The Work Capability Assessment

This factsheet gives you the basic information on the Work Capability Assessment (WCA).

1. What is the WCA?

The WCA is the test used to decide if a claimant of employment and support allowance (ESA) is medically capable of work. The actual test in the law is whether or not the claimant has ‘limited capability for work’. Having limited capability for work is one of the basic entitlement rules for ESA. This is the main part of the WCA, and is described in more detail in section 2.

If the claimant does have limited capability for work (ie, they pass the WCA), then as long as they satisfy the other rules they will be entitled to ESA. They will also be entitled to national insurance contribution credits. If they do not have limited capability for work (ie, they fail the WCA) they will not be entitled to ESA. They will also not be entitled to national insurance contribution credits on the basis of limited capability for work.

The WCA is applied to new claimants of ESA, and from time to time (depending on the official view about when it is to be re-applied) is re-applied to existing claimants.
Note: the decision about when the WCA is to be re-applied is not subject to appeal.

The WCA is also applied to claimants with existing awards of benefit on the basis of incapacity for work who are having their claim re-assessed for transfer to ESA: if they fail the WCA, then they are not entitled either to their former incapacity benefit or to ESA.

Apart from testing for limited capability for work, the WCA also includes a test of whether the claimant has ‘limited capability for work-related activity’. This test does not decide if the claimant is considered capable of work. Instead, it is used to decide which additional component a claimant entitled to ESA should be awarded, ie either the work-related activity component or the support component. This part of the WCA is described in section 3.

Appeals are possible against decisions that include determinations about the WCA, including that the claimant does not have limited capability for work (ie, fails the WCA) or that the claimant does not have limited capability for work-related activity (ie, is not to be awarded the support component). Some more information on appeals is in section 5.

The WCA also used to include a ‘work-focused health-related assessment’. This is an assessment used to provide information about medical issues regarding a claimant’s ability to undertake work, eg workplace health hazards, possible medical interventions, etc. Use of the work-focused health-related assessment was suspended for a two year period from 19 July 2010.

2. How the WCA tests for limited capability for work

The WCA tests a claimant’s limited capability for work by considering three main questions:

• Is the claimant to be treated as having limited capability for work (sometimes, referred to as being exempt from, or automatically satisfying the WCA)?
• If the claimant is not to be treated as having limited capability for work, do certain statements (called ‘descriptors’) about limited capability to perform various tasks involving physical or mental health apply to them, so that they score a sufficient number of points? For the descriptors from 28 March 2011, see http://www.legislation.gov.uk/uksi/2011/228/schedule/1/made.
• If the claimant is neither treated as having limited capability for work nor scores enough points, does an ‘exceptional circumstance’ apply to them so that they are to be regarded as having limited capability for work?

The WCA is the subject of a constant process of review and revision, and the descriptors in particular are liable to change. The most recent revisions, bringing in a number of changes to the descriptors, take effect on 28 March 2011. Claimants who were assessed under the previous version of the WCA will have this new version applied to them when they are next re-assessed.

What is the process and will there be a medical?

Unless the claimant is identified as ‘exempt’ from the WCA (see below) they will be sent a self-assessment questionnaire (an ESA50) to complete and return. The questionnaire asks them about their capability to carry out the tasks that are set out in the WCA. A medical may follow.
Note: A common problem with both the questionnaire and medicals is that variations in a claimant’s capabilities, particularly due to having good days or bad days or the effects of medication, are not sufficiently taken account of. In practice, a descriptor should apply if it would apply most of the time; but if not it may still apply if when it does apply the claimant is particularly badly affected. Aids and prostheses that are normally used are taken into account. Claimants should explain as clearly as possible about things like pain and variability in their condition, and not wait to be asked about them.

If the DWP think someone clearly passes the WCA on the basis of the questionnaire alone then they will not be called for a medical, otherwise a medical will be arranged. At the medical, an ‘examining health professional’ (a registered doctor, registered nurse, or registered physiotherapist or occupational therapist) examines the claimant in an interview that usually lasts around 45 minutes, but occasionally can be much shorter. The examining health professional completes a medical report which identifies which of the statements about limited capability for work in the WCA they think apply to the claimant, and consequently which points should be awarded. This report (an ESA85) is sent to the DWP decision maker, who actually makes the decision on whether the claimant passes or fails the WCA. In practice, decision makers very rarely go against the medical report.

If the claimant either fails to return the questionnaire or fails to attend and take part in the medical and they are not considered to have good cause for this, they will be treated as not having limited capability for work, ie they will fail the WCA and not be entitled to ESA.

What about exemptions?

