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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Does a claimant have to use the exact wording of “mandatory reconsideration” when requesting one?

peer advocate
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DATUS - enabling recovery. Birmingham

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Hi all.

So this claimant was told their ESA was being stopped back in February and called the number on the decision letter to ask them to change their decision. During this conversation he broke down in tears and made it very clear that he disagreed with the decision and wanted it changed. He doesn’t recollect using the exact term “mandatory reconsideration” but was told that it would be looked into.

He called me not long after this and I talked him through how the mandatory reconsideration procedure normally works.

So two months later, no correspondence, so he came to see me, not knowing what to do. We called the DWP and were informed that they had no record of a mandatory reconsideration being requested. They referred to the conversation in February as a “verbal explanation.”

So we have now written in asking them to reconsider, though obviously outside the timeline.

Does anyone on the site have experience dealing with a similar issue?
Does someone need to know all the jargon when making a request or should their own way of expressing that they want the decision changed be counted as a normal request?

Any advice or guidance greatly appreciated.
Thanks.

 

Jon (CHDCA)
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This has been raised a few times, e.g. see DWP make challenging a decision a three stage process! . Towards the end of that thread someone linked the DWP’s gatekeeping memo, which is meant to inform their staff how to handle disputes:

http://www.rightsnet.org.uk/?ACT=39&fid=9&aid=1018_YWCAb0WeoOs1SOADIlT1&board_id=1

It includes:

“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.

You may want to request a recording of your client’s call, for either a complaint, or as evidence they made the request verbally in time.

edit for formatting..

[ Edited: 25 Apr 2016 at 04:39 pm by Jon (CHDCA) ]
Ros White
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Hi -

As Jon says, there is no particular form of words that a claimant needs to use when requesting a mandatory reconsideration - the DWP should have treated your client’s phone call as a MR request. You can argue that the MR request was made in time as a result (regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) or, alternatively, that the DWP should accept it as a late application for an MR which can be made up to 13 months after the decision (under regulation 4 of the Decisions and Appeals Regulations) if there are ‘special circumstances’ which meant that it wasn’t practicable for someone to make the revision request in time - in your client’s case this could be because he thought he had made the request and so took no further action.

If the DWP accept that the revision request was made in time and carry out an MR, then of course you have a right of appeal. However, both the DWP and HMRC take the view that there’s no right of appeal against a refusal to accept a late MR request. We’re interested in challenging that view and looking for test cases at the moment.

If, one way or another, you can’t get the DWP to carry out an MR and give a decision perhaps you could refer the case to our solicitor?  Here’s a link to our test case page and referral form -

http://www.cpag.org.uk/test-case-referrals

Elliot Kent
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Agree with the sentiments above, but I would bear in mind that it is at least necessary to make your intentions clear. Putting the request in writing or using words like “mandatory reconsideration”, “reconsideration” or “revision” provides a surefire way of doing this.

I would be wary that a client recounting such a stressful phonecall is unlikely to have the most reliable recollection of whether he said “Can you please explain to me how exactly you expect me to go back to work?” or “I think you should give some more thought to whether I can actually go back to work”. The sentiment may be the same but arguably one discloses a reconsideration request and the other doesn’t.

Paul_Treloar_AgeUK
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Lots of information on the in’s and out’s of MR available here

Ask CPAG Mandatory reconsideration

Have a look at “pursuing an MR” section, as that offers guidance as to how you might resolve this situation including links to the guidance etc.

stevenmcavoy
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i wrote a letter on behalf of a client which had mandatory reconsideration request in the subject header and still didnt get one.

nevip
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Good and proper public service

Punter: I’m not happy with your decision.
DWP officer: The decision was made on all the evidence available to us at the time madam but we can look at our decision again if you would like?

Bad and improper public service

Punter: I’m not happy with your decision.
DWP officer: Waffle, waffle, waffle…..evidence….the decision is right….waffle, waffle, waffle….goodbye madam! 

The intention to seek a review, or an appeal for that matter, does not need to be expressly stated.  It can be implied.

peer advocate
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Thanks everyone for the prompt and reassuring advice.

Jon (CHDCA) - 25 April 2016 04:36 PM

http://www.rightsnet.org.uk/?ACT=39&fid=9&aid=1018_YWCAb0WeoOs1SOADIlT1&board_id=1

It includes:

“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.

 

This I think will be particularly useful in challenging this decision.

Ros White - 25 April 2016 04:41 PM

If, one way or another, you can’t get the DWP to carry out an MR and give a decision perhaps you could refer the case to our solicitor?  Here’s a link to our test case page and referral form -

http://www.cpag.org.uk/test-case-referrals

 

Thank you, hopefully we won’t have to take you up on this offer!

Mike Hughes
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I agree with nevip. There is no requirement or need to make your intentions clear. Obviously in an ideal world that would be the case but we don’t…. etc.

Recently had a case where there was an attempt to argue that a claimant ringing up and crying down the phone about the fact they were destitute did not constitute a request for an MR. Nice try, but soon kicked into touch. Trying to understand why your benefit has dropped or been removed has also recently been accepted as not being a request for an explanation. It’s an MR request.

Of course there’s no expectation that officers or DMs should be able to read the mind of a claimant. However, by the same token, it’s not that hard to get to the point where you understand that someone is unhappy with an outcome else they wouldn’t be on the phone to you.

Ros White
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I also agree, there has to be an element of fobbing off when a claimant is so upset about a decision that they’re crying on the phone and that is not taken as a request for it to be looked at again - surely not too much to ask for the DWP to check if it’s not clear….

Advisor for Adults with sensory loss
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Last year I sent a letter on behalf of a client requesting a mandatory recon - clearly stated. A month letter he received a written explanation!! With no change in the decision. We then had to write again for the MR as without this you cannot proceed to appeal. With my very cynical head on - is this a ploy by the DWP to make the process even harder and so deter people from continuing with claims???
Oh and by the way when the MR was finally received it was still a negative decision which was overturned on appeal the whole process taking 8 months!

Paul_Treloar_AgeUK
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Advisor for Deaf People - 27 April 2016 12:29 PM

Last year I sent a letter on behalf of a client requesting a mandatory recon - clearly stated. A month letter he received a written explanation!! With no change in the decision. We then had to write again for the MR as without this you cannot proceed to appeal. With my very cynical head on - is this a ploy by the DWP to make the process even harder and so deter people from continuing with claims???
Oh and by the way when the MR was finally received it was still a negative decision which was overturned on appeal the whole process taking 8 months!

Yes it is quite simply in my opinion, it’s an abuse of process deliberately to try and put people off challenging decisions and shouldn’t be happening anymore.

Daphne
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I am collating these examples and the ones here - http://www.rightsnet.org.uk/forums/viewthread/6906/ - to send to operational stakeholders to highlight the ongoing problems…

nevip
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Paul_Treloar_AgeUK - 27 April 2016 12:37 PM
Advisor for Deaf People - 27 April 2016 12:29 PM

Last year I sent a letter on behalf of a client requesting a mandatory recon - clearly stated. A month letter he received a written explanation!! With no change in the decision. We then had to write again for the MR as without this you cannot proceed to appeal. With my very cynical head on - is this a ploy by the DWP to make the process even harder and so deter people from continuing with claims???
Oh and by the way when the MR was finally received it was still a negative decision which was overturned on appeal the whole process taking 8 months!

Yes it is quite simply in my opinion, it’s an abuse of process deliberately to try and put people off challenging decisions and shouldn’t be happening anymore.

I agree.