Please be aware that welfare rights law and guidance change frequently, therefore older Bulletin articles may be out of date. Visit www.cpag.org.uk/welfarerights to see our most recent articles and briefings.

The work capability assessment

Simon Osborne describes the new test for Employment and Support Allowance of whether someone is too ill to work. This article updates the information on pages 147 and following of CPAG's Welfare Benefits and Tax Credits Handbook.

Introduction
What is the work capability assessment?
Limited capability for work - main principles
Who does the new test apply to?
'Exemptions'
Other 'exemptions'
Treated as not having limited capability for work
Activities, descriptors and points
Exceptional circumstances
The work capability assessment process
Failure to provide information
Decisions and appeals
References

Introduction
Accompanying the introduction of Employment and Support Allowance on 27 October is the introduction of a new test of 'limited capability for work', i.e. of whether someone is too ill to be reasonably expected to work.[footnote 1] This test is known as the Work Capability Assessment. Applying initially to claimants of ESA, it is a revised version of the test of 'incapacity for work' that constitutes the current personal capability assessment (PCA) for incapacity benefits.

What is the Work Capability Assessment?
The term 'Work Capability Assessment' is primarily used to describe the process of assessing whether someone has 'limited capability for work' for the purpose of entitlement to ESA. It is (at the moment) specifically tied to ESA, because having limited capability for work is one of the basic entitlement conditions for ESA, and not any other benefits.[Footnote 2]

But the term may also be used to describe two other assessments: whether someone has 'limited capability for work-related activity' which is the test whether they are severely disabled enough to get the 'support component' of ESA and so not have to attend work-focused interviews, and a 'work-focused health-related assessment' which is medical information on the claimant's needs in improving their ability to return to work (and which is similar to the 'capability reports' currently produced for incapacity benefits claimants).[footnote 3]

Limited capability for work - main principles
The test is an assessment of:

• whether a person's capability for work is limited by his physical or mental condition; and if so,
• whether the limitation is such that it is not reasonable to require that person to work.[Footnote 4]

The regulations then specify that that means, 'an assessment of the extent to which a person who has some specific disease or bodily or mental disablement', is capable of performing specified activities, or is incapable of performing them.[Footnote 5] A person who has certain limitation, set out as descriptors, will score points for that, and scoring a specified threshold score of 15 points will mean that the test is satisfied (i.e., that the claimant does have limited capability for work).

Certain people can satisfy the assessment other than via the points score, by being treated as having limited capability for work, or because having had the new test applied but not scored enough points, a particular 'exceptional circumstance' applies.

Who does the new test apply to?
The Work Capability Assessment applies initially only to claimants of ESA, so it will not be applied to anyone before that benefit is introduced on 27 October 2008.

It will not apply initially to current claimants of incapacity benefit, income support or severe disablement allowance. But the Government plan to apply it to existing claimants of incapacity benefits aged under 25 from 2009, and to all existing claimants from 2010, with all due to be under the new test by 2013. [Footnote 6]

'Exemptions'
Certain claimants are treated as having limited capability for work, meaning that they do not have to satisfy the test. The list of such claimants is different from that that applies to the personal capability assessment for incapacity benefits, and does not include (for example) people who have severe mental illness or who are entitled to the high rate of the care component of disability living allowance. Neither are people entitled to the 'support component' automatically regarded as having limited capability for work - if it is not accepted on available evidence that they satisfy the test, they may be required to complete a questionnaire and attend a medical.

A claimant will be treated as having limited capability for work,[footnote 7] and therefore be in effect exempt from the assessment of limited capability for work, if the claimant:

• is terminally ill (i.e., their death can reasonably be expected within six months);
• is receiving, or recovering from, intravenous, intraperitoneal or intrathecal chemotherapy;
• is excluded from work due to having been in contact with a notifiable disease;
• is a hospital in-patient;
• is pregnant and either:
  - she is entitled to maternity allowance
  - she is in the period between the date 6 weeks before her due date and 2 weeks after the actual birth, and she is not entitled to maternity allowance or SMP for that period; or
  - there is a serious risk to her or the unborn child if she does not refrain from work;
• is receiving one of the following treatments:
  - haemodialysis for chronic renal failure
  - plasmapheresis or radiotherapy
  - total parenteral nutrition for gross impairment of eneretic function

Other 'exemptions'
A claimant can also be treated as having limited capability for work in respect of certain (usually time-limited) situations. These are the following:

• For the purposes of meeting the condition of having had limited capability for work for 196 days in order to qualify for contributory ESA through the youth route, a claimant will be treated as having limited capability for work on any day when they were entitled to SSP.[Footnote 8]
• For income-related ESA, they are a student in education and in receipt of DLA and does not count as a 'qualifying young person' - i.e. as in for child benefit.[Footnote 9]
• Pending assessment (i.e., when they first claim), the claimant will be treated as having limited capability for work as long as they submit medical certificates.[Footnote 10] However, usually they will not be treated as having limited capability for work pending assessment, if they make a new claim within 6 months of a decision that they do not have limited capability for work, or are treated as not having limited capability for work because they failed to return the questionnaire or attend a medical without good cause. In these circumstances ESA will not be paid until the claimant is assessed as having limited capability for work, unless:
  - they are suffering from a new disease or disablement; or
  - their disease or disablement has significantly worsened; or
  - they had failed to return the questionnaire they have now returned it; or
  - they have an outstanding appeal against a decision that they do not have limited capability for work.

