The Employment & Support Allowance 2008
These notes are intended to be of use and benefit to persons seeking to claim employment support allowance – they are not a definitive statement of the law – claimants are advised to seek advice which may be obtained from the CAB and similar agencies – DLC Solicitors does not provide an advice service in this field of law.
To qualify for employment and support allowance a claimant must achieve 15 points on assessment of whether a claimant has limited capability for work (see schedule 2 below).
To qualify for additional support a claimant must satisfy at least one of the criteria in respect of limited capability for work related activity (see schedule 3 below).
Claimants may be exempt if they are terminally ill, receiving certain specified treatment or if they are pregnant and meet certain criteria (see section 20 below).
Claimants may in exceptional circumstances be treated as if having limited capability for work (see section 29 below).
The section and schedule numbers refer to The Employment and Support Allowance Regulations 2008.
(Statutory Instrument 2008 No 794 Social Security).
SCHEDULE 2
ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED
CAPABILITY FOR WORK
PART 1 Physical disabilities
1. Walking with a walking stick or other aid if such aid is normally used.
1 (a) Cannot walk at all. 15
(b) Cannot walk more than 50 metres on level ground without repeatedly stopping or severe discomfort. 15
(c) Cannot walk up or down two steps even with the support of a handrail. 15
(d) Cannot walk more than 100 metres on level ground without stopping or severe discomfort. 9
(e) Cannot walk more than 200 metres on level ground without stopping or severe discomfort. 6
(f) None of the above apply. 0
2. Standing and sitting.
2 (a) Cannot stand for more than 10 minutes, unassisted by another person, even if free to move around, before needing to sit down. 15
(b) Cannot sit in a chair with a high back and no arms for more than 10 minutes before needing to
move from the chair because the degree of discomfort experienced makes it impossible to continue sitting. 15
(c) Cannot rise to standing from sitting in an upright chair without physical assistance from another person. 15
(d) Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person. 15
(e) Cannot stand for more than 30 minutes, even if free to move around, before needing to sit
down. 6
(f) Cannot sit in a chair with a high back and no arms for more than 30 minutes without needing to
move from the chair because the degree of discomfort experienced makes it impossible
to continue sitting. 6
(g) None of the above apply. 0
3. Bending or kneeling.
3 (a) Cannot bend to touch knees and straighten up again. 15
(b) Cannot bend, kneel or squat, as if to pick a light object, such as a piece of paper, situated 15cm
from the floor on a low shelf, and to move it and straighten up again without the help of another person. 9
(c) Cannot bend, kneel or squat, as if to pick a light object off the floor and straighten up again
without the help of another person. 6
(d) None of the above apply. 0
4. Reaching.
4 (a) Cannot raise either arm as if to put something in the top pocket of a coat or jacket. 15
(b) Cannot put either arm behind back as if to put on a coat or jacket. 15
(c) Cannot raise either arm to top of head as if to put on a hat. 9
(d) Cannot raise either arm above head height as if to reach for something. 6
(e) None of the above apply. 0
5. Picking up and moving or transferring by the use of the upper body and arms (excluding all other
activities specified in Part 1 of this Schedule).
5 (a) Cannot pick up and move a 0.5 litre carton full of liquid with either hand. 15
(b) Cannot pick up and move a one litre carton full of liquid with either hand. 9
(c) Cannot pick up and move a light but bulky object such as an empty cardboard box, requiring
the use of both hands together. 6
(d) None of the above apply. 0
6. Manual dexterity.
6 (a) Cannot turn a “star-headed” sink tap with either hand. 15
(b) Cannot pick up a £1 coin or equivalent with either hand. 15
(c) Cannot turn the pages of a book with either hand. 15
(d) Cannot physically use a pen or pencil. 9
(e) Cannot physically use a conventional keyboard or mouse. 9
(f) Cannot do up/undo small buttons, such as shirt or blouse buttons. 9
(g) Cannot turn a “star-headed” sink tap with one hand but can with the other. 6
(h) Cannot pick up a £1 coin or equivalent with one hand but can with the other. 6
