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Employment and support allowance overview

Disability Rights UK Factsheet F31

This factsheet is free for you to download. We are committed to providing free information on our website but we are a small charity and if you are able to make a donation to help cover costs of research and updating it would make a big difference.

1. What is employment and support allowance?

You can get employment and support allowance (ESA) if your ability to work is limited by ill health or disability. ESA replaced both incapacity benefit (IB) and income support (IS) paid on the grounds of incapacity for new claims from 27 October 2008.

2. What are the rules for ESA?

If you are claiming ESA you must:

  • be at least 16 years old
  • be under pensionable age (ESA stops when you reach retirement age)
  • undergo a 13 week assessment phase
  • satisfy at least one of the following:
  1. (a) pass a contributory test for contributory ESA or (b) be under age 20 (or 25 in certain cases) - This does not apply to new claims - see  8 and 14(2) below.
  2. pass a low income test for income-related ESA

3. Residence and Presence Tests for ESA

To claim income-related ESA you must

  • be present in the UK
  • be habitually resident and
  • have the right to reside

To claim contributory ESA you must

  • be present in the UK

To claim contributory ESA in youth you must

  • be present in the UK
  • have past presence in the UK
  • be ordinarily resident in the UK

Present means physically present in the UK. There are specific rules that may allow you to be treated as present during a temporary absence. 

The term "right to reside" is not defined but is dependent on your immigration status and nationality. You might have a right to reside under United Kingdom rules, European Union law or because you are a British citizen.

The habitual residence test is a test to see if you normally live in the United Kingdom, the Channel Islands, the Republic of Ireland or the Isle of Man. The test will be applied if you have been living abroad.

There is no legal definition of 'habitual residence'. Relevant factors are where you normally live, where you expect to live in future, your reasons for coming to this country, the length of time spent abroad before you came here, and any ties you still have with the country where you have come from.

For more information see the Disability Rights Handbook.

4. EU Co-ordination rules and Reciprocal Agreements

Periods of residence, insurance and employment in another European Economic Area country may help some claimants to get certain benefits.  Reciprocal agreements between the UK and some other countries can include similar rules. See the Disability Rights Handbook for details.

5. The assessment phase?

When you make a claim for ESA you have to have an initial assessment. This assessment usually takes place over 13 weeks, but can be longer. During the assessment phase you will undergo a work capability assessment and a work focused interview.

6. The work capability assessment

The ESA work capability assessment (WCA) is carried out by a health care professional working on behalf of the Department for Work and Pensions. It is intended to:

  • find out whether you have a ‘limited capability for work’.
  • find out whether you have a ‘limited capability for work-related activity’.

From 28 January 2013, a range of changes have been in force in relation to the limited capability for work and limited capability for work related activity tests, including when deciding who is to be treated as having either a limited capability for work or a limited capability for work-related activity.  In general, the new rules apply to those making a claim or whose determination is made on or after 28 January.   If you want details of the old rules, please see our Disability Rights Handbook 37th Edition. 

6.1 The limited capability for work test

The limited capability for work test decides whether or not you remain on ESA. If you do not pass the test, because you are not considered to have a limited capability for work, you would need to consider appealing this decision or claiming jobseeker’s allowance instead.

If you appeal you can continue to receive the basic allowance of ESA until a decision is made on your appeal by a tribunal.

For this test you are assessed on your ability to carry out 17 listed physical or 'mental, cognitive and intellectual' activities. Any limitation on your capability for work must stem from a specific bodily disease or disablement or as a  direct result of treatment for that disease or disablement by a registered practitioner.

Points are awarded on the basis of your limitations with respect to each activity. These points are totalled up and if the total reaches the threshold of 15, you are deemed to have limited capability for work and thus stay on ESA.

Within each type of activity there is a list of descriptors with associated scores ranging from 0 to 15. The descriptors describe related tasks of varying degrees of difficulty. You score when you are not able to perform the activity described. Though more than one descriptor may apply to you, you can only pick up one score from each type of activity; in each case whichever scores the highest.

If you score 15 in any one activity, you automatically pass the test. If your score is less than 15, it can be added to the scores you pick up from any of the other types of activity (in both the physical and the mental parts of the test). If your total score reaches 15, you pass the test.

The physical activities

The physical functions in the limited capability for work test are grouped into 10 different types of activity. These are:

  1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used.
  2. Standing and sitting.
  3. Reaching.
  4. Picking up and moving or transferring by the use of the upper body and arms.
  5. Manual dexterity.
  6. Making self understood through speaking, writing, typing, or other means which are normally or could reasonably be used, unaided by another person.
  7. Understanding communication by (i) verbal means (such as hearing or lip reading) alone, (ii) non-verbal means (such as reading 16-point print or Braille) alone, or (iii) a combination of (i) and (ii) using any aid that is normally or could reasonably be used, unaided by another person
  8. Navigation and maintaining safety, using a guide dog or other aid if either or both are normally, or could reasonably be,  used.
  9. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the wearing or use of any aids or adaptations which are  normally, or could reasonably be, worn or  used.
  10. Consciousness during waking moments.

The assessment takes into account your abilities when using any aid or appliance you would normally or could reasonably use.
The mental, cognitive and intellectual activities
These functions in the limited capability for work test are grouped into sets of activities under the following 7 headings:

  1. Learning tasks.
  2. Awareness of everyday hazards (such as boiling water or sharp objects).
  3. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).
  4. Coping with change.
  5. Getting about.
  6. Coping with social engagement due to cognitive impairment or mental disorder.
  7. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.

