Getting Employment and Support Allowance (ESA) depends on the Work Capability Assessment (WCA) and a points system. The massive UK-wide campaign against the WCA and Atos (the multinational company which used to carry out the WCA) and successful legal challenge against the WCA has had a huge impact.
The British Medical Association, representing doctors, and many MPs, voted to scrap the WCA and Atos, and also opposed Maximus taking over from Atos. As of 2014, 73% of people whose claim has been decided get ESA. Most claimants who survive the assessment phase are now put in the Support Group, which means you are exempt from any work conditions.
The assessment consists of a list of physical, mobility and mental health tasks (called ‘descriptors’). You need to score a minimum 15 points to get benefit. See list here.
Due to the rollout of Universal Credit, it is not possible anymore to start a NEW claim for income-based ESA. But if you have enough recent National Insurance Contributions, you can claim contributions-based ESA which is not part of Universal Credit. For example, you recently had to give up work due to ill-health, and your Statutory Sick Pay has ended. See here: /www.gov.uk/employment-support-allowance/how-to-claim
If you are already on ESA, you should continue to be on it until such time as the DWP tells everyone on ESA to claim Universal Credit instead, which may be in 2020 or later. Continuing on ESA may include being reassessed for ESA.
Advantages of the Support Group:
- You don’t have to be available for any work or work-related activity, courses, etc.
- You get more money towards your expenses of disability and sickness.
- You are exempt from the total Benefit Cap (unlike ESA WRAG claimants).
- If you want to do volunteering or go on any courses, it is completely up to you.
It is very important for women claiming contributions-based ESA (because they were formerly in waged work), to get into the Support Group. If you are in the Work-Related Activity Group (WRAG) you can only get contributions-based ESA for one year, but in the Support Group, it carries on without a time limit. Women in the WRAG have found themselves cut off contributions-based ESA but then refused income-based ESA because their partners are earning. Many are then financially dependent on partners, some with DLA as their only independent income. Depending on how many years you paid contributions, you may be able to reapply for contributions-based ESA after a gap of 12 weeks. More info atwww.gov.uk/employment-support-allowance/what-youll-get
How to get your disability benefits without going to the face-to-face exam
These exams are prejudiced and discredited. Whistleblower nurses and doctors employed by Atos, Maximus and Capita have spoken out against them. People with invisible disabilities especially, risk being found fit for work and having their ESA cut off, or being refused Personal Independence Payment (PIP).
Under public pressure, the government has had to confirm that the face-to-face exam is NOT “always required”, though they try to force people to go.
We have always let people know that they can get benefits without going to the exams.
We have had many successes with written evidence: women have won exemption from the exam, got their benefit or passed their reassessment. Lifting that stress has stopped women’s health deteriorating and kept some out of psychiatric hospital. See Benefit stress and my success
You can get the face-to-face assessment cancelled by writing in with your medical evidence, and asking to be assessed on the basis of this written information. To do that, you or someone representing you, must send in medical evidence from your records and letters from the medical professionals treating you, preferably letters which they have written for this purpose. Ask your advice worker, MP, to write in support. They may need to ask the DWP to review the Atos decision that an exam is required.
When you are first applying for disability benefits, it is best you ask a carer, advocate, counsellor, therapist, CPN or someone reliable who knows you well, to write on your behalf – either a cover letter to go with the form, or a letter on its own. Make sure they know the eligibility rules, points system and exemptions for the benefit you are claiming, so they can refer to them when they describe your situation (see assessment above for ESA rules, below for PIP rules). Enclose medical evidence from your GP, consultant(s), CPN or other qualified professionals about your disabilities/illness, their effects and the risk to your health. If your GP or MP is unhelpful, you can also use the information on the NHS Choices website Health A-Z about your condition and its complications – but you need to connect how this information relates to your situation.
For ESA, you can apply to be put in the Support Group because of “Exceptional Circumstances”. Your medical evidence has to state you have a life-threatening illness or show that there is a “substantial risk to your mental or physical health” if you were found fit for work, or if you were put under back-to-work conditions.
You do not even have to complete the ESA50 form if your letter to the DWP sets out how your condition(s) satisfy the rules and points, and there is enough medical evidence attached. Mind confirms this approach for people with mental health problems. See: www.mind.org.uk/media/309761/Mind_ESA_factsheet_2.pdf
If you are called in for the ESA exam, you can still ask to be exempted on the grounds that it would harm your health, especially if you have a mental or physical illness like anxiety or heart problems, Post-Traumatic Stress Disorder, or if you are a rape survivor, where stress could cause a health crisis.
