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Appealing an ESA decision after a mandatory reconsideration - Citizens Advice Scotland
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Appealing an ESA decision after a mandatory reconsideration

This advice applies to Scotland

If you still think a decision about your ESA is wrong, you can appeal to an independent tribunal.

Coronavirus – appealing to the tribunal

If possible, a tribunal judge will assess your case without a hearing. Instead they’ll make a decision based only on the documents. Send any evidence you have to the tribunal as soon as possible – for example medical evidence.

If the judge assesses your case based on the documents, they’ll send you a ‘provisional decision’. If you don’t agree with the provisional decision, tell the tribunal you want a hearing instead. You can find the contact details of your tribunal on GOV.UK.

If there has to be a hearing, the tribunal might suggest a phone call or video conference.

Tell the tribunal as soon as possible if you will find it difficult to have a remote hearing. For example, tell them if you don’t have the equipment for a conference call. You can find the contact details of your tribunal on GOV.UK.

You can only appeal once the Department for Work and Pensions (DWP) have finished a mandatory reconsideration and sent you a ‘mandatory reconsideration notice’.

You should ask for a mandatory reconsideration first if you haven’t done this already.


Fill in an appeal form

You have 1 month from the date on your mandatory reconsideration notice to appeal to HM Courts and Tribunals Service (HMCTS).

You can start your appeal by either:

You’ll need your:

Explain why you disagree with the decision

On your form you’ll need to give the reasons you’re appealing. Your mandatory reconsideration notice will list why the DWP didn’t change their decision.

Explain why you disagree with the reasons the DWP gave and refer to any evidence you’ve already sent to the DWP.

You can choose on the form whether to go to a hearing in person or have a ‘paper hearing’. A paper hearing is where a decision is made based on the form and any evidence only. Paper hearings rarely succeed so it’s best to go to a hearing in person if you can.

If you need support at the hearing you can ask for it on your form. For example you could ask for an interpreter, hearing loop or accessible tribunal room.

If you’re struggling to complete the form you can get help from your nearest Citizens Advice.

Sending your appeal form

If you’re sending a printed form, you need to sign it and post it to HMCTS. You’ll also need to send your mandatory reconsideration notice with the form. 

Send them to:

HMCTS Benefit Appeals
PO Box 12626
Harlow
CM20 9QF

Ask the Post Office for free proof of postage - you might need to show when you sent your appeal form.

If you miss the 1 month deadline

You might still be able to appeal if it’s less than 13 months since the date on your mandatory reconsideration notice. You’ll need to have a good reason for the delay and you should include this on your appeal form.

Good reasons can include:

  • you didn't get the mandatory reconsideration notice
  • you were in hospital
  • someone in your family was seriously ill

HMCTS will give you more time to appeal if they think you have a good reason. It doesn’t matter if the DWP doesn't agree with your reason.

Sending new evidence

The DWP should send any evidence you’ve already given them to HMCTS. You don’t need to send it again.

If you’ve got new evidence since your mandatory reconsideration, list this on your application. New evidence might be things like a letter from a GP, a fit note or a letter from someone who knows you.

If you have new evidence at the time you fill in the appeal form you can either:

  • upload it if you’re applying online
  • post it with your form to HMCTS

If you’re waiting for new evidence, you should still fill in the appeal form and submit it online or post it. 

When HMCTS respond to your appeal form, they'll tell you where to send the evidence. Try to send it within 1 month of them contacting you.

Check what happens next

HMCTS will check the form and ask the DWP for their response to your appeal within 28 days. Once the DWP respond, HMCTS will send you:

  • a copy of the DWP’s response
  • details of what happens next
  • details of when and where the hearing will be
  • an ‘appeal bundle’

The appeal bundle includes all the evidence HMCTS have received from the DWP. It’s important to check through the bundle because this is one of the main things the tribunal will use to make its decision. If any evidence is missing, send it to HMCTS, explaining that the DWP failed to send it.

You can send evidence to HMCTS up to 1 month after you get the appeal bundle. You should still send the evidence even if you miss the deadline, but explain why you’re sending it late.

