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Employment and support allowance claimants who want to appeal against a decision they are capable of work will be forced to claim jobseekers allowance or go without benefits, possibly for many months, under a clause in the welfare reform bill currently going through parliament. Astonishingly, the government is already consulting on whether their harsh changes to the appeals procedure go far enough. We are urging readers to respond.

Currently, claimants who are found fit for work can continue to receive ESA at the assessment rate by immediately lodging an appeal if they think the decision is wrong. ESA will then remain in payment until the appeal is decided.

That is all set to change, however, under clause 99 of the welfare reform bill.

Under the new rules, which are intended to be effective from April 2013, claimants who wish to challenge a benefits decision –​ including ESA and DLA decisions - will no longer be allowed to choose to lodge an appeal immediately.

Instead, there will be a mandatory revision stage during which a different DWP decision maker will consider the evidence and, if necessary send for more information, before deciding whether to change the decision. There will be no time limit on how long this process can take.

Only once the decision maker has either issued a revised decision, or decided that they cannot revise the decision, will the claimant be able to lodge their appeal. According to the consultation document:

“​There is currently no time limit for the Department to complete the reconsideration of a decision. Decisions made and reconsidered by Decision Makers can vary considerably in complexity so this activity is not considered suitable for a generic time limit.”​

In effect, this means that the DWP can delay a claimant’​s appeal indefinitely. The only recourse for the claimant is likely to be to seek a judicial review of the failure to reconsider, something very few claimants would have the knowledge, resources or support to attempt.

In reality, just because decisions vary in complexity, that does not seem to be reasonable grounds for saying that no time limit should be imposed.

One simple solution would be to set a maximum period of, say six weeks, for a reconsideration, after which the claimant would have the right to lodge an appeal directly with the Tribunals Service. The DWP would then have the option to request an extension of the reconsideration time limit, if they could show that they had good grounds for needing it - other than simply being understaffed and inefficient.

Any appeal will, from April 2013, have to be lodged directly with the Tribunals Service, rather than with the DWP as happens now.

Anyone attempting to lodge an appeal before a reconsideration has taken place will have their appeal returned to them by the Tribunals Service, together with instructions on how to ask the DWP for a reconsideration.

As the law stands, this means that a claimant found capable of work will not be able to receive ESA at the assessment phase rate if they challenge the decision, because they will not have lodged an appeal but only asked for a reconsideration.

Given that reconsiderations could take many months, many claimants will be obliged to make a claim for JSA, even though they may consider themselves wholly unfit for any kind of work. Alternatively, they will have to manage without either ESA or JSA, at least until their appeal is lodged.

The DWP are consulting, not on whether to introduce mandatory revisions, but simply on whether the draft regulations they plan to introduce once clause 99 is passed go far enough.

There are two things which we think it is vital that claimants demand are put in place :

1 ESA claimants must be allowed to claim ESA at the assessment phase rate whilst awaiting a mandatory revision of a decision that they are capable of work;​

2 there must to be a time-limit on how long mandatory revisions can take.

We aren’​t going to provide standard responses for people to copy and paste because we know that the DWP treat these with particular contempt in their consultation responses. Putting your views in your own words is much more effective.

You can download a copy of the consultation document ‘​Mandatory consideration of revision before appeal’​ from a link on this page.

The email address for responses, not later than 4 May, is
appeals.reform@dwp.gsi.gov.uk

The four, very restrictive, questions being asked in the consultation are:

1. Please give us your views on how the decision making and appeals standards can be further improved.

2. Do the proposed changes go far enough in order to deliver a fair and efficient process?

3. Please give us your views on whether the draft regulations (Annex C) meet the intention as described in the summary section of this consultation document.

4. Please let us have any specific comments about the draft regulations that you would like us to consider.

We suggest that you use question 2 to raise the issues above, on the basis that the process will not be fair unless it is time-limited and unless ESA claimants can continue in the assessment phase.

There doesn’​t seem to be any reason why you should address the other questions unless you wish to.