‘Significant’ victory over DWP ‘cruelty’ after family’s nine-year WCA death battle

The family of a disabled man who took his own life nine years ago after being unfairly found fit for work have welcomed a “small but significant” tribunal ruling that has once again highlighted the “cruelty” of the Department for Work and Pensions (DWP).

DWP’s actions in the case were described in the tribunal last week as “not legally right” and “not morally right”.

Judge Clare Goodman was shown papers which demonstrated that DWP had made at least 61 errors in dealing with the claim of Michael O’Sullivan.

His death on 24 September 2013 led to questions being asked in the House of Commons two years later about links between suicides and the work capability assessment (WCA).

Prime minister David Cameron was twice asked questions about his death after Disability News Service (DNS) uncovered a report showing that a coroner had written a prevention of future deaths report that drew a clear link between the assessment and his death.

Coroner Mary Hassell had concluded, following the inquest in January 2014, that “the intense anxiety that triggered his suicide, was caused by his recent assessment by the Department for Work and Pensions (benefits agency) as being fit for work, and his view of the likely consequences of that”.

Since Michael O’Sullivan’s death, his family have spent nine years in a bid for DWP and its ministers and senior civil servants to be held to account, with the help of Labour leader Sir Keir Starmer and welfare rights expert Nick Dilworth.

Their painstaking investigation has uncovered multiple mistakes by DWP, and evidence that it was failing to ensure the safety of the assessment system.

The latest ruling by Judge Goodman, in the first-tier tribunal, came on the same day as the publication of the draft Deaths by Welfare timeline, which provides more than 30 years of evidence linking DWP and government welfare reforms with the deaths of disabled claimants (see separate story).

Michael’s daughter, who has asked not to be named, had been forced to appeal to the tribunal after DWP tried to claw back benefits that her father had been wrongly awarded in the months before he died.

He was twice mistakenly placed on jobseeker’s allowance (JSA) and told to look for work, despite DWP and its assessors knowing of his long-term depression, social anxiety, agoraphobia, and general anxiety disorder.

DWP had placed him on JSA the second time even though the department had been told that he had attempted suicide within days of being taken off long-term incapacity benefit and placed on a training course, where he was constantly mocked, harassed and teased by other much younger students.

In November 2020, DWP admitted that the two decisions to find Michael fit for work were wrong, following an “anytime review” of the way his claim had been dealt with.

DWP agreed he had been placed at “substantial risk” as a direct consequence of the department finding him fit for work and twice wrongly placing him on JSA.

As a result of the anytime review – which was allowed so long after Michael’s death because of the errors by DWP – the department agreed to pay his estate the employment and support allowance (ESA) he should have been paid when he was alive.

But DWP then tried to claw back from this sum the JSA payments that he was awarded in the months before his death, under its so-called “offsetting rules”.

But Dilworth told the hearing that it was neither legally nor morally right for the DWP to have caused Michael O’Sullivan’s death and then attempt to retrieve the benefits it had wrongly awarded him, which were “entirely the fault of the department”.

He argued that DWP must “bear the full cost” of its mistakes.

He said work and pensions secretary Therese Coffey “cannot expect to claim back an award that was wholly inappropriate” when her department had failed to issue a notice that there had been an over-payment.

Dilworth told the tribunal that DWP had since changed the regulations as they applied to universal credit (UC), so that it could now reclaim such money for claimants of UC who have died because of DWP errors.

He showed the judge the list of 61 errors made by DWP in Michael’s case, and he told her that a DWP director-general had admitted when he saw the same pages that Michael’s death had been down to her department’s “incompetence”.

He said: “To put it bluntly, the department has to accept the consequence of its own errors and suck it up.”

DWP’s representative in the tribunal agreed with the judge that DWP was trying to recover an overpayment “through the back door”.

But he said: “We are talking about public money. That’s why we have the offsets.”

He said DWP’s actions were to protect tax-payers.

Judge Goodman said in her decision, released to the family on Monday, that it was “clear that a person cannot be entitled to JSA and ESA at the same time because the conditions of entitlement are mutually exclusive.

“However, it does not automatically follow that a person who has been wrongly paid JSA due to official error and is subsequently found, eight years later, to be entitled to ESA for the same period, must re-pay the JSA.”

Allowing the family’s appeal, she ruled that the JSA paid to Michael O’Sullivan between October 2012 and September 2013 should not be deducted from the ESA he was entitled to during that period.

Michael’s daughter said this week that there was still “a long way to go yet” in the family’s battle for justice.

She said: “At the heart of this is a beautiful, kind, gentle and loving father, a man of real integrity.

“If they had done things right, our father would still be here; that’s still crucifying for us.

“No family should have to endure what we are.

“We know it’s a deliberate long game by DWP, but that adds to the cruelty inflicted by them upon our family.

“Preventing a family like ours a natural course of grieving, what did we ever do to deserve that? Think about that for a moment. Morally, that’s horrific.”

Michael’s son, who also asked not to be named, added: “This tribunal was brought about by the DWP refusing to capitulate, despite them accepting our family’s argument that the department had specific statutory rules which they did not follow.

“Despite this, the DWP forced this tribunal, which was emotionally painful on our family, where the department could only cite the very legislation that they knew they didn’t adhere to.

“For our family, this mentality echoed throughout all the department’s ‘official errors’ that led to Michael O’Sullivan’s death.”

Dilworth said the ruling was a “small but significant development” in an “otherwise hugely complex and protracted case”.

He said the number of DWP mistakes in Michael’s case was “astonishing”.

He said: “The mistakes made in this tragic case have been catastrophic and clearly highlight a degree of systemic failure within an organisation which does not seem able to track where claimants are in their vast systems.

“Their different departments simply do not seem to be able to communicate with one another.”

He added: “The purpose of the case was to point out to the DWP that when they make mistakes of this magnitude, they must bear the cost of awarding the wrong benefit; it is unbelievable that the DWP needed a tribunal judge to confirm this.

“The DWP have spent an age, at great cost, trying to avoid their legal responsibility in this matter, effectively quibbling over a relatively small amount.

“It was, after all, Michael and his loving family he left behind who paid the ultimate price of a loss of life in consequence of the DWP’s negligent decision-making.

“We continue to hold those responsible to account and will seek proportionate redress.

“The DWP must take stock of its failures and accept they do have a duty towards those affected.”

Asked if DWP would apologise to the family for forcing them to take the case to a tribunal, and whether the department accepted the judge’s decision, a spokesperson said: “Our condolences remain with the O’Sullivan family.”

Picture by Google: Fox Court, in central London, where the tribunal hearing took place 

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…