This guide is intended for claimants who have applied for Employment and Support Allowance or have been converted / transferred to it from Income Support or Incapacity Benefit but have not been successful in getting sufficient points or qualifying for it. This guide is here to try and help any Employment and Support Allowance Tribunal Appeal.
Latest statistics shows 28% are unsuccessful in their application with 37% being successful on appeal (Tables 2b and 3 http://research.dwp.gov.uk/asd/workingage/index.php?page=esa_wca and http://research.dwp.gov.uk/asd/workingage/esa_wca/esa_wca_summary_apr13.pdf)
1) We strongly advise you contact your local CAB or free local advice agency to help you with the initial stages of the appeal. Remember you only have 1 month to appeal once you get the decision letter unless you have a good reason for the delay. So seek advice asap.
2) We strongly recommend that you ask for an oral hearing as this gives you:
- More time to prepare (on average).
- Higher chance of success; as you more than anyone can explain your condition;
- Can have friends, support workers etc who help you can attend and give oral submissions as well;
3) Get evidence (not limited to GP’s)
- Use the Data Protection Act to get your medical history (which stipulates £10 – £50 fee); though a report may cost you significantly more, however some GP’s will not charge, so do ask them.
- Ask your support worker or other professionals to give a statement also if you have one.
4) Familiarise yourself with ESA criteria under schedule 2 and 3 of Employment and Support Allowances Regulation 2008.
Preparing for the hearing
1) Gather as much evidence as possible as stated above;
2) Go through the tribunal bundle and make notes on:
- Mistakes or amendments you wish to make from what you have written in your ESA 50;
- Anything you dispute of what is written in your Work Capability Assessment;
- Anything else you disagree with;
- Sort out the above and “group” them as per the different activities; walking, standing etc.
3) Draft submissions to take with you and send in advance. We recommend that you do this so you don’t forget to say anything and makes it less nerve-racking for you.
You may use our template below but there are many ways to do this, this is just the method we have adopted (it even differs within our office but success rate doesn’t ;)).
We recommend you draft the “representations” aspect as follows:
- I believe I should get X points for Activity Y as I cannot do…descriptor because;
- Why you cant do it and who helps / does it for you
- Where the esa 50 agrees with / WCA agrees with it
- Where medical / professional evidence agrees with it
- What aspects you dispute with ESA50 / WCA that says the contrary and justify why, (reference medical evidence as above again or other points).
HMCTS guidance Video
It is also useful to watch the video below so you know what to expect.
Tribunal Service Guide
The Tribunal service have also produced their own in depth guide to ESA. See the link below for a download.
Download Submission Template
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