Treated as not having limited capability for work
In a few circumstances a claimant is treated as not having limited capability for work - i.e., as failing that part of the Work Capability Assessment - even though they have actually been assessed and have passed it. These circumstances are:[footnote 11]

• where the claimant is treated as not entitled to ESA because they have worked (the rules on work and ESA are very similar to those on work and benefits for incapacity for work, including permitted work);
• where the claimant has claimed jobseeker's allowance and there is a reasonable prospect of them getting work;
• where the claimant is disqualified from contributory ESA whilst a prisoner or in legal custody (but not entitled to some income-related ESA pending trial or sentence).

Activities, descriptors and points
The full details of the activities, descriptors and points for assessing limited capability for work are set out in Schedule 2 to the Employment and Support Allowance Regulations 2008, SI 2008 No. 794.

The structure is similar to the PCA. There are two lists of activities: one for physical health, one for mental health. Various changes (relative to the current PCA) have been made to the physical health descriptors, including the removal of all the 3 point scoring ones (i.e., so that scores are for 0, 6, 9 or 15 points). The mental health test has been extensively revised, with the list of activities considerably expanded, and scores of 0, 6, 9 or 15 used.

Descriptors describe different levels of limitation in each activity, and each descriptor carries a points score. In each activity, the highest scoring descriptor that applies to the claimant is awarded, then the points from all the activities are added up. Points may be scored in one or more activities, and the scores from the physical and mental health tests are simply aggregated - the PCA rule that points from the mental health test are added to the physical health score only if between 6 and 9 points are scored is not used. The threshold score for satisfying the test is 15 points.[Footnote 12]

Rules on how points are actually scored [footnote 13] are similar to the PCA. Limitations must in general be because of a specific bodily disease or disablement, a specific mental illness or disablement, or as a direct result of medical treatment from a registered doctor for that - although there is not a specific requirement that points in the physical and mental health tests are due, respectively to physical or mental disablement. Points are awarded taking into account ability when using any aid, or appliance that the claimant normally uses.

The rules do not make any overall provision regarding things like good days and bad days, pain and tiredness. Arguably, much of the case law regarding these that has arisen in connection with the PCA should apply to the Work Capability Assessment.

Exceptional circumstances
If the claimant is not 'exempt' or otherwise treated as having limited capability for work, and does not score enough points, s/he can still satisfy the test if at least one of the following two exceptional circumstances applies:[footnote 14]

• they have a severe uncontrolled or uncontrollable life-threatening disease, and there is medical evidence to show this. There must be reasonable cause for the disease not to be controlled by a recognisable therapeutic procedure;
• because of the claimant's illness, there would be a substantial risk to the mental or physical health of any person were they found not to have limited capability for work. This exceptional circumstance is the same one as applies in the PCA, and arguably the case law that applies to it should apply here.

The Work Capability Assessment process
It is intended that the assessment will take place during the initial 13 week 'assessment phase' of an ESA claim. The assessment process will be similar to that of the PCA. Information will be sought from the claimants' doctor and, unless they are identified as 'exempt', they will be sent a questionnaire (an ESA50) to complete and return. In most cases (i.e., apart from those identified as 'exempt' and in other cases where the DWP think the test is clearly satisfied), the claimant will be required to attend a medical. It is understood that where a claimant is required to attend a medical, the intention is to arrange for that as soon as possible and the experience of this may be faster than for some current incapacity claimants.

At the medical, the same examining health professional will also apply two other elements of the Work Capability Assessment - i.e. the assessment of 'limited capability for work-related activity' and the work-focused health-related assessment , and that information about all of these will be gathered at the same appointment. (In practice, there will be a short break in the examination/interview before the work-focused health-related assessment.)

At time of writing, work was still progressing on redesign of various forms and notices used in the process, but it is understood that they will be fundamentally similar to those used in the PCA, albeit with the 'ESA' prefix used instead of 'IB' - e.g., the current IB85 form (the examining doctor's report on the PCA) will be the ESA85. One difference is that the claimant will automatically be sent a copy of the report on the work-focused health-related assessment (as will the person who conducts work-focused interviews with them), along with a covering letter explaining what the report is and what it is intended to help with.

