8 September 2017, by Desmond Rutledge
In R(CJ) and SG v Secretary of State for Work and Pensions (ESA):  UKUT 324 (AAC), (Mr Justice Charles, UTJ Wikeley, UTJ Wright) the appellants were Employment and Support Allowance (ESA) claimants and had mental health problems. Both had been informed that they were not entitled to ESA following a work capability assessment. CJ lodged a mandatory reconsideration (‘MR’) request 5 months outside the one month time limit and SG 10 months outside the limit. In both cases the Secretary of State refused to accept that the claimants’ extenuating circumstances justified extending time. Both claimants sought to appeal to the First-tier Tribunal (FTT), which declined to admit their appeals.
A Panel of three Judges was convened. The Panel considered the question by reference to (i) the statutory purpose of the MR regime; (ii) the principle of legality; (iii) common law fairness; and (iv) Art 6 ECHR and section 3 of the Human Rights Act 1998. The Panel concluded that as a matter of statutory interpretation a claimant in the same situation as CJ and SG had a statutory right of appeal to the FTT under section 12(3A) of the Social Security Act 1998 Act (as amended by the Welfare Reform Act 2012). In coming to its conclusion, the Panel noted that:
- the Parliamentary purpose of introducing a mandatory reconsideration is to give the Secretary of State a second opportunity to get the decision on entitlement right, applying the statutory tests that govern it
- if the Secretary of State’s interpretation was accepted it would result in a significant number of claimants who are entitled to benefits not being paid them because they would miss the time limit for a mandatory reconsideration
- there is a need for clear language to remove or interfere with existing rights of appeal given the fundamental nature of those rights and the benefits those rights give to those affected by appealable decisions
- the availability of judicial review did not provide as good a remedy as an appeal to the FTT, which can conduct a full merits hearing of the case and is more user friendly to a claimant because of its informality and expertise.
The Panel concluded that an intention to rule out a full merits appeal on the basis that an extension of time is not granted would frustrate the essential and driving purposes of the MR regime. To avoid this result the Panel concluded that on a true interpretation the MR regime any refusal to revise an application for MR triggers the right to appeal to the FTT.
See also the following media reports on the case: