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Incapacity test changed - for the better!

14 November 2002

A safety net to protect people with serious health problems from being found capable of work has been restored 6 years after the government removed it by deception. People with a physical or mental health condition which means that there is a substantial risk to their health, or someone else's, if they are found fit for work should no longer be found capable of work even if they fail to score enough points under the personal capability assessment.

Committee misled
Regulation 27(b) was removed from the statute book in 1996. At the time, the Secretary of State misled the Social Security Advisory Committee by informing it that the change was merely a tidying up of the law and wouldn't affect claimants. This was completely untrue, but meant the committee had no power to investigate the proposed change. However, years of determined legal action on behalf of a claimant by the Child Poverty Action Group resulted in the Court of Appeal reinstating the regulation as of Friday 8th November 2002.

Future uncertain
After the judgement, the Department for Work and Pensions (DWP) asked the court for leave to appeal to the House of Lords, but were refused. The DWP may now apply directly to the House of Lords for leave or the government may try to remove the regulation yet again by changing the law. The situation, therefore, may remain uncertain for some time to come.

Many conditions covered
In the meantime, however, the regulation may apply to many claimants who are able to manage their condition for most of the time as long as they can carefully control what they do and when they do it. The kinds of individuals and conditions that may be covered include:

  • physical conditions such as ME/CFS, fibromyalgia, lupus, heart problems, high blood pressure, hepatitis and others, particularly where anxiety and over exertion can cause serious ill health;
  • mental health conditions such as agoraphobia which mean that signing-on and jobseeking would be highly distressing or simply impossible; people who experience extreme anxiety may also be covered, as may people who self-harm or may hurt others if they are forced into situations they find threatening or overwhelming;
  • people who are in the early stages of recovery from addiction to alcohol or other drugs and who may be at risk of returning to abusing substances if they are pushed too quickly into jobseeking and work may also be covered.

Get advice
If you are currently obliged to sign on as available for work and you think this regulation may apply, get advice from an advice centre before taking any action. (Print off a copy of this article and take it with you). You will need to discuss the possible risks to your current benefits as well as the best way forward if you wish to be found incapable of work. If you are just about to be subject to the personal capability assessment, then the decision maker should consider whether regulation 27(b) applies in your case. Supporting evidence is likely to be crucial to any claim under this regulation.