How to win a ESA Appeal
Heads up! DWP is increasingly challenging people's application for a Tribunal appeal because the application doesn't include details of why they think the DWP decision is wrong. They are quoting Rule 22 (3) of the Tribunal Procedure Rules 2008.
Technically, DWP are right, but HMCTS have usually ignored their protests because they feel that unrepresented ordinary people should be given the benefit of the doubt. But this attitude might not last or DWP may start being more insistent.
People applying for a Tribunal appeal should therefore not just say 'I disagree with the decision' but also say why you disagree. Reasons that could be quoted are that the assessor was wrong or that your medical conditions have not been properly understood.
You don't have to give a full point by point answer to everything the DWP or the assessor has said on your appeal form unless you want to. If you want to do this, you can do it in a separate letter as well. But you don't need a detailed point by point answer for your appeal form to be valid. But do give a reason why you think the DWP were wrong. Then they can't ask HMCTS to reject your appeal on a technicality.
This information is brought to you by BuDS Benefit Information Project. It is general information only and you should take advice about your specific case.
If you made a claim for Personal Independence Payment (PIP) and you didn't get the award that you think you were entitled to, you don't have to give up. This guide will help you decide if you should challenge the decision. It, and the accompanying tool, will help you ask the DWP to look at their decision again. This is called a 'mandatory reconsideration’. If they don’t change the decision straight away, this guide shows you how to appeal the decision and win. (You must ask for a reconsideration before you can appeal). This guide is for everybody who thinks the DWP made the wrong decision about their application for PIP.
This guide is for you if you think the Department for Work and Pensions (DWP) has made the wrong decision about your claim for Personal Independence Payment (PIP), or the claim of someone you help. Reading this guide and following the advice will help you get what you are entitled to. If you made a claim for PIP and you didn’t get the award that you think you were entitled to, you don’t have to give up. Instead you can challenge the decision by asking the DWP to look at their decision again. This is called a ‘mandatory reconsideration’. We have made a handy tool to help you with this. If they don’t change the decision straight away, you can then appeal their decision. (You must ask for a reconsideration before you can appeal). An appeal is when three experts who do not work for the DWP will look at your claim to see if the right decision was made. Appeals can be a little bit stressful and take much longer, but they are much more likely to be successful. This guide will help you. Or, if your illness or disability has got worse since the date of your application and you were refused benefit altogether, you could make a new claim. If you were given some benefit but not as much as you think you should get, you need to ask for your benefit to be reassessed (the proper name for this is a supersession). Unfortunately, it’s hard to get advice or representation to sort out the problem. We will explain where you might be able to get advice on page 7. But most people have to do most or all of the work themselves or with the help of their family and friends. We have made this guide easy to use to help you, and we have created a tool to help you write a really good letter. This guide will take you step-by-step through the whole process. We will show you what to do at each stage, how to stop it from getting too stressful, and how to give yourself the best chance of getting a good result. This guide looks long, but don’t be put off – you will only need to read a few pages at each stage. We have colour-coded the sections, so you know where you are and what you have to do next.
Whether or not you are entitled to PIP is based on how your illness affects you and what help you need with very specific things. When you are thinking about your claim and whether or not you want to appeal, you have to look at what the criteria actually are (as set out in the law) – not what would be fair, or what they used to be. Personal Independence Payments are worked out using a points system. For example, if you need help from another person to wash your hair, you get 2 points, if you need help to get into the shower or bath you get 3 points, etc. You only score one set of points from each activity (for example, washing), so you just use the one that gives you the most points. You need 8 points to get the standard rate of the care component, or 12 points for the enhanced rate. Similarly you need 8 points for the standard rate of the mobility component and 12 points for the enhanced rate.
