It really does seem that the introduction of employment support allowance to replace incapacity benefit in October 2008 has touched a nerve with social care staff, possibly as much as anything has done since the major social security reforms of the 1980s.
Because the Welfare Reform Act is short on detail, it is likely that many of the contentious issues, such as how to assess fitness for work, will be dealt with by regulations. When some draft regulations were debated in parliament, it was what ministers said that mattered most.
For example, in the debate about the new personal capability assessment, which will decide whether the person is entitled to ESA, the minister, Jim Murphy, conceded that, for people with fluctuating conditions, “it is important to take account of a person’s condition over a period of time, not just on the day of assessment”. An obvious point, but one that is often neglected.
Unsurprisingly, ministers decided that people who were terminally ill would be fast-tracked through the normal 13-week assessment process and would be placed in the ESA “support” category which covers those who are not expected to undertake work-related activity.
Mental health problems
However, it seems that clients with mental health problems may find that, although they qualify for ESA, it will then be difficult for them to get into that “support” group. This is because the 46 “descriptors” used to place people in the support group are weak on mental health matters.
The minister did say though that “if (a person) has been treated under the Mental Health Act, they should meet one of the 46 descriptorsif for any reason they don’t, we would expect they would demonstrate that there would be substantial risk to their healthif they were found not to have limited capability for work-related activity”. It will be interesting to see whether the Department for Work and Pensions and tribunals take such an all-encompassing view.
It is probably just as well that the minister agreed that “people with mental health problems or a learning disability may find it difficult to articulate at a face-to-face interview the full extent of their difficultiesit is entirely reasonable that such people should be able to make use of a spokesperson on their behalf perhaps a member of their family or a care worker”.
The minister also conceded, after opposition pressure, that ESA claimants who are in the support group will still be able to do work-related activity if they choose to do so, without it affecting their right to stay in that support group. This is very important, as support group claimants get a higher weekly rate of benefit than those in the work-related activity group.
The rules on “permitted work” are being simplified anyway. Instead of there being a distinction between those on incapacity benefit (who can earn up to £86 before benefit is affected) and those on income support (just £20), the limits under ESA will, for all claimants, mirror the current incapacity benefit rules.
This is good news but also illustrates one of the problems, because initially ESA will be introduced for new claimants only. Existing incapacity benefit and income support claimants will transfer across “over time”. Given that it has taken four years (and counting) to transfer families on income support on to tax credits, the timetable for ESA transfer may remain very flexible – but that, in turn, may not be a bad thing.
Gary Vaux is head of money advice, Hertfordshire Council. He is unable to answer queries by post or telephone. If you have a question e-mail email@example.com