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R (CJ) and SG v SSWP (ESA) [2017] UKUT 0324 (AAC)

A claimant can appeal a benefits decision to the tribunal even if their application for mandatory reconsideration was made late.

Mandatory reconsideration (MR) was introduced by the Welfare Reform Act 2012 and requires a claimant to request that the DWP review a benefit decision before they can lodge an appeal with the tribunal. A request for MR must be made within one month of the decision and an application to the tribunal within one month of the negative MR decision. Before MR a claimant to request a review and/or apply to the tribunal quite separately.

The question that arose before the Upper Tribunal was what happens if a claimant does not request MR within the one month period. Are they then unable to apply to the tribunal? The Secretary of State's position was that a claimant can request that the MR time limit be extended but if refused their only option is the judicially review that refusal. Failing a successful judicial review they are effectively cut off from the tribunal.

The Upper Tribunal considered that, if the Secretary of State's position was correct, that a significant number of claimants who were entitled to benefits would not receive them. It recognised the impact of mental health, legal aids cuts and decreasing assistance on the ability of benefit claimants to comply with deadlines such as these.

When interpreting statutory language the Upper Tribunal highlighted the rights to access justice and stated, not dissimilarly to the Supreme Court's recent judgment on employment tribunal fees, that 'clear language is needed to remove or interfere with existing rights of appeal'. While judicial review would have been a potential route of challenge it was recognised that the benefits tribunal is a far more appropriate forum:

"…an appeal to the FTT is much more user friendly and useful to a clamant because of its informality, the expertise of its members and its costs regime."

The Tribunal ruled that that "clear language" was not there and that Parliament had not intended to deprive a claimant of a full review before a tribunal if an MR extension request was refused. It concluded:

"We are concerned with the situation where a claimant sends the Secretary of State a request for a mandatory reconsideration (a revision application) 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 FTT".

The judgment can be found here.

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