time limit for making an official error revision application. DM is obliged to “consider” that application and the appeal time limit of one month starts to run once DM notifies you of his/her decision. Hence no time limit as every MR could be made under official error grounds if need be.
Also, re change of circs, I don’t think you need to show that there’s been a worsening of condition at all in order to show a change of circs. I think we’ve all been influenced by the old caselaw re incapacity related benefits which made a distinction between new medical opinions based on the same facts and changes in clinical condition (only the latter, as we know, were found to be capable of being changes of circs). However, many of those decisions were pre section 17 SSA 98 and I don’t think they survive it. Even before the introduction of section 6(2)(g) D&A allowing supersession on the mere receipt of a new medical report, some commissioners were doubting whether there was a need for it on the ground that a new determination of, eg, incapacity was itself a change of circs.
The effect of section 17(2) and the fact there are few regs made under it is that there is virtually no issue estoppel in social security law. One DM is not estopped from disagreeing with another on exactly the same facts. So a new determination re the daily living component of PIP which scored 8 pts instead of 7pts would itself be a change of circs without the need to show her condition had worsened.
Edit: R(DLA)1/05 held that a new determination that care needs had lessened without any underlying change in the claimant’s medical condition could itself constitute a change of circs (sorry I kept changing my mind about what this judgment was saying hence the edits). A NI case so persuasive authority only rather than formal precedent but right in my view.
[ Edited: 15 May 2014 at 04:53 pm by Tom H ]Thanks for your considered response as ever Tom. All good points. I was just thinking of the MR request as an any grounds revision - of course you are right on the any time revision point. I was thinking through the best way to go tactically. I’ve no doubt that he could/should have scored at least 8 points on the initial award and if we can get that on recon or appeal he gets several months’ arrears. I was also wondering, cynically, if DMs are just refusing to reconsider at all if the (any grounds) request is outside a month, thus more or less closing off that route but it seems that may not be the case. There is also no doubt that the client has in fact got worse since the decision, and also now has a number of aids following an OT assessment which weren’t in place at the date of the decision - so we could go for change of circs rather than revision if we weren’t bothered about the arrears. This is the first PIP decision I’ve been involved in challenging to date (mainly due to the excruciatingly slow PIP process, and also because we’re a second tier service) so I’m interested in others’ experiences.
Realty is that no-one at DWP wants stuff going to appeal at present because
a) it lowers the claimant numbers prior to an election, and,
b) no-one wants a whiff that MR might be failing.
Where you end up of course is a change in about 12 to 18 months when they realise a whole pile of people have got through MR who perhaps shouldn’t have and different decisions start getting made and appeals drifting through.
In the meantime, I suspect time-limits are largely irrelevant. I mean, when was the last time anyone had a late appeal refused? We don’t live in that world any more.
In the meantime, I suspect time-limits are largely irrelevant. I mean, when was the last time anyone had a late appeal refused? We don’t live in that world any more.
I’d much rather rely on law than shifting political sands. Too often in this area of law we have to suspend disbelief over how at odds DWP policy is with the law its true but I’ll persevere with basing my arguments on law. That’s a sweeping statement above Mike. I don’t think the current policy on appeals is as relaxed as you like to think (although I agree that it is certainly more relaxed than before and for exactly the political reasons you mention).
Rosie raises the interesting point about whether DM’s might point blank refuse to consider whether to revise what they regard as “late” MR requests with the concern being whether that would then deny appeal rights. If you’re right Mike and the motivation is to reduce appeals/reduce claimant numbers then, if anything, we might expect DMs to refuse the majority of “late” MRs. My point was that, legally, there is arguably no such thing as a late MR at present.
And I think a “refusal to consider whether to revise” is not the same thing as a “refusal to revise”. Under the law prior to the introduction of MR, a refusal to revise, as we know, did not extend the time limit for appealing, whereas a refusal to consider whether to revise now appears to start the appeal clock ticking. Obviously, getting the DM to issue a letter confirming that he/she has refused to consider revising is going to be the difficult bit and at that point we’ll have to return to our old friend: law.
In the meantime, I suspect time-limits are largely irrelevant. I mean, when was the last time anyone had a late appeal refused? We don’t live in that world any more.
... That’s a sweeping statement above Mike. I don’t think the current policy on appeals is as relaxed as you like to think (although I agree that it is certainly more relaxed than before and for exactly the political reasons you mention).
... If you’re right Mike and the motivation is to reduce appeals/reduce claimant numbers then, if anything, we might expect DMs to refuse the majority of “late” MRs. My point was that, legally, there is arguably no such thing as a late MR at present.
I think you’re absolutely right. There is no such thing as a late MR. However, at the recent Stockport GMWRAG we had speakers from one of our local MR teams and it became apparent very quickly and very clearly that the agenda is absolutely to prevent things going to appeal but not necessarily by fair means or foul. More a case of desperately wanting MR to work with a diminution in the appeal process being the victim of that. So, would rather continue to gather evidence and talk through with claimant than simply give up and give the person their appeal rights. They have a touching faith in their ability to get it right first time despite 66 years of evidence to the contrary.
The likely outcome is not so much that you will get late MRs refused as they will go on for a while until an award can be made. Already produced some surprisingly positive outcomes here along those lines.
I totally accept my comment re: appeals was “sweeping” but I’ll stand by it. I’m not in the habit of making late appeals but everything I’ve picked up off our advice line in the past couple of years where an appeal would be out of time has succeeded. And I mean “everything”. My line now is that it is bad advice to tell people their appeal is out of time and the chances of getting it admitted are slim. That used to be the case. It absolutely no longer is.
I do find it a bizarre contrast with applications for leave to appeal where TS are in denial about doing blanket refusals to the UT. One could be even more cynical than usual and suspect the whole process of admitting late appeals whilst routinely refusing applications for leave to the UT is a less than subtle attempt by the judicial profession to keep things in-house and shore up their own borders against the onslaught of MR and sanctions and so on.
Yes, I know. Something messed up in the formatting by me. Apologies.
[ Edited: 16 May 2014 at 11:05 am by Mike Hughes ]
They have a touching faith in their ability to get it right first time despite 66 years of evidence to the contrary.
LoL.
I’ve been to many of those local liaison groups and too often the DWP people there talk “fair” but back at the coal face it’s as “foul” as ever. The evidence from other threads about telephone explanations for decisions not including advice about MR comes to mind, not to mention vague wording of decision letters re MR rights highlighted, literally, in another thread.
It’s good to hear of your experience of having late appeals admitted. I’ve my doubts whether Newcastle tribunal would be as generous but then again I’ve not advised on anything like the numbers you are talking of. Without a MR notice, of course, tribunal judges arguably have no jurisdiction to consider admitting appeals out of time. In that sense, the tribunal’s position re late appeals is a bit of a red herring.
For those claimants persuaded not to request a MR and to go off and do something less boring instead, the absence of a need to make a MR in-time is going to be important. As is, for those given some award, the fact that a change of circs supersession does not appear to require any worsening of condition whatsoever.
[ Edited: 16 May 2014 at 12:33 pm by Tom H ]