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Employment and Support Allowance:
Government aims:
–
80% of working age
population in work :
–
one million off
“incapacity” from 2.6 million at present
“A robust work
focussed regime for people who are out of work due to ill health or
disability –
work for those
that can; improved support for those who cannot”
The
changes:
From October 27th
2008:
·
Incapacity Benefit and
Income Support through the sickness route disappear for new claimants;
replaced by
·
‘Employment and Support
Allowance’:
o
Contributory ESA
(replacing Incapacity Benefit)
o
Income-related ESA
(replacing Income Support).
For the first 13
weeks claimants will get an ‘assessment phase benefit’ paid at the same
rate as JSA. During that time the vast majority will attend:
·
a work focused interview
at the Jobcentre
·
a medical interview where
information needed to assess eligibility for benefit – and what rate of
benefit - will be gathered
·
and their capability for
work will also be considered ‘by a health professional’
As a result of the
assessment process, people may be awarded one of two new components (or
be found fit for work).
·
the ‘Support Component’
will be paid to those with the ‘most severe conditions’
·
the ‘Work Related Activity
Component’ will be paid to those whose condition is deemed to be
‘manageable’ (i.e. c. 90% of claimants)
Unlike Incapacity
Benefit, ESA will:
·
Not go up with time.
·
Will have no ‘dependant
additions’ (although Income-related ESA will have a ‘couple’ rate)
·
Will have no age-related
additions
To
qualify for ESA all claimants must:
·
have “limited capability
for work”
·
be aged 16 to 60 or 65
·
be in Great Britain
·
not be entitled to JSA, IS
or SSP
PLUS:
for
Contributory ESA claimant must have:
·
actually paid 25 x Class 1
or 2 contributions in one of the last 3 tax years; and
·
paid or been credited with
50 x contributions in both the last 2 tax years
National Insurance
conditions are waived if the claimant:
·
is under 20 (25 for some
students) at start of “period of limited capability for work”
·
has had limited capability
for 6 months or more
·
is not in full time
education
·
satisfies the residence
and presence rules
for Income-based
ESA a claimant must:
·
pass the means test –
similar to IS /JSA
·
not be entitled to Pension
Credit nor have a partner on Income Support, Pension Credit or
Income-based JSA
·
not be in education
·
not be a person subject to
immigration control with no access to public funds
·
pass the Habitual
Residence Test (including having a right to reside)
Claiming
ESA:
Claiming ESA will
be similar to the current process for IB, IS & JSA:
·
An initial ESA claim form
(or phone claim) from Contact Centre
·
Local JC+ office takes
form and arranges 1st “scene setting” Work Focussed Interview (at c. 8
weeks)
·
forwards to Benefit
Processing Centre who start paying “assessment phase” ESA pending
assessment
Claimants can choose to claim
Contributory ESA only (e.g. if partner working) but cannot claim Income
related ESA only (similar to the way in which current claimants have to
claim Incapacity Benefit to establish a ‘route’ to Income Support
through the sickness route). If another route to benefit exists, it may
be necessary to do a “better off” calculation – and also to talk the
claimant through what may be expected of them under ESA…
We are told that
there will be scrutiny of initial evidence - e.g.
·
GP’ s sick note and any
other evidence with form
·
Factual Reports from GP
(or those that are returned – only a small proportion currently are)
·
Paper medical scrutiny
and that it is
hoped that most Support Component cases or circumstances where people
are treated as passing test(s) will be picked up at this stage
It’s not yet known
whether ESA 50s will be issued to all claimants earlier in the process,
or just to claimants not ‘filtered out’ of the process at this stage.
The new ESA 50s are
similar to the old IB 50s but:
·
Include both ‘physical/
sensory’ and ‘mental/ intellectual/ cognitive’ questions (but without a
tick box for each descriptor)
·
ESA stops if they are not
returned – it’s not yet clear that the current protection for mental
health claimants (i.e. that benefit is not stopped until a medical is
missed) will continue.
