wcainfo

Providing information

Failure to comply with requirements for providing information (such as returning the ESA50 questionnaire) can lead to loss of entitlement. Claimants may be able to show 'good cause' or 'good reason' to avoid loss of benefit.


Legislation

The requirement for providing information in the form of a questionnaire is in regulations.

For ESA, regulation 21(1) and 36(1) of the Employment and Support Allowance Regulations 2008, and regulation 17(1) and 33(1) of the Employment and Support Allowance Regulations 2013 provide -

… the information or evidence required to determine whether a claimant has {limited capability for work / limited capability for work-related activity] is....  any information relating to [a claimant’s capability to perform the activities / the descriptors] [referred to / set out] in [the relevant schedule] as may be requested in the form of a questionnaire; and.... any such additional information as may be requested.

Regulation 22 and 37 of the 2008 regulations, and regulation 18 and 34 of the 2013 regulations provide -

  1. Where a claimant fails without good cause to comply with the request... that claimant is, subject to paragraph (2), to be treated as not having [limited capability for work / limited capability for work-related activity].
  2. Paragraph (1) does not apply unless - (a) the claimant was sent a further request at least three weeks after the date of the first request; (b) at least 1 week has passed since the further request was sent.

Regulation 24 and 39 of the 2008 regulations, and regulation 20 and 36 of the 2013 regulations provide -

The matters to be taken into account in determining whether a claimant has good cause ... (failure to provide information in relation to [limited capability for work / work-related activity]) include - (a) whether the claimant was outside Great Britain at the relevant time; (b) the claimant’s state of health at the relevant time; and (c) the nature of any disability the claimant has.

For universal credit, regulation 43 of the Universal Credit Regulations 2013 provides -

  1. The information required to determine whether a claimant has limited capability for work or for work and work-related activity is - (a) any information relating to the descriptors specified in Schedule 6 or 7 requested by the Secretary of State in the form of a questionnaire; and (b) any additional information that may be requested by the Secretary of State.
  2. But where the Secretary of State is satisfied that there is enough information to make the determination without the information mentioned in paragraph (1)(a), that information is not required.
  3. Where a claimant fails without a good reason to comply with a request under paragraph (1), the claimant is to be treated as not having limited capability for work or, as the case may be, for work and work-related activity.
  4. But paragraph (3) does not apply unless the claimant was sent a further request to provide the information at least 3 weeks after the date of the first request and at least 1 week has passed since the further request was sent.

Sources:

  • Regulation 21, 22, 24, 36, 37 and 39 of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008) (applies to income-related and contributory ESA in a universal credit live service area).
  • Regulation 17, 18, 20,, 33, 34 and 36 of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013) (applies to contributory ESA in a universal credit full service area).
  • Regulation 43 of the Universal Credit Regulations 2013 (SI.No.376/2013) (applies to universal credit).

Case law

Commentary:​ Incapacity benefit case law has established principles that apply equally to employment and support allowance. In R(IB) 1/00 Judge Jacobs holds that in calculating a period before the end of which something cannot be done, the date a request is issued must be ignored as well as the day on which the period expires . In CIB/4012/2004 Judge Mark holds that there must be very careful assessments of evidence about when a request / reminder has been sent (see also [2013] UKUT 414 (AAC)). R(IB) 2/01 provides a detailed guide on issues relating to the burden of proof for 'good cause', and for non-receipt of documents. | Add commentary or suggest an edit.