Ask CPAG Online - What can you claim pending a MR of an ESA decision?

If you have asked for a MR of a decision to refuse or disallow ESA because you are not assessed as having a limited capability for work (LCW), you are not entitled to the disputed ESA while you are waiting for your MR to be decided. Your only options for getting benefit are to:

  • reclaim contributory ESA (CESA) if you satisfy the conditons for getting if pending a new decision (see below);
  • reclaim income-related ESA(IRESA) if you live in a universal credit (UC) 'gateway area' and satisfy the conditions for getting ESA pending a new decision; or
  • claim income-based jobseeker’s allowance (IBJSA) if you live in a UC 'gateway area' and can satisfy the jobseeking conditions; or
  • claim UC if you live in a UC 'full service area'.

The difference between your options in a UC 'gateway' or 'full service' area is due to the fact that you cannnot make a new claim for IRESA or IBJSA if you live in a full service area (these benefits are abolished for you), whereas you can in a 'gateway area' because you do not satisfy the gateway conditions while you are disputing an ESA decision (see Chapter 2 of the CPAG Handbook and UC Natural Migration for details).

You only other option is to not claim another benefit while you are waiting for your MR to be decided (you may need to rely on local welfare assistance if you do not have enough money to live on). If the MR is decided in your favour, you should receive backdated ESA from the date it stopped. If the MR does not change the original decision, you can appeal to an independent tribunal. You may be able to get income related ESA pending the appeal, backdated to the date your ESA stopped (i.e. including the MR period - see below). 

Reclaiming ESA during a MR

If you reclaim CESA, or CESA / IRESA in a UC 'gateway area' after being refused or disallowed ESA because you do not have LCW and cannot be treated as not having LCW, you are only entitled to ESA pending a new decision on whether you have LCW if:1

  • your new claim is made at least 6 months after the previous LCW decision, if that decision was to treat you as not having LCW because you failed to return an ESA50 questionnaire or attend a medical examination; or
  • your ESA stopped because you failed to return an ESA50 questionnaire and you have since provided one; or
  • you are suffering from a new or significantly worsened disease or disablement since it was decided that you do not have LCW (see below).

In all cases, you must provide a medical certificate with your new claim.

The rules mean that you cannot get ESA pending a decision on whether you have LCW, if a previous decision was that you did not have LCW because you failed to score enough points and could not be treated as having LCW, unless since that decision was made, you are have a new or significantly worsened medical condition.

There is no legal definition of a ‘new’ or ‘significantly worsened’ condition, although case law suggests that a condition has only ‘significantly worsened’ if you are likely to satisfy the work capability assessment (see CIB/1959/1997 and CIB/2198/1997). You should be sent a form ESA83 to complete asking for details of how your medical condition has changed since your previous work capability assessment.

In practice you will need to submit medical evidence which diagnoses a new condition (this could be related to the previous condition e.g. fibromyalgia, previously chronic fatigue), or gives details of how an existing condition has significantly worsened. In some cases, being without money could exacerbate a mental health condition.

The DWP may seek additional evidence from your doctor or advice from Maximus. If the DWP refuses to accept that you are suffering with a new or significantly worsened condition, you will normally get a new decision that you are not entited to ESA because you do not have LCW, which you can only challenge by requesting a MR. If the evidence is unclear, you may be required to submit a new ESA50 questionnaire and attend a Maximus medical examination, pending which you are not entitled to ESA.

It may be possible to request a short-term benefit advance if you have reclaimed ESA on the basis of a new or significantly worsened condition if you are in financial need.

Example letter accompanying reclaim for ESA

Jobcentre Plus Letter

Claiming JSA during an ESA dispute

If you live in a UC 'gateway area', you can claim jobseeker’s allowance (JSA) while you are disputing an ESA dispute without prejudicing your case that you are entitled to ESA. You must, however, satisfy the jobseeking conditions and need to be aware of the restrictions you can place on your jobseeking activity without risking a disallowance or sanction.

It is important to understand that you cannot claim JSA if you state that you are too sick to work. This can result in a ‘revolving door scenario of being told you cannot claim ESA because you are fit to work and cannot claim JSA because you are unfit to work.

You need to:

  • insist on your right to make a JSA claim, even though you are disputing an ESA decision and are covered by a current medical certificate, when you make your telephone claim and attend your initial interview at the jobcentre with a ‘work coach';
  • agree a ‘claimant commitment’ which sets out details of your availability for work and work seeking activity, taking into account realistic and allowable restrictions in the light of your medical condition (see Chapter 45 of the CPAG Handbook);
  • satisfy the jobseeking conditions of being available for work and actively seeking work (see chapter 45 of the CPAG Handbook).

If your claim is refused because of the jobseeking conditions, or you are threatened with a sanction, see Ask CPAG Benefit Sanctions.

If you become sick while you are on JSA, you can remain entitled to JSA without having to satisfy the jobseeking conditions for up to 13 weeks. If you are suffering from a new or significantly worsened medical condition, you will need to decide whether to stay on JSA or whether you should instead reclaim ESA which is paid at a higher rate after the assessment period.

If you are entitled to ESA while you are appealing against a LCW decision, you will need to relinquish your JSA claim before your ESA can be restored.

Claiming UC during an ESA dispute

If you live in a UC 'full service area' you cannot make a new claim for IRESA. Your only option for claiming means-tested support is to make a claim for UC. Once you have claimed UC, you cannot get back onto IRESA, even if your MR is successful.

Getting backdated ESA when you appeal2

You can get ESA while you are appealing against the first decision you have received from the DWP that you do not have LCW, or the first such decision following a previous decision by the DWP, a tribunal or a court that you did have LCW.

The rules effectively mean that you can only get ESA if you have appealed against an initial refusal of ESA or the disallowance of an existing award. You cannot get ESA if you are appealing against a decision on a repeat claim, unless your existing condition has significantly worsened or you have a new condition that limits your capacity to work.

You must:

  • provide medical certificates (‘statements of fitness for work’) from your GP; and
  • be appealing against a decision that you do not have LCW because you have scored insufficient points to satisfy the’ work capability assessment’ and cannot be ‘treated’ as having LCW (e.g. because there would be a substantial risk to your health).

Note that you cannot get ESA pending an appeal against a decision that you are treated as not having LCW because you failed to submit an ESA50 questionnaire or attend a medical.

If you live a UC 'full service area', you can only get IRESA pending appeal if you have not already made a claim for UC (see UC Natural Migration).

You are entitled to ESA as soon as you make your appeal, and without having to submit a claim. There are often delays in getting your ESA paid after an appeal. This problem is addressed in Appealing after a mandatory reconsideration.

Once your ESA is awarded, it is backdated to the date of the original decision to refuse or disallow your ESA. This means it can cover the period while you were waiting for your MR to be decided, but only if you provide medical certificates which cover this period.

If you are entitled to ESA pending an appeal, it is clearly in your interests to apply for a MR and get a decision as soon as possible. You can then appeal if the decision is unfavourable and get ESA awarded from the date of the original decision.

This may influence whether you decide to submit additional information and evidence during the MR, which could increase your chances of a successful outcome, but could also significantly delay the process (see Pursuing a Mandatory Reconsideration). You will also need to weigh up whether you can manage financially without claiming another benefit (e.g. JSA or UC) until your MR application has been decided and you can get back onto ESA.