‘Mandatory reconsiderations’ could discourage vulnerable people from pursuing appeals to a tribunal.
FOLLOWING the UK government’s defeat in the Upper Tribunal in a similar case, critics have claimed that changes to Scotland’s social security system could make it more difficult for benefit claimants to challenge unfair decisions.
The Scottish Government plans to introduce a variation on ‘mandatory reconsiderations’ (MR) as part of its new social security bill. The revamped two-tier appeal system would mean that, before appeals against cuts or cessations of benefits could be brought before a tribunal, the decision would go to government officials, who would have first say on whether a decision should be overturned.
Dubbed ‘re-determinations’ by the Scottish Government, the proposal has faced objections from those who argue it is virtually identical to the MR system imposed by the DWP in 2013, which faced similar criticism.
“Our proposals are a far cry from the discredited system run by the DWP.” Jeane Freeman, Scottish Minister for Social Security
Scotland’s social security minister Jeane Freeman denied similarities with the DWP scheme, saying: “Our proposals are a far cry from the discredited system run by the DWP.
“Our approach will ensure a system that is less burdensome and more responsive to the needs of individuals, while ensuring they will always have the right to appeal to a higher level if that is necessary.”
The Scottish Government still plans to roll out the proposed reform, despite three senior judges of the Upper Tribunal (UT), which rules on the most major benefit disputes and includes a High Court judge on its panel, ruling against the UK Government on the issue on 4 August.
“The mandatory review is being used as a barrier to stop people getting access to justice. And it is questionable whether such a provision is consistent with recent decisions about the rule of law.” Paul Spicker, emeritus professor of social policy at Robert Gordon University
Paul Spicker, emeritus professor of social policy at Robert Gordon University, was quoted in Third Force News as saying: “The mandatory review is being used as a barrier to stop people getting access to justice. And it is questionable whether such a provision is consistent with recent decisions about the rule of law.”
“It's not true to say that the system is not being based on what the DWP does… You don't have to read between the lines; their purpose is quite explicit. Their policy memorandum gives the same justification for a two stage process as was given for MR: ‘Without a re-determination stage, it would mean that all decisions being challenged would go to a tribunal. This could lead to the tribunal being inundated.’”
“A two stage appeals process discourages people from proceeding to appeal as some mistakenly believe that the internal review is their appeal.” Bill Scott, policy manager at Inclusion Scotland
Bill Scott, policy manager at Inclusion Scotland, also told Third Force News that he did not believe re-determinations were "either necessary or desirable."
“A two stage appeals process discourages people from proceeding to appeal as some mistakenly believe that the internal review is their appeal. Others think that it wouldn’t do any good to challenge the decision again when in fact a much higher proportion succeed at appeal rather than during mandatory reconsiderations.
“So we believe that there should just be a single stage appeals process.”
Last week, the Upper Tribunal ruled against the DWP after MR system was challenged by the Child Poverty Action Group on behalf of two claimants with mental health problems, who had been denied disability benefits and had failed to request an internal review within the required one month time limit.
Because of this, the DWP refused to allow a tribunal to assess the decision.
“Out of 1,544,805 mandatory reconsideration decisions made by government between 2013 and 2017, there had not been a single example of a claimant managing to bring a judicial review challenge of the kind the government suggested was a reasonable alternative to using a tribunal.” Upper Tribunal judges
The UK Government had attempted to keep the case from being heard in the UT, claiming that a judicial review would be sufficient, but was overruled when the UT pointed out that “out of 1,544,805 mandatory reconsideration decisions made by government between 2013 and 2017, there had not been a single example of a claimant managing to bring a judicial review challenge of the kind the government suggested was a reasonable alternative to using a tribunal.”
The UT judges found that the DWP had acted unlawfully, stating: “The reality is that many claimants will be vulnerable for reasons including issues relating to their mental health or learning disabilities. It is obvious that there is a high risk that many of them with good claims on the merits will miss time limits.
“We are concerned with the situation where a claimant sends the secretary of state a request for a mandatory reconsideration 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 first-tier tribunal.”
The decision was a defeat for the Tory welfare regime, and a landmark victory for its opponents, which could potentially affect thousands of benefit claimants.
Last year, a Freedom of Information request showed that the DWP aimed to uphold 80 per cent of its original benefit decisions in the aftermath of MR reviews, a target it exceeded by seven per cent.
It is not yet clear if or how the ruling will affect the proposed ‘re-determinations’ planned by the Scottish Government.
Picture courtesy of HelenCobain
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