Mandatory reconsideration

MR was introduced as an additional dispute process by section 102 of the Welfare Reform Act 2012; regulations followed shortly after.  The new rules aimed to:

  • resolve disputes as early as possible;
  • reduce unnecessary demand on Her Majesties Courts & Tribunals Service (HMCTS) by resolving more disputes internally;
  • consider revising a decision where appropriate;
  • provide a full explanation of the decision; and
  • encourage claimants to identify and provide any additional evidence that may affect the decision, so that they receive a correct decision at the earliest opportunity.

NAWRA has been very concerned with the implementation of MR for some time, particularly in terms of the catastrophic drop in appeals and importantly the effects on those that suffer from cognitive impairments.  Consequently, in February this year we sent a survey to members and asked them to feedback to us about how MR was working in practice.   To our great surprise we received almost 100 responses.  Responses were vivid and detailed and members kindly went to some great length explaining the issues with MR.

The results from this survey were used to provide a MR workshop jointly facilitated by committee members Julie Henry and Daphne Hall at the NAWRA meeting in Stoke in March earlier this year.  We had a lively and engaging debate on what was happening with MR and we shared strategies for coping with some of the common pitfalls.

Further, these results were also used as a basis for an in depth article for Adviser magazine (authored by Eri Mountbatten) published in this month’s edition (May/June, ed. 169).  The article looks at MR in detail and aimed to evaluate the level to which MR is (or rather is not) streamlining the dispute process.  Some of the key findings are set out below:

  • 75% disagreed that ‘disputed decisions are resolved as early as possible’
  • There is widespread confusion built into this process often leading to (in many cases) insurmountable challenges and additional barriers, particularly affecting vulnerable claimants.  For example, DWP are routinely sending out explanation of reasons letters when claimants are asking for MRNs.  This is then used as a reason to prevent appeal rights form progressing
  • DWP decision makers are routinely misleading claimants about their appeal rights and encouraging them to drop their appeals
  • Attitudes of DWP Decision-makers are reported as being rude, placing excessive emphasis and justification on poorly evidenced or biased DWP reasoning. Most respondents reported some form of high pressure tactics and misinformation employed by DMs, some might say, deliberately intended to deter claimants from appealing.
  • There is evidence of widespread maladministration with DWP routinely losing crucial evidence
  • Unsurprisingly, claimants with cognitive impairments, such as those with mental ill health or learning disabilities, were reported as having suffered the most as they found it hardest to understand processes, manage intimidating conversations with DMs, understand complex terms (written or verbal) or engage effectively without extensive support and advocacy.

For the full article and findings please read the May/June edition of Adviser magazine (ed.169).

UC waiting days

Back in October 2014, the Social Security Advisory Committee (SSAC) ran a consultation on the government’s proposal that Universal Credit claimants must wait seven days before they are entitled to benefit. NAWRA surveyed its members and 183 organisations from across the country provided evidence. Daphne Hall (Lasa) collated all of our evidence and submitted a response to SSAC. In our our submission we stressed in the strongest possible terms our complete opposition to this proposal. What came over time and time again in the survey responses was the spiral of debt and destitution that would occur due to the cumulative effects of this policy.

SSAC published its report today.  It makes use NAWRA’s evidence a number of times. SSAC’s recommendation is that the proposal should not proceed but the government has not accepted this and plans to go ahead anyway.

Thanks to everyone who contributed, and to Daphne for drafting the submission. It made a difference even if we didn’t get the result.

NAWRA meeting in Wolverhampton 5 June 2015

Date: Friday 5th June 2015

Time: 9.30am – 4pm

Location: MC001 (Main Lecture Theatre), Ground Floor, MC Building, South Campus, Wolverhampton University, Wulfruna Street, Wolverhampton WV1 1LY

Agenda

Our guest speakers will be Steve Iafrati, senior lecturer in Social Policy at the University and Ruth London of Fuel Poverty Action.  There will be workshops on PIP, pension freedoms, the Equality Act and a project involving law students in appeal representation.

The meeting is free but only NAWRA members may attend.  There is no need to book a place.

If you have any questions then please get in touch.

SDP – get it while you can!

Patrick Hill writes:


“Since the introduction of Personal Independence Payment (PIP), there have been increasing reports from advisors across the UK that the Severe Disability Premium (SDP) has not been added to income based benefits such as: Employment Support Allowance, Jobseeker’s Allowance, Income Support, Pension Credit, Housing Benefit and Council Tax Support.  Nor have there been claims made to those income based benefits that might become payable due to entitlement to SDP.   When Universal Credit (UC) begins to take a firmer hold, and includes people with disabilities, an additional amount recognising a disability such as the SDP will not, unless the lobbying for it to do so succeeds, be part of a UC award.  

