Receiving a decision
If you are unhappy with the DWP’s decision and believe it is incorrect, you should apply for a mandatory reconsideration. Be aware that you normally only have 30 days from the date stated on the decision letter to request a mandatory reconsideration.
Note: You only have one month from the date of the decision to request a reconsideration.
You can ask for a reconsideration over the phone, but you should confirm your request in writing. When you ask for the decision to be reconsidered, you should explain why you think the decision is wrong. If you can, get as much evidence as you can to back up your argument! This may have been the reason your application was rejected in the first instance.
Reconsideration generally takes 2-6 weeks. Unfortunately, if you were assessed as not being eligible for ESA, you will not receive ESA during this period. However, it is possible to claim for Jobseeker’s Allowance (JSA).
Mandatory reconsideration notice
Once a decision has been reconsidered, the decision maker will send you two copies of a ‘mandatory reconsideration notice’ letting you know of the outcome of the reconsideration. Remember to safe-keep the extra copy of the notice should you wish to appeal the new decision!
You will have 30 days from the date you receive the mandatory reconsideration notice to make the further appeal.
Appealing a decision
If you are unhappy with the result of the mandatory reconsideration, you can also make an appeal to the HM Courts & Tribunals Service (HMCTS). Your appeal must normally reach the HMCTS within one calendar month of the date the mandatory reconsideration notice was sent to you. Appeals are made on the SSC1 form.
The HMCTS will send you a copy of your appeal to the DWP and ask them to provide a ‘response’. The response requires the DWP to explain how they came to their decision – and they must do this within 28 days.
Note: During the appeal you will be entitled to receive ESA at the assessment rate.
The Tribunal hearing
You must be given 14 days’ notice of the time and place of the appeal hearing.
The appeal tribunal will be made up of a judge, a doctor and a disability expert. The judge will ask you questions about the issues related to your appeal. You should be given the opportunity to explain your case.
To find out how long it will take for you to attend a tribunal hearing after you have lodged your appeal, please call the ‘First-tier Tribunal (Social Security and Child Support)’, on 0300 123 1142 (England and Wales) and tell them which tribunal Centre you will be attending.
Collecting Evidence for a Tribunal Hearing
It is up to you to bring forward evidence that supports your claim! It is important to remember that you are not being asked about your condition as it currently is, but your condition as it was when you made your claim. This means you should be prepared to talk about how your health was at that time.
Some of the written evidence which the Tribunal will consider in the hearing include:
- Your original ESA questionnaire form (ESA50 Form).
- The medical assessment report completed by the doctor or Health Care professional as part of the Work Capability Assessment.
- Reports requested by the DWP from any other medical source (a G.P, Consultant or Specialist that you may have seen recently).
It is vital that you familiarise yourself with these documents before your tribunal hearing so you can answer any questions the Tribunal Members may have about them. Remember, that you want to present your case in the most accurate and coherent way that you can.
The oral evidence that you will give in the tribunal is very important. Before the tribunal, you should identify which activities (descriptors) apply to you (please see page 8 of our ESA Factsheet for a full list of the descriptors, by clicking here).
Identify the level of difficulties you have with these activities. Think about whether you can perform the tasks reliably, safely, repeatedly and at reasonable speed, and, if when carrying out these activities, whether you experience pain, tiredness, stiffness, breathlessness, dizziness, nausea and balance problems.
Make a note of the activities (descriptors) that you feel you satisfy and why. You can send this to the Tribunal Service before you attend the tribunal. Keep a copy of this for yourself so that you can refer to it during the tribunal hearing.
If possible, review the answers you made in your ESA 50 form. Try to make sure there aren’t any inconsistencies with your oral evidence, or be prepared to tell the tribunal why what you wrote in the ESA 50 form might not have properly represented your situation.
You should back up your oral evidence with medical evidence.
Ask your doctor, consultant, physiotherapist or other health care professional who knows about your condition to write you a supporting letter. However, please be aware this may not always be done for free.
It is important that your evidence does not just state what condition you have and the treatment you receive. It needs to adequately deal/make clear how your condition affects your ability to carry out your day-to-day activities.
Make a note of all the medication that you were taking at the time of your claim.
Appealing a Tribunal decision
You will get a decision notice on the day of the hearing or soon after. If the appeal is unsuccessful, you can ask for a ‘statement of reasons’ which will explain the Tribunal’s decision. You have one month from the date of the decision in which to do this.
If you disagree with the decision, you may be able to further appeal to an ‘Upper Tribunal’. However, you can only do this if the tribunal has made a legal error.
Please see the Appeals Factsheet for more information.