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‘My Employment and Support Allowance has ended - help!’
> ‘I've been found fit for work and my ESA has ended’
>> ‘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

As I have said elsewhere, you have the right to Employment and Support Allowance while the appeal is ongoing, if you ask, and if your GP is willing to carry on giving you medical certificates (‘sick notes’). However, now the appeal tribunal has made its decision this right has come to an end. If you have been getting Employment and Support Allowance this will stop. This won’t happen straight away, as the Jobcentre Plus has to get a copy of the decision notice from the tribunal, and then has to put it into action. However it will happen.

Logically the Jobcentre Plus should write to tell you that your Employment and Support Allowance is ending, but for some reason (in my experience) this doesn’t seem to happen. You therefore need to keep checking your bank account, as its likely that the first clue that your benefit has stopped is that a regular fortnightly payment isn’t there…

(You may have decided to claim Jobseeker's Allowance while waiting for the appeal to be dealt with: obviously if that’s what you did you don’t have to do anything now, except carry on doing what you’ve been doing already, signing on, looking for work, etc.)

What your options are now depends on how how long ago the Jobcentre Plus made its decision that you do not have a limited capability for work (the one telling you that you were fit for work). 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

icon-warning1.jpgBEWARE: THE LAW HAS CHANGED

From 30th March 2015 onwards, if you make a new claim for Employment and Support Allowance you will NOT be entitled to get any benefit until the Jobcentre Plus has completed their re-assessment, even if 6 months have passed, unless you have clear evidence that you have a new condition or that your existing conditions have worsened.

The 'six month' rule will become, in effect, the 'forever' rule: If you have ever been found fit for work under ESA rules and you make a new claim for ESA, you will normally have to wait until you have been assessed before you get any money (and not even then, if they don't agree that you're not fit for work).

The only exceptions to this are for people who lost their Employment and Support Allowance because they failed to return an ESA50 questionnaire or attend a medical. They will still be treated as unfit for work, and will receive benefit from the start of a claim, if they claim more than 6 months after the decision that refused them.

If you want to see this will all work out in practice, I recommend having a look at the guidance that has been sent to DWP staff on the matter:

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…


  • Fred obtained a really helpful medical report from his GP 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
  • Jill also obtained a really helpful medical report from her GP, and again the tribunal had copies of this. When she reads the statement of reasons, the report is mentioned, but the tribunal says it prefers other evidence, including the Jobcentre Plus (ATOS) medical and Jill’s own answers at the hearing: this is unlikely to be an error of law.
  • Nadia has had both arms amputated, and has not yet been fitted with artificial arms. She has however taught herself to pick things, like cartons of milk, with her mouth. The tribunal did not award her 15 points for this activity, saying that she could pick up a 0.5 litre carton, and as a result of this her appeal failed. The tribunal have misunderstood the law here, as the rules refer only to how able she is to pick things up with arms (I have talked about this here), and therefore seem to have made a clear legal error.
  • Vincenzo’s tribunal accepted that he could not walk more than 100 metres and so awarded him 9 points, but this was not enough to enable him to win his appeal. At the hearing Vincenzo argued that as his previous job was a postman, not being able to walk 100 metres would mean that he couldn’t do his job, and so he was unfit for work. Unfortunately the tribunal isn’t required to consider whether or not he could do his old job, and so this is unlikely to count as 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.