If you think an Employment and Support Allowance decision is wrong, either because you have been refused it or have not been put in the support group, you may be able to:

• Ask for an explanation

• Have the decision looked at again

• Appeal against the decision

This guide takes you through these options.

Applies to: England, Scotland, Wales, and Northern Ireland

Advice: If you need advice about a benefits or tax credits decision, you should contact a benefits adviser. You can use our Find an Adviser tool to find a local one.

Reviewed: April 2022

You don’t have to ask for an explanation of the decision. However, you may want to if the reasons were not provided with the decision letter and you are unsure whether the decision is right, or you want more information to help you challenge the decision.

Some of the reasons why you may be refused Employment and Support Allowance (ESA):

• You did not attend a medical assessment when asked to do so (without good cause)

• You did not return a completed ‘Limited Capability for Work questionnaire’ (ESA50) in time (without good cause)

• You have not passed the Limited Capability for Work Assessment.

If you have not passed the Limited Capability for Work Assessment, you can ask for a copy of the medical assessment report providing details of the points you were awarded.

If your first language isn't English, the benefit office should provide an interpreter to explain the decision.

Time limits

You should ask for an explanation of the decision as soon as possible as there are strict time limits if you want to go on to challenge the decision.

Possible outcomes

An explanation will usually be provided by telephone but must be in writing if you requested a written explanation.

If you ask for a written explanation for the decision, you will usually receive this within 14 days.

After hearing or receiving the explanation, you may think the decision is wrong, for example, because it was based on information that was wrong or they did not have all the information. If this happens you should tell them. They may be able to change the decision and send you a new decision letter without you needing to go any further, or they can explain what you can do next.

If you still think the decision is wrong

You can ask for the decision to be looked at again. In some cases, you can go straight to appeal without asking for the decision to be looked at again.

Reviewed: April 2022

You should ask the benefit office to look at the Employment and Support Allowance (ESA) decision again if you think the decision is wrong.

This is known as a ‘mandatory reconsideration’ of the decision.

Going straight to appeal

Some people should not use the mandatory reconsideration process and should go straight to appealing their Employment and Support Allowance decision.

This applies if:

• You are getting income-related Employment and Support Allowance, and
• You are appealing a decision that says you are fit for work, and
• The decision that you are fit for work is not based on you having failed to return your ESA50 questionnaire or having failed to attend an assessment (i.e. to be able to go straight to appeal, you need to have actually had an assessment, either face to face or paper-based on the evidence you submitted to the Department for Work and Pensions (DWP)), and
• It is either:
  • The first time you have been found fit for work at an assessment, or
  • You have been found fit for work at a previous assessment but since then had an assessment where you were found to have limited capacity for work.

If this applies to you, you should go straight to appeal. This is in your interests because you cannot keep receiving ESA during the mandatory reconsideration process. However, you can keep receiving ESA while you are waiting for your appeal to be heard.

If you are not sure if this applies to you, you should get advice.

Obtaining medical evidence

You don't have to send in medical evidence. However, it can be extremely useful in supporting your challenge of the decision especially if it contradicts the medical assessment report produced by the healthcare professional.

Your evidence can be from doctors, consultants, community psychiatric nurses or any other healthcare professionals.

The evidence should focus on how you meet the criteria set out in the Work Capability Assessment.

For example, if you are arguing against the medical assessor’s finding that you can walk more than 100 metres without discomfort, then ask your doctor to comment on this.

Try and speak to your healthcare professional to outline the difficulties you have with the activities and descriptors which apply to you.

If you have kept a diary of your difficulties, you can give this to your doctor. Alternatively, consider providing your doctor (or other professional) a brief summary of the activities you have problems with and the kinds of difficulties you have.

If you are unable to get medical evidence, you can ask the tribunal judge to obtain a copy of your medical records.

A different decision maker will look at the decision and decide whether it should be changed.

If you are asked for more information or evidence, you should provide this as soon as possible and let them know if there will be a delay.

Time limits

You have one month from the date on the decision letter to ask for the decision to be looked at again.

You may get longer if you ask for an explanation of the decision to be sent to you.

If you missed the deadline for reasons out of your control, such as illness or bereavement, you may still be able to have your decision looked at again.

When you contact the benefit office, you should explain why you missed the deadline.

Possible outcomes

When the decision has been looked at again, you will be sent a mandatory reconsideration notice. Keep this safe as you will need it if you want to appeal.

If they decide the decision is wrong, they will change the decision and send a new decision letter.

If they decide that they can’t change the decision, they will write to you to confirm this and tell you if you have a right to appeal.

Benefits whilst having an ESA decision looked at again

Whilst your ESA decision is being reconsidered, you cannot continue to receive ESA.

You may find you need to claim Universal Credit while you wait for your ESA decision to be reconsidered. If you claim Universal Credit, you won't be able to go back onto income-based ESA, even if the DWP does agree to change its decision. However, the decision that you aren't fit for work will carry over into your Universal Credit claim.

