“Section 102: Power to require consideration of revision before appeal 497. Section 12 of the SSA 1998 makes provision for a claimant (or any other prescribed person) to appeal to the First-tier Tribunal against a decision of the Secretary of State. Although the claimant (or other person) could ask initially for the decision to be reconsidered with a view to revision (under section 9 of the Act), in practice many people do not do so and make an appeal from the outset. 498. In order to resolve more disputes with claimants through the internal reconsideration process before an appeal to the tribunal is made, subsections (2) and (3) of section 102 amend section 12 to enable the Secretary of State to make regulations setting out the cases or circumstances in which an appeal can be made only when the Secretary of State has considered whether to revise the decision. 499. New section 12(3B), which is inserted by subsection (3), contains examples of how the new power might be used. In particular, regulations may provide that there is to be a right of appeal only where the Secretary of State has considered whether to revise the decision as a result of an application having been made for that purpose. 500. In certain cases, the regulation-making powers under section 12 of the SSA 1998 are exercisable by a person other than the Secretary of State (for example, functions relating to child benefit and guardian's allowance are exercisable by HMRC). New subsection (3C), which is also inserted by subsection (3), makes it clear that in any particular case the new powers in section 12(3A) are to be exercisable by the person responsible for making regulations under section 12 in that case. 501. Where there is no right of appeal as a result of regulations made under the new provisions, subsection (4) enables provision to be made in regulations for treating any purported appeal as an application for revision. 502. Subsection (5) provides that regulations to be made under new subsection 12(3A) will be subject to the affirmative procedure. 503. Subsection (6) introduces Schedule 11 which makes equivalent provision in the case of certain other appeals. These relate to vaccine damage payments, child support, the recovery of benefits, housing benefit and council tax benefit, and payments in respect of mesothelioma. 504. Section 136(4)(b) enables regulations made under the new provisions to be brought into force in different areas at different times, which enables a phased implementation. The new regulations under section 12(3A) may need to be accompanied by changes to other regulations relating to decisions and appeals. But such other regulations cannot normally be made so as to apply only to a limited area. Subsections (7) to (9) of section 102, therefore, enable other provisions in legislation relating to decisions and appeals, if made in connection with regulations requiring consideration of revision before appeal, to apply only in relation to a limited area.”
“5. Before the introduction of MR [mandatory review], a dissatisfied claimant could ask for a benefit decision to be revised either on any ground within one month or subsequently at any time but in that event only on one or more of certain prescribed grounds. Quite independently, a claimant also had one month in which to appeal on any ground to the F-tT against the decision. When a claimant appealed to the F-tT within or outside the one-month time limit, as a matter of departmental practice, it was commonplace for the appeal to be reconsidered internally to identify whether there were any grounds to revise the decision, so negating the need for the appeal to proceed. If the appeal was made outside the onemonth time limit, it was treated as in time if the departmental decision-maker did not object, providing it was received within the absolute time limit of 13 months from the date of the original decision. If the departmental decision-maker objected, the F-tT could decide to extend time. Crucially, it was always for the F-tT (and not the Department for Work and Pensions, Her Majesty’s Revenues and Customs or local authority, depending on the benefit concerned) to decide whether the appeal had been made within the time limit and whether or not time should be extended. In other words, the F-tT, not the relevant Department, acted as gatekeeper to the independent and judicial dispute resolution system. 6. After the introduction of MR, and under the regime now in place, a dissatisfied claimant can still ask for a benefit decision to be revised, again whether on any ground within one month or after that period but then only on a prescribed ground. The difference, however, is that now claimants have no immediate right to go straight to appeal. Instead, if they wish to challenge the decision, they are required within one month to apply for a “mandatory reconsideration” – in effect, a revision – of the original decision. It is only when they have received a MR notice from the Secretary of State’s decision-maker (assuming the decision is not changed entirely in their favour) that they can lodge an appeal with the F-tT (within one month). 7. So, in short, what was in effect a one-step process (appeal and in practice reconsideration by the relevant Department) has become a two-stage process (mandatory reconsideration and then appeal). The claimants’ challenge in these proceedings is not to the two-stage MR process, but to its application and effect. 8. A potential pinch point in the MR procedure occurs if the claimant does not apply for a MR within a month of being notified of the original decision. In this event the parties’ respective positions are starkly summarised at paragraph 2 above. So, in those circumstances [counsel for the Secretary of State] submits that – absent either the Secretary of State’s decision-maker unilaterally reconsidering the matter and agreeing to look again at an otherwise out-of-time MR request or the claimant making a successful application for judicial review – the right of appeal to the F-tT is effectively lost. To all intents and purposes – we return later to the possibility of judicial review – the Secretary of State has become gatekeeper to the independent tribunal system. [Counsel for the claimants], in contrast, argues that the claimant who is late with their MR request still has the right to have their case considered by the F-tT on its merits.”