Found fit for work
Those who are found fit for work on review (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 ESA and stop receiving payments.
However, if they wish to challenge the decision then they should be able to get IR-ESA payments re-instated (at the 'assessment' rate).
Getting Income-Related ESA reinstated?
Some claimants can get payments of Income-Related ESA reinstated whilst they are challenging the decision if they:
- Are challenging a 'found fit' decision, and
- Are challenging a 'relevant decision', and
- Have not made a claim for Universal Credit.
“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, where the claimant has been found fit on review, the previous determination must have been that they did have a limited capability for work.
Not made a claim for Universal Credit
If they have made a claim for Universal Credit - even if they went on to withdraw that claim - their IR-ESA award will have been terminated and as there are no new claims for IR-ESA they will not be able to get back on IR-ESA whilst they await their appeal - they will have to stick with Universal credit.
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  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.
It is a good idea if the claimant writes on the appeal form that they wish to receive payments of ESA pending the appeal hearing. The claimant will need to send in sick (fit) notes until the appeal is heard.
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.
4. 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.
5. Make sure any Housing Benefit continues
If the claimant has been getting Housing Benefit, the Housing Benefit Office will be informed that entitlement to Income-Related ESA has ended and will therefore suspend Housing Benefit payments. The claimant should inform the Housing Benefit Office straight away that they are requesting payments of IR-ESA whilst they are awaiting the outcome of their appeal - so that the HB is not terminated.
How much will they get?
Once the appeal has been lodged and HMCTS have notified the ESA department that they have received the appeal, the ESA department will check whether ESA payments can be reinstated, If they can then the basic amount of ESA can then be paid to the claimant - Standard Letter ESA8. Arrears can also be paid to cover the whole period for which the claimant has been without any payments if they have been providing medical certificates.
The amount of ESA 'pending appeal' is the Personal Allowance plus (if applicable) the Enhanced Disability Premium / Severe Disability Premium / Carer Premium - but there is no Work Related Activity Group / Support Group component.
If they then go on to win their appeal, the claimant will be awarded the extra components and premiums to which they are entitled.
Wont it take a few weeks to get the IR-ESA re-instated?
An important point to remember is this: Their alternative would be making a claim for UC. If they did claim UC they would have to wait one month and seven days for their first payment anyway (although could get an Advance Payment), so lodging their appeal and getting ESA paid again can in many cases take less time.
The DWP have told my client that they can't get these payments because they can't make a new claim for IR-ESA?
First check that they are someone who can get their IR-ESA reinstated (see above). If they are then getting payments of ESA 'pending appeal' does not count as a new claim for ESA – it is merely putting the existing claim back into payment. (The Social Security Claims and Payments Regulations 1987 say a 'claim is not required for entitlement'). We are aware that the DWP are sometimes telling ESA claimants that they cannot have their payments of ESA reinstated and must claim UC instead. Where the ESA ended because the claimant was found fit for work (rather than being treated as fit for work) and they are not caught by the 'repeat fit for work decision' rules, then this advice would be incorrect. The ESA Regulations have not been amended, this is not a new claim for ESA and therefore this situation should not trigger a UC claim.
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  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.
What if the claimant loses their appeal?
If the claimant had requested payments of ESA while they were waiting for their appeal to be heard, then they lose their appeal, payments of ESA will end. The claimant will need to make a new claim for benefit - in most cases this would be Universal Credit.
If the claimant wishes to challenge the appeal tribunal's decision, they will need to get specialist advice about this.