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.