Appeals & Tribunals Guide

General Appeals Information

You can appeal against a decision by completing a form contained within the leaflet GL24 which is normally sent out with the decision. In practice you can also appeal in writing to the address at the top of the letter. Be warned, unless you use the words “appeal” or “appealing” and make it totally clear that this letter is your appeal then it may get ignored. It will also get ignored if you forget to sign and date this appeal.

The time limit for an appeal is generally 14 days however if you appeal, they should still pay your ESA, however you will be required to submit doctors certificates stating that your GP considers you are unfit to work.

Your appeal will be looked at by a decision maker who can change the decision unless you are appealing a appeal decision in which case it will go to a Tribunal. Make sure you have collected as much evidence as you can to support your appeal. If your appeal goes against the medical report then you’re going to need more evidence, as it is very unlikely they will just take your word for anything, no matter how true it may be, without proof.

Important First Step

Your number one priority is to request copies of everything. Normally you will be supplied a decision letter maybe an ESA72 and when you have had a ATOS Work Capability Assessment you will be supplied decision summary (Possibly an ESA65).

You need to specifically ask for the Decision Makers (Often abbreviated to DM) notes, including handwritten notes in full (Possibly an LT54)
You need to specifically as for a full copy of your Medical Report (ESA85)

If you have not requested these prior to making a decision if you should appeal then make the request for these documents in writing. Explain you are currently within your 14 day allowance however you believe the clock should start when you receive full copies of all reports so you can make your appeal in knowledge of all the facts in your case. Also ask for this confirmation in writing. If you make this request over the telephone ask them to respond to your request in writing or confirm their response to your request in writing. If you do not you could send your appeal outside the standard 14 days and it could be rejected, at this point you would have no written evidence to show you asked for your 14 days to commence once you had full copies of these reports.

Deciding if you should appeal

You need decide if you should appeal based on the strengths and weaknesses of your case. You may feel there has been a simple error in which case return your leaflet GL24 pointing this out or send a written appeal.

The most common reasons for appeal are because you have had a decision that you do not have limited capability for work (Support Group) and you do not have limited capability for work related activity. Both these assessments should have been made within the law that surrounds them, you need to look at this law and decide if you should appeal. If you are not confident to do this yourself then you need to speak to the Citizens Advice Bureau, a solicitor or a charity that will help you with your appeal. You do not have to write your appeal yourself, someone can write it for you as long as you inform Jobcentre Plus who this person is and your reasons for needing help.

Do you have a “Limited Capability for Work Related Activity?” (Support Group)

The legislation this decision is based on is Regulation 30 of The Employment and Support Allowance Regulations 2013 which states:

“By reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant has limited capability for work-related activity and the limitation must be such that it is not reasonable to require that claimant to undertake such activity. A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

You now need to read the “descriptors” in The Employment and Support Allowance Regulations 2013 SCHEDULE 3 and decide if you meet any of these criteria.

If you believe you meet one of these “descriptors” and you believe you should be treated as having “limited capability for work related activity” then you can choose to appeal. I would then read the rest of Regulation 30 of The Employment and Support Allowance Regulations 2013 as it contains a little more detail of exactly how to apply the “descriptors” depending on your level of capability.

You should write your appeal along these lines: “I believe that I should be treated as having limited capability for work related activity as [Descriptor Number(s) and Name(s)] in Schedule 3 of Employment and Support Allowance Regulations 2013 apply to me and my condition. This is because I am not able to do [Descriptor] under the circumstances outlined in Regulation 30 of The Employment and Support Allowance Regulations 2013”

You then need to consider what evidence you can provide to help you prove this beyond just “your word.” These could be in the form of a statement from someone who knows you, a carer or Health Professional. It could be a medical report. If you have not supplied medical reports before now consider sending them in as they should at least be able to prove your diagnosis of Fibromyalgia even if they don’t go as far as say you are not capable of doing certain “descriptors”.

