You are now leaving the Turn2us site. Turn2us is not responsible for content on third party sites.


Challenging an Employment and Support Allowance Decision

If you think an Employment and Support Allowance decision is wrong, either because you have been refused it or have not been put in the support group, you may be able to: - Ask for an explanation - Have the decision looked at again - Appeal against the decision This guide takes you through these options.

1. What are my options?

If you think an Employment and Support Allowance decision is wrong, either because you have been refused it or have not been put in the support group, you may be able to:

  • Ask for an explanation

  • Have the decision looked at again

  • Appeal against the decision

This guide takes you through these options.

Applies to: England, Scotland, Wales, and Northern Ireland

Advice: If you need advice about a benefits or tax credits decision, you should contact a benefits adviser. You can use our Find an Adviser tool to find a local one.

 

Updated: December 2017

2. Ask for an explanation

You don’t have to ask for an explanation of the decision but you may want to if the reasons were not provided with the decision letter and you are unsure whether the decision is right, or you want more information to help you challenge the decision.

Some of the reasons why you may be refused Employment and Support Allowance:

  • You did not attend a medical assessment when asked to do so (without good cause)

  • You did not return a completed ‘Limited Capability for Work questionnaire’ (ESA50) in time (without good cause)

  • You have not passed the Limited Capability for Work Assessment.

If you have not passed the Limited Capability for Work Assessment you should receive a summary of the medical assessment report with the decision letter providing details of the points you were awarded.

Action

Contact the benefit office using the contact details on your decision letter and ask for a written explanation for the decision.

You should also tell them why you think the decision is wrong as they may be able to change it without needing to go any further.

If your first language isn't English, the benefit office should provide an interpreter to explain the decision.

Tip

If you telephone the benefit office, make a note of:

  • the date and time you call

  • who you speak to

  • what is said.

This may come in useful if you want to try to get the decision changed.

Time limits

You should ask for an explanation of the decision as soon as possible, as there are strict time limits if you want to go on to challenge the decision.

Important

If you request a written explanation of the reasons for the decision within one month of the date on the decision letter, the time limit to challenge the decision will be extended. The new limit will be:

  • One month and 14 days from the decision date (if the written reasons are provided within one month of the decision date); otherwise

  • 14 days from the date the written reasons are provided.

This only applies if the reasons were not provided in the decision letter you received. If you are in any doubt, stick to the usual time limits.

Possible outcomes

An explanation will usually be provided by telephone, but must be in writing if you requested a written explanation.

If you ask for a written explanation for the decision you will usually receive this within 14 days.

After hearing or receiving the explanation, you may think the decision is wrong, for example, because it was based on information that was wrong or they did not have all the information. If this happens you should tell them. They may be able to change the decision and send you a new decision letter without you needing to go any further, or they can explain what you can do next.

If you still think the decision is wrong:

You must have the decision looked at again before you can appeal against the decision.

3. Have the decision looked at again

You should ask the benefit office to look at the Employment and Support Allowance decision again if you think the decision is wrong.

This is known as a ‘mandatory reconsideration’ of the decision.

Action

Write to the benefit office using the contact details on your decision letter and ask them to look at the decision again. You can use the Mandatory Reconsideration Request form to request a mandatory reconsideration or write a letter.

You should tell them in detail why you think the decision is wrong including any relevant dates.

You can attach copies of any relevant information, for example, any recent medical letters or other evidence you think may be relevant.

Obtaining medical evidence

You don't have to send in medical evidence but it can be extremely useful in supporting your challenge of the decision especially if it contradicts the medical assessment report produced by the healthcare professional.

Your evidence can be from doctors, consultants, community psychiatric nurses or any other health care professionals.

The evidence should focus on how you meet the criteria set out in the Work Capability Assessment

For example, if you are arguing against the medical assessor’s finding that you can walk more than 100 metres without discomfort, then ask your doctor to comment on this.

Try and speak to your health care professional to outline the difficulties you have with the activities and descriptors which apply to you.

If you have kept a diary of your difficulties you can give this to your doctor.  Alternatively, consider providing your doctor (or other professional) a brief summary of the activities you have problems with and the kinds of difficulties you have.

If you are unable to get medical evidence, you can ask the Tribunal Judge to obtain a copy of your medical records.

Tips

You should send the letter recorded delivery so there is a record of when it was sent and also keep a copy of the letter.

A different decision maker will look at the decision and decide whether it should be changed.

If you are asked for more information or evidence, you should provide this as soon as possible and let them know if there will be a delay.

Time limits

You have one month from the date on the decision letter to ask for the decision to be looked at again.

You may get longer if you ask for an explanation of the decision to be sent to you.

If you missed the deadline for reasons out of your control, such as illness or bereavement, you may still be able to have your decision looked at again.

When you contact the benefit office, you should explain why you missed the deadline.

Possible outcomes

When the decision has been looked at again you will be sent a mandatory reconsideration notice. Keep this safe as you will need it if you want to appeal.

If they decide the decision is wrong they will change the decision and send a new decision letter.

If they decide that they can’t change the decision they will write to you to confirm this and tell you if you have a right to appeal.

Benefits whilst having an ESA decision looked at again

Whilst your ESA decision is being reconsidered you cannot continue to receive ESA.

You may be able to claim another benefit such as Jobseeker's Allowance or Income Support if you are eligible. For example, if you claim Jobseeker's Allowance you will have to be available for and actively seeking work. You can put limitations on the type of work you will search for depending on your health condition.

Claiming another benefit will not affect your Employment and Support Allowance appeal. However, if you live in a Universal Credit Full Digital Service area you would claim Universal Credit whilst you are waiting for your mandatory reconsideration decision.  However, if you were to do that, you would remain on Universal Credit even if the mandatory reconsideration decision was in your favour, or you went on to appeal successfully.

If you still think the decision is wrong:

You may be able to appeal against the decision find out more on the next page.

 

Updated June 2018

4. Appeal against the decision

An appeal is a way of telling the benefit office that you think a decision is wrong.

When you appeal a decision, it will be looked at by an independent tribunal, which is completely separate from the benefit office. You must ask for a mandatory reconsideration of the decision, before you can make an appeal. We have more information on mandatory reconsideration on the previous page.

How do I appeal?

You must make your appeal in writing.

You must have asked for the decision to be looked at again and received the mandatory reconsideration notice first.

If you appeal on the official appeal form, this can help you to give all the information that is needed.

These leaflets ‘How to appeal against a decision made by the Department for Work and Pensions (England, Scotland and Wales)'  'Guidance for completing your appeal form (Northern Ireland)' tell you how to start your appeal.

*Download a copy of the appeal form

*Pick up a copy of the appeal form from your local Jobcentre, or

*Write to HM Courts and Tribunals Service (see address below).

If you can't get hold of the official appeal form, make sure you include the following details in your letter:

  • Your name and contact address

  • Your National Insurance number

  • A copy of the mandatory reconsideration notice

  • Why you think the decision is wrong

  • Your signature.

If you don't include all these details your appeal form may have to be returned to you.

If you have lost the mandatory reconsideration notice you can ask for a copy to be sent to you, you will have to do this before you can appeal. If this causes a delay in sending in your appeal request, you will need to explain the reasons for the delay - see information about late appeals below.

Send your appeal to:

England and Wales: HMCTS SSCS Appeals Centre, PO Box 1203, Bradford, BD1 9WP.

Scotland: HMCTS SSCS Appeals Centre, PO Box 27080, Glasgow, G2 9HQ.

Northern Ireland: The Appeals Service.9th Floor Millennium House,17 Great Victoria Street, Belfast, BT2 7AQ

Time limit

You have one calendar month from the date on the mandatory reconsideration notice.

Late appeal

 

If you missed the deadline for reasons out of your control, such as illness or bereavement, you may be given more time to appeal.

There is a section on the appeal form where you can give your reasons for it being late.

If the benefit office doesn’t think you have a good reason for appealing late, they will pass your request to the Tribunal Service who will decide if your appeal can be accepted or if it is too late to be heard.

An appeal can’t be accepted if it is over one year and 30 days since the date of the decision

Possible outcomes

Look again at the decision

 

If they haven’t already, a different decision maker will look at the decision and decide whether it should be changed.

If they decide that they can’t change the original decision, your appeal will carry on.

If they decide that the original decision is wrong, they will change the decision and send you a new decision letter:

  • If the new decision makes you better off your appeal will stop. You can appeal this new decision if you think it is wrong

  • If the new decision does not make you better off, your appeal will carry on, but now it will be against the new decision.

Send appeal on to Tribunal Service

 

If your appeal carries on, your appeal form will be sent to HM Courts and Tribunals Service, who run the First Tier Tribunal. The benefit office will also include their response. This explains:

  • How they came to their decision

  • What information they used

  • What benefit law they based their decision on.

The First Tier Tribunal

The First Tier Tribunal will decide if you are legally entitled to a benefit and can change a decision if they think it is wrong.

The tribunal could make a decision that leaves you worse off so it is often best to seek advice before deciding whether to appeal.

The tribunal cannot:

  • Change the law

  • Deal with administrative complaints, like delay or poor service (see complaints about your claim)

  • Consider changes of circumstances which have taken place since the decision was made - you may be able to make a new benefit or tax credit claim.

For information about what happens when your appeal is received by the Tribunal Service (England, Scotland and Wales), or Appeals Service (Northern Ireland), see our First Tier Tribunal Appeals guide.

Benefits whilst appealing an ESA decision

If you appeal against an ESA decision, you can ask to be paid ESA whilst you await the decision, (unless you went on to Universal Credit while you were waiting for your mandatory reconsideration decision). You don't need to make a fresh claim for ESA.. 

You must continue to provide medical certificates (fit notes) whilst you are getting ESA.

If you have backdated medical certificates (fit notes) to cover the mandatory reconsideration period, then ESA can now be paid for that period as well. This doesn't apply if you claimed another benefit such as Jobseeker's Allowance or Income Support during the reconsideration period so received an equivalent amount of benefit.

Updated December 2017