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'Mandatory reconsideration' process to make welfare benefit appeals more difficult for claimants

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From the 28th October 2013, reforms to Employment and Support Allowance, Disability Living Allowance and other welfare benefit appeals will see claimants having to lodge appeals directly with the Tribunal and will leave some appellants with no income.

The provisions contained within the Welfare Reform Act 2012 introduce a mandatory reconsideration process and the direct lodgement of appeal.

At present, if a claimant is found not to be eligible for a benefit they may appeal this decision. The Department for Work and Pensions (DWP) may then reconsider this decision before it is referred by the Department to the independent Social Security and Child Support Tribunal. Crucially in the case of Employment and Support Allowance, the claimant is paid at the assessment rate from the date the Department receive their letter of appeal. Employment and Support Allowance is some claimants only means of income.

From the 28th October, if a claimant wishes to appeal against a decision that they are not entitled to a benefit, they must first ask the DWP to reconsider their decision. Any subsequent appeal to the Tribunal will only be accepted with a mandatory reconsideration notice to say that this has been done – hence the term ‘mandatory’ reconsideration. There is no time limit within which the Department must reconsider their decision, and it is likely that this will take months rather than weeks. Crucially, and most worryingly, an ESA appellant will not receive any assessment rate until their appeal is received by the Tribunal. Therefore this reform will see Employment and Support Allowance claimants, usually the disabled, without any form of income whilst the Department reconsider their decision.

The aim of the mandatory reconsideration process is to reduce the number of appeals that reach the Tribunal and are subsequently overturned. Between April and June 2013 41% of Disability Living Allowance and 42% of Employment and Support Allowance appeals were allowed in favour of the appellants at Tribunal. This is often attributed to the further medical evidence that the appellant submits. The DWP envisage that the mandatory reconsideration process will encourage people to provide any additional evidence that may support their appeal to the Department at an earlier stage rather than to the Tribunal. Admirable as this may be, obtaining medical evidence can be a costly and timely task, one which an ESA appellant may be reluctant to do whilst they are receiving no income. What this reform does in practice is encourage claimants not to provide any medical evidence during the mandatory reconsideration process, get the appeal to the Tribunal as quickly as possible and receive the assessment rate of ESA whilst the appeal is waiting to be heard, and only then seek and provide further medical evidence for the Tribunal to consider.

The reforms that will take effect on 28th October also change the appeal lodging process. At present it is the task of the Department for Work and Pensions to submit an appeal to the Tribunal where they are unable or unwilling to change their decision. From the 28th October, it will be the job of the appellant to lodge their appeal directly with the Tribunal using the SSCS1 form, available from justice.gov.uk.