A rare victory over the coalition’s welfare reforms was under threat this week, as the Department for Work and Pensions (DWP) tried to prove in court that its “fitness for work” test does not discriminate against some disabled people.
DWP was appealing against a tribunal ruling that the work capability assessment (WCA) discriminates against people with mental health conditions, learning difficulties and autism.
Three upper tribunal judges 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.
Campaigners want DWP to seek further medical evidence themselves in such cases.
Ravi Low-Beer, of the Public Law Project, the claimants’ solicitor, said the main focus of the government’s appeal was “some quite difficult-to-interpret technical provisions of the Equality Act, governing who is entitled to bring a claim”.
He said: “The tribunal has held that the DWP’s current policy on obtaining medical evidence substantially disadvantages people with mental health problems, and has given the government the opportunity to remedy that or at least to test a change to their policy.
“One would have hoped that given the findings of fact that the expert tribunal made, the government would at least have made some effort to trial a remedy to the problem the tribunal identified.
“It’s regrettable they haven’t done that but instead have gone to the court of appeal to argue about technical legal points.”
The legal action was driven by the Mental Health Resistance Network (MHRN), which was formed in 2010 by incapacity benefit claimants who were worried about the government programme to use the WCA to reassess their eligibility for out-of-work disability benefits.
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 of the network’s members have 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.
MHRN members were outside the Royal Courts of Justice to hold a vigil as three judges began to hear the two-day appeal this week.
They were supporting the two disabled people who are taking the case against DWP, and were also there to remember those who have suffered through the actions of DWP, Atos, which carries out the WCA on behalf of the government, and the US insurance giant, Unum, which has influenced government welfare reforms for the last two decades.
Roy Bard, one of the MHRN members who took part in the vigil, said the decision to take the court case had come about after members of the network asked why none of the big mental health charities were prepared to take legal action.
He added: “At least every week there is a local newspaper somewhere in the country that is reporting a story where the family of a dead person are saying Atos and the DWP were absolutely involved in that person’s death, but somehow the mainstream media seem not to be picking this up and not to be seeing the pattern.”
He said he knew personally of three people who had killed themselves “because of what is happening with benefits and because of the lack of services”.
Bard said some food banks were now excluding people who used drink or drugs, or even just tobacco, which he said was a return to the Victorian concept of the “deserving and the undeserving poor”.
He said: “I am beginning to wonder what enables the decent people of Britain to sit by while my brothers and sisters are being driven to suicide and while children are going to school hungry and having to rely on food banks.
“I am not so much angry as crying inside, and it is stopping me from getting better.
“They are harassing my friends [over WCAs]every three or four months. The system is irrational and illogical and they say we are the insane.”
Bard still claims incapacity benefit and is likely to be one of the last to be assessed for eligibility for its replacement, employment and support allowance.
He is working on a new project to set up a centre in south London – to be called SolidariTEA – that will offer advice and support to “people who have been destroyed by the system and cannot get help anywhere else”.
Another MHRN member, who asked not to be named, said there was a “tremendous sense of injustice” among the network’s members and supporters.
She said: “People do not realise the role Unum has played in the WCA. It is something we need more people to be aware of.
“The system was devised by the insurance industry to avoid paying out on policies in America, and the government are now using it to avoid paying out to benefit claimants.
“It’s not that benefit claimants don’t want an assessment; we just think this is a bogus assessment.”
Paula Peters, also from MHRN, said that more people had died unnecessarily since the original court ruling against DWP in May, including one of her own friends, on 12 August.
She said: “I spoke to his family and they said he had an Atos assessment and was worrying about the outcome, and he was also affected by the bedroom tax.”
Peters, who is due for her own assessment in February, said: “We want justice. This process isn’t working. Atos are not fit for purpose, the WCA is not fit for purpose and it is causing more harm. We keep losing people. Enough is enough.
“We won our case in court, but obviously Iain Duncan Smith [the work and pensions secretary]and David Cameron [the prime minister]would not accept that ruling.
“We are hoping the judges uphold the original ruling that it discriminates, and then changes will have to happen to this process.”
24 October 2013