The Employment and Support Allowance (Amendment) Regulations 2012

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Employment and Support Allowance Regulations 2008 (S.I. 2008/794) (“the ESA Regulations”). They amend the provisions of the ESA Regulations which deal with the determination of limited capability for work, or limited capability for work-related activity; the provisions which allow a person to be treated as having limited capability for work, or limited capability for work-related activity; and the descriptors applied to determine capability for work, or for work-related activity.

Regulation 2 deals with the application of the Regulations. The Regulations apply to—

• claims for ESA made on or after the date that they come into force (“the commencement date”).

• persons who claim ESA before the commencement date but in relation to whom a determination as to limited capability for work or work-related activity is not made until after that date;

• persons in respect of whom a fresh determination of limited capability for work or work-related activity is made after the commencement date; and

• persons who have been notified as part of the incapacity benefit re-assessment process in relation to whom a determination as to limited capability for work or work-related activity is not made until after the commencement date.

Regulation 2 also makes an exception from the general rules about application in relation to cases where a person is issued with a questionnaire relating to the Schedules 2 (limited capability for work) and 3 (limited capability for work-related activity) to the ESA Regulations as those Schedules had effect before the amendments made by these Regulations. In such cases, for the purposes of any determination as to that person’s capability for work or for work-related activity, the provisions in Schedules 2 and 3 as they had effect immediately before that date are to continue to apply. This is subject to a six month limit after which all assessments will be made under the amended provisions.

Regulation 3 makes the following amendments to Part 5 (Assessment of Limited Capability for Work) of the ESA Regulations-

• Paragraph (2) amends regulation 19 so that the assessment of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2 will be on the basis that the claimant is wearing any prosthesis with which they are fitted, or that claimants are wearing or using any aid or appliance which they can normally, or could reasonably be expected to, wear or use.

• Paragraph (2) also amends regulation 19 so that, when being considered in relation to a descriptor under Part 1 of Schedule 2 (physical disabilities), any limitation on a claimant’s capability for work must stem from a specific bodily disease or disablement or as a direct result of treatment for that disease or disablement by a registered medical practitioner. Similar amendments are made in relation to Part 2 of Schedule 2 (mental, cognitive and intellectual functional ability).

• Paragraph (3) amends regulation 20 to widen the group of claimants receiving treatment for cancer who may be treated as having limited capability for work so that all types of chemotherapy or radiotherapy are included.

• Paragraph (4) substitutes regulation 25 so as to change the circumstances in which claimants who undergo treatment as a patient in a hospital or similar institution may be treated as having limited capability for work.

• Paragraph (5) amends regulation 26 so that claimants receiving radiotherapy are no longer treated under that regulation as having limited capability for work.

• Paragraph (6) amends regulation 29 (exceptional circumstances where a person may be treated as having limited capability for work) so that the definition of “substantial risk” in regulation 29(2)(b) excludes circumstances where the risk to health could be significantly reduced by reasonable adjustments being made in the workplace or by the claimant taking prescribed medication.

Regulation 4 makes similar amendments to Part 6 (Assessment of Limited Capability for Work-Related Activity) of the ESA Regulations.

Regulation 5 amends a number of the descriptors used in Schedule 2 to the ESA Regulations to determine whether or not a claimant has limited capability for work.

Regulation 6 amends a number of the descriptors used in Schedule 3 to the ESA Regulations to determine whether or not a claimant has limited capability for work-related activity.

A full impact assessment has not been produced for this instrument as it has no impact on the private sector and civil society organisations.