ESA medical assessments: official guidance

Two sets of guidance, for decision makers and examining health care professionals, contain useful information on the official approach, including on the conduct of medical examinations for ESA (in particular for the ‘limited capability for work assessment’ part of the Work Capability Assessment) and how points are to be scored.

Two new volumes of the decision makers guide have been published by the DWP, (volumes 8 and 9 are available at http://www.dwp.gov.uk/publications/dwp/dmg/). The guidance on medical assessments is contained in volume 8, chapter 42. It contains useful information about decision making and processes, as well as the approach to variability of symptoms, pain etc in scoring points.

Guidance has also been issued to examining health care professionals in the form of the Medical Services Training and Development ESA Handbook (2.1 MB PDF). This includes not only guidance on the conduct of medicals and the scoring of points (including regarding variability, pain etc), but also extensive guidance on the application of individual activities descriptors, some of which (especially in the assessment for mental health) is new and not yet the subject of caselaw.

Decision making and processes

The guidance amplifies the provision in the rules that in the Work Capability Assessment (WCA) it will not always be necessary to issue a self-assessment questionnaire (an ESA50). Decision makers are told that is not necessary where the claimant can be treated as having limited capability for work (eg, where they are a hospital in-patient or have a certain condition) and where they are, ‘satisfied that there is sufficient information to decide whether a claimant has limited capability for work without it’.[note 1]

Neither will a medical always be necessary. Available evidence, including (where issued and returned) the questionnaire, is scrutinised by DWP medical services. A ‘Pre-Board Check’ identifies, where possible, members of the support group for ESA and those for whom it is clear that they have limited capability for work.[note 2]

Examining healthcare professionals are told that medicals are to be conducted, ‘in a friendly, professional and non-confrontational way…in keeping with the intention of ESA, it is also essential that the practitioner maintains a positive focus and approach identifying the claimant’s capabilities rather than a more negative approach mainly identifying their restrictions'.[note 3]

Medical reports will be issued in electronic form. The medical report will indicate the time before the next WCA is due.[note 4]

Variability, pain, etc.

As in the PCA, the rules themselves do not make any overall provision regarding things like good days and bad days, pain and tiredness. Arguably, much of the caselaw regarding these that has arisen in connection with the PCA should apply to the Work Capability Assessment. Indeed, the official guidance to decision makers does make some cross-reference to PCA caselaw, for example that the assessment does not have to be satisfied in respect of each day, that an overall view and reasonableness should be taken into account, and that ‘matters such as pain, discomfort and repeatability are taken into account’, and a decision is made as to whether the claimant can perform a relevant descriptor with reasonable regularity.[note 5] Oddly, however, the guidance then says that ‘there is no specific requirement that a claimant must be able to perform the activity in question with “reasonable regularity”’.[note 6]

This slightly ambivalent advice is repeated in the advice given to examining healthcare professionals. On the one hand, there is clear instruction to be aware of things like variability and pain, and overall to make a finding based on the claimant’s ability ‘most of the time’. Further, the guidance says that, ‘if a claimant cannot repeat an activity with a reasonable degree of regularity, and certainly if they can perform the activity only once, then they should be considered unable to perform that activity.’ But the guidance is then that, ‘the activities do not have to be performed without any discomfort or pain. However if the claimant cannot perform an activity effectively because of pain they should be considered incapable of performing that activity.’[note 7]

Notes
1. Decision Makers Guide chapter 42, para 42131
2. Decision Makers Guide chapter 42, para 42133; Training and Development ESA Handbook (2.1 MB PDF), p19
3. Training and Development ESA Handbook (2.1 MB PDF), p36
4. Decision Makers Guide chapter 42, paras 42137 and 42142
5. Decision Makers Guide chapter 42, paras 42173 and 42175
6. Decision Makers Guide chapter 42, para 42176
7. Training and Development ESA Handbook (2.1 MB PDF), p53

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