It is now much harder to find advice and help with your benefits than it used to be. You should expect that you will have to do most of the work yourself (or with help from your friends or carers – don’t worry, this guide will show you what to do, and how to do it). But if you can get a bit of advice to help you work out what rate you should be getting and if you should ask for a mandatory reconsideration, it will be really helpful. That said, if you do find someone who offers to help you ask for a mandatory reconsideration, complete your appeal form, write a ‘submission’ for you (this is a letter to the appeal panel that explains why you are entitled), or even come with you on the day, take it! Start by looking to see if there is a Citizen’s Advice Bureau that helps with benefits problems near you. Many now offer advice over the telephone. www.citizensadvice.org.uk/about-us/
You can see if there is an independent advice agency in your area on Advice UK’s site www.adviceuk.org.uk/finda-member Shelter also has a search facility on their website of local advice services. Use the tabs along the top of the results to see the different kinds of advice services. Only some agencies will provide advice on benefits so check the areas of law covered by each agency. http:// england.shelter.org.uk/get_advice/ advice_services_directory
Check if your local council has a welfare rights service. In some cases they will be able to represent you. If you didn’t find their details in Shelter’s search, phone the council and ask for ‘welfare rights’, check their website, or ask in your local library. Check if there is a Law Centre near you www.lawcentres.org.uk/about-lawcent... There are sometimes services that you can access through your GP, social worker, or community centre. There’s no harm in asking – so call your GP, and your social worker or community centre if you have one, and ask if there is a service for you. Some charities provide advice services for particular groups – for example, MS society provides a legal advice over the phone from the Disability Law Service (www.dls.org.uk/Pages/MS-Officer. aspx). Similarly, RNIB have a helpline for Blind and partially sighted people. www.rnib.org.uk/services-we-offerad... Check if there is a charity that provides benefits advice to people with your illness or disability. If they provide information on their website about appealing or claiming PIP it may also be very useful as it will usually show how people with similar symptoms to yours have proved their entitlement.
The Process STEP 1
You get a letter telling you the result of your claim for PIP. You have been told that you are not entitled to anything or you think you have been given the wrong amount. You have one month from the date on the letter to ask for a ‘mandatory reconsideration’. This is where they look at the decision again. (If one month has already passed, see ‘What if I’ve missed the deadline?’ page 10.)
Ask for the DWP to look again at their decision. This is called a Mandatory Reconsideration. Use our PIP Mandatory Reconsideration Request tool www.advicenow.org.uk/quiz to write a really good letter to the DWP. The DWP will look at your claim form again, the face-to-face assessment report, and any other evidence they have, to see if they will change the decision. (Template letter for this part in separate file)
The DWP will send you two copies of their reconsideration decision. You will need the second copy if you wish to appeal. If their decision has been changed and you are happy with it, you can stop here. But if it hasn’t, don’t be put off. You have 1 month to ask for an appeal. (If one month has already passed, see ‘What if I’ve missed the deadline?’ on page 10).
Use the SSCS1 form and the letter generated by our Mandatory Reconsideration Tool to ask for an appeal. See pages 11–13 for our advice.
The PIP office will send both you and the HMCTS an explanation of why they gave you the award that they did. Don’t be put off by the size of it.
You need to prepare for your appeal and, if you can, send in more information about your difficulties. See pages 14–17 for details.
You will be told the date of the hearing. If you have any further information about your difficulties that you haven’t yet sent, send it now.
Your appeal will be heard by an independent panel, called a Social Security and Child Support Tribunal. They will make a new decision. See pages 18–23 for details of what will happen and advice about what to do on the day. If you were successful, you will usually receive your money in 4–6 weeks.
HOW TO REQUEST AN APPEAL..
You need to use the form SSCS1 to ask for an appeal. You can download the form from the HMCTS website; https://hmctsformfinder.justice.gov.uk/... APPEAL FORM
You must include a copy of the mandatory reconsideration decision with your appeal. You need to tick the box to confirm that you are including it in Section 1 of the form.
In Section 2, give your name, contact details, date of birth and National Insurance number and include the date of the decision you are appealing (this is the date on the letter they sent you).
If you are informally helping the claimant with their appeal, you put their details in this section, but if you have been appointed to formally look after their benefits you put your name here and their details in Section 3. If you do have an adviser who can help and represent you, put their details in Section 4. (If you haven’t, don’t worry. The most important thing is that you go to the hearing. Nobody knows more about how your illness or disability affects you than you do.)
