Exceptional circs and being treated as having limited capability for work

Under the good old PCA you could be treated as being incapable of work if you were due a major surgical operation within 3 months of the DWP medical assessment (Reg 27 (2) (c).

The new ESA 50 asks if you are due to be admitted to hospital in the next 3 months, but unless I am missing something there does not seem to be any way this is then taken into account? How else can my client qualify for ESA as he does not score any points on his own assessment but is waiting for an operation on his shoulder in the next couple of months. 

Exceptional circumstances
29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if—

(a) the claimant is suffering from a life threatening disease in relation to which—
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

Is he under medical instructions not to use that arm? If so, then he should be treated as not being able to use it at all. Mind you, even under IB it was always nearly impossible to score 15 points for a disability affecting one arm only.

You are right to say that the “waiting for major surgery” rule has gone in ESA. What is your client waiting for? The most common shoulder operation is endoscopy for a frozen shoulder. It would be a mater of significant debate whether this is “major surgery” anyway.

I seem to recall that a major reason for the change was the unpredictability of hospital waiting list, so that it was often not possible to say with any confidence when somebody was likely to have surgery. I don’t think it was used at all regularly. Many people, if awaiting MAJOR surgery, are so disabled by their condition that they would qualify anyway.

Thanks Ariadne - I have had several interesting debates at appeal about what is or is not a major operation.

In this case my client was working as a doorman and was assaulted. Since then his shoulder dislocates really easily and he is going to have it “stabilised”. You’re right that it probably wouldn’t count as major surgery and I think he probably came off JSA too soon and should have stayed on it until he actually had the operation.

The whole thing got me wondering why the ESA 50 even bothers to ask this question if it makes no difference to the DM ...