Rules provide that the assessment may be reapplied (including where someone is 'exempt' or otherwise treated as having limited capability for work) where the DWP wishes to determine if there has been a relevant change regarding the claimant's condition, or whether the result of the previous assessment was made in ignorance of or based on a mistake about a material fact, or otherwise after at least 3 months have passed since the date the claimant satisfied the assessment.[Footnote 15]

Failure to provide information [footnote 16]
Penalties may apply where a claimant fails to provide information for the WCA.

The information required is:

• a doctor's statement or other medical evidence; and
• information obtained through a questionnaire (ESA50) relating to the claimant's ability to perform the specified activities (this information requirement may be waived if the DWP considers it has enough other information);
• and any additional information the DWP may request.

If the claimant fails without 'good cause' to:

• return the completed questionnaire (having been sent two requests in accordance with time limits); or
• attend, or submit to, a medical examination (provided they were given adequate notice in writing),

they will be treated as not having limited capability for work.

Matters to be taken into account in determining 'good cause' include:

• Whether the claimant was outside GB at the relevant time
• The claimant's state of health at the relevant time
• The nature of the claimant's disability.

Decisions and appeals
A finding as to whether or not the claimant satisfies the Work Capability Assessment (i.e., regarding limited capability for work) is a 'determination',[footnote 17] and as such is not a formal decision and does not carry the right of appeal. However, this is the same as for findings about whether the PCA is satisfied, and (as in the PCA) it is expected that determinations on limited capability for work will be 'embodied' in a decision about benefit or national insurance credits entitlement. That decision may then be challenged (e.g. on appeal) and the finding on limited capability for work challenged as part of that.

Whilst appealing, the claimant will have a choice (apart from not claiming benefit at all) between being on a reduced amount of ESA or claiming jobseeker's allowance whilst appealing. In this period, they will be able to get ESA on the basis of a medical certificate.[Footnote 18] The situation is roughly similar to the choice that applies pending PCA appeals between getting reduced rate income support or claiming JSA. Regarding the reduced rate of ESA that applies whilst the appeal is pending, the provision is different from IS in that the claimant will be regarded as having started a new ESA claim, and a new 'assessment phase' will be regarded as started and not ending until the tribunal has made its decision.[Footnote 19] That means that the claimant will not be able to get more than the assessment phase rate that applies to them whilst the appeal is pending.

Appeals will probably increase. The final evaluation of the revised PCA found that the proportion of claimants failing the test increased by 12 per cent (relative to those failing the unrevised PCA).[footnote 20] However, the DWP estimate that around 60,000 more people a year will fail the Work Capability Assessment than the PCA, and that appeals will increase by around 20,000 a year.[Footnote 21]

Note: For further information, regularly updated, about the WCA and other matters regarding Employment and Support Allowance, see also CPAG's website at www.cpag.org.uk/esa and the online version of CPAG's Welfare Benefits and Tax Credits Handbook.

References
1. The Employment and Support Allowance Regulations 2008, SI No. 794 (the 'ESA Regs'), reg 19 [back to text]
2. s1 Welfare Reform Act 2007 ('WRA 2007') [back to text]
3. ss 9 and 11 WRA 2007; Regs 34-39, 47-53 and Sch 3 ESA Regs [back to text]
4. s8(1) WRA 2007 [back to text]
5. ESA Regs reg 19 [back to text]
6. Ready for work: full employment in our generation, DWP, 2007, available via www.dwp.gov.uk/welfarereform/readyforwork; Budget 2008, Stability and opportunity: building a strong, sustainable future, HM Treasury HC 388, available from Stationery Office or via www.hm-treasury.gov.uk. [back to text]
7. ESA Regs, regs 20, 25 and 26 [back to text]

8. ESA Regs, reg 33(1) [back to text]
9. ESA Regs reg 33(2) [back to text]
10. WRA s.8(5)&(6); ESA Regs, reg 30 ESA Regs, reg 31 [back to text]

11. ESA Regs, regs 31 and 159 [back to text]
12. ESA Regs, reg 19(1)-(3), (6) [back to text]
13. ESA Regs, reg 19(4)-(5) [back to text]
14. ESA Regs, reg 29 [back to text]
15. ESA Regs, reg 19 (7) and (8) [back to text]
16. ESA Regs, regs 21 - 23 [back to text]
17. ESA Regs, regs 19 and 34 [back to text]
18. ESA Regs, reg 30(3) [back to text]
19. ESA Regs, reg 6 [back to text]
20. Transformation of the Personal Capability Assessment: Technical Working Group's Phase 2 [back to text]
21. Evaluation Report, DWP, 2007. Evidence Base for summary sheets in the Explanatory Memorandum to the Employment and Support Allowance Regulations 2008, 2008 No. 794 and the Employment and Support Allowance (Transitional Provisions) Regulations 2008, 2008 No. 795 [back to text]

Welfare Rights Bulletin 204 June 2008

Please be aware that welfare rights law and guidance change frequently, therefore older Bulletin articles may be out of date. Visit www.cpag.org.uk/welfarerights to see our most recent articles and briefings.