I know this thread is a little old, but I landed up here via a comment on The Guardian made within the last 48 hours. As a disabled person and law student, I wanted to correct some factual errors and give links to the law itself. Most references to the law are hyperlinked to the appropriate entry on legislation.gov.uk.
I am struggling onward with my studies in the hope of being able to use my eventual degree to help others in some way. My dream is to qualify as a solicitor, though this depends on finishing my degree, finding the funds and strength for an expensive and demanding postgraduate course, then finding someone who will employ me as a trainee solicitor when I haven't been well enough to work for years and there's a vast oversupply of potential trainee solicitors at present. If I am unable to qualify as a solicitor, I am sure I'll find ways to use my eventual law degree as a volunteer.
THE ENABLING PROVISIONThe amendment that gives ministers power to introduce mandatory revision before appeal is
sections 102(2)-(4) Welfare Reform Act 2012 (not clause 99). This inserts new provisions into
section 12 Social Security Act 1998 effective from 25 February 2013 (
article 2(2) and
schedule 2 paragraph 37 The Welfare Reform Act 2012 (Commencement No.8 and Savings and Transitional Provisions) Order 2013 (SI 2013/358) refers).
However, this amendment is merely an enabling provision - it has no effect until brought into operation by secondary legislation, as can be seen by the wording of the new s. 12(3A): "Regulations
may provide that...".
MANDATORY REVISION BEFORE APPEAL - UC, PIP, JSA & ESAThe secondary legislation allowing imposition of mandatory revision before appeal for UC, PIP, JSA and ESA is
regulation 7 of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381). Note that, pursuant to regulation 7(1), mandatory revision before appeal only applies when the written notice of a decision includes words to the effect that the Secretary of State must have considered a revision application before the right of appeal to the First-tier Tribunal exists.
Pursuant to
regulation 1, regulation 7 came into effect in relation to PIP on 8 April 2013, and the other three benefits on 29 April 2013. The mention of "remove references to an income-related allowance" in regulation 1(3)(a) and (b) merely reflects that UC takes over from income-related ESA and income-related JSA in areas where UC is operational.
MANDATORY REVISION BEFORE APPEAL - OTHER BENEFITSThe secondary legislation allowing imposition of mandatory revision before appeal for all other benefits is
regulation 4(2) and (3) The Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013 (SI 2013/2380). Again, mandatory revision before appeal applies only when the written notice of decision states mandatory revision before appeal applies. Pursuant to
regulation 1(2), these amendments became active from 28 October 2013. Other parts of these Regulations brought in corresponding amendments to the child support and vaccine damage payment schemes from the same date.
DIRECT LODGEMENT OF APPEALS FOLLOWING MANDATORY REVISIONThe changes in the Tribunal Rules implementing direct lodgement for cases involving mandatory revision before appeal is found in rules
25 and
26 of
The Tribunal Procedure (Amendment) Rules 2013 (SI 2013/477). Pursuant to
rule 1(2)(a), these changes came into effect from 8 April 2013.
THE EFFECT OF THESE CHANGESAlmost every claim made to a court or tribunal is lodged directly with the court or tribunal. The reason benefit appeals went via DWP was to alert DWP to the appeal in the expectation DWP would reconsider the decision. This reason disappears under mandatory revision before appeal, so it is unsurprising that mandatory revision before appeal cases will use direct lodgement.
Mandatory revision before appeal forces the claimant to take up their entitlement to give input to a revision process. The revision process has historically been much quicker than appealing to the First-tier Tribunal, as well as being less stressful - but there is a tight time limit to make a revision request (4 weeks, plus a further 2 weeks if you write requesting a written statement of reasons because one was not supplied) and the entire decision-making process seems hopelessly bogged down for most benefits at present. Nevertheless, it is in everyone's interests to bring cases to a swift conclusion without involving the Tribunal Service whenever possible.
I cannot be the only claimant who has successfully used the process of requesting a written statement of reasons, before writing back rebutting those reasons using the evidence I had previously supplied and requesting revision. If you requested revision and failed to achieve what you wanted, you still had the right to appeal to a tribunal - in this scenario, you could get the written statement of reasons for the revised decision, which would likely be the arguments the Secretary of State would put before a Tribunal, and construct your Tribunal submission around those reasons.
When claimants appealed directly to the First-Tier Tribunal without requesting revision of the decision first, DWP would routinely revise the decision.
If DWP revised the decision and found in the claimant's favour, they would usually lapse the appeal and it would not therefore be heard before a Tribunal.
If DWP revised the decision and there was no change, they sent the papers to the Tribunal Service.
If DWP revised the decision and made a new decision that was unfavourable to the claimant, the revised decision was implemented and the claimant was invited to make further representations within a month. If the claimant made further representations, these representations informed a second revision process. The case was only sent on to the Tribunal Service if the claimant didn't respond within a month, the claimant made a written request for the papers to be sent to the Tribunal Service anyway, or the second revision process failed to change the first revision decision. Any of these scenarios involved delay and the claimant (or their representative) going to the trouble of constructing a Tribunal submission on a different decision to that ultimately put before a Tribunal. Mandatory revision before appeal prevents any of these undesirable scenarios.
The key thrust of these changes is neutral in character and might be in the claimant's favour in some circumstances. However, as well as the potential for mandatory revision to introduce additional delay, there are two nasties lurking within these changes.
