Decision making and mandatory reconsideration: response to SSAC consultation

The Social Security Advisory Committee (SSAC) is currently seeking evidence on decision making and mandatory reconsideration before appeals of decisions by the Department for Work and Pensions (DWP) and HM Revenue and Customs (HMRC). The consultation is available here. The deadline for responses is 15 March 2016. Here, two members of UKAJI’s team identify key principles to guide internal review policy and suggest what research is needed into this important area of administrative decision making.

by Professor Tom Mullen and Professor Robert Thomas

We are both law professors with an interest in administrative justice. We respond on behalf of the United Kingdom Administrative Justice Institute (UKAJI). UKAJI is a network of people working with empirical research about administrative justice. This includes researchers from several different academic disciplines (including experienced academics running large projects, early career researchers and PhD candidates) and users of research (who include officials, practitioners, judges, ombudsmen, complaints handlers, policy makers, and politicians). UKAJI is based at the University of Essex and is funded by the Nuffield Foundation. The views set out below are our own and do not necessarily reflect the views of all those associated with UKAJI.

We welcome this opportunity to respond to the SSAC’s consultation on decision-making and mandatory reconsideration.

1. How well does the appeals process currently function? Does mandatory reconsideration facilitate, encourage or discourage appropriate redress for claimants?

UKAJI recognises the importance of the policy objectives behind the introduction of mandatory reconsideration – to resolve disputes as early as possible, reduce unnecessary demand on HMCTS by resolving more disputes internally, consider revising decisions where appropriate, provide a full explanation of decisions, and encourage claimants to identify and provide any additional evidence that may affect the decision, so that they receive a correct decision at the earliest opportunity.^[1]

At the same time, we are aware that concerns have been raised with the operation of mandatory reconsideration in practice.

First, there has been the dramatic decline in the number of appeals since 2013/14, which has coincided with the introduction of mandatory reconsideration (see figure 1).

It is to be expected that the number of appeals would reduce as a result of mandatory reconsideration. However, concerns have been raised that claimants with strong cases may in practice be deterred from appealing and that vulnerable users have experienced difficulties in navigating the process.[2] Another concern is that individuals with severe medical conditions have reportedly been unable to cope with reconsideration telephone calls.[3] We consider it to be essential that empirical research be undertaken into the operation of mandatory reconsideration in practice.

We are also aware that some concerns have been raised by advisers to the effect that the Department for Work and Pensions has been allowing a higher than expected number of mandatory reconsiderations, perhaps in response to concerns expressed in Parliament and elsewhere as regards the number of appeals.

2. Is new evidence gathered in a way which is suitable for the claimant by DWP and HMRC? Could this be improved and, if so, how?

3. What are claimants’ experiences of claiming Jobseeker’s Allowance (JSA) while waiting for their mandatory reconsideration notice when appealing an ESA fit for work decision?

A small-scale study of twenty Citizens Advice Bureaux clients^[4] suggested that the decision/appeal process has become far more complex as a result of the changes. The research identified cause for concern in three areas:

• communications from DWP to claimants were inconsistent and information was unclear;
• claiming Jobseeker’s Allowance was problematic for clients; and
• claimants faced long delays before receiving a decision.

The CAB study findings are consistent with those of a much larger study – a survey of 436 welfare rights advisers – carried out by the Low Commission.^[5] Only 13% of respondents in that survey thought that DWP got decisions right first time and 38% thought they were rarely right first time. Only 35% of respondents thought that their clients were more likely to receive the right outcome without having to appeal as a consequence of MR, and 65% considered that their clients were less likely to receive the right outcome.

When asked to estimate the average waiting time for a decision following MR, 2% said 2 weeks, 51% said 4-6 weeks and 47% 8 weeks or more. 70% of advisers said that their clients’ understanding of challenging a DWP decision was less clear than before. Advisers were also asked how they would describe the impact on the welfare of claimants during MR. Only 4% referred to satisfaction that a review was taking place, whereas 89% referred to increased stress, 95% to financial hardship and 49% to being deterred from claiming other benefits.

