Welfare Benefits Solicitors

The government continues to press ahead with more welfare benefit reforms to varying degrees of success. Whilst some changes, notably the so called Bedroom Tax and the continued delays in Universal Credit have received much publicity, other reforms have largely escaped attention.

Arguably the most important reform to have gone unnoticed is the ‘Mandatory Reconsideration’ procedure – the new procedure soon to be followed by benefit claimants seeking to challenge benefit decisions. This article seeks to explain what Mandatory Reconsideration is and why it is very important to be aware of it.

What is Mandatory Reconsideration?

In a nutshell, before appealing an adverse benefits decision to an Independent Benefits Tribunal a benefit claimant must now ask for a reconsideration of the decision by the appropriate benefits agency. Until this is done the benefit claimant cannot ask for the Independent Benefits Tribunal to determine his or her case. So - only when the benefits agency has reconsidered the benefit decision - will the claimant be able to then appeal the decision to the Independent Benefits Tribunal.

How does Mandatory Reconsideration differ from the previous procedure where benefit claimants challenged adverse decisions?

In the past benefit decisions could be appealed without first having to ask for a reconsideration of the decision by the benefits agency. The appeal would also be sent directly to the Independent Benefits Tribunal by the benefit agency and not the benefit claimant.

The Mandatory Reconsideration procedure step by step:

The new procedure is as follows:

1. The benefits claimant receives a benefit decision in writing (for example, the refusal to award Personal Independence payment);

2. The benefit claimant must ask for the benefits agency to reconsider the decision within 1 month of the decision. Ideally should be done in writing and sent by fax or by recorded delivery. The benefits claimant has no choice but to ask for a reconsideration – hence the name ‘Mandatory Reconsideration’;

3. The benefits claimant must then wait until the benefit agency reconsiders it decision. This may take some time (i.e. many months);

4. Once the benefits agency has reconsidered its decision (and not revised it in the benefit claimant’s favour) the claimant can appeal to the Independent Benefits Tribunal. The appeal must be received by the Tribunals Service within 1 month of the date of the reconsideration decision. There is a specific form for sending the appeal to the Tribunals Service – Form SSCS1. The Form should be sent to: MHCTS SSCS Appeals Centre PO Box 1203 Bradford BD1 9WP; AND

5. The Appeal is then heard by the Independent Benefits Tribunal.

What does this all mean to benefit claimants wishing to challenge decisions?

There are appears to be 2 consequences of Mandatory Reconsideration for benefit claimants seeking to challenge decisions:

. The procedure for challenging adverse benefits decisions is more burdensome. Now claimants have no choice but to ask the benefits agency to reconsider its decision and then (if the decision is not revised) they then have to lodge the appeal to the Tribunals Service themselves on Form SSCS1.

. Time limits of challenging adverse decisions must be strictly adhered to as there will be no guarantee of late appeals being heard at an Independent Benefit Tribunal. Under the previous procedure for challenging benefits decisions if appeals were made to benefits decisions after 1 month of the decision the matter could still be heard by the Benefit Tribunal - if within 13 months and the Tribunal decided there was ‘good cause’ for a late challenge. This appears to be no longer the case. The benefits agency does not need to reconsider decisions if challenged after 1 month of the date of the decision and if there has been no reconsideration then the benefit claimant can no longer appeal to the Independent Benefits Tribunal. So if a benefit claimant wishes to challenge a benefit decision after 1 month it will be too late unless the benefits agency decides to still reconsider its decision (which it is under no obligation to do).

Therefore it is vital that: (a) within 1 month of an adverse benefits decision the benefits agency is asked for a reconsideration; AND (b) after the reconsideration is made an appeal must be received by the Tribunal Service on Form SSCS1 within 1 month.

Both these 2 changes make challenging benefit decisions to the Independent Benefits Tribunal much harder. Whether Mandatory Reconsideration breaches Article 6 – ‘Right to a Fair Trial’ of the Human Rights Act 1998 is a moot point. But for present purposes it must be assumed that the Mandatory Reconsideration procedure is here to stay.

Note: Mandatory Reconsideration will not apply for challenging Housing Benefit decisions at present – although the government may later change this also.

It is planned that Mandatory Reconsideration will apply to all other benefits (JSA, Tax Credits, PIP) with effect from April 2014.

Duncan Lewis Welfare Benefits Solicitors specialise in all manners of Welfare Benefits legal issues. We specialise in Welfare Benefits appeals to the First Tier Tribunal and applications for permission to appeal to the Upper Tribunal. Our team can assist you to understand the legal process to challenge a negative benefit decision. We are able to advise you step-by-step on the appeals process and help you to prepare for your tribunal hearing.

Arvin Narendra is the Head of Department and Solicitor in the Duncan Lewis Welfare Benefits Department.

Please contact Arvin Narendra via email: arvinn@duncanlewis.com or Duncan Lewis Solicitors Welfare Benefits Team on 0207 923 8416 for advice on your appeal and also various funding options.