NASTY 1 - CLAIMANTS WISHING TO CHALLENGE A DECISION MUST ENSURE DWP RECEIVES A REVISION REQUEST WITHIN FOUR WEEKS, AS A DECISION REJECTING A REVISION REQUEST FOR BEING LATE LIKELY ENDS THE APPEAL PROCESSIf the decision-maker rules a late revision request to be inadmissible, it is likely to be impossible to pursue that claim further under mandatory revision before appeal.
Under the old system, you could make a late appeal application and the Tribunal Service made its own decision whether there was good reason to allow the late application to proceed. The Tribunal had greater latitude to admit a late appeal than the Secretary of State has to admit a late revision request.
Under mandatory revision before appeal, there is no right to appeal unless a revision has taken place. When a decision-maker rejects a revision request as late without good reason, any appeal is likely to be rejected without being considered because the Tribunal lacks the power in law to consider the matter. In these circumstances, the only way to take the matter further appears to be via judicial review of the decision rejecting the revision request. This involves a High Court application that is likely to be far beyond the capabilities of anyone other than a practising lawyer. Judicial review is unlikely to help in any event: it can only be granted on a limited number of grounds recognised by the courts, and the usual outcome of successful judicial review is the original decision being quashed and sent back to the original decision maker to make again.
In practice, this means that claimants must ensure their revision request is received by DWP before the expiry of the four week window, or they should expect to lose all means of challenging the decision. The only exceptions are if you successfully show "special circumstances" and meet the other legal requirements for a late revision request to be accepted, or if you successfully invoke the supersession route (which is usually second best to revision, as it involves a new decision based on a material change).
I believe taking action within four weeks may well be beyond many claimants. Following the removal of Legal Aid funding from all welfare rights matters (other than appeals to the Upper Tribunal or the courts, either of which are only possible on points of law) in April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the situation is dire for unsuccessful claimants needing to request revision or appeal.
The majority of Legal Aid money spent on benefits matters went to organisations like the CAB. The loss of this Legal Aid money, together with much of the discretionary welfare rights funding from councils (who are struggling to fund their statutory services and who cannot afford the luxury of much discretionary spending), has led to advice organisations having to let go of many of their paid welfare rights advisers, also it has taken away the funding advice organisations could use to obtain evidence and pay for representation at tribunal hearings.
The welfare rights services that remain are staffed mainly by volunteers, who are of variable quality, and are totally swamped by the workload. The chances of getting a face to face appointment within the four week revision window is slim to non-existent in many areas, and even telephone advice can be hard to come by.
NASTY 2 - NO RIGHT TO ESA PAYMENTS PENDING REVISIONThe other nasty is that ESA is payable when an appeal is pending, but not whilst a revision request is pending. Before the introduction of mandatory revision before appeal, this allowed ESA claimants to give up their right to revision and appeal directly to the First-tier Tribunal in order to continue receiving payments whilst an appeal decision is made. The cost in doing this was that the revision process was likely to take place and reach the same decision as before following receipt of the appeal, as the claimant had made no submission to the revision process. Still, for many, the loss of the opportunity to engage with the revision process was a price worth paying.
Now that mandatory revision before appeal is being introduced, an ESA claimant must be able to survive the reconsideration period with no ESA or JSA in order to pursue a "fit to work" ESA decision. The Social Fund was abolished via another of the Welfare Reform Act 2012 changes, so that route to stopgap money no longer exists.
There was abuse potential in the old system, in that a claimant could attempt to string out an almost hopeless ESA case for several months until a tribunal hearing took place, remaining on the initial ESA rate for all this time whilst not eating in to the six months allowed on contributions-based JSA. (I say almost hopeless, because I would expect the First-tier Tribunal to accede quickly to the Secretary of State's request to strike out a completely hopeless case).
Arguably, the correct approach to tackling this abuse window would have been to ensure decisions are made quickly and accurately (some hope, I know), for First-tier Tribunal hearings to happen with minimal delay, and to give the First-tier Tribunal the power to order repayment of all ESA should it find the appeal to have been vexatious or an abuse of process.
Instead, ministers have come up with a system that will force many claimants to claim JSA in order to have any money to eat and stay warm. As JSA can only be paid to those who do not have limited capability for work, you represent you are fit for work when claiming JSA, so a successful JSA claim precludes an award of ESA for the same period. By claiming JSA to have money to live off, it becomes impossible to establish an ongoing entitlement to ESA on appeal, and the amount of ESA in dispute is then so low that it becomes pointless to pursue an appeal.
I hope that a challenge is brought to this system under human rights legislation. On a quick glance, there appears to be a possible claim under Articles 6 (right to fair hearing), 8 (right to respect for private and family life) and 14 (right not to be discriminated against in respect of the application of other Convention rights) of the European Convention on Human Rights and sections 3 and 6 of the Human Rights Act 1998, though I haven't researched this direction in any detail.
A COUPLE OF POINTS ABOUT THE FIRST-TIER TRIBUNALThe Secretary of State's response to a tribunal is not the written statement of reasons for the appealed decision - that is usually a separate document. The response is a "friend of the court" document, setting out those points where the Secretary of State disagrees with the claimant's submission together with the grounds for that disagreement, whilst taking account of any points in the claimant's favour.
The role of the First-Tier Tribunal is not to decide whether the decision is fair, but to make the decision on the disputed matter(s) afresh by applying the law to the available facts. The submission of the claimant and the Secretary of State are clearly important in this process, but the Tribunal is entitled to prefer its own views. This contrasts markedly with appeals to the Upper Tribunal and beyond that to the courts, which must be on matters of law.