Ask CPAG online: Pursuing a Mandatory Reconsideration

What does this section cover?

This section covers legal and practical advice relating to the process of pursuing anapplication for mandatory reconsideration (MR) to the Department of Work of Pensions (DWP) or HM Revenue and Customs (HMRC). Clicking on the links below takes you to the main areas covered.

  • What does the law say?
  • How do you apply for a MR?
  • What are the time limits?
  • What are the grounds for a MR?
  • Who decides your MR application?
  • How is your MR application decided?

What does the law say?

There is no right of appeal against a:

  • DWP decision unless the DWP has ‘considered on an application whether to revise the decision’ (note that the decision notice must inform you of this requirement for it to apply);[1]
  • tax credits decision unless ‘a review has been carried out’ by HMRC following a ‘written application’ and ‘notice of the conclusionon the review has been given’[2] (note that HMRC has delegated some of its decision making powers, including carrying out reviews, to a private company called Concentrix);
  • child benefit or guardian’s allowance decision without HMRC ‘first deciding on an application made for revision of that decision…., not to revise the decision’.[3]

Note that the rules do not refer to ‘mandatory reconsideration’, which is an operational, rather than legal term, and that the wording is different for different benefits.Whether and when the DWP has ‘considered whether to revise a decision’ is also not always entirely clear (e.g. where the DWP carries out an ‘initial revision’ prior to a MR, or refused to admit a late application for MR).

You have a legal right to a written notice of an appealable decision.[4] The DWP and HMRC call this a ‘mandatory reconsideration notice’.

There are no rules governing how a MR must be carried out (this is left to operational guidance, which at the time of writing is not publically available) and significantly, no statutory time limits within which a MR must be completed (although a tax credits MR must be carried out ‘as soon as is reasonably practicable’). The Minister for Employment, Esther McVey, told Parliament that straightforward cases should “take around 14 days” although others could take longer if further evidence is required[5].

How do you apply for a MR?

The law does not specify how you must ask for a MR of a DWP benefit or child benefit decision. In practice, applications can be made in writing (by post or in person at a Jobcentre Plus office) or by telephone. For tax credits, an application for a MR must be submitted in writing, but it appears HMRC will also accept telephone requests. Applications should be addressed to the office which made the decision you wish to dispute.

HMRC has produced a ‘reconsideration form’ with accompanying notes (WTC/AP) which you can download here. It has produced a similar form for child benefit (CH24A) which you can download here..

Note that for tax credits, you may need to send your application to Concentrixif the decision letter is issued by them (see Who decides your MR application?).

Because there are no rules on what a MR request is, problems and delays can occur where a dispute arises as to whether a MR application was made. There is no legal requirement to use the term ‘mandatory reconsideration’ when making an application, but failure to do so could lead to disputes about whether a MR was requested.

Where, for example, you call the DWP or visit a Jobcentre to query a benefit decision and give further information about your circumstances, this may, or may not, be treated as an application for a MR. In the latter case, the time limit for applying for a MR (see below) may have expired by the time you contact the DWP again.The problem is compounded by confusion about the difference between a MR, an appeal, a supersession, and asking for a written explanation of a decision.

To avoid these problems, you should always:

  • apply for a MR of a tax credits or child benefit decision by completing and submitting form WTC/AP or CH24A, keeping a copy of your application;
  • apply for a MR of a DWP decision in writing (or confirm a telephone application in writing) to the office which sent you the decision you are disputing, making it very clear that you are applying for a MR (see example below), and keeping a copy of the letter;
  • contact the DWP or HMRC/Concentrixif you have not heard anything (preferably before the time limit for applying for a MR has expired ), to check your form or letter has been received and is being dealt with.

Example letter requesting a MR of a DWP decision

Address of office Your name

issuing decisionYour address

DateYour national insurance number

Your date of birth

Dear Sirs,

Mandatory reconsideration application

I am writing to request a mandatory reconsideration of your decision dated [enter date] stating that I [give brief summary of decision].

My grounds for requesting a mandatory reconsideration are that [give details of the reasons you think the decision was wrong].

Please take account of the following further information or evidence [give details and refer to any attached additional evidence e.g. medical reports].

If you wish to telephone me in connection with my application, the best time is [give details].My telephone number is [ ].

With many thanks.

Yours faithfully,

If you are writing on behalf of someone else, you need to include their written authority allowing you to do so. For tax credits and child benefit, you can complete the relevant section of the WTC/AP form to confirm you are acting on someone else’s behalf, or complete form TC689 to allow you to act on behalf of someone else for one year.

