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Employment and Support Allowance challenges

You may be unhappy with a decision made about a benefit you've claimed. For example, you may have been refused a benefit or you may have been receiving a benefit but a decision has been made to stop paying it.

You can ask the Department for Work and Pensions (DWP) to look at a decision again or you might be able to appeal to an independent appeal tribunal. This section looks at these options in more detail and contains information on the rules relating to deadlines and how to challenge a decision.

If you're unhappy about the way your claim has been dealt with, you might want to make a complaint. There is information about how to do this below.

Just as you can ask for a decision to be reconsidered, the DWP can look at decisions again to check that they're correct. They can do this without you asking them to. If the DWP looks at a decision again and decides to stop the benefit, you can challenge that decision.

There is information in the pages below on what to do if the DWP decides that you've been overpaid benefit and that they're going to recover the overpaid benefit from you.

Click on the bars below for more detailed information on challenging Employment and Support Allowance decisions.

Deadlines

If you want a decision about your benefit to be looked at again or if you decide to appeal to a tribunal, you must take action within certain time limits. These are called deadlines. The rules are strict and, unless there's a good reason for delay, not meeting a deadline could prevent you from taking further action.

If you want a decision to be looked at again, you normally have to ask the Department for Work and Pensions to reconsider within one month of the date on the letter informing you of the decision.

If you want to appeal to a tribunal against the decision, you have one calendar month from the date the written decision was sent to you or, if you have already asked for the decision to be looked at again, one calendar month from the date on the letter saying whether or not the decision has been changed.

If you want more information about the reasons for the decision that's been made, ask for a written statement of reasons within one month of being sent the decision. If you're sent written reasons within that month, you have an extra 14 days in which to ask for the decision to be looked at again or in which to appeal against it. If the reasons aren't sent within the month, you'll have 14 days from whenever they're sent.

If you've asked for more information about the reasons for the decision, make sure that you ask for the decision to be looked at again or appeal within the one-month time limit, because you won't necessarily receive an extra 14 days.

Sometimes, it's not clear from the decision letter whether you've already been provided with written reasons. If you're not sure whether you're going to get an extra 14 days, ask for the decision to be looked at again or appeal within the one-month time limit.

If you've missed the deadline

You may be able to get the decision looked at again or make your appeal even if the one-month deadline has expired. The time limit can't be extended for more than one year after the deadline has expired. If a deadline has been missed, seek help.

Considerations when challenging

It's possible to appeal to a tribunal against many decisions about a claim for benefit, but in some cases an appeal isn't possible. The following examples are a guide to the decisions that can be appealed against and those that can only be looked at again.

The following sorts of decision can be appealed:

  • whether you're entitled to the benefit or the rate you're entitled to
  • whether you've been overpaid benefit and have to pay it back
  • whether your claim has been made in a valid way
  • whether your benefit can be backdated

The following sorts of decision can't be appealed:

  • whether your payment of benefit should be suspended
  • whether you should receive an interim payment of benefit
  • whether someone can be your appointee for benefit purposes (an appointee is someone who acts on your behalf)
  • whether your claim for one benefit can be treated as a claim for a different benefit

Even if a decision can't be appealed, you can ask for the decision to be looked at again.

Deciding whether to get the decision looked at again or appeal

If you're unhappy with the decision that's been made about your claim, you'll need to decide whether to appeal to a tribunal straight away or whether you want to ask for the decision to be looked at again. You can ask for the decision to be looked at again first of all, and then if you're not happy with that decision, appeal.

The advantages of asking for the decision to be looked at again first are:

  • you may receive a favourable decision more quickly than if you appealed to a tribunal
  • you may avoid the inconvenience or stress of attending a tribunal hearing
  • if the decision-maker has looked at the decision again and you're still unhappy with the decision, you can still appeal to a tribunal

The disadvantage of asking for the decision to be looked at again first is that, if you haven't got any further evidence to send or you can't point out any obvious mistakes in the decision, it's unlikely that the decision will be changed at this stage by the Department for Work and Pensions (DWP). Because of this, an appeal may be the best way to proceed and you would only be delaying matters if you first asked for the decision to be looked at again.

