The government’s time restrictions on access to the social security appeals system are unlawful, the Upper Tribunal has ruled.
Since 2013, social security claimants wishing to challenge a refusal of benefit must apply for a ‘mandatory reconsideration’ before they can appeal to an independent tribunal. The Department for Work and Pensions (DWP) refuses to allow the appeal if it decides a mandatory reconsideration application has been made too late.
The Child Poverty Action Group (CPAG) brought a test case on behalf of CJ and SG, two women with serious health problems, who were refused employment and support allowance and made late applications to challenge the refusal decisions. In both cases, the DWP initially refused to allow the appeal but it was subsequently established that the women were entitled to the benefits.
The DWP argued that its decisions were lawful as they could be challenged by judicial review. However, the Upper Tribunal observed that out of 1,544,805 mandatory reconsideration decisions since 2013, nobody had managed to bring a judicial review.
The Upper Tribunal unanimously held the Secretary of State’s position unlawful as it would make the Secretary of State ‘gatekeeper to the independent tribunal system’. It held the correct position is to give the claimant 13 months from the original decision to make a mandatory reconsideration request, in R (CJ) and SG v Secretary of State for Work and Pensions [2017] UKUT 0324 (AAC).
CPAG’s legal officer Carla Clarke said: ‘This decision ensures that even if the DWP thinks there is no good reason for their delay, it cannot prevent such individuals pursuing an appeal before an independent tribunal. To have found otherwise would have been to uphold a system where the decision maker also acts as arbiter of whether an individual could challenge their decision or not—a clear conflict of interest and an affront to justice.’
