As the Daily Mirror announced yesterday, the ‘Upper Tribunal’ (UT) – the body that rules on the most serious benefits disputes – ruled against the government’s treatment of benefits claimants in its ‘mandatory reconsideration’ regime:
Since 2013, if a claimant is denied benefits, s/he has to apply for a mandatory reconsideration (MR) – basically asking the same people who just denied the claim to think again – before an appeal against the decision can be made. According to the government’s procedure, the MR request has to be made within a month of the decision – so missing that deadline cuts off the applicant from the appeals process, denying justice to thousands of people.
The Child Poverty Action Group (CPAG) brought a legal challenge to the UT on behalf of two women with mental and physical health problems, who had missed the 1-month deadline – and won.
The UT said that the existing deadline was unlawful and must be extended to 13 months – and that its decision was likely to affect many thousands of cases. This is a major victory for campaigners and for humane treatment of vulnerable people – and a major defeat for the government.
Which might explain why the mainstream media – the Daily Mirror apart – are quiet about it.
The government had tried to avoid the case being heard by the UT, claiming a judicial review would be adequate, but 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.
CPAG’s Legal Officer Carla Clarke welcomed the decision:
This is fantastic news. Not only is it a vindication for our two clients but it stands to provide justice for significant numbers of families wrongly denied the financial help to which they are entitled. 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.
“This judgment comes straight on the heels of the Supreme Court judgment on employment appeal fees and, as with that case, ensures that access to justice exists not only in theory but as a practical reality in the real world in which ordinary people live.
The SKWAWKBOX congratulates CPAG on a fantastic win on behalf of people who have been targeted and even demonised by the Tories for seven years. Any claimants who missed the 1-month deadline since 2013 should now be allowed to lodge an appeal and, if successful, must be repaid all monies they were denied by the unlawful process.
However, the fact that the government has now lost two, potentially very expensive judgments in quick succession does raise concerns that it might repeat a widely-condemned move it has previously pulled after a legal loss that was set to cost it money to put right.
In early 2013, Cait Reilly won her legal case against the DWP, which had threatened her with the loss of her benefits if she refused to work for free for the Poundland chain. Ms Reilly, who would have had to stop volunteering at a museum in order to give the retailer her free labour, argued that it was a breach of her human rights – and the appeal court agreed with her.
The case – Reilly and Wilson v Secretary of State for Work and Pensions – meant that the government faced claims from many thousands of people who had been sanctioned for refusing unpaid work placements and potentially compensation claims from those who had been unlawfully forced to complete them.
The government’s response was to retrospectively change the law – via the Job-Seekers (Back to Work Schemes) Act 2013 – an almost unprecedented move because of the innate unfairness of making a law apply to events that took place before it existed. The changed law made an unlawful act lawful after the fact and shamed the UK.
The SKWAWKBOX asked the DWP whether the government is considering a similar move now, but has received only the following ‘boilerplate’ response that rules nothing in or out:
We have received the tribunal’s decision and are considering the judgement.
However, even if the government were to try a similar change to the law it is extremely doubtful that it would be able to get it through Parliament. In 2013, the Tories in coalition could rely on LibDem acquiescence to pass the retrospective legislation. In the current, hung Parliament and with the Tories reeling from their disastrous election, just a few rebels would be enough to defeat such an attempt – and would very probably be found.
If there’s even a hint of such an attempt, it’s up to all of us – and incumbent on every MP of any party – to defeat it.
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