Top Tips for challenging DWP refusals – PIP and ESA
The most common types of social security related to illnesses are Employment Support Allowance (ESA) and Personal Independent Payment (PIP previously known as disability living allowance or DLA). The Department of Work and Pensions (DWP) awards up to £70-150 a week on a successful application. Even modest, these benefits provide a lifeline for those who have no other means of earning.
However, all too often we find the DWP refuses application and completely disregards the factual circumstances of the applicant. The applications are long, requiring a lot of detail and can take 2-4 months for consideration. There is also a rigorous health assessment, some even 1-2 hours to check whether the applicant meets the criteria. Most applicants are too exhausted to challenge a DWP decision after embarking on a lengthy application process and some realistically don’t even have the means to take private action. This means many worthy applicants are living in utter financial distress whilst continuing to suffer from debilitating illnesses. This article is for those applicants who are in such situations to help them be inspired to challenge DWP refusals.
What is PIP?
When someone feels their personal independence is compromised as a result of an illness or special need then they can apply for PIP. It could be something inherent like from birth or developed over time such as hearing loss from typhoid. This benefit has two limbs – daily living and mobility. A person has to get a minimum of 8 points to qualify for the standard rate payment. There is an enhanced rate for those who qualify 12 points or over also known as the higher rate PIP. An applicant would have to go through a health assessment by a registered nurse, or occupational therapist to satisfy the DWP of his/her eligibility.
What is ESA?
When someone feels they are unable to work or look for work as a result of their illnesses then they can apply for ESA. It can be contribution based (new style ESA) which is dependent on the level of national insurance contributions or income based, which is not based on NI contribution. There is a means test for income-based ESA and certain levels of savings or capital may render an applicant unsuccessful. An applicant would have to go through a work capability assessment by a registered nurse, or a disability specialist to satisfy the DWP of his/her eligibility. Depending on the particular descriptors or level of points acquired, a successful applicant will either qualify for work related activity (WRA) group or support group. The WRA group will continue to be monitored by personal advisors or work coaches who will keep in touch to provide training and support for job applications and mentoring to help the applicant return to work. Support group applicants are deemed to unwell for even work-related activity and may receive occasional requests for information on health conditions and reviews.
Many applicants can be eligible for both PIP and ESA at the same time. It is important to note that PIP payments will count as income for any new income-based ESA applicant, and will be considered in the means test.
Mandatory reconsideration and appeal process
There are many kinds of refusal: –
- The most common is outright refusal with zero points.
- DWP awarded some points but it is not even enough to qualify for the standard rate PIP or WRA group ESA.
- The applicant applied for higher rate PIP or for being in the support group ESA, however DWP decided on standard rate or WRA group.
Refusals are frustrating regardless of the type and can even aggravate the health conditions especially for applicants who claimed on the basis of mental health. The sooner the decision can be challenged therefore the better. The first step is to apply for mandatory reconsideration (MR) of the refusal. There is no set form or template for seeking MR. It can be a one liner saying that the applicant does not agree with the DWP or can be detailed, explaining all the points of contention supplemented by medical evidence.
It is worth reflecting on the type of refusal at this stage. If it was an outright refusal with 0 points when many descriptors were engaged, then a one-line MR is the most time efficient approach as DWP is unlikely to reconsider favourably. However, if some points were awarded then it is worthwhile addressing the areas where points were not given or lower points were given and provide medical evidence for those specific points.
GP letters clearly documenting the areas where more points could be claimed is the most important evidence. The second most important evidence are medical records for at least one year preceding the date of the refusal. Many applicants provide a lot of hospital appointment letters; however, they have little to no evidential strength. A brief and outlined MR letter supported with a GP letter and medical records needs to be sent as soon as possible and no later than a month from the refusal date. In the event GP letters and records take time then, more time can be requested or just the MR letter can be sent in by itself as evidence can be sent in any time before the hearing. Many applicants can choose to post at the address in the original refusal decision or request MR online if they have an email address.
The DWP can request information after a reconsideration request or take a decision based on what was provided generally within two months from the reconsideration request. If the refusal is maintained then DWP will issue a mandatory reconsideration notice (MRN) which is needed to progress the matter to appeal the decision to an independent Tribunal. Applicants usually have a month to appeal the DWP decision unless time extension is requested. Similar to the MR stage, grounds of appeal can be brief and short or detailed, supported or unsupported by evidence. If no evidence is given when the appeal is lodged, then it will need to be given definitely before the appeal hearing.
