The Department for Work and Pensions (DWP) has caused outrage after telling senior civil servants that it was “business as usual”, despite the court of appeal ruling that its “fitness for work” test discriminated against many disabled people.
The court ruled last month that the work capability assessment (WCA) – which tests eligibility for employment and support allowance (ESA) – discriminates against people with mental health conditions, learning difficulties and autism.
DWP has since decided not to appeal to the supreme court, although the case still has to return to the tribunal that delivered the original ruling, so that it can decide how to address the discrimination.
But the website Benefits and Work this week published a leaked “gatekeeper memo”, sent out by DWP in early December, immediately after the court of appeal decision was handed down.
The memo – certain to have been approved by work and pensions secretary Iain Duncan Smith – tells “senior leaders” that, despite the court defeat, it was “business as usual for DWP Operations” – and repeats the phrase “business as usual” several times.
The memo adds: “Individuals will apply for ESA and undergo the WCA in the normal way. Those currently on Incapacity Benefit will be reassessed as planned.”
Ravi Low-Beer, from the Public Law Project, the solicitor for the two mental health service-users who took the case, said the DWP position was “completely wrong”.
He said: “They have challenged the finding that the process discriminates against people with mental health conditions and they lost.
“Where a court has made that finding, they cannot just do nothing. They have to consider making reasonable adjustments.”
John McArdle, a founding member of Black Triangle, which campaigns to scrap the WCA, said he had been “shocked” by the memo’s contents.
He said DWP “seems to be living in a parallel universe” and was “driving a coach and horses through the judicial system” and “holding the judiciary in contempt”.
McArdle said: “The issues that were raised in the judicial review made it crystal clear to anybody who saw the judgement and followed the case that the procedures the DWP are following in the WCA discriminate against people with mental health problems.
“DWP are behaving in a totally unaccountable manner, like a tin-pot dictatorship. It’s just staggering.”
But a DWP spokesman denied that the department was doing anything wrong.
He said: “It is a complicated judgment on an appeal against an interim judgment by the upper tribunal with no effect on day-to-day business, which continues as usual.
“This case is still on-going and will return to the upper tribunal to consider whether the adjustment to the process proposed by the claimants is reasonable.”
He added: “The WCA was introduced in 2008 by the previous government. We have made – and continue to make – significant improvements to the WCA process for people with mental health conditions since then.”
The tribunal asked DWP last summer for further evidence to help determine whether any reasonable adjustments could be made to the process, which was submitted in July.
DWP believes that it will not be in breach of the Equality Act until the courts decide that there are “reasonable adjustments” that it can make to the WCA process.
The court case is being driven by the Mental Health Resistance Network, which was formed in 2010 by existing incapacity benefit claimants worried about the programme to use the WCA to assess their eligibility for ESA, the new out-of-work disability benefit.
Lawyers for the two claimants had argued in court that where ESA applicants have a mental health condition, DWP should obtain medical evidence from their doctor or psychiatric team at every stage of the process, or justify why they had not done so.
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 MHRN members have themselves 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.
16 January 2014