(i) Cannot pour from an open 0.5 litre carton full of liquid. 6
(j) None of the above apply. 0
7. Speech.
7 (a) Cannot speak at all. 15
(b) Speech cannot be understood by strangers. 15
(c) Strangers have great difficulty understanding speech. 9
(d) Strangers have some difficulty understanding speech. 6
(e) None of the above apply. 0
8. Hearing with a hearing aid or other aid if normally worn.
8 (a) Cannot hear at all. 15
(b) Cannot hear well enough to be able to hear someone talking in a loud voice in a quiet room, sufficiently clearly to distinguish the words being spoken. 15
(c) Cannot hear someone talking in a normal voice in a quiet room, sufficiently clearly to distinguish the words being spoken. 9
(d) Cannot hear someone talking in a loud voice in a busy street, sufficiently clearly to distinguish the words being spoken. 6
(e) None of the above apply. 0
9. Vision including visual acuity and visual fields, in normal daylight or bright electric light, with glasses or other aid to vision if such aid is normally worn.
9 (a) Cannot see at all. 15
(b) Cannot see well enough to read 16 point print at a distance of greater than 20cm. 15
(c) Has 50% or greater reduction of visual fields. 15
(d) Cannot see well enough to recognise a friend at a distance of a least 5 metres. 9
(e) Has 25% or more but less than 50% reduction of visual fields. 6
(f) Cannot see well enough to recognise a friend at a distance of at least 15 metres. 6
(g) None of the above apply. 0
10 (a) Continence other than enuresis (bed wetting) where the claimant does not have an artificial
stoma or urinary collecting device.
10 (a) (i) Has no voluntary control over the evacuation of the bowel. 15
10 (a) (ii) Has no voluntary control over the voiding of the bladder. 15
10 (a) (iii) At least once a month loses control of bowels so that the claimant cannot control the full
evacuation of the bowel. 15
10 (a) (iv) At least once a week, loses control of bladder so that the claimant cannot control the full
voiding of the bladder. 15
10 (a) (v) Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel. 9
10 (a) (vi) At least once a month loses control of bladder so that the claimant cannot control the full voiding of the bladder. 6
10 (a) (vii) Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly. 6
10 (a) (viii) None of the above apply. 0
10 (b) Continence where the claimant uses a urinary collecting device, worn for the majority of the time including an indwelling urethral or suprapubic catheter.
10 (b) (i) Is unable to affix, remove or empty the catheter bag or other collecting device without receiving physical assistance from another person. 15
10 (b) (ii) Is unable to affix, remove or empty the catheter bag or other collecting device without causing leakage of contents.15
10 (b) (iii) Has no voluntary control over the evacuation of the bowel. 15
10 (b) (iv) At least once a month, loses control of bowels so that the claimant cannot control the full
evacuation of the bowel. 15
10 (b) (v) Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel. 9
10 (b) (vi) Risks losing control of bowels so that the claimant cannot control the full evacuation of the
bowel if not able to reach a toilet quickly. 6
10 (b) (vii) None of the above apply. 0
10 (c) Continence other than enuresis (bed wetting) where the claimant has an artificial stoma.
10 (c) (i) Is unable to affix, remove or empty stoma appliance without receiving physical assistance from another person. 15
10 (c) (ii) Is unable to affix remove or empty stoma appliance without causing leakage of
contents. 15
10 (c) (iii) Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, at least once a week, loses control of bladder so that the claimant cannot control the full voiding of the bladder. 15
10 (c) (iv) Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, at last once a month, loses control of bladder so that the claimant cannot control the full voiding of the
bladder. 9
10 (c) (v) Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, risks losing control of the bladder so that the claimant cannot control the full voiding of the bladder if not able to reach a toilet quickly. 6
10 (c) (vi) None of the above apply. 0
11. Remaining conscious during waking moments.
11 (a) At least once a week, has an involuntary episode of lost or altered consciousness, resulting
in significantly disrupted awareness or concentration. 15
(b) At least once a month, has an involuntary episode of lost or altered consciousness, resulting
in significantly disrupted awareness or concentration. 9
(c) At least twice in the six months immediately preceding the assessment, has had an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration. 6
