How to challenge and keep ESA, when found ‘fit-for-work’, pending an appeal?

For claimants on ESA, the judgment means that their ESA should not stop when a negative decision is made on grounds of capacity to work. As long as they quickly seek a mandatory reconsideration and continue to provide GP evidence of incapacity, benefit should continue pending review and any appeal.

But ESA is being phased out. New claimants can only seek universal credit, which has no rule requiring payment pending appeal in any cases, including incapacity cases.

Even so, the reasoning in Swift J's judgment can help shape other decisions on the rights of claimants. It recognises that going without means-tested benefits, just for a few days, is a problem for people who depend on those benefits. And it's welcome to see him pushing back against the mindset of officials that benefit claims are easy. As Mr Connor's case showed, benefit systems can be complicated, and even break down.

If your claim for Employment Support Allowance or the Limited Capability for Work element of Universal Credit has been refused, stopped or reduced, don't give up. This guide and accompanying tool will help you to challenge the decision.

We are in the process of updating this guide following a High Court Judgement in July. That judgement is really important as it means that if you were assessed, but didn't get the right award, you don't have to ask for a mandatory reconsideration and can appeal straight away. If you are in this position, skip section 6 of this guide as you don't need to ask the DWP to look at their decision again. Ask for an appeal instead.

If your claim was closed because the DWP don't think you sent back your form or attended your assessment, you do still need to ask for a mandatory reconsideration. Please bear with us until we get the updated version up.