Have you failed a Work Capability Assessment?

Failing the Work Capability Assessment

Universal Credit

Failing the Work Capability Assessment in Universal Credit

Check which descriptors and points the client could meet in the work capability assessment

- LCW
- LCWRA

Ask for a mandatory reconsideration. Contact the benefits office that gave you the decision. The contact details will be on your decision letter. You can contact them:

- using your journal (if you get Universal Credit)
- by phone
- by letter
- by filling in and returning a form for asking for mandatory reconsideration

If decision was made more than 1 month ago, request a late mandatory reconsideration, giving grounds for client’s case AND reasons for lateness

* Current consultation on the Work Capability Assessment

5 September 2023:

The government has launched a consultation on reform of the work capability assessment

Through the consultation, the DWP are seeking views on:

amending the activities and descriptors in the Work Capability Assessment so that assessments reflect greater flexibility and availability of reasonable adjustments in work, particularly home working. This includes whether some of the activities and descriptors can be removed or amended, or whether the points for some LCW activities can be reduced.
the application of Risk to Self or Others under the Universal Credit (UC) and Employment and Support Allowance (ESA) circumstances in which a claimant is to be treated as having LCWRA. This is to ensure that people with the greatest need for help are receiving the right support.

Articles:

Employment & Support Allowance

Failing the Work Capability Assessment in ESA

First failure of WCA

Check which descriptors and points the client could meet in the work capability assessment:

- LCW
- LCWRA

Client should request a mandatory reconsideration, giving grounds for their case, requesting payment on appeal and any additional evidence AND should also lodge an appeal immediately on an SSCS1 form. (The High Court has ruled that the requirement to go through the Mandatory Reconsideration process before an appeal can be lodged is unlawful for this group of claimants, they can now appeal straight away).

Second or subsequent failure of WCA

No payment pending appeal.
Assist with mandatory reconsideration.
Client can claim UC but, as they will not be able to return to ESA even if appeal successful, client must choose either to wait to find out if mandatory reconsideration is successful or to claim Universal Credit if client cannot afford to go without money.

Scoring points

ESA Work-related activity group or UC Limited capability for work group (LCW)

The DWP award points for every part of the Capability for Work questionnaire.

Each activity is divided into different ‘descriptors’, which explain related tasks of varying degrees of difficulty. These have scores, ranging from 0 to 15 points. You score points when you are not able to perform a task described reliably and repeatedly. You add together the highest score from each activity that applies to you.

To score points you must have a health condition that means you cannot work and cannot do work-related activities.

You must score 15 points or more across the Capability for Work questionnaire to show that you have LCW.

The activities cover both physical and mental health and the points from both can be combined.

To pass the WCA, your physical and/or mental health condition needs to affect you 50% of the time. You will be assessed on whether you can carry out certain activities within a reasonable amount of time.

If you are found not to have limited capability for work, you can challenge the decision.

ESA Support group or UC Limited capability for work-related activity group (LCWRA)

The assessment has a list of descriptors, relating to both physical functions and mental, cognitive or intellectual functions. If you meet at least one of them, you will have a limited capability for work-related activity.

You will be automatically treated as having a limited capability for work-related activity in some circumstances (See exceptional circumstances).

If you are found not to have a limited capability for work-related activity, you can challenge the decision.

Regulations

Universal Credit

UC Limited capability for work group (LCW)

(The Universal Credit Regulations 2013 Schedule 6)

UC Limited capability for work-related activity group (LCWRA)

(The Universal Credit Regulations 2013 Schedule 7)

Employment & Support Allowance

ESA Work-related activity group

(The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 Schedule 1)

ESA Support group

(The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 Schedule 2)

Limited capability for work group (LCW) or ESA Work-related activity group descriptors

Physical disabilities

Activity 1: Moving around without the help of another person – including using a walking stick, manual wheelchair or other aid you could use.

