Employment and Support Allowance (ESA), How to Claim

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

[Dinkie]

They don't make it easy do they!

[Hidden in reply to Dinkie]

No, they don't make it easy, Dinkie,

That's intentional. They want us all in Victorian-style Workhouses.

Hopefully, after people have read my post a few times, they'll understand how to submit a claim that avoids the bear traps, and they'll understand how to use the Exceptional Circumstances regulations.

Let me know if anything needs clarifying. Cheers,

John

[Mandypandy1969]

blimey , well and truly pickled my brain. have my pip assessment on wednesdsy(first time in applying due to e.s.a. being so stressful) Also have e.s.a. tribunal 6th September. Dreading both as can't handle stress and people asking questions. shouldn't have to be put through all of this when already having mental health problems, hence all this stress and anxiety making mental health problems worse. my depression has kicked in again due to all this going on amongst other things having to learn to deal with trying to cope with this awful illness.

[Hidden in reply to Mandypandy1969]

Hi Mandypandy,

Don't worry too much about your ESA Tribunal. YOU are not the person on trial. It's the Department of Work and Pensions (DWP) who are on trial.

Hopefully someone has prepared your case and can sit with you.

The Tribunal panel, a Judge and a Doctor, know what the DWP have put you through. They'll be very nice to you.

I know you'll be nervous, but try to enjoy it. It's your chance to get justice and to see the DWP get a reprimand.

John

[Mandypandy1969 in reply to Hidden]

Thankyou John. I can't handle stress at all and easily break down in tears plus I have a very short fuse. x

[Tiger56]

Hi thanks for all the information, I’m doing a pips claim at the moment and have fibromyalgia and CFS amounts other things. Do you have any advice for this.

Kind regards Carole

[Hidden in reply to Tiger56]

Hi Carole,

The answer is Yes, sort of...

You may recall my mentioning that ESA claimants were supposed to be protected from having to undertake activities that might cause pain, danger to themselves or people around them, etc.

Well, apparently, that wording was cut-and-pasted into the ESA50 claim form from the PIP claim form.

In the PIP Assessment Guide part 2, it says, "...the sentence "Can the claimant carry out the activity reliably (that is, safely, to an acceptable standard, repeatedly and in a reasonable time period) and independently, or with the use of a commonly used device." So, obviously, that first line of defence protection still exists within PIP.

The next question is whether there's a "Exceptional Circumstances" regulations within PIP? ...although the existence of those other protections makes it unlikely you'll need them.

Section 2.2.4, of the PIP Assessment Guide part 2, covers "Safety". gov.uk/government/publicati... It has very similar wording to Regulations 29 and 35 in ESA. I'm guessing it's "Safety" in PIP and "Substantial Risk" in ESA, but I will need to do more digging.

WARNING - the DWP attempted to neuter ESA's "Significant Risk" by saying "Significant Risk" referred to likelihood. The Tribunal courts quickly overturned this interpretation in ESA, saying it was the Severity of the potential Harm that made a Risk be defined as Significant, and that the likelihood of its occurrence was irrelevant. Hmm, I'll have to do some digging into Tribunal case law to see what interpretations have been made.

Anyone else?

John

[Hidden]

Ok, found it (then the website lost what I'd typed) GCHQ trying to block my post on behalf of the government, maybe?

Right, Carole,

You can forget what the DWP suggest in their PIP Assessment Guide. Instead you make reference to Case Law made in 2017 by the following 3 Judge higher tier Tribunal ruling.

[ Quote ]

[2017] AACR 32

RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP)

[2017] UKUT 105 (AAC))

"Held, allowing the appeals, that:

...

2. an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be carried out safely did not require that the occurrence of harm was “more likely than not”, a tribunal must consider whether there was a real possibility that could not be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. Both the likelihood of the harm occurring and the severity of the consequences were relevant (paragraphs 33, 37 and 56);

..."

Here's a link to the government's acknowledgement of this interpretation.

gov.uk/government/publicati...

And, if you want to read the Tribunals ruling, which is far more interesting, then you click on this link assets.publishing.service.g....

[ Unquote ]

So, Cararole, what three judges in the higher tier Tribunal have ruled is in line with what happened with ESA's "Significant Risk". The PIP Safety regulations cannot be ignored, no matter how unlikely is the possibility for occurrence of the harm, if the severity of the feared harm is significant to the claimant's wellbeing.

You can, of course, also make a PIP case around the general phrasing around reliability etc., mentioned in my last post, but I'd simply quote the upper tier Tribunal ruling.

Hope this helps,

John

[Kingdom1914]

Thank you for all that information. Didn't understand how to invoke the Exceptional Circumstances (25, 29, 31 and 35). Is there somewhere on the ESA form you put this and then tick the box too. Sorry if you explained how to do this but I'm in Fibro fog today.

