Challenging an Employment and Support Allowance Decision - Have the decision looked at again

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

This is known as a mandatory reconsideration  of the decision.

Going straight to appeal

Some people should not use the mandatory reconsideration process and should go straight to appealing their Employment and Support Allowance decision.

This applies if:

• You are getting income-related Employment and Support Allowance, and
• You are appealing a decision that says you are fit for work, and
• The decision that you are fit for work is not based on you having failed to return your ESA50 questionnaire or having failed to attend an assessment (i.e. to be able to go straight to appeal, you need to have actually had an assessment, either face to face or paper-based on the evidence you submitted to the Department for Work and Pensions (DWP) ), and
• It is either:
  • The first time you have been found fit for work at an assessment, or
  • You have been found fit for work at a previous assessment but since then had an assessment where you were found to have limited capacity for work.

If this applies to you, you should go straight to appeal. This is in your interests because you cannot keep receiving ESA during the mandatory reconsideration process. However, you can keep receiving ESA while you are waiting for your appeal to be heard.

If you are not sure if this applies to you, you should get advice.

Obtaining medical evidence

You don't have to send in medical evidence. However, 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 healthcare 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 healthcare 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.

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 find you need to claim Universal Credit while you wait for your ESA decision to be reconsidered. If you claim Universal Credit, you won't be able to go back onto income-based ESA, even if the DWP does agree to change its decision. However, the decision that you aren't fit for work will carry over into your Universal Credit claim.

Read about Universal Credit for people with disabilities and illnesses.

If you still think the decision is wrong:

You may be able to appeal against the decision.