Ask CPAG Online - What is limited capability and how is it assessed?

This section looks at what limited capability means and how it is assessed. It also looks at when you automatically satisfy the assessment, when you might have to attend a medical, and whether or not you can do any work whilst having limited capability for work.

What is limited capability?

Having ‘limited capability for work’ means that because of your ‘physical or mental condition’, it is ‘not reasonable’ to require you to work. In practice, this means that you are not expected to work or look for work in order to get UC.

If you have severe limitations, you may also be assessed as having ‘limited capability for work-related activity’. Having limited capability for work-related activity means that because of your ‘physical or mental condition’ is ‘not reasonable’ to require you to ‘undertake work-related activity’. So overall you are assessed as having ‘limited capability for work and work-related activity’. In practice, this means that not only are you not expected to work or look for work, but you are not expected to undertake activities like attending work-focused interviews or retraining. In this situation, you are sometimes referred to as being in the ‘support group’ for UC.

If on the other hand, you are assessed as having just limited capability for work (not for work-related activity), you are sometimes referred to as being in the ‘work-related activity group’ for UC.

For more on how your UC is affected, see How does limited capability affect UC?

How is limited capability assessed?

You are assessed under the work capability assessment (WCA). The WCA is used to decide whether or not you have:

  • Limited capability for work; and
  • Limited capability for work-related activity.

For more on the WCA, see What is the WCA? below.

In a few situations, you are ‘treated as’ having limited capability without actually undergoing an assessment under the WCA – see below. Also, there are special rules about limited capability that apply if you transfer from ESA to UC – see What if you transfer from ESA to UC?

When are you treated as having limited capability?

You may be treated as having just limited capability for work or, if you have a certain serious condition or in certain serious circumstances, limited capability for work and work-related activity. In that case, you automatically satisfy the conditions for limited capability and do not have to undergo the WCA.

You are treated as having just limited capability for work, in the following situations (set out in Schedule 8 of the Universal Credit Regulations 2013).

  • You are an in-patient in hospital, or you are recovering from in-patient treatment and the DWP consider that your condition is sufficiently serious.
  • You are pregnant and there is a serious risk to your health or your baby’s health if you do not refrain from work (in this case you are likely also to be treated as having limited capability for work-related activity – see the bullet list below this one).
  • You are receiving plasmapherisis, regular weekly treatment for haemodialysis for chronic renal failure, or regular weekly treatment for total parenteral nutrition for gross impairment of enteric function, or are recovering from such treatment.
  • You have been officially notified not to work because of contact with an infectious disease.
  • You have reached the age at which you can claim pension credit and you are entitled to disability living allowance or personal independence payment (if you get a particular rate you are treated as having limited capability for work-related activity too – see the bullets below.)

Note: unlike in ESA, for UC you are not treated as having limited capability for work when you first submit a medical certificate from your doctor, and whilst the WCA is being arranged. This can mean, for example, that you are expected to look for work unless and until it is actually decided under the WCA that you do have limited capability for work. For a short period you can have what you are expected to do adjusted by declaring yourself unfit for work, but after that you need to ask your work coach to use her/his discretion until your WCA is decided. See How does limited capability affect UC? for more information.

You are treated as having limited capability for work and work-related activity in the following situations (set out in Schedule 9 of the Universal Credit Regulations 2013):

  • You are terminally ill – i.e. your death can reasonably be expected within six months.
  • You are receiving chemotherapy or radiotherapy for cancer, or you are recovering from such treatment, or you are likely to receive such treatment within six months and the DWP is satisfied that your treatment is likely to limit your ability to undertake work and work-related activity.
  • You are pregnant and there is a serious risk to your health or your baby’s health if you do not refrain from work and work-related activity.
  • You have reached the age at which you can claim pension credit and you are entitled to attendance allowance, the highest rate of disability living allowance care component or the enhanced rate of the personal independence payment daily living component.

What is the WCA?