My permanent Fibro fog is due to I all the fun of a Appeals and a ESA Court Case (I won) and then being left on only £9.99 per week ESA for 8 months!! by their Departments error (should have been £140 which an M.P. got for me within a couple of weeks). I now have the fun of sorting out my State Pension which I get at 66 in 2020. Again this involves an M.P. and separate Appeals. I think they are trying to kill us off before 66, with 4 Operations eminent I think it could work! Sorry for rambling.

[Hidden in reply to Kingdom1914]

Hi Kingdom1914,

No. There's nothing on the ESA50 claim form about the ESA Exceptional Circumstances regulations 29 and 35.

These regulations can only be applied if you've not scored sufficient points from the Work Capability Assessment.

So, in theory, you only use these regulations in the Mandatory Reconsideration or Tribunal appeal stages.

However, there's no reason why you can't give the Department of Work and Pensions advanced-warning that you'll be invoking ESA Regs 29 & 35 when you initially submit your ESA50 claim form. It might save your claim being delayed by their attempts to fob you off.

Pleased you got your £9.99 awarded. The little rascals don't even give up after you've won the court case!

John

[J888kcy in reply to Hidden]

is the ESA regulations still relevant in2024 for fibromyalgia or have things been updated? Jan 2024. Thanks x Pickled Head

[Kingdom1914]

Thanks for that. Yes it was a horrible experience being on £9.99 a week all that time. If only they hadn't engnored my case all that time, my Disabilities wouldn't have deteriated. With the Court Case, that was the worse year of my life. I'm afraid I have little confidence that any Appeal process, they don't even read your correspondence.

Will write the information on the Form at the beginning. 😊

[Hidden in reply to Kingdom1914]

Of course they don't read your correspondence. Silly idea.

By the way, they're obliged to reimburse you for any incidental costs you incurred as a result of your not being paid the correct amount. E.g. bank overdraft fees or late payment charges, etc.

I believe this includes everything from the day your claim was first declined in 1066.

John

[Kingdom1914]

I did get offered £100 but only if I didn't speak about it (there are probably lots of people who cannot speak up about the injustice). They said if I didn't accept that I would never be offered Compensation again. That didn't cover pain and suffering, had a breakdown and Counselling and my Disabilities were aggravated by the stress etc. When my M.P. got my correct money I was offered £150 with no conditions involved. I took it. When I got the final correct amount it turned out that for a long time the ESA had under paid me because I was in fact entitled to 2 extra supplements! I suppose we are expected to guess that one? They don't seem to pay you the correct amount to people unless you tell them you are entitled to more??

I can't wait to be out of this Benefit System and on Pension (only 1 year and 9 months till I'm 66). In the middle of trying to sort my State Pension out now. Had to go to a M.P. again as they have taken 10 years National Insurance years and kept £55 a week Graduated Pension (Serps) as after 2016 2 new Laws came in to remove and keep them. You can not get more than the State Pension even if you paid years of added Pension in the 60's/70's. Think I've lost it all but going to inquire anyway.

Thanks again.

[Hidden in reply to Kingdom1914]

I used to have a next door neighbour who was a supervisor grade in the social security offices in Woolwich. Nice chap, for all that.

He once explained that if someone in desperate circumstances came to the counter and spoke politely to the clerk, they'd get nothing. Obviously, anyone who was genuinely in desperate plight would be ranting and raving, frothing at the mouth, and tearing their hair out. Most important, they'd be "aggressively" arguing their case.

What do you think he said would happen to someone presenting themself at the social security counter who did pass the "agressively" arguing their case, in desperate circumstances criteria?

Strangely, he thought the social security benefits criteria were perfectly logical, and couldn't see any flaw in the system.

Roll on retirement, eh?!

John

[Kingdom1914 in reply to Hidden]

Sounds a nice Guy, if he ever went though the System he wouldn't be saying that though and would see fairness and what they say should happen actually doesn't at all (e.g

" some people may have to wait a few weeks but they Will receive the corre t amount"). Not in the real life!

Can't Wait. The full Pension that I get won't be what I actually paid in but at least I will be left alone in Peace and its guaranteed (unless they bring in a New Law that is!).

[bd79og]

we had success many years ago on esa for the "significant harm regulation" as my husband's doctor said he was at significant risk of another stroke if stressed by work. We didn't even sit down in the tribunal and they apologized to us for having brought us there. Lost it when welfare reform act went through as it was only "contributory" esa and he had had it for more than a year (he was in the work related group) but it was good while it lasted! The stress of the system is huge and relentless (we had a new form one month after the tribunal) and glad to be out of it now (husband gets pension). Thank you for you detailed helpful advice I hope it helps lots of people avoid traps.