In effect, people who are treated as having limited capability for work are exempt from the WCA, in that they can pass it without having to score points or have an exceptional circumstance applied to them. A claimant is treated as having limited capability for work if they are:

• Terminally ill;
• Receiving intravenous, intraperitoneal or intrathecal chemotherapy or recovering from such treatment, or (in assessments from 28 March 2011) likely to receive such treatment within 6 months of the decision on their limited capability for work;
• Pregnant or have recently given birth (not if entitled to statutory maternity pay; if entitled to maternity allowance, must still be within the maternity allowance period);
• An inpatient in hospital or recovering from inpatient treatment (in assessments from 28 March 2011, this includes where they are attending a residential programme of rehabilitation for drug or alcohol addiction);
• Receiving or recovering from plasmapherisis or radiotherapy, regular weekly haemodialysis for chronic renal failure, or regular weekly treatment for total parenteral nutrition for gross impairment of enteric function.

Does the WCA have to be satisfied straight away?

Yes, in the sense that to be entitled to ESA a claimant must have limited capability for work. But someone making a new claim for ESA will normally be treated as having limited capability for work as long as they submit a medical certificate, until the WCA is actually applied to them and a decision made as to whether they pass or fail it. If however they have failed the WCA within the last six months, then unless they are appealing against that decision they will not be treated as having limited capability for work until the WCA is actually applied, except where they have had a significant worsening in their condition or they have a new condition.

Claimants who are being transferred from benefit for incapacity for work and re-assessed for ESA will remain entitled to their incapacity benefit during the re-assessment process and will not need to make a claim for ESA, so normally will not need to submit a medical certificate.

If the WCA is passed, ESA may be awarded and it will not be necessary to continue submitting medical certificates.

What about points?

To score enough points to pass the WCA, a claimant must reach a ‘threshold’ score of at least 15 points. Points are awarded if certain statements (called ‘descriptors’) about limited capability to perform various tasks are applied to the claimant.

There are descriptors concerning both physical health and mental health problems, under headings called ‘activities’. Each descriptor carries a points score, either 6, 9 or 15 points. The highest scoring descriptor under each activity applies. Points from different activities can be combined, eg so that a claimant can reach the threshold 15 points by scoring 9 points in the physical health descriptors and 6 points in the mental health descriptors.

What if the claimant does not score enough points?

If the claimant is neither treated as having limited capability for work nor scores enough points to pass the WCA, their final chance of passing it is if an ‘exceptional circumstance’ applies to them. In such cases, if an exceptional circumstance does not apply, the claimant will have failed the WCA and will not be entitled to ESA. An exceptional circumstance will apply if:

• There is medical evidence that the claimant has an uncontrolled or uncontrollable life-threatening disease, or
• Because of the claimant’s condition, there would be a substantial risk to the mental or physical health of any person were the claimant held to have failed the WCA.
  Note: This is an important rule for people with conditions like heart problems, or some mental health conditions, where ability to carry out the tasks set out in the descriptors is not usually a problem, but the overall effect of having to do them regularly and repeatedly in a workplace setting would pose a ‘substantial risk’ to health.

3. Limited capability for work-related activity

At the same time that the claimant has their limited capability for work tested, they are also tested as part of the WCA to see if they have ‘limited capability for work-related activity’. If they do, then they are awarded the support component of ESA (ie, placed in the support group). That means that they get a slightly higher amount of ESA once the assessment phase has finished, and that they are exempt from the conditionality rules for ESA, ie they do not have to attend work-focused interviews or (when it is introduced) engage in work-related activity.

If the claimant is considered not to have limited capability for work-related activity, they are awarded the work-related activity component of ESA (ie, placed in the work-related activity group). That means that they get a slightly lower amount of ESA once the assessment phase has finished, and that they are required to comply with the conditionality rules for ESA, ie to attend work-focused interviews and (when it is introduced) engage in work-related activity.

The process is similar the way the WCA tests for limited capability for work. Some claimants are automatically regarded as having limited capability for work-related activity (see the bullet points below). Those that are not are assessed as having limited capability for work if one or more statements (‘descriptors’) describing limited capability for work in certain activities apply to them. Unlike in the assessment of limited capability for work, there are no points scored: the claimant is assessed as having limited capability for work-related activity simply because one or more of the descriptors apply. A descriptor will apply if it applies for the majority of the time; the claimant is treated as wearing/using any prosthesis/aid that they normally use. For the descriptors, see http://www.legislation.gov.uk/uksi/2011/228/schedule/2/made.

