Employment Support Allowance claim update: Exceptional Circumstances – Regulation 25E

Regulation 25 has replaced Regulations 29 and 35 as of 28.01.2013. 

This is the Employment Support Allowance Regulation 25 in full:

25.— (1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2)  applies to the claimant.

(2) Subject to paragraph (3), this paragraph applies if—

(a) the claimant is suffering from a life-threatening disease in relation to which –

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.
(3) Paragraph (2)(b) 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.
(4) In this regulation “medical evidence” means—

(a) evidence from a health care professional approved by the Secretary of State; and
(b) evidence (if any) from any health care professional or a hospital or similar institution,
or such part of such evidence as constitutes the most reliable evidence available in the circumstances.

Implications of the changes.

Two broad concerns that arise in light of the Regulation changes are that there is significant scope for the assessor to speculate and make assumptions about those being assessed, and there is a limitation regarding what symptoms can be considered in which parts of the assessment (as is evident in the new descriptors – Regulation 19(5) and Regulation 34(3A.)) Such consideration has been narrowed in focus and subdued by the amendments, which clearly and strictly polarise illnesses into physical or mental categories. Both of these problems may lead to an over-estimation of a person’s capability for work.

The exceptional circumstances provision originally in Regulation 29 has been changed. Trying to demonstrate that a person would be at “substantial risk” in a workplace will now also involve considering whether any “reasonable adjustments” in the workplace or prescribed medication would significantly reduce such a risk. The amendments would allow any potential risk resulting from a person being found fit for work to be ignored if a reasonable adjustment, or taking prescribed medication would hypothetically offer significant reduction of that risk.

The Atos assessor has previously been able to assume that a person could use some aids that they do not actually use, and theoretically determine what the person’s capability would be using those aids. Many people have experienced the difficulties presented by the “imaginary wheelchair test” – the assessor decides they would be mobile with a manual wheelchair, often contrary to the appropriateness or availability of a wheelchair for that person. The amendments to the Regulations have extended this to include imaginary prostheses and guide dogs under the “could reasonably be used” criteria to most parts of the assessment.

Any “reasonable adjustments” to “the workplace” are very hypothetical and can never be guaranteed. Nor may they necessarily be effective in the event that they are actually carried out. The assessor does not know the person claiming ESA or their long term medical circumstances, or whether the use of such aids would be consistent with their current management programme, or whether any theoretical aids would be suitable in reality.

There is no guarantee that in the event of a person obtaining these aids that they would actually be capable of work. This imaginary exercise will not be discussed with the person making the claim; they are simply going to be refused benefit on the basis of hypothetical aids and appliances.

“Reasonable adjustment” may include cases where the risk is still considerable, if it is significantly reduced by hypothetical adjustments, it can be ignored. There is no explicit requirement to take into account side-effects of medication. This is worrying for more than one reason. There seems to be an implicit suggestion that medication ought to be enforced. For obvious reasons that is very troubling. It has serious implications for issues of medical consent, and patient rights.

The amendments made to the Work Capability Assessment descriptors  mean that claimants can only score on either the physical descriptor for a physical illness or the mental descriptor for a mental illness. Part One of the Work Capability Assessment activities will only accommodate the effects of “a specific bodily disease or disablement,” while Part Two of the WCA  will only allow consideration of the effects of “a specific mental illness or disablement.” Similarly, only side-effects of treatment for physical conditions will be considered in Part One, and side-effects of treatment for mental illnesses only in Part Two. The Government has produced a document explaining these amendments to the regulations.

Using prescribed medication as a purely theoretical “reasonable adjustment” provides scope for a lot of speculation presented as “evidence” regarding the efficacy of medications. For many of us, medication is “experimental” and often trialled initially, and effectiveness and side-effects vary hugely from person to person. Medications for mental health problems produce physical side-effects, and vice-versa. A person who suffers severe chronic pain from physical illness or injury may take strong pain medications that severely compromise their cognitive ability, but it would seem the amended regulations would require that this effect is disregarded.