Medical Services
have been told that 93% of claimants will be called for 2 part medicals
interviews:
•
50 minutes for assessing:
Þ
eligibility for ESA
Þ
eligibility for Support
Component
The resulting
information will be sent to a Decision Maker who technically decides
whether the claimant stays on ESA and if so, with which component?
•
50 minutes with another
medical professional for:
Þ
Work Focussed Health
Related Assessment
The resulting
information will be sent to Jobcentre Plus to inform future Work
Focussed Interviews.
It is now possible
for nurses as well as doctors to carry out the assessments and for
Occupational Therapists to be involved in the WFHRAs.
The Work
Capability Assessment
Key Features:
·
No group exemptions
– but some special situations lead to people being treated as passing
the test – similar to old “deemed incapacity”
·
Applies straightaway
– no 6 months on GP’s certification, no “Own Occupation Test”
·
“Transformed PCA” for ESA
is harder and will be “more frequent”
·
A further test
for Support Component
The following
groups will be treated as passing both tests, so will be eligible for
Support Component (from week 14):
·
reasonably expected to die
in next six months due to progressive disease; OR
·
receiving “invasive”
chemotherapy (i.e. not oral); OR
·
would be substantial risk
to mental or physical health if not treated this way; OR
·
if pregnant, there is a
serious risk to mother or child if working
The following will
be treated as having entitlement to the Work-related Activity Component:
·
refraining from work due
to a notifiable disease; OR
·
pregnant between the 6th
week before and 2nd week after EWC; OR
·
suffering a life
threatening uncontrolled disease; OR
·
any day as a hospital
in-patient; OR
·
any day receiving:
o
renal dialysis; OR
o
plasmapheresis or
radiotherapy; OR
o
weekly total paranteral
nutrition; OR
For all others,
there will effectively be a three stage assessment:
- Test for
any ESA: score 15+
–
Do you have “limited
capability for work’?
§
A revised version of the
current test
- Test for
Support Component:
–
Do you have ‘limited
capability for work-related activity’?
§
Satisfying one of a list
of severe disability descriptors
- Report for
WFIs: to inform action
plan
–
A Work-focussed health
related assessment
The Work
Related Activity Component
It is estimated
that 90% of ESA recipients will get the Work Related Activity Component.
To qualify for this, claimants must:
·
Have “limited capability
for work”
–
i.e. score 15 or more
points, or be deemed to pass the test AND
·
Fulfil conditionality
requirements:
–
undergo a Work Focussed
Health Related Assessment (mentioned above)
–
attend and participate in
Work Focussed Interviews
–
engage in work related
activity: “as resources allow”
The Work Focused
Health Assessment:
·
Looks at extent of
capability for work
·
Assesses:
o
barriers to getting /
keeping work,
o
possible adaptations /
condition management programmes etc
o
Claimant’s own views and
aspirations
·
Report sent to DWP
Personal Adviser
Work Focused
Interviews:
·
Claimant must participate
in WFIs; it’s not enough to simply turn up.
·
One as part of initial
claim – followed by 5 monthly WFIs in first 6 months. Periodically after
that.
·
Interviews will look at:
prospects for remaining in / finding work/ training, education, rehab,
condition management programmes etc. to improve work chances
·
Waiver: only if about to
return to work
·
Deferral: if not of
assistance / appropriate
Work Related Activity
·
Initially by agreement but
some compulsion later on not ruled out, ‘as resources allow’
·
Examples include:
o
Work tasters: e.g.
voluntary/permitted work
o
Condition Management
Programmes: NHS programmes
o
Improved employability:
e.g. basic skills and other training
o
Jobsearch assistance: e.g.
New Deals etc
o
Stabilising life: rehab
etc.
Non compliance and
Sanctions:
Claimants will have
five working days within which to show ‘good cause’ for non compliance.
The component will
be lost in two halves for non-compliance —50% for the first four weeks
and then the whole of it until someone attends/ participates, to
the point where claimants are back on assessment phase/ JSA benefit
levels. Deductions will be made from any Contributory ESA first and no
one will be left with less than 10p Income Related ESA. The component
will be restored in full as soon as the claimant is deemed to have
complied, becomes part of the Support Group or turns 60!