 

NAWRA are making members aware of these scenarios so that they will be better placed to seek out such cases in their own area. Where an SDP is in payment, and the claimant is migrated onto UC, transitional protection will apply.

 

As a reminder, here is a brief list of how a person would qualify for the SDP:

 

In the case of a single person the claimant should:

  • Receive a qualifying benefit (see below); and
  • Not live with any non-dependants*; and
  • No one receive Carers Allowance in respect of providing care to them.**

Qualifying benefits – middle or higher rate care component of Disability Living Allowance, any level of Attendance Allowance, daily living component of Personal Independence Payment at any rate.


In the case of a member of a couple:

  • Both receive a qualifying benefit  (or one receive a qualifying benefit and the other be registered  as severely sight impaired); and
  • Not live with any non-dependants*; and
  • No one receive Carers Allowance in respect of providing care to them.*

*Non dependants are people aged 18 or more years (but not qualifying young people still in education) living in the same household as the claimant.  However, these will not be treated as non dependants if:

  • They are joint tenants with the claimant (but not a close relative) and have been so since the tenancy was set up; or
  • Joint owners of the property (but not a close relative)in which they reside; or
  • They are liable to pay you rent (but are not a close relative);
  • You are liable to pay them rent (but are not a close relative); or
  • They are also recipients of one of the qualifyingbenefits described above.

**It is actual receipt of Carer’s Allowance that prevents SDP being included.  If, due to the overlapping benefits rules, the Carer’s Allowance is not being paid and there is only an underlying entitlement, then this will not prevent the SDP from being paid. It will also allow the Carer Premium to be awarded to the carer if they are on means-tested benefits.”


Patrick Hill is the NAWRA committee representative for North-West England.

Mandatory reconsideration

Neil Bateman writes:

Many thanks to everyone who supplied examples of poor practice around MRs by DWP staff.  They were very effective.  Please continue to send me examples of bad practice in the light of the following:

The DWP accept that there have been widespread problems and have now issued Gatekeeper Memo 03.15.38 in an attempt to tackle the problems.  The main text of this is set out below.

 

I hope this helps people to challenge poor practice, but better still. I hope it stops poor practice happening.  Please do refer to it when making complaints.  However, I am still concerned about the wording of the guidance about explanations because , at best, it could be misunderstood. Also the point about late MR request is not correct; it’s not discretionary if the criteria are met

 

Extract from Gatekeeper Memo 03.15.38

 

“Background

We have received a number of contacts from customers and Customer Representative Groups (CRG) about misunderstanding in the Dispute process. These are mainly around the Mandatory Reconsideration (MR). The queries raised clearly show that there is widespread misunderstanding of the Dispute Process. Below are some of the complaints raised and clarification of the correct processes.


DWP staff are advising customers they must specify they want a MR

“Mandatory Reconsideration” is DWP terminology. It is not necessary for the customer to use those exact words in order to raise a dispute.


If a customer advises us they disagree with a decision, want us to look at it again, ask for a review, ask to appeal etc. the request should be treated as a request for an MR whether it is made in writing or verbally. 


DWP staff are advising customers and advisers that they must have an explanation or a review before they can apply for an MR, and in some cases being told that 2 explanations are required (one verbal and one written) before an MR can be requested

It was never the intention that full verbal or written explanations should be a mandatory requirement prior to an MR. The explanation, whether verbal or written, is a discretionary step and whether to undertake one should be driven by the customer. 


When a customer contacts DWP to dispute a decision they should be offered a full verbal and / or written explanation, but if the customer declines the offer (they may have had a previous explanation or they understand the decision but dispute it) they should then be referred straight for an MR.

 

MR responses are not described as such, meaning customers think they need to ask for an MR again rather than appealing

A Mandatory Reconsideration Notice should be sent in all cases where an MR decision outcome has been made.

DWP staff are effectively advising customers that it is not worth Appealing or indeed requesting an MR
Customers must be given the correct advice when contacting the Department to dispute a decision. If a customer thinks a decision is wrong we must follow the process outlined in this memo.

 

MR requests not being accepted by phone

All staff need to be aware that MRs can be accepted by phone and requests made by this route should be accepted without question.

 

Written requests for MRs not being received

All staff must be aware that written requests for an MR could be received and all correspondence should be checked to ensure MR requests are picked up as soon as possible on receipt by DWP

 

Refusal to accept late MRs

Acceptance of late MRs should be at the discretion of the Dispute Decision Maker and based on evidence provided by the customer for their reasons for the late submission.”

 

Neil Bateman LLB, Dip SA, CQSW, DMS, MEWI, APIL expert. Specialist adviser in welfare rights and social policy