Ask CPAG Online - How should you pursue an appeal?
Click here for more information on appealing following an MR.
The following points are particularly relevant when appealing against an ESA decision:
- You should submit your appeal directly to the First-tier tribunal on form SSCS1, which must include your grounds for appeal.
- The appeal must be received by the tribunal within a calendar month of the date the MR notice was issued to you. If your appeal is late, explain why in detail with any supporting evidence (e.g. you were too ill to deal with your affairs, with a doctor’s letter). If the DWP objects to an extension of the time limit (up to a maximum 13 months), the tribunal must decide whether to admit your appeal out of time.
- The appeal form emphasises that a copy of the MR notice must be sent with the appeal. Without this, a clerk will return the appeal to you with a letter stating that it is non- compliant, allowing 21 days for the MR notice to be submitted, failing which the appeal may be ‘struck out’. The requirement to submit a MR notice can, however, be waived (e.g. where the DWP has refused to issue one, or duplicates or there has been a long delay in issuing the notice). Although these powers can be exercised by a clerk, you can ask a tribunal judge to reconsider any decision made by a clerk.
- It may be necessary to chase up delays and request an urgent hearing where you have no or insufficient money to live on.
- It is always best to request and attend an oral hearing to give direct evidence. Representation at the hearing will generally improve your prospects of success. If this is not possible, a written submission setting out your case will help focus the tribunal on the main issues and the relevant law and evidence.
- Details of who decides your appeal and the procedure at oral hearings can be found in Chapter 57 of the CPAG Handbook. General guidance on how to present your case can be found in Chapter 57(5). Note that your appeal is against the original decision and not the MR decision and that you must establish that the decision was wrong when it was made. The tribunal cannot take account of changes of circumstances subsequent to the decision under appeal. If your circumstances change after the decision (e.g. your medical condition gets significantly worse), you should consider making a fresh claim for ESA.
- The tribunal must decide whether the decision you are appealing against was legally correct, taking into account all the relevant evidence. If the appeal relates to whether you have LCW or LCWRA, they must apply the law as explained here (see ESA Problem Areas: Limited capability for work).
- When preparing your case and appeal submission, you need to explain the facts about your medical condition and how it affects you, and then show that you either score 15 points in respect of the descriptors (or satisfy one of the relevant descriptors for LCWRA) or should be treated as having LCW / LCWRA e.g. on the basis that there would otherwise be a substantial risk to health. You should be ready to answer questions about your everyday activities and limitations, and any inconsistencies in the medical evidence.
- You should be aware of any case law which supports or is unfavourable to your case (see ESA Problem Areas: Limited capability for work: ‘What is the significance of case law?’ If you rely on case law, you should include proper references in your appeal submission, and preferably provide copies for the tribunal.
- Medical evidence is often the key to the outcome of appeals relating to LCW/LCWRA. Supporting medical evidence confirming your diagnosis and giving details of its effects in the context of relevant descriptors is the most helpful. Difficulties in obtaining (and paying for) medical reports is a long-standing problem, which can sometimes be resolved by the intervention of an advice centre or lawyer. It is possible to ask the tribunal to obtain relevant medical records and reports.
- There is often a conflict between the ESA85 medical report and evidence you have provided. You should be ready to address any inconsistencies and point out any inaccuracies in the ESA85. Tribunals should not automatically give more weight to the ESA85 report.
- If your appeal is dismissed, the tribunal decision can be further appealed to the Upper Tribunal on the grounds of error of law. In appeals relating to LCW/LCWRA, tribunals frequently err in law by failing to:
- take account of all the evidence, by giving too much weight to the
ESA85 medical report;
- properly apply all the relevant descriptors, by making sufficient
findings of fact and applying the correct legal tests;
- properly consider whether there is a substantial risk to health if the
claimant is found not to have LCW or LCWRA;
- adequately explain their reasoning.