Many illnesses that are not yet well-understood have a full spectrum of physical, mental and cognitive symptoms. Examples include autoimmune illnesses such as Rheumatoid Arthritis, Lupus, MS, ME and Fibromyalgia. There is often a fundamental interconnectedness of physical and mental health, yet the amendments demand a clean separation of physical, mental and cognitive effects of illness.

As stated, medications for these illnesses are invariably “experimental”, and the efficacy of treatments is widely unpredictable, as are the potentially severe and often “black box” side-effects. For example, a common treatment for autoimmune illness such as Lupus and Rheumatoid Arthritis is a chemotherapy called methotrexate, usually given in a weekly dose, by injection or taken orally.

Side-effects commonly include nausea and vomiting, ulcerative stomatitis, dizziness, drowsiness, headache, hair loss, blurred vision or sudden loss of vision, seizures, confusion, weakness or difficulty moving one or both sides of the body, loss of consciousness, vulnerability to overwhelming infections such as pneumonia.

Less common side effects of methotrexate include sudden death, liver failure, kidney damage and lung fibrosis. There is no way of predicting most of these side-effects. Of course this treatment is not handed out like sweets by doctors, and there is very careful consideration given to the risks carried with the drug, which are carefully weighed against the substantial risks presented by the serious illness to be treated. Many autoimmune illnesses may also cause death, lung fibrosis, kidney and liver damage and blindness. How can it be that a person so ill, and taking such a risky medication could be deemed even remotely capable of work, and that such a treatment could be seen as a “reasonable adjustment” to allow that judgement?

A grave concern is that this will mean additional challenges for many sick and disabled people at a time when the Tribunal Service is hugely overworked and struggling to accommodate the sheer volume of appeals regarding wrongful decisions, and the waiting times for Hearings are stretching out, leaving very vulnerable people without the essential support they need to live. Now there is the additional requirement for providing evidence regarding the “reasonable adjustments” amendment, and I doubt that hypothetical evidence will suffice.

It seems that the Government have simply extended legislative opportunities to reduce eligibility for ESA. I don’t believe these changes and omissions are casual: they are about limiting successful claims and appeal outcomes.

It’s therefore important that we explore the implications of legislative changes like this, because the additional information helps us to pre-empt potential new difficulties we are likely to encounter with our claims, plan in advance how to find effective ways around them and so improve the outcomes.

Advice regarding EXCEPTIONAL CIRCUMSTANCES – Regulation 25. 

Because of the tick-box nature of the ESA50 form, it is possible that people will fall below the number of points required to be declared incapable of work – it doesn’t take into account variable illnesses, mental illness, or the cumulative effects of having more than one illness.

However, the Exceptional Circumstances Regulation should accommodate this – it states that the claimant should be found incapable of work if they have an uncontrolled or uncontrollable illness, or “the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

Therefore it would be appropriate, if you feel it applies to you, to add something like the following to the form, where it asks for “other information”:

“If the scoring from my answers above is insufficient, then I believe invoking the Exceptional Circumstances Regulation would be appropriate due to the severity and interaction of my conditions, and my inability to reliably, repeatedly and safely perform work-related tasks, or encounter work-related situations.

I am taking all available and appropriate medication as prescribed by my doctor(s), and there are no reasonable adjustments to a workplace which would mitigate my medical conditions.

Therefore there would be substantial risk to my mental and/or physical health if I were found not to have limited capability for work-related activity and/or placed into a workplace environment”

Change the wording to fit your situation, delete mental or physical if appropriate, leave both in if necessary.

Further information:

Exceptional circumstances: Employment and Support Allowance Regulation 25
Employment and Support Allowance: 2013 Regulations in full
Limited Capability for Work-related Activity: Determination
The Amendment Regulations: Laid before Parliament  
Rapid response EDM: Commons’ motion to annul the Employment and Support Allowance regulations

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