ESA AND POINTS

In order to be awarded ESA you must score at least 15 points. You do not have to score 15 points in each activity – it is the total points that matter

The first part of the work capability assessment finds out if you have a ‘limited capability for work’ and can therefore remain on ESA. A points system is used to see how well you can carry out a range of activities, both physical and ‘mental, cognitive and intellectual’.

Each activity is divided into different ‘descriptors’, which explain related tasks of varying degrees of difficulty. These have scores, ranging from 0 to 15 points. You score points when you are not able to perform a task described safely, to an acceptable standard, as often as you need to and in a reasonable time. You add together the highest score from each activity that applies to you. For a list of the descriptors, and the points that you get for each,

If you score 15 points, you qualify as having a limited capability for work and can stay on ESA. If not, you’ll need to claim jobseeker’s allowance instead, unless you challenge the decision

Even if the DWP decision maker decides that you do not pass the limited capability for work assessment, they can still treat you as having passed it if one of the following ‘exceptional circumstances’applies:

You are suffering from a life threatening disease, in relation to which there is medical evidence that the disease is uncontrollable or uncontrolled by a recognised therapeutic procedure; and in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure.

You suffer from some specific disease or bodily or mental disablement and consequently there would be a substantial risk to the mental or physical health of any person if you were found not to have a limited capability for work. This risk should be linked to work you could realistically do according to your education or skills. This circumstance will not apply to you if the risk could be significantly reduced by making reasonable adjustments to your workplace or by you taking medication as prescribed.

Mandatory reconsiderations

If you are refused ESA following the work capability assessment and you disagree with the decision, you can ask the DWP for a ‘mandatory reconsideration’

Challenging ESA work capability assessment decision

Appealing the decision

If your reconsideration request is unsuccessful, you can then appeal to an independent tribunal.

You may be able to appeal to the Upper Tribunal (Administrative Appeals Chamber) if you think there was a legal mistake with a decision made against you by certain lower tribunals and organisations.

You might be able to appeal if your case was about:

social security or child support

war pensions and armed forces compensation

mental health

special education needs or disabilities

a dispute that was heard by the General Regulatory Chamber

a decision made by the Disclosure and Barring Service

a decision made by the Traffic Commissioner (or the Transport Regulation Unit in Northern Ireland)

Contact the tribunal

England and Wales

adminappeals@hmcts.gsi.gov.uk Telephone: 020 7071 5662 Fax: 0870 324 0028 Find out about call charges

Upper Tribunal (Administrative Appeals Chamber) 5th floor 7 Rolls Buildings Fetter Lane London EC4A 1NL

How to appeal

You may have to ask for permission to appeal - it depends on your case.

If you’re appealing a decision made by another tribunal

You must get permission to appeal.

First ask the tribunal who made the decision for permission to appeal. You usually have to do this within 28 days of the decision - speak to that tribunal to find out the deadline.

Once you have permission, download and fill in the relevant appeal form.Send it to the address on the form within 1 month of getting permission.

If you’re refused permission

You can ask the Upper Tribunal (Administrative Appeals Chamber) for permission directly using the relevant permission form. Send it to the address on the form within 1 month of being refused.

How your case will be decided

A judge will make a decision using:

your appeal form

the documents you’ve provided

the documents used by the lower tribunal or organisation that decided your case

The decision will be sent to you by post.

If you lose your case

You may be able to appeal to a higher court if you think there was a legal mistake made by the tribunal.

Legislation

The tribunal must follow the rules and process set out in The Tribunal Procedure (Upper Tribunal) Rules 2008.

You have the right to appeal to an independent tribunal, the ‘First-tier Tribunal’, against most benefit decisions. However, you cannot appeal against a decision on a DWP-administered benefit until you have first asked the DWP to reconsider their decision. This is called a ‘mandatory reconsideration’ (see 2 below). If you disagree with the reconsidered decision, you can then appeal and take your case to a tribunal.

Freedom of information act,

data protection act

You have the right to get a copy of the information that is held about you. This is known as a subject access request.

This right of subject access means that you can make a request under the Data Protection Act to any organisation processing your personal data. The Act calls these organisations ‘data controllers’.

You can ask the organisation you think is holding, using or sharing the personal information you want, to supply you with copies of both paper and computer records and related information.

Black Triangle believes that if a disabled person was found fit for work, despite one of the new letters being submitted by their GP, and then experienced a deterioration in their condition, the Department for Work and Pensions (DWP) could be liable for damages.

Carty also believes that the letters could offer legal protection for GPs, who could otherwise be sued if they failed to alert the DWP to the risk of their patient’s health deteriorating if found fit for work.

he two regulations state that a claimant should not be found fit for work (regulation 29), or placed in the work-related activity group (regulation 35), if such a decision would pose “a substantial risk” to their “mental or physical health”.

Black Triangle is calling on disabled people preparing for their appeal to ask their GP to fill in the gaps in a short draft letter.

The letter states that the physical or mental health of the patient would “more likely than not” be harmed if they were found fit for work, or even found to have “limited capability for work” (the work-related activity group, for those expected to move gradually towards the job market).

Black Triangle believes that if a disabled person was found fit for work, despite one of the new letters being submitted by their GP, and then experienced a deterioration in their condition, the Department for Work and Pensions (DWP) could be liable for damages.

Carty also believes that the letters could offer legal protection for GPs, who could otherwise be sued if they failed to alert the DWP to the risk of their patient’s health deteriorating if found fit for work.

A spokeswoman for the Medical Defence Union, which offers GPs medical legal advice and insurance against being sued for clinical negligence, said the campaign was “not something we can comment on as it is [in] relation to a doctor’s clinical judgment which is not something we have a view on as it is up to each individual clinician”.