Stacey Jackson, Tribunals Coordinator

Like thousands of others, Louis is too ill to work and needs the vital income ESA provides – but his claim was refused and the decision upheld in the Mandatory Reconsideration process. Louis lodged an appeal against the decision, and then was blocked from claiming ESA as he awaited his hearing, due to a misleading letter sent from the DWP to his doctor without Louis’ knowledge.

Z2K has confirmed that these letters are sent to the doctors of all ESA claimants who are initially unsuccessful in their claim, preventing untold numbers of low-income claimants from accessing financial support whilst wait for up to six months to go to tribunal.

Employment and Support Allowance (ESA) supports those who cannot work due to illness or disability. It’s available based on either previous national insurance contributions, or as a means-tested payment to those with low incomes and little savings. ESA has a different aim than its sister benefit Jobseeker’s Allowance (JSA). JSA supports the unemployed, and in order to receive it a claimant must be available for, and actively seeking, work.

As reflects their different purposes, ESA and JSA deal with sickness differently. For JSA, claimants must get a “fit note” (previously a “sick note”) from their GP if they are ill for longer than 14 days, and there are limits on the length and number of periods of illness that can be taken. In contrast, once an ESA claimant has undergone a healthcare assessment and been deemed to have limited capability for work by the DWP, they do not need to submit fit notes from their GP. This is a clear and sensible system. That is not to say that there aren’t major problems with the implementation of ESA – unfair decisions on eligibility, awful experiences of the healthcare assessment, a long and drawn-out application process and the frequent requirement for claimants to be reassessed every two years even when it is clear their chronic or even degenerative condition will not have improved – but the underlying approach of the benefit makes sense.

Once they begin their claim, claimants will be paid ESA at the assessment rate for 13 weeks, which should normally cover the time it takes for an assessment to be arranged and conducted. If, after that assessment, their claim is refused, individuals who disagree with the decision must request a Mandatory Reconsideration (MR). This can take several weeks or months, and ESA isn’t paid during this time. A claimant’s only option would be to sign on for JSA, even though they are unlikely to be able to meet the job-seeking commitment. This MR phase can be a period of severe hardship for claimants as they have few other resources to fall back on, and Z2K commonly sees people amassing rent arrears and other debts, or needing to be issued with foodbank vouchers.

DWP statistics reveal that 89% of MRs uphold the original decision. The next step for a claimant upon receiving their likely second refusal is to lodge an appeal with Her Majesty’s Courts and Tribunals Service (HMCTS). An independent panel will make a redetermination of the decision – 69% of decisions are overturned in favour of the claimant. HMCTS is overwhelmed by the number of appeals and the median waiting time for a case to be heard is currently 24 weeks. Fortunately, during this period, claimants can be paid ESA while they wait – “ESA pending appeal”.

Entitlement to ESA pending appeal is enshrined in the ESA Regulations to cover the whole of the period leading up the hearing. It is also possible to have the payment backdated to cover the MR phase too. However, ESA pending appeal is not paid automatically – claimants must get fit notes from their GP, and present these along with their appeal acknowledgment letter from HMCTS, to their local Job Centre. The Job Centre should report back to the DWP who will arrange for ESA pending appeal to be paid.

In our experience, however, ESA pending appeal is poorly understood, even by Job Centre staff (we commonly hear reports of clients being turned away and incorrectly told there is no such payment). Our clients rarely know about their right to ESA pending appeal as it is not usually mentioned on their MR decision letter. Furthermore, even when claimants have received advice from an agency such as Z2K, and they have arranged to get fit notes and present them to the Job Centre, the cash flow problems of the delay in receiving payment can cause severe financial hardship.

It is against this backdrop of confusion that we discovered a new problem with access to ESA pending appeal, after we investigated an issue raised by our client “Louis”. We were due to represent Louis at this ESA appeal tribunal, and had informed him about how to claim ESA pending appeal. He duly went to his doctor and asked for a fit note, only to be told that he was not allowed to be issued with any more fit notes for ESA, regardless of how ill he was. The doctor later said that he had received a letter from DWP saying not to issue any more fit notes. After explaining that Louis had been found capable of doing some work, and encouraging his doctor to encourage him to return to or start work, the letter stated:

“As a result of this decision, <Louis> is not entitled to ESA from <date> and you do not need to provide any more fit notes to him relating to his disability/health condition for ESA purposes.” The letter doesn’t mention the possibility of Louis appealing the decision or of ESA pending appeal. Nor was there any mention in the document to which the doctor was then directed if they wanted further information. The doctor’s unwillingness to write a fit note now seemed perfectly understandable in the light of the information he had been given.

Z2K raised our concerns about the misleading information in this letter with Emma Dent Coad MP. She submitted Parliamentary Questions to find out how widespread these letters were. DWP Minister, Sarah Newton MP, placed a copy of the letter, known as an ESA65B, into the House Library where it is now publicly available. It exactly matches that received by Louis’ doctor, so the one we saw clearly isn’t a local mistake. The minister also confirmed that the letter is sent to the GP of EVERY claimant who is refused ESA.

Subsequent questions have revealed that the wording of these letters was changed from a more neutral tone to the current misleading text as a result of a “ministerial requirement”. The original letter explained all about the need for fit notes if claimants were pursuing an appeal. The decision to omit mention of ESA pending appeal in the current ESA65B is irresponsible to the point of spreading misinformation to GPs. Louis had to register at a different practice, in order to find a GP willing to write him a fit note, despite there being no question that it was medically appropriate to do so. Louis did not have enough money to buy food while this was being resolved.

ESA pending appeal is the right of those who are fighting their ESA refusal, as enshrined in law. It is a lifeline for the most disadvantaged disabled people in our society, who without it would experience extreme financial hardship while they await the independent scrutiny of the courts. Access to ESA pending appeal is already fraught with difficulty and this re-worded ESA65B letter further lessens the likelihood that it will be granted to those that need it. Whoever signed off this dodgy letter at DWP urgently needs to be held to account for misleading GPs and leaving vulnerable disabled claimants without the money they need to survive until their appeal is decided.

Published: 1st May, 2018

Update: Emma Dent Coad MP has now tabled further Parliamentary Questions, which look to get to the bottom of who exactly authorised the misleading content of these letters and why they did it. We will be keeping an eye out for the answers!