Written evidence from Public Law Project (HAB0164)


Additional Written Evidence - Public Law Project (PLP)

Work & Pensions Committee’s Health Assessments for Benefits Inquiry


What are the barriers to claimants appealing eligibility decisions?

  1. PLP has recently published evidence on barriers to appealing benefit sanctions: https://publiclawproject.org.uk/resources/benefit-sanctions-a-presumption-of-guilt/.


  1. While this relates primarily to a different type of DWP decision, we understand that many of the same barriers apply to appeals of eligibility decisions.  A number of participants also referred to their experience of appealing eligibility decisions specifically in illustration of their concerns.  


  1. We would like to highlight the following barriers and considerations from our report that were particularly relevant to eligibility decision appeals:


  1. The stress and impact on claimant health and wellbeing: the negative impact of engaging with the health assessment process was frequently cited by participants when providing wider context for their decisions on whether to challenge decisions.  This included:


    1. the impact of having to focus on the negative aspects of their condition or disability.  This included parents referring to the impact on their adult children (who were keen to thrive and succeed) of having to focus and repeatedly describe their experiences negatively.   It also included references to being made to feel ‘worthless’ by the system as a whole and the assessment process specifically.





    1. the impact on people’s mental and emotional wellbeing of feeling like they were perceived by the system as a ‘fraud’ or as exaggerating their condition.



    1. the stress and anxiety of recurring reassessments.  This included the view that stress and anxiety had not just been harmful for the period of uncertainty itself but that it had also set individuals back in the longer term, for example, by exacerbating pre-existing mental health conditions.


These experiences are consistent with the findings of the DWP research cited in the committee’s call for evidence which found that PIP and ESA claimants found the experience of completing assessment questionnaires to be negative and upsetting. Claimants described the process as “stressful”, “worrying”, “daunting”, “overwhelming” and “emotional”, and felt that the questionnaires encouraged them to focus on the worst experiences and the lowest points in their lives[1]These experiences are also consistent with much of the evidence the committee has received as part of this inquiry[2].

The impact of these experiences was that some claimants took the view that it would be harmful to their health and wellbeing to continue to engage with the process of challenging decisions.  When combined with low confidence that challenge would be effective (see next item) these experiences could lead to the conclusion that on balance it was not in their best interests to proceed with a challenge.

  1. Mistrust:  as noted above, a key theme in the interviews we conducted was a strong sense that the system was set up to ‘assume the worst’ in people.  There was also a perception that there was an institutional bias against believing the claimant.  This could lead to the conclusion that there was ‘no point’ in seeking to challenge a decision particularly internally on the basis that it was unlikely to result in a change of outcome.


  1. Discouragement by DWP staff: participants referred to: 
  1. A perception that the intention of DWP staff was to discourage claimants from challenging a decision, for example by referring to:
    1. the length of time it would take or the complexity of the process,


    1. the risk that, in the context of partial appeals, the revised decision could be less favourable.  This was interpreted by some claimants we spoke to as a ‘threat’ intended to discourage legitimate challenge. 


In contrast, where DWP staff were friendly and helpful this was supportive of claimant’s decision to appeal.  For example, one lady we spoke to spoke highly of an interaction with a member of DWP staff who proactively informed them of their right to request a copy of the health assessment report and talked them through the process for submitting a mandatory reconsideration.  Her view was that this was pivotal to her being able to effectively challenge the decision. 

PLP recommends that DWP review the guidance given to DWP staff to ensure that conversations with claimants:




In relation to the reference to the risk of less favourable outcomes for partial appeals, while it is important that claimants are informed of relevant risks, PLP recommends that:



  1. Knowing what to write: as set out in further detail on page 36 of PLP’s research report, a common theme was the perception of a ‘hidden language’ making it difficult to know how best to effectively challenge a decision.  This was often illustrated with reference to the initial assessment process and the disconnect between the fixed assessment criteria and how people would seek to describe their conditions and their impact in their own terms.


  1. MR as a barrier:  The requirement to have undergone an internal review (MR) before proceeding to an appeal before an independent Tribunal was introduced as part of the Welfare Reform Act 2012.  Significant concerns were raised at the time and since that this would create a barrier to justice for claimants[3].  PLP’s research supports these concerns, finding that MR acts as a barrier for the following reasons:


    1. An additional step: requiring individuals to go through a process that was not trusted to be effective before being able to progress to independent appeal, lengthening and complicating an already lengthy process.
    2. An unclear process & ‘missing’ Mandatory Reconsideration Notices: following submission of an MR, there is no consistent acknowledgment confirming receipt and setting out what the claimant can expect to happen next.  There is also no timeframe by which decisions must be made (or consistent guidance as to what to expect).  This can leave claimants left in limbo and uncertain as to how to progress.  Once a decision has been reached, this should be communicated to a Claimant in a Mandatory Reconsideration Notice which they can then provide to the Tribunal as evidence they have been through the MR process prior to appeal.  Particularly concerning were reports of MR requests had simply going missing, and no MRN ever being received – leaving claimants unable to proceed to appeal.
    3. Loss of faith: for example, one individual we spoke to had unsuccessfully challenged eligibility decisions by MR on three occasions but had never progressed to appeal due to a perception that there was no point in doing so.  When this happened a fourth time, he decided he would challenge on appeal and was successful. 