Descriptors:

(a) Cannot move more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or cannot repeatedly move 50 metres within a reasonable timescale because of significant discomfort or exhaustion – 15 Points

(b) Cannot go up or down two steps without the help of another person, even with the support of a handrail – 9 Points

(c) Cannot move more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or cannot do it repeatedly within a reasonable timescale because of significant discomfort or exhaustion – 9 Points

(d) Cannot move more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or cannot do it repeatedly within a reasonable timescale because of significant discomfort or exhaustion – 6 Points

Activity 2: Standing and sitting

Descriptors:

(a) Cannot move between one seated position and another seated position located next to one another without receiving physical help from another person –15 Points
(b) Cannot, for the majority of the time, remain at a work station, either:

(i) standing without help from 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 Points

(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 points

Activity 3: Reaching

Descriptors:

(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

Activity 4: Picking up and moving or things using your upper body and arms

Descriptors:

(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

Activity 5: Manual dexterity

Descriptors:

(a) Cannot press a button or turn the pages of a book with either hand – 15 Points
(b) Cannot pick up a £1 coin with either hand – 15 Points
(c) Cannot use a pen or pencil to make a meaningful mark – 9 Points
(d) Cannot use a suitable keyboard or mouse – 9 Points

Activity 6: Making yourself understood through speaking, writing, typing, or other means, without help from someone else

Descriptors:

(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

Activity 7: Understanding communication by either verbal means (such as hearing or lip reading) and non-verbal means (such as reading large print), using anything to help that you could use (glasses, hearing aid etc), without help from someone else

Descriptors:

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

Activity 8: Finding your way and being safe, using a guide dog or other aid if normally used

Descriptors:

(a) Unable to find your way around familiar places, without the help of another person, due to sensory impairment – 15 Points
(b) Cannot safely cross the road (or complete another potentially dangerous task), without the help of another person, due to sensory impairment – 15 Points
(c) Unable to find your way around unfamiliar places, without the help of another person, due to sensory impairment – 9 points

Activity 9: Extensive incontinence (other than bed-wetting) despite using any aids normally used

Descriptors:

(a) At least once a week experiences loss of control leading to incontinence, or substantial leakage of the contents of a collecting device, so that you need to wash and change your clothes –15 Points
(b) At least once a month experiences loss of control leading to incontinence, or substantial leakage of the contents of a collecting device, so that you need to wash and change your clothes –15 Points (this doesn’t entitle you to be in the Support or LCWRA group, but once a week – above – does)

(c)At risk of incontinence, bad enough for you to need to wash and change your clothes, if you are not able to reach a toilet quickly – 6 Points

Activity 10: Consciousness during waking moments

Descriptors:

(a) At least once a week, has an involuntary episode of lost or altered consciousness that causes significant reduction in awareness or concentration – 15 Points
(b) At least once a month, has an involuntary episode of lost or altered consciousness that causes significant reduction in awareness or concentration – 6 Points

Mental, cognitive and intellectual function

Activity 11: Learning tasks

Descriptors:

(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 – 6 Points

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

Descriptors:

(a) Reduced awareness of everyday hazards so that there is a significant risk that they will hurt themselves or others, or damage property or possessions, so that they need supervision most of the time to stay safe – 15 Points
(b) Reduced awareness of everyday hazards so that there is a significant risk that they will hurt themselves or others, or damage property or possessions, so that they need frequent supervision to stay safe – 9 Points
(c) Reduced awareness of everyday hazards so that there is a significant risk that they will hurt themselves or others, or damage to property or possessions, so that they occasionally need supervision to stay safe – 6 Points

Activity 13: Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks without needing prompting from somebody else)

Descriptors:

(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 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 personal actions.
6 Points

Activity 14: Coping with change

Descriptors:

(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

Activity 15: Getting about

Descriptors:

(a) Cannot get to any specified place with which the claimant is familiar –15 Points
(b) Is unable to go to a familiar place without being accompanied by another person – 9 Points
(c) Is unable to go to an unfamiliar place without being accompanied by another person – 6 Points

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

Descriptors:

(a) Engagement in social contact is always impossible due to difficulty relating to others or significant distress experienced by the individual – 15 points
(b) Engagement in social contact with someone unfamiliar is impossible due to difficulty relating to others or significant distress experienced by the individual – 9 Points
(c) Engagement in social contact with someone unfamiliar is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual – 6 Points

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

Descriptors:

(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 – 9 Points

Activity 18: Conveying food or drink to the mouth. If any of the below descriptors apply, you should automatically be put in the support group (ESA) or Limited capability for work-related activity group (Universal Credit).

