2.1. ESA Regulations and Commentary

Limited Capability for Work (LCW)

Eligibility to be found to have LCW is based upon the application of descriptors in Schedule 2 of the Employment and Support Allowance Regulations 2008, laid out below.

At least 15 points must be scored, and they can be from a mixture of physical and mental/cognitive activities. If multiple descriptors apply for an activity then only the highest one is scored.

Limited Capability for work, physical disabilities assessment

Eligibility to be found to have LCW is based upon the application of descriptors in Schedule 2 of the Employment and Support Allowance Regulations 2008.

At least 15 points must be scored, and they can be from a mixture of physical and mental/cognitive activities. If multiple descriptors apply for an activity then only the highest one is scored.

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

a) Cannot unaided by another person either:

i) mobilise more than 50 meters on level ground without stopping in order to avoid significant discomfort or exhaustion; or

ii) repeatedly mobilise 50 meters within a reasonable timescale because of significant discomfort or exhaustion.

[15 points]
b) Cannot unaided by another person mount or descend two steps even with the support of a handrail. [9 points]
c) Cannot unaided by another person either:

i) mobilise more than 100 meters on level ground without stopping in order to avoid significant discomfort or exhaustion; or

ii)repeatedly mobilise 100 meters within a reasonable timescale because of significant discomfort or exhaustion.

[9 points]
d) Cannot unaided by another person 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 meters within a reasonable timescale because of significant discomfort or exhaustion.

[6 points]
e) None of the above applies. [0 points]

• Includes aids, but note restriction to a manual, not a powered, wheelchair.

• Double test: both mobilising and mobilising “repeatedly”.

• Even if can cover distance, the timescale is important too.

• Can be very difficult for claimants to work out how far they can mobilise – length of a bus is ~10m, and so number of bus lengths they can walk can be a useful guide.

Activity 2 – Sitting and standing

a) Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person. [15 points]
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.

[9 points]
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.

[6 points]
d) None of the above apply. [0 points]

• Very high threshold as allows moving between sitting and standing, and standing must be without the support of another person but with reasonable aids or appliances.

• Assessed in relation to function at a workstation, so standing with two crutches would not be suitable as the claimant would not be able to interact with the workstation.

• If this descriptor is argued for in the submissions, the Tribunal may query an Appellant sitting during the hearing and exceeding the length of time described.

Activity 3 – Reaching

a) Cannot raise either arm as if to put something in the top pocket of a coat or jacket. [15 points]
b) Cannot raise either arm to top of head as if to put on a hat. [9 points]
c) Cannot raise either arm above head height as if to reach for something. [6 points]
d) None of the above apply. [0 points]

• Issue must be with both arms

• Relates to upper limb function but not manual dexterity

Activity 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 points]
b) Cannot pick up and move a one litre carton full of liquid. [9 points]
c) Cannot transfer a light but bulky object such as an empty cardboard box. [6 points]
d) None of the above apply. [0 points]

• Object is picked up from waist height, so descriptor does not include ability to bend down nor to reach upwards.

• Containers full of liquid are closed (and so problems with would otherwise spill liquid are not applicable) and the descriptor does not include the ability to pour.

Activity 5 – Manual dexterity

a) Cannot press a button (such as a telephone keypad) with either hand or cannot turn the pages of a book with either hand. [15 points]
b) Cannot pick up a £1 coin or equivalent with either hand. [15 points]
c) Cannot use a pen or pencil to make a meaningful mark. [9 points]
d) Cannot single-handedly use a suitable keyboard or mouse. [9 points]
e) None of the above applies. [0 points]

• One can adequately use a keyboard for the purposes of (d) with one hand, and a claimant has to be unable to use both a keyboard AND a mouse.  

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

a) Cannot convey a simple message, such as the presence of a hazard. [15 points]
b) Has significant difficulty conveying a simple message to strangers. [15 points]
c) Has some difficulty conveying a simple message to strangers. [6 points]
d) None of the above applies. [0 points]

• If can make self understood by any one of the above means, then the descriptor does not apply.

Activity 7 – Understanding communication by:

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.

a) Cannot understand a simple message such as the location of a fire escape due to sensory impairment. [15 points]
b) Has significant difficulty understanding a simple message from a stranger due to sensory impairment. [15 points]
c) Has some difficulty understanding a simple message from a stranger due to sensory impairment. [6 points]
d) None of the above applies. [0 points]

• Can be satisfied on the basis of either hearing or sight difficulties.

• Claimant needs to be impaired in understanding either spoken or written communication but not both.

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

a) Unable to navigate around familiar surroundings, without being accompanied by another person, due to sensory impairment. [15 points]
b) Cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment. [15 points]
c) Unable to navigate around unfamiliar surroundings, without being accompanied by another person, due to sensory impairment. [9 points]
d) None of the above applies. [0 points]

• The effect of visual deterioration on confidence should be taken into account

• Can give details of colliding with things or people, getting lost, incidents with traffic etc.

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.

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.