How to ask for an appeal Page 1 Social Security and Child Support Notice of appeal against a decision of the Department for Work and Pensions You should use this form to appeal against a decision made by the Department for Work and Pensions (DWP) about social security benefits. For decisions regarding child support or child maintenance, you should use form SSCS2. For appeals regarding recovery of compensation you should use form SSCS3. If you need this form in an alternative format, please see the note on page 6 of this form. Further guidance to help you fill in this form is available in booklet SSCS1A 'How to appeal against a decision made by the Department for Work and Pensions'. You can download the booklet or find out where it can be obtained from by visiting the justice website www.justice.gov.uk
About this form.
This form helps you provide all the information the tribunal requires to register your appeal. It will also ensure that your appeal contains all the necessary details which the law requires. How to fill in this form Please use black ink to fill in this form and use BLOCK CAPITALS unless the form tells you not to. You must complete Sections 1, 2, 5, 6 and 8 If you want to attend a hearing, you must also complete Section 7
If you are appealing on behalf of someone who a court or DWP has appointed you to act for, you must also complete Section 3 If you have a representative, you must also complete Section 4 What to include with this form You must include a copy of the mandatory reconsideration notice which shows the decision you are appealing against. You do not need to include evidence/information you have already sent to DWP as they will send it to us as part of their response.
Section 1 ABOUT THE DECISION YOU ARE APPEALING AGAINST
Does your mandatory reconsideration notice tell you that you have the right to appeal against the decision? If No, please ensure you have read the section ‘Can I Appeal?’ in the booklet SSCS1A ‘How to appeal against a decision made by the Department for Work and Pensions’ before continuing with this form. Please tick this box to confirm that you have attached a copy of the mandatory reconsideration notice with your appeal form.
Now go to Section 2 Yes No SSCS1 - Notice of appeal against a decision of the Department for Work and Pensions (09.13) © Crown copyright 2013 SSCS1
This section is about your mandatory reconsideration notice.
This is the letter sent to you by DWP explaining that they have looked at your decision again. Remember to include a copy of your mandatory reconsideration notice with your appeal form. If you do not do so, we will be unable to register your appeal until this is provided. Please write here the name of the benefit you are appealing about. The name of the benefit will be shown on the letter giving you the decision.
Page 2 Section 2 ABOUT YOU
Mr Mrs Miss Ms Other (please specify) First name(s) Surname
Now go to Section 3
Address Postcode Daytime phone number Mobile phone number
National Insurance number* letters numbers letter
Date of birth (DD/MM/YYYY) / / * If you are appealing on behalf of a child or other person and you have provided their National Insurance number in Section 3, you do not need to provide your own National Insurance number.
Section 3 ABOUT A CHILD OR OTHER PERSON YOU ARE APPEALING FOR
First name(s) Surname Address (if the person’s address is different from your own) Postcode Are you appealing on behalf of a child or other person whose affairs you have been appointed to take care of? Yes If Yes, please tell us about the person below
If No, please go to Section 4
Now go to Section 4 Fill in this section if the decision you are appealing against is about your benefit or the benefit of a person you have been appointed by DWP or a court to take care of. If you are appointed by DWP or a court to take charge of another person’s benefit, you should also record their details in Section 3.
This section is for people who are making an appeal on behalf of someone they have a legal responsibility for. This might be a parent acting for a child or a person who has been appointed by DWP or a court to look after the affairs of another adult.
Mr Mrs Miss Ms Other (please specify)
National Insurance number letters numbers letter
Date of birth (DD/MM/YYYY) / /
Page 2 Section 2
ABOUT YOU Mr Mrs Miss Ms Other (please specify) First name(s) Surname
Now go to Section 3
Daytime phone number
Mobile phone number
National Insurance number* letters numbers letter
Date of birth (DD/MM/YYYY) / /
* If you are appealing on behalf of a child or other person and you have provided their National Insurance number in Section 3, you do not need to provide your own National Insurance number.
Section 3 ABOUT A CHILD OR OTHER PERSON YOU ARE APPEALING FOR
First name(s) Surname Address (if the person’s address is different from your own) Postcode Are you appealing on behalf of a child or other person whose affairs you have been appointed to take care of?
