Challenging a work capability assessment decision

We want to help you get what you should. This guide and the work capability assessment mandatory reconsideration template tool will help you to challenge the decision by asking the DWP to look at their decision again (called a 'mandatory reconsideration’) if you have to. All Universal Credit claimants must ask for a mandatory reconsideration before they can appeal.

This advice guide will help you work out what you have to do and show you how to do it really well.

It will help you challenge a decision that:

closed your application because you didn’t send back the work capability questionnaire in time.
closed your application because you didn’t attend the assessment without good reason.
found you are not entitled because your disability or illness does not limit your ability to work enough (in DWP speak, you do not have limited capability for work).
gave you the wrong award by putting you in the limited capability for work (LCW) group when you believe you meet the criteria to be put in the limited capability for work-related activity (LCWRA) group.

It won’t help you to challenge a sanction. If you have been sanctioned, it is a good idea to appeal. See Challenge a Universal Credit sanction.

Unfortunately, most people find it hard to get all the help they would like to sort the problem out. We will explain where you might be able to get advice in How to find an adviser to help with your benefits. However, bear in mind many people have to do most or all of the work themselves, or with the help of their family and friends.

Our help will take you step-by-step through the whole process of getting the decision about your Universal Credit changed. We have created a mandatory reconsideration template tool to help you write a really good letter that sets out your case.

Research shows that using our mandatory reconsideration tools more than doubles your chances of getting the decision changed at that stage. Don’t be put off if the decision is not changed – most people then succeeded in their appeal.

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Universal credit was brought in to replace 6 means-tested benefits. The part of Universal credit that replaces Employment and Support Allowance (ESA) is called the limited capability for work element. It is this element that this guide is about.

Whether or not you are entitled to Universal Credit on the basis of being unable to work is based on how your illness or impairment affects you, and what very specific things you are unable to do without assistance. This is called the work capability assessment and it uses a point system that is the same for Universal Credit and Employment and Support Allowance claimants.

For example, if you cannot usually stay standing or sitting (or a combination of the two) at a desk for more than an hour because it makes you too tired or it hurts, you get 6 points. If you cannot usually go to even a familiar place on your own, you get 9 points, etc. You can see all the activities, descriptors and points on Limited capability for work and work related activity components of UC.

You only score one set of points from each activity (for example, getting about), so use the one that you meet that gives you the most points.

In order to be found unable to work (and therefore receive ESA or Universal Credit on that basis) you need to score at least 15 points in total. Or there needs to be a ‘substantial risk’ to you or others if you were found not to have limited capability for work.

To be able to do an activity you need to be able to do it repeatedly, reliably, and safely and painlessly. So, if you can sometimes raise your arm to your head, but could not do it again and again, or if doing it hurts you, the law would see you as not being able to raise your arm to your head. Similarly, if you can move from one seat to another without help, but you sometimes fall and hurt yourself and cannot get back up, you should select the descriptor that says you cannot do it – because you cannot do it safely.

For people whose conditions are worse on some days than others, you meet the descriptor that describes what you can do for the majority of the time. So, if you can sometimes cope with a planned change, but for the majority of the time would not be able to manage it, you cannot cope with a planned change.

If you get 15 points on any one indicator (except if you choose 8a, 9b, 10a and 15a - in activities 'Finding your way and being safe', 'Extensive incontinence', 'Consciousness during waking moment', and 'Getting about'), you will be put into the limited capability for work-related activity (LCWRA) group. If you are in this group, you get extra money to support your higher needs, and you don’t need to do ‘work-related activity’ (meet regularly with an adviser at the Jobcentre, go to occasional training courses, and do various tasks that the DWP say will make you better able to get a job later).

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Substantial risk

If you do not get 15 points or more, you can still get the benefit if you can argue that there is a risk that you (or someone else) would be in danger if you were refused. For example, if you have uncontrolled seizures, violent outbursts, frequent falls, or need supervision to stay safe, you could argue it would be dangerous for you to work or have to travel to a job without help. Or if you have poor memory or confusion, and would be unable to meet the requirements to receive Universal Credit on the basis that you are looking for work, you could argue that there was a substantial risk that you wouldn’t be able to feed or care for yourself. If looking for a job or going to work is likely to make your condition worse or risk you having a relapse (for example, if you are a recovering addict, or have a condition like Chronic Fatigue Syndrome or Long Covid), then that too can be counted.

Similarly, if you have been put in the work-related activity group but it is fairly clear that you could not manage to reliably do the work-related activity you would have to do to keep receiving the benefit, you could argue that there is a substantial risk of harm to you if you were not put in the limited capability for work-related activity group.

The risk counts as ‘substantial’ if it cannot reasonably be ignored. When judging if the risk is substantial, the DWP or appeal panel are supposed to judge both the likelihood of something happening and the potential seriousness if it does happen. So it is possible to argue that although the likelihood is not big, the consequences would be very bad and therefore the risk is 'substantial'.

Lots of people with mental health problems, cognitive difficulties, Chronic Fatigue Syndrome, or conditions that are much worse on some days than others, get Universal Credit this way.

Many advisers say it is always worth raising the argument of substantial risk if you can, as it allows the decision maker or appeal panel to use their common sense.

