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DEPARTMENT FOR WORK AND PENSIONS ILLEGALLY BLOCKING ACCESS TO THE COURTS
On 4 August 2017 the Upper Tribunal held that the Department for Work and Pensions had been unlawfully preventing people who had been refused social security benefits from going to tribunals to challenge the decision.
The Upper Tribunal criticised the DWP’s policy of denying Claimants an appeal if they failed to act within a month, saying that it was obvious that there would be a risk that people with good claims would miss the deadline as many of them were vulnerable.
Since 2013 any Claimant wishing to challenge a decision to refuse benefits has had to apply for a “mandatory reconsideration” before appealing to an independent tribunal.
Where the mandatory reconsideration application is made out of time, there is no right of appeal to the tribunal.
This case was brought by the Child Poverty Action Group (CPAG) on behalf of two Claimants, both of whom have mental health problems and who were denied benefits and were deemed to have failed to ask for a review in time.
CPAG claimed that the policy excluded large numbers of Claimants from the justice system and the tribunal said that this policy had resulted “in a significant number of Claimants who are entitled to benefits not being paid them”.
The tribunal, presided over by a High Court Judge, said that the DWP was improperly making itself “gatekeeper to the independent tribunal system.”
The Upper Tribunal said that the correct position was that where a Claimant made a mandatory reconsideration request at any time within 13 months of the original decision, they will, if dissatisfied, be entitled to pursue the challenge to a tribunal.
The government had argued that there was no need to have access to the tribunal because its decisions on late mandatory reconsideration requests could be challenged by judicial review.
The Upper Tribunal pointed out that not one of the 1,544,805 mandatory reconsideration decisions by the government since 2013 have been challenged by way of judicial review.
Comment
The decisions reported in this round-up are part and parcel of the same, enormously welcome, decision by the Supreme Court in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 whereby the courts are taking a view that it is for the courts, and not Parliament, to decide on how access to the courts is to operate.