Appeal rights for yearly ESA uprating letter?

ESA client received his yearly ESA uprating letter, dated 8/2/23, which, I believe surprisingly has advised that the client can challenge the decision by initialling requesting a mandatory reconsideration included within the letter. The client has LCW only, therefore in WRAG and has been for several years, but he now believes he should be in Support Group therefore he wishes to challenge the decision.

I am not aware that the yearly uprating letters for any DWP benefit would carry challenge/appeal rights, although I stand to be corrected, and I have looked at another client’s PIP annual uprating letter and this does not have challenge/appeal rights.

Am I overthinking this in that if the client does contact them to advise that he doesn’t agree with the decision as he thinks he should be in the support group , this starts a new WCA but that new WCA would contain fresh rights to challenge or is it a case that ESA have issued an incorrect letter? 

As I see it, two separate issues are being confused here.

There is no point in challenging the annual uprating letter as, without a recent decision on LCWRA, there appears to be no legal basis for the component to be included in the calculation (Which is all the uprating letter confirms). Therefor the uprating letter is correct under Law.

In order for an award of LCWRA to be put in place, your client needs to request for his/her status to be looked at again. This will involve filling in a UC50, undergoing an assessment etc and may result in the desired outcome. Whatever, it is THIS decision that needs to be challenged (if necessary).

I agree that there is probably no legal basis to challenge the components of the award ( but the letter seems to allow it!) and I am also of the view that the client needs to request a new WCA but once again it is the confusion caused by an ESA decision letter that I was really highlighting!

An uprating letter communicates a decision to supersede your client’s award at rate X and replace it with an award at rate Y. In the absence of anything in the D&A Regs excluding an appeal against it, its an appealable decision.

The SSWP is not required, in dealing with a supersession, to consider every issue in the claimant’s case and can limit consideration to those issues which are relevant; but the decision still carries forward the underlying determinations which have been made previously in the case. In your case that includes the determination that your client has LCW.

Your client has a right to request revision of the decision on “any grounds” and, on appeal, the Tribunal stands in the shoes of the decision maker and can make any decision which would have been open to the original decision maker. There is no reason in principle why the original decision maker could not have decided, on making the uprating decision, to revisit the question of whether your client has LCWRA or not. In principle therefore, I don’t see why you couldn’t raise the point on appeal.

There is support for this position from MC v SSWP (ESA) [2014] AACR 35 at para 33 on. The issue in that case was whether a claimant was entitled to appeal against a decision that cESA should stop after 365 days on the grounds that they ought to have been in the support group. The UT concluded that they could, notwithstanding that it wasn’t an issue which the SSWP needed to consider in deciding to end the award in the first place.

So if your client wants to be difficult, it does appear possible in principle for them to appeal the uprating decision rather than requesting supersession.

The failure to include appeal rights on the PIP uprating decisions would just seem to be incorrect.

Thanks as ever Elliott for the comprehensive reply, every day is a school day.

I will advise the client accordingly, at least if he states he is challenging the decision letter he may have a chance of of a revision from an earlier date rather than just requesting a new WCA now!

Sections 159C (ESA) and 159E (PIP) of the Social Security Administration Act 1992 provide for the annual uprating to have effect without a further decision, don’t they?

HB Anorak - 10 May 2023 04:35 PM

Sections 159C (ESA) and 159E (PIP) of the Social Security Administration Act 1992 provide for the annual uprating to have effect without a further decision, don’t they?

Bah, spoilsport.

Sch 2 paragraph 25 Social Security (Decisions and Appeals ) Regs 1999 as amended (Decisions Against Which No Appeal Lies)

25. A decision of the Secretary of State relating to the up-rating of benefits under Part X of the Administration Act.

Your client may apply for a supersession on the ground that there has been a change of circumstances or worsening of his condtion (Reg 6(2).)

There will be a right of appeal against any refusal to supersede (Wood v SSWP reported as R(DLA)1/03)

So ultimately, once again DWP issue an incorrect ESA decision letter!

Supersession it is then which is what my original view was….......