'Limited capability for work'

If you have 'limited capability for work' you can generally claim Employment and Support Allowance rather than Jobseekers Allowance. Important changes may make the test harder to meet from March 2011 - see Proposed changes below.

Summary
How the test works
Physical functions - 'speech'
Mental functions
Variations in severity of stammer
Use of aids
Has a person who stammers passed the test?
Specific disease or disablement
People saying you can still work?
Proposed changes
Useful links

Summary

For new claims taking effect on or after 27th October 2008, the 'limited capability for work' test is the normal test to see whether you are entitled to Employment and Support Allowance.

You need 15 points in total to pass the test. You get these on the basis of 'Speech' alone if you "cannot speak at all" or if your "speech cannot be understood by strangers". Alternatively you may be able to obtain the 15 points by combining a lower (or nil) points score for 'Speech' with points for other activities, such as limitations in 'Coping with social situations'.

The points scores for 'Speech' and 'Coping with social situations' are set out below. These are the two most obvious 'activities' that may be relevant for stammering. You can only take your highest score from each activity.

Example: Let's say your speech can be understood by strangers, but they have "great difficulty" understanding it. You get just 9 points for the 'Speech' activity. You don't get a further 6 points for strangers also having "some" difficulty understanding your speech. However, you can add in your highest scores from any other activities, such as 'Coping with social situations'. So if normal activities, for example, visiting new places or engaging in social contact, are "frequently" precluded due to overwhelming fear or anxiety (but are not precluded "for the majority of the time"), you score 6 points for 'Coping with social situations'. Added to the 9 from 'Speech', this gives you the total of 15 points you need.

Another way to pass the test would be "strangers have some difficulty understanding speech" (6 points) plus normal activities being precluded "for the majority of the time" due to overwhelming fear or anxiety (9 points).

7. Speech

Cannot speak at all 15

Speech cannot be understood by strangers 15

Strangers have great difficulty understanding speech 9

Strangers have some difficulty understanding speech 6

None of the above apply 0

19. Coping with social situations

Normal activities, for example, visiting new places or engaging in social contact, are precluded because of overwhelming fear or anxiety. 15

Normal activities, for example, visiting new places or engaging in social contact, are precluded for the majority of the time due to overwhelming fear or anxiety. 9

Normal activities, for example, visiting new places or engaging in social contact, are frequently precluded, due to overwhelming fear or anxiety. 6

None of the above apply. 0

This summary gives just a broad outline. The rules are dealt with in more detail below.

ESA50 questionnaire, and medical examination
As part of the assessment, you will normally complete a questionnaire, ESA50 (pdf on Disability Alliance website). This asks you about how far you are able to carry out the different activities, such as 'Speech' and 'Coping with social situations'. The ESA50 form is still relatively new, but this Durham County Council factsheet includes some tips for completing it.

The assessment will normally include an examination by a DWP doctor.

You may want to try and ensure that a speech and language therapist with a good knowledge of stammering is involved in assessment. BSA can help find a specialist SLT.

How the test works

The test works as follows. There is a Schedule divided into two parts. Part 1 lists activities relating to physical functions (eg 'Walking', 'Standing and sitting', 'Speech'). Part 2 lists activities relating to mental functions (eg 'Coping with change', 'Coping with social situations', 'Dealing with people').

Each activity has a list of tasks - 'descriptors' - of varying difficulty, with a number beside each task. For each activity in which you are disabled, you take the most difficult task (with the highest number) that you cannot do. This gives you your points score for that activity. If that is 15 points you are assessed as having limited capability for work, and entitled to ESA. If it is lower, you can also add in any points scores you have from other activities across Parts 1 or 2 in which you are disabled. If you get a total of 15 points, you pass the test and are treated as having limited capability for work, and so entitled to ESA. There is a short example in the Summary above.

Limitations must arise from a 'specific disease or disablement', which would doubtless include a stammer.

The full Schedule is available on the internet at www.opsi.gov.uk/si/si2008/uksi_20080794_en_15#sch2 (physical functions) and www.opsi.gov.uk/si/si2008/uksi_20080794_en_16 (mental functions). However, the main activities from it relevant to stammering are discussed below.

