Concern over scope of EHRC inquiry into ‘unlawful acts’ by work and pensions secretaries 

The equality watchdog has finally launched a – limited – investigation into unlawful treatment by the Department for Work and Pensions (DWP) of disabled benefit claimants, including some who died, five years after it was first told to act.  

The move to investigate possible “unlawful acts” by successive work and pensions secretaries – including an examination of the deaths of some claimants – has been welcomed by some activists. 

But there is also mounting concern that the investigation by the Equality and Human Rights Commission (EHRC) will only focus on events from January 2021 onwards. 

And there is also concern that EHRC has made it clear that it is not seeking evidence from individual disabled people or relatives of those who have died due to DWP failings, while it has failed to make it clear in its terms of reference if it will take evidence from disabled people’s organisations. 

The decision to launch only a limited investigation has now strengthened calls for a full independent inquiry into DWP’s actions over the last 15 years. 

The focus on the last three-and-a-half years will mean the investigation may not consider evidence relating to some of the most high-profile and disturbing deaths linked to DWP’s failures, such as those of Philippa Day (September 2019), Jodey Whiting (February 2017), Michael O’Sullivan (September 2013), Roy Curtis (November 2018) and Errol Graham (spring 2018). 

And it is also likely to mean a focus on the actions of just three work and pensions secretaries: Therese Coffey, Chloe Smith (who was in post for less than two months in 2022) and Mel Stride, who current occupies the position. 

Disability News Service (DNS) has continued to report on deaths linked to DWP’s actions since January 2021, including those connected to safeguarding flaws in the universal credit system, such as the deaths of Nazerine Anderson, from Leicestershire, who died in June last year, and Kevin Gale, from Cumbria, who took his own life in March 2022. 

EHRC yesterday (Wednesday) launched the investigation into what it said were concerns that successive secretaries of state may have broken the Equality Act in the way their department has carried out benefit assessments. 

It will particularly examine the work capability assessment (WCA) and the assessment for personal independence payment (PIP), and it will include the impact of the WCA on universal credit claimants. 

And it will focus on failures to make reasonable adjustments for people with mental distress and learning difficulties. 

EHRC commissioner Akua Reindorf, a barrister and employment judge who has specialised in human rights law, told DNS this week that the potential breaches of the act by DWP were “very serious”. 

She said: “We wouldn’t be launching an investigation on this scale if we didn’t think it was extremely serious.” 

She said the commission would “follow the evidence” and would look back further than 2021 “if it appears relevant to do so”. 

Reindorf said the investigation was a “massive” piece of work but could not say how long it was likely to take. 

The commission will also be assessing whether DWP breached its obligations under the Equality Act’s public sector equality duty. 

DWP could face a potentially unlimited fine if the allegations are found proven, and be required to produce an action plan to correct its failings. 

The commission finally took the step to launch an investigation after discussions with the department that lasted more than two years and were supposed to lead to a legally-binding section 23 agreement that would have forced it to take action to address its discrimination. 

Just two weeks ago, this delay led to the watchdog being accused of bowing to political pressure by failing to force DWP to take action to prevent further deaths of claimants. 

The commission has now apparently decided that DWP had no intention of ever signing the agreement. 

But calls for EHRC to act date back as far as April 2019, when Labour’s Debbie Abrahams wrote to the commission to ask it to investigate deaths linked to the WCA and PIP assessment processes. 

The commission eventually rejected calls for an investigation into the deaths the following year, blaming the pandemic. 

Asked if the decision to launch the investigation was a recognition that it should have acted earlier, rather than spend two years trying to persuade DWP to sign a section 23 agreement, Reindorf said: “I’m massively restricted in how much I can talk to you about that, but I think we’re satisfied that we’ve approached it appropriately.”  

EHRC says that those who are being asked to give evidence to its investigation are whistleblowers from DWP and its contractors, including Atos, Capita and Maximus, “charities, third sector and advocacy organisations”, welfare rights advisers, legal and medical professionals, academics and researchers. 

Disabled People Against Cuts (DPAC) said the restricted list of people EHRC was willing to accept evidence from was “offensive and unacceptable”. 

Paula Peters, a member of DPAC’s national steering group, said yesterday: “We’ve been waiting over five years for the EHRC to launch an inquiry into benefit deaths. 

“More disabled people have died since then as a result of the distress from the cruel, callous, inhumane treatment meted out by the DWP disability benefit assessments.” 

She said the restricted period EHRC was examining meant it would not investigate the deaths of claimants such as David Clapson, Mark Wood, Errol Graham and Michael O’Sullivan. 

She said their families were still “fighting for justice and to hold to account those in policy- making and the assessment process” and that starting the investigation from January 2021 was “a slap in the face” for those and other families. 

She said DPAC demanded a “full public benefit deaths inquiry” that would cover the introduction of employment and support allowance and the WCA in 2008, and would allow relatives of those who have died, and members of the public, to be heard, and “hold to account every politician past and present and senior civil servant involved in policy and decision-making”. 