The WCA is the official assessment used to decide whether you have limited capability for work or limited capability for work and work-related activity. The WCA rules for UC as basically the same as they are in ESA.

The WCA involves deciding whether you have limitations in various activities regarding both physical and mental health (for example, mobilising, understanding communication, learning tasks and coping with change). In each of the activities, you are assessed to see if you satisfy any statements or ‘descriptors’, describing varying levels of limitation in the activity. Each descriptor carries a points score. The activities, descriptors and points regarding limited capability for work are at Schedule 6 of the Universal Credit Regulations 2013. The activities and descriptors for limited capability for work and work-related activity are at Schedule 7 of the Universal Credit Regulations 2013.

Although not specifically referred to in the rules, official guidance in Chapter G2 Advice for decision making says that your capability should be assessed taking account of things like pain and discomfort, and your ability to carry out the activity with reasonable regularity. Usually, it will be what your capability is like most of the time that counts.

To pass the WCA and so be assessed as having limited capability for work, usually you must score at least 15 points. To be assessed as having limited capability for work and work-related activity, at least one of the highest scoring descriptors (15 points) must apply to you.

If you don’t score 15 points, you can still pass the WCA if either of the following two situations applies, in which case you are treated as passing it:

  • Because of your condition, there would be a ‘substantial risk’ to the health of any person were you found not to have limited capability for work unless that risk could be significantly reduced by reasonable adjustments in the workplace or by you taking prescribed medication (this also applies regarding the assessment of your limited capability for work-related activity); or
  • You have a life threatening disease which is either uncontrollable or is not controlled and there is reasonable cause for that (this circumstance only applies regarding limited capability for work).

Do you have to attend a medical?

Some people with severe conditions do not have to undergo the WCA, and so do not have to attend a medical – see When are you treated as having limited capability? above.

Otherwise in most cases you are required to attend at least one medical as part of the WCA, although in an individual case the DWP might decide that you do not.

Under the rules (regulation 43 of the Universal Credit Regulations 2013) the DWP can make the decision on your WCA straight away. Usually however, you are first sent a questionnaire (a UC50) to fill in and then asked to attend a medical, carried out by a DWP healthcare professional. The healthcare professional examines you at the medical, and then completes a report (a UC85) on what descriptors and points in the WCA they consider applies to you. The report is then sent to the DWP decision-maker. Although the decision maker is supposed to make up their own mind about the decision on the WCA, in practice it is uncommon for them to decide differently to the healthcare professional.

Tips on filling in questionnaire and regarding attending the medical are in CPAG’s Welfare Benefits and Tax Credits Handbook.

What if you fail to return the questionnaire or attend the medical?

If you fail to return the UC50 questionnaire, or attend the WCA medical, and the DWP do not consider that you have ‘good reason’ for this, you may be treated as not having limited capability for work (or if you are being assessed to see if you should be in the support group, limited capability for work-related activity).

Regarding the questionnaire, the DWP must have sent you a reminder to return it at least 3 weeks since you were sent it, and you must have been given a least a week after that reminder. Regarding the medical, the DWP must have sent you notice of the time, date and place of the examination at least 7 days in advance (or you had agreed to accept shorter notice).

There is no definition of ‘good reason’ and the DWP should take into account all the relevant facts, including things like the state of your health, if you were undergoing a crisis or emergency, etc.

When is the WCA applied?

The DWP have a lot of flexibility about when, and how often, the WCA is applied to you in order to assess your limited capability. The rules do not say exactly when or how often the WCA must be applied.

In practice (there is nothing in the rules about this), when you first tell the DWP that you are ill, the DWP wait until you have been ill for 28 days before arranging your first WCA. In this period the DWP require evidence initially from you and then, after 7 days, a medical certificate from your doctor.

Regarding repeat assessments, when they apply is normally decided by the opinion of the DWP healthcare professional that conducted your previous WCA. In some cases where you have limited capability for work-related activity the DWP may not reapply the WCA very often.

