Ask CPAG online: Appealing after a Mandatory Reconsideration
What does this section cover?
This section covers issues relating to appeals which arise from the requirement to apply for a mandatory reconsideration (MR) before you can appeal. Clicking on the links below will take you to the main areas covered.
- How do you appeal after a MR?
- On what grounds can you appeal?
- Can you appeal without a MR notice?
- How is your ESA restored on appeal?
- Will your appeal always proceed to a tribunal?
The rules and tactical issues relating to appeals against benefit and tax credit decisions are covered in more detail in Chapters 59 and 68 of the Handbook.
How do you appeal after a MR?
If you are not satisfied with the decision on your MR application, you can appeal to an independent tribunal. Your must appeal in writing directly to HM Courts and Tribunals Service (HMCTS). It is best to use the official forms provided by HMCTS. Use form SSCS1for appeals against DWP decisions and form SSCS5for appeals against HMRC decisions (tax credits and child benefit). The address you must send your appeal to isset out on the form.
Your appeal must be received by HMCTS within one month of the date on which you were sent the MR notice (i.e. the date on the notice or the covering letter). The time limit can be extended by up to 12 months if you explain why your appeal was late.Although the time limits run from the date of the MR decision, your appeal is actually against the original decision.
On what grounds can you appeal?
You can appeal on any grounds, but you need to try to establish that:
- the relevant decision was wrong; and
- you are entitled to the disputed benefit in accordance with the law and any relevant case law.
As well as presenting the facts of your case, you shouldrefer to the relevant law and submit any supporting evidence from third parties. In ESA and disability benefit appeals, supportive medical reports are often decisive.
Your grounds and evidence may be the same as you used in your MR application, but you are entitled to rely on additional grounds and evidence. You should also be ready to address the arguments and facts used by the decision maker to refuse your MR application, as set out in the MR notice.
Your appeal is against the original decision and not the MR decision.You must establish that the decision was wrong on the date it was made in accordance with your circumstances at the time.The tribunal cannot take into account any subsequent changes in your circumstances.
Can you appeal if your MR was refused because it was late?
If your application for a MR is refused on the grounds that it was made outside the time limit and DWP or HMRC/Concentrixrefuse to extend the time limit, they maysay you have no right of appeal because they have not carried out a MR.
It is arguable, however, that this is wrong because either DWP has ‘considered’ the application or HMRC / Concentrix has carried out a review (see Pursuing a Mandatory Reconsideration), albeit for the restricted purpose of deciding whether to extend the time limit.There is a further difficulty with tax credits cases, in that you must have been given notice of the conclusion of the review for you to have a right of appeal.
It is also arguable that the absence of appeal rights is incompatible with Article 6 of the European Convention on Human Rights. If you do submit an appeal, it is for HMCTS to decide whether it has jurisdiction to admit it. The first problem you are likely to encounter, however, is that you will not have a MR notice. If the appeal is rejected, your only legal remedy would be judicial review.
Can you appeal without a MR notice?
The appeal forms SSCS1 and SSCS5 require you to attach a copy of your ‘mandatory reconsideration notice’and state that ‘If you do not do so, we will be unable to register your appeal until this is provided’.
The tribunal procedure rules state that you must send a copy of the MR notice with your appeal.[1]This requirement can be ‘waived’ if it is just to do so, but your appeal can also be ‘struck out’ if you fail to comply with a direction to submit a copy of the MR notice.[2] These powers are delegated to clerks in accordance with the tribunal procedure rules[3] and a Practice Statement issued by the Senior President of Tribunals
If you fail to send a copy of your MR notice with your appeal, a clerk will return the appeal to you with a letter stating that is ‘non- compliant’ and allowing you 21 days to rectify this by resubmitting it with the MR notice. If you do not respond, you will receive a further letter stating the appeal will be ‘struck out’ if you do not respond within 14 days. If an appeal is struck out, you can ask for it to be reinstated within one month (the time limit can be extended). Although these powers can be exercised by a clerk, you have the right to ask a tribunal judge to reconsider any decision made by a clerk within 14 days of the date the decision was issued to you (the time limit can be extended).[4]
In fact, there is no reference to a MR notice (or MR) in the decision making rules (see ‘Pursuing a Mandatory Reconsideration’ – link), which only refer to ‘revision’ and ‘review’. In practice, however, decision makers should issue you with two copies of a ‘mandatory reconsideration notice’, one of which you should send with your appeal.
