Conditionality for ESA claimants

In order to receive their full entitlement to employment and support allowance (ESA) some claimants will be required to take part in:

• Work-focused health-related assessments (WFHRA)
• Work focused interviews (WFI)

Although the Welfare Reform Act 2007 allows regulations to be made requiring claimants to take part in a third area (“work related activity”), there are no such requirements in the current regulations. It is planned that “as resources allow” claimants will also be required to participate in work related activity.

This page sets out the detailed rules about how this new “conditionality” will operate.

1. What is a work focused health related assessment?
2. What is a work focused interview?
3. Which claimants do the new rules apply to: who must take part
4. Deferral of the requirement to take part
    4.1. Deferral of the requirement to take part in the WFRHA
    4.2. Deferral of the requirement to take part in the WFI
5. Being notified about the WFHRA or the WFI:
    5.1. WFHRA and notice requirements:
    5.2. WFI and notice requirements:
6. What it means to take part in the WFHRA and the WFI
    6.1. The requirement to take part in the WFHRA
    6.2. The requirement to take part in the WFI
7. Failing to take part:
    7.1. Good cause for failing to take part in the WFHRA
    7.2. Good cause for failing to take part in the WFI
8. Reductions in ESA for failing to take part

1. What is a work focused health related assessment?

A work-focused health-related assessment (see Welfare Reform Act 2007, section 11(7), and Employment and Support Allowance Regulations 2008 no. 48) is an assessment carried out by an approved health care professional [*] for the purpose of seeing:

• the extent to which a person still has a capability for work;
• how that capability could be improved by taking steps in relation to their physical or mental condition;
• difficulties in getting or remaining in work which are likely to be experienced because of health problems and how these difficulties can be alleviated;
• the claimant’s views of how their health problems impact upon getting or remaining in work and their aspirations about work in light of their health problems.

We understand that the intention will usually be to perform a WFHRA at the same time as the assessment of limited capability for work for claimants who, in the opinion of the health care professional, do not to have a limited capability for work related activity.

* Health care professional means a registered medical practitioner, registered nurse, occupational therapist or physiotherapist. [ESA Reg 2(1)]

2. What is a Work focused interview?

A work focused interview is an interview conducted by someone acting on behalf of the Secretary of State for the purposes of getting the person interviewed into work or keeping them in work (WRA 2007, section 11(7)). At the WFI the Secretary of State can do this through: (ESA Reg 55)

• assessing the claimant’s prospects for remaining in or obtaining work;
• assisting or encouraging the claimant to remain in or obtain work;
• identifying activities that the claimant may undertake that will make remaining in or obtaining work more likely;
• identifying training, educational or rehabilitation opportunities for the claimant that increase the likelihood the claimant will remain in or obtain work or be able to do so;
• identifying current or future work opportunities (including self-employment) for the claimant that are relevant to the claimant’s needs and abilities.

Note that although a WFI may be conducted for any of the above purposes, none of the activities, training/educational or rehabilitation opportunities or work opportunities discussed are compulsory. All the Secretary of State can do is to identify that the options exist.

We understand that the first WFI will be scheduled for around the 8th week of a new claim to ESA. (Page 20, Explanatory Memorandum to the ESA Regulations, PDF file). It is expected that claimants have 6 WFIs in all.

The Secretary of State must provide the claimant who attends a WFI with an “action plan” [ESA Reg 58]. This is a written document which contains:

• a record of the WFI;
• a record of any activity the claimant is willing to take which may make it more likely to obtain or remain in work or which make it more likely that the claimant would be able to do so; and
• any other information that the Secretary of State considers appropriate.

3. Which claimants do the new rules apply to: who must take part

All claimants who meet the following conditions can be required to take part in one or more WFHRA [ESA Reg 47(2)] and/or WFI [ESA Reg 54(2)]:

• is entitled to ESA; and
• is not a member of the support group; and
• is under 60.[*]

* The regulations refer to being “under the age at which a woman of the same age attains pension age” and therefore the relevant age will increase from 60 to 65 between 2010 and 2020.

NB: it is only where proper notice is given of the requirement to take part (including date etc) that such a claimant is required to attend – see below under section 5).

The regulations also say that a person who has made an advance claim for ESA on the basis that they will become entitled at a later date when the addition of a component means their income will be below their ESA amount (under Regulation 146) can be required to take part in a WFI, and that a person who has made an advance claim more generally can be required to take part in a WFHRA. However, it is difficult to see that the Act under which the regulations are made provides the power to make a regulation that places this requirement on people who are not entitled to ESA.

