How to challenge an ESA decision for mental health
You can challenge an ESA decision if you disagree with it. The DWP will write to you confirming any decision they have made about your ESA claim. This is called a decision letter.
The DWP decision letter should include:
- A summary of the Health Care Professional’s (HCP) findings
- A summary of the points you scored in the Capability for Work assessment
If you disagree with the DWP’s decision, you can ask them to look at their decision again. This is called mandatory reconsideration.
How do I ask for mandatory reconsideration?
You must contact the benefits office that gave you the decision. Their address and telephone contact details will be on the decision letter they sent you.
You can ask for mandatory reconsideration by:
- telephoning the benefits office or
- writing to the benefits office or
- fill in the Mandatory reconsideration request form online, print it out and post it to the benefits office
When you contact the benefits office, you should:
- Ask them to explain their decision
- Tell them why you disagree with their decision
- Correct any errors or missing information in their decision (eg. they have forgotten to include information on your mental health condition and how it affects your ability to work)
- Include copies of any medical evidence from your GP or Approved Mental Health Professional (AMHP) that supports your case (eg. medical reports, test results, medication taken, treatment plans). You can ask your GP or AMHP for help with this
When do I ask for mandatory reconsideration?
You should request mandatory reconsideration within 1 month of the decision date (this will be 1 month from the date near the top of your decision letter).
You can still ask for a mandatory reconsideration up to 13 months of the original ESA decision, but you must explain why your request is late. The DWP will expect you to have a good reason. Reasons can include:
- You’ve been in hospital receiving treatment for your mental health
- A close relative or friend died
How a Welfare and Benefits Adviser helped Aurelia with mandatory reconsideration
Aurelia experiences severe depressive episodes with psychotic symptoms. She often sees things that aren’t there and sometimes feels things that aren’t real. She receives treatment through her local GP and IAPT services. Aurelia’s mental health condition makes it difficult for her to work and she is eligible for new style ESA. Aurelia applies for new style ESA and is placed on the assessment rate whilst she waits for her work assessment.
Following her Capability for Work assessment, Aurelia receives an ESA decision letter from her local benefits office. The letter has rejected her ESA claim. The letter states that the DWP believe Aurelia did not score enough points on her Capability of Work questionnaire and is able to work without ESA.
Aurelia is very distressed and seeks help from a welfare benefits adviser. The adviser looks at Aurelia’s case and the reasons the DWP have sent back. The adviser discovers that the DWP have not considered Aurelia’s severe depressive episodes. The DWP have not looked at the medical reports and fit notes provided by Aurelia’s GP as evidence of her limited capability to work.
The welfare benefits adviser helps Aurelia fill in the Mandatory Reconsideration request form online. The adviser reminds Aurelia to attach all the medical evidence that the DWP did not consider to the form.
Aurelia submits the mandatory reconsideration form two weeks after she receives her decision letter. She includes all the medical evidence the DWP did not consider.
A month later, the DWP write back to Aurelia confirming they are changing their decision and backdating her ESA payments to the date of the original decision.
How do I appeal my ESA decision?
You can only appeal an ESA decision if:
- You have already asked for mandatory reconsideration and it has been rejected in writing by the DWP or
- Your ESA decision letter says you don’t have to ask for mandatory reconsideration
If you have applied for mandatory reconsideration and the DWP have not responded, you may be able to go straight to the appeal stage. If this happens, you should seek advice from a welfare benefits adviser before lodging an appeal.
Submitting your appeal
You only have 1 month from the date of your mandatory reconsideration decision letter to appeal.
To appeal your ESA decision, you will need:
- Your National Insurance number
- Your mandatory reconsideration decision letter from the DWP – if you have not received this letter, you should speak to a welfare benefits adviser before proceeding further
- The details of the person helping you with your appeal – also called ‘your representative’ – this can be a welfare benefits adviser, social worker, family member or carer.
- The reason or reasons you disagree with the DWP’s decision
- Any new medical evidence about your mental health condition that you believe has not been considered by the DWP
- Any other new evidence to support your appeal – this can be a letter from your GP, a fit note, or a letter from someone who knows you. You should include any new evidence with your appeal form when you post it or upload it online.
Once you have this information, you can begin the appeal process by completing the Benefit appeal form (SSCS1). You can complete the form online before downloading it and printing it off. You can also print off a blank form and complete it by hand.
The form has 8 sections. This can feel overwhelming, so be sure to take your time and read each section carefully. You can ask the person you want to represent you (eg. family member, carer, social worker, welfare benefits adviser) to help you complete the form.
Once you have completed the form and attached any new evidence to support your appeal, you should send your form to the address detailed in ‘Section 9: Sign and post’.
What happens next?
Her Majesty’s Courts & Tribunals Service (HMCTS) will send a copy of your appeal to the benefits office that rejected your ESA mandatory reconsideration. The benefits office will then respond to HMCTS with their reasons. HMCTS should send you:
- A copy of the DWP's response to your appeal
- Information on what happens next
- Details of when and where the appeals hearing will take place
- An Appeal Bundle
- This is all the evidence the DWP send HMCTS. You should check this bundle to see if anything is missing (eg. medical reports, fit notes etc). HMCTS will use this ‘appeal bundle’ to guide their decision so it is important to check it has everything you need to support your appeal.
Your hearing might not occur for up to 6 months after you have submitted your appeal. If you are concerned about losing money during this time, you should seek advice from a welfare benefits adviser. You might be able to claim other benefits whilst you wait.
What happens at the hearing?
The hearing will have one or two experts on ESA and a judge. They do not work for the government and operate independently as part of the legal system. They will not know you and the judge will base their decision purely on evidence they receive from you and the DWP.
You can attend the hearing alone, but if you are worried about your mental health, you can have someone go with you. This can be a social worker, friend, relative, carer, welfare benefits adviser or support worker. You can ask for support when you fill out the appeals form.
If you choose to attend the hearing you will be offered a choice on how you prefer to attend. You can attend:
- In-person – this means you will need to travel to the address the hearing will take place
- Via telephone link – try to use a landline phone or a mobile phone with a strong phone signal. You will need somewhere quiet and private to speak
- Via video link – try to use a computer or mobile with good internet speed and have somewhere quiet and private to speak
What if I can’t attend the hearing?
If your mental health condition means you cannot attend the hearing, you can authorise someone to attend on your behalf. This is called ‘Authority to Act’ and you can select this option when you fill out the appeal form. Your representative can be a social worker, welfare benefits adviser, carer, mental health support worker, family member or a close friend.
What happens after the hearing?
The tribunal will usually give you their decision on the same day. If you are not there, the decision will be posted to you.
If your appeal is unsuccessful, you might be able to send an appeal to the upper tribunal of HMCTS. Details on how to do this will be sent along with your appeal decision letter. You should try to seek advice from a welfare benefits adviser.
You can learn more about How to appeal a benefits decision here.