Campaigners are celebrating another victory over the government’s welfare reform programme after the court of appeal agreed with a tribunal’s landmark ruling that the “fitness for work” test discriminates against some disabled people.
The latest victory comes only weeks after the same court quashed the government’s decision to close the Independent Living Fund in 2015.
The Department for Work and Pensions (DWP) was appealing against a ruling that the much-criticised work capability assessment (WCA) discriminates against people with mental health conditions, learning difficulties and autism, as they often have problems filling in forms, seeking additional evidence, explaining their condition, and answering questions.
Despite the victory, the two claimants – who both have mental health conditions – will now have to return to the upper tribunal so that it can determine how DWP should address the discrimination.
Their case is being driven by the Mental Health Resistance Network (MHRN), which was formed in 2010 by incapacity benefit claimants worried about the programme to use the WCA to assess their eligibility for employment and support allowance (ESA), the new out-of-work disability benefit.
One of MHRN’s founder members said the victory was “excellent news”, but she added: “We don’t know if it will result in any changes being made. No doubt DWP will do everything they can to avoid making changes. Certainly it is a moral victory if nothing else.”
She added: “We want them to stop sending out messages that this is about benefit fraud. It is not about benefit fraud, it is about taking benefits away from people who are simply not able to work.
“We want them to stop the lies and we want them to stop the test.”
She added: “I think it is a very important victory because, from MHRN’s point-of-view, it has given us a voice in the sense that people are listening to us and what we have to say.
“It also means the government cannot continue to argue that this process is fair. They simply cannot argue that.
“It is also very important in lifting the spirits of people who have been kicked into the ground and kicked in the teeth on a daily basis.”
The two claimants were supported by Mind, Rethink, the National Autistic Society, and the Equality and Human Rights Commission.
They argued in court that where ESA applicants have a mental health condition, DWP should obtain medical evidence from their doctor or psychiatric team at every stage of the process, or justify why they had not done so.
The tribunal had urged the government to trial this process, and then return to court for a hearing that would decide whether it would be a reasonable adjustment for DWP to make to the WCA process.
Instead, the government appealed against the tribunal’s findings that the WCA caused “substantial disadvantage” to people with mental health problems, learning difficulties and autism.
DWP also argued that the two claimants did not have the right to bring the case because they themselves had not been adversely affected by the WCA.
The court of appeal rejected both of these points, but it did find that it was not for the tribunal to determine what sort of measures should be put in place to assist claimants.
Ravi Low-Beer, the claimants’ solicitor, of the Public Law Project, said: “It is regrettable that the government chose to appeal against the tribunal’s finding that people with mental health problems are disadvantaged by the current system, rather than take the steps necessary to improve it.
“Now that the court of appeal has upheld the tribunal’s finding, we sincerely hope that the government will take immediate steps to improve the system.”
A DWP spokesman said: “This is a complicated judgment on an appeal against an interim judgment by the upper tribunal and we are now considering our next steps.
“The WCA was introduced in 2008 by the previous government. We have made – and continue to make – significant improvements to the WCA process for people with mental health conditions since then.”
Thousands of people with mental distress have been found unfairly fit for work following their WCA, and while many go on to win an appeal against this decision, some are unable to cope with an appeal, or experience a relapse in their health as a result of the process.
Many MHRN members have themselves had relapses, episodes of self-harm and suicide attempts, and have needed higher levels of medication and even hospitalisation in the lead-up to their reassessments.
5 December 2013