Read about Universal Credit for people with disabilities and illnesses.

If you still think the decision is wrong:

You may be able to appeal against the decision. 

Reviewed: April 2022

An appeal is a way of telling the benefit office that you think a decision is wrong.

When you appeal a decision, it will be looked at by an independent tribunal, which is separate from the benefit office. Many people need to ask for a mandatory reconsideration of the decision before they can make an appeal. However, some people can go straight to the appeals process. We have more information on mandatory reconsideration.

How do I appeal?

You must appeal in writing or using the HM Courts and Tribunals Service HMCTS online form. The HMCTS online service is not available for people living in Northern Ireland.

You must have asked for the decision to be looked at again and received the mandatory reconsideration notice first, unless you are exempt from the mandatory reconsideration process.

If you appeal on the official appeal form, this can help you to give all the information that is needed.

These leaflets tell you how to start your appeal:

• England, Scotland and Wales: ‘How to appeal against a decision made by the Department for Work and Pensions (England, Scotland and Wales)'
• Northern Ireland: 'Guidance for completing your appeal form (Northern Ireland)' tell you how to start your appeal.

Download a copy of the appeal form:

• England, Scotland and Wales: Appeal Form: SSC1
• Northern Ireland: Appeal Form: NOA1(SS)   

Pick up a copy of the appeal form from your local Jobcentre, or

Write to HM Courts and Tribunals Service (see address below).

If you can't get hold of the official appeal form, make sure you include the following details in your letter:

• Your name and contact address

• Your National Insurance number

• A copy of the mandatory reconsideration notice

• Why you think the decision is wrong

• Your signature.

If you don't include all these details, your appeal form may have to be returned to you.

If you have lost the mandatory reconsideration notice, you can ask for a copy to be sent to you. You will have to do this before you can appeal. If this causes a delay in sending in your appeal request, you will need to explain the reasons for the delay. See information about late appeals below.

Send your appeal to:

England and Wales: HMCTS SSCS Appeals Centre, PO Box 12626, Harlow, CM20 9QF

Scotland: HMCTS SSCS Appeals Centre, PO Box 13150, Harlow, CM20 9TT .

Northern Ireland: The Appeals Service, PO Box 2202, Belfast, BT1 9YJ.

Time limit

You have one calendar month from the date on the mandatory reconsideration notice.

Late appeal

If you missed the deadline for reasons out of your control, such as illness or bereavement, you may be given more time to appeal.

There is a section on the appeal form where you can give your reasons for it being late.

If the benefit office doesn’t think you have a good reason for appealing late, they will pass your request to the Tribunal Service who will decide if your appeal can be accepted or if it is too late to be heard.

An appeal can’t be accepted if it is over one year and 30 days since the date of the decision

Possible outcomes

Look again at the decision

If they haven’t already, a different decision maker will look at the decision and decide whether it should be changed.

If they decide that they can’t change the original decision, your appeal will carry on.

If they decide that the original decision is wrong, they will change the decision and send you a new decision letter:

• If the new decision makes you better off your appeal will stop. You can appeal this new decision if you think it is wrong

• If the new decision does not make you better off, your appeal will carry on but now it will be against the new decision.

Send appeal on to Tribunal Service

If your appeal carries on, your appeal form will be sent to HM Courts and Tribunals Service (HMCTS), which runs the First Tier Tribunal. The benefit office will also include their response. This explains:

• How they came to their decision

• What information they used

• What benefit law they based their decision on.

The First Tier Tribunal

The First Tier Tribunal will decide if you are legally entitled to a benefit and can change a decision if they think it is wrong.

The tribunal could make a decision that leaves you worse off so it is often best to seek advice before deciding whether to appeal.

The tribunal cannot:

• Change the law

• Deal with administrative complaints, such as delay or poor service (see Complaints about your claim)

• Consider changes of circumstances which have taken place since the decision was made. You may be able to make a new benefit or tax credit claim.

For information about what happens when your appeal is received by the Tribunal Service (England, Scotland and Wales), or Appeals Service (Northern Ireland), see our First Tier Tribunal Appeals guide.

Benefits while appealing an ESA decision

If you appeal against an Employment and Support Allowance (ESA decision), you can ask to be paid ESA whilst you await the decision, (unless you went on to Universal Credit while you were waiting for your mandatory reconsideration decision). You don't need to make a fresh claim for ESA. You will be paid at the Assessment Phase rate while you are waiting for the Tribunal.

You must continue to provide medical certificates (fit notes) whilst you are getting ESA.

If you have backdated medical certificates (fit notes) to cover the mandatory reconsideration period, then ESA can now be paid for that period as well. This doesn't apply if you claimed another benefit such as Jobseeker's Allowance or Income Support during the reconsideration period so received an equivalent amount of benefit.

Reviewed: April 2022