ESA Problem Areas: Limited Capability for Work

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What does this section cover?

This section covers:

 What is limited capability for work?  What is limited capability for work related activity?  What is the significance of case law?  What are the assessment procedures?  What work can you do while claiming ESA?

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What is limited capability for work?

‘Limited capability for work’ (LCW) is the legal term which applies to claimants of employment and support allowance (ESA) who are assessed as having a physical or mental condition which limits their capability to work, to the extent that it not reasonable to expect them to work.1 You must have LCW to qualify for ESA.2

In practice, whether you have LCW is determined by assessing whether you are capable or incapable of carrying out a series of prescribed activities (and scoring at least 15 points in total in respect of the ‘descriptors’ under each activity) Alternatively, you can be treated as having LCW in other specified circumstances.3

The assessment is known as the ‘work capability assessment’ and normally requires you to complete an ESA50 questionnaire and then attend a medical examination carried out on behalf of the DWP by Maximus, before a DWP decision-maker determines whether you have LCW. The rules and procedures are explained in detail in Chapter 46(1) of the Handbook.

It is important to understand that the test of LCW is not generally a test of whether you suffer from a particular illness or disability, or whether you are too ill or disabled to carry out particular or any actual work. It is, rather, a fairly superficial test of your physical and mental functioning to determine whether you would be able to cope in a theoretical modern workplace, or whether you should automatically treated as having LCW in prescribed circumstances. How should you approach the test?

It is best to approach the test systematically in the following way:

 Firstly, check whether you can be treated as having LCW on the basis, for example, of being terminally ill; receiving, likely to receive or recovering from chemotherapy or radiotherapy; pregnancy; chronic renal failure; or being in hospital. The full list and conditions can be found in the regulations 20, 25 and 26 of the ESA Regulations 2008. If any of these ‘exemptions’ apply to you, notify the DWP as soon as possible, with any supporting evidence you have. If you are terminally ill, you (or somebody on your behalf) should obtain and submit a form DS1500 completed by your doctor. If you are receiving or recovering from cancer treatment, you should ask your doctor or clinical nurse to complete the last page of the ESA50 questionnaire.

 If none of the exemptions apply, go through the list of prescribed activities and descriptors set out in schedule 2 to the ESA Regulations to see which ones you satisfy, how many points you should score, and what evidence you have or could obtain to support your claim. You should take into account whether you could undertake the activities most of the time with a reasonable degree of regularity, taking into account pain and fatigue. This will help you to provide the relevant information when you complete the ESA50 questionnaire, attend your medical, and dispute a decision that you do not have LCW.

 If you cannot or may not score the required 15 points, consider whether you satisfy either of the ‘exceptional circumstances’ set out in regulation 29 of the ESA Regulations i.e. you are suffering from an uncontrollable or uncontrolled life threatening disease, or there would be a substantial risk to health if you were found not to have LCW. If this could apply you should notify the DWP with any supporting evidence.

What is limited capability for work related activity?

‘Limited capability for work related activity’ (LCWRA) is the legal term which applies to ESA claimants who are assessed as having a physical or mental condition which limits their capability to undertake ‘work related activity’, to the extent that it not reasonable to expect them to do so.4 ‘Work related activity’ means mandatory activity (short of seeking or applying for employment) which will help you to obtain or remain in work (e.g. attending courses and skills assessments and taking part in the Government’s ‘Work Programme)5 If you are assessed as having LCWRA, you will qualify for an additional payment of ESA (the ‘support component’) and are exempt from conditionality (see Conditionality and Sanctions ).

In practice, whether you have LCWRA is determined by assessing whether you satisfy at least one of a list of descriptors attached to prescribed activities, or can be treated as having LCWRA in specified circumstances.6 It is assessed at the same time as LCW through the work capability assessment (note that if you do not have LCW, you cannot have LCWRA), which normally requires you to complete an ESA50 questionnaire and attend a medical examination carried out on behalf of the DWP by Maximus, before a DWP decision-maker determines whether you have LCWRA. The rules and procedures are explained in detail in Chapter 46(1) of the Handbook.

It is important to understand that the test of LCWRA is not generally a test of whether you suffer from a particular illness or disability, or whether you are too ill or disabled to carry out any particular or actual work related activities. It is, rather, a test of whether you satisfy one or more descriptors which indicate a severe impairment of your physical and mental functioning, or whether you should automatically treated as having LCW in prescribed circumstances.

How should you approach the test?