We have co-produced a leaflet for people to give to their GP, psychiatrist or other professional to explain the rules and regulations for their support letter. This regulation means the person is already accepted as satisfying the test for ESA (limited capability for work) so doesn’t have to be seen. Substantial risk to health can be mental health, or physical health e.g. risk of heart attack from stress. Risk to mental health covers not only suicide risk, but also sudden deterioration in mental state: PTSD flashbacks, panic attacks, hearing voices, or similar.
Substantial risk regulations: https://wcainfo.net/issues/substantial-risk-lcw
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 … (b) the claimant suffers 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 the claimant were found not to have limited capability for
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.
In places where ESA is replaced by Universal Credit (UC), this exemption is in UC regulations 2013 Schedule 8 and also applies to the compulsory “Health and Work Conversation”.
Regulation 25 (2013) (4)
(4) In this regulation ―medical evidence means—
(a) evidence from a health care professional approved by the Secretary of State;
(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.
You can successfully challenge decisions which cause harm to your health – at any point. Such as: being found fit for work, put in the Work-Related Activity Group of ESA but unable to cope, called for work-focussed interviews, or needless and stressful reassessments after you have established your claim. Use medical evidence with reliable advocacy and back-up from health professionals. Write to the DWP and copy in your MP.
If you do decide to go to the exam
Never go alone. Take a friend or supporter with you to take notes and remind you about what you want to point out to the assessor. Note how long the exam takes – is it rushed? See further tips from Edinburgh Coalition Against Poverty: http://edinburghagainstpoverty.org.uk/node/5
Access. Insist on access, especially as many Atos testing centres are not accessible or are a long way from the nearest bus stop/tube. In October 2014 a man in Leeds won £2000 compensation from Atos after suing them for disability discrimination as their premises were not accessible.
Recording the exam. It can be useful to record your exam. One claimant successfully got his exam cancelled after he requested recording. People are pressing to make the right to have it recorded as usual practice: www.publicinterestlawyers.co.uk/news_details.php?id=321
Challenging being found “fit for work”
If you are found fit for work you can appeal (this stage is called “mandatory reconsideration”). But you can’t get any ESA during the mandatory reconsideration stage. Ask your MP, welfare rights or advice service to intervene urgently with the DWP. Send them a summary of your situation, copies of medical letters, any previous tribunal decision about your entitlement, etc. Or ask your CPN or other professional to take it up.
People are told to claim JSA meanwhile. You can claim JSA and have a “fit note” from your GP which takes you off sick from jobseeking. It is best to get this before your first interview at the Jobcentre. You may be able to get Housing Benefit from your Council based on “nil income” or other hardship payments, including a fund called Local Welfare Assistance. To find details of this use the following link or call your local council: www.cpag.org.uk/lwas
Read this advice page about your benefit options by the CAB here.
Get welfare rights advice before starting a Universal Credit claim, as it is less money for severely disabled people, and you won’t be allowed to go back to ESA even if you win your appeal — they would just pay you the ESA up to the date you started your UC claim. See the legal case of Patricia Reynolds.
Mothers claiming ESA. It is common for assessors to assume that mothers applying for ESA are fit for work because they are caring for children – for once, our caring work is recognised, but only to deny us benefit! Many mums have won back their ESA when they got support to challenge this. www.camdennewjournal.com/news/2012/sep/mother-who-was-signed-work-excruciating-pain-another-victim-controversial-disability-b
If your Housing Benefit has stopped because you are not getting either ESA or JSA, apply to your council benefits section for a nil-income rating to keep your HB going. You may also be able to find the form on your council’s website – type in ‘nil-income-form’ in the search box.
If you are put in the Work-Related Activity Group and think you should be in the Support Group, your WRAG-rate ESA will not be cut off while you appeal.
Complaining about the “healthcare professional” who assessed you. Care of a patient must be the first concern of any health professional. This still applies to anyone dealing with your claim even if they are working for the benefits system. If a nurse, doctor or physio working for Atos/Capita has breached their professional standards, for example, disregarding patient welfare or making rude or racist comments, you can report them to their professional body (which one it is depends on their qualifications) as well as complain to Atos/the DWP and your MP. The doctors’ professional organisation confirms standards they should meet. See: www.margaretmccartney.com/blog/?p=904
If at any time, your health or disability gets worse and you think you are entitled to a higher rate of ESA, write to the benefits office with medical evidence of your change in circumstances, asking them to look again at your claim.