Scotland's social security system will include a form of mandatory reconsideration - prolonging the appeal process
Scotland’s “fairer more humane” social security system has been slammed by a leading academic after it was revealed it will discourage benefit claimants from making appeals.
The Scottish Government plans to introduce a version of mandatory reconsiderations (MR) – a controversial appeal blocking system introduced four years ago by the Department for Work and Pensions (DWP).
The two-tier appeal proposal is contained in the new Scottish social security bill. It will mean government officials will decide whether a decision to cut a person's benefits should be overturned and only after that can it be forwarded to an indepenent appeal.
Dubbed “re-determinations,” Scottish Government officials say the move is intended to prevent the appeals system becoming inundated.
However, critics argue it leads to unnecessary delays in the process and puts many vulernable and often disabled people off continuing to a full appeal.
Recent court rulings have brought further focus onto the existing MR system after it was deemed illegalto refuse a person a right to an independent appeal because they'd not applied within a month.
Paul Spicker, emeritus professor of social policy at Robert Gordon University and a renowned expert on the welfare system warned the Scottish Government could also fall foul of the law if it introduces re-determinations in Scotland.
“The mandatory review is being used as a barrier to stop people getting access to justice," he said.
“And it is questionable whether such a provision is consistent with recent decisions about the rule of law.”
How the two tier appeals system works
Since 2013, benefit claimants who wish to appeal against a decision made by the DWP have had to request a mandatory reconsideration (MR) before being able to take their case to a tribunal.
These claims to be made within once month of the original decision. Staff then look at the application again and have the power to overturn the original decision if they think it was incorrect. Many of the cases relate to claims for disability benefits.
It is only at this point, if the claimant is still unhappy, that they can appeal to the first-tier tribunal.
Claimants do not receive any payments until either the decision is changed in their favour or the mandatory reconsideration is completed and they have lodged an appeal, leaving many – including disabled people – on the verge of destitution
The DWP has always insisted that mandatory reconsiderations make the appeal process fairer but critics have warned for some time that it is confusing and can deter people from appealing.
Campaigners are concerned that the process adds confusion, obstruction and complexity to the appeals processes with little or no added value compared with the older automatic revision process – where claimants undertook a straightforward appeal.
It’s not only the DWP which implements MRs however: claimants of tax credits, child benefit and guardian’s allowance must go through the same process with Her Majesty’s Revenue and Customs (HMRC).
Jeane Freeman, Scotland's social security minister, denied re-determination was based on DWP practices.
“That is not the case,” she said. “Our proposals are a far cry from the discredited system run by the DWP. We are taking a different approach, where we want to get the decision right first time, have clearly published procedures and timescales for challenging decisions, and meaningful redress available if those processes and timescales are not adhered to.
“Our approach will ensure a system that is less burdensome and more responsive to the needs of individuals, while ensuring they will always have the right to appeal to a higher level if that is necessary.”
But Spicker hit back: “It's not true to say that the system is not being based on what the DWP does. The two-stage process was only introduced in 2012, and this bill also includes a two-stage process.
“You don't have to read between the lines; their [the Scottish Government’s] purpose is quite explicit. Their policy memorandum gives the same justification for a two stage process as was given for MR: ‘Without a re-determination stage, it would mean that all decisions being challenged would go to a tribunal. This could lead to the tribunal being inundated.’”
One senior judge in England said that the introduction of MR, rather than leading to a justified reduction in appeals, would discourage claimants who might have had winnable cases from appealing, because they found the process too onerous.
Bill Scott, policy manager at Inclusion Scotland, said he did not believe redeterminations are "either necessary or desirable."
He added: “A two stage appeals process discourages people from proceeding to appeal as some mistakenly believe that the internal review is their appeal.
“Others think that it wouldn’t do any good to challenge the decision again when in fact a much higher proportion succeed at appeal rather than during mandatory reconsiderations.
“So we believe that there should just be a single stage appeals process.”
Labour’s social security spokesperson, Mark Griffin MSP, said: “For years SNP ministers have, rightly, criticised Tory reforms to welfare benefits for treating people with disabilities cruelly.
“They have promised that they would restore respect and dignity, minimise the impact and stress on disabled people, and ultimately help change their lives.
“But funnelling people through a stressful two-stage re-determination process which looks like the current Tory system is just wrong.”
Last year a freedom of information request revealed the DWP had a target of upholding 80% of mandatory reconsiderations, a figure it subsequently exceeded by 7%.