Mandatory Reconsiderations – more evidence the DWP’s system is failing?

By Chaminda Jayanetti

More evidence has emerged that the government’s system for managing disability benefit appeals is failing, despite claims by the Department for Work and Pensions that it is getting decisions right first time.

Figures published for the first time last week showed that the success rate of people challenging the results of the Work Capability Assessment – the test to decide who receives the Employment Support Allowance disability benefit – has collapsed to just 10 percent, less than two years after a new appeals system was introduced.

Under the new system, an applicant must ask the DWP for an internal “Mandatory Reconsideration” of the result of their WCA before proceeding to a formal appeal via the tribunal service. Until October 2013, applicants generally went straight to a formal appeal.

But data released separately (spreadsheet) by the tribunal service last week showed that in 2015/16, nearly 60 percent of all formal appeals regarding the ESA were found in the claimant’s favour.

The DWP claimed that last week’s figures  showed that WCAs were getting the right result first time, telling Sentinel News: “The fact that nearly 90 percent of decisions were not overturned last year shows that in the majority of cases decision makers are getting it right first time.”

But the tribunal service figures mean that well over half of all disabled people who pursued their case all the way won their appeal against the DWP after failing at the Mandatory Reconsideration stage.

In 2013/14, 44 percent of ESA tribunal appeals were found in favour of the claimant, a proportion that rose to 54 percent in 2014/15 and 58 percent last year, when 28,948 ESA appeals were upheld by tribunals.

The total number of tribunal appeals regarding ESA has fallen sharply since the introduction of MRs – there were more than 300,000 in 2013/14, but this dropped to 60,000 the following year and just under 50,000 in 2015/16.

Partly this may be due to the sharp rise in the number of claimants placed in the Support Group after their WCA, which means they have unconditional entitlement to the ESA disability benefit.

Many other claimants, who were found “fit for work” in their WCA and thus denied benefit, may have given up after the stress of the MR process. In addition, the abolition of legal aid for WCA appeals took effect in 2013 but is likely to have had most impact from 2014/15 onwards.

Whatever the reason, the fall in the number of formal appeals means that the roughly 125,000 unsuccessful MR challenges by ESA applicants in 2015/16 is far larger than the 29,000 who won their formal appeal at tribunal.

As a result, the DWP is sticking to its position that most WCA decisions are being made correctly the first time round, and that this explains the low proportion of applicants who proceed to a tribunal.

But with well over half the tribunal appeals that do go ahead being found in the claimant’s favour, showing that both the WCA and the MR was wrong in each instance, at least a quarter of MRs – and likely far more, were legal aid still available – are reaching the wrong decision.