New ‘fitness for work’ test changes ‘could breach Human Rights Act’


Major new changes to the government’s “fitness for work” test could breach the Human Rights Act and see many more disabled people losing the support they need, say leading campaigners and lawyers.

The new regulations were laid before parliament on 17 December and are due to come into force in just 11 days’ time (28 January).

Disabled activists today launched a major effort on social media to draw attention to the new regulations – which saw the hashtag #esaSOS “trending” on Twitter– which they said would have a huge impact on how assessments were carried out.

The disabled activist and blogger Sue Marsh, a leading campaigner for reform, organised the social media action from her hospital bed.

She wrote on her blog: “Many vulnerable people’s needs will suddenly be able to be overlooked or ignored, meaning they could end up losing the support they desperately need to manage their conditions.”

The new regulations will see more people with cancer placed in the employment and support allowance (ESA) support group, for those who are not expected to take any part in work-related activity.

But they will also mean that an individual could now be refused ESA if an assessor believes the potential health risk if they are forced to work could be “significantly reduced” by a person starting to take a particular drug or treatment. This could see claimants lose the right to ESA if they refuse to take a medicine because of its side-effects.

Assessors will also be able to assume that an ESA claimant is fit for work if they could potentially benefit from a prosthetic limb or an assistance dog that they could “reasonably be expected” to use, in the same way that the use of wheelchairs and other aids is already considered in the WCA even if they are not currently used by a claimant.

And the regulations will separate physical impairments from the potential impact on mental health that might result from them, ruling out any interaction between the two in the test.

Disabled activist Sam Barnett-Cormack described the new regulations as “fundamental changes in how capability for work is to be assessed”.

One leading discrimination and human rights lawyer, Karon Monaghan QC, of Matrix Chambers, said that introducing measures to “penalise claimants who decline to receive medical treatment” could potentially violate article eight of the Human Rights Act (the right to a private life) and article three (freedom from inhuman and degrading treatment).

Another leading discrimination lawyer, Chris Fry, managing partner of Unity Law, said the regulations could also breach article nine, which preserves the right to freedom of thought, conscience and religion.

He said: “Essentially, they can impose a financial penalty on individuals who refuse treatment on religious grounds.”

And he agreed with Monaghan that some people could “essentially be forced to undergo treatment that is not in their best interests”.

He said it was “mystifying” why the coalition had introduced the new regulations when there were still so many unanswered questions, and that legal action would probably be taken against the government once they came into force.

He added: “Introducing penalties which restrict an individual’s freedom is a very dangerous thing to do.”

A DWP spokesman said: “These new regulations will mean hundreds more people with cancer will be placed in the support group for ESA and get the help they need.

“Other changes do not alter existing policy but clarify areas which are open to misunderstanding. They will make the process easier to understand for claimants and assessors.”

17 January 2013