Ask CPAG Online - Can you challenge a UC decision about your limited capability?

In general, you can challenge a UC decision about your limited capability first by asking the DWP to reconsider it then, if you are still unhappy, by appealing to an appeal tribunal. So you can challenge things like failing the WCA, not being put in the support group or not having ‘good reason’ for failing to attend the WCA medical.

This section looks at when, how you can challenge a decision about your limited capability, and your UC entitlement whilst you are challenging the decision.

When can you challenge a decision about your limited capability?

When the DWP make a decision about your limited capability for UC, the first thing they do is make a ‘determination’ about whether, for example, you pass the WCA or are in the support group. There is no formal challenge against such a determination. But the DWP then include that determination in a ‘decision’ regarding your entitlement to UC – including for example, about the amount of UC you are entitled to or what your UC ‘responsibilities’ are.

Once you have a decision about your UC from the DWP, you can then challenge it including the determination about your limited capability it includes.

Examples

Joel is assessed as passing the WCA, i.e. it is determined that he has limited capability for work. But it is also determined that he does not have limited capability for work-related activity. So he is not been placed in the support group.

Joel therefore gets a decision about his UC that although he has limited capability for work, he is not entitled to the limited capability for work-element, and that his responsibilities may include attending interviews and undertaking work-preparation. Joel considers that he should have been placed in the support group, and when he gets the decision he can challenge it.

Megan is required to attend a medical as part of her WCA assessment. But she gets confused about the dates and does not turn up when required. After making enquiries, the DWP do not consider that she has ‘good reason’ for failing to attend the medical. So they determine that she is to be treated as not having limited capability. When Megan is notified of this she has a decision about her UC entitlement. Megan thinks she does have good reason for not attending the medical, and can challenge the decision.

How do you challenge a decision about your limited capability?

Firstly, you need to ask for the decision that you are unhappy about to be looked at again by the DWP. If you do not do this and do not have a response from the DWP following your request, you do not have the right of appeal to an appeal tribunal.

The requirement for you first to ask the DWP to look at the decision again is sometimes called the ‘mandatory reconsideration’ requirement. So your request for the decision to be looked at again is sometimes referred to as a ‘mandatory reconsideration’.

You do not have specifically to ask for a ‘mandatory reconsideration’. You could for example just say that you want the decision looked at again. Nor is there any formal need to ask for this in writing: you could make your request by telephone. In practice however the DWP prefer you to make your request using your online UC account. It is usually best for you to make your request that way if you can, or at least in writing, and to say that you are applying for a ‘mandatory reconsideration’ of the decision. That way, you avoid any misunderstanding and can show, if necessary, that you have made the request.

There is a time limit of one month (starting from the date you were notified of the decision) for making your request for the decision to be looked at again. You should try to make your request within that time if you can. If you apply after a month, but within 13 months of the end of that time limit, you should explain why your request is late and what you think is wrong with the decision. As long as your request is made within these time limits, the DWP should then issue a new decision in response to your request. That new decision should be in writing and is sometimes called a ‘mandatory reconsideration notice’ (the notification you get will usually use that phrase, but does not always). The new decision may or may not change the original decision, i.e. the one that you were unhappy about.

If you remain unhappy with the new decision in the ‘mandatory reconsideration notice’, you can then appeal to an appeal tribunal. The appeal tribunal is independent of the DWP and can make a new decision. Note that the appeal tribunal can look at all aspects of the decision, including even parts of the decision that you may be happy with. For example, if you are appealing because you think you have limited capability for work-related activity and should be in the support group, the appeal tribunal could reconsider whether you even have limited capability for work, i.e. whether you pass the WCA, although in practice this is not very common.

Your appeal must be in writing and include basic reasons for your appeal. It is best to use the official appeal form, Form SSCS1.

There is a basic time limit of one month for making you appeal, starting with the date you were sent the new decision in your ‘mandatory reconsideration notice’. Late appeals can be accepted up to 13 months from that date, but you should always explain why your application is late.

For more information on mandatory reconsiderations and appeals, see the Ask CPAG content on Mandatory Reconsideration and CPAG’s Welfare Benefits and Tax Credits Handbook. For more information on preparing for an appeal see CPAG’s Winning your benefit appeal: what you need to know.

Can you get UC whilst challenging the decision?

Because you can be entitled to UC even if you do not have limited capability, you can get UC whilst challenging the decision. You do not need to make a new claim just because of the decision on your limited capability. You still need to satisfy the normal UC rules, for example your income must be low enough and you must have accepted a ‘claimant commitment’.

However, whilst you are challenging the decision your UC entitlement is based on the decision that you are challenging. So for example if you are challenging a decision that you have failed the WCA, you are not treated as having limited capability whilst you are challenging the decision; or if you are challenging a decision that although you pass the WCA you do not have limited capability for work-related activity, you are not treated as being in the support group whilst you are challenging the decision.

Example

Roberta claimed UC but was assessed as failing the WCA, so is not regarded as having any limited capability. She challenges that including by appealing to an appeal tribunal. Whilst Roberta is challenging the decision, she can get UC as her income is low enough and she has accepted a claimant commitment. Roberta does not need to make a new claim for UC.

However, because she does not have any limited capability, Roberta does not get a work capability element, and may subject to ‘all work-related requirements’ whilst the challenge is being decided. Roberta decides to declare that she is unfit for work and ask that her requirements are adjusted accordingly – see How does limited capability for work affect UC?/What if all work-related requirements apply? above.