Deciding whether to ask for reasons for the decision

In many cases, the letter informing you of the decision about your claim for benefit will be quite brief and you'll want more information. Asking for reasons may be a good idea.

You can telephone or visit a benefits office in person to ask for an explanation. If you do so, the one-month time limit for challenging the decision will apply. If you ask for written reasons, the time limit can be extended by 14 days (see Deadlines, above).

If you don't get reasons for the decision, or the reasons are quite brief, you'll find much more information in the case papers. The case papers are all the written material that the decision-maker has used to make the decision. They include the claim form and letters sent by you. These are sent out by the DWP after you've asked for an appeal. If you'd like to receive the case papers at an earlier stage, ask for them to be sent to you.

Further advice

If you're unsure about whether or how to challenge a decision, seek advice. You can get advice from:

You can find a solicitor through the Law Society. If you want to use a solicitor, check whether you are entitled to Legal Aid.

Gathering evidence

If you want your benefit claim to be looked at again or you have appealed to a tribunal, start gathering evidence as soon as you can.

Read the papers about your benefit claim, which should contain all the paperwork the Department for Work and Pensions (DWP) used to make its decision. Note all the areas where you feel the DWP has made an error, and any facts you feel it has ignored or not looked at properly.

Read more about the benefit rules. Your local library may have copies of useful books such as the Child Poverty Action Group’s Welfare Benefits & Tax Credits Handbook and Disability Rights UK's Disability Rights Handbook.

What type of evidence would be useful?

Start by looking at the reasons for the decision. This will help you decide what kind of evidence might be available to support your case.

Below are some types of evidence you might be able to use. These are only examples. Think about what will be helpful in your own case and how you can show the wrong decision was made.

If you've been turned down for Employment and Support Allowance (ESA) because the DWP doesn't think your disability or ill health is sufficiently severe to meet the rules for the benefit, try to get more medical evidence from your GP or hospital. It might also be a good idea to seek professional help with your challenge. You can get advice from:

You can find a solicitor through the Law Society. If you want to use a solicitor, check whether you're entitled to Legal Aid.

If you've been refused ESA because the DWP believes you have savings above the capital limit, you could use copies of your bank statements as evidence to show that you have less savings than the DWP thinks you have.

The amount of your earnings, or the period for which the earnings are paid, can be clarified with copies of your contract of employment, pay slips or a letter from your employer.

Evidence from people who know you

Family, friends or professionals who are supporting you or the person you're looking after may be prepared to go with you to a tribunal hearing to give evidence on your behalf.

Even if they can't, any written evidence they could provide might be helpful. For example, if the DWP has decided that you're living with another person as part of a couple, but you're living in the same place as two single people, a statement or letter from the person you live with explaining the nature of your relationship might help.

Anyone providing evidence in writing should ensure their name and address are on any letters or notes they provide. They should sign and date any written evidence. They don't need to write information in a very formal way, but the clearer it is, the more likely it is to help.

Getting advice and support

If you'd like to get the decision about your benefit claim changed, you may find it helpful to get advice about how to do this or find someone to represent you at an appeal tribunal. 

An advice worker or solicitor may be able to:

  • give you any information you need about the rules for the benefit you're claiming
  • advise you about tactics, deadlines and what evidence would be useful to provide when challenging a benefit decision
  • represent you at a tribunal or advise you about the procedure at a tribunal

Advice about the law

You may be able to argue your case on a common-sense basis and provide evidence showing the decision is wrong because it was based on inaccurate information.