If Yes, please tell us about the person below
If No, please go to Section 4
Fill in this section if the decision you are appealing against is about your benefit or the benefit of a person you have been appointed by DWP or a court to take care of. If you are appointed by DWP or a court to take charge of another person’s benefit, you should also record their details in Section 3. This section is for people who are making an appeal on behalf of someone they have a legal responsibility for. This might be a parent acting for a child or a person who has been appointed by DWP or a court to look after the affairs of another adult. Mr Mrs Miss Ms Other (please specify) National Insurance number letters numbers letter Date of birth (DD/MM/YYYY) / /
Page 3 Section 4
ABOUT YOUR REPRESENTATIVE (If you have one) Do you have a representative? Yes If Yes, please tell us about the person below
No If No, please go to Section 5 First name Surname Name of organisation or of person representing Address Postcode Now go to Section 5 Phone number If you are being represented by an organisation and you know the name of the person acting on your behalf, please tell us below This section is about your representative (if you have one). By representative we mean someone acting on your behalf in a formal capacity. This might be an organisation like the Citizens Advice Bureau or a welfare rights service or it may be a friend or advisor who knows about social security matters. If you name a representative here and give your signature at Section 8, this will authorise us to deal with your representative about your appeal. If you are unsure about this, please read the section ‘About Your Representative’ in the guidance booklet SSCS1A
In Section 5 you have to explain why their decision is wrong. You need to give them as much detail as you can. It might be easiest to use the letter created by our Mandatory Reconsideration Request Tool www.advicenow.org.uk/pip-tool. If you have already used it and had the letter sent to your email, go to the email and copy and paste it on to a fresh document.
If you haven’t, you might find it helpful to do that now. •Remove the phrase Mandatory Reconsideration Request at the top and replace it with ‘Grounds for appeal’. • Read it through, and add in anything you can think of that is missing. •Print it out and send it with the form. On the form just write ‘See attached’. You also need to confirm if your appeal is within the time limit or not. If it isn’t, explain why the delay was unavoidable or a result of your disability (for example, if you were unable to deal with it until now because you need help to deal with your post or you were particularly unwell).
In Section 6
You have to choose whether you want to attend a hearing or whether you want the case to be decided on the papers alone. Almost everybody wants to choose the paper hearing – because it seems less scary. However, you are much more likely to win if you go and speak to them face-to-face. It gives them a chance to meet you and see and hear for themselves how your disability affects you, and gives them the chance to ask questions. Don’t worry, the hearing won’t be nearly as frightening as you might think.
Section 7 asks about your needs for the hearing.
First it asks if there are any times in the next 6 months that you won’t be available to go to the hearing. It’s probably best to keep this simple – only tell them about times when you know you will be away or in hospital or recovering from something. It is probably best not to ask them to avoid dates that you can re-schedule easily.
Page 4 Section 5 ABOUT YOUR APPEAL Grounds for appeal In this section we need to know why you are appealing. Please write down in your own words the reasons why you disagree with DWP’s decision. You do not have to use BLOCK CAPITALS in this section if your handwriting is clear. If you do not complete this section this will delay dealing with your appeal and the appeal form may be returned to you. For more information on grounds for appeal please refer to the ‘About Your Appeal’ section of the guidance booklet SSCS1A. Is your appeal in time? According to the law, your appeal must be received by the tribunal no later than one calendar month after the date the mandatory reconsideration notice was sent to you.
If your appeal is received after this date, it is a late appeal and the tribunal will need to know why it is late. Is your appeal late? If Yes, you must give reasons below why your appeal is late If No, please go to Section 6 If your appeal is late, you must give an explanation why. The tribunal will consider your reasons and can extend the time limit for you. If you do not give reasons why your appeal is late your appeal form may be sent back to you. Please tell us below why your appeal is late. You do not need to use BLOCK CAPITALS.
Now go to Section 6 (if necessary, continue on a separate sheet) The Department for Work and Pensions has the right to object to a late appeal. The tribunal will consider any objection they make and we will let you know the outcome.
