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‘My Employment and Support Allowance has ended - help!’
> ‘The DWP didn't get my ESA50, or I missed my medical’
>> ‘I want to know what my options are if my appeal fails’

You need to keep a calm head at this point, although I know that this isn’t easy. There will be a way through this.


You need to do two things:
  • Make a new claim for benefit so that you don’t end up with no money
  • Consider taking your appeal further

Making a new claim for benefit

GIven that you cannot, normally, get Employment and Support Allowance while waiting for the outcome of an appeal about failing to return a questionnaire or attend a medical, you are likely to be on Jobseeker's Allowance at this point, or, possibly, nothing.

What your options are now depends on how how long ago the Jobcentre Plus made its decision that you were not entitled to Employment and Support Allowance. Find out what date this happened. This will be the date on the letter from the Jobcentre Plus telling you that you were not entitled. If you can’t find that letter it will be written near the front of the appeal bundle, called the ‘date of decision’. If you can’t find it there: phone the Jobcentre Plus and ask: this is important! 

icon-warning1.jpgThink carefully and seek advice if you want to reclaim Employment and Support Allowance and less than six months have passed since the Jobcentre Plus’s decision that you are appealing against

Taking your appeal further

You have two main rights at this stage: you have the right to ask for the tribunal’s decision to be set aside, and you have the right to ask permission to take the case to the Upper Tribunal.

Set Asides

You can only ask for a tribunal’s decision to be set aside if there was some clear procedural issue: for example, if you didn’t attend the hearing because you weren’t sent a letter telling you the date for an appeal hearing, or you were not sent a copy of the appeal bundle or some other documents.

icon-warning1.jpgIf you think that the decision should be set aside you must ask for this in writing within a month of the date that the tribunal’s decision was issued

The Upper Tribunal

I'd better say this right away. It is fairly unlikely that you will be successful in taking your appeal further. Fairly unlikely, but not impossible. I explain why in a bit.

But before I say why, I need to tell you that the first thing you need to do, if you’re thinking about trying to take the case further, is to write to the Tribunal Service to request a ‘statement of reasons’. This is a long document that goes into a lot of detail as to why the tribunal made the decision it did. Not only is this a vital document for you to see, if you don’t ask for it you don’t have the right to take your case further.

If you are thinking of taking your case to the Upper Tribunal, you must ask for a statement of reasons within a month of the date that the tribunal’s decision was issued

Now, this is why it’s difficult to be successful in taking your appeal to the Upper Tribunal.

The Upper Tribunal is one level above the tribunal that heard your appeal (which is technically called the 1st Tier Tribunal). The Upper Tribunal’s job is not to do the other tribunal’s job again. Its job is to decide whether the decision of the 1st tier tribunal is legally correct or not. Now, you might think that these two things are the same, but they are not.

You will probably need expert help to decide this, but to give you some idea about what is and what isn’t likely to be a legal error (also called an ‘error of law’) here are some examples…


  • Tony obtained a really helpful letter from his GP explaining that he had a serious bout of flu on the day of the medical examination and the tribunal had copies of this. However when he reads the statement of reasons this report isn’t mentioned at all: this is likely to counts as an error of law
  • Like Tony, June obtained letter from his GP which was available to the tribunal. In it the GP says that her health problems would make it very difficult to attend a medical. The tribunal say that the considered this letter, but decided that she still did not have a good enough reason for not attending. This is unlikely to be an error of law.

If you think there has been a legal error in the tribunal you can’t just appeal to the Upper Tribunal. You have to ask permission to appeal (also called ‘seeking leave to appeal’). You have two bites of this cherry. You first ask the 1st Tier Tribunal for permission to appeal: if they don’t give you permission you have the right to ask the Upper Tribunal themselves for permission to appeal. So here’s how to do it.

icon-warning1.jpgYou must apply for leave to appeal within one month of being sent the statement of reasons.
  1. Write to a letter to the Tribunal Service, addressed to the office that you have been dealing with up to now (the place that’s just sent you the statement of reasons). I've put a suggested version of the letter you might want to use here. Make a copy for yourself. Post this, together with a copy of the decision notice, and a copy of the statement of reasons;
  2. You now need to wait for a tribunal judge to consider your request, but fairly soon you will receive a reply, either giving you permission to appeal to the Upper Tribunal, or refusing you permission. In either case they should send you a blank form, called a UT1 form.
  3. Either way you need to complete the form. It’s a fairly straightforward form but you need to take care with it. Post the form to the Upper Tribunal Office at the address you’ll find in the UT1 form.

icon-warning1.jpgYou must apply to the Upper Tribunal for leave to appeal within one month of being told by the 1st Tier Tribunal that you have either been granted or refused permission to appeal

You then need to wait for an Upper Tribunal judge to look at your case. When the judge has done this, you will get a letter that normally says:

If the judge refused you permission to appeal, that is normally the end of the road.

If the judge grants permission, it does not mean that you have won: it does mean that the judge thinks you might have a point and your case needs to be looked at. Things now get very slow. I may give more information about this process in new pages of this site later, but, in the meantime, I will just say that eventually the judge will either allow or refuse your appeal. If the judge allows your appeal, this does not mean that you have won the appeal you took to the 1st Tier Tribunal: it does mean that he agrees with you that there was a legal error in the decision of the 1st Tier Tribunal. This normally means that another tribunal will be instructed to hear your appeal again, and you will get another chance to argue your case.