If a claimant stops meeting the above conditions then any requirement to take part in WFI or WFHRA stops as well [ ESA Reg 47(3) and ESA Reg 54(3)] (for example if it is decided the claimant should be in the support group).

4. Deferral or waiving of the requirement to take part

4.1. Deferral of the requirement to take part in the WFHRA
The requirement to take part in the WFHRA is deferred [ESA Reg 52] if the Secretary of State has not made a decision as to whether the claimant has limited capability for work-related activity but a health care professional has conducted an assessment to enable the Secretary of State to make that decision and it is the opinion of the health care professional that the claimant meets the conditions to be in the support group.

If, contrary to the view of the health care professional, the Secretary of State subsequently decides the claimant is not in the support group, then the requirement to take part in a WFHRA can be re-imposed from such time as the Secretary of State decides.

The health care professional must notify a claimant whose WFHRA is deferred pending the Secretary of State’s assessment that this is what is happening.

The requirement to take part in the WFHRA cannot be waived.

4.2. Deferring or waiving of the requirement to take part in the WFI
The requirement to take part in a WFI [ESA Reg 59] may be deferred if at the time it is due to take place the interview would not be (or have been) of assistance to the claimant or appropriate in the circumstances.

It is possible to treat the requirement as having been deferred before the interview took place even if the decision to do so only took place after the interview did, or was due to, take place.

Where the requirement is deferred then a new time is to be set.

If the work focused interview would not assist the claimant because the claimant is or is likely to be starting or returning to work, then the requirement to take part can be cancelled altogether (rather than just rescheduled for a later date) [ESA Reg 60].

5. Being notified about the WFHRA or the WFI:

Before a claimant can be required to take part in a WFHRA or a WFI (or sanctioned for failing to take part) they must be properly notified about the requirement. The rules on notifying a claimant about a WFHRA are different from those about notifying a claimant about a WFI.

5.1. WFHRA and notice requirements:
The health care professional, or someone acting on their behalf, must notify the claimant of the requirement to take part in the assessment [ESA Reg 49(1)]. The notification must include details of the:

• date;
• time; and
• place of the assessment.

This notice must be given in writing at least seven days before the claimant is required to attend the assessment [ESA Reg 49(2)] unless the claimant agrees to accept a shorter period of notice whether in writing or otherwise (for example if telephoned three days before an assessment).

For the purposes of calculating the seven days’ notice in writing then any notice sent by post is treated as received on the second working day after posting (for example a notice posted on a Friday is treated as received on the following Tuesday, even if it does not in fact arrive until Wednesday or arrives on the Monday) [ESA Reg 65(2)].

5.2. WFI and notice requirements:
The Secretary of State must notify the claimant of the requirement to take part in the interview. Again the notice must include details of the date, time and place of the assessment.

However, unlike for notice of WFHRA, there is no requirement that the notice is given a certain number of days before the interview.

The notice can be in writing or in some other form (for example a telephone call). Where the notice is in writing and is posted then it is not treated as received until the second working day after posting in the same way as for a WFHRA.

6. What it means to take part in the WFHRA and the WFI

The regulations also set out what a claimant who is required to take part in a WFHRA or a WFI must do to be regarded as having fulfilled the requirement.

6.1. The requirement to take part in the WFHRA
To be regarded as having taken part in a WFHRA the claimant must [ESA Reg 51]:

• attend for the assessment at the date, time and place that has been notified in accordance with the rules set out above. Note that if the claimant has not been properly notified of the date, time and place etc. they cannot be regarded as not having taken part for failing to attend;
• provide all the information which the Secretary of State requests as being necessary for the WFHRA;
• participate in discussions to the extent the Secretary of State considers necessary for the WFHRA.

6.2. The requirement to take part in the WFI
To be regarded as having taken part in a WFI the claimant must [ESA Reg 57]:

• attend the interview at the date, time and place notified in accordance with the rules set out above. Again, this means that if the claimant has not been notified properly they cannot be regarded as not having taken part;
• provide any information requested by the Secretary of State about their:
  
  
  • educational qualifications and vocational training;
  • work history;
  • aspirations for future work
  • skills relevant to work;
  • work related abilities;
  • caring or childcare responsibilities; and
  • any paid or unpaid work which they are undertaking;
    
• participate in discussions to the extent the Secretary of State considers necessary about:
  
  
• any activity they are willing to undertake which may make getting or staying in work more likely;
• any such activity that they have previously undertaken;
• any progress they might have made towards getting or staying in work;
• any WFHRA they might have taken part in; and
• their opinion as to the extent to which their health conditions restrict their ability to get or stay in work.