For a full list of activities, descriptors and points see appendix 1 or the DWP’s A guide to Employment and Support Allowance – The Work Capability Assessment (ESA214) available at http://tinyurl.com/33gxgky.

6.2 Treated as having limited capability for work

You will be automatically treated as having a limited capability for work in the following circumstances:

  • You are terminally ill.  This is defined as a progressive disease and death in consequence of that disease can reasonably be expected within six months.
  • You are receiving treatment for cancer (or are likely to receive such treatment within 6 months) by way of chemotherapy or radiotherapy, or you are recovering from that treatment and Jobcentre Plus is satisfied that you should be treated as having a limited capability for work.
  • You have been requested or given notice, under specific legislation, to refrain from work because it is known or reasonably suspected that you have been infected, contaminated or been in contact with an infections disease or contamination
  • You are pregnant and there would be a serious risk to the health of you or your child if you did not refrain from work.
  • You are pregnant or have recently given birth, are entitled to maternity allowance and are within the maternity allowance payment period.
  • You are pregnant or have recently given birth but are not entitled to maternity allowance or statutory maternity pay from six weeks before the baby is due to two weeks after the birth.
  • You are receiving medical or other treatment in a hospital or similar institution (including residential rehabilitation for treatment of drug or alcohol addiction),  having been advised by a healthcare professional to stay there for a period of 24 hours or longer.  You are also treated as having limited capability for work on any day you are recovering from such treatment and Jobcentre Plus is satisfied that you should be treated as having a limited capability for work.
  • You are receiving regular weekly treatment by way of haemodialysis for chronic renal failure, or treatment by way of plasmapheresis or regular weekly treatment by way of total parenteral nutrition for gross impairment of enteric function.  You are also treated as having limited capability for work during any week in which you have a day of recovery from such treatment and Jobcentre Plus is satisfied that you should be treated as having a limited capability for work.   However, you will only be treated as having limited capability for work from the first week that you have 2 days of treatment or 2 days of recovery or 1 day of treatment and one day of recovery (these days do not have to be consecutive).
  • You satisfy either descriptor 15(conveying food or drink to the mouth) or 16 (chewing of swallowing food or drink) in the ‘limited capability for work-related activity assessment’ – see appendix 1
  • You are a student in full-time education (and not a ‘qualifying young person’ for child benefit purposes) entitled to income-related ESA by virtue of the fact that you are entitled to disability living allowance.

6.3 Limited capability for work-related activity

The second test within the WCA considers whether you have a ‘limited capability for work-related activity’. Though the wording may seem similar to that of the first test, the second test has a very different function. It is used to determine whether you are placed in the support group of claimants or the work-related activity group.

Which of these groups you are placed in will determine both the level of ESA that you will receive and the responsibilities you will need to meet in order to retain the benefit. The test has a list of activities and descriptors, relating to both physical and mental, cognitive or intellectual functions. If you satisfy at least one of them you will be placed in the support group of claimants.

The descriptors are grouped together under the following 16 activity headings:

  1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could  reasonably be, worn or used.
  2. Standing and sitting.
  3. Reaching.
  4. Picking up and moving or transferring by the use of the upper body and arms (excluding standing, sitting, bending or kneeling and all other activities specified in this Schedule).
  5. Manual dexterity.
  6. Making self understood through speaking, writing, typing, or other means which are normally, or could reasonably be,  used, unaided by another person.
  7. Understanding communication by (i) verbal means (such as hearing or lip-reading) alone, (ii) non-verbal means (such as reading 16-point print or Braille) alone, or  (iii) a combination of (i) and (ii), using any aid that is normally, or could reasonably be, used, unaided by another person
  8. Absence or loss of control whilst conscious leading to extensive evacuation or the bowel and/or bladder, other than enuresis (bed-wetting) despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used
  9. Learning tasks.
  10. Awareness of hazard.
  11. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).
  12. Coping with change.
  13. Coping with social engagement, due to cognitive impairment or mental disorder.
  14. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.
  15. Conveying food or drink to the mouth.
  16. Chewing or swallowing food or drink.

The assessment takes into account your abilities when using any aid or appliance you would normally or in some cases could reasonably use.

For a full list of activities, descriptors and points see appendix 2 or the DWP’s A guide to Employment and Support Allowance – The Work Capability Assessment (ESA214) available at http://tinyurl.com/33gxgky.

6.4 Treated as having a limited capacity for work related activity

You can be automatically treated as having a limited capability for work-related activity if you are:

  • suffering from a progressive disease and consequently your death can reasonably be expected within six months.
  • receiving treatment by way of chemotherapy or radiotherapy (or are likely to receive such treatment within 6 months), or you are recovering from that treatment and Jobcentre Plus is satisfied that you have a limited capability for work-related activity.
  • suffering from some specific disease or bodily or mental disablement and consequently there would be a substantial risk to the mental or physical health of any person if you were found not to have a limited capability for work-related activity.
  • pregnant and there would be a serious risk to the health of you or your child if you did not refrain from work-related activity.

