31 March 2008
Benefits and Work can exclusively reveal that the DWP’s flagship Employment and Support Allowance regulations are riddled with errors.
It appears that laws which will affect the lives of millions of sick and disabled claimants were not even properly proofread before being enacted.
The Employment and Support Allowance Regulations 2008 were laid before the House on 27 March and cannot be changed. Instead new amending regulations will now have to be enacted to correct the mistakes.
Benefits and Work has scrutinised schedule 2, the assessment of whether a claimant has limited capability for work. This is the medical test which decides whether a claimant is eligible for the work related activity group under ESA. 90% of successful claimants will belong to this group. We have identified a number of very basic errors in the legislation.
In the mental health test exactly the same descriptor is repeated twice, scoring 15 points the first time and 9 points the second time. The descriptor is in the ‘Initiating and sustaining personal action’ activity and reads as follows:
Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain personal action without requiring verbal prompting given by another person in the claimant’s presence for the majority of the time.
This descriptor is listed as 16 (b) scoring 15 points and 16(c) scoring 9 points. Descriptor 16(b) should in fact read:
Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain personal action without requiring daily verbal prompting given by another person in the claimant’s presence.
Activity 12 Learning or comprehension in the completion of tasks also appears to contain a cut-and-paste error. Descriptor 12(e) reads:
Needs verbal instructions as to how to carry out a simple task before the claimant is able to learn or understand how to complete the task successfully, but would be unable, within a period of less than one week, to successfully complete the task the following day without receiving a verbal prompt from another person.
In this case the words ‘the following day’ appear to have been carried over from the descriptor before, rendering the clause virtually meaningless. In the draft regs (d) referred to a claimant who would be unable to complete the task the next day after receiving instructions and (e) to a claimant who would be unable to complete the task within one week of receiving instructions.
Regulation 10(c) (iv), relating to continence reads ‘at last once a month’ instead of at ‘least’ once a month.
There are many other curious aspects to the drafting. For example, in some places the words ‘given by another person’ have been changed to ‘given by someone else’. In others, however, the term has not been changed. This suggests either that there is a legal difference between help received from another person and help received from someone else, or that the draughtsperson was in such a rush that they didn’t have time to find and replace every occurrence of ‘another person’.
Copies of the regulations have been distributed to interested parties on request. On getting ours we checked back with the DWP to ensure that we had indeed been sent the same document that was laid before the house.
We received the following response:
“As you will see, after Reg 169 the minister's name is entered. This indicates that they are the signed version and no further amendments are allowed after his name is entered. OPSI will formally publish the regulations in the next few days on their website.”
We then asked the DWP to comment on the errors listed above. As yet we have received no response.
It seems astonishing that such a vital piece of legislation should have been drafted in such a careless manner. But, given the utter contempt in which sick and disabled claimants now seem to be held by politicians of both major parties, perhaps it is not surprising at all.