Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011

Consolidated Text Cited authorities 9 Cited in Related
Vincent
JurisdictionUK Non-devolved
CitationSI 2011/228
Year2011

2011 No. 228

Social Security

The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011

Made 8th February 2011

Laid before Parliament 16th February 2011

Coming into force 28th March 2011

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 8(1), 9(1), 24(1)1and 25(5) of, and paragraphs 1 and 9 of Schedule 2 to, the Welfare Reform Act 20072.

In accordance with section 172(1) of the Social Security Administration Act3the Secretary of State referred the proposals for these Regulations to the Social Security Advisory Committee.

S-1 Citation, commencement and interpretation

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 and shall come into force on 28th March 2011.

(2) In these Regulations:—

“the ESA Regulations” means the Employment and Support Allowance Regulations 20084;

“the Reassessment Regulations” means the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 20105.

S-2 Application

Application

2.—(1) These Regulations apply to:—

(a)

(a) a person who makes a claim for an employment and support allowance on or after 28 March 2011 (including a claim in respect of any period before that date);

(b)

(b) subject to paragraphs (2) and (3), a person who made a claim for an employment and support allowance before 28 March 2011 in respect of whom a determination is made on or after that date as to whether that person has or is to be treated as having limited capability for work under Part 5 of the ESA Regulations or as to whether that person has or is to be treated as having limited capability for work-related activity under Part 6 of those Regulations;

(c)

(c) subject to paragraphs (2) and (3), a person who is entitled to an employment and support allowance immediately before 28 March 2011 in respect of whom, on or after that date–

(i) the Secretary of State determines afresh under regulation 19(7) of the ESA Regulations whether the person has or is to be treated as having limited capability for work;

(ii) the Secretary of State determines afresh under regulation 34(4) of the ESA Regulations whether the person has or is to be treated as having limited capability for work-related activity; and

(d)

(d) subject to paragraphs (2) and (3), a notified person as defined by regulation 4 of the Reassessment Regulations6in respect of whom a determination is made on or after 28 March 2011 as to whether that person has or is to be treated as having limited capability for work under Part 5 of the ESA Regulations7or as to whether that person has or is to be treated as having limited capability for work-related activity under Part 6 of the ESA Regulations.

(2) Where, before 28 March 2011, a questionnaire relating to the previous version of Schedule 2 to the ESA Regulations was issued to a person in accordance with regulation 21(1)(b) of those Regulations (information required for determining capability for work), regulation 4(1) does not apply to that person for the purposes of making a determination as to limited capability for work under Part 5 of the ESA Regulations;

(3) Where, before 28 March 2011, a questionnaire relating to the previous version of Schedule 3 to the ESA Regulations was issued to a person in accordance with regulation 36(1)(a) of those Regulations (information required for determining capability for work-related activity) regulation 4(2) does not apply to that person for the purposes of making a determination as to limited capability for work-related activity under Part 6 of the ESA Regulations.

(4) In this regulation “the previous version of Schedule 2 to the ESA Regulations” and “the previous version of Schedule 3 to the ESA Regulations” mean those Schedules as they have effect immediately before the date on which these Regulations come into force.

(5) The provisions of paragraphs (2) to (4) do not apply to any determination made on or after 28 September 2011.

S-3 Amendment of the ESA Regulations

Amendment of the ESA Regulations

3.—(1) The ESA Regulations are amended as follows.

(2) In regulation 20 (certain claimants to be treated as having limited capability for work):—

(a)

(a) at the end of sub-paragraph (b)(i), after “chemotherapy”, insert “, or is likely to receive such treatment within 6 months after the date of the determination under this sub-paragraph”; and

(b)

(b) after paragraph (f) insert:—

“(g)

“(g) any of the descriptors at paragraph 15 or 16 of Schedule 3 apply to the claimant.”.

(3) In regulation 25 (hospital in-patients), after paragraph (1) insert:—

S-1A

“1A The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.”.

(4) In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity) at the end of sub-paragraph (b)(i), after “chemotherapy”, insert “, or is likely to receive such treatment within 6 months after the date of the determination under this sub-paragraph”.

S-4 Substitution of Schedules 2 and 3 to the ESA Regulations

Substitution of Schedules 2 and 3 to the ESA Regulations

4.—(1) For the provisions in Schedule 2 to the ESA Regulations (assessment of whether a claimant has limited capability for work) substitute the provisions in Schedule 1.

(2) For the provisions in Schedule 3 to the ESA Regulations (assessment of whether a claimant has limited capability for work-related activity) substitute the provisions in Schedule 2.

C Grayling

Minister of State,

Department for Work and Pensions

8th February 2011

SCHEDULE 1

SCHEDULE 1

“SCHEDULE 2

Regulation 19(2) and (3)

ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK

Part 1

Physical disabilities

(1)Activity

(2) Descriptors

(3)Points

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be 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.

15

(b)

Cannot mount or descend two steps unaided by another person even with the support of a handrail.

9

(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.

9

(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.

6

(e)

None of the above apply.

0

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.

15

(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)

for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.

9

(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)

for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion.

6

(d)

None of the above apply

0

3. Reaching.

3

(a)

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

15

(b)

Cannot raise either arm to top of head as if to put on a hat.

9

(c)

Cannot raise either arm above head height as if to reach for something.

6

(d)

None of the above apply.

0

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

(a)

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

15

(b)

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

9

(c)

Cannot transfer a light but bulky object such as an empty cardboard box.

6

(d)

None of the above apply.

0

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.

15

(b)

Cannot pick up a £1 coin or equivalent with either hand.

15

(c)

Cannot use a pen or pencil to make a meaningful mark.

9

(d)

Cannot use a suitable keyboard or mouse.

9

(e)

None of the above apply.

0

6. Making self understood through speaking, writing, typing, or other means normally used, unaided by another person.

6

(a)

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

15

(b)

Has significant difficulty conveying a simple message to strangers.

15

(c)

Has some difficulty conveying a simple message to strangers.

6

(d)

None of the above apply.

0

7. Understanding communication by both verbal means (such as hearing or lip reading) and non-verbal means (such as reading 16 point print) using any aid it is reasonable to expect them to use, unaided by another person.

7

(a)

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

15

(b)

Has significant difficulty understanding a simple message from a stranger due to sensory impairment.

15

(c)

Has some difficulty understanding a simple message from a stranger due to sensory impairment.

6

(d)

...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT