Was your claim for ESA refused and you are not sure what should you do next? Read our article about appealing against the DWP’s decision and possible outcomes after an ESA appeal.
Appealing against the DWP’s decision
An appeal is a way of telling the benefit office that you think the decision they made is wrong.
The first step in letting the DWP know that you disagree with their decision, is to ask for a mandatory reconsideration. This is an internal investigation where another decision-maker looks over your case and evidence.
If you still disagree with the DWP after the mandatory reconsideration, perhaps this is your chance to make an appeal at an independent tribunal.
How do I make an ESA appeal?
There are two conditions you must respect when you make an ESA appeal. First, you must appeal in writing (use the SSCS1 form). Second, have you already asked the DWP to reconsider their decision, but you still disagree with the outcome? This step is called asking for a mandatory reconsideration.
If for some reason you prefer to write an official letter instead of filling the SSCS1 form, make sure you include in the letter the following information:
- Make sure to write your full name and contact address;
- Include your National Insurance number;
- Write as clearly and with as many examples as possible why you think the DWP is wrong;
- You should attach a copy of the mandatory reconsideration notice with your letter;
- Don’t forget to sign the letter at the bottom of the page.
You should be aware that if any of these details are missing from your letter, it might be rejected and returned to you. This will only make the ESA appeal process so much longer.
In the case that you have lost the mandatory reconsideration notice you can always ask for a copy to be sent to you, but you will have to do this before you can appeal.
If waiting for your mandatory reconsideration notice copy causes a delay in sending in your appeal request, you will have to mention this in your appeal letter.
About the time limit
If you wish to make an ESA appeal, you have to know the time limits. What does this mean? You have exactly one month from the date of the mandatory reconsideration notice to make a request for an appeal. Try not to miss this deadline, but if you do you should have a good reason for sending a request for an appeal late.
If this is the case, understand that the DWP has the right to reject your request. However, they will pass it to the Tribunal Service who will have the final say. There is a time limit in this case, too. If your request is sent after more than one year and 30 days since the date of the decision, you appeal will be rejected.
Possible outcomes after a Mandatory Reconsideration
If they haven’t already, a different decision-maker from the Department for Work and Pensions will look at the decision and decide whether it should be changed. If after the mandatory reconsideration the decision-maker arrives to the conclusion that they can’t change the original decision, your appeal will carry on.
If the decision-maker states that they were wrong in the first place, they will send you another letter with the new outcome.
Next, if you agree with the new conditions and are satisfied with the DWP’s new decision, the appeal will stop.
If you still disagree with the new decision, your appeal will carry on, but now it will be against the new decision.
Send your ESA 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
- Consider changes in circumstances that have taken place since the decision was made.
Can you claim benefits during your ESA appeal?
You can still claim ESA even if you are appealing the DWP’s decision, however there are certain conditions you must satisfy.
First, you will not be paid ESA during your appeal if at the reassessment stage you claimed other benefits such as Universal Credit or Jobseekers Allowance.
Second, if you want to go back to ESA, you must provide fit notes to the Department. The medical certificates should cover and be backdated including the mandatory reconsideration period. You don’t need to make a new claim for ESA in this case, but you still have to contact the DWP and follow their indications.
Improve your chances of success at your ESA appeal
- Ask for an oral hearing – the success rate at paper hearings is very low indeed.
- Make sure you know all the appeal deadlines and don’t miss any of them.
- Go through every point scoring descriptor in the test, to decide if there are any points you could ask the tribunal for that you didn’t realize might apply when you filled out your questionnaire.
- Look at the safety-net ‘exceptional circumstances’ regulations and decide whether any of them might apply to you.
- Submit supporting medical and non-medical evidence for your ESA appeal.
- Watch a hearing before attending yours, so you know exactly what happens at a tribunal first-hand.
- Be aware of the importance of issues like how you travel to the appeal hearing and the clothes you wear
Are ESA appeals successful?
According to the DWP’s official statistics, on average, two-thirds of the new claims for ESA are placed in the support group.
“The latest figures from the DWP show that nearly two-thirds of new ESA claimants were placed in the support group, an increase of 5% in the previous quarter. 17% were placed in the work-related activity group (WRAG), which was down 4% in the previous quarter.
Just over a quarter were found fit for work, as in the previous period.“
Following the ESA reassessments:
80% of claimants were placed in the support group
13% of claimants were placed in the WRAG
6% of claimants were found fit for work.
Speaking of the ESA appeals rate of success, the same statistics show that 73% of social security appeals are won. The claimants are winning PIP and ESA appeals at the highest rate ever recorded.
We know that for many people an appeal sounds terrified and is causing unnecessary anxiety, but the latest DWP figures are promising and hopeful. There is a 73% chance of success if you appeal ESA as claimants are winning PIP and ESA appeals at the highest rate ever recorded. Read our article on “How to fill and SCSC1 form” for more advice on how to appeal a DWP’s decision.
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FAQ about ESA appeals
What is the success rate of ESA appeals?
The success rate of ESA appeals has reached an impressive number of 73%, with the claimant getting a better award than they originally received from the DWP.
How long is ESA appeal?
An ESA appeal can take between four to 11 weeks. You will be sent a letter by the DWP confirming this.
What happens if my ESA is stopped?
If your ESA has been stopped because you failed a medical assessment you will either need to sign on for Job Seekers Allowance or make an appeal.
Can DWP change its decision before appeal?
The DWP can review its decision anytime before the appeal. Usually, this happens because the claimant has brought in more evidence.
On what grounds can DWP appeal a tribunal decision?
The DWP can appeal a Tribunal decision if they can show that there was an Error of Law in the making of the Decision, even if they think that this is the case, the Upper Tier Tribunal may not agree with them.
Can I cancel my ESA assessment?
You can cancel one appointment but you will need to reschedule it or you risk having your claim closed.
- Employment and Support Allowance: A Guide to ESA for People with a Disability or Long Term Health Condition, Their Families, Carers and Advisors
- Positive Behavior Supports for Adults with Disabilities in Employment, Community, and Residential Settings
- How to Write An Appeal Letter / Plan of Action
- Social Security, Medicare and Government Pensions: Get the Most Out of Your Retirement and Medical Benefits
- Insider’s Guide to Government Benefits
- ESA Assessment Guide – Health Assured
- Employment and Support Allowance (ESA) – GOV.UK
- ESA appeals – Benefits and Work