(d) None of the above apply. 0
PART 2
Mental, cognitive and intellectual function assessment
12. Learning or comprehension in the completion of tasks.
12 (a) Cannot learn or understand how to successfully complete a
simple task, such as setting an alarm clock, at all. 15
(b) Needs to witness a demonstration, given more than once on the same occasion, of
how to carry out a simple task before the claimant is able to learn or understand how to
complete the task successfully, but would be unable to successfully complete the task
the following day without receiving a further demonstration of how to complete it. 15
(c) Needs to witness a demonstration of how to carry out a simple task, before the
claimant is able to learn or understand how to complete the task successfully, but would be
unable to successfully complete the task the following day without receiving a verbal
prompt from another person. 9
(d) Needs to witness a demonstration of how to carry out a moderately complex task,
such as the steps involved in operating a washing machine to correctly clean clothes, before
the claimant is able to learn or understand how to complete the task successfully, but would be
unable to successfully complete the task the following day without receiving a verbal
prompt from another person. 9
(e) Needs verbal instructions as to how to carry out a simple task before the claimant is able to
learn or understand how to complete the task successfully, but would be unable, within a
period of less than one week, to successfully complete the task the following day without
receiving a verbal prompt from another person. 6
(f) None of the above apply. 0
13. Awareness of hazard.
13 (a) Reduced awareness of the risks of everyday hazards (such as boiling water or sharp objects)
would lead to daily instances of or to near-avoidance of:
(i) injury to self or others; or (ii) significant damage to property or possessions,
to such an extent that overall day to day life cannot successfully be managed. 15
(b) Reduced awareness of the risks of everyday hazards would lead for the majority of the time to
instances of or to nearavoidance of (i) injury to self or others; or (ii) significant damage to
property or possessions, to such an extent that overall day to day life cannot successfully be managed without supervision from another person. 9
(c) Reduced awareness of the risks of everyday hazards has led or
would lead to frequent instances of or to near-avoidance of:
(i) injury to self or others; or (ii) significant damage to property or possessions,
but not to such an extent that overall day to day life cannot be managed when such incidents
occur. 6
(d) None of the above apply. 0
14. Memory and concentration.
14 (a) On a daily basis, forgets or loses concentration to such an extent that overall day to day
life cannot be successfully managed without receiving verbal prompting, given by someone else in the claimant’s presence. 15
(b) For the majority of the time, forgets or loses concentration to such an extent that overall day
to day life cannot be successfully managed without receiving verbal prompting, given by someone else in the claimant’s presence. 9
(c) Frequently forgets or loses concentration to such an extent that overall day to day life can
only be successfully managed with pre-planning, such as making a daily written list of all
tasks forming part of daily life that are to be completed. 6
(d) None of the above apply. 0
15. Execution of tasks.
15 (a) Is unable to successfully complete any everyday task. 15
(b) Takes more than twice the length of time it would take a person without any form of
mental disablement, to successfully complete an everyday task with which the claimant is
familiar. 15
(c) Takes more than one and a half times but no more than twice the length of time it would take
a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar. 9
(d) Takes one and a half times the length of time it would take a person without any form of
mental disablement to successfully complete an everyday task with which the claimant is
familiar. 6
(e) None of the above apply. 0
16. Initiating and sustaining personal action.
16 (a) Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate
or sustain any personal action (which means planning, organisation, problem solving,
prioritising or switching tasks). 15
(b) Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain personal action without requiring verbal prompting given by another person in the claimant’s
presence for the majority of the time. 15
(c) Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate
or sustain personal action without requiring verbal prompting given by another person in the claimant’s presence for the majority of the time. 9
(d) Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate
or sustain personal action without requiring frequent verbal prompting given by another person in the claimant’s presence. 6
(e) None of the above apply. 0
17. Coping with change.
17 (a) Cannot cope with very minor, expected changes in routine, to the extent that overall day to
day life cannot be managed. 15
(b) Cannot cope with expected changes in routine (such as a pre-arranged permanent 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
(c) Cannot cope with minor, unforeseen changes in routine (such as an unexpected change
of 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
(d) None of the above apply. 0
18. Getting about.
18 (a) Cannot get to any specified place with which the claimant is, or would be, familiar. 15
(b) Is unable to get to a specified place with which the claimant is familiar, without being
accompanied by another person on each occasion. 15
(c) For the majority of the time is unable to get to a specified place with which the claimant is
familiar without being accompanied by another person. 9
(d) Is frequently unable to get to a specified place with which the claimant is familiar without
being accompanied by another person. 6
(e) None of the above apply. 0
19. Coping with social situations.
19 (a) Normal activities, for example, visiting new places or engaging in social contact, are precluded
because of overwhelming fear or anxiety. 15
(b) Normal activities, for example, visiting new places or engaging in social contact, are precluded
for the majority of the time due to overwhelming fear or anxiety. 9
(c) Normal activities, for example, visiting new places or engaging in social contact, are frequently
