In the last issue of Frontline, Siobhán Harding of Citizens Advice gave an overview of the Employment and Support Allowance. In these pages, her colleague Lucy Cochrane explains the workings of the medical assessment which will determine entitlement to the new benefit.

The government’s Welfare Reform Act aims to take one million people off Incapacity Benefit across the UK by introducing Employment and Support Allowance on 27 October 2008. The new two tier allowance replaces Incapacity Benefit and Income Support paid on the basis of incapacity for work for new claimants.

Assessment process

There are significant areas of change around the assessments for capability for work. The work capability assessment will replace the personal capability assessment and will now comprise of three separate assessments. The assessments are:

• the limited capability for work assessment;
• the limited capability for work-related activity assessment;
• the work focused health-related assessment.

The Work Capability Assessment process takes place during the initial thirteen week ‘assessment phase’ of the claim. During this period, claimants may be found to be exempt from the medical examination and be subsequently awarded one of the two new components. Claimants who are subject to the examination will be required to score 15 points to satisfy the test. If a claimant fails the test, s/he will therefore be deemed capable of work. Claimants who fail the test will be given the option to appeal the decision and at this stage may remain in the assessment phase on the basic allowance rate of ESA during the appeal or they can claim Jobseeker’s Allowance.

Exemptions

Claimants who are automatically treated as having limited capability for work do not have to satisfy the limited capability for work assessment. The circumstances in which this would apply are if the person:

• is terminally ill;
• is receiving or recovering from various forms of chemotherapy;
• has to stop work due to being a carrier or in contact with certain infectious diseases;
• is pregnant and there is a risk to the mother or child if the mother works;
• is pregnant within the Maternity Allowance period and entitled to Maternity Allowance;
• is or was pregnant and it is between six weeks before the expected week of childbirth and fourteen days after the actual date of childbirth and there is no entitlement to Statutory Maternity Pay or

Maternity Allowance

While the above people are automatically exempt from the assessment, there will be other claimants who will also be treated as having limited capability for work. These are claimants who are hospital inpatients and, additionally, anyone receiving the following regular weekly treatment:

• haemodialysis for chronic kidney failure;
• plasma exchange;
• total intravenous nutrition;
• radiotherapy.

The last category of claimants who do not have to satisfy the test are claimants who:

• suffer from a severe life threatening disease and there is medical evidence to suggest that the disease is uncontrollable or uncontrolled by a recognised therapeutic procedure;
• suffer from some specific disease or bodily or mental disablement and because of this there would be a substantial risk to anyone’s physical or mental health if s/he was not found to have limited capability for work.

Limited capability for work

The limited capability for work assessment determines entitlement to ESA in the same way as the personal capability assessment currently determines entitlement to Incapacity Benefit. This is the most important part of the process for the majority of claimants as it will determine whether they are fit for work or not.

Physical test

The scores for lower level physical incapacities have been amended and scores of 3 are no longer achieved. In the physical test there are four grades of scoring at 0, 6, 9 or 15.

Descriptors such as standing, sitting and rising from sitting have been combined into one functional area. Therefore, a person can only score once for these three functions.

Walking up and down stairs has been combined with walking so a claimant will be only be able to score one set of points. Therefore, if a person has difficulties walking on level ground and walking up two stairs s/he will only score once for these two activities. There is no other reference to the ability to use stairs.

The bending or kneeling activity has been amended to include squatting.

This is going to be more difficult for claimants with physical disabilities to pass unless they have a particularly severe condition. Pilots on the new test in England showed a quarter of claimants failing the new assessment.

Mental health test

Unlike the personal capability assessment, there is a wider range of scores for mental health and learning disability and the lower scoring descriptors have been removed. The mental disability assessment is to be replaced with the mental, cognitive and intellectual function assessment. The most glaring difference is that claimants must score 15 points instead of 10. There is one score for each functional area and similarly to the new physical test, scores are restricted to 0, 6, 9 or 15. New areas of difficulty are included in the test and numerous changes have been made to the original descriptors which now seem only really applicable to people with very serious mental health problems or learning disabilities.

The test for mental health has replaced the four main areas of activity (completion of tasks, daily living, coping with pressure and interaction with other people) with ten new areas and all of these tighten up the criteria.

The foreseeable problems arising from the new scoring system are that people can no longer accumulate a number of low scoring points and will instead have to prove their condition to be particularly severe.

Examples

In the functional area of ‘propriety of behaviour with other people’, descriptor (e): Has unpredictable outbursts of aggressive, disin-hibited or bizarre behaviour, sufficient to cause frequent disruption has a score of only six points.

In the functional area of ‘Dealing with people’, descriptor (f): The claimant misinterprets verbal or non-verbal communication to the extent of causing himself or herself significant distress on a frequent basis also only has a score of six points.

As demonstrated here, the wording of the new mental health descriptors can and will be open to interpretation by doctors, advisers, decision makers, appeal tribunals and Social Security Commissioners.

Interestingly, the difference between the descriptors and the wording of the question in the new questionnaire (ESA 50) show a certain degree of over simplification.

Examples

A. In the functional area relating to ‘propriety with other people’ the highest scoring descriptor is 20(a): Has unpredictable outbursts of aggressive, disinhibited or bizarre behaviour being either:

(i) sufficient to cause disruption to others on a daily basis; or

(ii) of such severity that although occurring less frequently than on a daily basis, no reasonable person would be expected to tolerate them.

Whereas the lowest scoring descriptor is 20(f): Frequently demonstrates a moderately disproportionate reaction to minor events or to criticism but not to such an extent that the claimant cannot manage overall day to day life when such events or criticisms occur.

In the ESA 50, the questions relating to propriety with other people are:
Do other people get upset with you because of the way you behave? (for example do they shout, lose their temper, argue or threaten you)
Often / sometimes / now and then

B. Do you get upset by little things or by the way other people behave that it affects your daily routine? (by little things we mean things like someone calling at your home when you don’t expect them, or overreacting to being pushed or jostled in a crowd)

C. Can little things lead you to behave in a violent way?
No / sometimes / yes

The current IB50 provides little by way of prompting claimants towards describing their condition in relation to mental health. The new ESA 50 is a step forward in giving people options and encouragement to detail how their lives are affected. This, however, has the potential to create confusion and lead to a risk of particularly ill claimants understating their condition.

Limited capability for work related activity

The second assessment within the work capability assessment is the limited capability for work-related activity assessment. This will determine whether the claimant is placed in a support group or the work related activity group.

The limited capability for work-related activity assessment also involves a list of descriptors relating to both physical and mental activities. These are different from the descriptors for the limited capability for work assessment. If a claimant fulfils the requirements in just one of the descriptors, s/he will be placed in the support group.

For some activities, a claimant must meet all the conditions in a descriptor whereas for other activities, s/he only needs to meet one of the conditions in the descriptor. This assessment is similar to the limited capability for work assessment and will usually take place at the same time.

Capability report

Most claimants, ie those who are not placed in a support group, will have to be assessed for the work-focused health-related assessment (WFHRA) during their limited capability for work assessment.

The WFHRA collects additional information about the things the claimant can do despite her/his condition and the difficulties s/he is likely to experience in getting or staying in work. The descriptors are very similar to the limited capability for work related activity assessment and the data will be used to form a capability report.

The work focused interview will focus on the capability report and will be used by the claimant’s personal adviser in relation to what types of work activity s/he may wish to take part in.