The primary legislation allowing this change is the newly inserted subsection 12(3A) of the Social Security Act 1998:-
(3A) Regulations may provide that, in such cases or circumstances as may be prescribed, there is a right of appeal under subsection (2) in relation to a decision only if the Secretary of State has considered whether to revise the decision under section 9.As we can see, there is no automatic removal of immediate appeal rights. The DWP are talking as though the change is automatic for all new decisions after 28th October, but in fact the change applies only to 'such cases or circumstances as may be prescribed.' So for example, the Secretary of State may want to prescribe that the new procedure affects ESA cases decided after a certain date, but not DLA cases, and perhaps JSA cases after a different date.
Here's what the Secretary of State has purported to prescribe in the new regulation 3ZA of the Social Security (Decisions and Appeals) Regulations 1999:-
3ZA.— Consideration of revision before appeal
(1) This regulation applies in a case where—
(a) the Secretary of State gives a person written notice of a decision under section 8 or 10 of the Act (whether as originally made or as revised under section 9 of that Act); and
(b) that notice includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision.
(2) In a case to which this regulation applies, a person has a right of appeal under section 12(2) of the Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act.
I think there might be a fundamental problem with this thanks to the Supreme Court’s very recent decision in Reilly and Wilson (the Poundland case). I quote from that judgment:-
The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the
impermissibility of sub-delegation are of crucial importance.
Where Parliament in a statute has required that something be
prescribed in delegated legislation, it envisages, and I think requires, that the delegated legislation adds something to what is contained in the primary legislation. There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation. However, the description of the Employment, Skills and Enterprise Scheme in the 2011 Regulations adds nothing to the description of such schemes in the Act.
[all my emphasis]This is very similar to what has been done again here. The Act requires that cases or circumstances be prescribed, but this has not really been done. The regulation purports to grant the Secretary of State complete discretion as to whether to impose the restriction in any particular case, and the upshot of Reilly seems to me to be that this is not a permissible ‘prescribing’ of circumstances. It is not as if there is another rule somewhere laying down when the statement described in 3ZA(1)(b) can or cannot appear: there isn't.
What has effectively been 'prescribed' is that the new procedure applies when the Secretary of State says it does. Or to look at it another way, reg 3ZA has purported to prescribe how the new procedure is to be communicated, rather than the cases or circumstances when it applies.
Furthermore, the DWP seem to have just decreed that such statement will appear in all cases after 28th October. But if there is a discretion, as there seems to be, it is very doubtful that such a blanket rule is a lawful exercise of that discretion. Having prescribed that discretion, the Secretary of State should now be judiciously considering when it is appropriate to exercise it.
In conclusion, I believe that the new regulation is unlawful in the same way as the Poundland case regulations were found to be. My colleagues and I will be looking at options for challenging its application.