As in the assessment for limited capability for work, in most cases the process may involve the claimant filling in a self-assessment questionnaire. If the DWP medical service are not satisfied that they can award limited capability for work-related activity on the basis of the completed questionnaire and other evidence, the claimant is assessed further at a medical. In practice, this is the same medical at which they are assessed for limited capability for work.

If the claimant either fails to return the questionnaire or fails to attend and take part in the medical and they are not considered to have good cause for this, they will be treated as not having limited capability for work-related activity, ie they will not be awarded the support component, and will instead get the work-related activity component.

A claimant is automatically treated as having limited capability for work (ie, they do not need to have a descriptor applied if:

• They have a terminal illness, or
• They are receiving intravenous, intraperitoneal or intrathecal chemotherapy treatment, or recovering from that treatment, or (in assessments from 28 March 2011) are due to receive such treatment within 6 months of their limited capability for work-related activity being determined, or
• Because of a specific disease or disablement there would be a substantial risk to the physical or mental health of the claimant or someone else, were they to be found not to have limited capability for work-related activity, or
• The claimant is pregnant and there would be a serious risk of damage to their health or the health of the baby if they did not refrain from work-related activity.
  

4. Appeals

Decisions that the claimant does not have limited capability for work (ie, fails the WCA) can be appealed against, to an independent First-tier Tribunal. This includes where the claimant has been subject to the transfer from incapacity for work benefits to ESA, and has failed the WCA. Appeals can also be made as to whether the claimant has limited capability for work-related activity, ie as to whether they should have been placed in the support group for WCA.

Appeals can also be made against decisions that the claimant has failed the WCA because they failed without good cause to return the questionnaire or attend the medical. Appeals can also be made against decisions on the ‘limited capability for work-related activity’ part of the WCA, ie as to whether the claimant is entitled to the work-related activity component or the support component.

The time limit for appealing is one month from date of the decision was sent (late appeals may be possible up to 13 months after the decision).

The tribunal does not carry out a medical, but will ask the claimant at lot of questions about their capabilities, and sometimes about what happened at the medical.
Note: Appeals may be worthwhile as the success rate is high: approximately 40% of appeals against WCA failures are allowed by tribunals. The success rate is higher where the claimant is represented. Appeals are often successful because of faults being identified in the ESA85 medical report, and/or supportive medical evidence being submitted on behalf of the claimant, hence the value of representation.

Whilst appealing, it is normally possible to get ESA at least up until the tribunal make their decision, although this ‘ESA pending appeal’ is paid only at the basic assessment phase rate, meaning no additional component is included. Alternatively, claimants may claim jobseekeer’s allowance (JSA) pending the appeal, although to do that they will need to satisfy the jobseeking conditions.

It is also possible to ask the DWP to look at the decision again, by asking for a revision. Again, the basic time limit is one month (late requests may be possible up to 13 months from the date you were sent the decision).

5. Rules, guidance and caselaw

The main rules for the WCA are contained in The Employment and Support Allowance Regulations 2008, SI 2008 No.794, via http://www.legislation.gov.uk/uksi/2008/794/contents/made (note: this is the original version of the regulations and does not include amendments).
Regulations 19-33 deal with limited capability for work, regulations 34-39 with limited capability for work-related activity.
The activities, descriptors and points for the limited capability for work test are in Schedule 2 to the regulations, and the activities and descriptors for the limited capability for work-related activity are in Schedule 3 to the regulations. However currently the most recent version of the tests, and amendments to the regulations (from 28 March 2011) are contained within The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011, SI 2011 No.228, via http://www.legislation.gov.uk/uksi/2011/228/contents/made.
The activities, descriptors and points for the WCA, are reproduced as appendices in CPAG’s Welfare Benefits and Tax Credits Handbook.

Official guidance for DWP decision makers is contained in Chapter 42 of the Decision Makers Guide, http://www.dwp.gov.uk/docs/dmgch42.pdf.

Official guidance for examining health professionals is not available on official (DWP) websites, but the original (2008) version is available from the Disability Alliance website at http://www.disabilityalliance.org/esahandbook.pdf.

Caselaw on the WCA is mainly in the form of decision of the Upper Tribunal. Such decisions are available via http://www.osscsc.gov.uk/Decisions/decisions.htm. Commentary on caselaw, regarded as authoritative by appeal tribunals, is in the commentary to the Employment and Support Allowance Regulations 2008 in Volume I of Social Security Legislation 2010/11, published by Sweet and Maxwell. Summaries of decisions and related material are available in CPAG’s Welfare Rights Bulletin, CPAG’s online services at http://onlineservices.cpag.org.uk/home, the Adviser magazine, and on Rightsnet, http://www.rightsnet.org.uk/.