7. Failing to take part:

A claimant who is in the group of people required to take part in a WFI or a WFHRA (as discussed in section 2 above) but who fails to take part (as discussed in section 5 above) must show “good cause” for failing to take part or will face a sanction (see below).

The claimant must demonstrate the “good cause” within 5 working days of being given notice of the failure. There are no rules about how the notice of a failure to take part must be given (whether by post or telephone etc). However if such a notice is sent by post then it will not be treated as having been given to the claimant until the second working day after it is posted.

The precise rules about what counts as “good cause” are different dependent on whether the claimant has failed to take part in a WFHRA or a WFI:

7.1. Good cause for failing to take part in the WFHRA
In deciding whether a claimant has shown good cause for failure to take part in a WFHRA then the Secretary of State must consider [ESA Reg 53]:

• whether the claimant was outside Great Britain at the time of the notification;
• the claimant’s state of health at the time of the WFHRA;
• the nature of any disability which the claimant has; and
• any other matter which the Secretary of State considers appropriate.

7.2. Good cause for failing to take part in the WFI
In deciding whether a claimant has shown good cause for failure to take part in a WFI then the Secretary of State may consider [ESA Reg 61]:

• that the claimant misunderstood the requirement to take part in the WFI due to learning, language or literacy difficulties;
• that the claimant misunderstood the requirement to take part because of any misleading information given or sent by the Secretary of State;
• that the claimant was attending an interview with an employer with a view to remaining in or obtaining work;
• that the claimant was pursuing employment opportunities as a self-employed earner;
• that the claimant was attending a medical or dental appointment and that it would have been unreasonable in the circumstances to re-arrange the appointment;
• that the claimant was accompanying another person for whom the claimant has caring responsibilities to a medical or dental appointment and again it would have been unreasonable in the circumstances to re-arrange the appointment;
• that the claimant, a dependent or another person for whom the claimant provides care suffered an accident, sudden illness or relapse of a physical or mental condition
• that the claimant was attending a funeral of a relative or a close friend on the day of the interview;
• that the physical or mental condition of the claimant made it impossible to attend at the time and place fixed for the interview;
• that the established customs and practices of the religion to which the claimant belongs prevented attendance on that day or that time;
• any other matter which the Secretary of State considers appropriate.

8. Reductions in ESA for failing to take part

A mandatory reduction:
If the Secretary of State decides that a claimant has failed to take part in a WFI or a WFHRA and has failed to show good cause for that failure as set out above then their ESA must be reduced [ESA Reg 63].

Amount of the reduction:
The reduction will initially be set at 50% of the value of the work related activity component. The reduction will commence from the date on which the decision that the claimant has failed without good cause to take part is made. It is not clear whether the DWP will make amendments to other regulations which allow the reduction to commence from some other date. However, the DWP say that the reduction will not apply until the work related activity component has been awarded.

After four weeks the reduction will be increased to 100% of the value of the work related activity component.

The reduction cannot reduce a claimant’s ESA to less than 10p per week (so if to impose the full reduction would do this then the claimant is still left with the 10p per week).

If a claimant has failed to take part without good cause in more than one WFI or WFHRA then they will still only have one reduction. However, if a claimant has failed to take part in both a WFHRA and a WFI then they can have two reductions. although the total amount of the reductions cannot exceed 100% of the value of the work related activity component.

The reduction is applied first to any contribution related ESA the claimant receives and then only if there is any amount outstanding is it used to reduce any income related ESA. However, the claimant will be treated as receiving the amount of contribution based ESA they would be getting without the reduction, for the purposes of working out how much income they have for calculating their income related ESA.

Ending of the reduction
The reduction ends:

• from the date on which the claimant complies with the requirement to attend a WFHRA or WFI as appropriate; or
• the date on which the claimant is no longer a person who can be required to attend a WFHRA or WFI (ie because they are over 60, in the support group or no longer entitled to ESA).

See examples of relevant DWP forms.

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