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'Harsh' new test for severe incapacity

23 October 2006
Very few people will meet the 'harsh, complex and unfair' criteria which will distinguish severely disabled claimants from those considered to be capable of work-related activities under the new Employment and Support Allowance (ESA).

In addition, a leading disability consultant has warned that the new rules may lead to disabled suing both Pathways to Work providers and employers.

Which group?
Details of the Limited Capability for Work-Related Activity (LCWRA) test were published last week as part of the Welfare Reform Bill. Claimants who pass the test will be put in the confusingly named 'Support' group under ESA. They will, in fact, receive no support but they will receive more money than those in Work Related Activity group and will not be obliged to take part in work-related activities.

In order to decide which group a claimant belongs to, the DWP have devised yet another test, based in part on the new Personal Capability Assessment currently being piloted. Claimants may have to complete a questionnaire and attend a medical in order to be assessed for the Support group. They are also likely to be obliged to attend further regular assessments to ensure they still meet the criteria.

Activities
The new LCWRA test looks at 11 activities. However, it is not based on a points system. Instead, inability to carry out any one activity will put a claimant in the Support group. Unfortunately, this means that claimants with multiple severe impairments will not qualify if those impairments are not on the list.

The 11 activities are:

Walking or moving on level ground
Rising from sitting and transferring from one seated position to another
Lifting and carrying by the use of the upper body and arms
Reaching
Manual dexterity
Continence
Maintaining personal hygiene
Eating and drinking
Comprehension and application of information and instructions
Personal action
Communication

Reaching
Some activities have only one descriptor. For example, in regard to 'Reaching' the only descriptor is 'Cannot raise either arm as if to put something in the top pocket of a coat or jacket.' If this applies, the claimant will qualify for the Support group, but any other problems that a claimant has with reaching will not be taken into account.

Lifting and carrying
Similarly, for Lifting and carrying the only activity that is relevant is the ability to move a 0.5 litre carton of liquid 60 centimetres with either hand.

Manual dexterity
'Manual dexterity' has two descriptors. Someone who cannot 'turn a "star-headed" sink tap with either hand; or pick up a £1 coin or equivalent with either hand' will qualify for the Support group.

Walking
Some activities are more complex. For example, in relation to 'Walking or moving on level ground', a claimant needs to show that they: 'Cannot -

(a) walk (with a walking stick or other aid if such aid is normally used);
(b) move (with the aid of crutches if crutches are normally used); or
(c) manually propel his wheelchair,
more than 30 metres without repeatedly stopping, experiencing breathlessness or severe discomfort.'

Eating and drinking
Some activities have further sub-divisions. 'Eating and drinking', for example, is divided into '(a) Conveying food or drink to his mouth' and (b) 'Chewing and swallowing food or drink'. These two sub-activities are then each divided into four descriptors, one of each of which is divided into two sub-descriptors relating to mental health, such as:

(d) owing to a severe disorder of mood or behaviour, fails to -
(i) chew or swallow food or drink; or
(ii) chew or swallow food or drink without regular prompting given by another person in the physical presence of the claimant.

Physical health
For physical health the design of the test means that an astonishingly wide range of activities are ignored. In fact, as far as we are able to judge, someone who has ALL of the following physical difficulties still would not qualify for the support group:

Unable to see
Unable to hear
Unable to walk up and down one stair
Unable to stand
Unable to sit
Unable to bend or kneel
Unable to reach to wash hair, face, legs, feet or back
Unable to dress
Incontinent of bowels four times a month
Incontinent of bladder four times a month
Has epileptic or similar seizures every day

On the other hand, someone who can't pick up a £1 coin with either hand will qualify for the support group.

Mental health
Where mental health is concerned, it will be remarkably difficult to qualify. Claimants will need to show that their impairment is so severe that, without regular prompting or supervision from another person who is in their presence, they cannot manage such things as:

Understanding simple instructions
Carrying out simple instructions
Learning simple tasks
Conveying food to their mouth
Chewing or swallowing
Washing their own torso (excluding their back)

The case studies provided by the DWP include Stephen, who has worsening schizophrenia with unpredictable onset of symptoms and inadequate control by medication. Stephen's condition isn't severe enough to qualify for the Support group and so he has to attend work-focused interviews and draw up an action plan. With the help of a personal adviser Stephen 'concentrates on work opportunities that offer the flexibility he needs to be able to work only on days where he experiences no symptoms'. As a result, he gets a full-time job in a college library.

Disability living allowance
At present, claimants who are in receipt of the higher rate of the care component of DLA are exempt from the personal capability assessment. There are no such exemptions under ESA and a claimant could be in receipt of both the higher rate of the care component and the higher rate of the mobility component of DLA and still not meet the qualifying criteria for the Support group.

Automatic membership
Some people will, however, be treated as having limited capability for work related activity and put into the Support group without needing to show that any of the descriptors apply to them. This includes:

People who are terminally ill and whose death can reasonably be expected within 6 months.
People having certain types of chemotherapy.
Pregnant women where she or her unborn baby might be put at risk if they did any work related activity.

Substantial risk
There is one other circumstance under which a claimant can be treated as having limited capability for work-related activity. This is where there would be a substantial risk to the mental or physical health of any person if the claimant was found to be capable of work-related activity.

This is, in fact, an extremely difficult test to pass. Work related activities could be absolutely anything that the claimant's Personal Adviser comes up with: staying at home and improving their typing speed or researching home-based employment opportunities, for example. So unless a claimant can show that any contact with a stranger such as personal adviser, or the mere thought of work-related activity, would pose a risk to them or someone else, then it's going to be very hard to show that this rule applies.

Legal action
Holiday Whitehead, a barrister and disability specialist who provides advice and consultancy to disability groups and employers roundly condemns the proposals:

"The new test is harsh, complex and unfair to everyone involved.

"It's not fair on claimants, as many people with very severe impairments will not qualify for the support group. There's no doubt that some people's conditions will be made worse by enforced interviews and activities.

"It's not fair on agencies who will be required to support people with extremely severe impairments into work but will not be given adequate resources to do so. They may face claims under the Disability Discrimination Act, and even personal injury claims, if they fail to make reasonable adjustments in their procedures for people with really very complex mental and physical impairments. In some cases adjustments will have to go far beyond mere home visits.

"It's also not fair on employers who may have to deal with increasing numbers of applications from severely disabled people. This may include claimants who feel pressured into applying for jobs which even reasonable adjustments under the DDA would not make viable. If applicants, very understandably, don't disclose the full extent of their impairments at the interview stage then the scene is set for confusion, litigation at employment tribunals and misery all round.

Silence
The government's claim that severely disabled claimants would be protected from the new work-focused regime is clearly untrue. This means that private sector staff ,who are likely to have no experience whatsoever of claimants with very severe physical and mental health conditions, will soon be drawing up compulsory action plans to try to get those same claimants into paid work. If they fail to do so, their own jobs and their employers profits will be at risk.

You might expect then that the LCWRA test would be the cause of enormous controversy. In reality, as yet it has not even been reported on by the agencies most likely to be able to influence MPs.

But, given that Citizens Advice have applied to be subcontractors under this iniquitous new system and CPAG, Citizens Advice and Disability Alliance all sit on the Committee which helped draw up the new PCA, on which this test is based, perhaps the resounding silence is not so remarkable.