Legal bid aims to halt DWP plans to tighten ‘fitness for work’ test

A disabled activist has launched a legal attempt to force the government to carry out a fresh consultation on its plans to tighten the work capability assessment, which she believes will force many disabled people into poverty, or even destitution.

Ellen Clifford is arguing that work and pensions secretary Mel Stride has breached his duties under the Equality Act by failing to make the “unfair” and “unlawful” consultation process accessible.

She says the unlawful consultation, which was launched two months ago and ended last week, was too short to allow many disabled people to take part and failed to make reasonable adjustments to enable her and others to respond.

It also failed to make clear that many people could lose up to £390 a month under the government’s plans, and could be forced to carry out work-related activity and face the risk of sanctions if they fail to comply with the conditions imposed on them.

And she says there are questions over the availability of accessible formats of the consultation report.

Clifford, a member of the national steering group of Disabled People Against Cuts (DPAC) and author of The War on Disabled People, also believes the consultation document was unlawful because its contents were misleading and lacking in detailed, accurate analysis.

A pre-action legal letter she has sent to the Department for Work and Pensions (DWP) – backed by lawyers from Public Law Project (PLP) – requires a response from the department within 14 days, and warns of a possible judicial review if the concerns are not resolved.

She said this week: “The DWP’s proposals will take much-needed money out of the pockets of disabled people.

“The proposals themselves do not stack up, and the way they have gone about consulting on the changes is unfair and unlawful.

“At the very least, the DWP must not pursue any proposals without proper, lawful consultation.”

Clifford has told Stride in the letter that she believes the changes to the work capability assessment (WCA) will have a substantial negative impact on the health of many disabled people and force more of them into poverty and even destitution.

A key concern about Stride’s plans is the proposal to remove a safety net that for decades has protected disabled people seen as being at “substantial risk” of harm if found fit for work or work-related activity.

This measure has particularly protected those sectioned under the Mental Health Act, with active thoughts of suicide, or who have had a recent episode of self-harm that needed medical attention.

But the proposals also suggest removing the absence of bowel or bladder control, the inability to cope with social interaction, and the inability to access a location outside the claimant’s home, from the list of activities and “descriptors” used in the WCA.

Days before the consultation was launched, Clifford and other disabled activists had been in Geneva to provide evidence on the UK government’s implementation of the UN Convention on the Rights of Persons with Disabilities.

Seven years earlier, the UN’s committee on the rights of persons with disabilities had found the UK government responsible for “grave and systematic” violations of disabled people’s rights under the convention.

It found in November 2016 that the UK government had discriminated against disabled people on their rights to an adequate standard of living and social protection, work and employment, and independent living.

Most of those breaches were caused by policies introduced by Conservative DWP ministers.

One of Clifford’s arguments is that Stride should not have launched a consultation on such a crucial reform so soon after disabled people and disabled people’s organisations had completed an exhausting process of evidence-gathering and report-writing in advance of the Geneva meeting.

Although DPOs including Disability Rights UK, Inclusion London, Disability Wales, DPAC and Disability Action Northern Ireland attended the Geneva UN session, the UK government backed out of attending.

Clifford is arguing in her legal letter that Stride must have been aware of the efforts made by these DPOs to prepare for and attend the Geneva session, and that he should have been anxious to hear their detailed responses to the consultation.

She was unable to respond to the consultation on behalf of DPOs including DPAC for impairment-related reasons, partly caused by the significant work she did for a coalition of DPOs ahead of the Geneva meeting.

Clifford said DWP should have been aware of the many competing demands on the time of under-resourced DPOs, which were given no advance warning of the consultation.

She said: “For impairment-related reasons, I found it personally difficult to engage with the proposals within the short consultation period.

“All the DDPOs* I spoke to who were able to respond said eight weeks was too short and didn’t give them the chance to consult properly with their members.”

Clifford has also pointed out that the WCA consultation overlapped with the government’s consultation on its Disability Action Plan, which ran from 18 July to 6 October, creating further problems for DPOs with limited resources.

Aoife O’Reilly, the PLP lawyer acting for Clifford, said: “There are principles of fairness that government departments must follow when carrying out consultations like this.

“The changes being consulted on will have life-altering consequences for disabled people.

“When you think about the diverse accessibility needs of the people the consultation was aimed at, consulting for just under eight weeks is wholly inadequate.”

A response to the letter from DWP is expected next week.

*Deaf and disabled people’s organisations

Picture: Activists protesting at DWP’s plans to tighten the WCA, outside the department’s Caxton House offices last week

A note from the editor:

Please consider making a voluntary financial contribution to support the work of DNS and allow it to continue producing independent, carefully-researched news stories that focus on the lives and rights of disabled people and their user-led organisations.

Please do not contribute if you cannot afford to do so, and please note that DNS is not a charity. It is run and owned by disabled journalist John Pring and has been from its launch in April 2009.

Thank you for anything you can do to support the work of DNS…