Is there a case for judicial review of the regulations?

I’ve been approached by a group which is looking for a route to challenge the ESA rules.  ESA is meant to be for people who cannot reasonably be expected to work - the issue of reasonableness is part of the statutory definition of the benefit. Nevertheless, the legislation has introduced a series of tests, including work-focused interviews and “action plans” related to work seeking, which make work-related demands on claimants.

There may be some discrepancy between the Welfare Reform Act 2007 and the 2008 regulations. People who have limited capacity for work are supposed to be given help in moving towards employment, for example by preparatory and supportive actions. However, the regulations focus on actions that are directly related to work, rather than on actions that will increase people’s capacity where that capacity is limited.  They are specified in terms of either getting people to obtain work,  or of keeping people in work.  Either of those options, by definition, is not reasonable for ESA claimants. 

The group is hoping for some support and legal backup.  Are the inconsistencies susceptible to judicial review?  If anyone is interested in taking the idea forward, please contact me (.(JavaScript must be enabled to view this email address)) and I will put you in contact with them.

“Any action that may make it more likely that the claimant will obtain work”?

That is to be interpreted a widely as the wording. It could just be trying to get out of the house once a week, if you haven’t done it for ages, or joining a club, or doing anything at all that is a step towards normal functioning.

Keeping people in work is really important too, if they can find another post within their cpaabilities with employer support.