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Landmark Upper Tribunal judgment giving right to appeal now has reported status

11 October 2018

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

The significance of the judgment has now been affirmed by it being made a reported decision -  [2018] AACR 5

A ‘reported’ decision is one that is published in printed form (as well as on the internet) after having been selected for its importance by a board of Upper Tribunal judges. These judges must broadly agree with the decision’s reasoning before it can be reported. A reported decision therefore generally carries more weight than an unreported decision.

In [2018] AACR 5,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.

In upholding the claimant’s appeal, the three Judges held 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

We are concerned with the situation where a claimant sends the Secretary of State a request for a mandatory reconsideration (a revision application) 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.”

DR UK welcome this Upper Tribunal decision as it will give a significant number of disabled claimants greater access to justice. In turn, many will now gain entitlement to benefit previously refused due to missing 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 had 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 highlighted 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.”

Related information

Disability Rights UK factsheet F36 – Appeals and mandatory reconsideration