The Employment and Support Allowance rules are changing (and you won't like it)

An important right is being removed for anyone who makes a new claim for Employment and Support Allowance on or after 30th March. But unless you're in the benefits advice business I bet you haven't heard about it.

This is how things are before 30th March

If you make a new claim for Employment and Support Allowance you normally get paid (nearly) straight away. Provided you are able to give them a 'sick note' (aka a medical certificate) the Department for Work and Pensions (DWP) 'treats' you as being unfit for work ('having limited capability for work') from the outset. Once the claim is up and running you are sent a questionnaire to complete, and then - normally - you attend a medical. After this the DWP makes a decision about whether you do, or do not, actually have limited capability for work.

If the DWP decides against you, you can simply make a new claim for Employment and Support Allowance. However, if a capability for work decision has gone against you in the last six months, you are not 'treated' as unfit for work from the outset. You get no money unless and until the assessment process (including the questionnaire, medical, and decision) has been completed in your favour. This is, I suppose, fair enough: otherwise people could keep just making repeat claims and the decisions on fitness for work would become meaningless. Importantly, you can still be treated as unfit for work even if less than 6 months have passed since the last decision if you can provide evidence that you have a new condition, or an existing condition has got significantly worse.

For any new claim for ESA made on 30th March or later...

Everything I've written above remains the same, except for one tiny detail:

You need to replace 'in the last six months' with 'ever'.

If the last decision made under the Employment and Support Allowance rules found you fit for work, and you decide to make a new claim for ESA, you will get no benefit unless and until the DWP assesses you as unfit for work. It doesn't matter if the last decision was made five months, seven months, or seven years ago: you will have to wait until after the questionnaire and after the medical before you even have the chance of receiving any benefit.

The only exceptions to this are these:

• As previously, if you can convince them that you have a new condition, or that an existing condition has got worse, they can treat you as unfit for work from the outset.
• If the last decision refused you because you failed to return a questionnaire or failed to attend a medical, you will be treated as unfit for work, and get paid benefit from the outset, provided it is more than 6 months since that decision.

Actually, there's another change I nearly forgot to mention: if a claimant is found fit for work again (having been found fit for work in the past), and appeals this new decision, they will not be entitled to any ESA until and unless the tribunal makes its decision in favour of the person appealing.

The government gives its reasons for the change as follows:

"The Government is committed to supporting those who cannot work because of a health condition or disability. We are making this policy change because we believe that the existing rules encourage claimants to claim ESA, rather than claim JSA and get the help and support they need in order to return to work." [from the report on the proposed changes by the Social Security Advisory Committee, page 2]

I will resist the temptation to comment on this point of view.

Why is this bad?

If  Employment and Support Allowance decision making  worked properly, there shouldn't be a problem. But suppose it doesn't (if you can imagine such a thing)? Imagine a claimant who should meet the rules for getting ESA but is, instead, refused, perhaps as the result of a poorly conducted medical exam. For some clients this mistake will be corrected by a social security tribunal: some claimants will not take their cases to tribunal: others will be refused wrongly at the tribunal itself.

In the government's responses to the Social Security Advisory Committee [page 5], it is noted that of those claimants who submitted a new claim for ESA in 2013 following a negative previous decision, and whose condition was broadly unchanged, 65% were either found fit for work, or withdrew their claims prior to assessment. I suggest turning that statistic on its head: 35% of claimants who had just the same condition as before were found unfit for work, when previously the DWP had made the opposite decision.

For these claimants that negative decision, and its consequences, may remain with them indefinitely. Until this rule change, claimants in this position have been able to console themselves that, after a time on other benefits like Jobseeker's Allowance, they will be able to try again for Employment and Support Allowance. Once the rules have changed, although they will still have this right in principle, in practice they will struggle to exercise it, as they will not be able to receive any benefit payments while the assessment process is going on. This will mean not getting any money for around 13 weeks.

Even if the original decision was correct, the change is likely to result in injustice. Consider claimants who have life-long, intractable, health problems or disabilities: a claimant may experience worsening, or a flare up, of a long-standing condition, but this may not amount to a significant change in the eyes of the DWP. GPs will have to be especially careful in how they complete 'sick notes' - if they don't make it clear that a person is experiencing a substantial worsening of symptoms, and simply write, say 'osteo-arthritis' on the medical certificate, that person is going get no benefit during the assessment process.

And what about claimants whose limitations result from a learning difficulty? Unless they develop additional problems, one snapshot decision about their abilities is likely to come back to haunt them whenever they try to reclaim ESA.

All these considerations make the stakes very high for claimants who are being assessed under the capability for work rules. Completing the ESA50 questionnaire and going to the medical examination are already stressful experiences for claimants: knowing that this is the only chance you're likely to get is only going to add to this. And imagine going to a social security tribunal in the knowledge that the outcome of the hearing is likely to determine the course of your life until you reach retirement age.

What can people do about this?

If you are thinking about making a new claim for Employment and Support Allowance, having previously been found 'not to have a limited capability for work', or know someone else who is
in this position, you need to ask yourself the following questions?

• Has your condition worsened significantly since the last decision was made? 
• Or have you got a new medical condition that you didn't have then?

If you can't answer 'yes' to either of these, you need to be realistic: you will not receive any Employment and Support Allowance until the assessment process is complete, and then only if they agree that you meet the rules.

If you can answer 'yes' to either, you now probably need to have a meeting with your GP. You will need to emphasise to your doctor that there must be reference to a worsening, or to a new condition. It will not be sufficient for the sick note to name your long-term health problem or disability.

I have seen an interesting argument on the rightsnet website, which some people might find useful. The new regulation which brings in the changes (The Employment and Support Allowance (Repeat Assessment and Pending Appeal Awards)(Amendment) Regulations 2015 (No. 437)) makes it clear that the new rule kicks in only if the last decision made found that the claimant did not have limited capability for work. However, remember that for those who appeal (at least the first time round) the law allows them to get Employment and Support Allowance payments while the appeal is ongoing: they are 'treated' as unfit for work. If the appeal finally fails the DWP has to end this temporary entitlement: they make a decision not to treat the person as unfit for work. This means that in those circumstances, the last decision does not fit the requirement specified in the new rules: deciding that a person is not to be treated as unfit for work is not the same as deciding whether they are actually not unfit for work. However the DWP are likely to move quickly to close this loophole.

Note: the DWP's responses to the Social Security Advisory Committee appear to suggest that a claimant would be able to carry on receiving Jobseeker's Allowance after making a claim for ESA and while waiting for a decision to be made on their capability for work. This makes no sense to me. However if more information appears about this I will pass it on.