Are you eligible to gain access to the Universal Credit Limited Capability for Work and Work Related Activity or the ESA Support Group even if you can't score the required 15 points in the relevant descriptors?
Accessing the Support Group (ESA) or LCWRA (Universal Credit) without scoring the required number of points
Do some searching do on the internet and Facebook in relation to Employment and Support Allowance or its UC equivalent element and sooner or later you will come across content relating to "Regulation 35" or "Regulation 29" These pieces of ESA regulation have taken an almost legendary status as a way to get into the ESA work exemption groups and their UC counterparts.
"Regulation 29" applies specifically to the ESA Work Related Activity Group (WRAG) and UC Limited Capability for Work and we will look the application of this rule in a future article.
"Regulation 35" is a set of rules that allow a person to access the ESA Support Group or the UC Limited Capability for Work or Work Related Activity (LCWRA) without having passed the Work Capability Assessment (WCA) descriptor tests.
Find out about the WCA descriptors here
However Regulation 35 is not the only way to access a no work or no work related activity work group determination, and before we look at Regulation 35 in more detail, we are going to look at the WCA exemptions.
The first question to ask, is whether you are exempt from assessment and,to be honest, there is very little likelihood of this happening on mental health or learning difficulties grounds.
The following claimants would be treated as having limited capability for work-related activity and would be assigned to the support group or for UC, the LCWRA work group determination without needing to score points:
1. You are terminally ill, i.e. you are suffering from a progressive disease and your death in consequence of that disease can reasonably be expected within 6 months;
2. You are receiving treatment for cancer by way of chemotherapy or radiotherapy;
3. You are pregnant
There must be a serious risk of damage to your health or to the health of your unborn child if you do not refrain from work-related activity.
2) and 3) are almost identical to the exemptions for the work-related activity group (LCW) except that now you need to show that you would have to refrain from ‘work-related activity’ rather than actual work.
This could include things such as interviews and training. In practice, if you are found to be exempt in the first test you can use this to argue that you should be found exempt for the purposes of this test too and placed in the support group.
There is just one more possibility left to consider. This is handled slightly differently in the ESA and UC systems:
If you are claiming ESA, this cannot be considered until after you have been through the scoring process. If you have not scored enough points, the DWP must consider if this option applies to you.
If you are claiming UC, this can be considered before you have been through the scoring process.
4. "Regulation 35" There is a substantial risk to you, or others, if you are found not to have a limited capability for work-related activity
The substantial risk rules are very important – they are one of the most common ways that claimants are placed in the support group and to a lesser extent UC LCWRA (this may simply down to a lack of familiarity with the regulations with UC claimants and their advisers)
You will be treated as having limited capability for work-related activities if:
‘you suffer from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement; there would be a substantial risk to the mental or physical health of any person if you were found not to have limited capability for work-related activity’.
This is almost identical to one of the exceptional circumstances for the work-related activity group (LCW) except that now you need to show that you would have to refrain from ‘work-related activity’ rather than actual work.
This could include things such as attending a Jobcentre or Work Programme provider’s office regularly, work experience, training, group activities, doing tasks online.
ESA Regulation 35 and UC Schedule 9 The Substantial Risk Rules (LCWRA)
A claimant can be treated as having limited capability for work-related activity (LCWRA) if, by reason of their health condition or disability, there would be a substantial risk to the health of the claimant or others were the claimant found not to have LCWRA. The provision can only come into play if a claimant has been found to have LCW but then fails to satisfy any of the LCWRA descriptors.
Regulations provide that a claimant can be treated as having LCWRA where there is a substantial risk to the health of any person.
For ESA, regulation 35 of the Employment and Support Allowance Regulations 2008 and regulation 31 of the Employment and Support Allowance Regulations 2013 provide -
A claimant who does not have limited capability for work-related activity... [having failed to satisfy any LCWRA descriptors] is to be treated as having limited capability for work-related activity if - (a) the claimant suffers from some specific disease or bodily or mental disablement; and (b) by reasons 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-related activity.
For universal credit, paragraph 4 of schedule 9 to the Universal Credit Regulations 2013 provides that a claimant is to be treated as having limited capability for work-related activity if -
The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity.
Showing you may be at risk
The issues below are some of the ones that guidance in the past has suggested should be taken into account when considering substantial risk. If any apply to you, it is worth giving details.
This list is far from exhaustive and you should include any evidence you think is relevant.
Would work-related activities be likely to cause:
What else should you consider?
Is your health condition stable? If not, what has caused any deteriorations in the past and would work-related activity be likely to engage any of these triggers?
Are there any steps that can be taken to reduce any risk, for example by only doing activities in the morning before fatigue sets in?
Did you give up work because of your health condition? If so, what was your job?
If there is a risk, is it present throughout the day? Are there times of the day when activities could be carried out without risk?
Has the decision maker accepted that you satisfy a descriptor, and therefore cannot undertake an activity which might be required as part of any work-related activity and which might cause harm to your health?
Do you have active thoughts of suicide?
Has there been a documented episode of self-harm requiring medical attention within the last 12 months?
Do you have a formal care plan in place?
Is there a current crisis team intervention?
Have you been under a section of the Mental Health Act within the past 12 months?
Are you undergoing drug or alcohol detoxification?
Have you been admitted to a psychiatric unit or hospital for a mental health issue within past 12 months?
These regulations will most commonly be used at Appeal Hearings where advisers are making a case for their client to be granted an exemption from work related activity due to any of the above reasons. However, there is nothing stopping you from asking for ESA Regulation 35 or UC Schedule 9 being applied at Mandatory Reconsideration stage if you feel that it is relevant to your case.
Additionally, if you are a UC claimant who is being asked to complete a Work Capability Assessment application form, you can ask for UC schedule 9 to be considered (if you can evidence that it applies to you) even before an assessment has taken place. We are pretty sure that most WCA forms for UC are being completed and submitted without any consideration of whether Schedule 9 could be applied, simply because the majority of claimants, and some advisers, don't realise that the UC regulations do not allow this to be done. (most advisers are used to ESA and Regulation 35 cannot be applied to an ESA claim until after an assessment has taken place)
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