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Important Upper Tribunal decision: Refusing right of appeal when late MR request turned down is unlawful

Since changes to the benefit appeal rules in October 2013, the DWP has held that where a claimant wishes to challenge a DWP decision they must do so by first requesting a Mandatory Reconsideration (MR). The DWP further believed that without a MR decision the claimant had no right to to take their case to an independent tribunal - ie they had no right of appeal. In other words where no MR decision had been made - because the claimant had made a late request for a MR and this was refused -,the claimant could not have a right of appeal because there was no decision to appeal against.

But in this Upper Tribunal decision a panel of three judges stated that the DWP's stance was unlawful and that a claimant does have the right to go to appeal even if a late MR request is refused.

The panel of three judges unanimously decided that the lack of access to an independent tribunal in these situations is a breach of a claimant's rights under Article 6 of the Human Rights Act - ie the right of access to an independent and impartial tribunal in the determination of one's civil rights. 

The correct position, they felt, was that where a claimant makes a MR request at any time within 13 months of the original decision, they will, if the DWP refuse to consider their late request, have the right to take their case to appeal to an independent tribunal. The judges felt that not to allow this right would improperly make the DWP 'the gateway to the independent tribunal system'.

The cases, supported by CPAG, were of two women both with serious health problems who were refused ESA and made late MR requests to challenge the refusal decisions. The DWP decided that neither of them met the criteria for a late MR being accepted and therefore they were unable to pursue their case to appeal. 

SG v Secretary of State for Work and Pensions (Appeal CE/766/2016) and R(CJ) v Secretary of State for Work and Pensions (JR/3861/2016) - click here.

NOTE: This outcome does not just apply in ESA cases but for all DWP benefits.