Monday, 23 September 2013

MANDATORY RECONSIDERATION - now they want to stop us appealing

The one consolation and defence for the hundreds of thousands of people forced into the farce of an ATOS medical was that they could always appeal if the decision was negative. Over 400,000 people now appeal ESA decisions every year. Appeals are not perfect, not least because Tribunals still have to apply the same, crazy test. But at least you get a proper hearing before people who know something about the subject - and about 40% of the time the appeals succeed.

Now they want to stop that too ...

At present, if you fail your ESA medical, you can appeal and stay on the basic rate of ESA, as long as you keep sending in sick notes, until your appeal is decided by a Tribunal. Mandatory reconsideration means that you are not allowed to go straight to an appeal; you must first ask the DWP to reconsider their decision. On its own this would just be a way of discouraging people from appealing - a quite unneccessary extra bureaucratic hoop to jump through, and perfectly futile since DWP decisions always have been reconsidered - and occasionally changed - when you appeal. 

The really nasty part of this though is that, although you can still be paid basic rate ESA while you are waiting for an appeal to be heard, from 28th October, you CANNOT be paid ESA while you are waiting for your mandatory reconsideration request to be decided. There is no time limit within which the DWP must make a decision on a mandatory reconsideration request - they are aiming at 4-6 weeks but there is no reason why it should not take them months.

So the scenario, from 28th October, will be that you fail your ESA medical, you request a reconsideration, whereupon all your benefit stops completely for an unknown period. Your only option, in most cases, is to claim Jobseekers Allowance - or try to.

Now people SHOULD try to claim JSA when this happens. It DOESN'T, which a lot of people worry about, mean that you are accepting the ESA decision and can't succeed on the appeal (it doesn't usually come up at all in the appeal). And it doesn't mean you are acting fraudulently - they have decided you are able to do some work, not you, and you are taking them at their word. But it may not be easy because the Jobcentre will want to see some evidence that you are able to do some work, and looking for it. If you go in saying that you aren't fit for any work, your JSA claim will be refused. The line to take is that the DWP have decided that you are fit for some kind of work and you are ready willing and able to take on any work they can find which is suitable for you, given your conditions. The fact that that there probably isn't any such suitable work is not your problem. Being found fit for work doesn't mean fit for any kind of work at all and the Jobcentre can and do make some allowances when you have a disability or a health problem.

Nonetheless, a lot of people will have problems claiming JSA, signing on every fortnight, saying all the right things about looking for suitable work and maintaining their jobsearch activity. When the Jobcentre are told about your health problems, their usual reaction is to tell you to claim ESA! And if you can't, don't or won't claim JSA, you get nothing while waiting for mandatory reconsideration.

That's why we have to protest loud and long about mandatory reconsideration; this petition is a start. It is yet another blatant attack on sick and disabled and their rights. We are being driven to foodbanks and starvation by ATOS and denied access to justice.

Finally a few practical points:

1. Mandatory reconsideration only applies if the DWP letter notifying you of their decision says it does - the letter should say that you cannot appeal until you have requested a reconsideration.

2. You can request a reconsideration of the ESA decision, either by writing to the DWP (at the address on the letter giving you the decision OR by telephoning one of their call centres. You have one month from the date on the decision letter. The DWP say they will consider admitting a late review request but there is no right of appeal if they don't. So get review requests in on time - by phone if you are approaching the one month limit.

3. But when you get you mandatory reconsideration notice, you must appeal in writing, enclosing a copy of the notice (you should be sent a spare copy). You can download the appeal form here. Again you have one month from the date of decision

4. If you lose all benefit under mandatory reconsideration, you can still claim Housing Benefit for your rent. Ask the council to assess you on a 'nil income' basis.

5. The DWP, as part of mandatory reconsideration, will want to contact you by phone to 'discuss' your case and see ask you to send in any additional evidence. Do not be bullied into dropping your review request when this happens, even if they tell you you cannot succeed - it is not their decision. And do not agree to send in further evidence at this stage - it will only add to the delay and mean you have to survive longer with no payment of ESA. Send in evidence either when you first request a reconsideration or later, once your appeal has been admitted.

6. Once you have your mandatory reconsideration decision notice and make an appeal, your ESA can be restored, at the basic rate, but only from the date of your appeal. But you must then provide sick notes - so make sure you keep in touch with your GP and keep getting sick notes. If you are signing on, keep hold of the sick notes until you are allowed to make an appeal and submit them then.

EDITED 23rd September to update advice following publication of the regulations about mandatory reconsideration (SI 1983 2380 if you're interested) and to make this a separate post

UPDATED 6th December 2013: Esther McVey has said in answers to Parliamentary questions that:

  • a 'straightforward' mandatory reconsideration of an ESA decision is expected to take about 14 days. Straightforward apparently means that there is no extra evidence which reinforces the advice NOT to send in any additional evidence at the reconsideration stage;
  • Jobcentre Plus CANNOT overrule a decision that you are fit for work and refuse to pay you JSA pending reconsideration. However you must still agree to be available for any 'suitable' work and sign a jobseekers agreement. So, as I said, don't tell the Jobcentre you are not fit for any work at all. Tell them that DWP have decided you are fit for some, unspecified, work and you are available to do that work, whatever it is. They made the decision, not you, so it's up to them to help you find that work they say you can do.

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