The D.I.A.L (LEEDS) guide on what you can do to prepare for your Employment & Support Allowance (ESA) tribunal hearing.
This guide explains what you can do to increase your chances of success with an appeal against a decision that you do not have a limited capability for work.
By now you should have completed an Appeal Form (GL24). If you have not done this, you need to follow the steps in our Guide to appealing against an Employment & Support Allowance (ESA) decision.
When the DWP receive your Appeal Form (GL24) they start to prepare appeal papers. These will be sent to you and the Tribunal Service at the same time. Included in the appeal papers will be a copy of the ESA 50 - the form you filled in before you had your medical. The Tribunal will ask you about the answers you put on this form. Also in the appeal papers will be a copy of the DWP Healthcare Professional’s medical report (ESA 85). The Tribunal will ask you to look at the medical report especially the Description of a Typical Day. You will be asked whether you disagree with anything. If you do, they will ask you to tell them what happened.
How incapacity for Work is assessed:
To be accepted as incapable of work under the Limited Capability for Work Assessment you need to score a total of 15 points or more for the limitations set out in the physical, mental and other activities (descriptors). Scores from any of the activities can be added together. Points are awarded when you are not able to perform an activity ranging from 0 to 15 depending on the level of limitation within each activity. Only the highest score counts in each activity. There is a set of descriptors for the following activities.
- Mobilising (the ability to move around on level ground)
- Standing and sitting
- Picking up and moving things
- Manual dexterity (using your hands)
- Making self understood (speaking, writing, typing etc.)
- Understanding communication by verbal and non verbal means (hearing, lip reading and reading 16 point print)
- Navigation and maintaining safety (using aids such as guide dogs)
- Controlling your bowels and bladder
- Consciousness during waking moments
Mental, cognitive and intellectual
- learning or understanding how to complete tasks
- Awareness of hazards
- Initiating and sustaining personal action (planning, organising, problem solving, prioritising and switching tasks)
- Coping with change
- Getting about
- Coping with social situations
- Appropriateness of behaviour with other people
You need to identify which activities (descriptors) apply to you. Then you need to identify the level of difficulties you have with activities. Think about whether you can perform the tasks reliably, safely, repeatedly and at reasonable speed. The effects of things like pain, tiredness, stiffness, breathlessness, dizziness, nausea and balance problems should be taken into account.
The test takes into account the things you can and cannot do when you are using any equipment or appliances that you would normally wear or use such as glasses, a walking stick, artificial limbs (prosthesis) and so on.
Some medication and various physical conditions can affect things like alertness, concentration, your mood or memory. These should have been considered by the DWP Healthcare Professional under the mental health activities. If this has not happened, you will need to tell the tribunal about them and ask that they assess these difficulties for you.
You might also have a health condition that has not been taken into account at the medical assessment. For example, you might have anxiety or depression, but maybe have not seen your GP about this. You will have more chance of this being taken into account if you can get medical evidence to back up the difficulties that you say you have.
Get medical evidence of your difficulties:
Try to get medical evidence before the hearing. Your doctor may want to charge you for writing a letter. It may be possible to get Legal Aid to pay for it. Please contact us if you need advice on this.
Ask your doctor, consultant, physiotherapist or other health care professional as appropriate to comment on the difficulties with activities that you have identified. It is important that your evidence does not just state what condition you have and the treatment you receive. It needs to deal with what descriptors they think should apply or whether your assessment of your limitations is consistent with their understanding of your condition. Please ask us for a list of descriptors to give to your doctor or other health professional.
Your evidence needs to be about the difficulties you had at the time of the decision. If your condition has changed since the decision was made, the tribunal cannot take this into account. Please contact us for advice about this.
Your explanation of your difficulties:
After your appeal papers are sent to you, the next thing you will receive is an Appeal Enquiry Form (TS1). Make sure you say you want to attend a hearing. Your chances of success are much higher if you go in person to the appeal hearing. You can take someone with you for support.
Obviously you know your difficulties and limitations better than anyone. The DWP Healthcare Professional only saw you once so cannot know everything about you. What you say about your difficulties can count as evidence as long as it is not inconsistent or difficult to believe. Your statements to the tribunal will carry more weight if they are supported by medical evidence.
It is helpful to write down the activities (descriptors) that you feel you satisfy and why. This can then be sent to the Tribunal Service together with any medical evidence that you manage to obtain. Remember to keep a copy for yourself so that you can refer to it during the tribunal hearing. The Tribunal Service may send you a copy to add to your appeal papers if they receive it in enough time before your hearing date.
Please contact us if you are unsure about anything in this guide or if you would like our Employment & Support Allowance Appeals: At the tribunal hearing guide.
You can also contact the Crutch Collective for further help or for a copy of the At the tribunal hearing guide.