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Some initial thoughts on the revised ESA regulations
From 28th January 2013 the Employment and Support Allowance regulations will change yet again.
All the physical activities (numbers 1 to 10) are now amended so that they are assessed ‘on the basis that the claimant is wearing any prosthesis with which they are fitted, or that claimants are wearing or using any aid or appliance which they can normally, or could reasonably be expected to, wear or use.’ I guess that this will lead to a lot of suggestions for equipment, etc. from tribunals, rather like those for Disability Living Allowance appeals at present. Does everyone now get an Occupational Therapy assessment in order to determine what they might reasonably use to assist them?
The physical activities (numbers 1 to 10) must now be satisfied on the basis of a specific ‘bodily disease or disablement’ and the mental, cognitive and intellectual activities (numbers 11 to 17) must now be satisfied on the basis of a specific ‘mental disease or disablement’. This must surely be to get around the helpful conclusions of Judge Ward in CE/2323/2010 where consideration of a claimant’s experience of their ‘functional difficulties’ was considered more important than the origins of the disease. Mental health symptoms will require a mental health diagnosis.
For both of the above points there are similar changes for the support group too.
Activity 2 now includes an ‘adjustable chair’ and formally clarifies that the test is now a combination of sitting and standing (following CE/1516/2012).
Activity 7 has now been changed so that communication by verbal means alone and non-verbal means alone or a ‘combination’ of the two is considered. Only last November it was clarified and conceded by the DWP that claimant’s could score points on the basis of their primary sensory impairment, i.e. if a deaf person could not hear a message then they scored points. The following guidance was given in DMG Memo 03/12: ‘Thus overall, you must make an assessment of a person’s ability in both sensory modalities. Where a restriction is identified in one area, it is likely they will be awarded a scoring descriptor.’ Does the change in the regulation now reverse this and once again leave many claimants with sensory impairments with no means of scoring points due to their disability?
The exceptional circumstances provision in Regulation 29 has also been changed. Trying to show that a claimant would be at ‘substantial risk’ in a workplace now also will involve considering whether any ‘reasonable adjustments’ in the workplace or prescribed medication would significantly reduce such a risk.
The one piece of good news is that it now seems that claimants who are having any form of chemotherapy or radiotherapy will now be placed in one or other group without having to score points in the work capability assessment.
If you’ve got any alternative interpretations of these changes then please post them as we’re going to need to warn people about them.
It’s time to change the leaflets again.
here’s a link to rightsnet news story on the regs, which, as you say, contain significant changes -
http://www.rightsnet.org.uk/news/story/amendments-to-employment-and-support-allowance-legislation/
It is Reg 6 of SI 3096 that deals with the ever helpful exceptional circumstances route.
It says Reg 29 does not apply ‘where the risk could be reduced by a significant amount by…reasonable adjustments being made in the claimants workplace” Q What happens if the employer (assuming the claimant is long term sick from a still existent job) is not willing to adjust? Is employer willingness relevant? How are DMs going to be able to decide all this without detailed contact with the employer?
In cases where there is no existent employer, how are DMs going to be able to decide this without a considerable amount of contact with a relevant kind of employer (following Charlton in terms of relevant kind of employer)?
It also says Reg 29 does not apply where the risk could be reduced by ‘the claimant taking medication to manage the claimants condition…’ What if the medication would help but the claimant refuses to take it? What if the refusal is linked to the underlying medical condition? There is no reference to claimant inclination in the new reg, nor the caveat of overall reasonableness - can we assume reasonableness?
Thoughts?
Steve
Absolutely Steve. I anticipate all manner of hypothetical, unevidenced and risible suggestions about what reasonable adjustments might be made by non-existent employers. Easy for advisers to challenge, but yet another obstacle being put in the way of the vast bulk of claimants who try and cope with this unaided.
And of course it’s got nothing to do with the fact that so many ESA appeals succeed on reg 29 grounds?
Now I may have missed something, but where was the consultation about these amendments? if not, doesn’t that raise issues about the vires of the amendments as per Howker?
In the introduction to the regulations, it says:
In accordance with section 173(1)(b) of the Social Security Administration Act 1992(2), the Secretary of State has obtained the agreement of the Social Security Advisory Committee that proposals in respect of these Regulations should not be referred to them.
There will therefore have been no consultation. Unless you can argue that SSAC has been misled, you won’t succeed on Howker. I doubt the Committee would ever allow itself to be Howkered again.
FOI requests submitted to find out more.
How long will it be before the SoS’s fervour falls foul of Wednesdbury irrationality I wonder?