Other points to bear in mind are that:

  • you are entitled to request a written statement of reasons for a DWP or child benefit decision within one month, if the decision notice does not include such a statement (this extends the time limit for requesting a MR, but you should not delay applying for a MR in case there is a dispute about whether the decision notice already included reasons));
  • if you mistakenly submit an appeal against a DWP decision instead of requesting a MR, the DWP can treat the appeal as an application for a MR[6] (if you submit your appeal to HM Courts and Tribunals Service, it should be returned to you with advice to request a MR);
  • if you believe you are entitled to a higher award of a benefit because your circumstances have changed (e.g. a higher rate of personal independence paymentor the support component of employment and support allowance), you must first request a supersession. If the DWP then refuse to increase your award, you must request a MR before you can appeal to an independent tribunal.

What are the time limits?

An application for a MR of a DWP or child benefit decision must be ‘received’by the DWP or HMRC ‘within one month of the date of notification of the original decision’.[7]A month means a calendar month. Note that there are special rules for social fund decisions (see Handbook p1274).There are three possible exceptions:

  1. If you have requested a statement of written reasons for a DWP or child benefit decision because this was not included in the decision notice, the time limit for applying for a MR is extended by 14 days if the statement is provided within one month of the original decision. If the statement is provided more than one month after the original decision, you must apply for a MR within 14 days of the date it was provided. Note that it may not always be clear whether a decision notice includes a statement of reasons, so it is always best to request a MR within one month of the original decision, even if you have requested a statement of reasons.
  1. If you have grounds for an ‘any time revision’ (see Handbook p1275), there is arguably no legal time limit for applying for a MR.[8] The main ground is likely to be ‘official error’.
  1. You have grounds for a late application.

An application for a MR of a tax credits decision must be ‘received’ by HMRC/Concentrix ‘within 30 days of the date of notification of the original decision’.[9]The only exception is where you have grounds for a late application.

It is, therefore, very important that you ensure that DWP or HMRC/Concentrixreceive and accept your application for a MR within one month or 30 days. Note that the date of notification is normally the date on the decision letter– you may not actually receive the letter until several days later.

The DWP must receive your application within onecalendar month e.g. by 18th November for a decision notified on 18th October,or28th February for a decision notified on 31st January. For HMRC decisions, the 30 days starts on the date of notification. If you are close to the end of the allowed period, you may need to make your application by telephone and follow up with a letter of confirmation. You may be able to find out the email address of the office and submit your application or confirmation by email.

Late applications

The time limits can be extended up to a maximum of 13 months if:

  • it was not practicable for you have made your application in time because of ‘special circumstances’; and
  • it is ‘reasonable’ to extend the time limit.[10]

The 13 months runs from the date you were notified of the decision, but in the case of PIP, universal credit (UC), or contributory JSA or ESA (if you come under the UC system), the 13 months runs from the latest date your application should have been received by.

You must apply to DWP or HMRC/Concentrixfor an extension of time. It is best to do this in writing, so that you can fully explain the reasons why your application is late. There is no definition of ‘special circumstances’ and no requirement that the circumstances are exceptional or unexpected. So any reasons you have for the lateness of your application could be relevant. These could include that you were ill or were dealing with a domestic emergency or other difficulties, or that you were misadvised or did not know about the time limits. The later your application is, however, the more compelling your reasons must be.

Note that if you have grounds for an ‘any time revision’ against a DWP or child benefit decision (e.g. on the basis of official error), there is no time limit and you do not need to show ‘special circumstances’.

There is no right of appeal or further review against a decision refusing to extend the time limits by the DWP or HMRC/Concentrix. If you think your representations have not been properly considered or unreasonably rejected, you should seek specialist legal advice about whether you may have grounds for judicial review. The DWP and HMRC take the view that if they refuse to extend the time limits, they have not carried out a MR so you have no right of appeal to an independent tribunal against the decision you wish to dispute. For possible legal arguments against this, see ‘Appealing after a mandatory reconsideration’.

What are the grounds for a MR?

You can ask for a MR on any grounds, but you will need to establish that:

  • the relevant decision was wrong; and
  • you are entitled to the disputed benefit in accordance with the law and any relevant case law.

As well as presenting the facts of your case, it can be helpful to refer to the relevant law and supportive information in the Decision Maker’s GuideorAdvice for Decision Making guide or the Tax Credits Manual which is official guidance to decision makers. In some cases, you will need to show you had good cause or good reason for an alleged failure (e.g. if your benefit has been sanctioned, or you failed to attend an ESA medical).

