ESA & U.C combo - Special Circumstances/ Exemption

Hi RM

You say that you are in the support group of ESA, are you getting CB ESA? I could not find anything in the hand books I have but I did find some information on line which you may find useful www.beingtheboss.co.uk/advice-for-profes...-facing-assessments/

In places where ESA is replaced by Universal Credit (UC), this exemption is in UC regulations 2013 Schedule 8 and also applies to the compulsory “Health and Work Conversation”
ESA. Assessments are carried out by multinational company Maximus (under the name Health Assessment Advisory Service) on behalf of the DWP.

In filling in the ESA50 form, attach your support letter from your doctor/consultant/psychiatrist to the form and make sure it is listed on the form.

If you can’t cope with the form, or if an interview date has already been sent out, fax it headed FME (Further Medical Evidence) to HAAS London central fax: 0208 795 8647. This is the procedure recommended by HAAS call centre staff. It should have the claimant’s name and NI No. at the top of each numbered page.

If you have an appointment date and HAAS are refusing to postpone this, or are still requiring you to attend despite your request for exemption, email the same correspondence with a cover note raising your complaint to the Centre for Health and Disability Assessments (Maximus head office). Ask them to put the appointment on hold pending the decision on exemption: email: This email address is being protected from spambots. You need JavaScript enabled to view it., they usually reply within two days. Always cc your MP and ask them to follow it up on your behalf.

Under “Exceptional Circumstances”, you can say that there would be substantial risk to your health if you were put under work conditions for benefit, so you should be exempted from these and the exam. This regulation means the person is already accepted as satisfying the test for ESA (limited capability for work) so doesn’t have to be seen. Substantial risk to health can be mental health, or physical health e.g. risk of heart attack from stress. Risk to mental health covers not only suicide risk, but also sudden deterioration in mental state: PTSD flashbacks, panic attacks, hearing voices, or similar.

Substantial risk regulations: wcainfo.net/issues/substantial-risk-lcw

A claimant can be treated as having limited capability for work (LCW) after failing to score sufficient points under the WCA if, by reason of their health condition or disability, there would be a substantial risk to the health of the claimant or others were they found not to have LCW. Substantial risk that can be avoided through reasonable adjustments to the claimant’s workplace or by taking prescribed medication or treatment will not count.

Legislation

Regulations provide that a claimant can be treated as having LCW where there is a substantial risk to the health of any person if the claimant were found not to have LCW.

For ESA, regulation 29 of the Employment and Support Allowance Regulations 2008 and regulation 25 of the Employment and Support Allowance Regulations 2013 provide -

A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

Subject to paragraph (3) this paragraph applies if ... (b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by - (a) reasonable adjustments being made in the claimant’s workplace; or (b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

For universal credit, paragraph 4 of schedule 8 to the Universal Credit Regulations 2013 provides that a claimant is to be treated as having limited capability for work if the circumstances below apply -

The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work.

This paragraph does not apply where the risk could be reduced by a significant amount by - (a) reasonable adjustments being made in the claimant's workplace; or (b) the claimant taking medication to manage their condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

The medical evidence sent on paper has to be “robust” to enable the test for benefit to be met, and should include comments about how functioning is affected.

Gary