DWP failure to reassess a claimant's capability for work for an old-style ESA claim on the papers or by home visit and ESA has ended

You can use this template if all of the following apply:

• your client was previously receiving ESA and has a disability
• your client was called for a face-to-face work capability re-assessment (WCA) and did not attend
• your client had a good reason for not attending which has been explained to the DWP
• the WCA was not done on the papers, and a home visit was not offered
• your client’s ESA was terminated for ‘failure to attend’
• your client has already requested a mandatory reconsideration, and no response has been received at all or within a reasonable time.

This letter assumes (so can be changed):

• your client was in receipt of old-style ESA. If your client was in receipt of new-style ESA, there are references in the footnotes to enable to   you to make this change to the letter
• your client has provided sufficient evidence for their capability for work to be decided on the papers. If this is not the case, remove the parts of the letter which argue an assessment should have been done on the papers

Do not use this letter if:

• your client did not have a good reason for not attending or has not informed the DWP of their reason
• your client has received a mandatory reconsideration notice, in this case, you client should appeal
• your client has only recently requested a mandatory reconsideration and has not yet allowed DWP a reasonable time to respond

Letter assumes ESA has been terminated as a result of failure to attend (so includes good cause).

The main legal arguments in this template are:

• Under Section 1(4) Welfare Reform Act 2007, a claimant has limited capability for work if their capability is limited by their physical or mental condition, and it is not reasonable to require them to work.
• Regulation 19 Employment and Support Allowance Regulations 2008 (ESA Regs) provides that capability for work is determined by way of an assessment. Regulation 21 provides requirements for medical evidence (usually a fit note) and a questionnaire (which may be waived if DWP already have sufficient information).
• Regulation 23 ESA regs states that a claimant "may" (not "must") be called for a medical examination, and if called, must attend unless they have "good cause" not to do so. There is no requirement for a medical examination.
• Under Section 19 of the Equality Act 2010, it is indirectly discriminatory to apply criteria or practice to all claimants that place claimants with protected characteristics, including disability, at a disadvantage. Section 20 imposes a duty to make reasonable adjustments in the way assessments are carried out to avoid disadvantage to claimants with disabilities. Section 21 provides that failure to comply with the s.20 duty constitutes discrimination.
• The Centre for Health and Disability Assessments' "WCA Filework Guidelines" identifies multiple circumstances when a face-to-face assessment will not be necessary and recognises that home visits may be necessary when a claimant is unfit to travel to an Assessment Centre.
• This template argues DWP have unlawfully failed to exercise discretion and/or take account of relevant information in not deciding the claimant’s claim on the paperwork available when all the evidence needed to make an award was available.
• In the alternative, this template argues that DWP has acted in breach of its own policy as set out in the WCA Filework Guidelines, therefore unlawfully, in failing to offer the claimant a home visit when presented with clear evidence that it was not possible for the claimant to travel to or attend the assessment centre due to their disability.
• This template argues by not deciding the claimants claim on the papers and not offering a home visit, DWP have failed to make reasonable adjustments and have therefore discriminated against the claimant contrary to the Equality Act 2010.  
   

Information about your client:

• name
• address
• national insurance number
• date of birth
• health / disability details

Background facts relating to your client, such as:

• whether and what rates of any disability benefits received by your client. Whether your client attended face-to-face assessments for those benefits or was assessed on their paperwork
• whether your client has a carer or appointee, and if so, why
• why your client was unable to attend the assessment in question, and how this was communicated and evidenced to the DWP. Whether DWP have accepted this before and offered a home visit or assessed your client on the papers in the past, and if so, whether your client's circumstances have changed since then
• exactly what paper evidence was available to the DWP to determine your client’s capability for work. This should be a detailed list describing each document, its date, and how it shows you client has limited capability for work with refence to schedule 2 ESA Regs
• what financial hardship your client is experiencing as a result of the decision. Any risk to their being able to afford to pay for their housing, heating or food, any need to use food banks
• any detriment to their health and welfare or to any of their family member’s health and welfare as a result of the decision
• what points your client scores under sch 2 ESA Regs and why (i.e., why they should be found to have limited capability for work)

Information relating to the decision:

• the date of the assessment missed by your client
• the date, and how, your client notified the DWP that they had good cause for not attending
• the evidence your client provided to support their request for their capability for work to be decided on the papers or on home visit and how this was provided  
• how DWP have responded including dates
• the date of the decision ending your client’s ESA
• the date of your client mandatory reconsideration request 

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.