Supporting evidence from third parties often makesa difference between a successful and unsuccessful MR application. This is particularly the case where you can submit supportive medical reports in ESA or disability benefit disputes. You should not, however, delay applying for a MR while you get medical or other supporting evidence).

You must establish that the decision you are disputing was wrong on the date it was made and based on your circumstances at that time. Your evidence should, therefore, relate to that period if possible. If your circumstances have changed since the date of the decision, you should consider making a fresh claim for benefit or asking for a supersession of an existing award.

Who decides your application?

DWP benefits

In the case of DWP benefits, your application is decided by a DWP decision maker. This is normally a different decision maker to the one who made the original decision (see para 03031 of the Decision Maker’s Guide). In practice, after an ‘initial revision’, your application is sent to a regional ‘Dispute Resolution Team’ (DRT), where it will be considered by a decision maker. To speak to the DRT dealing with your MR request, you should call the National Jobcentre Enquiry Line and ask for someone from DRT to call you back.

Tax credits

HMRC has delegated decision making powers relating to reviews, error and fraud to a private company called Concentrix. This includes carrying out MRs and deciding whether to accept late applications for MRs. You may, therefore, receive a decision letter from Concentrixon behalf of HMRC about non-entitlement or an overpayment of tax credits. If you wish to dispute the decision, you should complete form WTC/AP (see How do you apply for an MR)and send it to Concentrix at the address on the decision letter. You should then be able to contactConcentrixabout the progress of your application. If you send the form to HMRC’s Tax Credit Office, or request a MR on the Tax Credits helpline, your application should be sent on to Concentrix.

Child benefit

Your application for a MR should be decided by a HMRC decision maker based at the child benefit office (PO Box 1, Newcastle-upon Tyne, NE88 1AA – tel: 0300 200 3100; advice line for advisers: 0300 200 3102).

How is your application decided?

Once your application for MR is received and accepted, there are no rules about how it must be processed and determined. Both DWP and HMRC issue detailed guidance to staff about how to process and determine applications, but not all of it is publically available (seeChapter 3 of the DMG and Chapter A3 of the ADM, and section TCM0014030 of the Tax Credits Manual).

Note that:

  • the process involves staff contacting claimants by telephone to explain the relevant decisions and ask for any further information or evidence;
  • in the case of tax credits MRs, you may be contacted by staff working for Concentrix;
  • MR decisions must be notified in writing (you should receive two copies of a ‘mandatory reconsideration notice’).

A number of interrelatedprocedural issues can arise, which are addressed below.

Time limits

There are no statutory time limits for completing a MR (although a tax credits MR must be carried out ‘as soon as is reasonably practicable’). You may be able to minimise delays by submitting information and evidence promptly or deciding not to submit further evidence. If there are lengthy delays in dealing with your application, you could:

  • contact the DWP or HMRC/Concentrixto find out what is happening;
  • make a formal complaint (DWP Complaints Procedureand HMRC complaints procedure)–and if necessary pursue it to the Independent Case Examiner or the Adjudicator (see Chapter 61 Handbook) - you could also ask your MP for help or complain to the Parliamentary and Health Service Ombudsman;
  • as a last resort, seek specialist legal advice about the possibility of taking judicial review proceedings.

‘Initial’revisions and explanations

Currently, when DWP receive a MR application, the case is initially looked at again to see if it can be changed before it is sent to a ‘Dispute Resolution Team’ for the MR to be carried out. This ‘initial’ revision may involve you being contacted by telephone by the DWP and in some cases receiving a written decision on whether the original decision has been revised. Unless the original decision has been changed wholly in your favour, you should make it clear that you want your MR application to proceed.

The legal status of this initial revision is unclear. Arguably, it unlawfully makes MR into a two stage process, although the DWP deny this and assert that it is part of the MR process and designed to correct decisions as quickly as possible. However, as the initial revision constitutes a ‘consideration’ of whether to revise a decision (see What does the law say?), this should trigger a right of appeal.This is likely to involve making detailed representations and seeking to get an appeal admitted without a MR notice – see Appealing after a Mandatory Reconsideration.

You should not be required to request a further MR if the initial review is unsuccessful and you should challenge any letter or telephone request to do so by asserting that you have already requested a MR. If the DWP do not respond, you may have to make a complaint or threaten judicial review.