ESA and 'core health' - sharing perhaps?

CTTS

I am sorry that my post was not clearer.

I was pointing out that entry to the Support Group and the WRAG is achieved by a claimant showing that they meet the criteria for the group, with the exception of cancer, and even then it is only under limited circumstances, a claimants condition, however severe and debilitating, will not in itself qualify for the them for either group.

One of the biggest problems claimants have when completing the ESA50 is switching their focus from describing how their conditions(s) affect them in a general way, to how they affect them with specific reference to the ESA Descriptors.

It is important to understand that the Descriptors are a legal definition of the requirements that a claimant needs to meet, there is no wriggle room here, failing to define your limitations in the context of the descriptors, is unlikely to result in a successful claim. To take your point of "core" health issues the simple fact is that you will not score points for these, as these are not defined in the legislation.

It addition, whilst advice from other members suffering the same problems can be of assistance, no two people will experience the same limitations in the same way, so any answers you make on the ESA50 must be personal to you, the more generalised the answer, the less likely it is to be effective.

Gordon

CTTS

We do have members regularly winning their claims on either Reg. 29 or 35, so it is certainly possible.

The downside is that Regulation 29 is only considered when the claimant has failed to score 15 points across all of the WRAG Descriptors, and Regulation 35 when they have failed to meet any of the Support Group Descriptors, so this is the most difficult way and consequently the least likely way of qualifying for ESA, this is why we always direct members back to the Descriptors to see if any can be made to apply.

For Reg. 29 you need to show that 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 work.

So the first thing is that there has to be an identifiable disease or bodily or mental disablement, if you do not have a diagnosis then you are unlikely to qualify.

The identified disease or bodily or mental disablement must be the under lying reason of the restriction, so as a silly example you cannot say I have problems walking because of a broken arm.

The risk must be substantial, there is no specific definition of what substantial should be taken as meaning, but I think you should assume that it is more than on average, e.g. more than 50%.

The danger can be to either the physical or mental health of the claimant themselves or another person that they might come into contact with.

Not having LCW would mean that you were Fit for Work.

The January changes introduce two further restrictions;

First if an employer can make reasonable adjustments to the workplace then the Decision Maker can override the risk, again as a silly example; if you were wheelchair bound and it was reasonable to assume that you would be able to work on the ground floor (health and safety).

Secondly, the DM can assume the benefits the claimant might experience from a prescribed treatment or medicine. This one is a lot less clear, but the primary phrase is "prescribed", so they cannot consider something that they think might be of help.

In both cases, it is possible to argue that anything the DM suggests is not reasonable.

Regulation 35 is worded similarly

35.2 A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) 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.

In this case the requirement is for Work Related Activity, there is no clear definition of WRA, but it includes Work Focussed Interviews, training courses and volunteering, you will need to give examples and for each one explain why this would be a problem.

Gordon

canttrusthesystem wrote: Gordon, I did not know some of that - particularly the bit in your second paragraph, beginning 'The downside..." so am going to print that off and keep it very safely, just in case. Thanks for your expertize.
It's appreciated.

regards.

It is one of the frustrations of the assessment process.

Basically the DM starts at Descriptor 1 and work their way forward from they, once they have a total of 15 points or more, they do not need to continue as the claimant has reached the requirement for the WRAG.

They then move to the Support Group Descriptors and again start at the first one, as soon as the claimant has met one, they do not need to continue as the claimant qualifies for the Support Group.

The downside is that the claimant may well of scored far more than 15 points and met the requirements for Reg. 29, but they will never know it.

In a similar vein, they meet multiple SG Descriptors and Reg.35 but these will not be scored.

So the order is;

- WRAG Descriptors 1-17
- Regulation 29
- SG Descriptors 1-16
- Regulation 35

You do not need to meet Regulation 29 to still qualify under Regulation 35.

Gordon