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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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Mr Finch
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I’ve just seen my first definite case of a three stage process in action.

Client’s jobseeker’s claim was refused in the autumn of last year. MR requested and after a long battle to persuade the DWP that their decision is amenable to such a challenge, they revised this week to award partial JSA. The notice says that there is no right of appeal until they have looked at the new decision again.

Because of the previous battle, I managed to speak to someone at a high level who was already involved. He explained that they have carried out a reconsideration, but because it wasn’t a ‘mandatory’ reconsideration they are of the view there is no right of appeal yet. He is of the view that as the first decision was obviously wrong, it was changed at too early a stage (4 months later!) to amount to a ‘mandatory’ reconsideration. I pointed out the statutory language but the DWP insist that we have not reached the MR yet.

I’m going to take my chances with the tribunal rather than let the DWP sit on it any further.

Martin Williams
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Mr Finch- I would reccommend doing both (eg file an appeal and also ask them for an MR - whilst observing that they seem to have already done one and you are appealing anyway).

If the appeal is returned by a Direct Lodgement Clerk who doesn’t read the papers- which happened in our case- then email a request for direction that the case proceed and ask for that to be put before the judge.

Peter Turville
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I have now received a response from DWP - see entry 48 above.

‘Handling reconsiderations’ - doesn’t the title suggest DWP are confused by the seperate provisions by lumping them together as ‘reconsiderations’ which has no meaning in the legislation!

DWP originally quoted para.  7. Now read with para. 8. So if a claimant sends additional evidence with their MR request (as our client did) why is the resulting decision not a MRN (rather than a decision that says they now need to make a MR request - as in our case)? Para. 8 implies the resulting decision notice should be a MRN.

Or maybe there is a para 7 & 3/4 between 7 & 8 that only DWP staff can read?

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neilbateman
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It looks like para 26 may partly be the cause of the fictional third stage MR.  “If a claimant contacts the Department for an explanation or to dispute a decision, a full explanation of the decision should be offered at the outset. this may prevent a claimant disputing the decision unnecessarily”.

Some of us are pursuing DWP to issue urgent guidance to stamp out the MR malpractices.

Mr Finch
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Martin Williams - 24 February 2015 08:04 PM

Mr Finch- I would reccommend doing both (eg file an appeal and also ask them for an MR

Thanks Martin - I’ve now followed your suggestion.

Peter Turville
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neilbateman - 25 February 2015 04:52 PM

Some of us are pursuing DWP to issue urgent guidance to stamp out the MR malpractices.

One might have thought a government / department that claims to be ‘simplyfing’ the process would have one standard procedure that all parts of DWP understood and delivered. Rather than a hotch potch of procedures & practices across different benefits, caller and benefit centres etc. and individual members of staff who don’t understand the process at all!

Meaning advisers spend soooooo much time trying to establish what staff mean / understand, what the practice / process / understanding in a particular office is (or is thought to be) and why it seems to be different to the approach of another benefit / office in order to establish what is actually going on with a a particular case in order to progress it.

But then I’m not that nieve!

neilbateman
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The DWP has now issued Gatekeeper Memo 03.15.38 in an attempt to tackle the problems.  The main text of this is set out below.

I hope this helps people to challenge poor practice, but better still. I hope it stops poor practice happening.  Please do refer to it when making complaints.

I am still concerned about the wording of the guidance about explanations because , at best, it could be misunderstood. Also the point about late MR request is not correct; it’s not discretionary if the criteria re met

Please can Rightsnet users email me any further examples which arise from now on:  .(JavaScript must be enabled to view this email address)  I will continue to lobby DWP about this.  Many thanks to everyone who sent me examples - these were very persuasive.

Extract from Gatekeeper Memo 03.15.38

Background

We have received a number of contacts from customers and Customer Representative Groups (CRG) about misunderstanding in the Dispute process. These are mainly around the Mandatory Reconsideration (MR). The queries raised clearly show that there is widespread misunderstanding of the Dispute Process. Below are some of the complaints raised and clarification of the correct processes.

DWP staff are advising customers they must specify they want a MR

“Mandatory Reconsideration” is DWP terminology. It is not necessary for the customer to use those exact words in order to raise a dispute.