Sometimes, however, there are more complex legal reasons for your benefit being refused. It's particularly important to find some help if:

  • you don't fully understand the case papers
  • you don't know how to argue against the reasons given by the Department for Work and Pensions (DWP) for refusing your claim

The following organisations may be able to help:

  • Citizens Advice Bureau 
  • a local  law centre
  • a local authority welfare rights service (contact the local authority to see if there's a welfare rights service in your area)
  • a firm of solicitors that specialises in welfare benefits (you may qualify for legal aid, although this won't cover the cost of representing you at a tribunal)
  • a voluntary organisation such as a carer’s centre
  • a trade union, if you're a member of one

How to challenge

There are two ways to challenge a decision. You can ask for the decision to be looked at again. You can also appeal against the decision.

For more details on what decisions can and can't be appealed and the pros and cons of challenging a decision, see Considerations when challenging, above. There are deadlines for challenging decisions (see Deadlines, above).

It helps if you have the decision letter with you when you challenge a decision, so that you can give details such as your national insurance number and the date of the decision.

If you want the decision to be looked at again by the Department for Work and Pensions (DWP):

  • You can telephone or visit a benefits office to ask for your decision to be looked at again, but it's normally better to put the request in writing. If you've telephoned or visited an office, it's a good idea to confirm in writing that you want the decision to be looked at again.
  • Explain in writing why you think the decision is wrong.
  • If possible, send any further evidence with your written request. If it's not available yet, mention in your letter that you'll send it as soon as you can.
  • Keep a copy of your letters and any further evidence.

If you want to appeal, you'll need to appeal in writing, normally using an appeal form. This is contained in a leaflet called "If you think our decision is wrong" (leaflet GL24). This leaflet also contains information about the appeals process. You can get this from a benefits office or advice organisation.

On the appeal form you'll need to:

  • provide your name, address, telephone number, date of birth and national insurance number
  • say whether you've arranged for someone to represent you at the appeal and, if so, give the representative’s contact details. If you want a representative but don't yet have one, you'll be able to supply this information at a later date
  • provide the name of the benefit you're appealing about and the date of the decision
  • give the reasons why you disagree with the decision. These should be as specific as possible
  • sign and date the form

If you have any further information or evidence available at this stage, you can send it with the appeal form. This can increase the chance of the DWP changing the decision before the case goes to an appeal tribunal.

You must be careful to make sure the benefits office receives the appeal within one month of the date on the letter telling you about the decision (see Deadlines, above).

Common questions

Can I send a letter instead of an appeal form?

If you're near the deadline for appealing but you don't have the right form, you can send a letter. If all the information listed above is included in the letter, the DWP will almost always accept the appeal as valid.

What do I do if I miss some important information?

The DWP may return the appeal form or letter to you asking you to provide any information you left out. You will be allowed at least 14 days to return this. Even if the DWP hasn't asked for further information, you can still send any information you think is important. Send it as soon as possible.

Getting the decision looked at again

One way to challenge a decision is to ask the Department for Work and Pensions (DWP) to look at the decision again. The other is to appeal to an appeal tribunal.

When you ask the DWP to look at a decision again, a decision-maker within the DWP will examine all the case papers. The case papers are the forms you've completed and any letters or other documents you've sent. Having looked at the case papers, the decision-maker will see if they can come to a different decision. They will inform you of the outcome.

You don't have to go and explain your case in person. The decision-maker will base their decision on the case papers. 

If you've been refused a benefit, you'll need to send in more evidence to show why you think you're entitled to receive it. See Gathering evidence, above, for more tips on the sort of information that might be helpful. The DWP may have made the decision without knowing all the facts. Explain what you think the facts are.

You may want to get someone to help you challenge the decision. See Getting advice and support, above, for ideas about who might be able to help.

If you've been refused a benefit, you have one month to ask the DWP to look at the decision again. See Deadlines, above, for more information. If the DWP agrees that you're entitled to the benefit, you'll be paid the benefit from the day you first claimed it.

If a decision made on your claim was based on an official error, the decision can be looked at again at any time. If benefit can be awarded, it can be paid from the date of the original claim.