Mark Harrison, a member of the steering group of the Reclaiming Our Futures Alliance, who has played a key role in holding EHRC to account over the section 23 agreement, said: “It is about time the EHRC used its powers to hold the DWP to account for the grave and systematic violations of disabled people’s rights.  

“I have concerns as to the scope of their investigations, as they have failed over the last two years to sign a section 23 agreement with DWP despite repeatedly trumpeting this in the media, publicly and with the UN disability committee.” 

He claimed last night – although this is not clear in the terms of reference – that EHRC was “not going to take evidence from disabled people affected by this brutalising and unsafe regime, bereaved relatives or Deaf and disabled people’s organisations”, which he said would be in direct violation of the UN Convention on the Rights of Persons with Disabilities, so would have to “be rectified immediately”. 

Harrison added: “The jury is out until they demonstrate that they are going to act in line with the UN convention and not just let the unnecessary benefit-related deaths and harm continue without challenge.   

“We will be monitoring them closely.” 

Alison Burton, whose father-in-law Errol Graham starved to death after DWP wrongly stopped his benefits when he missed a work capability assessment, said she was disappointed that EHRC was only looking back as far as January 2021. 

She told DNS that she welcomed the investigation as an acknowledgement of the harm that has been done. 

But she said she was “still quite frustrated and annoyed that it has taken so long” and that the commission “has not supported disabled people in the way it should have done over the last few years”. 

She said: “The EHRC has got a lot of work to do to gain that trust back from disabled people. 

“Hopefully this might be a starting point, but as a disabled person myself I have mixed emotions because I feel let down by the EHRC because there is a real risk of [ongoing] harm and this investigation is going to take a long time.” 

Imogen Day, whose sister Philippa’s death was caused by widespread failings in the PIP assessment system, said she was “cautiously optimistic” about the investigation.  

She said it was a “hard-won step and recognition” for disabled people’s campaigning, and added: “I look forward to seeing the results of the investigation and hope this brings the accountability we need.” 

Joy Dove, whose daughter Jodey Whiting took her own life after her employment and support allowance was wrongly stopped by DWP for missing a work capability assessment, welcomed the commission’s decision to launch an investigation and said it was “about time something was done to investigate DWP’s actions”. 

She said: “They have destroyed our family, they need to be held accountable. 

“I want justice for my daughter Jodey and all the others who have killed themselves.” 

But she also said the investigation should look further back than January 2021. 

Stride promised MPs yesterday – hours before the prime minister called a July general election – that he and his department would co-operate with the investigation. 

Questioned about the failure to sign the section 23 agreement, DWP’s permanent secretary, Peter Schofield, its most senior civil servant, told the Commons work and pensions committee yesterday that the “challenge” his department had had was “understanding the nature of the concerns” and “where the suspected breach of the Equality Act was”. 

He said the terms of reference for the investigation published by EHRC now provided “a clear sense about where the commission want to investigate”. 

He said there had been “a lot of change in the way we do health assessments”, that “the vast majority of health assessments nowadays are done over the phone rather than in person”, and that DWP had “been taking lots of steps” in “changing the way we do health assessments” as part of its Health Transformation Programme. 

And he said the department’s serious case panel continued to examine “where things have gone wrong”.  

But Labour’s Neil Coyle later pointed out in the Commons that Schofield had told the committee in January last year that the negotiations with EHRC were “going well” and that an agreement would be secured. 

And he said Stride had told the committee in November 2022 that negotiations were “constructive” and that he expected an agreement to be reached. 

A DWP spokesperson said earlier in a statement: “The DWP is committed to providing a compassionate service to all our customers.  

“Benefits assessments are carried out by qualified health professionals with reasonable adjustments available to protect vulnerable claimants. 

“We take our obligations under the Equality Act incredibly seriously, including the public sector equality duty, and will continue to cooperate with the commission.” 

Debbie Abrahams said last night: “I welcome the EHRC’s decision to use the full force of its powers and officially launch an investigation into the Department for Work and Pensions and the tragic deaths of vulnerable welfare claimants.  

“It has been two years since the section 23 agreement issued by EHRC, yet we are no further forward with justice or accountability for deaths of disabled claimants.  

“I am pleased that the EHRC have now said enough is enough and will be undertaking a formal investigation.  

“I hope this can be done as a matter of urgency.” 

DNS editor John Pring’s book on DWP and how its actions led to countless deaths of disabled people in the post-2010 era – The Department – will be published by Pluto Press in August. Visit the DNS website for a 50 per cent discount  

Pictures: Some of the benefit claimants whose deaths have been linked to DWP (clockwise from top left): Mark Wood, Faiza/Sophie Ahmed, James Oliver (right) with his brother Dave Smith, Stephen Carré, David Clapson, Errol Graham, Philippa Day, and Jodey Whiting

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