6.5 How the work capability assessment is applied

In order to apply the tests for limited capability for work and limited capability for work-related activity a decision maker will first look at the information that you have provided in your initial claim for ESA to see if you pass these tests without the need for further enquiries.

If the decision maker considers that there is not enough information to make a decision you will normally be sent Limited capability for work questionnaire (ESA50) to complete. This form has a number of questions about the activities listed above. Each activity has a section with tick-boxes and space to provide more detailed information about each activity.

The time limit for completing and returning form ESA50 is four weeks.

Once the decision maker has received your completed ESA50 they may decide that there is clear evidence that you have limited capability for work (and possibly work-related activity). If not, you will be sent an appointment to attend a face to face assessment carried out by an approved disability analyst.

The disability analyst will have read a copy of the ESA50 form that you have completed and at the face to face assessment they will be trying to identify whether or not your account, in that form, of your functional limitations corresponds with their findings.

They will ask you a series of questions, relating to both your physical and mental, cognitive or intellectual capabilities, guided by what you have put down on the ESA50. Once they have finished this, they will then give you a physical examination.

The decisions on whether or not you have limited capability for work and limited capability for work-related activity will not, however, be taken by the disability analyst. He or she will complete an ESA85 medical report form which will be sent to a decision maker, who will make these two decisions.

The report form also has recommendations as to when you should be retested for limited capability for work and limited capability for work-related activity.

6.6 Exceptional circumstances

Even if the decision maker decides that you do not pass the limited capability for work test they can still treat you as having passed it if the health care professional has obtained evidence that one of the following exceptional circumstances apply:

  1. You are suffering from a severe life threatening disease in relation to which there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure.
  2. You suffer from some specific disease or bodily or mental disablement and consequently there would be a substantial risk to the mental or physical health of any person if you were found not to have limited capability for work.   This risk should be linked to work you could realistically do according to your education or skills.  This circumstance will not apply to you if the risk could be significantly reduced by making reasonable adjustments to your workplace or by you taking medication as prescribed. 

7. The work-focused interview

You are expected to attend an initial ‘work-focused interview’, unless you are terminally ill. This will normally take place during the 8th week of your ESA claim. At this interview a ‘personal adviser’ will discuss your work prospects, the steps that you are willing to take to move into work and the support available to you. For more information on this see our Disability Rights Handbook.

The interview can be waived if you are likely to be starting a job or returning to work. The personal adviser can also defer an interview if, because of your condition, it would be inappropriate at that particular time.

Whether you have to attend further interviews will depend on whether you are placed in the work related activity or support groups (see 10  and 11).

Some people are not required to take part in these interviews such as those in the support group, those who have reached the qualifying age for pension credit and those under 18 (who will have a learning focused interview with Connexions).

8. The contributory test

You will need to have paid enough National Insurance contributions in specific tax years to satisfy this test. If you do pass the test you will receive a flat-rate benefit payment for yourself.

Contributory ESA (CESA) has no age-related additions or additions for dependants (such as your wife, husband, civil partner or child) premiums or allowances for housing costs. In order to get additions for your partner, additional premiums or housing costs you will need to also satisfy the low income test (see 7).
 
If you need extra money to look after a child, you should claim child tax credit.
The amount of contributory ESA you get will be reduced if you have an occupational pension of over £85 per week. There are some exceptions to this rule. For more information see our Disability Rights Handbook.

Some people may get contributory ESA without having had  to satisfy the contribution conditions (CESA(Y)) if  they had  made a claim before they were 20 ( or before they were 25 if you have been in education or training).

A time limit of 1 year now applies to certain Contributory ESA claimants.  See Section 14.1 of this factsheet for more details. At the same time new claims for CESA(Y) have been abolished. See Section 14.2 of this factsheet.

9. The low income test - income related ESA

This is a test similar to income support. In brief, your needs (and those of your partner if you have one) are compared with your resources, such as your income and savings, and the income-related allowance worked out from this comparison.

You cannot get income-related ESA if your capital or savings (or you and your partner's capital or savings) is above an upper savings limit of £16,000.

Your benefit will also be affected if your capital or savings (or you and your partner's capital or savings) is above a lower savings limit of £6,000. If you are permanently in a care home this lower limit is £10,000.

If you need extra money to look after a child, you should claim child tax credit.

10. The support group

If it is decided that you have a limited capability for work-related activity, you will be placed in the support group of claimants. If you are placed in this group, you will not have to undertake work-related activities (though you can volunteer to do so if you want).

11. The work-related activity group

If it is decided that you do not have a limited capability for work-related activity, you will be placed in the work-related activity group of claimants. You will have to adhere to strict work-related conditions in order to continue receiving the benefit in full. This may involve attending further work-focused interviews in addition to the initial work-focused interview.

These interviews will normally take place each month and at them the personal adviser will try to help you back into work. The adviser will draw up an ‘action plan’, which will outline the activities that you could undertake to help you move into work.
You cannot be required, as part of a work related activity, to apply for a job, undertake paid work or voluntary work or undergo medical treatment.
You will also not be required to take part in work related activity if:

  •  you are in the ESA support group
  • you are a lone parent and you have a child under the age of 5
  • you receive carers allowance or a carer’s premium

If you are a lone parent and you have a child under the age of 5 or you receive carers allowance you will still have to attend an initial work focused interview (see paragraph 7).

If you are a lone parent with a child under the age of 13 you may only be required to undertake work related activity during the child’s normal school hours.

