Appeals Process Changes for DWP Benefits and Child Maintenance from 28th October 2013

ani_26

Bumping thread.

ani_26

Informative and useful link here as Dwp begin to use that all important three letter word, yes



https://www.gov.uk/government/upload...es-q-and-a.pdf



Note :-

ani_26 wrote: »

Thankyou for your responses and the above very informative link, Mr / Ms single handed DOT. I do hope you had a pleasant leave?


Although i haven't perused the whole document yet, it would appear DWP are now using that important three letter word? Yes.

Q: Who will these changes affect?


The measures will potentially affect everyone claiming a DWP administered benefit and those undertaking a child maintenance assessment or calculation.


Q: What appeals are covered by these changes?


The changes will ultimately apply to appeals against any benefit sanction or any decision about benefit eligibility. The changes will be phased in, applying first to Personal Independence Payment and Universal Credit from April 2013.


Q: Will the changes applyto child maintenance cases?


Yes, the changes will be introduced for child maintenance cases from 28 October 2013.


Importantly


Q: How will people know which process applies to them?

For other benefits, if the decision notification is dated before 28 October, the existing process will apply (so there will be an option of moving straight to appeal).


If the decision notification is dated on or after 28 October 2013, the new process will apply and the person will have to request a mandatory reconsideration before they can appeal.


In both cases, the decision notification will explain what the person should do if they do not agree with the decision, and what their appeal rights are.


DWP will also ensure that customer representative groups are aware of the timetable for the changes.



Dated being the crucial word, in the above statements, as highlighted in red.

ani_26

Interesting :-

Whilst I’ve been aware of, and certainly concerned about, the substance of these changes, have to admit I’ve taken my eye off the ball when it comes to the dates they come in. I’ve just read the new Decisions and Appeals Regs 2013 for the first time today. Ditto the new bits of section 12 of SSA 98 substituted by the WRA 2012.
Firstly, am I right in thinking that mandatory reconsideration is effective for new style ESA and JSA (ie contributory), Universal Credit (I’ve not got round to reading the Universal Credit Regs yet - at all. Actually been hoping UC is scrapped so I can scoff at those who have) and, of course, PIP together with those other areas of law mentioned in Sch 11 to WRA 2012? In which case, PIP aside, we’re not going to see this affecting clients until UC is implemented in our postcodes. I suspect I’ve got that wrong because I keep hearing 28/10/13 mentioned whenever mandatory recon is discussed.
Secondly, I find the new regulation 7 D&A Regs 2013 (which provides for mandatory recon) confusing.
Section 12 SSA 98 as substituted by section 102 WRA 2012 provides:
“(2) In the case of a decision to which this section applies, the claimant and such
other person as may be prescribed shall have a right to appeal to [the First-tier Tribunal],
but nothing in this subsection shall confer a right of appeal:
(a) in relation to..n/a, or
(b) where regulations under subsection (3A) so provide
(3A) Regulations may provide that, in such cases or circumstances as may be
prescribed, there is a right of appeal under subsection (2) in relation to a decision only
if the Secretary of State has considered whether to revise the decision under section 9.
(3B) The regulations may in particular provide that that condition is met only where–
(a) the consideration by the Secretary of State was on an application,
(b) the Secretary of State considered issues of a specified description, or
(c) the consideration by the Secretary of State satisfied any other condition specified in the regulations.
Regulation 7
(1) This regulation applies in a case where–
(a) the Secretary of State gives a person written notice of a decision under section
8 or 10 of the 1998 Act (whether as originally made or as revised under
section 9 of that Act); and
(b) that notice includes a statement to the effect that there is a right of appeal in
relation to the decision only if the Secretary of State has considered an
application for a revision of the decision.
(2) In a case to which this regulation applies, a person has a right of appeal under
section 12(2) of the 1998 Act in relation to the decision only if the Secretary of State
has considered on an application whether to revise the decision under section 9 of that
Act.”

Subsection (3A) above makes a right of appeal conditional on a mandatory reconsideration in “such cases or circumstances as may be prescribed”. Subsection (3B) then hints at what some of those circs might be. However, to date (and I stand to be corrected on this) the only one we have is where the DM states in the decision letter that a mandatory recon is necessary (Reg 7(1) above). In other words, “you cannot appeal immediately because it says so in the decision letter”. That cannot be right. It is too uncertain. It leaves open the possibility of the DM having some kind of discretion over whether to include the mandatory recon statement in the decision letter. Eg, could the DM give a claimant the benefit of the doubt and not include it in order to allow him/her to appeal straight away?
Further regs under subsection (3B) must be on the way to make sense of this.
Edit: My original post had mentioned that section 12(2) was badly drafted and arguably did not clearly provide for a right of appeal following the making of a mandatory recon. However, I was relying on the Blue Volumes’ version of section 12(2) SSA but that, although updated, is, unusually for the Blue Volumes, wrong (the words “in relation to” should be in sub para (a) of subsection (2) not, as the Blue Volumes has them, in the main body of subsection (2)). That totally changed things and removed any confusion: there’s obviously a right of appeal.

