Housing Systems: Combating poverty and sustaining tenancies.

New-Style ESA: Income - If found fit
Found fit for work

Those who are found fit for work (ie the decision maker has decided that they failed to score sufficient points or meet any of the exceptional circumstances / substantial risk criteria in the Work Capability Assessment) will lose their entitlement to New-Style ESA and stop receiving payments.

Working out the possible options open to the claimant at this point can be quite complicated! Our ESA Found Fit options if challenging flowchart might help!

Getting New-Style ESA reinstated?

Some claimants can get payments of New-Style ESA reinstated whilst they are challenging the decision - those who are challenging a 'relevant decision'.

“relevant decision” means–

(a) a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work; or

(b) a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work since a previous determination by the Secretary of State or appellate authority that the claimant does have limited capability for work.

So, if the decision being appealed is the second of two, consecutive 'fit for work' decisions, it is not a 'relevant decision' and ESA cannot be paid pending appeal. 

When will it be re-instated?

And an important High Court decision in July 2020 - Connor, R (On the Application Of) v The Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin)means that claimants no longer have to wait until after the Mandatory Reconsideration process to get these.

Before October 2013 someone* whose ESA had stopped could lodge an appeal straight away and their ESA would continue (at the ‘pending appeal’ rate) until the outcome was known. But the rules changed in 2013, and claimants had to go through a Mandatory Reconsideration process before they could take the issue to appeal, and during this period no ESA is payable at all.

In this High Court decision, the judge ruled that – for these claimants - the requirement that they must go through the Mandatory Reconsideration process with no ESA payments before their appeal can be lodged is unlawful. 

This means that claimants in these particular circumstances should:

1. Check that they meet the conditions to be paid ESA pending appeal (see above).

2. Lodge an appeal immediately (if they wish to challenge the fit for work decision).

Since the High Court has ruled that the requirement to go through the Mandatory Reconsideration process before an appeal can be lodged is unlawful for this group of claimants, these claimants can now do this straight away.

3. Lodge a Mandatory Reconsideration request

For a ‘belt and braces’ approach, it would also be worth lodging a Mandatory Reconsideration request. The DWP might revise the original decision in the claimant’s favour without the need to go to appeal – so it is worth pursuing this option at the same time as lodging the appeal, because the MR decision should take place quicker than an appeal hearing.

The claimant should ensure that they continue to send in fit (sick) notes to the ESA dept - to ensure that ESA payments can be reinstated from when they stopped to the date of the appeal. 

Won’t HMRC just refuse the Appeal if the claimant hasn’t had a Mandatory Reconsideration?

Perhaps. But to try and avoid this we suggest that these claimants should complete a downloaded and printed SSCS1 form and post it to HM Courts & Tribunals Service – rather than appealing online.

They should include wording such the following: 

As per the High Court’s decision in Connor, R (On the Application Of) v The Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin), I believe that I can lawfully lodge an appeal against the decision that I have been found not to have a limited capability for work, even though I have not had a mandatory reconsideration decision. 

Please ensure that the DWP reinstate payments of ESA to me immediately, pending my appeal. 

For your information, I am lodging a mandatory reconsideration request at the same time, in case the DWP are able to quickly change the decision in my favour. However, as there is now no lawful requirement for the mandatory reconsideration process to take place before an appeal can be lodged, I am lodging my appeal now, so that payments of ESA can be reinstated as soon as possible.

Note that they can add a note to the SSCS1 form to inform HMCTS that they will be sending further medical evidence in support of their appeal at a later date (they might seek specialist advice or need a representative to help them). They should not delay lodging the appeal simply because they need more time to put their case together.

Note that HMCTS will notify the ESA Dept that they have received the appeal. The ESA dept should then start to pay ESA again, pending the appeal hearing. 

The DWP will most likely be asked by HMCTS to provide a submission, which should prompt them to look again at their decision anyway.

I have a claimant who was appealing their ESA decision but their GP refused to give them a 'fit note' - is this right?

There could be a possible issue in getting a GP to provide fit notes - as the DWP has been sending letters to GPs when someone is found fit for work, to notify them that there is no need to provide further fit notes! However, following complaints about this letter, it has been updated in July 2019, to include that fit notes can be provided if the patient asks the GP for evidence for a reconsideration or appeal against the decision. A copy of the letter (ESA65B) is in the appendix of this guide to GPs. Also, the Information Commissioner's Office has written to the DWP about the incompatibility of these letters under GDPR - because the claimant as not actively given their consent for information about the benefit decision to be shared with their GP - see here. The DWP will be changing the declaration on ESA1 & ESA50 forms as a result - see here.


Already on Universal Credit?

They need to inform the DWP that their New-Style ESA has ended. Their UC award will be re-assessed. One or more of the following: 

  • Loss of the LCWRA Element from the beginning of the Monthly Assessment Period in which their ESA ended if they had been in the Limited Capability for Work and Work Related Activity Group.
  • Loss of the Childcare Element from the beginning of the Monthly Assessment Period in which their ESA ended if it is their partner that works
  • Loss of the work allowance from the beginning of the Monthly Assessment Period in which their ESA ended (unless they have children and can retain entitlement)
  • Removal of New-Style ESA as income - an amount equal to the daily rate x the number of days in which it was in payment will be taken as unearned in for the Monthly Assessment Period in which their ESA ended - click here for more information.

Already on Housing Benefit and/or Child Tax Credit

Any Housing Benefit and/or Child Tax Credit can continue but if they cannot get their New-Style ESA reinstated because they are caught by the 'repeat fit for work decision' rule, the claimant will not be able to receive ESA whilst they are challenging the decision. 

Depending on their financial situation they may need to claim Universal Credit (even if they are challenging the fit for work decision). If they do claim UC then their existing HB and CTC awards will be brought to an end.

Note: Some large families who are affected by the Benefit Cap who are getting Housing Benefit and Child Tax Credit may be better off if they retain their HB and CTC and do not claim UC.


Need to claim Universal Credit?

If the fact that no New-Style ESA is in payment means they will struggle financially then they should look into claiming Universal Credit.

Unless they can persuade the ESA dept to quickly change the decision via Mandatory Reconsideration (eg if they are able to provide new, compelling evidence), it could take many weeks or months before a decision is made.  

They can (and should) still challenge the ESA decision. If successful, their LCW or LCWRA status would transfer over to their UC award (retrospectively - ie from the start of the UC award).