Why the Scottish Government should not be using Mandatory Reconsideration

I was told yesterday, rightly or wrongly, that the Scottish Government is planning to stick to their proposed system of mandatory reconsideration –  the requirement to submit issues for review before an access to appeal can be allowed.  The government’s justification is, apparently, that there will be an important difference between their approach and the current practice of the DWP:  benefits will continue in payment until the issue is resolved.

There are three sorts of misapprehension here.  The first is about what happens when people’s benefits are stopped.   There is a problem, but this measure is not going to resolve it.  Benefits are often stopped first – that’s why people have to challenge the decision.  If it proves that someone is not entitled, any benefits paid under this arrangement can be recovered.  So, under these proposals, the benefits will stop, restart, stop again after review, restart after appeal, and possibly stop again – with repayment demanded every time.

The second misapprehension is that a formal review process is useful or necessary. Under the previous system, all grounds for appeal were scrutinised and acted on by the Department for Work and Pensions before the introduction of MR; so MR adds nothing to the actions of the agency.  What the introduction of MR did was to create an extra hurdle for claimants – a barrier to access to justice.

That leads to the third point: that the operation of MR is unlawful.  The Policy Memorandum issued by the Scottish Government argued that

“Without a re-determination stage, it would mean that all decisions being challenged would go to a tribunal. This could lead to the tribunal being inundated with large volumes of appeals, which will increase the likely waiting times for individuals to have their cases heard, resulting in a frustrating experience.”

It’s not so frustrating as bening denied access to justice.  In Unison v Lord
Chancellor, the Supreme Court stated in terms  that the creation of administrative barriers with the intention of preventing people reaching court is unlawful. Appeals are not just there for the appellant.  They are there to make sure that the system is done right for everyone else.   If the Social Security Bill is passed in this form, expect it to be challenged.

 

One comment

  1. Alan Parker

    The Scottish government lost me as a supporter as soon as they handed back the powers , instead of implementing immediate and if needed emergency legislation to take the powers last year , they then could have simply changed the rules, stopped PIP roll out and so on and paid the DWP a fee until able to get a system set up, now even their plans for MR and UC are laughable and charity groups are disappointed.

    They are a disgrace and have lost focus on what matters to Scot’s and given their record on IT systems I doubt 2020 will happen, they have to be the most incompetent executive in our parliaments history, when groups like CPAG Scotland and others tell us, there is nothing to stop the Scottish executive changing rules whilst waiting on the powers, like assessments for long term disability’s etc and all we get is the usual Scottish governments everyone is wrong bunker mentality sets in then you know you are up against it.

    I could be a cynic and say it suits the Scottish government for the blame game politics and ultimately finance reasons , for the DWP to keep doing the assessments, their continued lack of action in doing the bleeding obvious, is making me feel more and more that it may be the case they are using the UK to reduce the welfare bill.

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