TIP: If you are seeing a consultant he will be writing a report to your GP to tell him about their findings and recommendations. Some friendly consultants are more than happy to discuss your benefit claim and you could take the opportunity to tell them what you feel you need to prove to assist an appeal and tell them you are in the process of collecting evidence to support this. They may be more than happy to include in their report the fact that you can not do certain “descriptors” to help you provide the evidence to the DWP. Do not forget every time you have an appointment with someone your GP has refereed you to, ask for a copy of the report to be sent to you at your home address. I have never been refused this request. Back copies of reports are available from your GP but they may charge

You should then decide if you believe you also have limited capability for work. You probably will have as this means you have less incapability so it is worth also including an appeal on these grounds as well to cover both eventualities. This is because if they decide you do not have limited capability for work related activity then they may not look at any other details unless you also claim you have limited capability for work. Therefore read the section on “Do you have limited capability for work?” and follow the appeal guide placing something like the following (after your appeal for limited for limited capability for work related activity and at the start of your appeal for limited capability for work: “If a decision is made that deems me capable of work related activity I respectfully ask for you to consider if I should be deemed as having limited capability for work for the following reasons:”

If you do not think you should be treated as having “limited capability for work related activity” then you need to look through the section “A further rule about Limited Capability for Work Related Activity?” to check if this applies to you, if not then you need to decide if you have “limited capability for work”.

Do you have a “Limited Capability for Work ?” (Work Related Activity Group / WRAG)

The legislation this decision is based on is Regulation 15 of The Employment and Support Allowance Regulations 2013 which states:

A claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part. The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”…. and “A claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against each descriptor listed in that Schedule which applies in the claimant’s case, the claimant obtains a total score of at least 15 points”

You now need to read the “descriptors” in The Employment and Support Allowance Regulations 2013 SCHEDULE 2 and decide if you meet any of these criteria and if you do does the score equal 15 or more?

If you believe you score more than 15 points and you believe you should be treated as having “limited capability for work related activity” then you can choose to appeal. I would then read the rest of Regulation 15 of The Employment and Support Allowance Regulations 2013 as it contains a little more detail of exactly how to apply the “descriptors” depending on your level of capability.

If you believe you do not have “Limited Capability for Work” or “Limited Capability for Work Related Activity” so far than you are unlikely to be eligible for Employment & Support Allowance. You need to check if you believe you would be entitled for Disability Living Allowance & Job Seekers Allowance.

If you do score 15 or more points then decide if you would like to appeal. If you do then you should write your appeal along these lines: “I believe that I should be treated as having limited capability for work as I believe [Descriptor Number(s) and Name(s) and Point(s)] in Schedule 2 of Employment and Support Allowance Regulations 2013 apply to me and my condition. This is because I am not able to do these things under the circumstances outlined in Regulation 15 of The Employment and Support Allowance Regulations 2013”

You then need to consider what evidence you can provide to help you prove this beyond just “your word.” These could be in the form of a statement from someone who knows you, a carer or Health Professional. It could be a medical report. If you have not supplied medical reports before now consider sending them in as they should at least be able to prove your diagnosis of Fibromyalgia even if they don’t go as far as say you are not capable of doing certain “descriptors”.

TIP: If you are seeing a consultant he will be writing a report to your GP to tell him about their findings and recommendations. Some friendly consultants are more than happy to discuss your benefit claim and you could take the opportunity to tell them what you feel you need to prove to assist an appeal and tell them you are in the process of collecting evidence to support this. They may be more than happy to include in their report the fact that you can not do certain “descriptors” to help you provide the evidence to the DWP. Do not forget every time you have an appointment with someone your GP has refereed you to, ask for a copy of the report to be sent to you at your home address. I have never been refused this request. Back copies of reports are available from your GP but they may charge

A further rule about Limited Capability for Work Related Activity

There is a further piece of legislation that I have used before to appeal against someone being deemed not to have Limited Capability for Work Related Activity. It is very rare that this will apply to your case and your Fibromyalgia must be quite severe for this to apply, however you need to be aware of this section so you can decide if this applies to you. The Employment and Support Allowance Regulations 2013 Regulation 31 (2) states:

A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

So first of all, in part (a), the claimant must suffer from some sort of specific disease or bodily or mental disablement. My interpretation of that legislation is that Fibromyalgia would fit that criteria as Fibromyalgia is a specific condition that can be diagnosed by an accepted criteria. Secondly in part (b) because of this disease or disablement there would be a substantial risk to your health either mentally or physically if you were not found to have limited capability for work related activity. So would there be a substantial risk to your health if you were not placed in the Support Group? This section does not supply a lot of information about what would be deemed as a substantial risk to your health so it is up to you to show there would be a substantial risk and the reasons for it.

Appeals & Tribunals based on this legislation are rare, they are far more likely to be appealing a decision makers decision, a Work Capability Assessment or the main rules under Regulation 15 & 30. Therefore information about how this has been interpreted in tribunals is rare. Like any law, court decisions show how rigidly (or not) certain legislation should be applied, I do not have this information about the Regulation 31 argument. Therefore only use this if you believe you can prove a substantial risk to your mental or physical health and also try and submit an argument about Regulation 15 & 30 if it should be found that 31 does not apply as you may need a “safety net” if this argument fails.

