ESA and WCA – recent and forthcoming changes

 

Simon Osborne reviews changes regarding employment and support allowance (ESA) and the work capability assessment (WCA).

From 3 April 2017, amendments remove the 52-week limit in the higher limit of permitted work – ie, work for less than 16 hours a week which does not exceed the national minimum wage for a 16-hour week.1 Employment and Support Allowance (Exempt Work and Hardship Amounts) (Amendment) Regulations 2017, No.205 Official guidance makes it clear that these changes apply both to new claimants and existing ones – ie, so that claimants who had started permitted work subject to the 52-week limit, or who had completed the period, are now no longer subject to it.2 Memo DMG 7/17

The DWP now refers only to this work as ‘permitted work’ (it is not clear how it refers to work of any duration for earnings of under £20 a week, hitherto referred to as the ‘permitted work lower limit’). A permitted work questionnaire, PW1ESA 4/17, has been introduced in which the DWP instructs claimants who do ‘any work’ to complete and return.

The regulations also provide that where a claimant has been sanctioned, the amount of any hardship payment of income-related ESA is 80 per cent of the main phase personal allowance where s/he is not entitled to the work-related activity component and s/he or a family member is pregnant or seriously ill, and 60 per cent in all other cases.

Unlike in ESA, there is no general rule in universal credit (UC) regarding work and limited capability for work, and no permitted work rule. So this change is specific to ESA. (However, in UC there is a rule about earnings at or above a threshold – currently £520 a month – resulting in being treated as not having limited capability for work.3 Reg 41 Universal Credit Regulations 2013, No.376)

The pre-election government is launching a ‘Personal Support Package’ which includes ‘£330 million of additional employment support over four years’ and 300 new disability employ- ment advisers, with ‘personalised support’ to claimants in the work-related activity group.4 ‘Welfare reforms and £330 million employment package start from April 2017’, DWP press release, 31 March 2017, available at www.gov.uk

The package also includes a number of associated changes.

One of these is the ending of the Work Programme, to which final referrals were made on 31 March 2017. A new scheme, the Work and Health Programme, replaces both that and the Work Choice scheme. (In Scotland under devolved powers, the replacements for the Work Programme and Work Choice will be, respectively, the Work Able Scotland Scheme and the Work First Scotland scheme.)5 Details about the Personal Support Package and the introduction of the Work and Health Programme are in DWP’s Touchbase, 119, March 2017, available at www.gov.uk.It would seem that for ESA claimants the new schemes are voluntary. However, this should not be taken as any diminution in conditionality which, if any- thing, is increasing – see below. Presumably, conditionality will still be applied via mandatory participation in activity outside the new schemes.

The DWP is rolling out a ‘Health and Work Conversation’ with a Jobcentre Plus work coach to ‘help raise confidence in managing a health condition, when appropriate’. This is timed for about four weeks into the claim – ie, before the completion of the WCA. Despite the friendly language, this ‘conversation’ is in fact a compulsory work-focused interview, with failure to take part without good cause resulting in a sanction. It thus represents an increase in conditionality. The ‘conversation’ is carried out under existing work-focused interview rules.6 Reg 54 Employment and Support Allowance Regulations 2008, No.794

A further increase in conditionality is in the introduction, from the summer of 2017, of a new ESA claimant commitment, ‘setting out the support the jobcentre will provide and what is expected of claimants’. The law already provides for ‘acceptance’ of a claimant commitment as a basic condition of ESA entitlement.7 s1(3)(aa) Welfare Reform Act 2007 Thus far, however, this power has only been introduced for claimants who come under the UC system – ie, regarding ESA only for those who are claiming ‘new-style’ contributory ESA.8 Art 7 Welfare Reform Act 2012 (Commencement No.9 and Transitional and Transitory Provisions and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013, No.983 (the ‘No.9 Commencement Order’ for universal credit and associated provisions)

The ending of the Work Programme and its replacement with new schemes and the introduction of a ‘Health and Work Conversation’ is expected to apply to UC claims on the basis of limited capability for work in much the same way as it applies to ESA claims. UC, of course, already has a claimant commitment as a basic condition of entitlement in all cases.

Change seems likely regarding what flows from support group membership, in particular regarding ‘discussions’ about ‘employment or health support’. Regarding repeat assessments, some easement regarding the most severely ill is (supposedly) being applied in practice.

An October 2016 green paper included a consultation on work capability assessment reform (with a view to ending binary ‘can work/can’t work’ groups).9 https://www.gov.uk/government/consultations/work-health-and-disability-i...The green paper registered official concern at the proportion of people being placed in the support group (a recent average of 50 per cent). It also indicated a desire for a more ‘personalised’ assessment, with a question about a change to make the assessment for benefit entitlement separate from ‘the discussion a claimant has about employment or health support’. A white paper (ie, setting out specific change) is expected shortly.

Also in October 2016, Secretary of State Damian Green announced that the DWP was to ‘stop reassessing people with the most severe conditions and disabilities’. On 10 October he expanded on that, as follows:

The WCA applies in much the same way in UC as in ESA. So these changes should apply to the WCA in UC claims as they apply in ESA claims (as indicated by the Secretary of State in his October 2016 statement, above).

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