Duncan Smith and Grayling ‘must face criminal probe’ over WCA deaths

Disabled activists are calling for Iain Duncan Smith to face a criminal investigation over his refusal to address a coroner’s concerns about the safety of the “fitness for work” test, which led to “countless deaths” over the last six years.

They want to hold Duncan Smith – and his former employment minister Chris Grayling – to account for their failure to improve the safety of the work capability assessment (WCA) even though they were warned that it risked causing further deaths.

Tomorrow (25 March), one leading disabled activist will meet with two officers from Police Scotland so he can hand over a dossier of evidence calling for Duncan Smith (pictured) and Grayling to face charges of misconduct in public office.

John McArdle, co-founder of Scottish-based Black Triangle, said he believed that Duncan Smith and Grayling had shown “reckless disregard for the lives of disabled people”.

He said: “For so long, the government has acted with sheer contempt for the rule of law.

“It is time they woke up and realised that the law doesn’t only apply to us, but to them equally.”

McArdle said he believed there was sufficient evidence for a file to be submitted by Police Scotland to the Procurator Fiscal, the Scottish equivalent of the Crown Prosecution Service.

He said he had “no doubt whatsoever” that Duncan Smith and Grayling had both “knowingly” neglected their public duty, and added: “The facts speak for themselves.”

The call for a police investigation came as activists from Disabled People Against Cuts, the Mental Health Resistance Network and other grassroots organisations staged a protest on Wednesday (23 March) in the central lobby of the House of Commons during prime minister’s questions, calling for an end to deaths caused by benefit cuts.

Black Triangle and other campaigning organisations and individuals spoke out after Duncan Smith resigned as work and pensions secretary in protest – he claimed – at being forced to make fresh cuts to disability benefits in last week’s budget.

Disabled activists were astonished at Duncan Smith’s attempt to dodge responsibility for six years of cuts to disability benefits, and to position himself as a defender of disabled people.

They pointed to his refusal – and that of Grayling – to act on concerns raised by a coroner following the suicide of Stephen Carré in January 2010.

They said that this refusal amounted to misconduct in public office, a criminal offence which carries a maximum sentence of life in prison.

On its website, the Crown Prosecution Service says that such an offence is committed “when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office”.

Campaigners point to a legal precedent in which a police officer was convicted of misconduct in public office when he refused to intervene during a disturbance in which a man was kicked to death.

They say that that conviction has strong parallels with the failure of Duncan Smith and Grayling to act after they were warned of the WCA’s flaws following the death of Stephen Carré.

So far, the call for a criminal investigation has been backed by many of the country’s leading disabled activists and disabled people’s organisations, including Inclusion London, Disabled People Against Cuts, Equal Lives, WOWcampaign, Professor Peter Beresford, the Mental Health Resistance Network, Pat’s Petition, and the Cross Border Alliance.

Mark Harrison, chief executive of Equal Lives, said: “The political process has failed disabled people, so this now needs to be tested in the courts as the only way of getting justice.”

Disabled researcher and campaigner Catherine Hale said the Stephen Carré scandal provided “incriminating evidence of how IDS and Grayling failed to act on a coroner’s concerns over the safety of the WCA, and put thousands of other lives at risk.

“We have a duty to bring these cases to light and try to bring justice for the families involved.”

When they were appointed in May 2010, Duncan Smith and Grayling assumed responsibility for responding to a letter written by coroner Tom Osborne, who carried out the inquest into Stephen Carré’s death, and had serious concerns about the safety of the WCA.

Osborne asked the work and pensions secretary Yvette Cooper – who never saw the letter, as the general election was called just days after it arrived – to review the policy not to seek medical evidence from a GP or psychiatrist if someone applying for out-of-work disability benefits had a mental health condition.

But Duncan Smith and Grayling dismissed the letter – according to a draft Department for Work and Pensions (DWP) response that was only sent to Osborne last month, more than five years after it was written – and failed to show it to Professor Malcolm Harrington, the independent expert they had appointed to review the WCA, while also deciding to roll out the test to hundreds of thousands of long-term claimants of incapacity benefit, many of whom had mental health conditions.

Many campaigners believe that the decision of Duncan Smith and Grayling to ignore Osborne’s letter led to countless other deaths.

In December 2011, a long-term incapacity benefit (IB) claimant – Ms D E – killed herself after being told she was not eligible for ESA; her case was linked by the Mental Welfare Commission for Scotland to the failure to obtain further medical evidence.

In 2014, another coroner wrote an almost identical letter to Osborne’s, again warning of concerns about the safety of the WCA, after the death of a north London man, who also took his own life after being found fit for work.

And last November, government-funded research concluded that the programme to reassess people claiming IB using the WCA could have caused 590 suicides in just three years.

Duncan Smith and his ministerial colleagues have also been trying for three years to defeat legal efforts to make the WCA safer for people with mental health conditions.

A long-running judicial review case, brought by the Mental Health Resistance Network (MHRN), resulted 12 months ago in Duncan Smith agreeing to develop a pilot programme to test new ways of collecting further medical evidence. But that pilot project has still not begun.

Denise McKenna, co-founder of MHRN, said: “During our judicial review into the WCA, the DWP went to exceptional lengths to argue against taking responsibility for obtaining further medical evidence for claimants with mental health problems, even going so far as to appeal the initial judgement that the WCA substantially disadvantages us.

“We were shocked to learn that both before and during the case the DWP had received letters from coroners who had found the cause of individual suicides to be due to failure to obtain or take account of further medical evidence, with the coroners warning that further suicides were likely.

“We cannot believe that the DWP’s solicitors were not aware of these cases while they were arguing against us in court.

“If they were, they have surely withheld important information from the court, and if they were not, we would want to know why not.”

She added: “We are in little doubt that many additional suicides could be linked to the DWP’s refusal to allow mental health claimants a fair opportunity to claim vital financial support.

“As the DWP continues to drag its heels over making the WCA fairer for mental health claimants, we expect to hear of more people ending their lives.

“It is not beyond reason to perceive the DWP as being to blame for these deaths. It is intolerable for this situation to continue, yet we are at a loss as to how to stop it.

“Although we continue to fight to try to lessen the harm caused by the WCA, at the same time we recognise it as a mock assessment and want it scrapped.”

Rakesh Singh, a solicitor with The Public Law Project, which represented the two claimants who took the judicial review case, said he was unable to comment on the possibility of a criminal prosecution as he was a civil lawyer.

But he said that the upper tribunal had found in May 2013 in the MHRN case that the WCA unfairly discriminated against people with mental health conditions, and that recommendations made by Harrington in November 2012 could make the process fairer. 

He said DWP had refused to take positive steps to tackle the problem, and had since “come up with excuse after excuse for not implementing change”.  

He said: “The DWP has still not started a trial of the changes that it said it would undertake and which a year ago the court said ought to happen as soon as possible. 

“It seems clear that the DWP under Iain Duncan Smith completely lacked any real commitment or the political will to put to an end the substantial disadvantage that persons with a mental health condition face when they are subjected to the WCA.”

A DWP spokesman said: “The role of DWP press office is to deal with current departmental business.  We wouldn’t comment on former secretaries of state or ministers.”