If you have failed your ESA medical and have not scored enough points to be placed in either the work related activity group or the support group there are steps you can take. Your payment of ESA will stop until the decision is changed.
How to challenge the decision?
If you have kept a copy of the medical questionnaire you filled in before your ESA medical (called an ESA 50) you should review this information to see if it fully explained your situation at the date of the decision. This date will be given on your decision letter. Legally speaking the decision is about your abilities at the date of the decision rather than the date you completed the form. If you do or don’t have a copy of the ESA 50 you should reconsider the points you feel you should have been awarded at this date by scoring yourself against the list of descriptors. More information about the ESA scoring system is available here Work Capability Assessment
If you aren’t sure of how to do this you should seek advice.
You need to be able to score at least 12 points from a combination of any of the headings.
Mandatory reconsideration and appeal
If you are confident of these scores the next stage is to reconsider any reasons that have been given in the DWP decision letter and write a Mandatory Reconsideration letter giving the reasons you disagree with the decision focussing on the points you feel you should have been awarded and the reasons why, giving examples of problems you have had. You should consider whether there is any other medical evidence you could send in to support your Mandatory Reconsideration. The letter should be sent to the address at the top of the decision letter and should be sent within 1 month of the date of decision. A late mandatory reconsideration can be done up to 13 months after the date of the decision but you should give reasons for lateness. If you aren’t confident about how to do this you should seek advice.
If the Mandatory Reconsideration is refused or if you are awarded work related activity group and you feel you should be placed in the support group you will need to appeal. It is best to seek advice at this stage. You can contact an advice agency, who will help you to lodge your appeal. If you live in Coventry you will be referred through to the Law Centre for representation at the hearing.
Benefit Payments during the disputes process
While you are going through the Mandatory Reconsideration stage you are not paid Employment and Support Allowance. If you are not in a Universal Credit full service area, you will need to claim Job Seeker’s Allowance (JSA) if you are on a low income until the Mandatory Reconsideration is completed. To claim Job Seeker’s Allowance you should ring 0800 055 6688 or you can claim on-line here Job Seekers Allowance claim If you claim on-line you will get a call or text inviting you to a meeting at the Job Centre. You will have to state you are actively seeking work while you dispute the decision but can place restrictions on what actions you will take or work you are looking for because of your health problems. You should ask for the claim to be backdated to the date your ESA was last paid. If there is a delay in paying, you can ask for a short term advance. More information about this is available here Short Term Advance
If you are in a Universal Credit full service area then you need to be aware that you cannot make a new claim for JSA and will need instead to claim Universal Credit(UC). You can either opt to do this or you can opt to delay a transfer to UC by getting your ESA reinstated once the case progresses to the appeal stage see below. You may want to discuss these options with an advisor.
Once the ESA appeal has been lodged you can be paid ESA, unless you have had a previous refusal of a claim dated after 30th March 2015 in which case you should refer to the article about repeat ESA claims for more advice.
You will need to obtain a new fit note from your GP to cover the period since your ESA was last paid and an ongoing period. If you were not paid JSA during the Mandatory Reconsideration your benefit should restart and be backdated to the date of the last payment of ESA. If you were paid JSA then you will be transferred over from JSA to ESA and if there have been any gaps or shortfall in the amount you should be paid the balance as ESA. If you were paid UC you will remain on UC.
If you don’t think you can successfully challenge the decision
If you don’t think you can successfully challenge the decision you will need to transfer on to another benefit.
You can consider whether you are eligible for any of the following means-tested benefits:
- Income Support (IS) (mainly for carers or single parents with a child under 5)
- Job Seeker’s Allowance
- Pension Credit (PC) (if you or your partner is over Pension Credit qualifying age)
- Universal Credit
You could also consider a claim for Personal Independence Payment (PIP)
For information about other options you should seek advice