My client IS was removed in September 2006 following a suspension.

She wrote a letter seeking a review but no review was done and, for one reason or another, nothing else was done for quite some time.

Anyway, we've written to the JC+ seeking completion of the outstanding review, but they say that the letter was correctly not treated as an application for a review and are refusing to deal with it.

Also, the suspension, quite obviously to me, did not comply with the statutory requirements but the JC are maintaining that it did.

Overall, we are very unhappy with the way that our client's claim was handled and have complained.

We have now passed throught the first three stages of the complaints procedure and it looks set to continue.

The question is, is there any way that we can get this issue looked at other than by way of the complaints procedure? I consider that because the review was not done the client is still in the dispute period and so the possibilty of an in time exists. However, I'm sceptical about this becuase it revolves around a judgement as to whether the review request was sufficient.

The faulty suspension is also niggling at me a bit, but I think this is a red-herring since it would only be a reason for overturning the decision removing entitlement, for which we still need to get to a tribunal (suspension, of itself, not being an appealable decision).

I'm considering suggesting a judicial review of the decision not to admit the client's letter as a review.

I would be most grateful for any views on this issue, especially alternatives that I haven't considered or more simple ways of getting where we want to be.

There is a lot of money at stake (18 months of IS for a severely disabled person, including ISMI) and I have no faith that the matter will be fairly resolved by the complaint so I'm really interested in any ideas that will get us back in the statutory dispute procedures.

Thanks,

Might there be any mileage in seeking an out of time review on grounds of official error relating to the faulty suspension notice? According to recent UTD CH/1764/2008 a faulty suspension notice invalidates the suspension and subsequent termination. Would the fact that the decision was based on the faulty suspension make it the subject of an 'official error'?

The DWP say the suspension notice wasn't faulty. If they refuse to revise is the only remaining remedy JR?

What does everyone think?

Hi Tony

If regulations 16-18 of the D&A Regs have not been complied with (suspension and termination) then the termination decision has no legal force and can be the subject of an anytime revision on grounds of official error. The only problem here is that there is no right of appeal against a refusal to revise and JR will then be the only option.

Regarding the refusal to treat the review application as a review then I cannot see how they can do this unless the application was made out of time. I’ve seen this many times, where the claimant says they have asked for review, swears they applied in time and it turns out that they didn’t apply in time and it was thus a supersession request. Either way, there should still be an outcome decision against which an appeal lies. If no outcome decision has been issued then the issue is still live.

There are no magic words that need to be used in a review request as long as the request is sufficiently clear to put the Department on notice that the claimant wishes the decision to be looked at. If the Department requires any further information (i.e. grounds) then it must notify the claimant under reg 3(2) of the D&A Regs.

I would request a copy of the review letter, copies of any letter sent to the claimant requesting further information and a copy of any outcome decision that was issued and reasons. I would copy that request to the DWP solicitors to ensure local office compliance and proper scrutiny. Only then will you be able to get to the bottom of what exactly has transpired.

Regards
Paul

Thanks for your reply Paul.

We have all the information we need including the suspension and termination letters and the letter sent by the client (fortunately, the client is a meticulous record keeper).

She sent the letter in time and, in my mind at least, there can't by any doubt that she was seeking a review - it was not expressly stated, but the implication is quite obvious. The JC are being bloody minded. The problem is that their unwillingness to agree to a resolution is causing the case to become increasingly complicated.

Although in the complaint letters we've described the problem with the suspension, I haven't sought a review specifically on those grounds - only on treating the letter as in-time review. I spoke to PLP yesterday about a JR application about this issue. However, I'm now wondering if I should submit a new review request arguing the official error and then JR a decision to refuse to revise.

A major stumbling block could well be the complaint itself. Since we've approached both of these issues in the complaint, might an application for JR be refused on the grounds that there is an unfinished procedure. If we have to fully exhaust the complaints procedure that could take a very long time (JC+ chief exec, ICE then Ombudsman still to go).

Do you think it's worth copying all the stuff to the department's solicitors and asking for their opinion or intervention? Would they respond positively if we say that we are being forced into a JR remedy by thier department's unwillingness to consider other, somewhat obvious, remedies?

Maybe a letter of claim restating both review arguments and copied to the dept's sol's might be better, so we can get a definitive 'no' on both issues.

Thanks again.

I would definitely ask either the DWP solicitors or the Policy Unit to intervene. I've always found them to be helpful.

With regards to JR then Leave to bring JR proceedings will generally not be granted where there are alternative dispute mechanisms (such as appeal rights, formal complaints procedures, etc) unless those alternative dispute mechanisms themselves are the subject of unreasonable delay.

However leave to bring JR proceedings can be granted, where alternative dispute mechanisms exist (that are not subject to unreasonable delay), if it could be shown that there would be a substantial risk of harm (or some such phrase) to the person or persons affected unless the court intervened expeditiously.

For example, see R v Chief Constable of Merseyside Police, ex parte Calveley and Others (1986) CA, where Sir John Donaldson MR, in citing other cases, states;

"whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by judical review when an alternative remedy is available".

Thanks very much Paul. Your contribution is very helpful and much appreciated.

Regards,

Tony

Paul,

Do you have an address for DWP solicitors?

Thanks,

Here ya go!

DWP (Office for Solicitors)
New Court
48 Carey Street
London
WC2A 2LS

Thank you.