ESA and ‘significant worsening’

Issue 246 (June 2015)

Recent rule changes make it more difficult for claimants to get employment and support allowance (ESA) in payment straight away if they reclaim following failing the work capability assessment (WCA). One way to do so is on the basis that their health condition has ‘significantly worsened’. But what does that mean, and how will the DWP approach the matter? Simon Osborne explains.

Introduction

Claimants who fail the WCA and then reclaim, can only get ESA paid immediately, pending a new WCA, in limited circumstances. Following rule changes introduced from 30 March, claimants who have actually failed the WCA (ie, they have not scored sufficient points) can no longer rely on the ‘six-month’ rule, with the result that the mere fact that it is more than six months since the failure is no longer sufficient (see ‘ESA and the abolition of the “six-month rule’’’, Bulletin 245).1

For the period pending a new WCA, regulation 30(4)(a) and (b) of the Employment and Support Allowance Regulations 2008 SI No.7942 provides that a claimant be treated as having limited capability for work (and in effect, that ESA can be paid at the assessment phase rate immediately) on a reclaim where:

‘(a) the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;

(b) a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened…’.

In essence, these provisions require that the claimant either has a new health condition or her/his existing health condition has ‘significantly worsened’. Whether a claimant has a new health condition may not be straightforward in every case, but is usually likely to be a matter of fact, especially where there is relevant medical evidence of the new condition. But whether an existing condition has ‘significantly worsened’ is obviously a matter of judgement on the facts and, despite the ordinary words used, has been given a particular meaning in previous caselaw and recent official guidance.

Significant worsening – previous caselaw

The concept and wording of significant worsening appeared in regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995, a predecessor of regulation 30, which applied to the assessment of incapacity benefit (IB). That regulation served an identical purpose as regulation 30, except with reference to ‘incapacity for work’ instead of ‘limited capability for work’.

Specifically, regulation 28(2)(b)(ii) provided that a claimant was to be treated as having incapacity for work (ie, and so entitled to IB immediately on a reclaim) if her/his health condition had ‘significantly worsened’ since a determination that s/he did not have incapacity for work. The context for that particular provision was the ‘all work test’ for incapacity for work, and included that elsewhere in regulation 28 there was a six-month rule – ie, so that benefit could be paid immediately on a reclaim if it was more than six months since that determination.

What it meant for the condition to have ‘significantly worsened’ was commented on by Commissioner (as he then was) Jacobs in CIB/1959/1997 and CIB/2198/1997. At paragraph 30, he said:

Also, the evidence did not show that the claimant’s disablement had “significantly worsened”. Those words are not defined. If the condition applies, its effect is to treat the claimant as satisfying the all work test. The words must be related to that test. In other words, a claimant’s disablement has significantly worsened only if it is proved to have worsened to the extent that it is fair to assume that the claimant would satisfy the all work test if subjected to it….

Given the closeness of the regulation 28(2)(b)(ii) to the current regulation 30(4)(b), it is difficult to do anything other than conclude that the same must apply there, so that for ESA and limited capability for work, the requirement there is for the worsening to be such that it is ‘fair to assume’ that the claimant would now satisfy the WCA. Indeed, that is the approach taken by the commentators to regulation 30 in the authoritative Social Security Legislation, volume I, published by Sweet and Maxwell.

Significant worsening – official guidance

The particular meaning given to the wording ‘significantly worsened’ in CIB/1959/1997 and CIB/2198/1997 has been adopted in essence by the DWP in guidance for decision makers, issued following the abolition of the six-month rule, although the guidance uses slightly different phrasing and Commissioner Jacobs’ decision is not cited as authority.3

The guidance tells decision makers that ‘if the claimant states that they have a new or significantly worse condition since the previous determination was made, they should be asked if they have further information or evidence of this. In the case of deterioration, the claimant should be asked how it affects their ability to perform the functional descriptors since the previous determination…’, although decision makers are reminded that corroboration of a claimant’s own evidence is not required unless it is improbable or contradictory. The guidance also says that where the claimant states that her/his health condition has deteriorated since her/his last assessment, the decision maker should ‘consider whether this change would be likely to be sufficient to score 15 points or more.’4

Examples that follow in the guidance include an instance where a decision maker ‘determines’ that the claimant’s reported deterioration of reduced walking ability following surgical intervention ‘might’ result in him scoring at least 15 points and so treats him as having limited capability for work pending a new WCA – ie, so as to permit immediate payment of some ESA. In another, a claimant reports a worsening of ability in her right hand, but the decision maker ‘determines’ that she would be ‘unlikely’ to score further points, and so does not treat her as having limited capability for work pending another assessment. In that example, the decision maker considers that there is already sufficient evidence that the claimant fails the WCA again without further evidence.5

 

Comment

‘Significant worsening’ must be such that the claimant at least might now satisfy the WCA. That particular, and somewhat restricted interpretation results from previous caselaw about identical wording and recent official guidance.

That guidance is a little imprecise, in that it suggests that the requirement is that it ‘would be likely’ that the WCA is satisfied, whereas the examples suggest that it is enough if the claimant ‘might’ pass the WCA.

Commissioner Jacobs’ remark that it must be ‘fair to assume’ the test would be satisfied suggests the slightly more demanding approach is correct, although it is by no means clear he was attempting a distinction. At any rate, the approach will clearly be that at the very least the worsening must give the claimant at least a reasonable chance of passing the WCA. Could the words be given a less restrictive meaning? Probably not. In favour of a wider meaning, it could be pointed out that the legislation itself merely uses ordinary English words without explicit relationship to passing the WCA, that Commissioner Jacobs was not commenting on regulation 30, and that his decision was in the context of provisions that still provided a six-month rule for claimants who did not have a new condition or a sufficiently significant worsening. However, given the official guidance, there is no prospect that decision makers will be susceptible to such arguments. And it is not easy to argue with the essence of Commissioner Jacobs’ finding that the words must be related to the test in which they apply. Further, there seems to be little or no prospect that a refusal to find a ‘significant deterioration’ can be challenged formally (except perhaps in an extreme case by judicial review). Such a refusal does not seem to be a ‘decision’ which would ultimately carry a right of appeal, but rather merely a ‘determination’ made pending a final assessment and decision.

Practically, therefore, claimants wanting to rely on the ‘significant worsening’ rule to get immediate payment on a reclaim are best advised to try to indicate how the deterioration in their condition means that they might now pass the WCA. Indicating likely activities and points, and supplying corroborative evidence (eg, medical evidence) would clearly be helpful.

However, it would be wrong to suggest that identification of points or further evidence is actually required in any formal sense. Decision makers should attend to what the claimant is reporting and assess for themselves whether the requirement is satisfied. Challenging a refusal to find significant worsening is very likely to be a matter of lobbying and persuasion, with reference to the above considerations.

 


Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. Reg 30(2) and (4) ESA Regs 2008 as amended by SI 2015 No.437. Note that where the claimant has not actually failed the WCA but has been treated as failing it for failure to return the questionnaire or attend the medical, a six-month provision still exists under reg 30(2)(b)(ii). A subsequent return of the questionnaire remains as another route to requalifying (reg 30(4)(c)).
  • 2. For ‘new-style’ contributory ESA under the universal credit system, there is an identical provision at reg 26(4) ESA Regs 2013.
  • 3. Memo DMG 10/15 (and for contributory ESA under the universal credit system, ADM 11/15)
  • 4. Memo DMG 10/15, paras 24–28 5 Memo DMG 10/15, Examples 2 and 3 following paragraph 28
  • 5. Memo DMG 10/15, Examples 2 and 3 following paragraph 28