-A A +A
Select color visibility that suits you Basic theme Dark theme Darker theme Text only

Upper Tribunal rules DWP wrong to deny appeals over refused benefits

07 August 2017

In a significant new judgment, CE/766/2016, a three judge Upper Tribunal has ruled that a DWP refusal to accept a late revision request can be appealed to a First-Tier Tribunal.

It comes just a week after a Supreme Court finding that the government was unlawfully charging fees of up to £1,200 for access to employment tribunals.

The DWP were challenged by the Child Poverty Action Group and two claimants with serious mental health problems who were refused ESA and then failed to ask for a mandatory reconsideration within the one-month time limit.

They made late applications for a mandatory reconsideration” of the decisions, but the DWP refused to change the decision or let a tribunal consider whether that was correct.

For example, as the three Judges hold that:

“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.”

A recent freedom of information request revealed the DWP has a target to uphold 80% of its original benefit decisions after the internal “mandatory reconsideration” reviews.

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

DR UK welcome the Upper Tribunal decision as it will give a significant number of disabled claimants greater access to justice. In turn, many will now be gain entitlement to benefit previously refused due to the missing of short one month deadlines.

Note :

There is a ‘dispute period’, which is normally one calendar month from the date a decision is sent to you, during which you can ask for a mandatory reconsideration of the decision. When you do this, a decision maker will look at your reconsideration request and, if they agree with it, they will revise the decision.

If you have missed the one-month deadline, you may be able to ask for a late revision. This may be accepted up to 13 months in the after the normal deadline if:

  • the decision maker thinks it is reasonable; and
  • special circumstances made it impracticable for you to seek a revision within one month.

However, the DWP has always maintained that if it refuses a request for a late revision, the only legal remedy is for a claimant to pursue a judicial review in the High Court.

In refuting this, the three Judges highlight that a significant number of claimants who are entitled to benefits not being paid them because:

  • they miss the time limit for a mandatory reconsideration and
  • do not judicially review that decision.

In contrast, “an appeal to the FTT is much more user friendly and useful to a claimant because of its informality, the expertise of its members and its costs regime which clearly is not outweighed by the point that the appeal is not “in scope” for legal aid whereas judicial review is.”

CE/766/2016 is available @ https://www.gov.uk/administrative-appeals-tribunal-decisions/r-cj-and-sg-v-secretary-of-state-for-work-and-pensions-esa-2017-ukut-324-aac

Related information

Disability Rights UK factsheet F36 – Appeals and mandatory reconsideration