If you have fibromyalgia symptoms that reduce your Work Capability, your benefits application will have to invoke the “Exceptional Circumstances” regulations of ESA or Universal Credit.
In Employment and Support Allowance (ESA) these are ESA Regulations 29 and 35.
In Universal Credit (UC) these are UC Regulations 25 and 31.
These Exceptional Circumstances regulations are applicable if you cannot score points by ticking the ‘descriptor' boxes in the main part of the claim form.
Normally, the claimant ticks the box that is the best match to their ability to perform a specific task. That might be how far you can walk, or whether you can use steps/stairs, or whether you can reach for something that’s on the top shelf in the supermarket. But you won’t be asked whether these activities will cause you pain (immediately or later in the day). Whether you can perform the activities repeatedly. Or whether you can do them safely (not falling down the stairs or dropping the object onto someone). You're just asked if you can do the activities, with no regard to the consequences.
ESA Regulations 29 and 35 or UC Regulations 25 and 31 can be invoked to protect you if performing any of the activities described in the ‘descriptors’ would cause pain, or might be dangerous to you or those around you, or you can't perform the task to a reasonable standard, or within a reasonable time, or do the task repeatedly. But, they weren’t designed for this purpose. I’ll explain what was supposed to happen in the next paragraph.
The ESA50 form says “do not tick any of the boxes” if you cannot perform the activity without pain, danger to yourself or others, etc. This should have protected people with fibromyalgia type difficulties. That’s why they’re printed on the form. Unfortunately, however, the words were (accidentally) left out of the wording of the Act of Parliament. As such, although the words are printed on the ESA50 form, they have no legal basis. So, if you follow the instruction “do not tick any of the boxes if ...” you will get you zero (0) points.
In addition to the legal problem of the protection instruction being omitted from the Act of Parliament, if you don’t tick any boxes in a particular section, the decision maker will assume that none of the difficulties apply. Again, you get zero (0) points.
You should also be aware that you can’t argue that, by leaving the boxes unticked, you’ve followed instructions and effectively stated an inability to perform any of the descriptor tasks without pain, danger to yourself or others, etc. Unfortunately, if you have to make an appeal to the Tribunal Service, the Tribunal judge can only listen to arguments that have a basis in law. Your Tribunal case will be dismissed. Game Over! (Those ever so nice lawyers at the Department of Work and Pensions (DWP) discovered this legal loophole some time ago, and have been using it to have Tribunal appeals dismissed ever since!)
The GOOD NEWS is that you can invoke ESA Regulations 29 and 35 or UC Regulations 25 and 31. It’s best to quote both of the regulations that apply to the benefit you’re claiming, as you won’t know which one applies until you’re assigned to either the Work-related Activity Group (WRAG) or the Support Group. These regulations say pretty much the same thing, so you don’t need worry about those differences; just say "ESA Regulations 29 and 35" or "UC Regulations 25 and 31". Let’s look at ESA Regulation 29. This says:
[ Quote ]
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—
...
(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.
[ Unquote ]
Clearly, anyone suffering from fibromyalgia type symptoms has some “specific ... bodily or mental disablement and ... there would be substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work” and so [despite NOT having limited capability for work according to the Work Capability Assessment] you should “be treated as having limited capability for work” because of the Substantial Risk.
“Substantial Risk” does NOT mean what you might think it does! It DOES NOT refer to the likelihood of something occurring. It DOES refer to the how significant are the CONSEQUENCES of the risk to someone's mental or physical health, even if the likelihood is less than winning the top prize in the National Lottery! And, note, it also says “any person”, so the potential danger isn’t just to yourself, but includes any risk to those around you.
By "consequences", I mean the bad thing that might happen. If that's something serious, like significantly worsening your condition, or things like your going blind, then it's a Significant Risk. It the level of Harm you or someone else might suffer, that matters.
