Secret DWP proposal to scrap ESA ‘substantial risk’ rules ‘would breach right to life’

The Department for Work and Pensions (DWP) has proposed scrapping two benefit regulations that offer vital protection to disabled people facing the controversial “fitness for work” test.

In response to a freedom of information request, DWP has sent Disability News Service (DNS) a document titled Appeals Strategy – Post Election Planning, which was drawn up by civil servants just before last year’s general election.

The document lays out 11 policies that could be considered by ministers if the Conservatives won the 2015 election.

Most of the document was redacted – although disabled activists have succeeded in revealing the words behind those redacted areas (SEE SEPARATE STORY) – but one of the three policies that was not redacted is headed “Removing or amend ESA regulations 29/35”.

Disabled activists have been campaigning since 2012 to raise awareness of employment and support allowance (ESA) regulations 29 and 35, which they believe protects many claimants who have gone through the work capability assessment (WCA) process.

They believe the regulations protect thousands of people every year who would otherwise be at risk of serious damage to their health if they were forced to carry out work or work-related activity that they were not well enough to do, following a WCA.

The DWP document states that removing or amending the two regulations would require “evidence of widespread misuse” to persuade campaigners and ministers’ own benefits advice body, the social security advisory committee, but says that such a move would produce potential savings.

It says that two previous attempts to remove the regulations were defeated, by the court of appeal in 1997, and again in 2003.

The document adds: “Changes to this area carry a significant handling and delivery risk.

“Changes would be perceived as restricting application of the safeguards and may be considered discriminatory.”

DWP admitted last night that it had mistakenly failed to redact this particular policy proposal in the document emailed to DNS.

The only other two policies that were left unredacted were allowing scanning and email of benefit appeal documents; and increasing the number of DWP “presenting officers” who attend benefit appeals. Work on introducing these two policies is already underway, according to DWP.

David Beckett, who supervises the welfare benefits team at Coventry Law Centre, part of Central England Law Centre, said that removing regulations 29 and 35 was “nothing other than cost-cutting”.

He said: “There is absolutely no evidence, as far as I am aware, of any abuse [of the two regulations].

“What there is is evidence of the department not applying those regulations in the first place, based on faulty assessments.”

John McArdle, co-founder of the user-led grassroots campaigning network Black Triangle, said such a move would violate article two of the European Convention of Human Rights, the right to life.

Months of campaigning by Black Triangle eventually persuaded the doctors’ union, the British Medical Association, to agree to notify GPs of the existence of the regulations.

Black Triangle has been told by a source within the WCA contractor Maximus that its campaign has led to 55,000 disabled people being placed in the ESA support group, when they otherwise would have been forced to seek work or carry out work-related activity.

McArdle said the proposal appeared to be “a reaction to the tremendous success of our campaign, irrespective of the lack of co-operation we have received from the leadership of the BMA”.

He promised DWP that if it went ahead and scrapped regulations 29 and 35, it would be challenged in court.

The rules state that a claimant should not be found fit for work (regulation 29), or placed in the ESA work-related activity group (regulation 35), if such a decision would pose “a substantial risk” to their “mental or physical health”.

The WCA has caused mounting anger among disabled activists and claimants since its introduction in 2008, because of links with relapses, episodes of self-harm, and even suicides and other deaths, among those who have been assessed and found fit for work.

A DWP spokeswoman said: “These speculative policy formulations were drafted by staff before the last election as part of their preparation for a new government.

“They have not been raised, do not represent government policy and have never been sent to ministers.”

But when asked whether ministers had permanently and definitively ruled out the eight redacted policies, the spokeswoman would only say that the department “has no plans to introduce these changes”.