In October 2013 the procedures for challenging DWP decisions changed. The changes introduced the formal step of 'Mandatory Reconsideration' into the process: Where a claimant wishes to challenge a DWP decision, their first step must be to request a Mandatory Reconsideration (MR).
Since the changes were introduced, the DWP had held that without a MR decision, the claimant had no right to to take their case to an independent tribunal, ie. no right of appeal. So, where the claimant had made a late request for a MR and this late request was refused - ie no MR decision had been made -the claimant had no right of appeal.
But a new decision by a panel of three Upper Tribunal judges has ruled 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 ie 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.
If you have a claimant whose MR request was made late ie outside the calendar month time limit - and the decision they wish to challenge is less than 13 months ago - they can now go on to request a late appeal of that decision and cannot be refused on the grounds that they have no MR decision.
For more information on challenging:
ESA decisions -click here.
PIP decisions -click here.
UC decisions -click here.
JSA sanctions -click here.
Note different rules apply to challenging HB decisions -click here.