Employment and Support Allowance claims are assessed based on results from a medical assessment carried out by Medical Professionals employed through Maximus and will take place in many locations. You may have found yourself in a situation where you have failed the assessment. Below we will look at challenging these decisions.
Top tip: Often we advise that clients make an application to Job Seekers Allowance during the period of your mandatory reconsideration. When making your application make them aware that you are challenging an ESA decision and advise that you would like to see a Disability Employment Advisor (DEA) as soon as possible to ensure that during the period of your reconsideration request you have a restricted claimants commitment and will still receive an income in the period during your reconsideration request.
Challenging ESA decisions using the Exceptional Circumstances rules
I plan to highlight here useful but perhaps lesser known tools for challenging ESA decisions:
- To challenge an adverse ‘limited capability for work decision’ (the work related component) use ESA Regulation 29 2 B (referred to as Reg29 here) [for full text click here]
- In simpler terms a decision which has been made that finds you capable for work
(b) The claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.
- To challenge an adverse ‘limited capability for work-related activity decision’ (the support component) use ESA Regulation 35 2 (referred to as Reg35 here) [for full text click here]
- In simpler terms to challenge placement within the work related activity group where further respite or longer term support is likely to be required such as a recovery process or longer-term illnesses which have no foreseeable change
(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.
Where such ‘exceptional circumstances’ apply, they are good arguments to help challenge decisions which find you capable for work or work related activity. They focus on the overall impact of a decision that somebody is fit for work and how this would affect them and their health.
Step 1 – Mandatory reconsideration (simply put, looking at the decision again)
I have found that decisions may not be based on all the available evidence and the next step is to provide as much as possible for the Mandatory Reconsideration – in the hope that doing so will produce a positive decision and mean the case does not need to be taken to appeal. This evidence will be needed to back up your arguments when using ESA regulations 29 and 35.
Reg29 can be used to challenge a decision where insufficient points (fewer than 15) have been awarded causing you to be found ‘not to have limited capability for work’. This type of terminology and the layout of the decision letters can be difficult to fully understand. It is important to look at the points and the descriptors they relate to and to see if they reflect your understanding of your condition. Knowing how many points specific descriptors hold will help you shape any reconsideration request to your specific needs, illnesses and disabilities.
A list of the descriptors and the points attributed can be found here.
Top tip: Use the descriptors in this way when completing the ESA50 for more chance of a positive initial decision.
Most of my work involves supporting people with addictions and dependency issues which require a recovery process. I encourage them to think about the timescale, any hospital admissions, rehabilitation meetings, groups and other support needed to maintain the recovery process.
If you have issues with your Mobility, think about the effects standing and lifting may have on your health/pain management. Regular appointments for consultations, physiotherapy and other treatments. Also think about your ability to travel to work.
If you have issues with Mental Health, think about how your anxiety may affect your ability to interact with others, the duration of your depression and the way this effects sleep pattern, memory and motivation. You may also experience behavioural difficulties which are not suitable for the work place that are important to mention.
It is important to remember that every situation is different and it is important to focus on the specific issues which cause you significant difficulty in your day to day life – especially those which would make your ability to work reduced.
Check list:
- Collect all evidence you can (You can source this from medical professionals involved in your care, support workers, carers – any evidence that relates specifically to your current health conditions will all help with the decision making process). This isn’t essential but will help your case.
- Use the descriptors you feel most reflect your conditions, demonstrate how you meet the relevant points and criteria referring back to your supporting evidence
- Quote regulations 29 or 35 dependant on your circumstances using the above examples
- Try to return your mandatory reconsideration request with 30 days from the date you received the decision letter – I have included an example of letter below.
Good luck and remember that there are several organisations who offer support and would be happy to help.
For the full texts of the regulations look here.
EXAMPLE LETTER requesting Mandatory Reconsideration
As an example I have included a statement below which I would use to conclude a Mandatory Reconsideration demonstrating a limited capability for work:
We would suggest that Regulation 29 (ESA Regs.2009) applies to this decision because:
- The decision has had a detrimental effect on X to the point that day to day life is already affected – include an example or two as appropriate-
- The consequences of having to sign on for JSA would result in additional pressures that X would not react well to and the risk to himself/herself and others in the work place should work be secured would be increased due to his/her chaotic behavior and depressive states and/or mobility issues [delete as appropriate]
- The expectation for X to find appropriate work would be a difficult task due to his/her ill-health – X would face the risk of potential sanctions given the difficulties s/he would face in applying for work and maintaining work related activities. The risk to his/her poor physical and mental health and the chances of hospitalization or prolonged ill health precludes him/her from successfully engaging with work related expectations
- Any disruption to a planned recovery process will be disrupted and have an adverse effect on progress to date. To disrupt with work related activity and job search expectations at this stage would cause detriment to claimant and present further issues down the line with engagement and likelihood of suitable employment
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