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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DWP make challenging a decision a three stage process!

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Peter Turville
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Welfare rights worker - Oxford Community Work Agency

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Or - when is an MR not an MR?

Our client was receiving IB and migrated to ESA. Migration decision dated 11/6/14 that she was fit for work.

MR application made on 2/7/14 clearly headed ‘application for MR’. Took over 3 weeks to get from Wolverhampton to Hyde BC!

Letter from Hyde dated 8/8/14 headed “We have looked again at our decision”:

“You asked us to look again at the facts and evidence used to make the decision and looked at the points you have raised. However, we have not changed our original decision.

You can appeal against this decision, but you cannot appeal until we have looked at the decision again. we call this a Mandatory Reconsideration.

Your dispute will now be referred to Dundee Dispute and Resolution Team who will undertake the Mandatory Reconsideration.

When the decision has been looked at again they will send you a letter explaining what they have done. We call this a mandatory Reconsideration Notice. This will include all the information you need to be able to appeal.”

So what decision has been made by the decision of 8/8/14??

We can only suggest that DWP have interposed an ‘old style’ revision (‘reconsideration’) into the process before they conduct an MR!

There are just not enough offensive terms available!

Dear DWP reader. We expect you to make an urgent call to us for the details of this case and provide an explantion for this nonesence - T. 01865 744165

Rosie W
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Had exactly the same with Stockton BC. Although I was told over the phone that “a decision maker has looked at it and has tried to contact the customer three times but was unsuccessful so he can’t change the decision and it’s been sent to Sheffield DRT”. Never got a letter about it.

My enquiry as to what exactly the decision maker at Stockton had been carrying out if not a reconsideration was met with a baffled silence.

It took nearly 5 months to get this client back onto ESA pending appeal as that nonsense was followed by further nonsense via HMCTS and two different DRTs.

I despair.

Mr Finch
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Whether the DWP or HMCTS likes it or not, and notwithstanding any misleading information it may contain, a notice that says the decision has been looked at again is clearly a valid MR notice. If HMCTS won’t accept it, ask for the refusal to be reconsidered by a judge.

HB Anorak
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If these teams weren’t scattered all over the country it would actually make perfect sense.  Similar thing happens in many HB offices:

- claimant receives decision notice from assessment team
- claimant not happy, decides to apply for revision and keep appeal up sleeve (which is still a choice in HB, not a compulsion)
- Council has a recon team which is designed to take pressure off both the assessment team below and the appeals team above
- But before the recon appplication goes to the recon team, the assessor has another quick look, just in case: you never know it might be something simple they can fix
- Nope, not changing decision so route the work item to the recon team who will now formally answer it

Same as DWP, except they all work in the same building.  It might still take them a while, but at least you know your case stays under one roof so if you get desperate and want some human contact there is only one building in one town that you need to stake out.

Jon (CHDCA)
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Except that HB will (or should) send the case on to the recon team without being asked to do so. The problem is when the onus is repeatedly put back on the would-be appellant: “send us another letter, within this new time limit, if you want to take this any further”.

nottsadvisor
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When I made a fuss about this happening I was told that they have to do an ‘ordinary’ reconsderation prior to the mandatory reconsideration, in order to weed out ones that are ‘obviously’ wrong.  I got the impression this was to correct basic errors such as, say, ATOS saying a claimant was unable to walk 50 metres but the DM accidentially only awarding the points for being unable to walk 200 metres, although I was also told the ‘ordinary’ recon could consider new evidence as well.

No, I don’t understand why they can’t just do all that as part of the MR, either.

HB Anorak
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Agreed, trapping people in an endless cycle of internal reviews is appalling practice.  But in the specific example raised in this thread I got the impression that they were intending to forward it to the recon team without any further action from the claimant, they were just saying “sorry we haven’t found any obvious quick fix for this one so it’s going to take a bit longer - you’ll hear from us properly in due course”.

Is that how it was Peter T, or were they trying to put the ball back in the claimant’s court with the non-MR-MR

nottsadvisor
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In the cases I have dealt with where the ordinary recon was unsucessful, they passed it to the MR team without needing further action from the claimant, but it adds a few more weeks to the process.  I suppose there is an upside in that it is an extra opportunity for a decison to get overturned.

Paul_Treloar_CPAG
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No matter what they might try and do operationally, it is my view that they’re clearly acting against the legislation as it stands.

Reg.7 UC etc (Decisions and Appeals) Regs 2013 stipulates that (1) where a person receives a written notice of a decision under s.8 or 10 of the 1998 Social Security Act (whether originally made or as revised under s.9 of that Act), and (2) that notice includes a statement to the effect that there is a right of appeal only if the SoS has considered an application for a revision of that decision, then the person only has a right of appeal under s.12(2) of the Act if the SoS has considered an application whether to revise under s.9 of the Act.

Under what legislation did they revise the decision in relation to the written notice dated 08.08.14, if not s.9 of the Act? There really isn’t any way around it that I can see. And as the above clearly notes, if the SoS has considered an application under s.9 (which they clearly have, given that they state “We have looked again at our decision”), then the claimant clearly does now have a right of appeal under this reg.