Evidence

Whenever you submit a claim you need evidence to support your claim. The DWP are unlikely to take you on your word and that is why they send you for a Work Capability Assessment with ATOS Healthcare as this creates “Evidence”. But there are other forms of evidence you can use. This could be a statement written for your benefit claim by somebody that knows you, your condition and what you are not capable of doing for yourself. You can also supply the names of any medical professional you have see since diagnosis including the person that made a diagnosis. If you have provided these details and your claim has been turned down for lack of evidence you can appeal because the DWP have not sought evidence from healthcare professionals whose details you have given them. You can also provide copies of your consultation reports sent to your GP from anyone he has referred you too (Remember to always request copies whenever you see a healthcare professional). You can also provide specific reports commissioned by you, you can approach your GP to write a report about your condition and your capabilities and you can even approach consultants you have been refereed to and commission a report. When you do this you pay the person to write a report based on you and the information you provide about your claim. If you do this it is essential for you to submit the very best information in order for them to tailor their report to the descriptors in Schedule 2 and Schedule 3 of The Employment and Support Allowance Regulations 2013 otherwise you could pay for a report that is useless to your claim. Also only pay for a private medical report if you have no other evidence to support your claim as it should only be a last resort as the provisions in the act mean there should be enough information for most people to have an informed decision made on their case. Depending on your condition and treatment you could provide repeat prescription lists to evidence your medication or copies of blood test results, X-Ray/CT/MRI imaging reports as when it comes to evidence it is better to have too much than too little.

If you are appealing because they have not taken evidence they have into account then point this out to them in your appeal and write something along the following lines: “In the previous decision dated 01/04/13 the Decision Maker MR JONES said I could walk 200 yards however this is not the case and it seems the decision was made in the belief this was correct. This is not the case and I would like to bring your attention to a piece of evidence I had submitted alongside my original claim/original appeal namely the “Letter to my GP from Consultant SMITH, Rheumatologist at London Hospital dated 01/04/12” that states “MRS MOUSE has not been able to walk more than 50 yards for the past five years since diagnosis because of severe pain””

Remember Evidence Starts at your ESA50 and evidence submitted for other benefits may be shared in consideration of your claim. Although I say they are not going to take you at your word it is best practice to make sure you give every detail possible for a person to understand your capabilities when you submit your ESA50. If you are struggling with it there are guides available and I believe you can also get help from Job Centre Plus to fill it in.

Appealing a Work Capability Assessment Result

Perhaps not surprisingly the Work Capability Assessment or WCA is often the subject of appeals and complaints. I have personally had some quite appalling intricacies and I have seen many in other peoples appeals. With constant reviews it is supposed to be getting better. However if you need to appeal the inaccuracies in your assessment there is nothing wrong with you doing this. If there are only a few issues with the report then common sense comes into play a little. When you have all the information you need to determine if any issues with the WCA have prejudiced your case and had it been more accurate could the outcome be different.

If you are answering yes it’s nearly always going to be worth your while appealing. Again look through the criteria for both limited capability for work related activity and limited capability for work in the legislation. I would then provide a commentary report and go through the WCA report line by line. Where possible refer to evidence to support your version of events. Do not be afraid to say in your appeal that you believe the report is misleading, some often are. Sometimes it can appear as if the report could not be about you, if you think there has been a mix up do not be afraid to say. Personally if the report is very misleading I would also submit a written complaint to ATOS healthcare and copy it to the DWP as ATOS operate under a contract with the DWP. You can also reference your complaint in your appeal. Also consider showing the report to a health professional that knows you if you have a good relationship, they could offer evidence to support your claim or even contest it in a letter or report.

Again get back to the legislation, know the descriptors and which ones are relevant to you and your condition. It is the law the decision is based on so if you can cast reasonable doubt on the evidence from ATOS then the law should be on your side.

Update: “The Mandatory Reconsideration Phone Call”

Once you have sent in your appeal you may receive a telephone call from the DWP. This may be part of the new “Mandatory Reconsideration” procedure that has been brought into welfare reform. According to our sources this is becoming more common, although it can be hit and miss depending on the area you live in. It is important to know what this phone call is about in case you get one.