There may be a right of appeal?

lemontart

interesting reading but they say in it reconsideration has always been done when someone appeals so why turn round now and say it is mandatory when it was supposedly always done in the 1st place?

ani_26

The only possible reason is to reduce benefits costs? Deter claimants from appealing, because what is the alternative?



Remember, when Esa stops, so does your entitlement to Housing Benefit and Council Tax Reduction, which would affect those people with no other income, who would then have to apply for HB due to nil income.





http://www.cpag.org.uk/content/new-appeals-rules-and-procedures



Note :-

Comment

The DWP denies that mandatory reconsideration involves an extra step in the appeals process or that it constitutes an important change in appeal rights.15


Very arguably, it is both. If revisions are (as the DWP says) carried out anyway it is difficult to see what extra value in terms of dispute resolution there is in requiring one. Someone who wishes to dispute a decision more than a month after the original decision is currently (apart from in UC and PIP cases) able to request a late appeal, even if a late revision is refused. Under mandatory reconsideration s/he cannot. If her/his request for a late or an ‘any time’ revision is refused, then (on the official approach) s/he will not have the right of appeal at all. Judicial review is the only legal redress.


Furthermore, claimants will be without the benefit claimed pending the outcome of their request for a mandatory reconsideration. In ESA cases (currently the majority of appeals), it remains that ESA pending appeal is only payable when an appeal has been made – ie, not while a mandatory reconsideration is pending. The very real concern is that many claimants will abandon their dispute because of the simple need to sustain themselves and their families.

portly1

lemontart wrote: »

interesting reading but they say in it reconsideration has always been done when someone appeals so why turn round now and say it is mandatory when it was supposedly always done in the 1st place?

Up until now you had a choice to either submit an appeal straight away (and they would carry out a reconsideration anyhow) or apply for a reconsideration and if no change then issue an appeal.

People tended to go straight down the appeal route as it would cut down the time waiting for a Tribunal hearing. They knew that it would be reconsidered anyhow and to get the assessment rate back into payment asap. The assessment rate can only be put back into payment if you appeal, it won't get put back into payment if you ask for a reconsideration.

Under the 'new' system you will NOT be allowed to go straight into the appeal route. You must have a reconsideration first.

Nothing is really changing other than the fact that people up to now got wise to the appeal triggering their money to start up again. Nobody with any sense would want to ask for a reconsideration as they knew that their benefit would have been delayed by weeks. Up to now it is a loophole that has had to be closed down.

sja75

This is quite a mine field of information to be honest.

As an ESA claimant I am still none the wiser regards post 28 October.

osdset

Mandatory revision before appeal is the governments response to the amount of success claimants have at tribunal, they simply cannot have their precious ATOS nil point regime overturned. The government cannot do away with the appeals process so they are employing a mechanism to deter anyone that has not got the financial means to survive for weeks, or months until the hearing. Many claimants will drop appeals over this which is what the government are aiming for.

ani_26

Advice centre staff have started a petition, for anyone who cares to sign :-




http://www.rightsnet.org.uk/forums/viewthread/5356/



http://you.38degrees.org.uk/petitions/ian-duncan-smith-targets-the-sick-vulnerable




Thanks ani

portly1

osdset wrote: »

Mandatory revision before appeal is the governments response to the amount of success claimants have at tribunal, they simply cannot have their precious ATOS nil point regime overturned. The government cannot do away with the appeals process so they are employing a mechanism to deter anyone that has not got the financial means to survive for weeks, or months until the hearing. Many claimants will drop appeals over this which is what the government are aiming for.

But that has always been the case. Apply for a reconsideration - no money - put in an appeal, money starts up.

People only have themselves to blame for this for trying to circumvent the system by wanting to go straight for an appeal instead of applying for a reconsideration and then if that failed put the appeal in.

Money is at the very heart of this - people will try to work round anything to get the money rolling in again. Unfortunately the government have noticed this and have put a stop to it.

Besides which no other benefit that I know will continue to be paid after being told that people aren't entitled to it but by appealing it is put back into payment.

Pity that they don't do that with DLA - when you fail you fail. You only get paid if you win at a Tribunal.

People seem to forget that JSA is available when the ESA claim is thrown out.