Three judges have ruled that the procedure currently used by the Department for Work and Pensions (DWP) to decide whether hundreds of thousands of people are eligible for Employment and Support Allowance (ESA) disadvantages people with mental health problems, learning disabilities and autism.
The ruling came as part of a judicial review launched by two individuals with mental health problems, who argued that the work capability assessment (WCA) was unfair to them because it required them to understand and be able to explain the nature of their condition to the people conducting the assessment, when they had insufficient awareness of their difficulties to do so.
The discussion focused on whether it was reasonable to expect people with mental health problems to seek additional medical evidence in support of their claims from their GPs, or whether the DWP needed to do more on their behalf to ensure that this type of evidence was collected and taken into account.
Under the current system, evidence from a professional such as a GP or social worker is expected to be provided by people themselves and there is no obligation for the DWP to collect this evidence, even on behalf of the most vulnerable claimants, apart from in some narrow circumstances.
It was ruled that the DWP had breached its duties to make reasonable adjustments under the Equality Act 2010 and that the Department must do more to ensure this sort of evidence is collected and taken into account. This means the current procedure for the WCA puts some groups at a substantial disadvantage.
The charities, Rethink Mental Illness, Mind and the National Autistic Society intervened in the case to provide evidence based on the experiences of their members and supporters, and following the ruling, the three charities have hailed it as a victory for people with mental health problems, learning disabilities and autism who are being put through a process which puts them at a disadvantage.
Paul Farmer, Chief Executive of Mind, said:
“Mind welcomes the tribunal’s judgment, which has found that the claims process for Employment and Support Allowance (ESA) is unfair to people with mental health problems and that it has to change.
“The judgment is a victory, not only for the two individuals involved in this case, but for thousands of people who have experienced additional distress and anxiety because they have struggled through an assessment process which does not adequately consider the needs of people with mental health problems.”
He added:
“Following this judgment, Mind hopes changes will be implemented quickly to ensure the claims procedure is fairer and more accurate.
“Mind has campaigned to improve the assessment process for many years and we will monitor the situation closely to ensure people with mental health problems receive the benefits they are entitled to.”
Paul Jenkins, CEO of Rethink Mental Illness, commented:
“This ruling proves once and for all that this cruel and unfair process is unlawful. The judges have independently confirmed what our members have been saying for years – the system is discriminating against some of the most ill and vulnerable people in our society, the very people it is meant to support.
“The Work Capability Assessment process is deeply unfair for people with a mental illness – it’s like asking someone in a wheelchair to walk to the assessment centre. The Government is setting people up to fail.”
Mr Jenkins continued:
“Now that the Court has ruled that these tests are unfair it would be completely irresponsible to carry on using them. The Government must halt the mass reassessment of people receiving incapacity benefit immediately, until the process is fixed.
“This ruling will help improve one aspect of the Work Capability Assessment, but there are still many other problems with it. We will keep campaigning on behalf of everyone we represent until the whole process is fair for everyone.”
Mark Lever, Chief Executive of the National Autistic Society, said:
“The Court’s decision is a victory for fairness. Now that the Tribunal has ruled that the Work Capability Assessment process disadvantages people with autism, the Government must stop putting them through it until a more equitable system is in place.
“Those who devised this process failed to understand the complexities of conditions like autism. By the nature of their condition, people with autism can struggle to understand and articulate how their disability affects them – which is just what this current system requires them to do, by placing the burden on them to collect their own evidence.
“Making people with autism jump through these hoops was only ever setting them up to fail.”
There was no decision on how the DWP should rectify the situation, and there will be further hearings. It has been reported that Lawyers for the DWP are planning to appeal.
