(1) Feedback to The MEA indicates that a significant proportion of people with ME/CFS are finding it very difficult to qualify for ESA – the long-term sickness benefit for people who are unable to work. Entitlement to ESA is assessed by using what is called the Work Capability Assessment (WCA). The WCA does not determine entitlement to ESA on the basis of the named medical condition (eg ME/CFS) a person has. Your entitlement to ESA is supposed to be based on the effect that the disability or health problems resulting from having ME/CFS has on your functional capability to work.
(2) The situation regarding ESA appears to have become even more difficult for people with ME/CFS following legislation to bring in a revised set of WCA descriptors in 2011. This legislation also removed some of the original WCA descriptors (eg the one on cognitive dysfunction – problems with short-term working memory and concentration) that are very relevant to people with ME/CFS. More information on the WCA descriptors can be found at: www.meassociation.org.uk/?p=4534 (>> pdf of Statutory Instrument)
(3) People who are still claimin ICB are due to be re-assessed to see if they are eligible for ESA. Feedback to The MEA indicates that they are having very similar difficulties.
(4) The WCA descriptors are a list of questions relating to various aspects of disability and ill health along with point-scoring answers. The MEA believes that the current set of descriptors are not a fair or effective way of assessing capability for work in people who have long-term fluctuating medical conditions such as ME/CFS. Our reasons for coming to this conclusion can be found in our submission to Professor Malcolm Harrington’s review of the WCA: www.meassociation.org.uk/?p=1639. Since then The MEA has been involved with a group of charities representing people with fluctuating medical conditions in the production of a report that contains recommendations on how the WCA descriptors could be made fair and effective for people with fluctuating medical conditions. The recommendations in the report, along with recommendations covering mental health descriptors, are now being assessed by the DWP in an evidence-based review. The results of the review should be available in late summer 2013. A copy of the Fluctuating Conditions Group report can be downloaded on the MEA website:
(5) So if you are applying for ESA, or appealing against a refusal to grant ESA, it is very important to give careful consideration to the way you provide answers to the WCA descriptor questions.
(6) During a House of Lords debate, which sought to annul the legislation which revised the WCA descriptors, a number of useful contributions were made which relate to people with ME/CFS and other fluctuating conditions. Lord Freud (DWP government minister) made the following important statement which is very relevant to people with fluctuating medical conditions:
“It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity.”
A Hansard transcript of the debate can be found on the MEA website: www.meassociation.org.uk/?p=5180
(7) There is a high rate of success on appeal involving ESA refusals – with around 40% of DWP decisions being overturned. So anyone who believes they have not been treated fairly should consider going to appeal.
(8) The chances of success at appeal are often increased by appearing in person and providing good supportive medical evidence from health professionals who are involved in your care – especially if this was not provided at the time of the application.
(9) Useful information on benefit appeal procedures can be found in a presentation given by Dr Jane Rayner (Chief Medical Member of Social Security tribunals) to the Forward ME Group at their meeting on 26 January 2011. The minutes of this meeting can be found here: www.meassociation.org.uk/?p=4569
Dr Jane Rayner has also produced a video on the appeal process. This can be found on the MEA website: http://www.meassociation.org.uk/?p=13201
The Tribunal Service has produced a useful booklet called ‘How to Appeal – A Step by Step Guide’. This can be downloaded from the Tribunal Service website:
(10) The MEA has a fully comprehensive list of leaflets covering all aspects of the benefits system – including applications for individual benefits and appeals.
Information prepared in March 2013 by Dr Charles Shepherd
Please note that regulations relating to DWP benefits are constantly changing and that this information is correct at the time of publication.
This ’10 Key Points’ file is also available as a downloadable, 2-page leaflet. Please click HERE for it.