precluded, due to overwhelming fear or anxiety. 6
(d) None of the above apply. 0
20. Propriety of behaviour with other people.
20 (a) Has unpredictable outbursts of aggressive, disinhibited, or bizarre behaviour, being either:
(i) sufficient to cause disruption to others on a daily basis; or
(ii) of such severity that although occurring less frequently than on a daily basis, no reasonable
person would be expected to tolerate them. 15
(b) Has a completely disproportionate reaction to minor events or to criticism to the extent that the claimant has an extreme violent outburst leading to threatening behaviour or actual physical
violence. 15
(c) Has unpredictable outbursts of aggressive, disinhibited or bizarre behaviour, sufficient in
severity and frequency to cause disruption for the majority of the time. 9
(d) Has a strongly disproportionate reaction to minor events or to criticism, to the extent that the
claimant cannot manage overall day to day life when such events or criticism occur. 9
(e) Has unpredictable outbursts of aggressive, disinhibited or bizarre behaviour, sufficient to
cause frequent disruption. 6
(f) Frequently demonstrates a moderately disproportionate reaction to minor events or to
criticism but not to such an extent that the claimant cannot manage overall day to day life
when such events or criticism occur. 6
(g) None of the above apply. 0
21. Dealing with other people.
21 (a) Is unaware of impact of own behaviour to the extent that:
(i) has difficulty relating to others even for brief periods, such as a few
hours; or
(ii) causes distress to others on a daily basis. 15
(b) The claimant misinterprets verbal or non-verbal communication to the extent of
causing himself or herself significant distress on a daily basis. 15
(c) Is unaware of impact of own behaviour to the extent that:
(i) has difficulty relating to others for longer periods, such as a day or two; or
(ii) causes distress to others for the majority of the time. 9
(d) The claimant misinterprets verbal or non-verbal communication to the extent of
causing himself or herself significant distress to himself for the majority of the time. 9
(e) Is unaware of impact of own behaviour to the extent that:
(i) has difficulty relating to others for prolonged periods, such as a week;
or (ii) frequently causes distress to others. 6
(f) The claimant misinterprets verbal or non-verbal communication to the extent of
causing himself or herself significant distress on a frequent basis. 6
(g) None of the above apply. 0
SCHEDULE 3
ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED
CAPABILITY FOR WORK-RELATED ACTIVITY
Descriptors
1. Walking or moving on level ground. Cannot—
(a) walk (with a walking stick or other aid if such aid is normally
used);
(b) move (with the aid of crutches if crutches are normally used); or
(c) manually propel the claimant’s wheelchair;
more than 30 metres without repeatedly stopping, experiencing breathlessness or
severe discomfort.
2. Rising from sitting and transferring from one seated position to another.
Cannot complete both of the following—
(a) rise to standing from sitting in an upright chair without receiving
physical assistance from someone else; and
(b) move between one seated position and another seated
position located next to one another without receiving
physical assistance from someone else.
3. 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 0.5 litre carton full of liquid with either hand.
4. Reaching. Cannot raise either arm as if to put something in the top pocket of a coat or
jacket.
5. Manual dexterity. Cannot—
(a) turn a “star-headed” sink tap with either hand; or
(b) pick up a £1 coin or equivalent with either hand.
6. Continence.
(a) Continence other than enuresis (bed wetting) where the claimant does not
have an artificial stoma or urinary collecting device.
(a) Has no voluntary control over the evacuation of the bowel;
(b) Has no voluntary control over the voiding of the bladder;
(c) At least once a week, loses control of bowels so that the
claimant cannot control the full evacuation of the bowel;
(d) At least once a week, loses control of bladder so that the
claimant cannot control the full voiding of the bladder;
(e) At least once a week, fails to control full evacuation of the
bowel, owing to a severe disorder of mood or behaviour; or
(f) At least once a week, fails to control full-voiding of the bladder, owing to a severe
disorder of mood or behaviour.
(b) Continence where the claimant uses a urinary collecting device, worn for
the majority of the time including an indwelling urethral or suprapubic catheter.