It is basically a new step in the process when someone appeals for the first time. When the DWP get your paperwork a decision maker will review your case and the new evidence you send in. They will then make a decision as part of their review and call you by telephone to inform you of this decision. Crucially it is important to understand this phone call is not just to give you information, but is the only opportunity for you to ask for your appeal to continue to the next stage, called the mandatory reconsideration.

This can cause confusion as the telephone call often goes a little like this:

Decision Maker: “Hello Mrs Smith, I am Mrs Jones a Decision Maker from the DWP, I am ringing to tell you we have received your appeal and I have reviewed your case but do not find you are eligible for Employment & Support Allowance”
Claimant: “er, OK”
Decision Maker: “If you have no questions then I thank you for your time and hope you have a good day, bye”
Claimant: “Bye”

You then often find the Decision Maker enters the following notes on file “I have reviewed Mrs Smiths appeal to the recent ESA decision and find she is not eligible for ESA. As such I rang Mrs Smith to inform her of this and to give her the opportunity to pursue the appeal to mandatory reconsideration however she chose not to request this during the call. Therefore I have closed the appeal at this stage before a mandatory reconsideration. Mrs Jones”

Here we see how this phone call has taken the claimant by surprise and the claimant probably believes the call was to simply give pass information on to her. Unfortunately this phone call was not just to give information but also to give the claimant the opportunity to request a mandatory reconsideration. As the claimant did not realise this then the request was not made, as such the Decision Maker closed the Appeal before the mandatory reconsideration. This is very important as at this stage your appeal can be halted as the result of a verbal conversation that is not routinely recorded. This makes the claimant very vulnerable at this stage as the call often comes out of the blue and the claimant could have a condition, such as Fibromyalgia, that effects day to day cognitive function. Some decision makers do make the situation more clear to the claimant on the telephone but some do not.

My Advice: Whenever you receive a telephone call from the DWP to tell you that you are not entitled to what you believe you are, you must ask “What rights do I have to request a further appeal or consideration at this time?” Or “Can I ask for my claim to proceed to the next stage now over the telephone?” Hopefully these questions will help make the situation clearer to the claimant. I would also consider asking for a further call to give you time to consider your position and/or ask the DWP to send you a written summary of the telephone conversation, as you have difficulty understanding such matters over the telephone. It is also important to realise that you can give further evidence/information during the telephone call to be included in the mandatory consideration.

A Tribunal

If you have appealed against an appeal decision then your case will go to tribunal. You appeal in the same way and the Job Centre Plus Office will prepare a case and it will be heard by an independent appeal tribunal. It is important to note that they should still pay your ESA if you provide them with a certificate from your GP that states that you are considered unfit for work. The Jobcentre Plus must provide the tribunal with the evidence they have and why they believe you are not entitled to ESA. When the Tribunals Service receive this the will write to you to tell you that they are dealing with your case. They will also tell you which centre they propose to use for the hearing and this should be the one closest to where you live. They will ask for confirmation from you, that you wish to go ahead with your tribunal and you must reply to this within 14 days.

During this time you should receive a copy of the case file DWP have submitted. Go through this step by step to form your case, in the same way you would if this was an appeal. You have a further 14 days to submit your case in writing, with evidence. You should be kept informed as to how long it will take to hear your case. In practice there can be severe backlogs, however, they should inform you if this is the case. When a date and time is set you will be informed and you will be invited to attend. It is advisable to attend if at all possible, as more decisions are made in favour of the claimant when they attend. It is important to tell them if you will not be attending and the reasons why. If the decision to not award you with ESA is wrong, then the tribunal can overturn it, but they cannot change the law that the decision is based on, pay more money than the law allows, or check or change your contribution record.

Do not worry about your Tribunal, in reality it is very similar to an appeal. In real terms I have found Tribunals to be understanding and they pay attention to your case far more than I have found with DWP decision makes and ATOS Healthcare, but there are always exceptions to this. If you can try to get yourself representation but if you are confident in your case and have read the legislation there is no reason why you can not represent yourself in a tribunal. Often you will find a DWP decision maker did not allow your last appeal because no evidence contradicted the original decision, this is not always true, if they have ignored the points of your appeal then bring this to the attention of the tribunal and show them your evidence. Take all your paperwork with you and organise it well. Whenever you make claims in a tribunal you should back it up with written evidence which you should have submitted already.

Make sure you know the differences between the “Support Group” and “Work Related Activity Group”, “Limited Capability for Work Related Activity” and “Limited Capability for Work” these will come up in your tribunal and you need to be sure about the group you believe you should be in, what legislation defines which group you will be placed in and be able to prove you meet the criteria. If you do not understand something do not be afraid to say, if you do not know something don’t be embarrassed. The tribunals are set up in a way that they can be accessible without needing a law degree.

