Changes to the medical test for employment and support allowance (ESA)– the work capability assessment (WCA) – which come into force today are set to cause massive confusion for claimants and lead to even more wrong decisions being made. Many claimants will be left not even knowing which version of the new test applies to them.
{EMBOT SUBSCRIPTION=5,6}The problems arise because some of the changes are being introduced immediately, whilst others will only apply to people who are sent a new version of the ESA50 questionnaire to complete – or to people who fill in the old form but are left waiting a long time for the decision in their case.{jcomments on}
What the immediate changes involve
Some changes affect all claims decided on or after 28th January 2013. These relate to:
the rules about claimants receiving chemotherapy or radiotherapy treatment for cancer – it will now be easier for these claimants to get into the support group;
the substantial risk rules – any reasonable adjustments that could be made by employers to reduce the risk and the potentially helpful effects of any prescribed medication the claimant fails to take can now be considered;
the rules relating to aids and appliances – aids and appliances that the claimant could reasonably be expected to use will be taken into account, not just ones that the claimant normally uses;
there is now a stipulation that only a claimant with a physical condition can satisfy the physical descriptors and only a claimant with a mental health condition can satisfy the mental descriptors. Any side-effects of medication for physical health can also only be taken into account for physical health problems and vice versa.
What the additional changes involve
There are then additional changes which affect claimants who get the new ESA50 questionnaire and also apply to all decisions made on or after July 28th 2013 onwards, regardless of which form was completed. These involve alterations to the wording of the following physical activities:
mobilising – stating that aids that could reasonably or are normally used will be taken into account;
standing and sitting – stating that either standing or sitting or a combination of the two will be taken into account when deciding how long you can remain at a work-station;
manual dexterity – stating that the ability to use a mouse or keyboard single-handedly is what is being considered in 5(d);
making self understood – stating that means of communication include those normally used and those that could reasonably be used;
understanding communication – stating that points can be scored if you have difficulties with understanding either verbal or non-verbal communication – i.e. a hearing impairment alone or a visual impairment alone can be sufficient - or a combination of the two and includes any aids which are normally or could reasonably be used;
navigation – stating that using a guide dog or other aid if either or both are normally, or could reasonably, be used is what is being taken into account;
continence – stating that it is any aids that are normally or could reasonably be used that is taken into account and for 9(b) stating that the risk of loss of control must be for the majority of the time.
There is also a change to the wording of the ‘Getting about’ activity for mental health, making it clear that for 15(a) the specified place must be outside the claimant’s home.
These changes are also mirrored in the support group activities.
Which rules apply
Where the initial decision about your claim was made before 28 January 2013, then you will know for certain that the old rules apply. This will be the case even if you go on to have a revision or an appeal which takes place at a much later date.
Where you are sent a new ESA50 questionnaire you will know for certain that the new rules apply in full.
The problems arise for claimants who filled in an old questionnaire but where a decision is not made on their claim until on or after 28 January 2013.
To start with, the rules that they though applied when they filled in the form have been changed in relation to things like reasonable adjustments. In effect, there has been a retrospective change in the qualifying criteria.
Worse still though, it appears from a memo issued to decision makers that the DWP intend to continue issuing old style ESA50s to some claimants after 28th January, possibly until stocks of the old form are used up. These claimants will not be subject to the changed wording of the descriptors, unless the decision on their claim is made on or after 28 July 2013. So, if the DWP are slow to decide their claim they will be subject to the full range of changed regulations and descriptors whilst having completed the old questionnaire.
The possibilities for confusion for claimants, advisors and DWP decision makers about which rules apply are huge and are likely to lead to wrong decisions and many additional appeal hearings.
The new ESA50 can be downloaded a link at the bottom of this page. There a number of differences from the old ESA50, including the last page - page 20 - being headed: Cancer treatment – for completion by a healthcare professional