If you haven’t checked what rate you should be getting yet, use our Work Capability Assessment mandatory reconsideration tool. It will help you work out if the DWP has made the right decision. If they haven’t, the tool helps you to write a really good letter that asks for a mandatory reconsideration (if you need to do that before you can appeal) and sets out your case.

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If you claimed Universal Credit, you can receive Universal Credit while you wait for the reconsideration and appeal on the basis of looking for work. (Don’t worry, it won’t mean you can’t argue that you are not able to work in the appeal).

However, you will need to follow the rules in your claimant commitment about looking for work in order to keep receiving the benefit. Make sure your work coach understands how your illness or disability affects you, and that you are challenging the decision that found you capable of work, and that your claimant commitment reflects your difficulties.

Find out more about getting other benefits while you wait for a decision on your reconsideration on the Citizens Advice website.

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If your claim was closed because the DWP don't think you sent back your form or went to your assessment, or if they just said you were well enough to work, you need to ask the DWP to look again at their decision (called a ‘mandatory reconsideration’).

You are supposed to do this within one month of the date on the letter they sent to tell you of their decision. If one month has already past, don’t worry. Ask anyway. See If one month has already past below.

When you ask for the DWP to look at their decision again, people are often told that they need to provide further medical evidence or there is no point. This isn’t true. They may not change the decision at the reconsideration stage, but it’s very possible to win at the appeal hearing without any new information or evidence. Indeed, they often don’t change the decision at the reconsideration stage even when presented with excellent evidence.

People who have been put in the limited capability for work (LCW) group in Universal Credit, are often ‘warned’ that they could lose their current award if they appeal and be left with nothing. This is technically true, but it is not common. Be aware that the DWP are trying to put you off. We suggest that you look at the descriptors that you meet and the points that you think you should have got - if you get far more than 15 points, it is unlikely that you will lose your benefit.

You can ask for a mandatory reconsideration by leaving a note on your Universal Credit journal or using form CRMR1, but we suggest you use our free Work Capability Assessment mandatory reconsideration self-help tool. Research evidence suggests it may double your chances of getting the decision changed at this stage. Use the tool to set out your case and then copy and paste the letter on to your Universal Credit journal.

If you have any more evidence that you think will help (for example, a letter from your doctor, social worker, support worker, or carer, or any other recent reports you have had) put that on your universal credit journal too. If you need a few weeks to get more evidence, it probably isn't worth the wait. Instead, ask for the evidence and send it later or get it ready to send with the appeal form in case you need to appeal.

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If you have missed the one-month deadline to ask for a mandatory reconsideration, you can still ask but they do not have to agree unless you give good reasons.

Explain that the delay was unavoidable or a result of your disability. For example:

you may have been unable to deal with it until now because you need help to deal with your post, or
you were too depressed or anxious to manage it, or
you needed help to understand if you should challenge the decision and you did not find that help until now.

They will usually agree to look again at the decision if less than 13 months has passed.

If they refuse you a mandatory reconsideration, they should still send you a decision letter which you can use to appeal.

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Unfortunately, there are no time limits to how long a mandatory reconsideration should take. It can be as much as 12 weeks or even more.

If you have not heard back after 6 weeks, you should ring them and find out what is happening. Keep a note of phone call – date, time and who you spoke to in case you need to call again.

You could call again after 8 weeks. If you have not heard after two or 3 months, you could make an official complaint for the unreasonable delay.

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Making a complaint

Email the Jobcentre plus service leader for your area. Also put a copy on your Universal Credit journal.

In your email include your name, NI number and the date you submitted your mandatory reconsideration request.

Explain that you wish to complain about the length of time the reconsideration has taken as the delay is causing you severe hardship.

And then tell them about some of the impacts the delay is having on you, for example, if it means you don’t have enough money to feed yourself properly or go to medical appointments, or if the stress of not having enough money to live on is worsening your mental health.

Another option is to complain to your MP, who will in turn complain to the Jobcentre plus service manager. You can find your MP and email them from They work for you.

If they change their minds, congratulations! Your award will be backdated to the date you claimed. Any amount above the amount you received (either from ESA, or Jobseeker’s Allowance, Income Support, or Universal Credit) will be backdated.

If they do not change their decision or they did but still didn't give you the amount you think you are entitled to, you should appeal. You need to ask an appeal within one month of the date at the top of the mandatory reconsideration notice.

Do not be downhearted if they do not change their minds - they often don’t, even where it is clear that they are wrong. Do not give up! Most decisions are not changed at this stage but are changed after you appeal.

Try to appeal to the Tribunal within one month of the DWP decision letter. See How to appeal to a Universal Credit tribunal.

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Disclaimer

The information in this guide applies to England and Wales and Scotland. It will also be useful for people in Northern Ireland. The law is complicated. We recommend you try and get advice from the sources we have suggested if you can.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.

If you would like this guide in another format please email [email protected]

Acknowledgement

This guide was written and updated by Advicenow.

Advicenow would like to thank all those who provided advice and feedback on this guide, particularly David Shah who peer reviewed this edition of the guide. Thanks to the Ministry of Justice for funding this update.

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