How to challenge ESA decisions

It is almost always worth considering challenging decisions on ESA claims and reassessments when someone is unhappy with the outcome, says Charlie Callanan.

It is now widely accepted that the current approach to reforming out of work sickness and disability benefits has achieved few of its objectives. Every day, more and more people are failed by a system designed to support them.

This is the introduction to a research report* from Spartacas, an informal network of disabled and chronically ill people, strongly criticising the assessment and decision-making regime for employment and support allowance (ESA).

The report is partly based on evidence from 1,200 consultation responses from sick and disabled people who have experienced the ESA claim process. It argues among other things that the ESA assessment does not accurately reflect the ability of sick and disabled people to take part in work activities and makes detailed suggestions for an alternative system. ESA can be paid to people with a disability or illness who have limited capability for work and/or for work-related activity.

Limited capability
The report points to the success rates for clients being found by appeal tribunals to have limited capability for work as evidence that the system isn’t working properly. Ministry of Justice statistics for ESA appeal tribunals show that ESA decisions from Jobcentre Plus were overturned in the claimant’s favour in 42% – 45% of appeals during 2013.

The Jobcentre Plus decisions that a claimant is likely to challenge include either being found fit for work, and so not entitled to ESA; or that they are entitled to ESA but must take part in ‘work-related activity’, such as attending meetings with a personal adviser.

If a client is not happy with a decision on their ESA claim they must first request a ‘mandatory reconsideration’. If the client is still unhappy with the decision following the reconsideration they will have to then submit an appeal. This must be sent direct to Her Majesty’s Courts and Tribunals Service. Ideally the appeal application should be made on form SSCS1, although a letter can be accepted. A reconsideration or appeal application has to usually be received by the relevant authority within one month of the decision being challenged.

Note that if the claimant’s challenge is against a decision that they are fit for work, then a medical certificate – or a ‘fit note’ – from a qualified medical practitioner is required throughout the reconsideration and appeal process.

It is normally in the best interests of clients to attend an oral appeal tribunal hearing where she or he can explain to a panel their personal circumstances and how their disability affects them. If an oral hearing is not requested the tribunal will make a decision based on the papers available about the case, including any additional evidence.

A client or their representative should gather additional evidence during the ESA appeal process. For ESA the most important information is likely to be medical evidence from a hospital or clinic specialist or from their GP. But non-medical evidence can also be relevant such as a diary from a carer or a letter from a social worker.

Relevant evidence
It is important that the evidence is relevant specifically to the issues under dispute in the appeal. If the client is arguing that they have limited capability for work they should ask a medical practitioner such as their GP to provide a letter. This should include details of their health conditions, treatment/medication, and most importantly some comments about specific physical and/or mental/cognitive descriptors from the work capability assessment, and how these may apply to the client. Or if the client is arguing that they meet either the ‘exceptional circumstances’ or can be treated as having limited capability for work, the doctor should be asked to comment on this.

Please note that the evidence given must relate to the client’s circumstances on or before the date that the original decision was made, not on the date when the evidence is provided.

The earlier that the evidence is submitted during the process the better because Jobcentre Plus can change the disputed decision in the claimant’s favour at any point during the appeal process.

If your client attends an ESA appeal hearing they can take a representative, eg a welfare rights adviser and/or another professional or a carer or relative. However, the panel – one judge and a doctor – will need to ask your client direct questions about their disabilities and how these affect her in relation to the criteria laid down in the work capability assessment. The hearing is relatively informal and the client and any representative will be given a chance to speak after the panel has completed its questions.

Where an appeal is successful any arrears owed will be paid back to the date of the relevant decision.

Flawed process
As the Spartacus Network have argued the ESA assessment process is flawed and poor decision-making on ESA claims is likely to continue. However, the appeal statistics highlighted in the report serve to remind clients and supporting professionals that it is almost always worth considering challenging decisions on ESA claims and reassessments when someone is unhappy with the outcome; and to get detailed advice and representation where required.

* Beyond the Barriers: a Spartacus Network report into Employment Support Allowance, the Work Programme and recommendations for a new system of support (April 2014)


Charlie Callanan is a welfare rights adviser with over 15 years experience in the charitable and statutory sectors.