Physical functions - 'speech'

The points system for the activity of 'Speech' (in Part I) is set out below. As already described (see the example in the Summary above) you cannot add together point scores within 'Speech' - you just take the highest figure that applies to you.

7. Speech

Cannot speak at all	15
Speech cannot be understood by strangers	15
Strangers have great difficulty understanding speech		9
Strangers have some difficulty understanding speech		6
None of the above apply		0

So to get the 15 points you need solely under the 'Speech' heading, the stammer needs to be so severe that you "cannot speak at all", or your "speech cannot be understood by strangers". But if you get less than 15 points - or even no points - for 'Speech', you should also look at 'mental functions' below to see if you score points there.

I know that at least one person with a very severe stammer has been accepted as entitled on the basis of the 'Speech' activity alone. See below Has anyone who stammers passed the test?

Your speech probably varies from time to time. See below Variations in severity of stammer for how this is dealt with.

You may be treated as unable to do an activity (eg speak, or speak understandably) if factors such as tiredness and discomfort mean that although you can do the activity, it is not reasonable to expect you to do it, or to do it with reasonable regularity. You should describe any limitations of that sort in the ESA50 questionnaire.

Your abilities are looked at in the context of normal everyday living rather than in a work context (Case CIB/14587/96 on www.rightsnet.org.uk (Word doc)). Even so, in practice you may well want to make the point (if correct) that work is one of the situations in which your stammer is very severe. The ESA handbook for doctors (pdf, link to CPAG website) (2008, para 3.3.8) suggests that DWP doctors at a medical examination consider:

the ability to socialise with family and friends
any difficulties with activities such as shopping, or travelling on public transport
ability to use a telephone.

That ESA handbook also says at para 3.3.8 the intention is the speech activity would include impediment to communication resulting from a severe stammer.

Of course, apart from your stammer you may also be disabled in other respects, eg mobility, dexterity, mental health etc. If so, you might have a lower score under 'Speech', say 6 points, and pick up the remaining 9 points from other activities. On this website, I am just focusing on the stammer.

The activities and points for physical functions are set out in the regulations at www.opsi.gov.uk/si/si2008/uksi_20080794_en_15#sch2.

Mental functions

A stammer often has a large mental component. It seems that this too can form part of the assessment of 'limited capability for work' - see below discussion under Specific disease or disablement. Or of course there may be mental aspects not specifically related to the stammer. In either case, you should be able to add points for mental aspects, if they are sufficiently severe, to points from the 'Speech' activity above to see whether they reach the 15 points required to have 'limited capability for work'.

Even if someone who stammers scores no points under 'Speech' because it is not true that 'Strangers have some difficulty understanding speech', they might still obtain the required 15 points for mental functions.

Of the mental functions listed in Part 2 of the Schedule, the activity which most obviously might apply to a stammer is:

19. Coping with social situations

Normal activities, for example, visiting new places or engaging in social contact, are precluded because of overwhelming fear or anxiety.	15
Normal activities, for example, visiting new places or engaging in social contact, are precluded for the majority of the time due to overwhelming fear or anxiety.		9
Normal activities, for example, visiting new places or engaging in social contact, are frequently precluded, due to overwhelming fear or anxiety.		6
None of the above apply.		0

You only take the highest number that applies to you within the activity, but you can add to it scores from other physical or mental activities (see example in the Summary above).

It is useful to look at the ESA handbook for doctors (pdf, link to CPAG website) (2008, para 3.6.9). This describes the level of 'overwhelming' fear or anxiety the DWP envisages, and gives doctors some guidance on what to look for in the examination. For example, it mentions the likelihood of poor rapport and lack of eye contact, and of the claimant having brought a companion with them to the Centre. It suggests that DWP doctors at a medical examination consider any form of social contact such as:

use of public transport
shopping
talking to neighbours
use of phone
hobbies and interests
social interaction with family.

The relevant question in the ESA50 questionnaire form is "Does the thought of meeting new people or going to new places make you anxious or scared? By social situations we mean things like going to a new place, parties or meetings". There are a series of options such as 'often', 'sometimes', 'not very often', or 'I never go out' - as well as a box to write more details.

If you fall within 'Coping with social situations' as regards visiting new places, you could also look at whether you are entitled to the disability living allowance mobility component.

