Disabled activists say the fears and concerns of thousands of people with mental health conditions have been “vindicated”, after a tribunal ruled that the government’s “fitness for work” test was discriminating against them.
The judgment should eventually force the Department for Work and Pensions (DWP) to improve the way it uses the controversial work capability assessment (WCA) to assess people in mental distress.
Three upper tribunal judges ruled that the WCA puts people with mental health conditions, learning difficulties and autism at a substantial disadvantage, because many of them have problems filling in forms, seeking additional evidence and answering questions.
One of the claimants in the legal action, MM, was refused employment and support allowance (ESA) – the replacement for incapacity benefit (IB) – and successful appealed, but now faces regular reviews of his entitlement.
The other claimant, DM, receives IB, but is fearful that being reassessed for ESA will cause a health relapse, similar to the one that led to her being readmitted to hospital when she was assessed for IB in 1995.
MM and DM argued that DWP should ensure that vital medical evidence from GPs, psychiatrists and community psychiatric nurses is collected on their behalf and considered by assessors employed by the government’s contractors, Atos Healthcare, as part of their WCAs.
The legal action was driven by the Mental Health Resistance Network (MHRN), which was formed in 2010 by IB claimants who were worried about the government programme to use the WCA to reassess their eligibility for out-of-work disability benefits.
This week, the three judges ruled that DWP had breached its duty to make reasonable adjustments under the Equality Act by leaving claimants to collect their own medical evidence for their assessments and only calling for further information in limited circumstances.
They ordered DWP to investigate how to ensure the necessary medical evidence could be obtained, with the judges set to deliver a final ruling later this year.
Roy Bard, from MHRN, said the judgment “vindicated” campaigners who have repeatedly claimed that the WCA significantly disadvantages people with mental health conditions.
He said: “The judgment is clear: to routinely fail to consider evidence put forward by their own health care practitioners… places people with mental health problems at a significant disadvantage, which means that the current practice has been – and remains – discriminatory.”
He called on Atos to “cease making inappropriate assessments, and put into immediate effect significant changes to their practices, to prevent further avoidable distress, trauma and suicides”.
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 reassessment.
MHRN now plans to set up a centre – possibly in London – where sick and disabled people affected by the “myriad of cuts to services and benefits” can offer each other support, and find ways to resist the cuts.
Ravi Low-Beer, of the Public Law Project, the claimants’ solicitor, said the ruling “confirms what disabled people have been saying for years, although ignored by ministers: that the WCA process is not fit for purpose”.
He said: “It is up to all of us now to put pressure on the DWP to investigate – and then implement – real changes to the process without delay or prevarication, as the court has ordered.”
DWP said it would appeal against the judges’ decision.
Paula Peters, an activist with Disabled People Against Cuts, said she was “absolutely thrilled to bits” by the court’s decision.
She said: “For mental health claimants throughout the UK it is an absolutely monumental step forward. It is historic. It will help so many people. It gives hope to millions of people that we can do something to fight back against this government.
“The judges have said the WCA discriminates against mental health claimants. Which it does. It has been dreadful.
“They ignored my mental health problems on my assessment even though I have had bipolar for over 20 years.”
A DWP spokesman said: “We disagree with today’s ruling and intend to appeal. We believe we have made – and continue to make – significant improvements to the WCA process for people with mental health conditions.
“The percentage of people with mental health conditions who go into the support group for ESA has more than tripled since 2010.”
He said DWP would carry on working with charities such as Mind and the National Autistic Society – both of which gave evidence in support of MM and DM – to “pilot a new approach to collecting more information from a claimant’s GP to refine the WCA”.
23 May 2013
UN debate will be reminder of true inclusive education