The
Support Component:
Receipt of the
Support Component depends on it being decided that you have ‘limited
capability for work-related activity. For this to apply:
o
You must pass (or be
treated as passing) the test for ESA / Work Related Activity Component
o
any one of a number of a
separate list of disability descriptors must apply for ‘most of the
time, or on most occasions that an activity is attempted’
·
Some people will be deemed
to pass this
·
The decision regarding
eligibility for the Support Component is appealable
Support Component descriptors are
intended to identify the ‘most severely disabled’ (around 10%):
o
Some are identical to 15
pointers in the revised PCA
o
Others are similar but use
a slightly different test (e.g. cannot walk or propel a
wheelchair 30m)
o
Others are based on
completely different functional areas (e.g. feeding oneself)
The New
Points System:
The new
‘physical’ descriptors
At first sight
looks similar to the old test, BUT:
•
Combines “standing”,
“sitting” and “rising from sitting” into one functional area – can only
score once
•
“Walking up/down stairs”
has virtually gone
•
Removes lower scoring
‘problems’ (3 pts.)
•
3 grades of severity
only: 6, 9 or 15. There are no 7s, 8s or 10s, old scores rounded down.
•
Some revised wording – all
to toughen each descriptor
•
Bad news for claimants
with physical problems – in pilots, one quarter of claimants passing
current test ‘failed’ the new PCA
.
The new ‘mental, cognitive and
intellectual function assessment’
New test virtually unrecognisable
compared to the old
·
must score 15 points
·
one score per functional
area – 15, 9, 6 or 0 according to different levels of severity /
frequency etc.
·
new areas of difficulty
are included as the test must now be applicable to people with serious
mental health problems/ learning disabilities
·
the original new test – as
devised by a ‘panel of experts in the field’ looked potentially better/
fairer – but nearly 70 changes were subsequently made – all of them
tightening up the criteria.
e.g.
·
‘Has significant
difficulty learning a simple new task, or remembering a simple new task
that has been learned’ (Working Group)
became
·
‘Has great difficulty
learning a simple new task, or remembering a simple new task that has
been learned’ (Subgroup)
Became
·
“Cannot learn or
understand how to successfully complete a simple task, such as the
preparation of a hot drink, at all;
OR
Needs to
witness a demonstration, given more than once on the same occasion of
how to carry out a simple task before he is able to learn or understand
how to complete the task successfully, but would be unable to
successfully complete the task the following day without receiving a
further demonstration of how to complete it” (DWP – draft regulations)
The DWP have said
that ‘the policy intent is not to make the PCA tougher but to make it
an assessment that is more relevant to the ability to engage in work’:
Yet
–
e.g. ‘Has unpredictable
outbursts of aggressive, disinhibited or bizarre behaviour, sufficient
to cause frequent disruption’ scores only 6 points…
–
Recent policy statements
have celebrated an increase in failure rates to around 50%
Concern has also
been expressed about the complexity of wording/ multi concept choices
contained within the new test and the difficulty doctors, decision
makers, tribunals and advisers will have working with it, let alone the
problems many claimants will have understanding it – e.g.
‘Propriety of
behaviour with other people’.
•
a) Has unpredictable
outbursts of, aggressive, disinhibited, or bizarre behaviour, being
either:
–
(i) sufficient to cause
distress to others on a daily basis, OR
–
(ii) of such severity that
although occurring less frequently than on a daily basis, no reasonable
person would be expected to tolerate them. (15 points)
•
b) Has a completely
disproportionate reaction to minor events or to criticism to the extent
that he has an extreme violent outburst leading to threatening behaviour
or actual physical violence
(15 points )
•
c) Has unpredictable
outbursts of aggressive, disinhibited or bizarre behaviour, sufficient
in frequency and severity to cause disruption for the majority of the
time ( 9 points)
•
d) Has a strongly
disproportionate reaction to minor events or to criticism, to the extent
that he cannot manage overall day to day life when such events or
criticism occur.