It is best to approach the test systematically in the following way:

 Firstly, check whether you can be treated as having LCWRA on the basis of being terminally ill; receiving, likely to receive or recovering from chemotherapy or radiotherapy; or pregnancy where there is a serious risk to health (see regulation 35 of the ESA Regulations 2008 for full details). If any of these ‘exemptions’ apply to you, notify the DWP as soon as possible, with any supporting evidence you have.

 If none of the exemptions apply, go through the list of descriptors in schedule 3 to the ESA Regulations to see if you satisfy any of them. This will help you to provide the relevant information when you complete the ESA50 questionnaire, attend your medical, and dispute a decision that you do not have LCWRA.

 If you cannot or may not satisfy any of the descriptors, consider whether there would be a substantial risk to health if you were found not to have LCRWA (see regulation 35(2) of the ESA Regulations) and notify the DWP with any supporting evidence.

What is the significance of case law?

Much about the way the tests of LCW and LCWRA should be applied and the meaning of the terms used in the legislation is decided by case law (i.e. appeal decisions made by the Upper Tribunal and higher courts) which is legally binding on the DWP and tribunals. There is extensive (and occasionally conflicting) case law on LCW and LCRWA and more is emerging all the time.

Where can you find the case law?

 Commentary on the most significant case law can be found in Volume 1 of Sweet and Maxwell’s Social Security Legislation: Non Means Tested Benefits and ESA’, (used by tribunals) new editions of which appear every year.

 CPAG provides case summaries of significant decisions in our Welfare Rights Bulletin which appears six times per year and our Handbook refers to significant case law.  Rightsnet (www.rightsnet.org.uk) includes case summaries of all Upper Tribunal decisions, with a search facility for ESA or particular decisions.

 MNP Training (www.mnptraining.com) produces a WCA Caselaw Pack.

 Upper Tribunal decisions can be viewed and downloaded directly from the Ministry of Justice Tribunals Judiciary (with a search facility) at http://www.osscsc.gov.uk/Aspx/default.aspx

What are the main areas of case law?

There are four main areas of case law:

 General approach to the LCW descriptors, which requires a ‘broad brush’, ‘non-snapshot’ approach to whether you can undertake and complete an activity most of the time, with reasonable regularity, taking into account pain, fatigue, dizziness, and the effects of medication.

 Individual activities and descriptors. Examples include ‘mobilising’ ,where there has been extensive case law on whether a manual wheelchair could reasonably be used by a claimant who does not have one.7

 Being treated as having LCW and LCRWA on the grounds of substantial risk to health. This requires consideration of the range or type of work or work related activity you could reasonably be expected to undertake, including any difficulties travelling to work or appointments. The wider consequences of being found not to have LCW or LCWRA must also be considered e.g. the effects on your mental and physical health of losing ESA entitlement, and being required to engage in work related activity or having to satisfy the JSA jobseeking conditions. In general, the onus is on the DWP to establish that you can undertake work or WRA without a substantial risk to health. The DWP should provide evidence of the type of work or work related activity available in the relevant area which you might reasonably be expected to undertake.8

 Treatment and weighing of evidence from DWP medical assessments, the claimant, and the claimant’s doctors and other professionals. Decision makers and tribunals should not automatically give more weight to ESA85 medical reports. Your personal evidence is entirely valid and should only be rejected as unreliable or wrong for a good reason. Evidence relating to previous assessments should be taken into account. Findings that particular descriptors apply may be relevant when deciding if other descriptors or ‘exceptional circumstances’ apply.

What are the assessment procedures?

Unless the DWP has evidence which clearly shows that you have LCW or can be treated as having LCW, you are normally required to complete an ESA50 questionnaire. You will then usually be asked to attend a medical examination with a ‘health care professional’ (who could be a doctor, registered nurse. occupational therapist or physiotherapist) employed by Maximus who carry out the face-to-face assessments on behalf of the DWP. Only a DWP decision-maker can ultimately decide whether you have LCW and LCWRA based on all the evidence.

How should you complete the ESA50 questionnaire?

 Read the notes before answering the questions. It may be helpful to draft your answers on a separate sheet of paper first.

 Complete the ESA50 with reference to the descriptors and scores set out in schedules 2 and 3 to the ESA Regulations 2008, focussing on showing that you score at least 15 points in relation to the LCW descriptors and, where appropriate, satisfy at least one of the LCWRA descriptors. Part one of the questionnaire relates to the physical LCW and LCWRA descriptors, and Part two relates to the mental descriptors. Part 3 covers the LCRWA descriptors relating to eating and drinking which are not covered by Parts one and two.

 When ticking the boxes and giving details of whether you can undertake an activity, take into account whether you can do so safely, most of the time, with a reasonable degree of regularity, and without undue pain and fatigue. If your conditions is variable, you can tick the ‘it varies’ box, but you will only score points if you are unable to complete an activity most of the time.