Page 5 Section 6 ABOUT YOUR CHOICE OF HEARING
I want to attend a hearing of my appeal If you have ticked this box, please go to Section 7
I want my appeal decided on the papers If you have ticked this box, please go to Section 8 Section 7 THE HEARING — YOUR NEEDS AND REQUIREMENTS
You only need to answer these questions if you told us in Section 6 that you wanted to attend a hearing. If you have asked for your appeal to be decided on the papers, please skip this section and go straight to Section 8. In this section we need to ask you a number of questions to help us arrange a suitable hearing for you. We will try to accommodate your needs and availability, but it may not always be possible to do this. Please answer questions 1 to 4 to give us the information we require. If you do not answer some of the questions we will have to contact you again and this may delay your appeal. You do not have to answer these questions using BLOCK CAPITALS.
Question 1 – Your availability Tribunal hearings are held Monday to Friday from 10am to 5pm and in our larger hearing centres also on Saturday. To allow you to attend your hearing, we will try to arrange a time and date in line with your availability. It is important that you tell us here if there are any days of the week or times of the day when you cannot attend a tribunal or any dates to Avoid.
Question 2 Asks about your needs for the hearing. This might include hearing loops, any special transport to get you there, or if you need the building to be accessible in a wheelchair.
Question 3 Asks if you need a signer or interpreter at the hearing. If you can sometimes cope, but sometimes need help, ask for help. It is very important that you can say everything you want to say, and can understand everything that is said, at the hearing. Tell them what type of support you need.
Question 4 Asks if you are you willing to be given a date for the hearing at short notice. You should get at least 14 days notice of the hearing, unless you agree to accept less. It is up to you whether you do this. If you say that you do not need 14 days notice, make sure you get all the evidence you need ASAP. Make sure you sign and date the form in Section 8.
Send the form to HM Courts and Tribunals Service (the address is on the last page of the form). If you can, keep a photocopy.
The HMCTS will send a copy of your appeal to the DWP and ask them to explain how they came to their decision. The DWP must do this within 28 days, although they can ask for an extension. You will receive a copy of their response. Don’t be put off by the size of it. Keep it safe. You will need it to prepare for your hearing. You should start preparing now. The next section explains everything you need to do.
‘What do I need to do before the hearing?’
There are a lot of things for you to do over the next few months. So it is important to start preparing as soon as you can. Some things can take a long time. If you have not already tried to get help and advice, do so now (See How to find an adviser on page 7). Some advisers may be able to help do some of this preparation for you. If you are lucky enough to find someone who can help with the preparation, make sure you are clear which things they are going to do for you, and which you need to do yourself. When will the hearing be? Usually you won’t get told the date of the hearing until 2–3 weeks before (you should be given at least 14 days notice unless you agreed to be given less on the form). However, it is useful to know how long you have to prepare for your appeal. You can phone the tribunal centre dealing with your appeal and ask them. They will be able to give you a rough idea. You may get re-routed to a call centre who then asks the tribunal centre to call you back later. Getting help If you are not getting any professional help to prepare for the hearing, you might want to ask somebody else to help you. You may not need any help, but it might stop it from feeling too stressful. It might be particularly useful if you are not very good with paperwork or deadlines.
If you do think it might be useful, think about who you could ask – do you have a family member, friend, or someone who helps you who is good with paperwork and organising things?
The papers from the DWP
Look at the big pack of papers that you were sent by the DWP explaining why they made the decision they did. Many people get very confused by the inclusion of relevant test cases at the beginning. Don’t let them put you off. If you don’t have time to become an expert on all the legal ins and outs of PIP decisions, ignore these. The most important part is the report from the medical assessment. Read through it and look for anything you don’t agree with. Did the doctor ask you the right questions and listen to your answers? If your illness or disability is better or worse on different days, did the doctor understand that? Make a note of all the things that are wrong. If you can, say why they are wrong. You can include this in your statement to the tribunal. It may also be useful to familiarise yourself with the numbering of the papers from the DWP. At the hearing, the panel sometimes refer to certain pages and it will be easier and less stressful for you if you are able to keep up.