11.1 Sanctions

Reductions

Both the initial work-focused interview and the follow-up interviews are mandatory, and failure to attend or participate can result in reductions to your ESA. 

  •  Those in the work related activity group  who fail to comply with conditions for receiving benefit will get an ‘open ended sanction’ which is lifted when they re-comply.  After they comply,  there will be a ‘fixed period’ sanction which is one week for a first failure, or two weeks for a second failure.  The sanction will last  four weeks for a third failure or subsequent failure, if this is within 52 weeks of the previous failure.
  •  When sanctioned, claimants will lose the personal allowance for a single person, but other amounts like the extra amount paid for a partner, the work related activity component or premiums will not be affected.

If you are sanctioned under these rules you can apply for hardship payments from the first day of the sanction.

You can challenge a decision to impose a sanction: see Section 16 of this factsheet.

There is DWP guidance on sanctions at www.dwp.gov.uk/docs/m-41-12.pdf.

12. Disqualification

You can be disqualified from ESA for up to six weeks if you

  • have a limited capability for work through your own misconduct (but not if your limited capability is due to pregnancy or a sexually transmitted disease). Misconduct is a wilful act, eg recklessly and knowingly breaking accepted safety rules;
  • do not accept medical or other treatment (not including vaccination, inoculation or major surgery) recommended by a doctor or hospital that is treating you – but only if the treatment would be likely to remove the limitation on your capability for work and you do not have good cause for your refusal;
  • behave in a way calculated to slow down your recovery, without having good cause; or
  • are absent from home without leaving word where you can be found, without having good cause.

In cases of hardship, your ESA will be reduced instead, and you will need to explain your grounds.   In such cases, a  20% reduction would be made on your basic allowance (if you get contributory ESA), or your prescribed amount (if you get income related ESA).  For more information on who may be treated under hardship grounds, refer to the Disability Rights Handbook.

13. If you are on incapacity benefit

At some point between now and March 2014, if you are on incapacity benefit, you will be reassessed under the Work Capability Assessment instead of the personal capability assessment. The Work Capability Assessment is the test for employment and support allowance (ESA).

If you are found to have a limited capability for work in this assessment, you will be moved (migrated) onto employment and support allowance.

You can find out more information by going to the IB migration page on our website.

13. How much is ESA?

You can view the current benefit rates for ESA on our website.There is also detailed information on benefits rates in the Disability Rights Handbook.

14.1 The assessment phase

During the assessment phase you are paid a ‘basic allowance’. This is set at a similar level to that of jobseeker’s allowance. If you are aged under 25 you will receive a reduced rate of this basic allowance. Once you have completed the assessment period the reduction for under 25s does not apply.

If you are on contribution related ESA you will only get an allowance for yourself. If you are on income-related ESA you also may get allowances for your partner, if you have one, as well as additional premiums (pensioner, severe disability, carer and enhanced disability premiums). There is no disability premium with ESA.

You can also claim for your housing costs.  Housing costs are help with the payment of mortgage interest plus other allowed costs. If you find work and are on income related ESA your housing costs can continue for four weeks. For more information about housing costs see our Disability Rights Handbook.

14.2 After the assessment phase

After the assessment phase you can receive one of two additional payments depending on whether you are placed in the work-related activity group or the support group.

If you are placed in the work-related activity group you will receive a work related activity component of £28.45 included in your payment.

If you are placed in the support group you will receive a support component of £34.80 included in your payment. If you are terminally ill this component will be paid to you during the assessment phase.

If you are aged under 25 you will no longer be paid a reduced rate of the basic allowance.

Everyone in the support group, who is on income-related ESA, gets the enhanced disability premium.

14.3 Premiums

You can get extra amounts in the form of premiums if you satisfy certain conditions.
You can get any or all of the following premiums if you satisfy the rules for them:

  • carer premium
  • enhanced disability premium
  • pensioner premium
  • severe disability premium
Carer premium

You or you partner must be entitled to carer's allowance, even if you are not actually paid it because you receive another benefit. This premium is payable for each person who qualifies.

Enhanced disability premium

You or your partner must satisfy one of the following:

  • be in the support group
  • be under the qualifying age for pension credit and receiving the high rate care component of disability living allowance, the personal independence payment enhanced rate of the daily living component or armed forces independence payment

If you have a partner you will be paid the couple rate of this premium. 

Pensioner premium

This is paid if you or your partner has reached the qualifying age for pension credit. If you have a partner you will be paid a higher couple rate of this premium.

Severe disability premium

You or your partner must satisfy all of the following:

  • be receiving the care component of disability living allowance (middle or higher rate), attendance allowance, daily living component of the personal independence payment or armed forces independence payment
  • live alone (there are exceptions to this rule - For more information see our Disability Rights Handbook.)
  • no one else must be getting carer's allowance for looking after you 

There is a couple rate if both of you qualify.

For more information on employment and support allowance premiums see the latest Disability Rights Handbook.

14.4 Capital

You cannot get income-related ESA  if your capital or savings (or you and your partner's capital or savings) is above £16,000. Your benefit will be affected if your capital or savings (or you and your partner's capital or savings) are above £6,000 (£10,000 if you live permanently in a care home).

14.5 Tariff income

If your capital is between the lower and upper limits, a ‘tariff income’ is assumed: one pound a week for every £250 (or part of £250) above the lower limit is included as your income.