You can fight your tribunal without attending. Sometimes when your condition is severe and you can not make it then it is better to either be represented or send your case in for a non attendance hearing. Going in there all confident and bouncy does not help demonstrate your lack of capability for work or work related activity. I would only suggest not attending if you either are not well enough to do so, or you are confident in your case and know for sure you can expect a good hearing in your absence. Due to both of these reasons I have not been to a Tribunal myself, but have won them and have written cases for people who have gone on to win both attending and not attending. It is possible but only you know the circumstances of your case.

Controversy surrounding the Work Capability Assessment & ATOS Healthcare

This is here for background reading and should not form part of your appeal

There is a huge amount of controversy surrounding benefit reform and ESA and for good reason. The whole process takes a long time to complete and there are huge amounts of appeals and tribunals because of decisions that are not correct. This then puts more strain on the system and takes it even longer. For example The Right Honourable Chris Grayling MP Minister for Employment told The House of Commons on 12th March 2012 that between November 2010 and March 2011 the Jobcentre Plus recorded 1,854 complaints, relating to ESA and between the periods of April 2007 and 7th March 2012 1,322 complaints, relating to ESA were recorded.

These reforms have been brought into place by the Labour Government and have carried on under the Coalition Government. At the end of the day the new system is designed to make it harder for people who fake conditions, or who are workshy, to get benefits. However in practice people with real conditions and real problems have to go through exactly the same process. Unfortunately the legislators do not seem to realise that if people lie, they don’t just lie to the job centre, if they want this money they will lie to doctors and consultants and use conditions that have no firm diagnostic test to do so. Which condition are we familiar with that has no firm diagnostic test? You guessed it, “Fibromyalgia!” They don’t seem to realise that those who lie will be able to generate the same, if not more evidence, to support their claim, than the people who genuinely need this benefit.

The most controversial part of the process is the Work Capability Assessment (WCA) which many believe is not fit for purpose. The Citizens Advice Bureau some it up quite well, in a report entitled “Not working” CAB evidence on the ESA work capability assessment. This report is endorsed by some of the most well know charities and organisations for disabled people. Unfortunately the WCA does not effectively measure fitness for work and the critereas for ESA are not all encompassing of the reasons some people with Fibromyalgia and other conditions can not work. If you want to read up on the ATOS Training manual for performing the WCA then you can view it here.

It has taken me two and a half years to claim ESA and I am still not in the correct group for the severity of my medical problems. I spend most of my life in bed and simply could not function without the help and support of my family. This website would simply not exist, if it wasn’t for Steve Jobs and his iPad, as I am not well enough to sit and type into a laptop all the time, anymore. I am swamped by my claims for ESA & DLA, so much so, that I have to spend any good days I have dealing with the latest letter, mistake or unlawful decision. It’s just not right.

The variable nature of Fibromyalgia is totally incompatible with this system as well. It seems to only be able to cater for those who have a statically defined medical condition and not a variable one. It seems that if you can pick up something from a desk once, during a WCA, then the government believe that you’re fit to pick things up from desks for 40 hours a week every week of the year and this is simply not the case. We all know that there are investigation teams that go around video taping claimants walking into a shop. I spent about six months being unable to walk into a shop, so imagine my fury if I had been taped going into a shop for the first time in six months.

Under these welfare reforms disabled people have to hide away, they are in fear of leaving the house on a good day in case they are seen outside and get taken to court for fraud. People with Fibromyalgia need to manage their condition, doing what they can when they can and not doing it when they can not. Unfortunately this lifestyle is totally incomparable with these welfare reforms and they are ruining many lives, of people with unfortunate conditions, like fibromyalgia. I am yet to come across anyone who ‘asked for fibromyalgia’.

Disclaimer

This page does not constitute legal advice. This page is based on my experiences and those of people I have helped with Employment & Support Allowance claims. It is nothing more than friendly advice and I have no legal qualifications at all. You must make the decisions about your case and ensure you receive advice from more than one source. This page and any page to do with legal matters contains my interpretation of legislation, this may not be correct, the most important interpretation of the law takes place in the courts, only they can decide exactly how legislation is interpreted and this forms stated cases and case law. I do not market this as an “everything you need to know” guide. This page has been written for people with Fibromylagia, ME/CFS in mind and other aspects of the law may be more applicable to other medical conditions.