Appeals

You may want to challenge a benefit decision by appealing to an appeal tribunal. An appeal tribunal is independent of the Department for Work and Pensions (DWP). They're organised by the Tribunals Service. The Tribunals Service also employs the tribunal members who make the decisions at appeal hearings.

The enquiry form

Once you've requested an appeal against a benefit decision, the Tribunals Service will send you an enquiry form asking whether you want an oral or paper hearing.

The enquiry form also asks whether you have any more evidence to send and if there are any dates when you would be unable to attend an oral hearing if you've asked for one. It also asks whether you need an interpreter or for any other special arrangements to be made. You must return the enquiry form within 14 days. The appeal may not go ahead if the form is not returned in time.

The DWP will prepare the case papers and send one copy to you and one to the Tribunals Service.

Oral hearings and paper hearings

An oral hearing is a tribunal where you appear in person and explain why you think the decision on the benefit you've claimed is wrong. The tribunal will ask you questions about the facts in your case. You can take someone with you for support and you can ask other people to give evidence about your case.

A paper hearing is one where you don't attend. The tribunal looks at all the information in the case papers and makes a decision based on that information. The case papers include the claim form, any letters that have been sent by you and any other reports or documents that are relevant.

Why oral hearings are best

In most cases, you stand a better chance of success if you choose to go to an oral hearing. This is because most of us are better at explaining things by talking to other people than by putting them in writing. Also, the tribunal will be able to ask questions and may raise points that you didn't even know were relevant.

You may be able to find someone to represent you at the appeal hearing. A specialist advice worker from an advice centre may be able to do this. If you do have a representative, you'll normally still need to attend the hearing with them. This is because you may need to answer questions about the facts in your case and a representative can't do this for you.

If a specialist advice worker can't represent you, they may be able to help you prepare for the tribunal. The representative may also be able to help put your argument about the decision in writing.

The enquiry form asks you to say if you'll be sending further evidence and, if so, by what date. Try to get any evidence to the Tribunals Service by the date you've given. This is especially important if you've asked for a paper hearing because you won't necessarily know when that hearing is going to take place.

If you've chosen an oral hearing, you should be given at least 14 days' notice of the date, unless you've agreed to less notice.

At the appeal hearing

The tribunal at an oral hearing consists of a legally qualified person who acts as the chairman or chairwoman of the hearing.

The rules of procedure aren't strict. The chairman or woman of the tribunal decides who speaks and when, and makes sure that you get a fair chance to present your case. You'll be asked questions about your case and given the opportunity to explain your situation.

It helps to be prepared. Before the hearing, make notes of what you want to say. Lay out the main points you want to raise to explain why you think the decision is wrong. Be clear about what you think the correct decision would be and set out what other evidence you may have to support your case.

The decision is usually made on the same day and you'll be given a short decision notice that will tell you what decision has been made by the tribunal.

Official error

You can ask for a decision to be looked at again at any time if there's been an official error.

For benefits other than Child Benefit and Guardian’s Allowance, this means an error made by an officer of the Department for Work and Pensions (DWP), a local authority or Her Majesty’s Revenue & Customs (HMRC). It also means someone acting on behalf of, or providing services to, a local authority. Finally, other than for Housing Benefit and Council Tax Benefit, it also includes an error made by someone providing services to the DWP.

The following could be considered to be errors of law:

  • The decision-maker had evidence when they made the decision on the case that they failed to take into account, even though it was relevant.
  • The DWP, local authority or HMRC had written evidence of entitlement but failed to give it to the decision-maker dealing with the claim when the earlier decision was made.
  • The decision-maker made an error of law. This doesn't apply if the decision-maker is only shown to have made an error of law after a later decision of a commissioner or a court.

To argue that there is an official error, you must show that no one else caused or contributed to the error. This means that it won't be an official error if you or your representative caused or contributed to the error.

Complaints

If you're unhappy with how your claim for benefit has been processed or how you were treated, consider making a complaint.

