Eighteen months ago, I made a case on this blog that the process of Mandatory Reconsideration demanded by the DWP was unlawful, that it was designed to prevent claimants from access to justice, and that it stood clearly in breach of the principles enunciated by the Supreme Court in the Unison case. Now the High Court has heard a case about MR as it affects Employment and Support Allowance. Justice Swift demurred from the case I argued for in one important respect: that even if MR was an “impediment or hindrance” to access to justice, it did not actually deny people the right of access altogether. Nevertheless, the judge decided that the process was “a disproportionate interference with the right of access to court”, and found in favour of the claimant.
Decisions of the High Court are not necessarily decisive, and it is likely that this judgment will be assumed to apply only to ESA claims. But the grounds for the judgment are matters of general principle, and they apply across all benefits to which the process has been applied. That prompts some questions. First, what does it take to get rid of regulations that are transparently unlawful? Second, why did the process of independent scrutiny, undertaken by the experts of the Social Security Advisory Committee, not raise concerns when these regulations were being introduced? And third, what on earth was the Scottish government thinking of when it decided to mirror “a disproportionate interference with the right of access to court” in the design of the Scottish social security system?