For example, if you have capital of between £6,250.01 and £6,500, £2 a week is included as your income. Each time capital gets into the next block of £250 (even by as little as one penny) an additional £1 is included as income.

14.6  The benefit cap

ESA is included in the list of benefits to which the ‘benefit cap’ applies. This cap, which will be rolled out nationally between 15.7.13 and 30.9.13, limits the total weekly benefits that can be claimed.  There are some exceptions.  For example, the cap will not apply if you have been placed in the ‘support group’ (see paragraph 10 above).  You can find out more information in our Factsheet F8 – benefits cap.

15. How to claim employment and support allowance

You should phone the national contact centre:

Telephone: 0800 0 55 66 88
Textphone: 0800 0 23 48 88 (i)
Welsh language: 0800 0 12 18 88

Lines are open from 8:00 am - 6:00 pm, Monday to Friday. Charges may apply to calls from mobile phones, but the contact centre will call the customer back if requested.
You can also get a claim form (ESA1) from your local Department for Work and Pensions office or Jobcentre Plus office or download it at www.gov.uk/employment-support-allowance.

You will also be expected to provide medical certificates from your doctor, known as fit notes, until you have passed the limited capability for work test. If you are claiming contributory ESA because you are under 20/25 these fit notes must also cover the 196 day period).
 
If you are working but do not get statutory sick pay you will also need to send in form SSP1 as well as a fit note. You can get this form from your employer.

15.1 Time limiting of contribution based ESA (CESA)

A time limit of one year will apply to your ESA if it is contributory ESA,  and you are in the ‘work-related activity’ group. The 13-week ‘assessment phase’ will count towards the one-year period. The time limit does not apply to people in the ESA ‘support’ group.

There are several possibilities if your contributory ESA is terminated at the end of the 12-month payment period. In all the following situations, you will need to show that you still have limited capability for work: you will still be required to complete a limited capability for work questionnaire (ESA50) and participate in the work capability assessment where necessary.

  1. You may be entitled to income-related ESA instead of contributory ESA. Jobcentre Plus should tell you how to be assessed for this when it contacts you to tell you that your contributory ESA is ending. If you qualify for this it will be paid as soon as your contributory ESA ends.
  2. If you cannot get income-related ESA, you can still be credited with National Insurance credits as long as your circumstances do not change. National Insurance credits count towards other benefits including your state retirement pension.
  3. If you cannot get income-related ESA, you may be able to claim contributory ESA again in the future if your condition deteriorates – as long as Jobcentre Plus considers that you have continuously had limited capability for work since your contributory ESA stopped. To satisfy this, once contributory ESA ceases you should ask Jobcentre Plus to continue to assess you as having limited capability for work. Then if your condition does get worse you can make a new claim for ESA. You will probably be referred for a work capability assessment. If it is accepted at this assessment that you have limited capability for work-related activity (and can thus be moved into the support group) you can be awarded contributory ESA once more. It will last as long as you remain in the support group.
  4. If you cannot get income-related ESA, you may be able to re-qualify for a year of contribution-based ESA for people in the work-related activity group after 12 weeks. It is possible for someone whose time limited ESA has ended to successfully reclaim again in as little as 12 weeks if they meet the National Insurance contribution conditions under a different and later tax year than before.

Depending upon your family income and/or capital levels, it is possible that when your contribution based ESA ends,  you will become entitled to one or more means tested benefits such as income related ESA, housing benefit or council tax benefit.
The DWP has published information on time limiting of contribution based ESA online at www.dwp.gov.uk/adviser/updates/changes-to-contribution/.

15.2 Abolition of CESA(Y)

From 1 May 2012 you cannot claim CESA(Y). If you were already getting CESA(Y) at that date you can continue to be paid ESA it but only for one year from the time your entitlement began. This includes any time you were getting CESA(Y) before April 2012. Note any time you spent in the support group does not count towards this time limit.
The DWP has published information on this online at www.dwp.gov.uk/adviser/updates/changes-to-contribution/.

16.  Challenging decisions

Mandatory reconsideration and ESA appeals

The mandatory reconsideration before appeal rule will affect you in the following way if your employment and support allowance (ESA) claim is disallowed under the work capability assessment.

Before 28 October 2013 you could choose between asking for a reconsideration and moving straight to appeal. Benefit was not paid during the reconsideration period, but was paid pending appeal. Therefore by moving straight to appeal, it was possible to avoid a gap in payment. The situation is still that you cannot be paid pending reconsideration but will be paid pending appeal. From 28 October 2013 , however, the reconsideration process is mandatory and you will not be able to avoid a gap in payment of ESA. You may be able to claim other benefits during the mandatory reconsideration period, such as jobseeker's allowance.

Once you appeal, you can be paid ESA pending appeal and if you have backdated fit notes to cover the reconsideration period you should be able to get backdated ESA for that period (unless you have already had the equivalent in other benefits, such as jobseeker's allowance during that time).

For information about challenging decisions, see Factsheet F36 - appeals and mandatory reconsideration

17. Students

17.1 Full time students

If you are a student you can claim contributory ESA if you have paid enough national insurance (NI) contributions, or satisfy the rules for claimants under 20/25. You will still have to satisfy the limited capability for work test.

