The High Court has just ruled that a rule allowing the Department for Work and Pensions to force some benefit claimants to wait – unpaid – for a mandatory reconsideration before they can appeal against refusal is unlawful.

The system previously demanded that, if a claim for income-related Employment and Support Allowance was refused, claimants would have to wait for a “mandatory reconsideration” of their case to take place before they could appeal.

This could take weeks, and has often taken months, in which the claimant – who is claiming because of serious illness, remember – has no income on which to survive.

Mr Justice Swift ruled that the demand that a mandatory reconsideration must take place before a claimant can appeal is a “disproportionate interference with the right of access to court” – in some cases.

This case was brought by law graduate Michael Conner, with crowdfunded aid from the website Benefits and Work – and represents a considerable victory for the claimant, the website, and crowdfunded legal proceedings in general.

Mr Connor had been forced to wait 18 weeks while the DWP carried out a mandatory reconsideration of his ESA decision. During this time he had no right to claim ESA.

If he had been able to lodge an appeal, he would have been paid ESA on a probationary rate, dependent on the provision of medical evidence by his doctor.

The judge said that after his benefit was cancelled on October 18, 2018, Mr Connor applied for a mandatory reconsideration.

But, in an “error” of the kind that benefit claimants have come to expect from the DWP, he said “no action was taken in response… The request for revision was incorrectly entered onto the Secretary of State’s electronic document management system.

“The document was not recognised or recorded as a request for reconsideration, and instead was classified as ‘unstructured whitemail'” and “it was not until 6 March 2019 – 4 months after Mr Connor’s request had been received – that it was identified as a request for revision.”

Mr Connor had managed to claim Income Support and Carer’s Allowance in the meantime, so he decided not to appeal the decision. Instead, he informed the DWP that he intended to challenge the legality of the rule making him unable to appeal until a mandatory reconsideration had happened.

He pointed out that:

• The rule creates an open-ended deferral of the right to appeal that could leave claimants without income for an unlimited period – as evidenced by his own case.
• Its effect is anomalous as ESA is payable before a decision is made and while an appeal is taking place, but not while the DWP is going through the mandatory reconsideration process [or, more likely, forgetting about it – in the opinion of This Writer].
• If an appeal is started, there is no provision for back payment of ESA to cover the period of the revision decision while an appeal is ongoing.
• So the interference is disproportionate because “it places benefits claimants, such as him, who are vulnerable, in a position of ‘legal and financial limbo, distress and destitution’ for the duration of the revision process that must be pursued before an appeal can be commenced” – and there is “no limit on the time permitted to the Secretary of State to determine an application for revision.”

In his ruling, Mr Justice Swift said: “It is anomalous that the payment pending appeal arrangements for ESA … do not extend to ESA claimants who are required … to request the Secretary of State to revise a decision and await her decision on that request before initiating an appeal.

“At the hearing of this case I gave the Secretary of State the opportunity to … explain why no provision exists to pay ESA to claimants… None of this further information provides the answer.

“My conclusion is that [the regulation in question] is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal.

“The advantage permitted to the Secretary of State by [the] regulation … comes at a cost to ESA claimants. There is no explanation for that.

“There is no evidence to support a conclusion that the objective pursued by [the] regulation … would to any extent be compromised if payments like the payments pending appeal made to ESA claimants who are pursuing appeals to the Tribunal, were made to them while they waited on the Secretary of State’s revision decision.

“In the absence of payment equivalent to payment pending appeal, the application of [the] regulation … to ESA claimants does not strike the required fair balance, and for that reason is an unjustified impediment to the right of access to court guaranteed by ECHR Article 6.”

Benefits and Work has stated: “Sadly, the ruling does not apply to other benefits such as PIP or DLA.

Nonetheless, it is an important victory and it means that ESA claimants, who are often faced with the prospect of many weeks without funds if they wish to appeal, are now in a much better position when challenging a decision.”

It will be interesting to see what will happen now.

The ruling is that the current situation is unlawful but no further remedy has been put in place beyond a statement to that effect.

What will happen to ESA claimants who must go through the mandatory reconsideration process now? Will they be paid while their case is reviewed?

That seems the logical course.

But I fear the DWP may find a way to duck out of it.

Source: Connor, R (On the Application Of) v The Secretary of State for Work And Pensions [2020] EWHC 1999 (Admin) (24 July 2020)

Have YOU donated to my crowdfunding appeal, raising funds to fight false libel claims by TV celebrities who should know better? These court cases cost a lot of money so every penny will help ensure that wealth doesn’t beat justice.

https://www.crowdjustice.com/case/mike-sivier-libel-fight/

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