Ask CPAG Online - Can you get ESA while you are challenging a decision?
Can you get paid pending a MR?
There is no provision for the payment of ESA pending a MR of a decision that you are not entitled to ESA. If you are only disputing disentitlement of part of an ESA award (e.g. the support component, or following the imposition of a sanction), the undisputed part of the award remains payable during the MR and any subsequent appeal.
You may be able to claim another benefit (e.g. jobseeker’s allowance), or reclaim ESA (e.g. where you are suffering from a new or significantly worsened condition). Note that if you live in a UC 'full service area, you cannot make a new claim for income-related ESA or income-based JSA (see UC Natural Migration).
Can you get paid pending an appeal?
If you are appealing against a decision on an ESA claim, you are only entitled to ESA pending the appeal if it is an appeal against:
- the first decision you have received stating that you do not have LCW; or
- the first decision following a previous decision by the DWP, a tribunal or a court that you do have LCW.1
Note that the decision must be that you do not have LCW because you fail to score 15 points in respect of the LCW descriptors or cannot be treated as having LCW (see ESA Problem Areas: Limited Capability for Work). You cannot get ESA pending an appeal against a decision that you are not entitled to ESA because you failed to submit an ESA50 questionnaire or attend a Maximus medical without good cause, or are not entitled to ESA for any other reason.
Note also that if you have claimed universal credit, you cannot get income-related ESA pending appeal because this benefit will have been abolished for you (see UC Natural Migration).
If you are entitled to ESA pending an appeal:
- you are paid the assessment phase rate of ESA (i.e. without a component);
- you do not have to make a new claim for ESA, but you must provide medical certificates (‘fit notes’) from your GP to cover the relevant period;2
- you are entitled soon as you have made your appeal, but there are often delays in getting your ESA restored – click here for more details on how your ESA is restored on appeal;
- your entitlement is backdated to the date your ESA was refused or stopped i.e. it can retrospectively cover the period while you were pursuing your MR;
- it is clearly in your interests to appeal as soon as possible, which may influence your decision whether to submit additional evidence during the MR, which could delay the process.
If you are not entitled to ESA pending an appeal, you may face a lengthy period without benefit while you are waiting for your appeal to be processed and listed for hearing. If you are unable to manage financially, the following options may be open to you:
- You could ask for your appeal to be dealt with urgently if you facing hardship or destitution.
- You can claim another benefit if you are eligible to do so. The most likely alternative is jobseeker’s allowance (JSA) which you can claim without prejudicing your ESA appeal, as long as you can satisfy the jobseeking conditions. Click here for more information on claiming JSA during an ESA appeal.
- You can reclaim ESA if you now satisfy the conditions of entitlement. If you are appealing against a decision that you do not have LCW, you can only get paid ESA on a reclaim if you are suffering from a new or significantly worsened medical condition See ESA Problem Areas; Can you get paid while waiting for a decision?
- You could claim local welfare assistance.