The appeal should be submitted directly to HM Courts and Tribunals Service (HMCTS) on form SSCS1 accompanied by the MR notice (although an appeal can be accepted without a notice, this will delay matters).
There is no requirement to reclaim ESA pending an appeal, as there is automatic entitlement8 (but see below if JSA has been claimed), but the DWP is unlikely to restore ESA until it is notified by HMCTS that an appeal has been lodged.
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Claimants need to insist on their right to make claim, despite the fact that they are disputing an ESA decision on the basis that they have limited capability for work.
It is important, however, that they do not indicate they are too sick to work, which could result in their being told they cannot claim JSA.
Significantly, there is no statutory time limit within which the DWP must complete an MR, so claimants disputing a limited capability for work decision could face lengthy periods of non-entitlement to ESA during a MR.
The law only appears to provide for the payment of ESA pending an appeal (but not pending a MR) of a decision that a claimant does not have limited capability for work.1 The government has recently confirmed, however, that once a claimant has appealed, ESA can be backdated to cover the full period of the MR.2 It is, therefore, in a claimant’s interest that the MR is carried out as quickly as possible to enable ESA to be reinstated and any arrears paid, either as a result of a favourable MR, or the lodging of an appeal following an unfavourable MR.
If necessary, a formal complaint can be submitted to the DWP and, if necessary, pursued to the Independent Case Examiner.
Help could also be sought from a local MP, who may be able to intervene and can also refer maladministration to the Ombudsman.It should be possible for the DWP to activate a JSA claim from the day after an ESA award has been terminated – and if a claim for income-based JSA is made within a month of an award of income-related ESA ending, there will usually be no need to provide further information or evidence, if there have been no further changes in circumstances.Claimants must be available for work, actively seeking work and have a current jobseeker’s agreement or claimant commitment.If they indicate that they are too sick to work, they will likely be told that they cannot claim or are not entitled to JSA.This can result in a revolving-door scenario of claimants being told to claim JSA because they are fit for work, and then being told by the jobcentre to claim ESA because they are too sick to work.It may be worth claimants sending a copy of their appeal to the DWP, requesting restoration of ESA including arrears.