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

High Court rules mandatory reconsideration requirement for ESA claimants unlawful

11 August 2020

The High Court - in Connor, R (On the Application Of) v The Secretary of State for Work And Pensions [2020] EWHC 1999 (Admin) - has ruled that the requirement for an ESA claimant to go through the mandatory reconsideration process before appealing against a decision is unlawful with respect to ESA claimants who meet the conditions for payment while an appeal is pending.

When someoe makes a claim for ESA if the claim is refused, the claimant has a right of appeal to the First-tier Tribunal. However, the effect of regulation 3ZA of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is that the right of appeal does not arise until the Secretary of State has had the chance to decide whether or not to revise her decision to refuse the claim for ESA.

The issue in this case was whether regulation 3ZA is lawful insofar as it applies where the benefit claimed is ESA.

Following a decision by the Secretary of State on 18 October 2018 that the claimant ("Mr Connor"), no longer met the requirements to be eligible to receive ESA, Mr Connor asked that the decision be revised.

His request was received by the Department for Work and Pensions on 1 November 2018. However, no decision was taken on that request until March 2019. This prompted him to contend to the High Court that the requirement set out in regulation 3ZA is an unlawful restriction on his right of access to a court, as guaranteed by the Human Rights Act 1998, and specifically by ECHR article 6.

In considering this case, Mr Justice Swift explains that, under regulation 30(3) of the Employment and Support Allowance Regulations 2008:

'Where a benefits claimant appeals a decision by the Secretary of State that he does not have limited capability for work, and when that decision was either the first time that issue was considered by the Secretary of State in respect of that claimant, or when it follows an earlier decision by the Secretary of State that that benefits claimant did have limited capability for work, the benefits claimant will continue to receive ESA on the strength of the evidence of his GP until such time as the First-tier Tribunal determines the appeal.”

Justice Swift finds that regulation 3ZA of the Decisions and Appeals Regulations is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal under regulation 30(3) of the ESA Regulations.

In upholding Mr. Conner’s judicial review application, Judge Swift says:

“Both the absence of payment available to ESA claimants while they wait for the Secretary of State's revision decision equivalent to payment pending appeal under regulation 30(3), and the absence of any explanation of why, in terms of payment of ESA, the period pending a revision decision is treated differently to the period pending an appeal decision, are telling. For ESA claimants, the regulation 3ZA requirement represents a re-balancing of interests.

Prior to the introduction of regulation 3ZA, the Secretary of State could revise any decision that was subject to an appeal pending before the First-tier Tribunal: see regulation 3(4A) of the Decisions and Appeals Regulations introduced in 2002. That provision remains in force. If such a revision were undertaken it would be at a time when an ESA claimant would have the benefit of payment pending appeal.

The advantage permitted to the Secretary of State by regulation 3ZA comes at a cost to ESA claimants. There is no explanation for that.

There is no evidence to support a conclusion that the objective pursued by regulation 3ZA would to any extent be compromised if payments like the payments pending appeal made to ESA claimants who are pursuing appeals to the Tribunal, were made to them while they waited on the Secretary of State's revision decision.”

Ken Butler DR UK’s Welfare Rights and Policy Adviser said:

"This is a very welcome judgment and one that will significantly benefit many ESA claimants.

Its effect is that a claimant who, once they appeal would get ESA pending appeal, can go straight to appeal and will not need to submit a mandatory reconsideration request.

This will mean that they will not be forced to claim Universal Credit to ensure they have an income during an unpaid mandatory reconsideration period.

Once a Universal Credit claim is made, the person cannot return to ESA even though their appeal may be  successful.

Note: You cannot receive ESA pending the appeal if you have had two consecutive decisions that you do not have (and cannot be treated as having) a limited capability for work.

You cannot automatically receive ESA pending the appeal if you are appealing against a decision that you do not havegood cause for failing to send back the capability for work questionnaire or attend the face-to-face assessment.

The High Court’s decision in Connor, R (On the Application Of) v The Secretary of State for Work And Pensions [2020] EWHC 1999 (Admin) is available from bailii.org.