The Employment and Support Allowance Regulations 2013

PART 5 E+W+S Limited Capability for Work-related Activity

Determination of limited capability for work-related activity E+W+S

30.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant's physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant has limited capability for work-related activity and the limitation must be such that it is not reasonable to require that claimant to undertake such activity.

(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.

(3) In determining whether a descriptor applies to a claimant, the claimant is to be assessed as if—

(a) the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.

(4) Where a determination has been made about whether a claimant—

(a) has limited capability for work-related activity;

(b) is to be treated as having limited capability for work-related activity; or

(c) is to be treated as not having limited capability for work-related activity,

the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity.

(5) This paragraph applies where—

(a) the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant's physical or mental condition;

(b) the Secretary of State wishes to determine whether the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity, was made in ignorance of, or was based on a mistake as to, some material fact; or

(c) at least three months have passed since the date of the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity.

(6) In assessing the extent of a claimant's capability to perform any activity listed in Schedule 3, it is a condition that the claimant's incapability to perform the activity arises—

(a) in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)—

(i) from a specific bodily disease or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or

(b) in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16(d)—

(i) from a specific mental illness or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.

Certain claimants to be treated as having, or not having, limited capability for work-related activity E+W+S

31.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;

(b) the claimant is—

(i) receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii) likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii) recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity;

(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity; or

(d) the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(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 reason 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.

(3) A claimant is to be treated as not having limited capability for work-related activity where—

(a) it has previously been determined, within the six months preceding the date of claim for employment and support allowance, on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013, that the claimant does not have limited capability for work and work-related activity; and

(b) it appears to the Secretary of State that—

(i) the determination was not based on ignorance of, or mistake as to, a material fact; and

(ii) there has been no relevant change of circumstances in relation to the claimant's physical or mental condition.

Relevant linked cases – limited capability for work-related activity E+W+S

32.  A claimant is to be treated as having limited capability for work-related activity where—

(a) they fall within case 1, as defined in regulation 7(3)(a); and

(b) in respect of the earlier period of limited capability for work referred to in regulation 7(3)(a)(i), they had been entitled to a support component under section 2(2) of the Act.

Information required for determining capability for work-related activity E+W+S

33.—(1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is—

(a) any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and

(b) any such additional information as may be requested.

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work-related activity without the information specified in paragraph (1)(a), that information must not be required for the purposes of making the determination.

Failure to provide information in relation to work-related activity E+W+S

34.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 33(1)(a), the claimant is, subject to paragraph (2), to be treated as not having limited capability for work-related activity.

(2) Paragraph (1) does not apply unless—

(a) the claimant was sent a further request at least three weeks after the date of the first request; and

(b) at least one week has passed since the further request was sent.

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activity E+W+S

35.—(1) Where it falls to be determined whether a claimant has limited capability for work-related activity, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination [F1 in person, by telephone or by video].

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned in paragraph (1), the claimant is to be treated as not having limited capability for work-related activity.

(3) Paragraph (2) does not apply unless—

(a) written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b) the claimant agreed to accept a shorter period of notice whether given in writing or otherwise.

Textual Amendments

F1 Words in reg. 35(1) inserted (25.3.2021) by The Social Security (Claims and Payments, Employment and Support Allowance, Personal Independence Payment and Universal Credit) (Telephone and Video Assessment) (Amendment) Regulations 2021 (S.I. 2021/230), regs. 1(1), 6(3)

Matters to be taken into account in determining good cause in relation to regulations 34 or 35 E+W+S

36.  The matters to be taken into account in determining whether a claimant has good cause under regulation 34 (failure to provide information in relation to work-related activity) or 35 (failure to attend a medical examination to determine limited capability for work-related activity) include—

(a) whether the claimant was outside Great Britain at the relevant time;

(b) the claimant's state of health at the relevant time; and

(c) the nature of any disability the claimant has.