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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Illiteracy and the Work Capability Assessment

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Ruth Knox
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I’m a bit uncertain as to how illiteracy fits into the WCA.  I have a client who is completely illiterate, but it might not be correct to say he has a learning disability. As I see it, he will not meet any criteria for Activity 6 (Making yourself understood) because he can convey a message through speech, and in any case refers back to physical causes,  or for Activity 7, which refers to sensory impairments,  He does have difficulty travelling to unfamiliar places because of inability to read bus destinations, road signs etc, but I note the guidance is that taking a taxi - which he can do - means he can carry out this activity.

In practice he cannot learn to do tasks - for instance, the examples they give of mobile phone or washing machine are both impossible for him ( can’t read which setting is suitable for which item of clothing, can’t read numbers or instructions such as Unlock).

Or do we go straight to Regulation 29 and 35, as I can’t envisage any work or work-related activity which he could realistically do?

help and any case law welcome.

stevenmcavoy
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if there issues dont arise from an illness or disability then i dont think they can be counted at all under the wca can they?

ClairemHodgson
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my recollection is that this has been discussed before.  he can’t qualify for ESA at all just for illiteracy.

benefitsadviser
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Can any points at all be scored for this, if result of illness or disability?

I know the 16 point print guidance applies to visual impairment rather than learning disability, so i was wondering how illiteracy tied in with communication descriptor point-wise?

ClairemHodgson
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benefitsadviser - 21 March 2018 11:49 AM

Can any points at all be scored for this, if result of illness or disability?

I know the 16 point print guidance applies to visual impairment rather than learning disability, so i was wondering how illiteracy tied in with communication descriptor point-wise?

if he’s illiterate because of a learning disability, i think that would be different and no doubt there’d be other stuff to score points on.

but just being illiterate because you didn’t learn to read is another matter…..and gets you no points.

past caring
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I’m not sure that illiteracy in consequence of a learning disability allows the scoring of points for activities 6 or 7 in any event. Reg. 19 ESA Regs was amended with effect from January 2013 so that points for the physical activities in Part 1 of the Schedule could be scored only in consequence of a ‘bodily’ disease or disablement and in Part 2 only in consequence of mental illness or disablement. And both activities require the functional difficulty to be as a result of sensory impairment. Whilst there might have been room for argument about whether a ‘bodily’ disablement might encompass the functioning of the brain, the UT has decided that ‘mental disablement’ encompasses both mental illness and learning disabilities and cognitive impairments - logically, then, at least for the ESA activities, ‘bodily’ disease or disablement does not include the functioning of the brain.

As for the other question in the original post, there are more ways of learning something than reading instructions - you can be shown by another person, watch an instructional video on youtube etc. An inability to read does not equate to an inability to learn.

ClairemHodgson
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searching the social security etc. database shows only two cases brought up on a search using “illiterate” or “illiteracy” as search terms.

CIS 3846 4001 was a recovery overpayment cases - the form hadn’t been filled in correctly due to oversight, claimant was illiterate, was there an overpayment and was it recoverable? (yes and yes)

CDLA 3607 2001 was a DLA case - did he have communication needs because of his illiteracy?  FTT hadn’t looked at whether he was learning disabled, or just hadn’t learnt to read, and the UT sent it back to FTT for fact finding on that.  But if it wasn’t learning disability then he wouldn’t qualify for DLA, since it would just be a case of he hadn’t learnt to read as opposed to having been unable to learn to read.

Daphne
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CPIP/1769/2016 also found that illiteracy which does not result from a physical or mental condition not to be taken into account under PIP Activity 8

Helen Rogers
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On the issue of - can a learning disability be a physical health issue?
It was accepted for HR mob DLA that it was and claimants could meet the criteria under the severe mental impairment rules.  Eg genetic differences in Down’s syndrome or “arrested development” of the brain in learning disability.  (DLA regs used different language to that we would consider appropriate today.)
Don’t know if this helps at all?

Ruth Knox
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Thanks for all the answers - I think it is an interesting area and no totally clear guidance at present..  I think that the physical descriptors are ruled out - certainly that seems to be the intention that there has to be an actual sensory disability for them to be met.  But looking at the mental health and learning disability ones, it’s not quite so clear.  I suppose what I would say that if someone has gone through 11 years of UK education and is still so basically illiterate, not just a very poor reader,  there must be a learning disability either specific like dyslexia or more general.  It’s not a case of someone who reached adulthood without having an opportunity to attend school or who attended irregularly.