If you transfer from ESA to UC, there are special transitional rules about treating you as having limited capability and when the WCA may be re-applied to you – see What if you transfer from ESA to UC?

Under regulation 41 of the Universal Credit Regulations, the DWP can apply a WCA to you in either of two situations:

 

  • The WCA has not been applied to you before, and it now needs to be decided whether you have limited capability (for example because you have told the DWP that you are ill or you have submitted a medical certificate from your doctor); or
  • The WCA has been applied to you before, but the DWP now want to decide if there has been a change regarding your physical or mental condition, or if the previous WCA include a mistake about the relevant facts in your case or was made in ignorance of a relevant fact in your case.
  • If your previous WCA for UC (or for contributory ESA under the UC system) decided that you did not have limited capability for work then the DWP do not carry out another WCA unless there is evidence that the second bullet point above may apply in your case.

 

Example

Danny claimed UC and was assessed under the WCA. It was decided that he did not have limited capability for work – i.e. he failed the WCA. Danny submits another medical certificate from his GP several months later.

But as the DWP do not consider that there is evidence of a change in his condition, or a mistake about or ignorance of a relevant fact in the previous WCA, they do not arrange another WCA, and do not change the decision that he does not have limited capability for work.

Can you do any work?

UC does not have many rules about whether or not you are allowed to do any work. Unlike for ESA, there is no rule that generally you cannot work, and UC does not have a 'permitted work' rule about work you can do whilst still being regarded as unable to work. However, it still important for you to consider whether or not to undertake work, as your UC could still be affected. This is because:

  • the DWP may decide to reapply the WCA to you to see if you still pass it, or
  • if your earnings are at or above a certain threshold, in some circumstances, the DWP may decide to treat you as not having limited capability.

In many cases, even if you have passed the WCA, if you do any work, the DWP are likely to consider reapplying the WCA to you, to test whether your condition has changed. If this happens and you fail the WCA, you will not have limited capability.

If you work and earn at or above a certain threshold and have not yet had the WCA applied to you under the UC system, with certain exceptions you are  automatically treated as not having limited capability (under regulation 41(2) and (3) of the Universal Credit Regulations 2013).  In that case, the WCA cannot be applied to you. The earning threshold is set at the pay for 16 hours a week at the rate of the full national minimum wage, converted to a monthly amount. In April 2018, this meant that the threshold was £542.88 a month (note that the rate of the national minimum wage is usually increased each October).

However, in certain circumstances you can earn at or above the threshold without automatically being regarded as not having limited capability for work. In these circumstances, the WCA can then be applied to you. These circumstances are where:

 

  • You are entitled to a disability benefit i.e. attendance allowance, disability living allowance or personal independence payment, or
  • You have already been assessed as passing the WCA under the UC system.

 

In either case, the DWP are very likely to consider applying or reapplying the WCA to you.

Examples

Jane is working and earning above the threshold level. She is not getting a disability benefit. The DWP treat Jane as not having limited capability for work and cannot apply the WCA to her. But then she starts getting personal independence payment and tells the DWP she is ill. The WCA can now be applied to Jane and (depending on whether she passes the WCA) she can be assessed as having limited capability.

Manu has passed the WCA under the UC system and is regarded as having limited capability for work. He does some work and starts earning above the threshold level. He is not automatically regarded as not having limited capability for work, but the DWP decide to reapply the WCA to Manu in order to test whether he still passes it.

It is not clear what approach the DWP take if you transfer to UC from ESA and were working under the 'permitted work' rules for ESA, but have not yet had a WCA under the UC system. Official guidance simply says (at paragrah M6192) that if you had been assessed as having limited capability for ESA then you are treated as such for UC until the WCA is applied to you under the UC system. In practice, that may be the most likely approach. Striclty speaking however, the rules described here could mean that if your earnings are at or above the threshold level and you are not getting a disability benefit as described above, you will be treated as not having limited capability for work. In that situation, argue that you should be treated as having limited capability until the WCA has been applied to you under the UC system, as described in the official guidance.