As from October 2008, Employment and Support Allowance (ESA) replaced Incapacity Benefit (IB) for all new claimants and the regulations for ESA were furtheramended in March 2011.
The shift was more than an exercise in semantics. It was designed to reflect a shift in emphasis from a disease-based culture to a disability culture in that the emphasis changed to an individual’s ability to function rather than the medical condition from which that individual suffered.
As such it paralleled the move from a ‘sick note’ (Med 3) to a ‘fit note’ (still, confusingly, titled Med 3 but in a totally different format). The ESA also introduced a more pro-active element into the management of an individual’s condition by the Department of Work and Pensions (DWP).
So what is the process under ESA?
Initially the GP’s role is the same. If a patient sees a doctor and is deemed by his/her doctor to have a condition making him/her incapable of work, then he or she is given a normal sick note (Med3).
If that individual is in employment then the medical certificate allows him/her up to 26 weeks of Statutory Sick Pay paid through his/her employer who is subsequently reimbursed by the DWP.
If that individual is not in employment (i.e. on Job Seekers Allowance (JSA) or self-employed) then they are immediately provided with ESA at the the same basic rate as for Job Seekers Allowance.
However the provision of ESA carries certain obligations for both the individual and the DWP.
The former has to fill in an extensive questionnaire (an ESA 50) and return it to the DWP.
The latter has, in turn, to invite the claimant to a medical examination within 13 weeks of the initial notification of illness. The DWP has contracted such examination to a private company, ATOS and the examination is carried out by a health care professional (i.e. a doctor, nurse or physiotherapist who has been trained as a disability analyst).
The examination takes place at an ATOS medical centre and is designed to be an objective functional assessment of work capability using a computer programme called LIMA (Logic Integrated Medical Assessment), which generates a medical report, an ESA 85.
The functional criteria are grouped into two groups: physical and mental health and each group contains a number of clearly defined functional activities and descriptors which are allocated a certain number of points, six, nine, 12 or 15, depending on severity.
An example of such a descriptor is:
(a) Cannot either:
- Press a button, such as a telephone keypad; or
- Turn the pages of a book with either hand – 15points
(b) Cannot pick up a £1 coin or equivalent with either hand – 15 points
(c) Cannot use a pen or pencil to make a meaningful mark – 9 points
(d) Cannot use a suitable keyboard or mouse – 9 points
(e) None of the above apply – 0 points
A claimant needs to achieve a minimum of 15 points in order to continue receiving ESA.
Once the 15-point threshold has been reached a decision is then made as to whether they are deemed to either have limited capability for work (LCW) or if they are more seriously disabled, limited capability for work related activity (LCWRA). This decision is not made by the HCP who conducts the examination, but by a decision-maker from the DWP who scrutinises the report, the claim pack and any other evidence and informs the claimant of the DWP’s decision.
If the claimant fails to achieve the threshold 15 points then their claim is rejected and they have to return to JSA. However they are given the opportunity to appeal and whilst waiting for their appeal to be heard they continue to receive ESA at the basic rate.
Appeals against these decisions are heard by a Social Security and Child Support Appeal Tribunal (‘first-tier tribunal’) consisting of a legal judge and a medical member, both of whom are judicial office holders and appointed by the Lord Chancellor to hear these appeals.
The hearings should ideally take place within six months of an appeal being lodged although because of the current volume of work this rarely happens in practice. Although the appeal takes place in one of the venues owned or rented by the Courts and Tribunals Service (usually a room within a magistrates or family court), they have none of the usual trappings of the legal system and are deliberately designed to be as non-threatening to the claimant as possible.
The appeal tribunal is part of the judicial system and as such is completely independent of the DWP. Individual appeals last approximately 40 minutes on average and involve no physical examination of the appellant, instead relying on detailed questioning as well as the information provided in the ESA 50, ESA 85 and any subsequent written submissions.
The appellant can be accompanied by any additional support they wish, for example family members, charity support groups or Citizens Advice Bureau. After all the evidence has been considered, the tribunal makes a judgement on whether to uphold or reject the original decision.
If it upholds the original decision then the appellant is referred back to the Job Centre and is put on JSA. If it upholds the appeal then the appellant is deemed to have either a limited capability for work (LCW) or, in more severe cases, a limited capability for work related activity (LCWRA) and is granted ESA at a higher rate.
The differences in LCW and LCWRA are as follows: both carry a benefit of around £94-99 per week (as of October 2011) and are assessed on National Insurance contributions and/or low income.
If the claimant is found to have limited capability for work (LCW) they are put into a category called the work activity related group (WRAG). This is designed to improve his/her functionality with a view to an earlier return to work. As such, the claimant has to attend further meetings (work focused interviews) with specially trained job centre advisors and undertake a programme for a return to work. Failure to do so may result in certain sanctions being applied.
As soon as the individual has recovered from their condition then they are returned to the job centre, their ESA ceases and they return to employment or JSA. However the provision of ESA within this group will be limited to 12 months as from April 2012.
Those individuals who are deemed to carry severe and long term medical or mental health problems which result in them being considered to be incapable of any work for a prolonged or indefinite period are deemed to have limited capability for work related activity (LCWRA) and are assigned to the “support group”. As such there is no onus to attend work focused interviews (although many do so on a voluntary basis) and their ESA only comes under review after a long period of time.
In the event of an appeal being turned down, the appellant cannot make a further claim for ESA with the same condition for six months from the initial DWP decision. These appeals are heard by a judge sitting alone as are those dealing with sanctions.
Due to the more rigorous monitoring of benefits related to sickness and the change in emphasis from pathology to functionality GPs are seeing increasing numbers of aggrieved patients who feel that in some way their medical condition has not been recognised.
Apart from the financial shortfall between ESA and JSA (around £30 less per week); they feel a sense of injustice and bewilderment.
It is likely that these numbers will increase following the reassessment of everyone on Incapacity Benefit prior to 2008; a process that has only just started and which is likely to create a huge workload for all concerned. GPs need to apprise and instruct their patients, both those who have been put back on to JSA and those newly seeking or needing Med 3s, of the changed scenario regarding capability to work.
Paradoxically this includes the fact that although registered with the DWP and in receipt of JSA, a person can still claim to be incapable of undertaking certain types of work.
It is going to be a hard and rocky road but hopefully the destination will be worthwhile in that increasingly resources and support will be targeted and funnelled only to those in genuine need of it.
Dr Jim Sherifi is a GP and medical member of the Tribunals Judiciary, and Dr Jayne Rayner is the chief medical member of the social entitlement chamber of the Tribunals Judiciary