‘Fitness for work’ appeal ruling ‘makes mockery’ of call for evidence


theweeksubThe government’s successful bid to win the right to appeal a ruling that its “fitness for work” test discriminates against people with mental health conditions “makes a mockery” of a new call for evidence on the assessment, say campaigners.

The call for evidence was made by Dr Paul Litchfield, BT’s chief medical officer, who has been appointed by the government to carry out the fourth independent review of the work capability assessment (WCA).

He wants to focus on how improvements suggested by his predecessor, Professor Malcolm Harrington, have been implemented by the government and Atos Healthcare, which carries out the tests which assess eligibility for employment and support allowance (ESA).

He will also look at “whether more can be done to ensure that the assessment process is both effective and perceived as being objective”, and is said to be “particularly interested” in examining how the WCA works for people with mental health conditions.

The disabled activist and blogger Sue Marsh, a leading campaigner for WCA reform, said she believed the Department for Work and Pensions (DWP) had “intentionally held back progress” on improving the assessment.

She said: “All the while there are reviews, we can hope for improvements. However, if Harrington wasn’t able to fix a system so tremendously broken, I would be surprised if Litchfield is allowed to do any better.”

Marsh said that all the improvements the government had introduced so far had come from Harrington’s first report in 2010, while his next two reviews became “less and less useful”.

She said: “You can almost feel the ‘independence’ seeping away as the DWP refuse any and all suggestions.”

The day after Litchfield’s call for evidence, it emerged that the government had won the right to appeal against a tribunal ruling that the WCA discriminates against people with mental health conditions, learning difficulties and autism.

Three upper tribunal judges had ruled in May that the WCA puts these groups at a substantial disadvantage, because many of them have problems filling in forms, seeking additional evidence and answering questions.

This week, a spokeswoman for the Mental Health Resistance Network, the campaigning group behind the legal action, said: “This is not the news we wanted but the Tories were never going to give up without a fight as they are desperate to destroy our welfare state. Needless to say we will be fighting back.”

It is not yet clear when the appeal will take place, as the three tribunal judges have yet to deliver their final ruling and are waiting for the Department for Work and Pensions (DWP) to investigate how to ensure that the necessary medical evidence can be obtained.

Alisdair Cameron, team leader of the user-led organisation Launchpad, which is based in Newcastle, said the government’s “disappointing, mean-spirited and harmful” decision to appeal “makes a mockery” of the fourth call for evidence on the WCA.

Launchpad, working with the Mental Health Northeast consortium and False Economy, the union-funded, anti-cuts website, has been pushing Atos and DWP for information about the operation of Mental Function Champions (MFCs), which were supposed to improve the WCA experience for people with mental health conditions and learning difficulties.

The MFCs were introduced following a recommendation by Harrington in the first of his independent reviews, but the three organisations say they appear to have had little or no impact.

Cameron said: “On the one hand we’ve had three previous reviews which made over 50 recommendations, and yet those recommendations that could make the most significant difference to people experiencing mental health problems, for example, the implementation of a robust and accountable MFC system, are simply being ignored.”

He said that, in the light of the government appeal, “finding out how the MFC works and if it actually does work is more important than ever. At the very least, we want all reporting information about that role put into the public domain.”

A DWP spokesman said: “We disagreed with the upper tribunal’s original ruling and are pleased that the court of appeal has given us permission to appeal.”

He said the court had found the grounds for appeal to be “plainly arguable”, and added: “We believe we have made – and continue to make – significant improvements to the work capability assessment process for people with mental health conditions.”

Meanwhile, new figures from the government’s courts and tribunals service show that the number of ESA appeals more than doubled between the fourth quarter of 2011-12 and the fourth quarter of 2012-13.

The latest figures also showed that 43 per cent of ESA appeals that were dealt with at a tribunal hearing were successful.

A DWP spokesman said that “anyone who disagrees with the outcome of their WCA can appeal, so it isn’t surprising that a number of people do”, and that tribunals often overturn decisions because “new evidence is produced at appeal which wasn’t available when the original decision was made”.

He suggested the rise could be due to a gradual increase in the number of people applying for ESA, and the “cumulative effect” of the incapacity benefit reassessment programme, which began in full in April 2011, as well as more people reaching the date for a repeat assessment.

He added: “To help ensure decisions are as accurate as possible at the earliest opportunity, from October 2013, anyone who disputes a decision will have it reconsidered first by the DWP rather than going immediately to a tribunal.

“Following this, if the claimant still disputes the outcome, they can appeal directly to the independent tribunal. However it is likely this process will cut the number of cases which need to go to the tribunal.”

4 July 2013