Complaints about the Department for Work and Pensions

You normally need to take the following action if your complaint is about the service from the Department for Work and Pensions (DWP):

  • First, contact the person who was dealing with your claim or that person’s manager. There's no need to wait until there's been a decision on the claim.
  • If you aren't satisfied, you can ask for the details of the district manager of that benefit office and contact them with your complaint.
  • If you're still not satisfied, contact the chief executive of the DWP. The district manager will give you the contact details.
  • If you're still not happy, ask the independent case examiner to look at your complaint. You should do this particularly if the complaint involves failure to follow proper procedures, excessive delay or poor customer service. You should normally contact the independent case examiner no later than six months after the final response received from the DWP. The independent case examiner can be reached on 0845 6060 777 (textphone 0151 801 8888) or online.

At any stage, you can ask your MP to take up the complaint on your behalf. They may agree to refer the matter to the Parliamentary and Health Service Ombudsman. The Ombudsman will investigate your case if they think you may have experienced injustice because of the action or inaction of the DWP.

Common questions

Will I be entitled to any compensation?

The DWP will sometimes agree to pay you compensation. They use an official guide to help calculate the amount you should be paid. Ask to be compensated not only for any benefit you've lost, but also for interest on the arrears of benefit and to cover any expenses, such as telephone calls. Also ask for payment to compensate you for any hardship or distress caused by the mistake.

What if I want to complain about a delay?

The DWP has target times in which to process claims for different benefits. If the claim takes too long to process, the claimant may be entitled to compensation.

How can I complain about how an appeal was handled?

If the complaint concerns how your appeal was processed (for example, if you weren't sent paperwork), contact the Tribunals Service itself.

If you're concerned about the way in which members of a tribunal behaved towards you during an appeal hearing, contact the chair of the region where the tribunal was heard. To find out who this is, contact the Tribunals Service.

Overpayments

Sometimes, people are paid more benefit than they're entitled to. An overpayment of benefit may be caused by the Department for Work and Pensions (DWP) making a mistake. It might also be caused if you make a mistake or contribute to a mistake being made. You can do this in two ways. You might fail to disclose something that you should have told the DWP, or you might have misrepresented an important fact. Sometimes, the DWP can recover the overpayment. This means they ask you to pay it back.

How the DWP decides if there's been an overpayment

The DWP can look into whether someone has been overpaid for a number of reasons. For example, the DWP might find out that you have too much income or savings and so aren't entitled to Employment and Support Allowance (ESA). They may also think that you've become a full-time student or that you're in a couple rather than someone who can claim as a single person.

It will then investigate to see whether you contributed to the error that caused the overpayment in some way, even if it wasn't deliberate on your part. Unless the money is legally recoverable (because you failed to disclose information or misrepresented information), you won't have to pay the overpayment back. If you feel under pressure from the DWP to do so, get advice from a welfare benefits specialist or legal advice service.

The DWP may decide that at a particular date in the past, you should have contacted them about a change in circumstances but failed to do so. If this happens, the DWP will calculate the overpayment from the date that they think you should have notified them of the change of circumstances.

How overpayment is reclaimed

The DWP may decide not to recover the overpayment if it's small. The DWP may also decide not to recover all or some of the overpayment if they accept that you acted in good faith and that recovery would cause hardship.

A recoverable overpayment can be deducted from your ongoing benefit payments. In some cases, the DWP may want to take proceedings in court against you to recover the money. This rarely happens, but if it does, you'll need legal advice. You can get advice from:

You can find a solicitor through the Law Society. If you want to use a solicitor, check whether you are entitled to Legal Aid.

You can challenge the decision that you've been paid the wrong amount or that it can be recovered from you. You can also challenge decisions about the amount of the overpayment or the period of time it covers.

