Majority of time / always
For variable and fluctuating conditions, the choice of descriptor should reflect the level of activity that can be performed for a reasonable, continuous period within a day or for the majority of days over a longer period. Concepts of repeatedly, reliably and safely should also be taken into account, together with the effects of pain. Where a descriptor refers to 'always' this does not mean 'at all times', and so intermittent disablement may still lead to a decision that a descriptor is satisfied 'always'.
Legislation
Regulations set out how the 'majority of the time' provision applies to limited capability for work-related activity descriptiors -
A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.
Sources:
- Regulation 34(2) of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008), and regulation 34(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (SR.No.280/2008) (apply to income-related and old-style contributory ESA).
- Regulation 30(2) of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013), and regulation 30(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2016 (SR.No.209/2016) (apply to new-style contributory ESA).
- Regulation 40(4) of the Universal Credit Regulations 2013 (SI.No.376/2013), and regulation 41(4) of the Universal Credit Regulations (Northern Ireland) 2013 (SR.No.216/2016) (apply to universal credit).
Case law
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- The meaning of ‘always’ in descriptor 16(a) - social engagement
- [2014] UKUT 268 (AAC)
- CE/3939/2013
- Secretary of State for Work and Pensions v LC (ESA)
- Whether person suffering from obsessive compulsive disorder can reliably complete actions
- [2014] UKUT 112 (AAC)
- CE/2016/2013
- MW v Secretary of State for Work and Pensions (ESA)
- ESA descriptor 13 and whether engagement in social contact needs to be ‘always’ precluded
- [2014] CSIH 39 (Brade)
- Reported as [2014] AACR 29
- Secretary of State for Work and Pensions v Brade
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Duty of Secretary of State and tribunal to consider what work related activity claimant is capable of for purposes of ESA regulation 35(2)
- [2013] UKUT 573 (AAC)
- CE/587/2013
- DH v Secretary of State for Work and Pensions (ESA)
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‘Majority of time’ provision in regulation 34 of the ESA Regulations does not apply if inconsistent with wording of a descriptor / ‘on a daily basis’ in descriptor 14 of schedule 3 does not mean ‘every day’
- [2013] UKUT 556 (AAC)
- CE/3808/2012
- WT v Secretary of State for Work and Pensions (ESA)
- When is engagement in social contact ‘always precluded’
- [2013] UKUT 552 (AAC)
- CE/4125/2012
- LM v Secretary of State for Work and Pensions (ESA)
- Application of WCA descriptors for the majority of the time
- [2013] UKUT 207 (AAC)
- CE/2771/2012
- CH v Secretary of State for Work and Pensions (ESA)
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Whether necessary to take into account claimant’s ability to repeatedly carry out an activity / need for tribunal to obtain evidence of basis of DLA mobility component award
- [2011] UKUT 61 (AAC)
- CE/1992/2010
- AF v Secretary of State for Work and Pensions
- Ability to manually propel wheelchair / ‘reasonable regularity’ for ESA purposes
- [2011] UKUT 21 (AAC)
- CE/1737/2010
- EH v Secretary of State for Work and Pensions