In certain circumstances, you may have difficulties obtaining a MR notice and may need to argue that you should be allowed to appeal without one. These are discussed below.
Delays in the issue of a MR notice
If you have been told that a decision on your MR application has been made, but there are delays in issuing a MR notice, you can complain (see What are the time limits?). You could also appeal sending a covering letter with your appeal form explaining why you have not enclosed the MR notice. You will need to give details of your MR application so you should send any copies of relevant correspondence you have.
You should argue that you have a legal right to appeal once the DWP has considered your application or HMRC has carried out a review, regardless of whether you have been issued with a MR notice (seeWhat does the law say?). You should ask for the requirement to submit a MR notice to be waived under the tribunal procedure rules. If your appeal is returned as ‘non-compliant’, you can ask for a tribunal judge to reconsider the decision.
Initial and partial reconsiderations
If the DWP has carried out an ‘initial’ or ‘partial’ reconsideration and not issued a MR notice, you arguably have the right to appeal on the basis that your application has been considered (see Pursuing a Mandatory Reconsideration – How is your application decided?). You would need to appeal with a covering letter, following the same procedure as above.
Refusals of late applications for MR
See ‘Can you appeal if your MR was refused because it was late?for possible arguments that you have a right of appeal. As well as setting out your case in a covering letter with your appeal form, you could request that the requirement to submit a MR notice is waived.
How is your ESA restored on appeal?
In certain circumstances, you can be paid employment and support allowance (ESA) pending an appeal against a decision that you do not have limited capability for work (see Benefit Pending a Mandatory Reconsideration). In addition,payment can be backdated to cover the period of the MR. There is no requirement for you to make a claim, as benefit is awarded automatically,[5]but you will first need to relinquish any claim you might have made for jobseeker’s allowance in the meantime.
There are often long delays, however, in getting your ESA reinstated because HMCTS first processes and registers your appeal and then sends notification of the appeal to the DWP by post. The DWP then check the appeal and eventually send it through to a section responsible for restoring your ESA payments. The whole process can take several weeks.
In fact, you are legally entitled to payment as soon as you have made, and are pursuing, an appeal against a relevant limited capability for work decision.[6] You can speed up the process by making it clear on the appeal form SSCS1 (or in a covering letter) that you are in financial hardship and need to have your ESA payments restored quickly. This should prompt HMCTS to email an acknowledgment of your appeal to the DWP.
You could also speed up the process by:
- sending your appeal to HMCS by recorded delivery and obtaining proof of delivery using the online Royal Mail tracker system;
- sending copies of your appeal and the proof of delivery to the DWP
- sending a covering letter or email explaining the urgency and quoting the law confirming entitlement to ESA without a claim, on the basis that you have made, and are pursuing, an appeal.
Will your appeal always proceed to a tribunal?
Once a valid appeal has been registered by HMCTS following a MR, your appeal will normally proceed to be determined by an independent tribunal.
Note the following exceptionswhich are likely to be rare following the introduction of MR.
The DWP have the power to carry out a further revision before your appeal proceeds to a tribunal and revise the decision in your favour. This could happen, for example, where you submitted new information or evidence with your appeal which establishes that the decision under appeal was wrong. Note that if the decision is changed wholly or partially in your favour, your appeal lapses and you will have to appeal again if you are unhappy with the new outcome (see Handbook p1278).
HMRC can offer to ‘settle’ the appeal without it going to a tribunal (if you agree the appeal will lapse) and may telephone you to discuss this before the appeal (see Handbook p1429).You should seek advice unless the decision under appeal is changed wholly in your favour.
[1] Rule 22(4)(a) Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008
[2] Ibid rules 7(2)(a) and 8
[3] Ibid rule 2
[4] Ibid rul4 4(3) and 5(3)
[5] Reg 3(j) Social Security (Claims and Payments Regulations 1987; reg 7 Social Security (Claims and Payments) Regulations 2013
[6] Reg 30(3) ESA Regs 2008; reg 26(3) ESA Regs 2013