WCA changes again

 

New rules taking effect from 28 January 2013 make further changes to the work capability assessment (WCA). Simon Osborne describes what has happened.

Regulations that came into force on 28 January 2013 made a number of changes to the WCA.1 The Employment and Support Allowance (Amendment) Regulations 2012, SI No.3096 They concern both limited capability for work (LCW) and the support component test – ie, of ‘limited capability for work-related activity’ (LCWRA). Official guidance on the changes has been issued.2 Memo DMG 1/13 In summary, the regulations provide for:

The changes came into force on 28 January 2013. Straightforwardly, they apply to any WCA assessment determination made on or after that date, whether the claim for employment and support allowance (ESA) was made before 28 January 2013 or not.

Exceptions apply where the claimant was issued with an ESA50 questionnaire, ‘which relates to’ the pre-28 January 2013 version of the WCA. But even those exceptions cease regarding WCA determinations made on or after 28 July. However, appeals against decisions under the pre-28 January WCA, whenever heard, should still involve consideration of abilities under that form of the assessment.

Both the LCW and LCWRA tests have been amended so that the claimant is assessed as wearing or using any aid or appliance, ‘which is normally, or could reasonably be expected to be, worn or used’, and any prosthesis with which the claimant is ‘normally fitted’ or ‘normally wears’. The key change is to add in the concept of an aid etc. which might ‘reasonably be expected’ to be used.

The LCW and LCWRA rules have been amended so as to require that in order to have certain descriptors applied, it is necessary for the incapacity to be caused by either a physical health problem (rather than a mental health problem) or a mental health problem (rather than a physical health problem). Before the change, there was no such requirement (see KP v SSWP (ESA), Bulletin 223 p16, and in particular JG v SSWP [2013] UKUT 37 (AAC) on p13 of the print edition of this Bulletin).

In LCW, the change is to require that in the physical health descriptors the incapacity must arise from ‘a specific bodily disease or disablement’ (or as a result of medical treatment for such a condition), and in the mental health descriptors the incapacity arises from ‘a specific mental illness or disablement’ (or as a direct result of medical treatment for such a condition).

In LCWRA, the change is to require that the incapacity arises from a ‘specific bodily disease or disablement’ (or as a result of medical treatment for such a condition) in respect of descriptors 1 to 8, 15(a) and (b) and 16(a) and (b) of the LCWRA test. It is required that the incapacity arises from a ‘specific mental illness or disablement’ (or from medical treatment for such a condition) in respect of descriptors 9 to 14, 15(c) and (d) and 16(c) and (d).

The changes affect the rules on when a claimant is ‘exempt’ from the full WCA because s/he is treated as having limited capability for work, or (regarding support group membership) limited capability for work-related activity. They do away with rules requiring specific types of chemotherapy, and instead refer simply to ‘treatment for cancer by way of chemotherapy or radiotherapy’.

However, the changes also introduce an additional element of the test in such cases, by requiring that, ‘the Secretary of State [ie, the DWP] is satisfied that the claimant should be’ exempt. The rules themselves say nothing more about that; but official guidance is that the decision maker ‘should take into account the debilitating effects of the treatment...’, and that the presumption is that claimants under-going such treatment will be exempt, ‘...where the cancer treatment has work limiting side effects, and those effects are likely to limit all forms of work’. The examples given in the guidance strongly suggest that decision makers will be directed by the advice from the examining health professional.3 para 9 Memo DMG 1/13

The change here is to the LCW rules. The new provision is to treat the claimant as a hospital patient, ‘only if that claimant has been advised by a health care professional to stay in hospital or similar institution for a period of 24 hours or longer’.

The change here is to the LCW rule only. It relates to the ‘substantial risk’ exceptional circumstance whereby a claimant can be treated as having LCW. The change is to provide that that does not apply where the risk could be reduced ‘by a significant amount’, by ‘reasonable adjustments’ in the claimant’s workplace or by the claimant taking prescribed medication with the aim of managing her/his condition. Guidance gives examples involving a height-adjusted workstation (regarding a claimant with back pain) and use of an adrenaline injector (regarding a claimant with risk of anaphylactic shock).4 para 14 Memo DMG 1/13

Most changes are consequential to the above changes or to caselaw. The changes have been incorporated into the online version of CPAG’s Welfare Benefits and Tax Credits Handbook; they can also be seen in Annexes to the official guidance.5 Annexes A and B Memo DMG 1/13

Changes to wording in the LCW test involve: activity 1 (mobilising); descriptor 2(b) and (c) (remaining at a workstation); descriptor 5(d) (use of a keyboard or mouse); activity 6 (making self understood); activity 7 (understanding communication); activity 8 (navigation and maintaining safety); activity 9 (bowel/bladder control); descriptor 9(b) (risk of loss of control); descriptor 15(a) (inability to get to a place outside the home).

Changes to the LCWRA test involve: activity 1 (mobilising); activity 6 (making self understood); activity 7 (understanding communication); and activity 8 (bowel/bladder control).

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