It is true you can learn in other ways, but in most instances reading comes in at some point - for instance you can learn through youtube but you need to have a level of literacy to navigate to youtube in the first place. In my particular client’s case, he wasn’t able to use his washing machine despite being shown by his support workers on a few occasions - you would think he could have put a mark on where he should turn the dial etc, but it seems as if he just couldn’t.

I suppose in practice we would be looking at regulations 29 and 35 - there are a very limited number of tasks there which don’t involve reading or computer use at some point.

Ruth

John Birks
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It could fall under the term of intellectual disability

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Jeremy Barker
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If a person has a formally diagnosed learning difficulty it helps a lot but many adults have undiagnosed learning difficulties - for example, I was not found to be dyslexic until my mid-30s!

If a person attended a special school that’s a very strong indicator they have a learning difficulty. However, that is more useful for older people because these days the policy is to keep children in mainstream schools as far as possible. There may also be a record of them having been in a “remedial” class at school. The key is that they cannot read because of a problem with “Mental, cognitive and intellectual function” rather than just being disinclined to learn or absenteeism from school – although there might be an argument that prolonged absenteeism from school due to physical health difficulties should allow them to be considered to have a problem with “intellectual function” .

Jon (CANY)
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Like with the functional descriptors, reg 29 or 35 does rely on establishing the cause as being “some specific disease or bodily or mental disablement”, so you would need to make that link somehow.

Also, the test isn’t just showing that someone is unable to do the activity, it is showing a significant risk to health which arises if they were required to try. For info on what steps JCP might expect, in the ADM:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/618982/admr4.pdf

R4090 If claimants are illiterate they cannot reasonably be expected to write to employers or read advertisements. But they could
1.  arrange for someone else to help them search for work, for example by passing on information about suitable job advertisements and
2.  take other action that they can reasonably be expected to take, for example visiting or telephoning employers’ premises or sites.

For reg 35, DWP might even say that the hypothetical tailored WRA in this case could be to attempt some literacy education?

ClairemHodgson
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Ruth Knox - 23 March 2018 01:08 PM

In my particular client’s case, he wasn’t able to use his washing machine despite being shown by his support workers on a few occasions - you would think he could have put a mark on where he should turn the dial etc, but it seems as if he just couldn’t.

crikey.  i wonder if he should be referred to neurology etc?  you won’t get to the bottom of the reason for his illiteracy (and presumably, also, innumeracy and other obvious signs of impairment) without proper medical evidence.  i’m thinking maybe subtle brain injury as a child - depending on his age, possibly before MRI’s - and no one really bothered to work it out….. particularly if his speech/sight/the like is fine.  but not being able to follow instructions raises lots of questions….

WRT Case Worker
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past caring - 21 March 2018 03:40 PM

As for the other question in the original post, there are more ways of learning something than reading instructions - you can be shown by another person, watch an instructional video on youtube etc. An inability to read does not equate to an inability to learn.

This would then bring in the question of ‘Unaided’.

SamW
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I think that for Reg 29/35 to work you’d need to be able to point to another health condition that could potentially worsen if he had to take part in work/work related activity. As the potential LD isn’t something that can deteriorate.

Assuming there aren’t other health problems that score points by the sounds of it you’d be looking at 9 points for learning new tasks (making sure that the descriptor is dealt with properly - the way it is drafted is unclear and makes it look like being unable to learn a moderately complex task, e.g. setting the washing machine, improving literacy in adulthood, only scores 6 points which is not the case).

I’d also disagree with the guidance re. taxi journeys. Surely in that situation the taxi driver counts as another person? It is different to public transport as they are travelling from A - B on your direct request rather than driving along a predetermined route like a bus. See CE/3255/2015 which goes to that particular point and is favorable to your client I think.

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/taxi-driver-may-be-accompanying-claimant-for-the-purposes-of-activity-15

So based on your client’s claimed functional impairments I think you have got 15 points.

It then comes down to medical evidence. As above there is a big problem with adults, especially older adults, with LDs that were not diagnosed when they were in education and then not followed up in adulthood. I’ve found that if you can explain clients current difficulties, dig around to see if there is any ‘circumstantial’ evidence about their education in childhood, explain any unsuccessful efforts they have made to improve their literacy in adulthood, a supporting letter from the support worker etc etc - tribunals will often be willing to ‘infer’ the existence of a learning disability. Although some tribunals will be concerned that they are drifting into carrying out a fresh assessment/making a diagnosis which is technically out of their remit and so what you might want to get you over the line is a letter from the GP confirming that client’s presentation is consistent with them potentially having some form of undiagnosed LD. My understanding is that adults only get referred on for assessments in the more severe cases and so the lack of an ‘official’ diagnosis shouldn’t be the end of it.