Other mental activities to consider include:

17. Coping with change (though bear in mind the Specific disease or disablement test),
18. Getting about - difficulty getting to a familiar place without being accompanied
and
21. Dealing with other people.
One descriptor under 'Dealing with other people' is "The claimant misinterprets verbal or non-verbal communication to the extent of causing himself or herself significant distress on a daily basis" (15 points). That could apply to many who stammer, in the sense that they misinterpret reactions to their speech, which does cause significant distress. However the wording might not be interpreted so widely, and I would expect the 'Coping with social situations' activity to be more useful in practice.

The activities and points for mental functions are set out in regulations at www.opsi.gov.uk/si/si2008/uksi_20080794_en_16.

On the mental component of stammering, see for example:

article by Prof Mark Onslow (link to BSA website), 2009, which references research on the high prevalence of mental disorders in people who stammer;
paper by Mark Irwin (link to Stuttering Homepage), 2008 and his website www.stutteredspeechsyndrome.com - Mark is former Chair of the International Stuttering Association,

as well as the brief discussion by me under the Specific disease or disablement heading below.

Variations in severity of stammer

Like many conditions, stammering tends to vary. However it is possible to be seen as having 'limited capability for work' on a continuing basis even if you don't pass the test every day or all the time. The guidelines below were formulated for the previous 'all work test' but should apply equally to 'limited capability for work'.

You can look at the test over a period of time, rather than take a snapshot on a particular day.
One should not stray too far from an arithmetical approach of looking at the claimant's abilities 'most of the time'
However, factors relevant in applying the broad approach include the frequency of 'bad' days, the length of periods of 'bad' days and of intervening periods, the severity of the claimant's disablement on both 'good' and 'bad' days and the unpredictability of 'bad' days.
"Thus, a person whose condition varies from day to day and who would easily satisfy the 'all work' test on three days a week and would nearly satisfy it on the other four days might well be considered incapable of work for the whole week. But a person who has long periods of illness separated by periods of remission lasting some weeks, during which he or she suffers no significant disablement, might well be considered to be incapable of work during the periods of illness but not to be incapable of work during the periods of remission, even if the periods of illness are longer than the periods of remission. Each case must be judged on its merits ...".
(Case R(IB) 2/99, on the OSSCSC website. Also Moyna case in House of Lords on DLA).

Official guidance includes:

Decision Makers Guide (link to DWP website), from paragraph 42173 in Volume 8, Chapter 42.
ESA handbook for doctors (pdf, link to CPAG website) - for doctors carrying out medical assessments. See para 3.1.9 on 'Variable and fluctuating conditions'.

The 'limited capability for work' test is different from, and tougher than, the DDA test for "disability". For example, unlike the DDA test, there is no provision that the likelihood of a longer term relapse to the required severity of stammering would mean the test is passed before that actually happens.

If you are not seen as having 'limited capability for work' on an ongoing continuing basis, you may pass the test for particular days or for longer periods of time when you are having a bad patch. Obviously longer periods are more likely to be useful in qualifying for benefit.

Use of aids

Again unlike the DDA test for "disability", the 'limited capability for work' assessment looks at your abilities when using any aid or appliance you would normally use, for example an altered auditory feedback device.

Has anyone who stammers passed the test?

Yes, at least one individual with a severe stammer has been accepted as meeting the requirement that his 'Speech cannot be understood by strangers'. This was under the previous rules for incapacity benefit and income support - but they used the same test for 'Speech'.

Incidentally, the same person was later accepted on appeal as having had 90% disablement for the purposes of severe disablement allowance (SDA). SDA has now been abolished for new claimants. However the tribunal ruling is a welcome recognition of how disabling a severe stammer can be.

I would be interested to hear of anyone else who has been accepted as having 'limited capability for work', or being 'incapable of work' under the previous test, on the basis of a stammer (atyrer2000@yahoo.co.uk).

Specific disease or disablement

To score points under any activity, the incapability to perform the activity must arise from either:

a specific bodily disease or disablement;
a specific mental illness or disablement; or
as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.

Speech functions

These definitions doubtless include a stammer - probably as a 'specific bodily disablement'. Indeed, as mentioned above, a person who stammers has been accepted as falling within this wording in the context of the previous rules.

