The DWP has lost its fight at the upper tribunal to prevent employment and support allowance (ESA) claimants going to appeal where the claimant is late applying for a mandatory reconsideration. The decision will also apply to all other social security benefits.
There is a one month time limit to apply for a mandatory reconsideration. The DWP can extend this time limit up to a total of 13 months where they judge that the claimant had good cause to be late.
For example, the claimant may have a mental health condition which made it difficult for them to deal with official correspondence and have been unable to get help until too late.
The DWP have been refusing to allow claimants access to the tribunal service where they are outside the one month time limit for mandatory reconsiderations. By refusing to issue a mandatory reconsideration notice the DWP can effectively block any appeal.
This means that the DWP can be completely arbitrary and unfair in decisions about whether a claimant has good cause and the claimant has no way of challenging this.
Two claimants who had initially been refused a mandatory reconsideration challenged the refusal to prevent them appealing to a tribunal and began proceedings for judicial review. At this point the DWP backed down and allowed their cases to proceed.
However, a panel of three upper tribunal judges held that the initial refusal was absolutely wrong and that claimants should have a right to apply to a tribunal, even when the DWP considers they have no good cause for their late request. It will then be for the tribunal to decide whether to allow the appeal to go ahead.