[15 points]
b) The majority of the 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. [6 points]
c) None of the above applies. [0 points]

• Very common that this is under-investigated during the Work Capability Assessment. Additionally, clients under-report, both due to embarrassment and the situation becoming normalised.

• Key points are the full vs partial voiding/evacuation, need for change of clothes, frequency

• The tribunal should focus on the risk  of the full voiding of the bladder if the claimant was not able to reach a toilet quickly, rather than whether this has actually happened.

• The descriptor can be satisfied even where the claimant is able to exercise control for a certain amount of time before losing control.

Activity 10 – Consciousness during waking moments.

a) At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration. [15 points]
b) At least once a month, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration. [6 points]
c) None of the above applies. [0 points]

• Frequently overlooked in Work Capability Assessment. Altered consciousness – a definite clouding of mental faculties resulting in a loss of control of thoughts and actions.

• Drug-induced drowsiness may satisfy the test.

Limited capability for work, cognitive and intellectual function assessment

Activity 11 – Learning tasks.

a) Cannot learn how to complete a simple task, such as setting an alarm clock. [15 points]
b) Cannot learn anything beyond a simple task, such as setting an alarm clock. [9 points]
c) Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes. [6 points]
d) None of the above applies. [0 points]

• Can substitute in other tasks at a similar level based on individual claimant’s capabilities

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

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.

[15 points]
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 the claimant frequently requires supervision to maintain safety.

[9 points]
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 the claimant occasionally requires supervision to maintain safety.

[6 points]
d) None of the above applies. [0 points]

• Can mention any accidents had a result of poor hazard awareness.

• According to the DWP handbook for assessors: “Reflects a lack of understanding and insight that something is dangerous or that there is an impaired ability to recognise that a situation will present a potential hazard… if a person knows that there is a risk and therefore avoids the situation, they would not score in this category”.

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

a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions. [15 points]
b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions for the majority of the time. [9 points]
c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions. [6 points]
d) None of the above applies. [0 points]

• Test is whether the claimant can initiate and complete personal action without the need for external prompting.

• Actions must be effective – so washing hands for an OCD sufferer may become unlinked to the goal of the action, and is therefore no longer effective.

• Particularly relevant for fatigue, depression, OCD, anxiety.

Activity 14 – Coping with change

a) Cannot cope with any change to the extent that day to day life cannot be managed. [15 points]
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. [9 points]
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. [6 points]
d) None of the above apply. [0 points]

• Doesn’t require daily incidents of non-coping, but must be a true inability to cope, not simple dislike.

Activity 15 – Getting about

a) Cannot cope with any change to the extent that day to day life cannot be managed. [15 points]
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. [9 points]
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. [6 points]
d) None of the above applies. [0 points]

• Can be caused by conditions causing problems with orientation, or psychological distress.

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

a) Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the claimant. [15 points]
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 claimant. [9 points]
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 claimant. [6 points]
d) None of the above applies. [0 points]

• “Always” means “repeatedly”, “persistent”, or “often”, not every single moment.

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

a) Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. [15 points]
b) Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. [15 points]
c) Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. [6 points]
d) None of the above applies. [0 points]

•  Can be verbal or physical or both.

Limited Capability for Work-Related Activity (LCWRA)

Eligibility to be found to have LCWRA is based upon the application of descriptors in Schedule 3 of the Employment and Support Allowance Regulations 2008.

If any one or more of the following descriptors are found to apply to the Appellant they will be found to have LCWRA.

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 meters on level ground without stopping in order to avoid significant discomfort or exhaustion; or
b) repeatedly mobilise 50 meters 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 Schedule)

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

Activity 5 – Manual dexterity

Cannot press a button (such as a telephone keypad) with either hand or cannot 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:

(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.

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

Activity 8 – 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.

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 the claimant requires 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 claimant.

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 or 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.

Exceptional Circumstances – Regulations 29 and 35

Under Regulation 29 claimants who fail to achieve 15 points from Schedule 2 must still be treated as having LCW if they suffer from a specific bodily or mental disablement which means there would be a substantial risk to their health, or the health of another person, if they were found not to have LCW.

Charlton v SSWP [2009] EWCA Civ 42 considered the equivalent provision that existed for Incapacity Benefit, and its findings are still held to apply to the consideration of Reg 29 for ESA. It laid out four situations in which finding a claimant to not have LCW may cause them substantial harm:

  • the mere communication of the decision
  • the consequences of having to sign on for jobseeker’s allowance
  • having to perform the sort of work the claimant could be expected to get
  • travelling to work

Regulation 35 is the corresponding test for LCWRA; and allows for claimants, when no Schedule 3 descriptor can be applied, to be found to have LCWRA if a failure to do so would risk substantial harm to their physical or mental health.

CPAG has further useful case law and advice on arguing using Regs 29 and 35. It is worth noting that due to the rigidity and narrowness of the ESA activities, Reg 29 and 35 arguments are present in the vast majority of submissions.

Last updated on February 22nd, 2019 at 04:03 pm