Upper Tribunal holds that claimants have a right to an appeal even if mandatory reconsideration not requested in time

The Child Poverty Action Group successfully argued that the Department for Work and Pensions should not refuse claimants access to an appeal tribunal if they had failed to request a mandatory reconsideration of a benefit decision within a four-week time frame.

The Upper Tribunal Administrative Appeal Chamber recently decided two linked cases, which looked at whether social security claimants have a right of appeal to the First Tier Tribunal (FTT) where they make a late request for a mandatory reconsideration (MR) of the Secretary of State’s decision on entitlement, and where the Secretary of State does not exercise his power to extend time.

Mandatory reconsiderations have been in place in GB since 2013 and were extended to Northern Ireland in May 2016. Under this new system, claimants who wish to challenge certain benefits decisions must first request a mandatory reconsideration before they can appeal the decision to an independent tribunal. Claimants have just a one-month window in which to request a MR, and, until now, access to an appeal tribunal has been refused if claimants let this timeframe slip. The effect of this has been, according to the Tribunal “a significant number of claimants who are entitled to benefits not being paid to them”.

Claimants refused ESA and fail to request reconsideration within timeframe

CPAG assisted with two cases, both of which were heard together. The judgment in R (CJ) and SG vSSWP (ESA) [2017] UKUT 0324 (AAC) is available online. 

CJ and SG, who have mental health issues along with other problems, each claimed employment and support allowance (ESA) and attended a ‘face to face’ assessment. Decision-makers decided in both cases that the claimants did not qualify for ESA and advised them of the time limit for seeking a MR. Both claimants applied late for a MR (5 months late in CJ’s case and 10 months late in SG’s case). In both cases the Secretary of State refused to accept that the claimants’ extenuating circumstances justified extending time. Both claimants sought to appeal to the FTT, which declined to admit their appeals.

By the time the case came to be heard by the Upper Tribunal, both claimants had been awarded ESA. As both cases raised the issue of the proper application of the relevant legislation in cases where the MR request had been made outside the one-month time limit, the cases proceeded jointly as test cases.

Argument that access to Judicial Review is adequate recourse fails

The Secretary of State argued that claimants who failed to request a mandatory reconsideration within the timeframe could challenge the Secretary of State’s decision by Judicial Review and did not need access to a tribunal.  The tribunal found this position unlawful, and declared that the correct position is that a claimant who makes a request for a mandatory reconsideration at any time within 13 months of the original decision will, if dissatisfied with the outcome of that reconsideration, be entitled to proceed to an appeals tribunal. Considering the Government’s position that access to JR provided adequate right to legal recourse, the UT observed that there was not one single example of a claimant bringing a JR against this type of decision despite over 1.5million MR decisions having been made between 2013 and 2017.

Relevance to Northern Ireland

As an Upper Tribunal decision, the judgment is not binding on Northern Ireland courts. It is, however advisory and will generally be followed unless there is a contrary decision by an Upper Tribunal or higher court in Northern Ireland jurisdiction.

MRs will become increasingly relevant to the workload of housing advisers in the coming years. While the system for revising a Housing Benefit decision is not currently subject to mandatory reconsiderations, decisions made under Universal Credit will be. The Department for Work and Pensions has not yet announced an intention to appeal this judgement, but has until 15 September to do so.