Independent Living blog post, 8 Aug 2017: Benefit appeals timed out unlawfully

The Department for Work and Pensions (DWP) has been acting unlawfully in stopping people taking disability benefit appeals to tribunal, three senior judges have ruled.

Recent judgement in Upper Tribunal
If you disagree with a disability benefit decision, for example Employment and Support Allowance (ESA) or Personal Independence Payment (PIP), you have to follow a timetable which includes asking for an internal review, known as “mandatory reconsideration”, within one month.

The upper tribunal found that it was wrong for the DWP to refuse claimants the right to appeal if they took more than a month to ask for a review of the decision.

Case brought by Child Poverty Action Group for two claimants with mental health problems
The charity, Child Poverty Action Group, challenged the DWP system on behalf of two claimants with serious mental health problems who didn’t ask for mandatory reconsideration within the specified period.

The DWP initially refused to change the decision to reject their benefit application, or to allow a tribunal consider whether that was correct.

This is what the judges found:

 “The reality is that many claimants will be vulnerable for reasons including issues relating to their mental health or learning disabilities. It is obvious that there is a high risk that many of them with good claims on the merits will miss time limits.

“This risk has been exacerbated over recent years by changes in the scope of legal aid and local authority and advice sector provision, and hence the reduction in the numbers of welfare rights officers and others who are readily available to assist claimants with their benefits claims and appeals.”

“We are concerned with the situation where a claimant sends the secretary of state a request for a mandatory reconsideration to which the secretary of state responds by stating that the application is late and does not meet the criteria for extending time. We have concluded that as a matter of statutory interpretation a claimant in such circumstances has a statutory right of appeal to the first-tier tribunal.”

Challenge over ESA also applies to other disability benefits
The Child Poverty Action Group said the upper tribunal decision would protect the appeal rights of the hundreds of thousands of benefit claimants who each year seek to challenge refusal of benefit.

Although this case related to Employment and Support Allowance (ESA), it is relevant to other benefits from the DWP, although not tax credits, which are processed through HM Revenue and Customs.

Judges unimpressed by DWP presentation of judicial review option
The government had argued that claimants had recourse to judicial review if their right to go to tribunal was refused, but the judges observed that out of 1,544,805 mandatory reconsideration decisions made by the government between 2013 and 2017, there had not been a single example of a claimant taking this legal path.

The ruling comes after a Freedom of Information request revealed that the DWP has a target to uphold 80% of original benefit decisions following “mandatory reconsideration” reviews.

About 12% of ESA (work capability assessment) decisions are overturned at mandatory reconsideration, but the figure rises to 59% of those that make it to the tribunal stage.

Carla Clarke, the legal officer for Child Poverty Action Group, said:

“ [it was] not only a vindication for our two clients, but it stands to provide justice for significant numbers of families wrongly denied the financial help to which they are entitled”.

“This decision ensures that even if the DWP thinks there is no good reason for their delay, it cannot prevent such individuals pursuing an appeal before an independent tribunal. To have found otherwise would have been to uphold a system where the decision-maker also acts as arbiter of whether an individual could challenge their decision or not – a clear conflict of interest and an affront to justice”
The Department of Work and Pensions said: “We have received the tribunal’s decision and are considering the judgment.”

See also:

Disability Rights UK blog post, 7 Aug 2017: Upper Tribunal rules DWP wrong to deny appeals over refused benefits