Struggling to get DWP to change a UC decision?
A recent decision by an Upper Tribunal will help many UC claimants who wish to challenge a Universal Credit decision but who have struggled to get the DWP to follow the normal procedures for doing so.
If they have not been notified that they must request a Mandatory Reconsideration before submitting an appeal - then that requirement does not exist, and they can go straight for an appeal without the need for the DWP to review their decision first.
In 2017 the DWP introduced an extra layer into the appeals process – that the claimant had to request an internal review of the DWP’s decision, called a Mandatory Reconsideration (before they could appeal the decision by taking their case straight to an independent tribunal). And to demonstrate that they have completed this process they are required to attach a Mandatory Reconsideration Notice to their appeal on the SSCS1 form / answer 'Yes' to the question 'Do you have a Mandatory Reconsideration Notice if they are appealing online.
However we are aware of many UC claimants whose requests for the DWP to look again at a Universal Credit decision are, at best, given a very short response as to why the decision was made such as ‘take a look at your payment statement’ - and at worst they are totally ignored.
The Judge in this Upper Tribunal case ruled that where the DWP make a decision but the decision notification* does not state that the claimant must request a Mandatory Reconsideration before they can request an appeal, they can then go straight to appeal.
* We use this term loosely because this is often just a one line statement on the claimant’s journal!
So where a claimant is getting nowhere with getting the DWP to look again at a decision, and can show the Tribunal Service that the DWP have:
- Made a decision and
- Failed to mention the need for a Mandatory Reconsideration (generally this will mean failing to give notify the claimant of their appeal rights)
then their request for an appeal should be accepted and their case should be forwarded for an appeal - they do not need to include a copy of the ‘Mandatory Reconsideration Notice’ with their appeal form SSCS1 / answer 'Yes' to the question 'Do you have a Mandatory Reconsideration Notice if they are appealing online (although they will need to explain why they don't have one).
They will need to explain why they believe their appeal is valid even though they don't have a MR Notice - please see Standard Letter UC CD23.
The DWP would normally review the case prior to preparing it for appeal, and the claimant may find that the decision is changed without having to actually go to Tribunal.
NOTE: A claimant has 13 months from the date of a decision to challenge it IF the decision notification explained their appeal rights, so where the notification has failed to do this no such time limit can exists. This means that claimants can challenge such decisions regardless of how long ago they were made.
Detail of the case
PP v SSWP (UC) [2020] UKUT 0109 (AAC) THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Upper Tribunal Case No. CUC/1389/2019
This case covered a variety of issues - the key one for the purposes of challenging a UC decision was that the claimant had gone straight for an appeal without requesting a Mandatory Reconsideration first.
On that the Judge concluded:
‘….the requirement for a Mandatory Reconsideration to be undertaken as a necessary prelude to an appeal only applies if Regulation 7(1)(b) also applies (see Regulation 7(2)). There are strict requirements as to the type of notice required for the purposes of regulation 7(1)(b) – see Regulation 7(3). There was no such informative notice…..It follows logically that the Appellant had the right of appeal to the First-tier Tribunal unencumbered by the (usual) need to apply for a mandatory reconsideration.’
Facts of the case:
The Appellant, Mr P completed an online universal credit claim at 22:30 on 10 January 2018.
On 14 May 2018 the DWP decided that Mr P, was not entitled to Universal Credit.
The DWP wrote on Mr P’s journal: “Your claim has been closed”, explaining: “Reason for closure: You didn’t book your appointment”.
Mr P appealed against the decision to close his UC award without first asking the DWP to reconsider their decision and therefore no Mandatory Reconsideration Notice was attached to his appeal request.
The First-tier Tribunal decided not to allow Mr P’s appeal, on the basis that he had not been through the required Mandatory Reconsideration process.
Reasons for the UT Judge’s decision
The Judge considered:
- Whether Mr P had made a valid claim;
- Whether the DWP had made a decision (that provides the right to an appeal); and
- Whether a MR notice was actually required in order to appeal.
The Judge concluded that:
1. Mr P had made a valid claim.
2. The claim had been disallowed (or “closed”) because Mr P had failed to book an appointment to answer questions about his self-employment. The Judge concluded that this was a request for information/evidence under Regulation 37(2) of the 2013 Claims and Payments Regulations, and therefore the DWP made a decision (under section 8(1)(a) of the Social Security Act 1998 ) that he was not entitled for failure to provide that information/evidence.
3. Regulation 7 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 considers the conditions for the requirement to carry out a Mandatory Reconsideration before a right of appeal is established. The requirement applies only where the decision notice includes a statement to that effect. In this case, the decision notice contained only what was written in the claimant's journal, so Mr P had the right of appeal to the First-tier Tribunal without the usual need to apply for a Mandatory Reconsideration.