If you are entitled to Employment and Support Allowance you are put into one of two groups - the work-related activing group and the support group. Which one you are put in is decided by how many points you get or whether you would be at 'substantial risk' of harm if you were not put it in that group.
Those in the work-related activity group are expected by the DWP to be capable of work at some point in the future and have to take part in work-related activity (meet regularly with an adviser at the Jobcentre, go to occasional training courses, and do various tasks that the DWP say will make you better able to get a job later). If they don't do the work-related activity they will stop receiving the benefit.
Those put in the support group are not expected to be able to work soon. They get extra money to support their higher needs, and they don’t need to do ‘work-related activity’ to continue receiving the benefit.
It is really important that everyone is put into the right group and that everyone receives the level of benefit and support they are entitled to by law.
How the points system works
In order to be entitled to ESA and to be put in the work-related activity group you need to score at least 15 points in total. Or there needs to be a ‘substantial risk’ to you or others if you were found not to have limited capability for work (see box). Points are worked out using the activities and descriptors below. For example, if you cannot usually stay standing or sitting (or a combination of the two) at a desk for more than an hour because it makes you too tired or it hurts, you get 6 points. If you cannot usually go to even a familiar place on your own, you get 9 points, etc. If you have a problem with the activity that is not covered in the descriptors for that activity, you get 0 points.
If you need help to complete the online appeal form, you can get help from We Are Digital. Find out more about how We Are Digital can help.
In order to be put in the support group you must get 15 points on any one indicator (except in activities 8, 9b, 10 and 15 - ‘Finding your way and being safe’, ‘Consciousness during waking moments’, and ‘Getting about’). Or meet any of the descriptors in Activity 18 or 19. Or be at substantial risk of harm if you were not in the support group.
Substantial risk
If you do not get 15 points or more, you can still get the benefit if you can argue that there is a risk that you (or someone else) would be in danger if you were refused. For example, if you have seizures, violent outbursts, frequent falls, or need supervision to stay safe, you could argue it would be dangerous for you to work or have to travel to a job without help. Or if you have poor memory or confusion, and would be unable to meet the requirements to receive Jobseeker’s Allowance (or Universal Credit on the basis that you are looking for work), you could argue that there was a substantial risk that you wouldn’t be able to feed or care for yourself. If looking for a job or going to work is likely to make your condition worse or risk you having a relapse (for example, if you are a recovering addict, or have a condition like Chronic Fatigue Syndrome or Long Covid), then that too can be counted.
Similarly, if you have been put in the work-related activity group but it is fairly clear that you could not manage to reliably do the work-related activity you would have to do to keep receiving the benefit, you could argue that there is a substantial risk of harm to you if you were not put in the support group.
The risk counts as ‘substantial’ if it cannot reasonably be ignored. When judging if the risk is substantial, the DWP or appeal panel are supposed to judge both the likelihood of something happening and the potential seriousness if it does happen. So it is possible to argue that although the likelihood is not big, the consequences would be very bad and therefore the risk is 'substantial'.
Lots of people with mental health problems, cognitive difficulties, Chronic Fatigue Syndrome, Long Covid, or conditions that are much worse on some days than others get ESA this way.
It is always worth raising the argument of substantial risk if you can, as it allows the appeal panel to use their common sense.
Physical disabilities
Activity 1: Moving around without the help of another person – including using a walking stick, manual wheelchair or other aid you could use.