(a) Is unable to affix, remove or empty the catheter bag or other collecting device without
receiving physical assistance from another person;
(b) Is unable to affix, remove or empty the catheter bag or other collecting device without
causing leakage of contents;
(c) Has no voluntary control over the evacuation of the bowel;
(d) At least once a week loses control of bowels so that the claimant cannot control the full
evacuation of the bowel; or
(e) At least once a week, fails to control full evacuation of the bowel, owing to a severe
disorder of mood or behaviour.
(c) Continence other than enuresis (bed wetting) where the claimant has an
artificial stoma appliance.
(a) Is unable to affix, remove or empty stoma appliance without
receiving physical assistance from another person;
(b) Is unable to affix, remove or empty stoma without causing leakage of contents;
(c) Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, has no
voluntary control over voiding of bladder;
(d) Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, at least
once a week, loses control of the bladder so that the claimant cannot control the full voiding of
the bladder; or
(e) Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, at least
once a week, fails to control the full voiding of the bladder, owing to a severe disorder of
mood or behaviour.
7. Maintaining personal hygiene.
(a) Cannot clean own torso (excluding own back) without receiving physical assistance
from someone else;
(b) Cannot clean own torso (excluding back) without repeatedly stopping, experiencing breathlessness or severe discomfort;
(c) Cannot clean own torso (excluding back) without 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 clean own torso (excluding own back)
without receiving—
(i) physical assistance from someone else; or
(ii) regular prompting given by someone else in the claimant’s presence.
8. Eating and drinking.
(a) 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.
(b) 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.
9. Learning or comprehension in the completion of tasks.
(a) Cannot learn or understand how to successfully complete a simple task, such as the
preparation of a hot drink, at all;
(b) Needs to witness a demonstration, given more than once on the same occasion of
how to carry out a simple task before the claimant is able to learn or understand how to
complete the task successfully, but would be unable to successfully complete the task
the following day without receiving a further demonstration of how to complete it; or
(c) Fails to do any of the matters
referred to in (a) or (b) owing to a severe disorder of mood or behaviour.
10. Personal action.
(a) Cannot initiate or sustain any personal action (which means planning, organisation, problem
solving, prioritising or switching tasks);
(b) Cannot initiate or sustain personal action without requiring daily verbal prompting given by
someone else in the claimant’s presence; or
(c) Fails to initiate or sustain basic personal action without requiring daily verbal prompting given by
some else in the claimant’s presence, owing to a severe disorder of mood or behaviour.
11. Communication.
(a) None of the following forms of communication can be achieved by the claimant—
(i) speaking (to a standard that may be understood by strangers);
(ii) writing (to a standard that may be understood by strangers);
(iii) typing (to a standard that may be understood by strangers);
(iv) sign language to a standard equivalent to Level 3 British Sign Language;
(b) None of the forms of communication referred to in (a) are achieved by the claimant,
owing to a severe disorder of mood or behaviour;
(c) Misinterprets verbal or nonverbal communication to the extent of causing distress to
himself or herself on a daily basis; or
(d) Effectively cannot make himself or herself understood to others because of the claimant’s
disassociation from reality owing to a severe disorder of mood or behaviour.
Certain claimants to be treated as having limited capability for work
20. A claimant is to be treated as having limited capability for work if—
(a) the claimant is terminally ill;
(b) the claimant is—
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal
chemotherapy; or
(ii) recovering from that treatment and the Secretary of State is satisfied the claimant
should be treated as having limited capability for work;
(c) the claimant is—
(i) excluded or abstains from work, or from work of such a kind, pursuant to a request
or notice in writing lawfully made under an enactment; or
(ii) otherwise prevented from working pursuant to an enactment,
by reason of the claimant being a carrier, or having been in contact with a case, of a
relevant disease;
(d) in the case of a pregnant woman, there is a serious risk of damage to her health or to the
health of her unborn child if she does not refrain from work;
(e) in the case of a pregnant woman, she—
(i) is within the maternity allowance period; and
(ii) is entitled to a maternity allowance under section 35(1) of the Contributions and
Benefits Act(a);
(f) in the case of a pregnant woman whose expected or actual date of confinement has been
certified in accordance with the Medical Evidence Regulations, on any day in the
period—
(i) beginning with the first date of the 6th week before the expected week of her
confinement or the actual date of her confinement, whichever is earlier; and
(ii) ending on the 14th day after the actual date of her confinement,
if she would have no entitlement to a maternity allowance or statutory maternity pay were
she to make a claim in respect of that period.
Exceptional circumstances
29.—(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.
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