Social Security Citation, commencement and interpretation 1 1 These Regulations may be cited as the Employment and Support Allowance (Amendment) Regulations 2012 and come into force on 28th January 2013. 2 In these Regulations — “the ESA Regulations ” means the Employment and Support Allowance Regulations 2008 ; and “the commencement date” means the date on which these Regulations come into force. Application, transitional and savings provisions 2 1 Subject to paragraphs (2) and (3), these Regulations apply to— a a person who makes a claim for an employment and support allowance on or after the commencement date (including a claim in respect of any period beginning before that date); b a person who made a claim for an employment and support allowance before the commencement date in respect of whom a determination is made on or after that date— i as to whether that person has or is to be treated as having limited capability for work under Part 5 of the ESA Regulations, or ii as to whether that person has or is to be treated as having limited capability for work-related activity under Part 6 of those Regulations; c a person who is entitled to an employment and support allowance immediately before the commencement date in respect of whom, on or after that date— i the Secretary of State determines afresh under regulation 19(7) of the ESA Regulations whether the person has or is to be treated as having limited capability for work, or; ii the Secretary of State determines afresh under regulation 34(4) of the ESA Regulations whether the person has or is to be treated as having limited capability for work-related activity; and d a notified person within the meaning of regulation 4 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 in respect of whom a determination is made on or after the commencement date as to whether that person— i has or is to be treated as having limited capability for work under Part 5 of the ESA Regulations, or ii is to be treated as having limited capability for work-related activity under Part 6 of those Regulations. 2 Where a person has been issued with a questionnaire which relates to the provisions of Schedule 2 of the ESA Regulations as they had effect immediately before the commencement date, regulation 5 does not apply for the purposes of making a determination on or after that date as to that person’s limited capability for work under Part 5 of the ESA Regulations and, for those purposes, the provisions of Schedule 2 of the ESA Regulations are to continue to apply in respect of that person as they had effect immediately before the commencement date. 3 Where a person has been issued with a questionnaire which relates to the provisions of Schedule 3 of the ESA Regulations as they had effect immediately before the commencement date, regulation 6 does not apply for the purposes of making a determination on or after that date as to that person’s limited capability for work under Part 6 of the ESA Regulations and, for those purposes, the provisions of Schedule 3 of the ESA Regulations are to continue to apply in respect of that person as they had effect immediately before the commencement date. 4 The provisions of paragraphs (2) to (3) do not apply to any determination made in respect of a person on or after 28 th July 2013. Amendment of Part 5 of the ESA Regulations 3 1 Part 5 of the ESA Regulations (Limited Capability for Work) is amended as follows. 2 In regulation 19 (determination of limited capability for work)— a for paragraph (4), substitute— 4 In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if— a fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be, b wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used. ; and b for paragraph (5) substitute— 5 In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises— a in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement; b in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or c in respect of any descriptor or descriptors listed in— i Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; ii Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement. . 3 In regulation 20 (certain claimants to be treated as having limited capability for work) , for paragraph (b) substitute— b the claimant is— i receiving treatment for cancer by way of chemotherapy or radiotherapy; ii likely to receive such treatment within six months after the date of the determination of capability for work; or iii recovering from such treatment, and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work. . 4 For regulation 25 (hospital in-patients) substitute— Hospital patients 25 1 A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical or other treatment as a patient in a hospital or similar institution, or on any day which is a day of recovery from that treatment. 2 The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction. 3 For the purposes of this regulation, a claimant is to be regarded as undergoing treatment as a patient in a hospital or similar institution only if that claimant has been advised by a health care professional to stay in a hospital or similar institution for a period of 24 hours or longer. 