Disabled activists held a vigil outside the Royal Courts of Justice this week as legal efforts to force the government to reduce the discriminatory impact of its controversial “fitness for work” test approached their conclusion.
The long-running case has been taken by two people with mental health conditions – DM and MM – who say the work capability assessment (WCA) process discriminates against them and other people with mental ill-health, learning difficulties and autism.
The two-day upper tribunal hearing should finally settle the question of how DWP must address that discrimination, although a judgment is not likely until October at the earliest.
The assessment tests eligibility for employment and support allowance (ESA), but thousands of people with mental distress have been found unfairly fit for work, and have had relapses, episodes of self-harm or suicide attempts as they pass through the WCA system.
The court of appeal ruled in December that the WCA placed DM and MM at a “substantial disadvantage” and that DWP should make “reasonable adjustments” to put this right.
But the case then had to return to the upper tribunal, which delivered the original ruling in the case, so that it could decide how to address that discrimination.
The two claimants believe that if an ESA applicant has a mental health condition, the Department for Work and Pensions or its contractors should obtain medical evidence from their doctor or another appropriate medical professional at every stage of the claim process, or justify why they had not done so.
Ministers want to pilot a scheme that would test how this could be done, but only once a completed ESA 50 “limited capability for work questionnaire” has been submitted.
The claimants believe this evidence-seeking should take place even before the ESA 50 has been submitted if there is, for example, a history of suicidal behaviour or self-harm.
Their legal case has been driven by the Mental Health Resistance Network (MHRN), which was formed in 2010 by incapacity benefit (IB) claimants worried about the programme to use the WCA to assess their eligibility for ESA, which has gradually been replacing IB since 2008.
The network believes the WCA process is nothing more than a “scam”.
The network held a two-hour vigil outside the courts on Tuesday, with support from Disabled People Against Cuts. The vigil was attended by the Labour MP John McDonnell.
Campaigners held placards with slogans such as “Keep Calm and Resist Iain Duncan Smith”, “Benefit Deductions and Sanctions are Starving Us”, and “Women with Disabilities Say Atos Contracts Must End Now!”
There was also a minute’s silence for those disabled people who have died as a result of the WCA process.
John McArdle, co-founder of the user-led – Scottish-based – grassroots campaign group Black Triangle, who attended the second day of the hearing, praised the two claimants for their “struggle for justice”.
He said: “It has been three long, harrowing and stressful years and we stand in full solidarity with them.”
He added: “Justice delayed is justice denied and the fact that DWP refused to take any reasonable steps to remedy what has been legally acknowledged to be an injustice is reprehensible in the extreme.”
He said this meant that there would continue to be “tragic cases”, such as that of Mark Wood, who starved to death after his ESA was removed.
McArdle said: “While legal deliberations are still ongoing, Black Triangle, DPAC and MHRN will continue our battle through direct action and political lobbying.”
But he added: “With no quick fix on the horizon, our best hope for achieving justice north of the border is a ‘yes’ vote for independence.
“This judgement when it comes is not going to deliver justice for disabled people.”
A DWP spokeswoman said: “We wouldn’t comment on this case before the upper tribunal has made its judgement.”
10 July 2014