Many overpayments are caused by innocent mistakes. Just because there's been an overpayment, it doesn't mean that you've acted dishonestly. However, if the DWP accuses you of acting dishonestly or fraudulently, you'll need to get legal advice as soon as possible. If the DWP decides fraud is involved, they could prosecute you. Alternatively, you may be given the option of paying a penalty of 30% of the overpayment.

Misrepresentation

If you've given the Department for Work and Pensions (DWP) incorrect information about you or your circumstances, the DWP may argue that you've misrepresented important facts. The DWP may then argue that this has caused it to pay you too much benefit. This is called an overpayment. You may be asked to pay some or all of the overpayment back.

Important facts

Anything that affects entitlement to your benefit can count as an important fact. What an important fact is will depend on individual circumstances. Even if you honestly thought the information you gave was correct, if it's later found to be incorrect, that will count as misrepresentation.

Example

When Betty claimed Employment and Support Allowance (ESA) as a carer, she told the DWP that she had savings of £5,000. Betty does have these savings, but she also has another savings account where she has saved £3,000 that she's planning to use to pay for her funeral. The DWP can take the £3,000 into account as well as the £5,000 that Betty told them about. Betty has misrepresented the amount of savings that she has.

Checks

If someone helped you to complete a claim form and they didn't realise that the contents were incorrect, you may be able to argue that the misrepresentation was not your fault. However, the DWP will normally expect you to have done your best to check that the contents of the form were correct before you signed it.

Even if you have misrepresented an important fact, it may not have caused the overpayment, or may have only caused some of it. Therefore, you need to find out why you were paid too much benefit. For example, it's possible that the benefits office obtained the correct information from elsewhere about your entitlement to benefit, but failed to act on it, and this failure to act by the DWP caused the overpayment. If this was the case, all or part of the overpayment may not be recoverable.

If the DWP makes a decision that you've been overpaid and that the overpayment is recoverable from you, you can challenge the decision. It may be a good idea to get legal help with challenging an overpayment decision if possible.

When challenging a decision to recover an overpayment, it's necessary to decide whether a misrepresentation of information caused an overpayment or whether the overpayment was caused solely by an official error.

Some key points you may wish to raise if you're challenging a misrepresentation overpayment decision are:

  • the nature of the information you gave to the DWP in relation to the benefit
  • where you sent the information and when 
  • whether you have any proof that you've provided information, for example receipts for documents handed in at a benefit office or recorded delivery receipts

Failure to disclose

If you fail to inform the Department for Work and Pensions (DWP) about an important fact about you or your circumstances, it's called a failure to disclose. If the failure to disclose causes the DWP to make an incorrect decision about your claim, you could be overpaid benefit and the DWP may recover the overpaid benefit from you.

Anything that affects your entitlement to the benefit could count as an important fact. What an important fact is will depend on individual circumstances in each case. The DWP lists the sort of facts you should disclose in the letters and leaflets it sends out with each benefit claim.

Even if the DWP didn't tell you that the fact that caused the overpayment should have been disclosed, you still need to inform the DWP of any changes that might affect entitlement to benefit. The rule is: if you knew about the fact, the fact was a change in your circumstances and it was reasonable to expect you to believe the change might affect your benefit, you have a duty to inform the DWP of the fact.

Overpayment

If you don't inform the DWP, this will be counted as a failure to disclose and any overpayment will be recoverable from you.

If the DWP decides that you've been overpaid and that the overpayment is recoverable from you, you can challenge the decision. It may be a good idea to get legal help with challenging an overpayment decision.

When challenging a decision to recover an overpayment, it's necessary to decide whether a failure to disclose information caused an overpayment or whether the overpayment was caused solely by an official error.

Some key points you may wish to raise if you're challenging a failure to disclose overpayment decision are:

  • the nature of the information you gave the DWP in relation to the benefit
  • where you sent the information and when
  • whether you have any proof that you've provided information, for example receipts for documents handed in at a benefit office or recorded-delivery receipts

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Page last reviewed: 19/08/2013

Next review due: 19/08/2015

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