1.2. Stages of Claim before Appeal

The ESA50/PIP2 forms are long, and often misunderstood by claimants. The questions correspond to Activities defined in the relevant Regulations. It will take a trained form filler roughly two hours to fill in a form with a claimant, but most claimants do not have any help.

Claimants are asked to list their healthcare professionals on the form, and are given the instructions:

Claimants will be paid the assessment rate of ESA (£57.90/week for those aged <25 and £73.10/week for those aged 25+) the first 13 weeks of their claim. After the 13th week, claimants are either paid the WRAG or Support Group rate if they were found to have limited capability for work/work and WRA respectively, or payment would stop if they were found to be fit for work. If the assessment process takes longer than 13 weeks, the assessment rate would stop, but any benefit would be backdated to the 14th week.

There is no assessment rate of PIP – PIP is only paid when a successful decision has been made, and then is backdated to the date of the claim/end of the previous award (of DLA or PIP).

Assessments are contracted out by the DWP and run by private companies: Atos, Capita and Maximus. The way the assessments have been conducted has been widely criticised by MPs, disability rights organisations, the press and claimants, with criticisms that the questioning can be insensitive and insufficiently detailed and targeted to draw out the detail of a claimant’s impairments.

Assessors produce a report following assessment, and these reports carry great weight with the DWP, who describe them as “objective and impartial”. The reports have also been strongly criticised for their inaccuracy, and most of our clients dispute the findings in their assessor’s report.

Decisions are made by a “Decision-Maker” at the DWP, using the assessor’s report and any other information. This may on occasion include forms sent to the claimant’s GP asking for details of their conditions and impairments, but does not include any other medical records unless submitted by the claimant.

If a claimant disagrees with the original decision, they have 13 months in order to request a Mandatory Reconsideration. Though claimants may do this by phone or in writing, Z2K and other advice agencies advise sending in a letter, detailing the points they disagree with in the original decision.

A second DWP Decision-Maker will review the original decision, and write to the claimant with their Mandatory Reconsideration, which details if the original claim is upheld or revised. Following the release of information obtained in an FOI request, the DWP was widely criticised for their use of a target that 80% of original decisions should be upheld. Figures suggest that target is exceeded, with the latest statistics showing that 88% of original decisions were upheld, leading to accusations that the original decisions are merely “rubber-stamped”. The target was dropped in December 2017.

There is no mechanism to be paid ESA during the MR process (but see next section), and a claimants’ only financial option to bridge this phrase is to claim JSA or Income Support if they meet the relevant eligibility criteria.

Again, PIP cannot be paid during the MR phase, but it can be backdated following a successful tribunal decision.

If a claimant disagrees with the MR decision, they have 13 months in order to lodge an appeal with HMCTS. To do this they must fill in an SSCS1 form and post it to HMCTS, complete with a copy of their MR notice. HMCTS then informs the DWP.

“ESA pending appeal”, paid at the assessment rate, can be claimed once an appeal has been lodged. The claimant must take their appeal acknowledgment letter and a fit note from their doctor to a Jobcentre and request ESA pending appeal – it is not automatically granted. Providing the fit note covers the whole period, ESA pending appeal can be backdated to cover the MR phase as well (though not if they have been claiming JSA or Income Support during the MR phase).

Again, PIP cannot be paid during the appeal phase, but it can be backdated following a successful tribunal decision.

The DWP’s produces a response to the appeal. Prefaced with a mostly pro-forma statement of their position upholding the original decision, it includes copies of all the documents relating to the claim so far, including the PIP2/ESA50 form, the original decision, the MR request letter, the MR decision, the SSCS1 form, and any medical evidence held by the DWP. It is the DWP’s responsibility to send copies of the Bundle to the Tribunal, the Appellant and to the Appellant’s representative if one is listed on the SSCS1 form.

It is very rare, but the DWP can revise a decision when they are informed that an appeal has been lodged, or at any time up until the hearing (e.g. following submission of further evidence by the claimant.)

Last updated on February 20th, 2019 at 11:39 am