Unlawful termination of old style contributory ESA after 365 days without determination of capability for work or income related ESA first

Use this template if all the following apply

• Your client was in receipt of old style contribution based ESA and this ended after 365 days
  • before your client's capability for work has been assessed assessed and once assessed, your client would have had LCWRA (been in the support group), and/or  
  • your client has no/low income such that income related ESA should have continued when contribution based ESA stopped.
• Your client is in urgent need. 

When not to use

Do not use this template if

• your client is not in urgent need; if your client is not in urgent need they should request a mandatory reconsideration of the decision to stop their ESA and then appeal, or
• your client has lodged an appeal of the decision to end their ESA entitlement. See instead Request for an appeal to be dealt with urgently if your client is in urgent need.

The main legal arguments in this template are:

• under s1A Welfare Reform Act 2007 an award of contributon based ESA ends after 365 days unless the claimant is in the support group (ie, has LCWRA)
• In R (Smith) v SSWP JR/1249/18 SSWP accepted that old style ESA is one benefit with two elements and no separate claim for income based ESA is required.
• In R(IS)10/05 the Commissioner held that before terminating an award where the claimant no longer met the criteria on which it was originally awarded, the DWP must consider whether the claimant was entitled under any other head of entitlement. 

This letter argues that entitlement due to having LCWRA and/or to income related ESA should have been determined before ESA was ended.  

Information about your client

• name
• national insurance number (NINO)
• address
• date of birth

Background facts relating to your client

• details of your client's ESA award including the date it started
• whether and if so when your client was sent and returned an ESA50
• your client's income and capital now and at the time they claimed ESA and whether this information has been requested by DWP, and/or provided by your client to DWP
• your client's medical condition(s) relating to mental and/or physical health or disability and why they would have been found to have LCWRA if their capability for work had been assessed
• the impact on your client of their ESA ending

Information relating to the decision(s)

• date ESA ended
• date of the decision notifying your client their ESA would end and the reason provided by DWP
• whether and if so the date on which your client sought a mandatory reconsideration of the decision to end their ESA
• details including dates of relevant communications with DWP

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.