For all the excuses the progression of the WCA since the new administration took power has clearly been an ill considered reaction to the “Rogue Judiciary” ensuring that justice is done.
No doubt under the 30 year rule we’ll see notes of punched doors and foam mouthed paddies when yet another favourable decision was handed down; I suspect getting any evidence before then will be difficult even where it’s as plain as the upwardly pointing nose on their faces.
How long will it be before the SoS’s fervour falls foul of Wednesdbury irrationality I wonder?
Indeed, and also is there a point where the test is ultra vires the powers in the WRA, because it no longer realistically tests whether it is reasonable to require the person to work?
They might as well just admit that the test will be tougher or easier depending on the state of the economy at any given time.
They might as well just admit that the test will be tougher or easier depending on the state of the economy at any given time.
I don’t think it’s even economic; it’s just the current administration refusing to let the UT refine the test; wherever the UT gives a favourable definition they’ll legislate around it; whether that’s rational (two handed typing for instance, not everyone in the jobcentre can usefully type single handed) or otherwise.
And I wonder how we now deal with, for example, ME “brain fog” ? Do we again have to face arguments about whether ME is a physical or a mental health problem…arguably one would think both because afecting both physical descriptor (eg mobilising descriptors)and mental descriptor (brain fog) functions but what will the DWP and then the tribunals decide?
or significant cognitive etc side effects of medication prescribed for a physical condition - pain killers - anti epileptic etc
Totally agree with the comments on ‘reasonable adjustments’. Given the battles that most people have in securing these from even the most reasonable employers I think we can look forward to a huge and wide ranging number of bizarre suggestions that we will be able to take apart with forensic precision :) There are counter arguments around the length of time some RAs will take to put into place, which is often many months, and the fact that it will, in practise, be impossible to assert anything sensible about possible RAs as what is reasonable in what situation is not in another. At its most logical, those most expensive RAs may simply not be available to small employers.
Perhaps JC+ will be working on Access To Work with this! The latter can be very good but the individualised nature of adjustments means they often go along with what you as the employee say you need rather than making suggestions of their own. Quite right too.
It’s also worth looking at the regs. and the DMG. Whilst this is being presented as people don’t get the new assessment applied unless they get a new ESA 50 the fact is that the DMG says this is what “should” happen not what “must”. As their starting point, about to be further reinforced by PIP claim packs I suspect, is that there is no legal requirement for the ESA 50 to exactly match the descriptors. Where this leaves is us that it’s entirely forseeable that the new regs are applied using an old ESA 50 (would be wasteful to not use up the old stock he says staring at the Benefits Agency letterhead he received in the past year presumably for exactly that reason) and that a tribunal upholds that there is nothing unreasonable or intrinsically wrong about that at all.
Again, in some cases it might be possible that the claimant was put at a detriment because of the nature of their condition but it’s not much as a leap to see that some people will put great faith in a technical argument that may bear no fruit at all.
Thoughts?
The regs refer to ‘reasonable adjustments being made in the claimant’s workplace’;
In my view it should be straightforward - if not currently under a contract of employment, the claimant does not have a workplace, hence no reasonable adjustment can be made to it.
I think the provision could only be applied when a claimant is still under a contract of employment at point of determination, in which case what is reasonable should be case specific to that claimant and that employer/workplace.
The following link leads to a very interesting and insightful article on the implications of the recent changes to the ESA regulations:
Reg 2(4) of the amending SI does indeed allow the new assessment to be used based on old ESA50’s, but only where the determination of LCW occurs on or after 28/7/13.
Totally agree Tony but what I’m talking about is that, in practice, this will not happen and the regs. won’t rescue people because you can’t undo what has already been put into an ESA 50.
So, claimant completes the old ESA 50. DWP make decison based on new regs. Claimant appeals. Tribunal look at it on appeal and decide that they have… what choices?
1) Send back for the new ESA 50 to be done.
2) Proceed using the old ESA 50 and evidence from the appellant/rep on the day that fixes the gaps.
With backlog of 3 to 6 months on ESA appeals; UC and PIP coming; much chaos around the separation of CTS appeals and the relationship with HB appeals, which one would you choose?
If you went with 1) above, what does the next tribunal do? Can’t ignore the original ESA 50. Can maybe give less weight for it but that could be tempered by a number of things.
If you go with 2) and the appellant then loses and takes it to the UT… and then what?
I think the reality here is that decisions will be made using the new regs and the old ESA 50 and, in practise, we may be stuck with that regardless of the regs.