What happens next?

The ‘decision maker’ is the person who decides if you should get Employment and Support Allowance (ESA) or Universal Credit with the limited capability for work element and they work for the Department for Work and Pensions (DWP). Once you send back the health questionnaire and have been to the medical assessment, they will decide if you should get the benefit. They will make one of the following decisions:

a) You don’t have limited capability for work

This means that the DWP have decided that you are able to work and this means that you need to claim Jobseeker’s Allowance (JSA), or you can claim UC without the limited capability for work element and look for work. If you don’t think you are fit for work, you can ask the decision maker to look at their decision again. This is called Mandatory Reconsideration and you have to do this within one month of getting their decision.

b) You have limited capability for work

This means that the DWP have decided that you have ‘limited capability for work’. This means that you will get ESA or UC and not have to look for work. You may still have to do ‘work-related activity’, which includes going to work-focused interviews.

They then have to decide if you have ‘limited capability for work-related activity’ and if they decide you cannot do work-related activity, they will put you in the ‘support group’ of ESA or give you the ‘limited capability for work-related activity’ element of UC.

They make this decision based on the criteria that we have set out in the Assessment for limited capability for work related activity section. If you meet one of the criteria then the DWP will put you in the support group or give you this element.

Can I get ESA if I don’t have limited capability for work?

Sometimes the DWP can treat you as having limited capability even if you are fit for work. You will need to show that:

• You would be a risk to yourself or others if they decide you can work. This could include suicidal feelings, self-harm or violent behaviour, and
• The risk of hurting yourself or others will not go away if a future employer makes changes to help you, or you take proper medication.

For ESA claims, the DWP calls these rules ‘Regulation 29’ and ‘Regulation 35’. There are similar rules under Universal Credit.

For example, if you suffer from depression, you may apply for ESA and you might make it clear that not awarding ESA will make you feel worse. The DWP will then have to assess if you are a ‘substantial risk’ or not. They will look at things such as:

• If you have current plans for suicide,
• If you self-harm,
• If you have been in hospital under the Mental Health Act in the last 12 months, or had a voluntary stay in a psychiatric unit in the last 6 months,
• If you have a current care plan from secondary mental health services, or
• If the DWP have assessed you as being vulnerable to relapse.

If they decide you are at ‘substantial risk then they may award you ESA or the limited capability for work element even if they would normally think you can work. To prove this you will need a letter from your healthcare professional such as a Doctor, Community Psychiatric Nurse (CPN) or Social Worker.