4 For the purposes of this regulation, “day of recovery” means a day on which a claimant is recovering from treatment as a patient in a hospital or similar institution and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day. . 5 In regulation 26(1)(b) (claimants receiving certain regular treatment), after “plasmapheresis” omit “or by way of radiotherapy”. 6 In regulation 29 (exceptional circumstances)— a in paragraph (2), insert “Subject to paragraph (3)” at the beginning of the paragraph; and b after paragraph (2) insert— 3 Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by— a reasonable adjustments being made in the claimant’s workplace; or b the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant. . Amendment of Part 6 of the ESA Regulations 4 1 Part 6 of the ESA Regulations (Limited Capability for Work-Related Activity) is amended as follows. 2 In regulation 34 (determination of limited capability for work-related activity)— a for paragraph (3), substitute— 3 In determining whether a descriptor applies to the claimant, the claimant is to be assessed as if— a the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be, b wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used. ; and b after paragraph (3) insert— 3A In determining whether a descriptor applies, it is a condition that the claimant’s incapability arises— a in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16 (b), from a specific bodily disease or disablement; b in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16 (d), from a specific mental illness or disablement; or c in respect of— i descriptors 1 to 8, 15(a), 15(b), 16(a) and 16 (b), as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; ii descriptors 9 to 14, 15(c), 15(d), 16(c) and 16 (d), as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement. . 3 In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity) , for sub-paragraph (b) substitute— b the claimant is- i receiving treatment for cancer by way of chemotherapy or radiotherapy; ii likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or iii recovering from such treatment, and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or . Amendment of Schedule 2 to the ESA Regulations 5 1 In Part 1 of Schedule 2 to the ESA Regulations (Assessment of whether a Claimant has Limited Capability for Work) — a in Activity 1, for the wording in column 1 substitute— 1 Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used. ; b in Activity 2, in column 2— i in paragraph 2(b)(ii) after “(even in an adjustable chair)” insert— ; or iii a combination of (i) and (ii), ; ii in paragraph 2(c)(ii) after “(even in an adjustable chair)” insert— ; or iii “ a combination of (i) and (ii), ; c in Activity 5, in column 2, in paragraph 5(d), after “Cannot”, insert “single-handedly”; d in Activity 6, for the wording in column 1 substitute— 6 Making self understood through speaking, writing, typing, or other means which are normally, or could reasonably be, used, unaided by another person. ; e in Activity 7, for the wording in column 1, substitute— 7 Understanding communication by— i verbal means (such as hearing or lip reading) alone, ii non-verbal means (such as reading 16 point print or Braille) alone, or iii a combination of (i) and (ii), using any aid that is normally, or could reasonably be, used, unaided by another person. ; f in Activity 8, for the wording in column 1, substitute— 8 Navigation and maintaining safety, using a guide dog or other aid if either or both are normally, or could reasonably be, used. ; g in Activity 9— i for the wording in column 1, substitute— 9 Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used. ; ii in column 2, in paragraph 9(b), for “At risk” substitute “The majority of the time is at risk”; and 2 In Part 2 of Schedule 2 to the ESA Regulations (Mental, Cognitive and Intellectual Function Assessment), in Activity 15, in column 2, for the wording in paragraph (a) substitute— a Cannot get to any place outside the claimant’s home with which the claimant is familiar. . Amendment of Schedule 3 to the ESA Regulations 6 In Schedule 3 to the ESA Regulations (Assessment of whether a Claimant has Limited Capability for Work-Related Activity) — a in Activity 1, for the wording in column 1 substitute— 1 Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used. ; b in Activity 6, for the wording in column 1 substitute— 6 Making self understood through speaking, writing, typing, or other means which are normally, or could reasonably be, used, unaided by another person. ; c in Activity 7, for the wording in column 1 substitute— 7 Understanding communication by: i verbal means (such as hearing or lip reading) alone, ii non-verbal means (such as reading 16 point print or Braille) alone, or iii a combination of (i) and (ii), using any aid that is normally, or could reasonably be, used, unaided by another person. ; and d in Activity 8, for the wording in column 1, substitute— 8 Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or voiding of the bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used. . Signed by authority of the Secretary of State for Work and Pensions. Steve Webb Minister of State Department for Work and Pensions 13th December 2012