 Make sure you give full details of all your symptoms and difficulties.

 Keep a copy of the ESA50 and make sure you return it to the DWP within the time limits specified.

How should you approach the medical examination?

 Prepare the answers to the questions you are likely to be asked before you attend the examination. Focus on the descriptors you think you satisfy with reference to the wording of the regulations and the information you provided on the ESA50 questionnaire.

 If you are unable to attend an examination, contact Maximus as soon as possible to arrange another appointment. If you are physically unable to get to the examination centre, contact Maximus. You may be allowed to have taxi fares reimbursed or, exceptionally, be examined in your own home.

 You are entitled to have someone with you during the assessment (e.g. a friend, relative, or adviser).

 Remember that you will be observed getting from the waiting area to the examination room and during the examination (e.g. how you walk and get in and out of a chair).

 You may be asked specific questions relating to the various descriptors. Make sure you explain all the difficulties and symptoms you experience (including pain, fatigue and the effects of medication) and if your condition varies, about good and bad days. You will usually be asked what you do on a ‘typical day’. Bear in mind that your answer needs to be consistent with the difficulties and symptoms you are asserting. You will then be physically examined.

 Numerous Government, Parliamentary and independent reports (and Upper Tribunal decisions) have criticised the way medical assessments are carried out (until recently by Atos, now replaced by Maximus). In particular, the assessments have been widely criticised for being rushed, formulaic (guided by a rigid computer programme) and carried out by non-specialists. If you are treated unfairly or rudely, or not listened to, you can complain to Maximus.

 DWP decision makers should decide whether you have LCW and LCRWA on the basis of all the evidence, including the ESA85 report of your examination, completed by the health care professional. In practice, they often ‘rubber stamp’ and follow the assessment set out in the ESA85. If you wish to dispute a decision, you should request a copy of the ESA85 to see if it accurately assesses your condition and difficulties.

What work can you do when claiming ESA?

Working while claiming ESA normally disentitles you, but certain types of ‘exempt work’ are allowed.9 The rules are explained in detail in Chapter 46(4) of the Handbook. ‘Work’ is defined as ‘any work’ whether or not undertaken in expectation of payment. It does not, however, include domestic tasks at home, caring for a relative, work as a councillor, or activities in an emergency to protect a person or property.

If the work you do is very limited, you may be able to argue that it should be ignored as ‘de minimis’ (i.e. trivial or negligible) in accordance with case law (see CIB/5298/1997; CIB/6777/1999; CIB/3507/2002). This will depend on all the circumstances, including the number of hours, the pay, the tasks involved and length of service.

What is exempt work?

The main categories of exempt work are:

 work for which weekly earnings do not exceed £20;

 work for no earnings as a volunteer or for a charity or voluntary organisation;

 approved unpaid work placements or trial self-employment schemes;

 ‘supervised work’ under medical supervision as part of a treatment programme, or supervised by someone employed by a local or public authority or a voluntary organisation to help people with disabilities find work, as long as you do not earn more than £104 per week;  up to 52 weeks work for less than 16 hours and no more than £104 per week (if you are in the ‘support group’ i.e. you have LCRWA, the limit of 52 weeks does not apply).

Strictly speaking there is no legal requirement for you to inform the DWP if you are sure your work is exempt, but it is always wise to do so to avoid later problems, particularly as the rules for calculating earnings, hours and requalification periods can be complex. In this respect, note that:

 the earnings rules apply to each week in which work is undertaken;

 hours of work are calculated using an average, dependent on whether you have a recognisable cycle of work and whether your hours fluctuate;

 unless you are in the ‘support group’, a further period of 52 weeks of working for less than 16 hours and no more than £104 per week is only allowed after a gap of 52 weeks, or a gap of 12 weeks during which you are not entitled to ESA or LCW credits. 1 Section 1(4) Welfare Reform Act 2007 2 Ibid section 1(3)(a) 3 Regulations 19 and 25-33 and schedule 2 ESA Regulations 2008 4 Section 2(5) Welfare Reform Act 2007 5 Ibid section 13(7); ESA (Work Related Activity) Regulations 2011 6 Regulations 34 and 35 and schedule 3 ESA Regulations 2008 7 One of the leading cases by a 3 Judge panel, which also reviews previous case law, is PR and SI v SSWP (ESA) [2014] UKUT 0308 (AAC) 8 One of the leading cases by a 3 Judge panel, which also reviews previous case law on work related activity is IM v SSWP (ESA) [2014] UKUT 0412 (AAC) 9 Regulations 40-46 ESA Regulations 2008