If you are aged 16, 17 or 18 you will usually be excluded from claiming contributory ESA if you are still at school or in full-time education of 21 hours or more a week. Lunch breaks, breaks between lessons, free periods, and periods of private (unsupervised) study or homework do not count.

From age 19 there are no rules that limit the hours and type of study you can do.
When adding up the number of hours that you study each week, you should ignore 'any instruction or tuition which is not suitable for persons of the same age who do not have a disability'.

As a full time advanced or non-advanced student, you can only get ESA on grounds of low income (income-related ESA) if you are getting disability living allowance (DLA), personal independence payment (PIP) or armed forces independence payment (AFIP).

If you are 20 years old or over and you get DLA, PIP or AFIP, you automatically count as having limited capability for work.  If you are in advanced education, whether under or over 19, you will also automatically count as having limited capability for work if you get DLA or PIP. You will still be assessed under the limited capability for work-related activity test, which decides whether you are in the support group or the work-related activity group.

On the other hand, if you are a ‘qualifying young person’, you will have to satisfy the limited capability for work test in the usual way (see paragraph 6.1 above).

The definition of a ‘qualifying young person’ is the same as that for the child benefit rules and is as follows.  Please note that someone does not have to be getting child benefit for you in order for you to count as a ‘qualifying young person’:

Qualifying young person

This is a young person under the age of 20 and in one of the following:

  • full-time, non-advanced education( more than 12 hours a week) at school or college up to no higher than A-level or NVQ level 3 standard
  • or approved, unwaged training (eg through ‘Entry to employment’ or Skillseekers). The training must not be provided under a contract of employment.

Nineteen-year-olds can only be included if they started such education or approved training before their 19th birthday or were accepted or enrolled to undertake it.  You cannot count homework, private study, unsupervised study or meal breaks towards the 12 hours and the education can only be up to and including A-level, NVQ Level 3 or equivalent.

You cannot get child benefit for a young person if he or she receives employment and support allowance, income support, income-based jobseeker’s allowance, incapacity benefit, universal credit or any tax credit.

Please note that full time students who received income support with a disability premium and who are migrated onto income related ESA will not have to get DLA or PIP in order to qualify for income related ESA. See paragraph 16 for more information on migration.

17.2 Part-time students

If you are a part-time student you can claim contributory ESA if you have paid enough national insurance (NI) contributions, or for those who already have a claim in place, satisfy the rules for claimants under 20/25. You can also claim income-related ESA if you are on a low income. You do not have to be receiving DLA or PIP.

Whether your course is full or part-time usually depends on how it is classed by the institution. However, if you are on a course of government-funded further education in England or Wales it is full-time if it involves more than 16 guided learning hours a week. In Scotland, it is still full-time if structured learning packages make up the hours to over 16 a week, up to a maximum of 21 hours a week.  You will have to pass the limited capability for work test. 

Disability Rights UK Student Helpline

For further information on the above and the support that is available for disabled students, please contact the Disabled Students Helpline:

Tel: 0800 328 5050

Tues 11.30am-1.30pm & Thurs 1.30pm-3.30pm

Email: students@disabilityrightsuk.org

The helpline provides free information and advice to disabled students in England, their parents, carers and key advisers about opportunities in post-16 education and training. This includes further and higher education and apprenticeships. We also provide general information on the Equality Act as it applies to education and give advice on UK students' entitlement to welfare benefits.

We produce a range of factsheets covering these subjects and frequently asked questions which you can access through the education section of our website at www.disabilityrightsuk.org.

18. What about those who are already getting IB or IS?

If you are receiving incapacity benefit (IB) or income support (IS) paid on the grounds of incapacity you will continue to receive those benefits, rather than ESA, for the time being.

At some point between now and March 2014 you will be reassessed under the Work Capability Assessment instead of the personal capability assessment. The Work Capability Assessment is the test for employment and support allowance (ESA).
If you are found to have a limited capability for work in this assessment, you will be moved (migrated) onto employment and support allowance.

You might have preserved rights regarding your rate of ESA when you migrate. If you receive more on existing incapacity benefits than the appropriate ESA rate, you will receive your old rate as ESA but this will be frozen at the point of migration until the ESA rate catches up.

Those getting incapacity benefit who are moved onto contributory ESA , and who are in the work-related activity group, will have their benefit time limited to 12 months from the point of conversion. This applies whether reassessment took place before or after April 2012. 

You can find out more by going to the IB migration page on our website.

19. Permitted work

In some cases, it is possible to work and to get ESA. This comes under the heading of ‘permitted working’ rules.

Please see our Factsheet F35 - work for people who are sick and disabled for details of the special rules on ‘permitted work’.

20. Universal Credit

Universal credit (UC) is a new benefit which will replace the following benefits, for anyone under state pension credit age, nationwide in Great Britain from October 2013 and in Northern Ireland from April 2014:

  • child tax credit
  • housing benefit
  • income related employment and support allowance
  • income based jobseekers allowance
  • income support
  • parts of the social fund
  • working tax credit

Between October 2013 and 2017 income related employment and support allowance will be abolished and will be paid as part of universal credit. If you are already getting income related employment and support allowance you will be moved, at some point, over to universal credit.

For more information see our Factsheet F55 - universal credit.

21. Where can I get more help or information?

This factsheet is a basic overview of employment and support allowance. You can find out more detailed information in our Disability Rights Handbook. This and all our other publications are available from our shop at https://crm.disabilityrightsuk.org/. You can also place orders by contacting Disability Rights UK.

