Mandatory Reconsideration – The DWP’s new powers
This change will take place on The 28th of October 2013 and it’s going to have a big impact.
Here’s why:
‘Mandatory reconsideration’ is the term the DWP use to mean that a claimant must ask for a revision before they will be able to appeal a decision. The DWP has indicated that it will introduce mandatory reconsideration for all benefits they administer on 28 October 2013. Universal Credit and Personal Independence payments are already covered by this revision before appeal rule. Mandatory reconsideration will not be introduced to Housing Benefit decisions.
A claimant has a right to be paid ESA ‘pending determination’ of an appeal against a decision that they have failed the Work Capability Assessment. This right arises when a claimant’s appeal is received by the Jobcentre Plus office dealing with their claim. It does not arise if they request revision of the WCA decision. The government has not altered the rules to allow ESA to be paid pending the outcome of a revision, so claimant’s will be left without income whilst waiting for the outcome of their revision request or will have to consider making a claim for JSA.
If a client applies for JSA whilst waiting for the revision decision the Jobcentre must accept the claim but the client must confirm that they are available for work and actively seeking any work that might be available to them, taking into consideration the limitations imposed by their mental and/or physical health condition. JSA rules allow a claimant to place restrictions on their availability for work if those restrictions are reasonable in light of their mental or physical health.
The client would need to provide some evidence to show what restrictions are reasonable because of their condition. For example, a claimant with severe arthritis in both knees, and who struggles to stand for longer than 15 minutes, could restrict the work he is available for to jobs that do not involve long periods of standing. If a client states that they are unfit for all work, their claim for JSA will be refused.
Regulation 10 SS&CS (Decision & Appeals) Regulations 1999 provides that a decision on limited capability for work is conclusive for the purposes of other such decisions. This means that all Jobcentre Plus decision makers are bound to accept a decision that a claimant must still satisfy the Jobcentre that they are available for and actively seeking any work that they could reasonably do. If they satisfy these labour market conditions, they would also be entitled to national insurance credits for unemployment for the period.
Unless the government changes its position before 28 October 2013, many claimants who fail the WCA will be faced with a difficult choice – claim JSA or have no income whilst waiting for a revision decision.
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