Descriptors:
(a) Cannot move more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or cannot repeatedly move 50 metres within a reasonable timescale because of significant discomfort or exhaustion - 15 Points
(b) Cannot go up or down two steps without the help of another person, even with the support of a handrail - 9 Points
(c) Cannot move more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or cannot do it repeatedly within a reasonable timescale because of significant discomfort or exhaustion - 9 Points
(d) Cannot move more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or cannot do it repeatedly within a reasonable timescale because of significant discomfort or exhaustion - 6 Points
Activity 2: Standing and sitting
Descriptors:
(a) Cannot move between one seated position and another seated position located next to one another without receiving physical help from another person -15 Points
(b) Cannot, for the majority of the time, remain at a work station, either:
(i) standing without help from another person (even if free to move around); or (ii) sitting (even in an adjustable chair) for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion -9 Points
(c) Cannot, for the majority of the time, remain at a work station, either:
(i) standing unassisted by another person (even if free to move around); or (ii) sitting (even in an adjustable chair) for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion - 6 points
Activity 3: Reaching
Descriptors:
(a) Cannot raise either arm as if to put something in the top pocket of a coat or jacket - 15 Points
(b) Cannot raise either arm to top of head as if to put on a hat - 9 Points
(c) Cannot raise either arm above head height as if to reach for something - 6 Points
Activity 4: Picking up and moving or things using your upper body and arms
Descriptors:
(a) Cannot pick up and move a 0.5 litre carton full of liquid - 15 Points
(b) Cannot pick up and move a one litre carton full of liquid - 9 Points
(c) Cannot transfer a light but bulky object such as an empty cardboard box - 6 Points
Activity 5: Manual dexterity
Descriptors:
(a) Cannot press a button or turn the pages of a book with either hand - 15 Points
(b) Cannot pick up a £1 coin with either hand - 15 Points
(c) Cannot use a pen or pencil to make a meaningful mark - 9 Points
(d) Cannot use a suitable keyboard or mouse - 9 Points
Activity 6: Making yourself understood through speaking, writing, typing, or other means, without help from someone else
Descriptors:
(a) Cannot convey a simple message, such as the presence of a hazard - 15 Points
(b) Has significant difficulty conveying a simple message to strangers - 15 Points
(c) Has some difficulty conveying a simple message to strangers - 6 Points
Activity 7: Understanding communication by either verbal means (such as hearing or lip reading) and non-verbal means (such as reading large print), using anything to help that you could use (glasses, hearing aid etc), without help from someone else
(For the descriptors below, you only have to show that you have difficulty or are unable to understand a spoken or written message, and not both).
Descriptors:
(a) Cannot understand a simple message due to sensory impairment, such as the location of a fire escape - 15 Points
(b) Has significant difficulty understanding a simple message from a stranger due to sensory impairment - 15 Points
(c) Has some difficulty understanding a simple message from a stranger due to sensory impairment - 6 Points
Activity 8: Finding your way and being safe, using a guide dog or other aid if normally used
Descriptors:
(a) Unable to find your way around familiar places, without the help of another person, due to sensory impairment - 15 Points
(b) Cannot safely cross the road (or complete another potentially dangerous task), without the help of another person, due to sensory impairment - 15 Points
(c) Unable to find your way around unfamiliar places, without the help of another person, due to sensory impairment - 9 points
Activity 9: Extensive incontinence (other than bed-wetting) despite using any aids normally used
Descriptors:
(a) At least once a week experiences loss of control leading to incontinence, or substantial leakage of the contents of a collecting device, so that you need to wash and change your clothes -15 Points
(b) At least once a month experiences loss of control leading to incontinence, or substantial leakage of the contents of a collecting device, so that you need to wash and change your clothes -15 Points (but this does not entitle you to be put in the support group)
(c)At risk of incontinence, bad enough for you to need to wash and change your clothes, if you are not able to reach a toilet quickly - 6 Points
Activity 10: Consciousness during waking moments
Descriptors:
(a) At least once a week, has an involuntary episode of lost or altered consciousness that causes significant reduction in awareness or concentration - 15 Points
(b) At least once a month, has an involuntary episode of lost or altered consciousness that causes significant reduction in awareness or concentration - 6 Points
Mental, cognitive and intellectual function
Activity 11: Learning tasks
Descriptors:
(a) Cannot learn how to complete a simple task, such as setting an alarm clock - 15 Points
(b) Cannot learn anything beyond a simple task, such as setting an alarm clock - 9 Points
(c) Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine - 6 Points
Activity 12: Awareness of everyday hazards (such as boiling water or sharp objects)
Descriptors:
(a) Reduced awareness of everyday hazards so that there is a significant risk that they will hurt themselves or others, or damage property or possessions, so that they need supervision most of the time to stay safe - 15 Points
(b) Reduced awareness of everyday hazards so that there is a significant risk that they will hurt themselves or others, or damage property or possessions, so that they need frequent supervision to stay safe - 9 Points
(c) Reduced awareness of everyday hazards so that there is a significant risk that they will hurt themselves or others, or damage to property or possessions, so that they occasionally need supervision to stay safe - 6 Points
Activity 13: Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks without needing prompting from somebody else)
Descriptors:
(a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.