You can get help and information at your local advice centre, such as a Citizens Advice Bureau. You can get more information about where to get personal advice from our Factsheet F15 - Getting advice. All our factsheets are free to download on our website at www.disabilityrightsuk.org.

We have an ESA resources page on our website which includes links to regulations.

The DWP has published new guidance that reminds decision makers about the level of income related employment and support allowance (IRESA) payable to claimants.
In particular, it specifies a claimant’s applicable amount:

  • during the 13 week assessment phase; and
  • when they are appealing a decision that they do not have a limited capability for work for work capability assessment purposes (WCA).

You can view this guidance at www.dwp.gov.uk/docs/m-25-12.pdf.

They have also published Advice for Decision Making (ADM) which provides guidance on decision making for new-style contribution-based employment and support allowance (ESA) in accordance with the Welfare Reform Act 2012. You can view this at www.dwp.gov.uk/publications/specialist-guides/advice-for-decision-making/.
You can also view a House of Commons briefing paper on the work capability assessment at www.parliament.uk/briefing-papers/SN05850.pdf.

Lisa Jennison
7 February 2014

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Appendix 1: Assessment of whether a claimant has limited capability for work

Part 1: Physical disabilities

Activity 1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally or could reasonably be, worn or used. 

1(a) Cannot either:
(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
or
(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.
Score 15

1(b) Cannot mount or descend two steps unaided by another person even with the support of a handrail.  Score 9

1(c) Cannot either:
(i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
or
(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion.
Score 9

1(d) Cannot either:
(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
or
(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.
Score 6

1(e) None of the above apply. Score 0

Activity 2. Standing and sitting.

2(a) Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person. Score 15

2(b) Cannot, for the majority of the time, remain at a work station, either:
(i) standing unassisted by another person (even if free to move around); or
(ii) sitting (even in an adjustable chair) or
(iii) a combination of (i) and (ii)
for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.
Score 9

2(c) Cannot, for the majority of the time, remain at a work station, either:
(i) standing unassisted by another person (even if free to move around); or
(ii) sitting (even in an adjustable chair) or
(iii) a combination of (i) and (ii)
for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion.
Score 6

2(d) None of the above apply Score 0

Activity 3. Reaching.

3(a) Cannot raise either arm as if to put something in the top pocket of a coat or jacket. Score 15

3(b) Cannot raise either arm to top of head as if to put on a hat. Score 9

3(c) Cannot raise either arm above head height as if to reach for something. Score 6

3(d) None of the above apply. Score 0

Activity 4. Picking up and moving or transferring by the use of the upper body and arms. 

4(a) Cannot pick up and move a 0.5 litre carton full of liquid. Score 15

4(b) Cannot pick up and move a one litre carton full of liquid. Score 9

4(c) Cannot transfer a light but bulky object such as an empty cardboard box. Score 6

4(d) None of the above apply. Score 0

Activity 5. Manual dexterity.

5(a) Cannot either:
(i) press a button, such as a telephone keypad; or
(ii) turn the pages of a book
with either hand.
Score 15

5(b) Cannot pick up a £1 coin or equivalent with either hand. Score 15

5(c) Cannot use a pen or pencil to make a meaningful mark. Score 9

5(d) Cannot single-handedly use a suitable keyboard or mouse. Score 9

5(e) None of the above apply. Score 0

Activity 6. Making self understood through speaking, writing, typing, or other means which are normally ,  or could reasonably be, used, unaided by another person.

6(a) Cannot convey a simple message, such as the presence of a hazard. Score 15

6(b) Has significant difficulty conveying a simple message to strangers. Score 15
 
6(c) Has some difficulty conveying a simple message to strangers. Score 6

6(d) None of the above apply. Score 0

Activity 7. Understanding communication by (i) verbal means (such as hearing or lip reading) alone ,(ii)  non-verbal means (such as reading 16 point print or Braille)  alone or (iii)  a combination of (i) and (ii), using any aid that is normally, or could reasonably be, used, unaided  by another person.

7(a) Cannot understand a simple message due to sensory impairment, such as the location of a fire escape. Score 15

7(b) Has significant difficulty understanding a simple message from a stranger due to sensory impairment. Score 15

7(c) Has some difficulty understanding a simple message from a stranger due to sensory impairment. Score 6

7(d) None of the above apply. Score 0

Activity 8. Navigation and maintaining safety, using a guide dog or other aid if either or both are normally, or could reasonably be, used.

8(a) Unable to navigate around familiar surroundings, without being accompanied by another person, due to sensory impairment.  Score 15

8(b) Cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment. Score 15

8(c) Unable to navigate around unfamiliar surroundings, without being accompanied by another person, due to sensory impairment. Score 9

8(d) None of the above apply. Score 0

Activity 9. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are  normally, or could reasonably be, worn or used.

9(a) At least once a month experiences:
(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or
(ii) substantial leakage of the contents of a collecting device
sufficient to require cleaning and a change in clothing.
Score 15

9(b) The majority of time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly. Score 6

9(c) None of the above apply. Score 0

Activity 10. Consciousness during waking moments.

10(a) At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration. Score 15

10(b) At least once a month, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration. Score 6

10(c) None of the above apply. Score 0.

