Although there are no questions about it in the ESA50 questionnaire, a recent report has revealed that regulation 35 (2) (b) is now the most common reason for claimants getting into the support group of employment and support allowance (ESA). Not only that, but two thirds do so without having to endure a face-to-face medical.
Regulation 35 (2 ) (b), in a nutshell, is the regulation that allows entry to the support group for people who aren’t covered by the support group descriptors, but where there would be a substantial risk to their health or someone else’s health if they were found to be capable of work-related activities.
According to the fifth annual review of the work capability assessment, the proportion of claimants being placed in the support group is up from 10% to 47% and the most common justification for support group entry is now regulation 35 (2) (b): that there would be a risk of harm to the claimant or someone else if they were not placed in the support group.
In 2013 a total of 38% of all support group awards were on the basis of regulation 35, up from just 17% in 2009.
The report goes on to point out that two thirds of the claimants who are placed in the support group because of regulation 35 are not subject to a face-to-face assessment, the recommendation is made on the papers only.
The message is clear.
Claimants need to be fully aware of regulation 35 (2) (b), covered in our guides under exceptional circumstances rules.
And if you think it might apply to you then you need to give detailed and accurate evidence on your claim form, even though you aren’t asked to, and obtain supporting evidence if possible. Doing so may not only allow you to get into the support group, but do so without the stress of a face-to-face assessment.