In an earlier article we have considered the difficulties encountered by CRPS and other chronic pain sufferers in satisfying the qualifying criteria for some DWP benefits and in another article we looked at some case studies.
In a recent decision three senior judges have ruled that the DWP has been unlawfully preventing people applying to the tribunal to appeal against decisions to refuse them benefits.
Why were the challenges made?
The DWP system was challenged by claimants who were refused Employment and Support Allowance (ESA) and then failed to ask for an internal review, called a “mandatory reconsideration”, within the required statutory one-month time limit. The DWP refused to reconsider those decisions or to allow the claimants to let a tribunal consider whether that decision was correct. Missing that deadline had therefore left the claimants with no potential recourse.
The Judges’ findings
The Upper Tribunal found this was wrong. The judges said:
“The reality is that many claimants will be vulnerable for reasons including issues relating to their mental health… 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.”
They judges concluded:
“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.”
Although the case related to ESA, this decision affects all those who claim benefits from the DWP.
It comes after it was revealed that the DWP has a target to uphold 80% of its original benefit decisions after “mandatory reconsideration” reviews. Only about 12% of ESA (work capability assessment) decisions are overturned at mandatory reconsideration, but that figure rises dramatically to 59% of those that make it to the tribunal stage.