Part 2: Mental, cognitive and intellectual function assessment

Activity 11. Learning tasks.

11(a) Cannot learn how to complete a simple task, such as setting an alarm clock. Score 15

11(b) Cannot learn anything beyond a simple task, such as setting an alarm clock. Score 9

11(c) Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes. Score 6

11(d) None of the above apply. Score 0

Activity 12. Awareness of everyday hazards (such as boiling water or sharp objects).

12(a) Reduced awareness of everyday hazards leads to a significant risk of:
(i) injury to self or others; or
(ii) damage to property or possessions
such that they require supervision for the majority of the time to maintain safety.
Score 15

12(b) Reduced awareness of everyday hazards leads to a significant risk of
(i) injury to self or others; or
(ii) damage to property or possessions
such that they frequently require supervision to maintain safety.
Score 9

12(c) Reduced awareness of everyday hazards leads to a significant risk of:
(i) injury to self or others; or
(ii) damage to property or possessions
such that they occasionally require supervision to maintain safety.
Score 6

12(d) None of the above apply. Score 0

Activity 13. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).

13(a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions. Score 15

13(b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions for the majority of the time. Score 9

13(c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions. Score 6

13(d) None of the above apply. Score 0

Activity 14. Coping with change.

14(a) Cannot cope with any change to the extent that day to day life cannot be managed.  Score 15

14(b) Cannot cope with minor planned change (such as a pre-arranged change to the routine time scheduled for a lunch break), to the extent that overall day to day life is made significantly more difficult. Score 9

14(c) Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult. Score 6

14(d) None of the above apply. Score 0

Activity 15. Getting about.

15(a) Cannot get to any  place outside of the claimant’s home with which the claimant is familiar. Score 15

15(b) Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person. Score 9

15(c) Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person. Score 6

15(d) None of the above apply. Score 0

Activity 16. Coping with social engagement due to cognitive impairment or mental disorder.

16(a) Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual. Score 15

16(b) Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the individual. Score 9

16(c) Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual. Score 6

16(d) None of the above apply. Score 0

Activity 17. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.

17(a) Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. Score 15

17(b) Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. Score 15

17(c) Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. Score 9

17(d) None of the above apply. Score 0.

Appendix 2: Assessment of whether a claimant has limited capability for work related activity

Activity 1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used

Cannot either:
(a)mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or
(b)repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.  

Activity 2. Transferring from one seated position to another.

Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person.

Activity 3. Reaching.

Cannot raise either arm as if to put something in the top pocket of a coat or jacket.

Activity 4. Picking up and moving or transferring by the use of the upper body and arms (excluding standing, sitting, bending or kneeling and all other activities specified in this appendix).

Cannot pick up and move a 0.5 litre carton full of liquid.

Activity 5. Manual dexterity.

Cannot either:
(a) press a button, such as a telephone keypad; or
(b)turn the pages of a book
with either hand.

Activity 6. Making self understood through speaking, writing, typing, or other means which are  normally, or could reasonably be, used,  unaided by another person

Cannot convey a simple message, such as the presence of a hazard.

Activity 7. Understanding communication by verbal means (such as hearing or lip reading) alone non-verbal means (such as reading 16-point print or Braille) alone, or a combination of (i) and (ii) using any aid that is normally, or could reasonably be, used, unaided by another person                      

Cannot understand a simple message due to sensory impairment, such as the location of a fire escape.

Activity 8. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or voiding of the bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used

At least once a week experiences:
(a)loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or
(b)substantial leakage of the contents of a collecting device
sufficient to require the individual to clean themselves and change clothing.

Activity 9. Learning tasks.

Cannot learn how to complete a simple task, such as setting an alarm clock, due to cognitive impairment or mental disorder.

Activity 10. Awareness of hazard.

Reduced awareness of everyday hazards, due to cognitive impairment or mental disorder, leads to a significant risk of:
(a)injury to self or others; or
(b)damage to property or possessions
such that they require supervision for the majority of the time to maintain safety.

Activity 11. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).

Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.

Activity 12. Coping with change.

Cannot cope with any change, due to cognitive impairment or mental disorder, to the extent that day to day life cannot be managed.

Activity 13. Coping with social engagement, due to cognitive impairment or mental disorder.

Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.

Activity 14. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.

Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.

Activity 15. Conveying food or drink to the mouth.

(a) Cannot convey food or drink to the claimant’s own mouth without receiving physical assistance from someone else;
(b) Cannot convey food or drink to the claimant’s own mouth without repeatedly stopping, experiencing breathlessness or severe discomfort;
(c) Cannot convey food or drink to the claimant’s own mouth without receiving regular prompting given by someone else in the claimant’s physical presence; or
(d) Owing to a severe disorder of mood or behaviour, fails to convey food or drink to the claimant’s own mouth without receiving:
(i)physical assistance from someone else; or
(ii)regular prompting given by someone else in the claimant’s presence.

Activity 16. Chewing or swallowing food or drink.

(a) Cannot chew or swallow food or drink;
(b) Cannot chew or swallow food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort;
(c) Cannot chew or swallow food or drink without repeatedly receiving regular prompting given by someone else in the claimant’s presence; or
(d) Owing to a severe disorder of mood or behaviour, fails to:
(i) chew or swallow food or drink; or
(ii) chew or swallow food or drink without regular prompting given by someone else in the claimant’s presence.