PLP recommends that:

Can DWP cost-effectively replicate the specialist knowledge and experience reflected in the Tribunal Panel in its decision-making?

  1. As well as focussing on DWP expertise we also think it is important to look at how decisions are reached.


  1. As touched on at the oral evidence session that PLP participated in on 11 May[4], one of the key differences between a Tribunal hearing and the original decision or MR stage, is the opportunity to provide oral evidence and to have a back-and-forth exchange between the panel and the claimant.


  1. In relation to the health assessments, an assessor produces a report based on a face-to-face assessment or paper based-review, applying a strict set of criteria.   However a separate DWP decision maker then makes a decision based on the paper file, including the assessment report, the initial claim form and any other supporting evidence provided by the claimant.  They do not routinely have any direct contact with the claimant.


  1. As the Committee has heard, in 2019, the DWP introduced a new operational approach in relation to PIP MRs where MR decision makers “proactively” contact claimants “as appropriate” to collect further oral or written evidence if the decision maker thinks additional evidence may support the claim.  We understand this has now been rolled out to ESA and UC MRs and that they are also now seeking to apply a similar approach to the initial decision[5].   


  1. The DWP has stated that this new operational approach has allowed more time for staff to listen and to help people understand the reasons why a decision has been made[6]. Anecdotally, and based on the data cited by DWP, this appears to have led to some improvements at the MR stage. 


  1. However, while we welcome this improvement, our understanding is that it does not mean that direct contact will routinely occur and that it only happens if the decision maker determines that more evidence would be useful.


  1. We also understand that, at least in relation to Universal Credit, this contact often simply involves a written notification for additional evidence set out in the Universal Credit journal rather than a verbal conversation by phone, limiting the opportunity for the kind of exchange that is possible at Tribunal stage. 


  1. We would recommend that the need for a more considered approach relates to a need for a more fundamental change to the decision making process of the kind articulated by Dr Paul Litchfield at the oral evidence session on 21 December[7] and the written evidence of Dr Ben Baumberg Geiger[8].  However, in the meantime, PLP recommend that:




Oral Evidence Session with Chloe Smith MP on 20 July 2022


  1. We were concerned that in oral evidence to the Committee on 20 July 2022 (at Qs 456 - 457) that Chloe Smith MP and Katie Farrington referred to the relatively low number of appeals as evidence of improvements in the quality of initial decisions. 


  1. PLP’s view is that this is not a proposition that can be made and that the evidence on barriers to appeal and the high rate of successful appeals suggests that the low number of appeals is more likely to reflect difficulties in appealing than satisfaction with the quality of decisions.


  1. The Committee has rightly highlighted the high rate of success on appeal.  We think it is important that account is also taken of the high rate of decisions overturned by lapsed appeal (which tends to occur late in the challenge process).


  1. Between 1 April 2013 and 31 December 2021[9] nearly a fifth (19%) of PIP appeals were lapsed before the Tribunal hearing due to DWP changing the decision in the claimant’s favour.  A combination of different data sets suggests that for the year 21/22 a third (33%) of PIP appeals were lapsed before the Tribunal hearing[10].


  1. These figures represent yet more cases that were determined as incorrect but only at a very late stage in the process.


November 2022



[1] Para 2.1.1, DWP Research and Analysis, Claimant views on ways to improve PIP and ESA questionnaires. 20 July 2021 https://www.gov.uk/government/publications/claimant-views-on-ways-to-improve-pip-and-esa-questionnaires/claimant-views-on-ways-to-improve-pip-and-esa-questionnaires

[2] Written evidence from the Wiltshire Citizens Advice (HAB0118) https://committees.parliament.uk/writtenevidence/53684/pdf/ Written evidence from Endometriosis UK (HAB0098)https://committees.parliament.uk/writtenevidence/41968/pdf/ Written evidence from JUSTICE (HAB0101)https://committees.parliament.uk/writtenevidence/41971/pdf/

[3] See for example Z2K’s report, Access Denied: Barriers to Justice in the Disability Benefits System (Jen Durrant)(2018) https://www.z2k.org/wp-content/uploads/2018/09/Z2K_disability_report_2018_Final_singlesheet-1.pdf

[4] https://committees.parliament.uk/oralevidence/10207/html/

[5] Paras 195 – 198 Health & Disability Green Paper: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004042/shaping-future-support-the-health-and-disability-green-paper.pdf

[6] https://committees.parliament.uk/writtenevidence/41138/pdf/

[7] https://committees.parliament.uk/oralevidence/3121/pdf/

[8] Written evidence from Dr Ben Baumberg Geiger (HAB0099) https://committees.parliament.uk/writtenevidence/41969/pdf/

[9] Written questions and answers - Written questions, answers and statements - UK Parliament

[10] In 21/22 58,338 PIP appeals were registered with the Tribunal Tribunal Statistics Quarterly: January to March 2022 - GOV.UK (www.gov.uk) and 19,190 appeals were lapsed Written questions and answers - Written questions, answers and statements - UK Parliament