Commons’ motion to annul the Employment and Support Allowance regulations | 21 January 2013

Caroline Lucas (Green Party MP for Brighton Pavilion) has tabled an Early Day Motion (EDM) 947, to ask that the Employment and Support Allowance (ESA) amendments be annulled.

So far, the EDM has the support of nine other Opposition MPs.

The amendments made to the ESA mean that claimants can only score on either the physical descriptor for a physical illness or the mental descriptor for a mental illness. The Government has produced a document explaining the amendments to the regulations.

Please contact your local MP if you would like them to sign the EDM.

MEA medical adviser, Dr Charles Shepherd, commented: “The new regulations are going to make it almost impossible for people with ME/CFS (physical disease) to score points in the mental health descriptors in relation to cognitive dysfunction. The only way they will now be able to do this is through having a separate mental health diagnosis (ie depression) as well

“This is the complete opposite to what the Fluctuating Conditions Group set up by the Government's independent adviser on the Work Capability Assessment (Professor Malcolm Harrington), of which the Countess of Mar's Forward ME Group is part, have recommended and is now being tested by the an Evidence-Based Review set up by the Department for Work and Pensions.”

EDM LETTER

This is a rapid response letter that could be sent to your MP regarding the ESA (Amendment) Regulations 2012 and the House of Commons Early Day Motion (EDM) 947 calling for the regulations to be annulled.

The letter covers the main issues as they affect people with both physical and mental health conditions and leaves the option open as to whether to include some personal details in an opening paragraph and at the end.

(Your Address)

Dear (MP’s name)

Date

Regarding SI 2012 No. 3096, Social Security:

The Employment and Support Allowance (Amendment) Regulations 2012 – http://www.dwp.gov.uk/docs/m-1-13.pdf – which come into force on 28 January 2013 and the Early Day Motion (EDM) 947 that has been tabled to annul these regulations

These Regulations are about to significantly alter the way in which some claimants of Employment Support Allowance (ESA) will now be assessed.

In the Explanatory Memorandum the Regulations purport to simply “clarify” the existing ESA Regulations (SI 794 of 2008.) “rather than make changes to existing policy”. However, they contain significant changes to the basis on which claimants are now going to be assessed.

The effect is that the work capability assessment (WCA) may not provide an accurate picture of claimants’ overall health problems and their actual ability to work. And many of those who currently qualify for ESA under the existing regulations may now find that they fail to do so under the amended regulations.

The problems fall into two main areas, both of which are likely to lead to a claimant’s capability being overestimated:


1 Separation of physical and mental health criteria.

It was always clear in the original ESA regulations that any “physical or mental condition”, or any “specific disease or bodily or mental disablement”, could be considered to cause difficulty in any activity. Furthermore, the side effects of any medical treatment, including medication, could be considered in any activity. This has now been changed.

The first part of the ESA work capability assessment form entitled “Physical Functions” is only to be completed by those with “specific bodily disease or disablement”. The second half entitled “Mental cognitive and intellectual functions” is now restricted to those with a “specific mental disease or disablement”.

The explanatory memorandum to the amendments makes the change in policy clear.

Regulation 19(5) and Regulation 34(3A) – Schedules 2 and 3 Descriptors

Cause – At present it is unclear whether an individual with a physical condition
can score points on mental function descriptors purely based on the effects of a
Physical condition. (For example, where, a person with back pain indicates that
they are unable to think properly due to the pain in their back.). Also, if
someone with a mental function condition can score points on physical
descriptors purely based on the effects of a mental function condition.

Effect – This clarifies that mental function descriptors can only apply where the
claimant’s incapability arises directly from a mental health condition or as a
direct result of treatment provided by a registered medical practitioner for a
specific mental illness or disablement. In the same way, physical descriptors can
only apply where the claimant’s incapability arises directly from a physical
condition or as a direct result of treatment provided by a registered medical
practitioner for a specific physical disease or disablement.

However, it is widely accepted that all illnesses have physical and mental health aspects and that there is a holistic relationship between body and mind, the one influencing the other.

So physical illnesses may have an effect on mental health, cognition, concentration etc. This is particularly relevant to long-term medical conditions such as arthritis, HIV/AIDS, inflammatory bowel disease, ME/CFS, multiple sclerosis and Parkinson’s Disease. The new division between physical and mental conditions also expressly contravenes the proposals for reform of the WCA that have been submitted to the DWP by the Fluctuating Conditions Group of medical charities. As these recommendations regarding changes to the WCA descriptors are now being assessed in an evidence based review by the DWP this is clearly a very inappropriate time to bring in these changes.