If a customer advises us they disagree with a decision, want us to look at it again, ask for a review, ask to appeal etc. the request should be treated as a request for an MR whether it is made in writing or verbally.
DWP staff are advising customers and advisers that they must have an explanation or a review before they can apply for an MR, and in some cases being told that 2 explanations are required (one verbal and one written) before an MR can be requested

It was never the intention that full verbal or written explanations should be a mandatory requirement prior to an MR. The explanation, whether verbal or written, is a discretionary step and whether to undertake one should be driven by the customer.

When a customer contacts DWP to dispute a decision they should be offered a full verbal and / or written explanation, but if the customer declines the offer (they may have had a previous explanation or they understand the decision but dispute it) they should then be referred straight for an MR.

MR responses are not described as such, meaning customers think they need to ask for an MR again rather than appealing

A Mandatory Reconsideration Notice should be sent in all cases where an MR decision outcome has been made.
DWP staff are effectively advising customers that it is not worth Appealing or indeed requesting an MR
Customers must be given the correct advice when contacting the Department to dispute a decision. If a customer thinks a decision is wrong we must follow the process outlined in this memo.

MR requests not being accepted by phone

All staff need to be aware that MRs can be accepted by phone and requests made by this route should be accepted without question.

Written requests for MRs not being received

All staff must be aware that written requests for an MR could be received and all correspondence should be checked to ensure MR requests are picked up as soon as possible on receipt by DWP

Refusal to accept late MRs

Acceptance of late MRs should be at the discretion of the Dispute Decision Maker and based on evidence provided by the customer for their reasons for the late submission.

Peter Turville
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Neil, I know I am preaching to the converted but ........

To me it seems simply using terms like the ‘dispute procedure’ is symptomatic of the issue. The legislator introduced terms like ‘consideration of revision before apppeal’ into the legisaltion. This is clearly a mouthful so needs to be shortened for everyday use to ‘mandatory reconsideration’. ‘Reconsideration’ itself being a meaningless term often used by DWP to cover both revision and supersession (and on occassion appeal).

Use legally meaningless terminology like ‘dispute procedure’ to cover a wide range of possible ways of challenging or changing a decision. Then introduce procedural manauls etc. that invent further terms for steps in the legal process for the purposes of the IT system etc.

At no time use consistent terminology across DWP proceesses and procedures (let along the correct legislative term) for the same thing. Do not train staff to work from the actual legisaltion (rather than procudural guidance etc).

So its no surprise staff give incorrect information or don’t understand the processes and procedures to follow.

Just by way of illustration - on more than one occassion recently I have had a DM (in direct conversation) state that they do not recognise or understand the term ‘supersession’ (context - an application for a supersession of an existing ESA award: LCfW to SG). Apparently some DM’s now only understand a supersession as a ‘change of circumstances’ decision/revision.

Simplification!

neilbateman
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I agree with you Peter.  but at least this guidance might push them in the right direction.  It’s important that we continue to monitor and collect examples of poor practice by DWP.

Dan_Manville
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Peter Turville - 11 March 2015 02:31 PM

I have had a DM (in direct conversation) state that they do not recognise or understand the term ‘supersession’ (context - an application for a supersession of an existing ESA award: LCfW to SG). Apparently some DM’s now only understand a supersession as a ‘change of circumstances’ decision/revision.

Simplification!

This very problem was at the foot of my “mire of changes of circs” thread; had the DM understood the temporal difference between a supersession and a change of circs it would have been done with in an instant; instead it took nearly 18 months to sort out!

neilbateman
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Just to update on this. 

I have not had any further reports about DWP hanky panky and FNL (Fiction Not Law). 

Can we safely assume that our efforts have paid off and the various malpractices have stopped?

Useful article in CPAG’s April’s Welfare Rights Bulletin.

1964
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Well… not completely….see my recent post on the ESA board. Does seem to be happening less frequently though. Let’s hope it isn’t just a temporary respite.

neilbateman
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Sounds like the incident you had was a cock up rather than any deliberate to frustrate an application for an MR.  However, if anyone comes across malpractices like inserting an additional stage, telling people they must first ask for an explanation, etc,  please let me know.

Also, long experience with DWP shows that they can amend their malpractice for about six months after being told to behave, then some of them seem to slip back into their bad old ways.

tbidmead
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Does anyone have a copy of this ‘Gatekeeper Memo 03.15.38’ they could upload?

neilbateman
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No, I only have the extract reproduced above.  You could apply for a full copy using the FOI.