At first sight, it might have looked as if the process of Mandatory Reconsideration had been overturned. The Guardian reported that “The Department for Work and Pensions has been unlawfully stopping people going to tribunal to appeal against decisions to refuse them benefits”. The decision of the Upper Tribunal, reported this weekend, is much more restrained. The detailed issue it was considering was the imposition of time limits, which meant that people who did not ask for Mandatory Reconsideration within a month were blocked from going any further. The time limits have been extended, to 13 months. The last words of the judgment are part of a description of the process to this judgment, but have obviously been placed prominently to make the point:
a refusal to carry out a mandatory reconsideration effectively removes the right of appeal without consideration of the merits.
The problems of MR run deeper than that, however. Mandatory Reconsideration turns appeals into a two-stage process; claimants have first to apply for an MR, and only after that is complete are they permitted to lodge an appeal. That remains the case. There will still be two hurdles; the decision only makes it easier to get to the first one.
The Upper Tribunal reviews a range of arguments about the system – their judgment runds to 48 pages. They share the view expressed by several commentators that MR does nothing to expedite review, but imposes a barrier to getting to appeal. Out of 1.5 million cases of Mandatory Reconsideration Oct 2013- Feb 2017, only one has subsequently gone to judicial review. I’ve argued before in this blog that this process – described by a former Lord Justice of Appeal as “an absolutely outrageous interference by the executive with the rule of law” – is probably unlawful. The recent decision of the Supreme Court on access to tribunals reinforces that; it will be interesting to see what happens when that is taken into account in future decisions.
I am going, too, to add a point about the Social Security Advisory Committee which follows from all this. When they reviewed MR last year, they wrote that
Properly conducted, Mandatory Reconsideration could be an efficient process that provides opportunity for timely review, the admission or reinterpretation of evidence and the avoidance of costly tribunals.
That judgment was badly misplaced, and that raises questions as to how a committee of independent experts could have made it. I have been interviewed three times for possible membership of the SSAC, and have been turned down each time for the same reason. The SSAC works by coming to a consensus, and I was not prepared to pledge always to support a consensus view. That is not how an expert committee should work; their primary role is not to come to a judgment, but to review and report issues for consideration. Where experts disagree, the appropriate approach is to record the arguments on all sides.