Disabled campaigner’s mandatory reconsideration court victory over DWP

A disabled campaigner says his high court victory over the Department for Work and Pensions (DWP) has shown that it is possible to “put the rule of law into the hands of ordinary people”.

Michael Connor spoke out after a judge ruled that DWP’s mandatory reconsideration (MR) process – introduced seven years ago as part of the coalition government’s programme of social security cuts and reforms – was unlawful when applied to claimants of employment and support allowance (ESA), the out-of-work disability benefit.

The high court announced on Friday (24 July) that Connor had been successful in his legal bid to have the MR process declared unlawful for ESA claimants.

Even though there are no MRs in the universal credit system, which is gradually replacing ESA, the victory should help thousands of existing recipients of income-related ESA who are found fit for work after a review of their claim and wish to appeal to a tribunal.

Connor, from Staffordshire, said he had wanted to show that it was possible to “put the rule of law into the hands of ordinary people to allow them to have power to bring even their own government to court if they act above the law”.

Although it is not yet clear what action DWP will take after the court ruling, Connor is hoping welfare rights groups will use the judgement to call for an end to all mandatory reconsiderations.

And he may now launch a separate judicial review case over his claim for personal independence payment (PIP), which was also rejected in 2018 following an MR and for which he is still awaiting an appeal.

Connor, who represented himself during the case as a “litigant in person”, had to wait more than four months for his MR to be heard – longer than usual because of a DWP administrative error – after he was found fit for work and lost his eligibility for ESA in October 2018.

He was eventually told, in March 2019, that DWP had upheld its decision, but he did not go ahead with an appeal as he had instead made successful claims for carer’s allowance and income support.

While he had been waiting for the MR decision, he did not receive the assessment phase rate of ESA, because of a DWP regulation which says that such payments are suspended while an MR is being decided, once a claimant has been found fit for work.

Once the MR rubber-stamps the initial decision, the claimant is allowed to lodge an appeal, and will then receive ESA again until the case is heard by a tribunal.

Connor argued in court that the regulation breached his right to a fair hearing under article six of the European Convention on Human Rights (ECHR), and that the MR process had placed him in a state of “legal and financial limbo, distress and destitution”.

Mr Justice Swift announced on Friday that the MR regulation was “a disproportionate interference with the right of access to court”, even for the typical waits of seven to 10 days for an MR to be completed.

And even though alternative benefits could be available during the period spent waiting for an MR decision, the judge concluded that this requirement was “likely to be cumbersome” and “places a burden on ESA claimants”.

He said that DWP had provided “no explanation” for why there was no payment pending an MR decision.

And he concluded that the MR regulation, as applied to ESA claimants, “does not strike the required fair balance, and for that reason is an unjustified impediment to the right of access to court” under article six of ECHR and was unlawful.

Connor, who has a first-class law degree, a masters in law and a postgraduate legal practice certificate, and is a former welfare rights worker, was helped in his case by a crowdfunding appeal, which eventually raised more than £7,500, and was backed by members of the Benefits and Work website.

He is now gathering evidence of the “devastating effect” that unfairly losing PIP has on disabled people.

He is convinced that the MR regulation itself is unlawful and should be quashed, and that it discriminates against disabled people.

The MR process was branded a DWP delaying tactic after it was introduced in 2013, with official figures showing that most initial decisions were rubber-stamped at the MR stage.

There has been a increase in the proportion of ESA MRs that result in DWP revising its original decision since April 2019, when more than 70 per cent led to no change.

At one stage, in early 2016, nearly 90 per cent of DWP decisions were rubber-stamped at MR.

A DWP spokesperson said the department was considering the judgement.

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