Briefing on Employment and Support Allowance (Amendment) Regulations 2012

The FULL BRIEFING can be viewed and downloaded here (*.PDF Adobe Acrobat document): http://www.ekklesia.co.uk/files/esabriefing-full.pdf

EXECUTIVE SUMMARY:

Regarding The Employment and Support Allowance (Amendment) Regulations 2012, reference 2012 No. 3096

1. These regulations are presented as minor clarifications, but in fact represent fundamental changes in how capability for work is to be assessed.
2. There are positive changes to allow more cases to be placed in the Support Group without full assessment. However, these are overshadowed by changes that will clearly reduce entitlement overall.
3. The problems fall into two areas, likely to lead to claimants’ capability being overestimated:
(a) The assumptions that can be made by an assessor.
(b) What symptoms can be considered in which parts of the assessment.

Assumptions made by assessors

4. At present, an assessor can assume that a claimant could use some aids that they do not use, and determine what the claimant’s capability would be using that aid. Many people have experienced problems with the “imaginary wheelchair test”, in which the assessor decides they would be mobile with a manual wheelchair without discussion, and despite guidance from the DWP, sometimes without regard to the appropriateness or availability of a wheelchair for that claimant.
5. Following these amendments, regulations would extend this to include imaginary prostheses and guide dogs, extending “could reasonably be used” criteria to most parts of the assessment. In what circumstances a guide dog or prosthesis “could reasonably be used” when not used at present is unclear. If it is clear that a guide dog, for example, may be appropriate, availability is limited. Obtaining and adjusting to an assistance dog takes considerable time and effort. Concerns of adjustment apply to many aids.
6. The amendments would also allow any potential risk resulting from being found fit for work to be ignored if a reasonable adjustment, or taking prescribed medication, would significantly reduce that risk. This may include cases where the risk is still considerable - if it is significantly reduced by hypothetical adjustments, it can be ignored. There is no
stated requirement to take into account side effects of such medication.
7. This also raises the question of assuming a claimant will take any medication they have been prescribed, calling into question issues of medical consent.

What can be considered:

8. The activities considered in the WCA have always been divided into two groups, Part 1 (labeled ‘Physical Disabilities’) and Part 2 (‘Mental, cognitive and intellectual function assessment’). Part 1 concerns physical and sensory impacts, while part 2 considers emotional, cognitive and intellectual impacts.
9. However, it was always clear in the regulations that any condition (“a specific bodily disease or disablement” or “a specific mental illness or disablement”) could be considered in causing difficulty in any activity. Furthermore, the side effects of any medical treatment, including medication, could be considered in any activity.
10. The amendments propose to strictly separate the two parts. Part 1 activities will only consider the effects of “a specific bodily disease or disablement”, while Part 2 activities will only consider the effects of “a specific mental illness or disablement”.
11. Similarly, only side effects of treatment for physical conditions will be considered in Part 1, and side effects of treatment for mental illnesses only in Part 2.
12. This is inappropriate for several reasons:
(a) It is not possible to cleanly separate illnesses into the physical and the mental; many conditions still have no clear aetiology, and many people are clearly ill but medicine has determined no appropriate diagnosis. In some cases, people have clear physical and mental illness, but the two interact in complex ways.
(b) Many diseases that are not yet well-understood have both physical, mental and cognitive effects, and have been argued to have both physical and mental causes. Examples include ME and fibromyalgia.
(c) Even where a disease is well-understood, it can have impacts that are both ‘physical’ and ‘cognitive’. A well-understood example is that of multiple sclerosis, that can cause paralysis, loss of sensation, vision, or any number of physical effects, but can also cause mood instability and loss of cognitive capability.
(d) Many medications for mental health problems produce physical side effects, and vice-versa. A person who suffers severe chronic pain from a purely physical cause may take strong painkillers that severely compromise their cognitive ability, but the amended regulations would require that this effect be disregarded.
13. The Government may claim that this is clarifying policy intent, but the stated policy of this Government has been that the effects of impairment be considered without reference to the condition causing them. Indeed, this is also the stated policy intent of the Government that introduced ESA and the WCA.

References for these points are contained in the *.PDF version of the Executive Summary here: http://www.ekklesia.co.uk/files/esabriefing-summary.pdf

AUTHORS:

Sam Barnett-Cormack. Additional contributors: Stef Benstead, Sharon Brennan, Jamie Cartwright, Sue Davies, Mason Dixon, Emilia Duriez-Webb, Lucy Glennon, Annie Makoff, Sue Marsh, Gareth Millward, Claire Whittingham, Vanessa Wigmore and three others (anon).

The FULL BRIEFING can be viewed and downloaded here (*.PDF Adobe Acrobat document): http://www.ekklesia.co.uk/files/esabriefing-full.pdf