Jon (CHDCA)
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HB Anorak - 14 August 2014 01:54 PM

But in the specific example raised in this thread I got the impression that they were intending to forward it to the recon team without any further action from the claimant, they were just saying “sorry we haven’t found any obvious quick fix for this one so it’s going to take a bit longer - you’ll hear from us properly in due course”.

You’re right, I was misreading what’s been happening. (As it happens, the only time I have seen an extra-legal reconsideration phase be inserted, is in HB appeals)

edit: though I have seen “stage 4”. A client was essentially told:
“Please send a copy to Wolverhampton of that reconsideration decision which we made in your favour 4 months ago, if you want us to think about putting it into payment”.

 

[ Edited: 14 Aug 2014 at 06:11 pm by Jon (CHDCA) ]
Peter Turville
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Paul_Treloar_CPAG - 14 August 2014 03:26 PM

No matter what they might try and do operationally, it is my view that they’re clearly acting against the legislation as it stands.

Reg.7 UC etc (Decisions and Appeals) Regs 2013 stipulates that (1) where a person receives a written notice of a decision under s.8 or 10 of the 1998 Social Security Act (whether originally made or as revised under s.9 of that Act), and (2) that notice includes a statement to the effect that there is a right of appeal only if the SoS has considered an application for a revision of that decision, then the person only has a right of appeal under s.12(2) of the Act if the SoS has considered an application whether to revise under s.9 of the Act.

Under what legislation did they revise the decision in relation to the written notice dated 08.08.14, if not s.9 of the Act? There really isn’t any way around it that I can see. And as the above clearly notes, if the SoS has considered an application under s.9 (which they clearly have, given that they state “We have looked again at our decision”), then the claimant clearly does now have a right of appeal under this reg.

My guess, for what its worth, is that Hyde are conducting ‘informal’ reconsiderations (as was the practice once an appeal had been made prior to MR) before sending it to Dundee for a MR.

There can be no legal basis for this extra step. It is contrary to the statements made by IDS and Esther McVey about the MR process - particularly for WCA decisions.

Clearly it adds further to the delays in considering MR applications and the argument for the introduction of a statutory time scale within which a MR must be completed.

By chance, or was it my original post(?), Dundee ‘phoned the client this afternoon to discuss her application (DWP haven’t phoned us yet with an explanation!).

We have requested her MP raise the issues with the DWP and provide the legal basis for the decision dated 8/8/14. We will probably make an appeal against it requesting a judge direct it is an MR decision and that it is addmitted without a MR notice (although I guess the MR decision will have been issued before a judge actual determines that application).

It is clearly important that claimants, advisers and DWP are aware that this nonsense is taking place and that this was not a ‘one off’ example.

This is a client we have represented at previous PCA tribunals and the quality of the WCA decision is particularly ****.

Ahhhhhhhhhhhhh!

1964
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I’ve encountered it too (and posted about it some months back. If I could do links I would). In the case I had I lodged a complaint and they STILL insisted (in writing) that there was a ‘reconsideration’ process before it was possible to submit MR.

Dan_Manville
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I’ve just received one of these for an absolutely orrible JSA overpayment decision from 2011.

Before I start entertaining our local Judiciary with unusual interloc requests again I thought I’d check with the hivemind…

Decision states “I have been unable to revise the decision but I’ve superseded it from a later date. I will now refer the matter to debt (sic) resolution.”

That’s a decision that isn’t prescribed under sched 2 SSA ‘98 so there is a right of appeal against it if it doesn’t contain the Mandy Statement isn’t there?

Can I appeal to the decision maker under the old provisions or direct to SSCS?

The problem I can see is rule 23(1) TP (FtT)(SEC) 2008 where an appeal lies to the decision maker “in which the notice of decision being challenged informs the appellant that any appeal must be sent to the DM” So unless it says “appeal to the DM” then I’m stuck with appeal direct to SSCS.

However, rule 22(4)(ii) allows an MR appeal to be accepted “in any other case” with a copy of the decision notice alone.

So my thinking is that, being that this decision hasn’t been revised, but has been superseded and there’s no Mandy notice then it still lies to the SSCS Tribunal however I don’t need the Mandy notice.

Does anyone disagree?

[ Edited: 20 Aug 2014 at 01:27 pm by Dan_Manville ]
nevip
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Off the top of my head I can’t see any fault in your reasoning.  But it’s easy for me to be confused these days amongst the ongoing chaos.

Dan_Manville
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I really wanted somone to say “no Dan you’re talking nonsense because x…y… z”

Now I have a mahoosive case law trawl to do to track down the old “when can a Tribunal revise an earlier decision” precedent.

Should anyone remember that beauty now’s the time…

BSM
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Not quite sure exactly which one you’re looking for, but here are the three I have immediately to hand:

        R(DLA)1/06   -  CDLA/4222/2004

        BN v SSWP (DLA) [2014] UKUT 0309 (AAC)  -  CDLA/3765/2013

        NA v SSWP (DLA) [2014] UKUT 0040 (AAC)  -  CDLA/234/2013


I hope at least one of them might help a little.