Once appeal is lodged, DWP can contest the appeal and issue an appeal bundle, or still review the decision and recommend further points. In the appeal bundle, the health assessor’s report and the DWP decision maker’s reasons for reliance on the health assessor are the most important element to challenge. It is highly recommended to make a focused representation to the Tribunal challenging the specific observations of the health professional, regardless of what was stated as the grounds of appeal.
At the hearing
Hearings can be in person, over telephone or over video conferencing, which is the most preferred mode since the onset of pandemic. There is a panel consisting of a judge, doctor and disability specialist. On many occasions, there may be a representative of DWP as well and an interpreter if one was requested. The approach of the social security tribunal is inquisitorial rather than adversarial, which means the panel will ask a lot of questions around the descriptors claimed, medication, and medical evidence, treatment plans. It can be quite difficult for an applicant/appellant to address the questions however it is best to take time and answer them since the panel is well experienced and considerate. The panel is also independent from the DWP so has the ability to assess the circumstances more holistically and practically. Most appeals of DWP’s outright refusals, are successfully upheld with the appropriate level of medical evidence and some preparation.
There is a lot of help available from third sector organisations – Citizen Advice Bureaus, Advice centres, local community organisation mosques, churches, schools, which hold advice surgeries to assist in appealing DWP decisions. They can also assist with drafting the MR letter and lodging the appeals. So, it is always worth searching and sourcing out local support networks. However, lesser resources are available for advocacy support at Tribunal, which can really make a difference to an appeal where no points were at all scored. It’s always wise to see if there are any pro bono networks and specialised solicitor’s firms who can assist with the appeal representation on a contingent fee basis or for a reduced fee.
Light at the end of the tunnel
Many applicants cannot even think of challenging a DWP refusal on account of their ill health and financial constraints. Even if the conditions are deteriorating, applicants should pace themselves as best as they can and seek time if the MR and appeal deadlines cannot be genuinely met as a result of health difficulties and keep records of all communication. Generally, DWP keeps such requests.
The MR and appeal stages are all free to undertake. Furthermore, many applicants do not realise that on the appeal being successful they become entitled to all payments backdated from the date of application. Given that it usually takes around a year from application to appeal, applicants get a handsome pot of money generally within 2-3 weeks of a successful appeal. Therefore, preparing a strong appeal can go a long way, even if it means privately engaging specialist advisors or solicitors.
Top Tips to challenge DWP decision
Note the relevant date – That’s the date on the letter of the original refusal decision. When collecting evidence such as medical records or formulating grounds always keep the relevant date in mind. Details of health conditions a year to 3 years prior to the relevant date are useful, any evidence of health conditions after that date is not relevant for Tribunal or DWP for that matter.
Keep track of communications with DWP especially for time extensions– Always ask for a certificate of posting at the post office till, keep records of email and screenshot of e-journals if communications are taking place online.
Request time extension if more time is needed to get the requisite medical evidence especially to the Tribunal who is independent and is more likely to overturn a DWP refusal decision.
Don’t waste time – in the event there are outright refusals with no points, it is best to do short and simple MRs and grounds of appeal to get the best evidence to challenge – the health professional’s report. The report can help an advisor to understand and go through the actual reasoning behind the refusal and can help the applicant/appellant take more focused steps to formulate a stronger representation for the hearing.
Request support if needed – interpreter, step free access, audio ports, visual aides are all available if requested at the appeal.
Gather evidence from GP surgeries, specialist clinics, osteopaths, pain clinics, mental health practitioners and counsellors on health conditions at the relevant date (date of refusal). The letters should have treatment plans, list of medication and should complement the conditions complained off. At times a statement from carers detailing the level of support given can greatly assist the Tribunal in taking an informed view of the applicant’s conditions.
Request caps on future assessments –At the hearing request a year or two-year cap on future assessment basing it on gravity of health conditions. If granted then it is always a treat to know that the next DWP assessment is not due any time soon.
Save a pot of money for advocacy support at hearing. Source support from local advisory clinics. Research pro-bono centres and check for availability of advocacy workers or specialist solicitor firms.
Source support of friends and family – challenging a DWP decision can be a very exhausting process and could be mentally draining. Look for a support network who can help with information and help you go about the appeal such as accompanying you at the hearing. Challenging a DWP decision should not be a lonely affair.