If you get some evidence just before the tribunal and there’s no time to post it, take it with you. The tribunal panel might take it into consideration or they might reschedule the hearing if they need more time to read it.

Track your appeal

It usually takes up to 6 months for a tribunal hearing to be arranged.

If you appeal an ESA decision online, you’ll be asked if you want to join the ‘track your appeal’ service. This will send you regular email updates and reminders about your appeal. You’ll also get a login, so you can check the progress of your appeal at any time.

If you applied by post you can contact HMCTS and ask them to send you updates and reminders by text message.

HM Courts and Tribunals Service
Telephone: 0300 123 1142
Monday to Friday, 8.30am to 5pm
Email: contactsscs@justice.gov.uk

If you use email, it might take longer to get a reply.

Your call is likely to be free of charge if you have a phone deal that includes free calls to landlines - find out more about calling 030 numbers.

If you don’t want to call or email, you can talk about your appeal online with a trained helper on the HMCTS website.

If you need money while waiting for your appeal hearing

Think carefully before claiming Universal Credit

If you claim Universal Credit while waiting for your appeal, you won't be able to go back onto ESA if you’re on ‘income-related ESA’. This applies even if you win your appeal.

If you’re not sure what type of ESA you get, ask the DWP by:

  • writing to the address on one of your ESA letters
  • calling Jobcentre Plus

Jobcentre Plus

Telephone: 0800 169 0310

Textphone: 0800 169 0314

NGT text relay (if you cannot hear or speak on the phone): 18001 then 0800 169 0310

Welsh language: 0800 328 1744

Monday to Friday, 8am to 6pm

Calls are free from mobiles and landlines.

You might be able to get ESA payments while you're waiting for your appeal hearing.

If you're appealing because you're in the wrong group

If you're appealing because you think you should be in the 'support group', you’ll be able to get ESA while you wait for your appeal hearing. You’re placed in the support group if you’re unable to get back into work because of your condition.

If you didn’t return your ESA50 form or attend a medical assessment

You won’t be paid ESA while you wait for your appeal hearing. You won’t normally be treated as having limited capability for work because the DWP were unable to assess your condition. 

If you’re appealing a decision because you failed the medical assessment

If it’s the first medical assessment you’ve failed then you can ask the DWP to continue to pay you ESA until the appeal hearing. You won’t have to make a new claim. If you do start a new claim for ESA then the DWP might tell you to go onto Universal Credit and you might be worse off.

Sometimes you might be better off on Universal Credit but you should get advice from your nearest Citizens Advice first.

Making a new ESA claim instead

If you’re appealing because your ESA was stopped, you can make a new claim for ESA if:

  • your condition has got worse
  • you develop a new condition

This could mean you’ll start getting ESA sooner. If you win the appeal you’ll get a backdated payment to the date your original ESA stopped.

There might be other circumstances when you can make a new claim. Find out what to do if your ESA is stopped or reduced.

Find out what you can do if you’re still struggling with living costs.

Going to the appeal hearing

The hearing is your chance to explain in your own words why you think the decision is wrong.

The hearing panel, usually made up of a judge and a doctor, might want to ask you questions.

You can claim back expenses to cover the cost of travelling to the hearing, or to cover pay you might miss out on. Find out how to claim expenses on GOV.UK.

You can take someone to represent you at the hearing, for example a:

  • solicitor - find a solicitor on the Law Society of Scotland website
  • local advice agency 

Contact your nearest Citizens Advice to ask if they can represent you. Not all Citizens Advice offer this service but if they do it will be free. 

You can also take a friend or a family member for support.

If you don’t go to the hearing, the decision will be made using the information on your appeal form and any evidence you’ve given.

Getting a decision

You’ll usually get an answer on the day of the hearing. If the panel needs longer to decide, or if you’re not at the hearing, you’ll get the tribunal’s decision through the post.

If your appeal isn’t successful, you might be able to appeal to the upper tribunal. You'll get details of how to appeal to them with your decision letter.

You can only appeal to the upper tribunal in certain situations. Get advice from your nearest Citizens Advice first.

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