08.10.18

Many readers of this blog will either receive benefits or be a carer for someone who receives benefits. The most common benefits for people with disabilities are Employment and Support Allowance (ESA) and Personal Independence Payment (PIP).

Some more recent claimants may even have claimed Universal Credit (UC) instead of ESA – as UC is gradually taking its place for many claimants. If you want to know more about UC, then have a look at our previous blog on Universal Credit.

To claim any of these benefits, the claimant needs to complete a very lengthy claim form and then (probably) attend a medical with a Health Care Professional. These medicals can be stressful, and the Health Care Professional may not even be an expert in the medical condition of the claimant.

Using the information contained within the benefit claim form (and any supporting evidence), and the medical report from the Health Care Professional, a Department for Work and Pensions (DWP) decision maker will then decide whether the benefit is payable or not, and at what rate. The DWP decision maker is highly unlikely to be medically trained either.

However, these decisions can have a far-reaching impact, both in the weekly level of income for a disabled person, and the other ‘benefits’ that can be accessed as a result of someone receiving either ESA or PIP.

What is the success rate for new ESA / PIP claims?

The rate for successful new ESA claims is only about 62%, which means that 38% of claims are refused and the claimant is found fit for work (according to April 2018 figures from the DWP).

The success rate for new PIP claims is 45% (and 72% for those being reassessed from DLA).

This level of refusal means there are many unhappy claimants. So, what can you do if this happens to you? Once the decision has been made, the only way of changing it is by challenging it through the official appeals process. 

In what situations might you want to appeal?

The following examples may apply to you:

• You have been awarded PIP at a lower level than you expected (or none at all).
• You have been refused ESA and have been told to look for work instead.
• You claimed ESA and have been placed in the work-related activity group of ESA (which means you have to undertake work preparation tasks). You hoped to be placed in the support group of ESA (which means no work preparation tasks are required).
• You claimed Universal Credit because you believed you are too unwell to look for work, and you have been advised to look for work instead.
• You claimed UC as someone too unwell to work, and you have been told you have Limited Capability for Work only. This means that, despite not having to look for work, you still have to go to the jobcentre to meet your work coach and undertake some work preparation tasks. You hoped to satisfy the test for having Limited Capability for Work Related Activity which would mean that you would not have to do any of these.

What does the appeal process look like?

The first stage of the appeals process – Mandatory Reconsideration:

The claimant can ask for a Mandatory Reconsideration (MR). This has to be requested within one month of the decision being challenged. Late requests can be accepted where there are good reasons for lateness.

There is a standard form to complete to request an MR. On the form, the claimant needs to explain what they believe is wrong with the original decision and how they would like it changed. It is also crucial to attach more evidence  to support the claim, as clearly what was submitted originally was not sufficient for the claim to be successful.

The MR request is sent to the PIP office, and a different DWP decision maker will look at the claim and decide whether the decision can be changed. Once the decision is made, the claimant is sent two copies of the decision, known as a Mandatory Reconsideration notice.

What chances of success are there at Mandatory Reconsideration stage?

Sadly, the success rate at Mandatory Reconsideration stage for ESA is 12% and for PIP is 14%.  This is why many people have to carry on to the second stage of the appeal process.

The second stage of the appeals process – Appeal to a First Tier Tribunal

If, at Mandatory Reconsideration, the DWP has not changed their decision, or it has – but you still disagree with it, you need to decide whether to appeal to a First Tier Tribunal.

This Tribunal comprises an independent oral hearing. It is made up of a Chair (a qualified lawyer) and a doctor. For the PIP tribunal, there is also a lay person who has knowledge of disability. It is strongly advised that the claimant attends the Hearing. It is easier for the Tribunal to decide in your favour if they can meet you and talk to you about your needs.

The appeal is lodged by completing form SSCS1 (sent to claimants with their MR Notice). This form has to be completed detailing the reasons for the appeal and should be submitted within one calendar month of the MR notice date. Late appeals can be allowed if there are good reasons. Once the appeal form is completed, it must be sent to the Courts and Tribunal Service together with a copy of the Mandatory Reconsideration Notice (to prove that the first appeal stage has been gone through and what the result was).

In East Sussex, a pilot scheme is currently underway to allow people to make a PIP appeal online, and then monitor its progress online.

Appealing to an Appeal Tribunal can be time consuming (there is lots of paperwork to read and reply to) and can be emotionally draining. Although most Tribunals are run in a sensitive way, the experience of being questioned in great detail about everyday life can be distressing. Claimants are best advised to take someone with them for moral support and get professional help with preparing their appeal and try to access representation where possible.

The success rate at ESA and PIP appeal stage is 71%, which does (arguably) bring into question the quality of the original decision making prior to the appeal.

Where can you find more information

You can find general information about challenging benefit decisions on the Citizens Advice website:

httpss://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/challenging-a-benefit-decision/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013/

What help can we provide?

Jayne Knights and Amy Swinnerton are very experienced at helping clients make claims for ESA and PIP. They can also prepare applications for the Mandatory Reconsideration stage – with the right preparation it may be possible to avoid the need for any Tribunal hearing. They are also experienced advocates and can assist you in preparing for and support you at appeal tribunal hearings.

If you would like to discuss any help or support you need at either of these appeal stages, email the team.