( 9 points)
•
e) Has unpredictable
outbursts of, aggressive, disinhibited or bizarre behaviour, sufficient
to cause frequent
disruption
( 6 points)
•
f) Frequently demonstrates
a moderately disproportionate reaction to minor events or to criticism
but not to such an extent that he cannot manage overall day to day life
when such events or criticism occur
( 6 points)
Attempts to
simplify the descriptors so that they can be included in the ESA 50 form
have lead to over simplification – e.g. the questions relating to
the above descriptor on the ESA 50 are:
·
Do other people get upset
with you because of the way you behave? (for example do they shout,
lose their temper, argue or threaten you)
□ often
□sometimes
□now
and then
·
Do you get so upset by
little things or by the way other people behave that it affects your
daily routine? (by little things we mean things like someone calling
at your home when you don’t expect them, or over-reacting to being
pushed or jostled in a crowd)
□
no
□sometimes
□yes
·
Can little things lead you
to behave in a violent way?
□ no
□sometimes
□yes
Note, for example,
that someone whose behaviour was daily likely to leave their partner in
tears or very frightened (and thus score 15 points immediately) would
not be prompted to mention it by any of the above
Combining
Scores:
Where an ESA
claimant has a combination of physical and other problems, scores from
the two sets of descriptors are now simply added together.
Harder Tests?
•
Initial pilots on the
“experts” test showed:
–
a 25% decrease
in pass rate for physical and sensory test
–
a small increase
in the new wider “mental, cognitive and intellectual function” .
•
The increase was
attributed to the new test identifying “significant limitations which
had not been picked up by the current test” by the ‘expert’ panel
members.
•
With every mental health
descriptor changed by DWP civil servants, wider pilots concluded in
September ’07 - understood to show a 10 to 20% fall off in PCA passes,
especially in the mental function areas
•
The Government predict a
33% failure rate
ESA and Starting
Work
•
Linking rules:
–
Less of an issue as no
long term rates, but means back to “main phase” rate
–
12 weeks basic rule
instead of 8 weeks
–
2 year rule still applies
•
Permitted work:
–
Common higher limit £88.50
whether contributory or income related ESA
–
BUT no change in HB/ CTB
disregard of £20
ESA and Other
Benefits:
•
Passporting applies to
Income-related ESA
•
Exclusions to claiming
ESA:
–
Statutory Sick Pay
excludes any ESA – any top up via Income Support
–
Statutory Maternity/
Paternity/ Adoption Pay exclude contributory ESA
–
Contributory ESA is an
“overlapping benefit”
–
JSA/ IS excludes ESA
–
Partner getting IS/
Income-based JSA excludes Income-based ESA
–
Pension Credit (claimant
or partner) excludes Income-related ESA
ESA and Housing/
Council Tax Benefit:
•
Income-based ESA passports
to full HB/ CTB
•
Contributory ESA counts as
income
•
HB/ CTB Applicable Amount
will include Support/ WRA ‘premiums’ but no disability premium
•
Same knock on effects as
receiving Disability Premium (e.g. higher earnings disregard)
•
Young people:
–
Same effect as ESA – lower
PA in first 13 weeks but full rate after
–
nil Non-dependant
deductions in first 13 weeks if on Income-based ESA
Conclusion:
Although there is
general consensus on the aims of supporting people into work if and when ready,
there are concerns around:
1)
The Process –
·
Claiming ESA will be
significantly more complex and require more engagement from claimants
·
How easily will claimants
previously exempted from the old PCA be able to negotiate the new
system?
2)
The new tests –
•
The WCA will be
significantly tougher for all claimants
•
For mental health route
claimants
–
the toughening is
against the considered advice of experts
–
The complexity of the
language involved makes the test less accessible for claimant, advisor
and decision makers
Additionally there are concerns around:
•
Are there the jobs?
•
Revolving doors, in-work
poverty
•
The compulsion element
(particularly from Personal Advisers)
•
Cuts in benefits compared
with IB
•
Others still on IS may
need to claim ESA for extra cash
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