(a) Cannot get food or drink to own mouth without physical help from someone else
(b) Cannot get food or drink to own mouth without repeatedly stopping, experiencing breathlessness or severe discomfort;
(c) Cannot get food or drink to own mouth without needing somebody with you to regularly prompt or remind you

(d) Fails to get food or drink to own mouth without receiving either physical help from somebody else or needing somebody with you to regularly prompt or remind you, because of a severe disorder of mood or behaviour

Activity 19: Chewing or swallowing food or drink. If any of the below descriptors apply, you should automatically be put in the support group (ESA) or Limited capability for work-related activity group (Universal Credit).

(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 needing somebody with you to repeatedly and regularly prompt or remind you
(d) Fails to chew or swallow food or drink or fails to do so without needing somebody with you to regularly prompt or remind you, because of a severe disorder of mood or behaviour

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Limited capability for work-related activity group (LCWRA) or ESA Support group Descriptors

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:

- Mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or
- Repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

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.

Reaching.

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

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

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

Manual dexterity. Cannot either:

- Press a button, such as a telephone keypad; or
- Turn the pages of a book with either hand.

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

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

Understanding communication by hearing, lip reading, reading 16 point print or using any aid if reasonably used.

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

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:

- Loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or
- Substantial leakage of the contents of a collecting device sufficient to require the individual to clean themselves and change clothing.

Learning tasks.

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

Awareness of hazard.

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

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 two sequential personal actions.

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.

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.

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.

Conveying food or drink to the mouth.

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

Chewing or swallowing food or drink.

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

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Exceptional circumstances

Substantial risk

If you do not get 15 points or more, you can still get the benefit if you can argue that there is a risk that you (or someone else) would be in danger if you were refused.

Employment & Support Allowance

Exceptional circumstances ESA Work-related activity group

Certain claimants to be treated as having limited capability for work

Reg 29 (2)(b)

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

(2) This paragraph applies if—

(a) the claimant is suffering from a life-threatening disease in relation to which—

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii) 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; or

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

Exceptional circumstances ESA Support group

Certain claimants to be treated as having limited capability for work-related activity

Reg 35 (2)(b)

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

a) the claimant suffers from some specific disease or bodily or mental disablement; and

b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity

Universal Credit

Exceptional circumstances UC Limited capability for work group (LCW)

Certain claimants to be treated as having limited capability for work (Risk to self or others)

Paragraph 4 of schedule 8 to the Universal Credit Regulations 2013 provides that a claimant is to be treated as having limited capability for work if the circumstances below apply –

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

This paragraph does not apply where the risk could be reduced by a significant amount by –

(a) reasonable adjustments being made in the claimant’s workplace; or

(b) the claimant taking medication to manage their condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant

Exceptional circumstances UC Limited capability for work-related activity group (LCWRA)

– Certain claimants to be treated as having limited capability for work-related activity (Risk to self or others)

Paragraph 4 of schedule 9 to the Universal Credit Regulations 2013 provides that a claimant is to be treated as having limited capability for work-related activity if –

Useful Links

WCAInfo – an adviser guide to work capability assessment regulations & case law
Getting Universal Credit if you’re sick or disabled – Citizens Advice
Universal Credit Limited Capability for Work – Entitledto
Employment and Support Allowance (ESA) activities and descriptors, and ‘substantial risk’ | Advicenow
Universalcreditinfo – your quick reference guide to universal credit regulations, guidance and case law
Work Capability Assessment | Disability Rights UK
Work Capability Assessment – Limited Capability for Work Related Activity | Turn2us
How to win a Work Capability Assessment appeal – free Digital Guide