15 Points
(b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions for the majority of the time.
9 Points
(c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions.
6 Points
Activity 14: Coping with change
Descriptors:
(a) Cannot cope with any change to the extent that day to day life cannot be managed - 15 Points
(b) Cannot cope with minor planned change (such as a pre-arranged change to the routine time scheduled for a lunch break), to the extent that overall day to day life is made significantly more difficult - 9 Points
(c) Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult - 6 Points
Activity 15: Getting about
Descriptors:
(a) Cannot get to any specified place with which the claimant is familiar -15 Points
(b) Is unable to go to a familiar place without being accompanied by another person - 9 Points
(c) Is unable to go to an unfamiliar place without being accompanied by another person - 6 Points
Activity 16: Coping with social engagement due to cognitive impairment or mental disorder
(This is about your ability to interact with people in face-to-face social situations. It must be more than shyness or reticence.)
Descriptors:
(a) Engagement in social contact is always impossible due to difficulty relating to others or significant distress experienced by the individual - 15 points
(b) Engagement in social contact with someone unfamiliar is impossible due to difficulty relating to others or significant distress experienced by the individual - 9 Points
(c) Engagement in social contact with someone unfamiliar is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual - 6 Points
Activity 17: Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder
Descriptors:
(a) Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace - 15 Points
(b) Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace - 15 Points
(c) Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace - 9 Points
Activity 18: Conveying food or drink to the mouth
If any of the below descriptors apply, you should automatically be put in the support group (ESA) or Limited capability for work-related activity group (Universal Credit).
(a) Cannot get food or drink to own mouth without physical help from someone else
(b) Cannot get food or drink to own mouth without repeatedly stopping, experiencing breathlessness or severe discomfort;
(c) Cannot get food or drink to own mouth without needing somebody with you to regularly prompt or remind you
(d) Fails to get food or drink to own mouth without receiving either physical help from somebody else or needing somebody with you to regularly prompt or remind you, because of a severe disorder of mood or behaviour
Activity 19: Chewing or swallowing food or drink
If any of the below descriptors apply, you should automatically be put in the support group (ESA) or Limited capability for work-related activity group (Universal Credit).
(a) Cannot chew or swallow food or drink
(b) Cannot chew or swallow food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort
(c) Cannot chew or swallow food or drink without needing somebody with you to repeatedly and regularly prompt or remind you
(d) Fails to chew or swallow food or drink or fails to do so without needing somebody with you to regularly prompt or remind you, because of a severe disorder of mood or behaviour
Ask the claimant to consider if they could reasonably manage finding a job, going to work, or doing all the things they need to do in order to claim Jobseeker’s Allowance (or the Universal Credit version of it). They can be entitled to this benefit if the appeal panel recognise that they face a substantial risk from being found fit to work even if they don’t meet enough of the descriptors above. For example, if they sometimes have seizures, violent outbursts, frequent falls, suicidal thoughts, delusions, or need supervision to stay safe, it would arguably be dangerous for them to be forced to travel and work without supervision. Or if they would be unable to look for jobs, and go to meetings and training on time and without fail (perhaps because of depression or confusion) there is a substantial risk that their benefit payments would stop and they would be unable to feed or care for themselves. If the stress of looking for a job or going to work might make them relapse, that can be counted too.
If you can see that any of this applies please write on the appeal form that ‘Looking for work or working poses a substantial risk to my health and well-being because of….’
Ask the claimant to consider if they could reasonably be expected to manage going to the meetings and training sessions they need to in order to continue getting the benefit if they are put in the ‘work-related activity group’. If you are concerned that they will not manage it, include a sentence along the lines of ‘Being obliged to do work-related activity also poses a substantial risk to their health and well-being because of….’
For more help to understand and challenge unfair ESA decisions, see WCA Mandatory Reconsideration Request Letter Tool which writes the letter for you to the DWP asking them to reconsider, and How to win a Work Capability Assessment appeal in case you need to appeal. If you do have to appeal we also have the Work Capability Assessment Tribunal Submission Tool which will write a submission for the tribunal that sets our your case and explains why you are entitled, which should help reduce your stress on the day.
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July 2022
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