It seems that 'bodily' in the context of disablement refers to the function that is affected rather than to the source of the condition (Case CIB/5435/2002 at para 16, on OSSCSC website; Case CIB/4828/99 on OSSCSC website).

Mental functions (e.g. coping with social situations)

The limitation on mental functions may itself be seen as a 'specific mental disablement'. See article by Prof. Mark Onslow (link to BSA website) which refers to the high prevalence of mental disorders in people who stammer. The diagnostic criteria for 'social phobia' in DSM-IV exclude anxiety related to stuttering, but it is not clear how far that would be relevant for the ESA legal definitions.

In any event though, for anxiety related to stammering the relevant 'disablement' could presumably be seen as the stammer itself, as being the disablement that gives rise to the limitation on mental functions. It is widely accepted that a stammer may have a major mental/psychological component and is not simply a speech impairment. There are people who stammer who have the speech impairment but little or no 'mental' component. However, for the many people who stammer who do have a significant mental component, it is an important part of their disability - sometimes even the most important part of their disability. (See Prof. Mark Onslow link above, and also Mark Irwin's www.stutteredspeechsyndrome.com). Accordingly, there is a strong argument for the mental component of a stammer to be included in the 'limited capacity for work' test.

Also, it has been said (in the context of the previous Personal capability assessment) that there is no emphatic division between the 'physical' and 'mental' categories. Commissioner Jacobs said in case CIB/4828/1999 (paragraph 19) on OSSCSC website:

"A physical symptom that arises from a mental illness or disablement may be a bodily disablement. Or it may arise from a bodily disease that itself gave rise to the mental illness of disablement. In either case, the symptom may give rise to incapacity in respect of a disability under the physical disabilities section of the all work test. It would be surprising if it were otherwise, as a person's condition is often the result of the complex interaction of physical and mental factors."

People saying you can still work?

This may no longer be an issue, but under the previous 'incapacity for work' test some people - eg the doctor in a medical assessment - may have suggested that even if you can't speak you are still capable of doing some jobs, eg gardening or other manual work.

First, and most important, the legal test (for people who stammer or anyone else) is not whether there are any jobs you can do. The test is whether or not you get the 15 points, for limitations on physical or mental functions.

Secondly, though, you may also find it useful to refute the assumption that manual jobs don't require communication. For example as a gardener you need to communicate both ways with the owner of the garden. Similarly, stacking supermarket shelves doesn't just involve taking instructions but being able to communicate back, eg ask questions.

Also, given that your stammer probably varies, you may want to point out, if it is correct, that your stammer is at its most problematic in work situations (though see above on the legal position).]

Proposed changes

Proposals to change the "limited capability for work" test could make it much harder to claim Employment and Support Allowance on the basis of a speech disorder.

The Government has published draft regulations which would make major changes to the test. The Government envisages that the changes would come into effect in March 2011, "in time for the start of the national reassessment of incapacity benefit claimants". Comments on the draft regulations are invited by 10th Sept 2010. See the draft regulations (pdf, link to SSAC website), and the consultation on the regulations (on SSAC website).

Under these draft regulations, it seems that lack of speech could no longer itself give rise to an entitlement to ESA. The claimant would also need to be unable to communciate through writing etc. The new activity to be assessed under the draft regulations (Activity 6) would be "Making self understood through speaking, writing, typing, or other means normally used; unaided by another person."

Activity 16 in the draft regulations is one that may still be relevant in connection with stammering: "Coping with social engagement due to cognitive impairment or mental disorder."

Separate from the draft regulations, there is also a review of the Work Capability Assessment being conducted by Professor Harrington; and a Government consultation on a more radical shake-up of the benefits system, called "21st Century Welfare". Both of these are at www.dwp.gov.uk/consultations

Useful links

More on the 'Limited capability for work' test: www.disabilityalliance.org/f32.htm - Disability Alliance factsheet 32
Decision Makers Guide (link to DWP website), particularly Chapter 42 'Limited capability for work and limited capability for work-related activity', in Volume 8.
Training & Development: ESA Handbook (pdf, link to CPAG website) - training material used by health care professionals employed by the DWP when accessing ESA claimants. August 2008. 'Speech' is at para 3.3.8.
Further links on the main Social Security Benefits page

Main Social Security Benefits page: Employment and support allowance. There are also references for further information at the bottom of that page.