ESA - discomfort or pain

Regarding whether or not descriptors are deemed to apply to a claimant, does anyone have experience of the DWP asserting that "it must be remembered that activities do not have to be performed without any discomfort or pain"?

I'm mindful that Benefits & Work guidance is that if an activity causes severe discomfort, or causes pain, then this may count as being unable to do it.

Perhaps it is the degree of discomfort / pain that 'counts'? And the DWP could be challenged on this? if

25% ME Group wrote: Regarding whether or not descriptors are deemed to apply to a claimant, does anyone have experience of the DWP asserting that "it must be remembered that activities do not have to be performed without any discomfort or pain"?

I'm mindful that Benefits & Work guidance is that if an activity causes severe discomfort, or causes pain, then this may count as being unable to do it.

Perhaps it is the degree of discomfort / pain that 'counts'? And the DWP could be challenged on this? if

Hi 25%,

As you may know, to be classed as being able to carry out any of the WCA Activities, the claimant must be able to do so, Repeatedly, Reliably and Safely, for the Majority of the time.

Unfortunately, there is no legal definition of "Severe" pain or discomfort.

Have a look at these extracts from The DM Guide :

"42175

The test of whether a claimant cannot perform an activity is not whether or not they are physically incapable of performing it. Matters such as pain, discomfort and repeatability are taken into account. A claimant is not capable of carrying out an activity if they can only do so with severe pain or, if having done it once, they are unable to repeat it for hours or days. The extent of a claimant’s ability to repeat the activity in a single stretch and of the intervals at which the claimant would be able to repeat the performance should be identified. A decision can then be made on whether the claimant can perform the relevant descriptor with reasonable regularity.

42176

There is no specific requirement that a claimant must be able to perform the activity in question with “reasonable regularity”. Even so regard should be had to some such concept. The real issue is whether, taking an overall view of the claimant’s limited capability to perform the activity in question, they should reasonably be considered to be incapable of performing it. The fact that they might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, they could not do so."

From :

DM Guide LCW & LCWRA

&

DM Guide ESA Amendments from 28/01/13

This is also mentioned in advice given to assessing ATOS HCP's in The WCA Handbook, 2nd link from bottom on this page :

ESA Claims Guides

bro58

bro58 wrote:

25% ME Group wrote: Regarding whether or not descriptors are deemed to apply to a claimant, does anyone have experience of the DWP asserting that "it must be remembered that activities do not have to be performed without any discomfort or pain"?

I'm mindful that Benefits & Work guidance is that if an activity causes severe discomfort, or causes pain, then this may count as being unable to do it.

Perhaps it is the degree of discomfort / pain that 'counts'? And the DWP could be challenged on this? if

Hi 25%,

As you may know, to be classed as being able to carry out any of the WCA Activities, the claimant must be able to do so, Repeatedly, Reliably and Safely, for the Majority of the time.

Unfortunately, there is no legal definition of "Severe" pain or discomfort.

Have a look at these extracts from The DM Guide :

"42175

The test of whether a claimant cannot perform an activity is not whether or not they are physically incapable of performing it. Matters such as pain, discomfort and repeatability are taken into account. A claimant is not capable of carrying out an activity if they can only do so with severe pain or, if having done it once, they are unable to repeat it for hours or days. The extent of a claimant’s ability to repeat the activity in a single stretch and of the intervals at which the claimant would be able to repeat the performance should be identified. A decision can then be made on whether the claimant can perform the relevant descriptor with reasonable regularity.

42176

There is no specific requirement that a claimant must be able to perform the activity in question with “reasonable regularity”. Even so regard should be had to some such concept. The real issue is whether, taking an overall view of the claimant’s limited capability to perform the activity in question, they should reasonably be considered to be incapable of performing it. The fact that they might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, they could not do so."

From :

DM Guide LCW & LCWRA

&

DM Guide ESA Amendments from 28/01/13

This is also mentioned in advice given to assessing ATOS HCP's in The WCA Handbook, 2nd link from bottom on this page :

ESA Claims Guides

bro58

This may also be pertinent :

ESA Reg 34. (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 occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

From :

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

bro58

Gordon wrote:

bro58 wrote: This may also be pertinent :

ESA Reg 34. (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 occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

From :

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

bro58

Just to be clear 34(2) only applies to the Support Group Descriptors.

Gordon

Cheers for that G.

bro58