Revisions supersessions and reviews – late request for mandatory reconsideration – whether right of appeal to First-tier Tribunal against Secretary of State’s refusal to admit or whether judicial review appropriate – access to justice – Saleem v Secretary of State for the Home Department  EWCA Civ 186 considered.
Two claimants with mental health and other problems each claimed employment and support allowance (ESA) and attended a “face to face” assessment. Decision-makers decided that neither claimant qualified for ESA and advised them of the time limit for seeking a mandatory reconsideration. The claimant’s applications for a mandatory reconsideration were both late (5 and 10 months respectively). The Secretary of State decided that neither of the claimants’ circumstances justified extending the time limit and the First-tier Tribunal (F-tT) refused to admit their appeals. The claimants sent the Secretary of State a letter before action challenging the lawfulness of the procedure adopted and in both cases he decided to reconsider the refusal to undertake a mandatory reconsideration. One claimant’s case came before the Upper Tribunal by way of judicial review and the other by way of appeal and it directed that both cases be heard together before a three-judge panel.
Held, allowing the appeal, that:
the claimant’s entitlement to social security benefits, both on an initial claim for benefit or a subsequent challenge to a decision on it, can be made subject to the claimant complying with time limits that can be extendable or non-extendable (paragraph 70);
there was a need for clear language to remove or interfere with existing rights of appeal founded on the nature of those rights and the benefits they give to those affected by appealable decisions: Saleem v Secretary of State for the Home Department:  EWCA Civ 186 applied (paragraph 65);
there was nothing in the explanatory notes to what became section 102 of the Welfare Reform Act 2012 or otherwise to suggest that if a claimant was late in making a mandatory reconsideration request, but still within the further discretionary period in which a F-tT might permit a late appeal, the Secretary of State, by refusing to extend the time to admit the late application, would have the power to exclude the claimant’s right of appeal to a F-tT on the merits, subject only to challenge by way of a claim for judicial review (paragraphs 38 to 40);
section 12 of the Social Security Act 1998 confers a right of appeal to the F-tT and the Child Support (Decisions and Appeals) Regulations 1999 do not operate to restrict that the right of appeal to cases where the Secretary of State has considered, on the basis of an in time application for revision, whether to revise the decision under section 9 (paragraphs 41 to 45).