For most people, the thing that is of most help is written evidence from their GP or other doctor. If you have a social worker, community psychiatric nurse, occupational therapist, or other professional, evidence from them will be very useful too. The most useful evidence will explain how your illness or disability affects you, and the help you need (paying particular attention to the descriptors that you meet). This is unusual, so your doctor/ social worker etc may not understand that. Look at pages 28–32. This is a guide for your doctor, social worker, or anybody else writing evidence for you. Mark the particular activities and descriptors you believe you meet on these pages. When you ask them for evidence to support your appeal, show them this page. It will help them to write evidence that will be really helpful to you. The best evidence will come from people who know you well and who understand your situation. If your GP does not know you well, you should still ask him or her for evidence, but try to get evidence from other professionals too. This could be your social worker or community psychiatric nurse, a paid carer or support worker, a personal assistant, your occupational therapist, somebody who works at a day centre you go to, or somebody else.
It is important not to be offended if the evidence embarrasses you. For example, if it says that sometimes you appear not to have washed or eaten properly. They are just trying to ensure you get all the help you are entitled to.
Evidence from your support worker, personal assistant, carer or anybody that helps you
If there is somebody who helps you a lot (this might be somebody you pay, or who helps you at college or work, or it might be your partner, a family member, or a friend), they may be able to write some very useful evidence too. Ask them to write a letter to the tribunal panel explaining what help they give you and how often. Show them the section for doctors and other professionals on pages 28–32 – it will help them to remember everything.
It can be very useful for this person to come to the hearing with you – so that the panel can ask them questions. They may be asked to wait outside until their evidence is needed – so you may need to be prepared to go in alone at first.
You should think about keeping a diary of the help you need each day. It will help the tribunal panel to get a proper understanding of your situation. It is particularly helpful if your illness or disability isn’t the same every day. Keep a diary for a month if you can (but a shorter time will also be helpful). It can be very brief. For example – ‘Monday – Joints and back very painful today. Needed help to fasten my bra, and put socks and shoes on, as I couldn’t bend down. Marie had to help me downstairs’. Include everything that is connected to the ‘daily living activities’ that entitlement to PIP is based on. If you get help from somebody and find this sort of thing hard, you could ask them to keep a diary of the help they have given you instead (as an alternative to the letter – see above).
Be realistic about what you want to happen. There is no point going to the tribunal hearing hoping to get the enhanced rate of mobility if you can in fact walk to the end of the road and back. If you have seen or spoken to an adviser – did they tell you what they thought you might be entitled to?
Is there any other evidence that you have?
There may be useful evidence you already have or can easily get. For example, if you are registered as blind or partially sighted, you can get a copy of your registration from the social services. These usually detail how much your sight is impaired, and so can be very useful. Maybe you have letters from Doctor’s or support services already that support your case. Write a statement
If you (or someone who is helping you) are good with writing, you should think about writing a statement for the tribunal. These can be very useful as they set out all your points, which means that you don’t have to remember everything to say on the day. They also give the panel time to think about what you’ve said and why you should be getting more before they meet you.
For more advice on how to write a statement and what to put in it, see How to write a statement on pages 33–35. You can also read Spencer’s statement and see what he put in his. What to do with the evidence Read all the evidence through – does it support your case? If it doesn’t, you don’t have to send it to the panel (but if they ask if you had any evidence you didn’t send them, you have to tell the truth). If you don’t think the evidence is useful it may be worth going back to the person who wrote it and discussing it with them. Is there anything they can add? If you’ve got useful evidence, photocopy it and send it into the HM Courts and Tribunal Service before your hearing. Ideally, send it at least a week in advance. On the day of your hearing, take your copies with you, and ask the panel to confirm that they have received them.
How will you get to the hearing?
Some people find it helpful to work out how they will get to the hearing and even do a ‘dry run’, so that you know how to get there. How can you afford to go to the hearing? You should be able to claim travel expenses for the day of the hearing if you use public transport or travel by car. You can also claim for a meal if you are away for more than five hours. If you have to take time off work you may also be able to claim expenses for loss of earnings. And if you have had to pay a carer or childminder you can claim expenses up to the National Minimum Wage for the time you have been away. Before you go to your hearing, check what the current rules on expenses are on GOV.UK – www.gov.uk/socialsecurity-child-sup... The clerk will help you fill in a claim form when you go to the hearing. Make sure you take receipts (and if you’ve lost earnings, a letter from your employer confirming this). Contact the tribunal before the hearing if you need help.
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