If you have only recently started to get Employment and Support Allowance the rules require you to be assessed by them in the first thirteen weeks. Up until then they are - basically - taking your word for it (and the word of your GP) that you are not fit for work.

If you have been on Employment and Support Allowance for a while they will re-assess you again every so often, perhaps every year or so.

Either way, when they are ready to assess you they normally...

• Firstly send you a questionnaire, called an ESA50, which you need to complete and return to them.
• Secondly they ask you to attend a medical examination.
  

They use these things to decide whether you are fit for work (they call this 'not having a limited capability for work) or not and whether you should be placed in the work related activity group or the support group.

If you didn’t complete and return this, or they say you didn’t, you will be 'treated' as not having a limited capability for work, and your Employment and Support Allowance will stop anyway). This might happen even if you've not made any mistakes: the questionnaire might have got lost in the post on its way to you or from you, or the same might have happened to the invitation to attend the medical.

(It's actually not quite that bad. The law requires the DWP to send you a reminder 3 weeks after they send the questionnaire, and they then have to wait another week.)

You may be given a chance to explain why you haven't done what they've asked before they stop your benefit; in particular, you are normally sent a form called a BF223 if you fail to attend a medical - asking you to give reasons why you failed to attend - before a decision is made to stop your benefit.

What can you do if your benefit has stopped because they say you did not return the questionnaire?

You have the right to ask for a mandatory reconsideration of the DWP's decision. If this is not successful, you then have the right to appeal to Her Majesty’s Court and Tribunals Service, or the Tribunal Service for short.

Stage 1: Ask the DWP for a mandatory reconsideration

When you write asking for a mandatory reconsideration, there is no special form, so it’s important to make sure you include information like your National Insurance Number, the date of the decision(s) you’re not happy with, and exactly why you disagree with the decision(s). You could use the example I have written here.

When you come to give your reasons make it simple and clear.

You need to show 'good cause' for failing to return the ESA50 questionnaire, or for failing to attend a medical, if you are going to have any chance of succeeding. Here are some examples of possible good causes: If they are saying you failed to return the questionnaire: If you did return it, say when and where you posted it; If you didn't return it say why: Were you away? Were you ill (either a flare-up of your normal problems or something else)? Was there a family emergency? Do you normally rely on someone else to fill in forms but they weren't available? If they are saying you did not attend the medical, think of the reasons why this might have happened. For example: Did you not receive the invitation to the medical? (this is going to be more likely to succeed if you can show that you are having problems with the post generally - for example, do you live in shared accommodation where the mail is not secure Were you especially ill on the day of the medical? (if you were, did you try to contact the medical services to tell them?) Were there unexpected problems with getting to the medical?

Keep a copy of your letter if you can: it may make things easier later.

Make sure your request for a mandatory reconsideration reaches the DWP by the deadline. This deadline is one month from the date each decision was sent to you. So if the date on the DWP letter is 10th March you should make sure your appeal reaches them by 10th April.

Stage 2: Wait for the DWP to look at your request


You are not normally entitled to Employment and Support Allowance while the DWP is looking at your request for a mandatory reconsideration This means your options are as follows:

• If you have a new condition, or your current situation has seriously worsened, and you have medical evidence to support this, you can make a new claim for Employment and Support Allowance because of this.
• Otherwise you will normally need to claim Jobseeker's Allowance.

You might say at this point: 'how can I possibly claim Jobseeker's Allowance when I'm also saying I'm not fit for work?'. This is a good question. However, you need to remember that when you claim Jobseeker's Allowance you are not saying anything about your health or disabilities: all you are saying is that you are willing to look for work. Also, the DWP is not allowed to use the fact that you have claimed Jobseeker's Allowance in the Employment and Support Allowance appeal.

So, if you do need to claim Jobseeker's Allowance (and this is very likely):

• You must say you are willing to look for work, and agree to your jobseeker's agreement or claimant commitment.
• You should also make clear, though, that you have disabilities or health problems that may limit the jobs you can do.
• You should ask to see a Disability Employment Adviser, as they can adjust your Jobseeker's agreement or claimant commitment to take account of your disabilities and health problems.
  

The DWP may phone you up during this time to discuss your case.

Sometimes when the DWP looks at a case it decides that it has made a mistake and reverses its previous decision: hurray! Unfortunately this is unusual.

Either way, when the DWP has finished its work it will write to you to tell you what it has decided (it should send you two copies of this letter). If you are not happy with what it says you will now need to make your appeal.

Stage 3: Appealing to Her Majesty’s Court and Tribunals Service

Before I go any further, I need to give you some bad news:

You may be aware of people who carry on getting ESA while they are waiting for an appeal hearing. Unfortunately for you, these will be people who are appealing against a decision about actual capability for work, not about failing to complete a questionnaire or failing to attend a medical. You are not entitled to any ESA while waiting for your appeal to be heard, unless you can show that you have a new medical condition or your current condition has worsened significantly.

You now need to appeal directly to Her Majesty’s Court and Tribunals Service, or the Tribunal Service for short.

• You should use the form www.justice.gov.uk/downloads/forms/tribunals/sscs/sscs1.pdf
• Where it asks for your 'grounds for appeal' you could say 'see attached letter' and include a copy of your letter to the DWP, if you have kept one. If you haven't, make sure you include all the reasons you put in your previous letter.
• Send the form off to the Tribunal Service at the address they give you, together with your letter to the DWP (if you've referred to it) and one of the copies of the reconsideration letter that the DWP sent to you.

At Section 6 of the appeal form it asks whether you want to attend a hearing of your case: you generally have better chance of success if you attend your hearing

Make sure your appeal form reaches the Tribunal Service by the deadline. This deadline is one month from the date the DWP replied to you. So if the date on the DWP letter is 1st May you should make sure your appeal reaches them before 1st June.  Sometimes your request can be accepted even though it was late. Click here for more information about this.

When the Tribunal Service receives your appeal it will ask the DWP for all the papers relating to the case. At some point a copy of these papers will be sent to you. This is called your appeal bundle.

Stage 5: Prepare for the appeal hearing, wait for an appeal date, and attend the hearing

This is a special subject in its own right…

• ‘I want know about preparing for and attending the appeal hearing’
• ‘I want to know what my options are if my appeal fails’

How can I avoid problems in the first place?

A lot of time you can't. But there is sometimes something you can do:

• If you know time is running out to get the questionnaire back in time, contact the DWP to let them know, and make sure you tell them any reasons why you have been struggling to complete it in time (e.g. you were away on holiday, you've been ill, or you've been waiting for someone to help you complete the questionnaire). The DWP then has to consider if you have 'good cause' for submitting it late and they might then allow you extra time without stopping your benefit.
• If you are asked to attend a medical but cannot attend at that date and time contact the number in the letter immediately to explain and ask it to be re-arranged. They should then do this for you. However you can only ask for the appointment to be re-arranged once.
  

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