The findings of the two research projects are inconsistent with the Government’s stated reasons for the reforms of the appeal system. We consider that a more large-scale research project should be undertaken into the operation of mandatory reconsideration.

4. Are there ways in which DWP and HMRC could make better use of evidence in making decisions on entitlement for benefits and tax credits? If so, how?

5. Could more effective communication with claimants and their advisers improve the quality of decision making? What aspects of claimant communications should the government prioritise?

6. Do you have any other general views about the quality of decision making and the role of mandatory reconsideration?

We make four points here. First, UKAJI takes the view that it is essential for research to be undertaken into the operation of mandatory reconsideration in practice. Without such research, there is a risk that much of the evidence will be anecdotal.

Second, we are concerned as to the lack of judicial supervision of mandatory reconsideration. Social security is the largest administrative decision-making system in the UK. For many years, tribunals – independent and judicial bodies – had a central role in overseeing social security decision-making. Yet, their role is currently being diminished in favour of internal reviews being undertaken within government itself – as opposed to the independent and judicial control of tribunals. The introduction of mandatory reconsideration represents an extension of unsupervised administrative action. Tribunals have no jurisdiction over how mandatory reconsideration operates and they cannot intervene if problems or delays arise. We are concerned about the weakening of the remedies available to individuals in their dealings with government.

Third, government needs to adopt a “right first time” approach. It is essential that there is effective learning within government from the outcomes of mandatory reconsiderations and appeals. In 2013, the Department for Work and Pensions introduced its “summary reasons” project to learn from the outcomes of tribunal decisions. We would be concerned if the introduction of mandatory reconsideration has weakened this project. It is essential that government makes every effort to get decisions right first time.

Fourth, we also take the view that government should adopt a more joined-up policy toward internal review processes. To date, different processes of internal review have been introduced by different government departments with little, if any, consideration to the operation of internal review as a coherent system of administrative justice in its own right. There is a consequent risk of inconsistency and discrepancy between approaches taken to internal reviews in different areas of government. In 2011, the Administrative Justice and Tribunals Council suggested that an effective system of internal review would be informed by the following principles:

• disputed decisions should be looked at afresh by a different decision maker;
• there should be personal contact with the claimant by telephone or face-to-face, both to explain the original decision and establish the extent of disagreement;
• reconsiderations should involve a full review of the supporting evidence; and
• there should be a fixed target of five working days for completing reviews.^[6]

We consider that these principles provide a useful starting point that could inform the wider design of internal review as a distinct system of administrative justice in its own right.

Professor Tom Mullen, School of Law, University of Glasgow

Professor Robert Thomas, School of Law, University of Manchester

[1] Department of Work and Pensions, Appeals Reform: an introduction (August 2013), available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/236733/appeals-reform-introduction.pdf

[2] Citizens Advice Bureau, The Cost of a Second Opinion: The Impact of Mandatory Reconsideration in Employment Support Allowance (ESA) on CAB Clients (2014); Citizens Advice Scotland, Voices From the Frontline: Mandatory Reconsiderations (2014); E. Mountbatten, “The Revolving Door of Mandatory Reconsideration” Adviser (No. 169, May/June 2015).

[3] D Webster, Briefing: The DWP’s JSA/ESA Sanctions Statistics Release 18 February 2015 (2015), available at: https://wwwrefuteddotorgdotuk.files.wordpress.com/2015/03/sanctionsstatsfeb2015webster.pdf

[4] Citizens Advice Bureaux, The cost of a second opinion (July 2014), available at: https://www.citizensadvice.org.uk/global/migrated_documents/corporate/the-cost-of-a-second-opinion-report-july-2014final2.pdf

[5] Low Commission on the Future of Legal Advice and Support, Getting it Right in Social Welfare Law (2014), available at: http://www.lowcommission.org.uk/dyn/1425469623929/Low-Commission-Report-Text-Proof-207050-.pdf

[6] AJTC, Time for Action (2011), p.6.

DATE FOR YOUR DIARIES:

On 11 May 2016, UKAJI and the University of Manchester will co-host a research seminar on internal review and mandatory reconsideration. Details will be posted soon.