At first the Department for Work and Pensions tried interpreting “Significant Risk” in terms of the likelihood of the consequences of the risk materializing. They claimed that adjustments to the workplace or activity group activities mitigated the risk, so they were dismissing any attempted use of Significant Risk to claim disability benefits and, instead, were forcing people onto Jobseekers Allowance (JSA). But THE HIGHER TIER TRIBUNAL COURTS HAVE PUT A STOP TO THIS. Case Law (Tribunal court rulings) now state that it’s how Serious are the CONSEQUENCES of the Risk materializing that matter. The likelihood is irrelevant if your being forced to participate in inappropriate activities might result in significant harm to you or any other person. (So DON’T WORRY ABOUT OLD INTERNET ARTICLES SAYING YOU CAN'T USE THESE REGULATIONS. The Tribunal courts’ rulings are what matter, and they say you can claim even if you pick up no points in your Work Capability Assessment.)
What sort of harm, and what sort of evidences are needed?
Typically, you need to get your medical doctor or specialist to perform a “what if" risk analysis. It might go like this: “The claimant is suffering from severe chronic pain that is made worse by activities which take her beyond more than low level exercise.” [That's not enough. We need to follow the chain of cause-and-effect further, until we hit something that’s really serious.] “Worsening of the already severe chronic pain symptoms could [note that the doctor isn’t saying “will"] cause a worsening of the claimant's pain symptoms, which, in turn, often leads to clinical depression. Persons with a combination of severe chronic pain and clinical depression are at high risk of violent outbursts, here they may inadvertently harm those around them. Beating a work colleague over the head with a heavy frying pan (potential brain damage or fatality) is not unknown for people working in kitchens and restaurants who are suffering from clinical depression and severe chronic pain.”
...OK, I’ve injected a bit of humour into my example. Nonetheless, there is a Substantial Risk because brain damage or fatality to the person who is hit over the head with a heavy frying pan is so “Significant” that it cannot be ignored. Even though the likelihood of this happening is extremely low. It’s the seriousness of the possible mental or physical health damage to any person that ESA Regulations 29 and 35 or UC Regulations 25 and 31 are concerned with. The Tribunal courts have stated that the possibility of this kind of Harmful consequence is what is meant by a Significant Risk.
Another example, this time related to the long-term complications of diabetes is perhaps easier to accept. If the claimant has long-term diabetes, s/he may suffer from long-term complications of the disease. S/he may have diabetic neuropathy. That’s nerve damage resulting in both a loss of feeling (numbness) in the feet and legs, accompanied by false nerve signals creating phantom pain. If such a claimant was forced to accept a job that requires a daily commute, walking half a mile to/from the railway station, then climbing/descending stairs on the London Underground. This could worsen the phantom pain that’s experienced throughout the night. This would lead to disrupted sleep patterns, which will affect diabetic blood glucose control. In turn, long-term poor blood glucose control has a high risk of another complication, diabetic retinopathy. Retinopathy can result in blindness.
In the above example, the cause-and-effect application of the ESA Exceptional Circumstances regulations is one of the ways I won my last appeal Tribunal.
I’m sure you can find similar cause-and-effect illustrations that apply to the Significant Risks of ignoring fibromyalgia symptoms. Just be sure that your ESA or Universal Credit application makes it very clear you are invoking ESA Regulations 29 and 35 or Universal Credit Regulations 25 and 31, because the claim form ‘descriptors’ are not appropriate to your condition, and “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”.
Good-luck,
John
*****************
Oops! I forgot to mention that Regulations 29 or 35 can only be invoked AFTER you receive your initial decision, following the Work Capability Assessment and scoring Zero Points.
You invoke the regulations at the Mandatory Reconsideration stage, as part of your challenge of the original decision. Get your GP or Specialist to state that if you were refused ESA or were not put in the Support Group (whichever is applicable) then certain [specified] Significant Risks would apply, as described above. And be sure they make reference to the appropriate regulation, 29 or 35.
John
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