At the same time, mental health conditions and the effect of drugs and their side effects may produce what the DWP regards as physical symptoms.

The fact that physical illnesses can have a mental and cognitive component, and mental illnesses can have a physical symptom component, has always been accepted by this and previous Governments.

It therefore seems very perverse that claimants are now to be assessed either on the basis of their physical or mental health, rather than as a whole human being.

Claimants will be turned down for benefit when they should not be, simply because assessors can no longer take both mental and physical descriptors into account when the primary disease or impairment falls into one or the other category. Aspects of a person's capability to work which fall into the “wrong” category will be ignored, and assessors will only take part of the picture into account.

Furthermore, if a claimant is taking a medication to manage a condition, side effects will only be taken into account if they fall on the same side of this mental/physical divide. The physical side effects of antipsychotics, for example, will be disregarded, while mental and cognitive side effects of painkillers can also be ignored. Even a claimant on high doses of opioid painkillers for severe pain will not be able to have the debilitating cognitive impairment caused by such medication taken into account. This case specifically is made clear in the Decision Makers Guide supplemental memo describing the changes (http://www.dwp.gov.uk/docs/m-1-13.pdf):

18 … Example 1
Brian suffers from rheumatoid arthritis in his hands and knees, and claims ESA. In the questionnaire Brian states that due to cognitive and mental impairment he has difficulty with learning tasks, awareness of hazards and completing personal actions. At the medical examination, Brian explains that the high level of painkillers he takes for his arthritis makes him too tired to concentrate. He does not suffer from mental illness or disablement. The DM determines that Brian does not satisfy any mental health descriptors.

It is worth noting that, in the regulations providing the two lists of descriptors, the part 2 is not described as “mental health descriptors”, but rather “Mental, cognitive and intellectual function assessment”.

2 Assumptions that can be made by an assessor

The concept of what “aids and appliances” “could reasonably be expected to be worn or used” is applied to every activity.

Assessors will now be allowed to speculate on what aids and appliances might allow a claimant to work and then refuse them benefit on the basis that if they obtained such an aid, they would be capable of work. Such an aid might be a guide dog for the blind, or a wheelchair for some who has a mobility problem but is trying to remain active..

This imaginary exercise is not going to be discussed with the claimant; they are just going to be turned down on the basis of hypothetical aids and appliances.

This is deplorable in several ways:

* The assessor does not know the claimant or their circumstances, whether the use of such aids would be consistent with their current management programme, whether they have previously tried these physical aids and found them to fail, how likely it would be that they could obtain them or that they would help them in practice etc.

* There is also no guarantee that even if the claimant did follow the course of action being contemplated by the assessor that this would have the desired effect of returning them to the work force.

Extraordinary circumstances

This hypothetical approach is also applied to the concept of “extraordinary circumstances”. At present a person may obtain benefit under Regulation 29 by proving that work or work related activities would cause a substantial risk to their health.

New Regulation 3, Paragraph (6) amends existing regulation 29 (exceptional circumstances where a person may be treated as having limited capability for work) so that the definition of “substantial risk” in regulation 29(2)(b) excludes circumstances where the risk to health could be significantly reduced by reasonable adjustments being made in the workplace or by the claimant taking prescribed medication.

Substantial risk to health

“does not apply where the risk could be reduced by a significant amount by—
(a) reasonable adjustments being made in the claimant’s workplace; or
(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.”.

This is made clear by the Explanatory Memorandum

Regulation 29 (Substantial risk):

Cause – As currently drafted there is a degree of ambiguity regarding the
Satisfaction of regulation 29. There have been examples where substantial risk
test has been judged as being satisfied, but where that risk may have been
greatly reduced either by a workplace adjustment or other intervention.

Effect – This clarifies that if the substantial risk can be reduced by a significant
amount by reasonable adjustments in the workplace, or other interventions, e.g.
self-administered adrenalin, the provision would not be satisfied.

It is quite possible that the claimant has considered the question and decided against such aid or treatment for very good reason – maybe side effects of drugs or interaction with other medication; or maybe because they believe such a treatment will make their health worse and they are unwilling to risk a further deterioration.

And it should be pointed out that “reasonable adjustments” to “the client’s workplace” are extremely hypothetical and can by no means be guaranteed. Nor may they necessarily be effective even if they were carried out.

What you can do to help

Please sign EDM 947 – http://www.parliament.uk/edm/2012-13/947 – which seeks to annul the amending regulations: SI 2012 No. 3096, Social Security: The Employment and Support Allowance (Amendment ) Regulations 2012

Yours sincerely

(Your name)