The DWP has finally published very limited statistics on mandatory reconsiderations which show a massive drop in challenges to employment and support allowance (ESA) decisions since the new system was introduced. Campaigners argue that a programme of delays, misinformation and dirty tricks is responsible for the unprecedented fall in appeal numbers.
The DWP introduced a new, much more complex system for challenging appeals in 2013. The mandatory reconsideration system obliges claimants to first ask the DWP to look at a decision again and then, if they are not happy with the result, to lodge an appeal with the Tribunals Service themselves.
The new system applied to universal credit and personal independence payment decisions from April 2013 and to ESA and other benefits from 28 October 2013.
Today, the DWP finally published statistics on the new system.
However, the statistics deal only with the number of reconsiderations requested and the clearance times. Crucially, the DWP have chosen not publish success rates for reconsiderations or to say how many claimants whose reconsideration request did not result in a better award went on to lodge an appeal.
The statistics show that in the year between 28 October 2013 and 31 October 2014 there were 177,000 ESA mandatory reconsideration requests.
The DWP claim that 52% were cleared within 14 calendar days and 75% were cleared within 30 calendar days.
What the DWP do not make clear, however, is when the clock starts ticking.
Is it when a mandatory reconsideration request is first made by a claimant or only after a case manager has telephoned ‘to confirm points of issue and identify further evidence’ and then – after reconsidering any further evidence – forwarded the documents to the central team that deals with mandatory reconsiderations.
If, as seems likely, it is the latter then actual clearance times could be several months rather than 14-30 days for the majority of claimants.
However, what the DWP do not offer is a comparison between the number of people challenging ESA decisions before and after the introduction of mandatory reconsiderations.
Statistics from the Tribunals Service show that in the year April 2012 to March 2013 there were 327,961 ESA appeals lodged.
In just six months from April 2013 to the end of September 2013 there were 188,273 ESA appeals lodged.
In other words, there were more ESA appeals lodged in the 6 months before mandatory reconsiderations were introduced than there were mandatory reconsideration requests in the whole of the following year.
The picture is even bleaker when you consider that, under the old system, many ESA claimants had their decision overturned before even lodging an appeal.
Numbers are not available for this, but we do know that over 10,000 ESA decisions a month were being overturned at reconsideration stage in the months leading up to the introduction of the new system. Many of these will have been requests for reconsideration made before an appeal was lodged.
So, the unexplained fall in challenges to ESA decisions is likely to be well over 50%.
Even though there has been a steady increase in the percentage of claimant being awarded ESA, this cannot account for the very sudden and dramatic fall in the number of ESA challenges which took place immediately the new system was introduced.
However, the experience of Benefits and Work members and others suggests that the DWP are using misinformation and dirty tricks to lower the number of challenges. This would match the tactics being used to reduce JSA and, increasingly, ESA claimant numbers by using unfair tactics to impose sanctions
Dirty tricks for dodging mandatory reconsiderations and appeals include:
Refusing to allow a mandatory reconsideration request to be lodged until the claimant has had a telephone call explaining the decision. This is unlawful and leaves the claimant with much less time to actually request a mandatory reconsideration.
Failing to make the explanatory phone call. People who have been told that they must wait for this phone call then find that it just never comes, or it comes when they are in a public place and when they ask for a call back at a time when their privacy can be ensured the call back never happens.
Failing to clearly explain at the end of the explanatory phone call that the claimant can request a mandatory reconsideration or even implying that now that an explanation has been given that is the end of the process.
Denying that a mandatory reconsideration request was ever made. Because most requests are made by telephone it is very easy for the DWP to deny the existence of the call, but there are many accounts of even written requests mysteriously never being received by the DWP. Without a mandatory reconsideration notice a claimant cannot appeal to a tribunal.
Not including an appeal form with the mandatory reconsideration notice. By not including an appeal form the DWP make it even harder for a claimant without access to the internet and a printer to appeal.
Avoiding dirty tricks
As soon as you receive an ESA, PIP or other benefit decision that you wish to challenge, write asking for a mandatory reconsideration. Keep a copy of the request and either register the letter or obtain proof of postage. You can follow this up with a telephone call requesting a mandatory reconsideration if you wish.
If you receive – and answer - a telephone call explaining the decision, make it clear you wish to continue with your mandatory reconsideration request.
Once the phone call is over, write confirming that, as explained during your discussion with case manager, you wish to continue with the mandatory reconsideration request you lodged on whatever date. Again, keep a copy and get proof of postage.
You may also receive a call from a different DWP case manager once your mandatory reconsideration request has been received. Again, you may wish to confirm in writing that you want to continue.
The DWP claim that most reconsiderations are dealt with within 30 days, so make sure you chase yours up if you don’t receive the written mandatory reconsideration notice within this time.
Obtain an appeal form as soon as you have lodged your mandatory reconsideration request, so that you are ready to lodge an appeal immediately if you are not happy with the result of the reconsideration.
Above all, make sure you have detailed up-to-date information about every stage of your claim and challenge – including the all important deadlines.