Jul 262012
 

Thursday, July 26, 2012

High Court rules Work Capability Assessment arguably unlawful 

The High Court has today granted permission to two disabled people to bring a claim for judicial review against the Secretary of State for Work and Pensions to challenge the operation of the Work Capability Assessment (WCA).

WCAs are face to face interviews carried out by healthcare professionals (HCPs) employed by Atos Healthcare (a private contractor), to assess disabled people’s entitlement to Employment and Support Allowance (a sickness benefit that has replaced the old Incapacity Benefit). Each existing recipient of Incapacity Benefit is now being assessed for eligibility for ESA, at the rate of some 11,000 people per week. WCAs have been the subject of serious criticism by all relevant stakeholders in civil society including doctors and NGOs working on behalf of disabled people.

The present case concerns some of the problems with the system as experienced by people with mental health problems. Although medically trained, Atos HCPs typically have very limited knowledge of mental health. The interviews are often hurried, and rely on applicants to explain the limitations on their ability to work.

This is a serious problem for people with mental health conditions who lack insight into their conditions, whose conditions fluctuate in seriousness, or who cannot easily talk about their disability. Such people are placed at a substantial disadvantage in navigating the system. Even if they appreciate the need to get expert medical evidence for themselves, they are often less able to navigate the system successfully and to obtain the medical report that they need. The Equality Act 2010 requires the DWP to make reasonable adjustments to avoid such disadvantage.

The reasonable adjustment to the process that the claimants seek is for medical evidence to be sought by the Atos HCP and the DWP at the very outset of the claim. This would ensure that very sick people for whom having to go through a WCA would be extremely distressing are exempted from the process, and for those that do attend a WCA, the assessment of fitness to work takes place in the correct medical context, so that dangers associated with forcing people back to work are correctly identified.

At present, the DWP do not routinely ask for expert medical report from an applicant’s community-based doctor. The judge has held that it is arguable that this failure is a breach of the duty to make reasonable adjustments, and is therefore unlawful.

In granting permission to apply for judicial review, the judge stated:

“I consider that it is reasonably arguable that the reasonable adjustments required by the [Equality Act 2010] include the early obtaining of independent medical evidence where the documents submitted with the claim show that the claimant suffers from mental health problems and that this has not been done, or at least not done on a sufficiently widespread basis”.

The claimants, known as MM and DM, were granted anonymity by the court. Their solicitor, Ravi Low-Beer of the Public Law Project said:

“The present system results in many thousands of unnecessary appeals at great public expense, with a high success rate. What is not counted is the cost in human misery for those people who should never have had to go through the appeals process in the first place. This could be avoided if doctors were involved in the assessments at the outset. The Government’s policy of by-passing doctors is inefficient, unfair, and inhumane. We gain heart from the court’s finding that as a matter of law, it is arguable that something has to change.”

For further information contact Ravi Low-Beer on r.lowbeer@publiclawproject.org.uk/0845 543 5944

or Adrian Lukes on

a.lukes@publiclawproject.org.uk/0845 543 5946.

Public Law Project (PLP) 

PLP is an independent, national legal charity which aims to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers.   To fulfil its objectives PLP undertakes research, policy initiatives, casework and training across the range of public law remedies.

 

For more information on our work, events and publications: www.publiclawproject.org.uk

 

Linda

 Posted by at 12:34

  17 Responses to “Judicial Review of Work Capability Assessment Granted”

  1. […] different species to what has happened to ATOS, in light of the mismanagement of benefits (even requiring a judicial review in the case of work-related benefits). Over 400 protesters from Disabled People Against the Cuts and U.K. Uncut protested on Friday […]

  2. Lets face it the reason ATOS don’t ask for an input from the GP is that they have been advised not to trust the GP.

    I think we can live with that provided ATOS use independent specialist Doctors specialising in the ailments of the claimants, Oops that would cost to much, well hard luck, you either need to employ those specialists or we have the right to bring along our own specialists to these ‘meetings’.

    The cost of those specialists to be born by ATOS (or the Government).

    Now with regard to withdrawal of benefit, we need to ensure that the European Convention of Human Rights is adhered to – Right to Life – NO benefit starve to death. How about walking into and then out of Tesco without paying for the essential food! Let them sue you or your representative so that it reaches the High Court and thus is set in stone that it is illegal to withdraw benefit from individuals who have proven they cannot work but ATOS assessment say they can.

    • The Atos assessment is meant to be one small part of the DWP staff assessment…. It’s the DWP STAFF who stop the benefits, not Atos. The DWP staff are meant to consider all other medical reports from GPs, Specialists and Consultants. The fact that they don’t because they are basic grade and incapable of deciphering medical reports is Harrington’s fault. He’s more concerned with the self esteem of the DWP Decision Makers rather than confirming that what is needed is medical administrators.

  3. […] There has been a plethora of bad publicity about Atos healthcare. Jayne Linney, 50, wanted her assessments with the firm to be recorded after what she called “basic errors” were made by Atos staff in previous meetings, which could have affected her entitlement to benefits. Other disability claimants have also complained their payments were cut after Atos assessors misreported their answers to show they were capable of work.  Furthermore, the High Court has recently granted permission to two disabled people to bring a claim …. […]

  4. […] that staff are monitored to ensure they do not find excessive numbers of claimants eligible. On Thursday 26 July 2012, the High Court granted permission to two disabled people to bring a claim for judicial review […]

  5. I wonder, do the Government have shares in Atos? Thereby even when they get deservedly kicked out of office they will still have made a fortune for themselves and their families. This government, Atos and those working within the company are a disgrace to the human race. I hope their 30 pieces of silver in exchange for their integrity, humanity and honesty brings them the same misery they have caused for the genuinely disabled.

    • F Hawkins is right. How can any health specialist, more so doctors lose their integrity and knowingly lie
      for money. They should hang their heads in shame. In working for ATOS they knowingly fail disabled
      people even though they know they should pass them.Shame on you all/

  6. how could grayling lie through his teeth and deny fixing the tests on mondays panarama when will things change and be fair

  7. […] on Thursday for opponents of the loathed Atos’ work capability assessments (WCAs) : the court granted permissionto two disabled people for a judicial review to challenge the operation of […]

  8. about time this nazi goverment was brought to book im surprised it took so long.

  9. […] DPAC The High Court has today granted permission to two disabled people to bring a claim for judicial […]

  10. I had my call today got go next friday will it be proper doctor I get to see or just some body on a panel

    • I attended 5 weeks ago and it is a Qualified Nurse you see one to one in a room and she asks Questions from a computer screen requiring a tick box answer system. i found it nigh on impossible to convey my Mental Health condition as i was told that my answers could not be placed onto the system,other than with a Tick in a box.I then said that they would be able to get a full report from my GP and was told that they don’t even contact my GP.I was so distressed and frustrated during the Assessment that i had a panic attack and ended up crying……the response of the HCP….? She left the room stating that i needed to calm down….To say i was Disgusted,Embarrassed,Humiliated,and Ill treated is a gross understatement….!

      • I agree. My son was seen by a reg nurse who clearly had no training in mental health assessment and anyway, was prepared to say my son said things he did not. Its bad enough the assessments are not adequate, but to knowingly put incorrect information in a report is appalling, especially from a health care professional.

  11. […] Update Thursday 26 July 11am: DPAC has emailed to say a judicial review against WCA has been granted to the applicants from Mental Health Resistance discussed in the post below. Full press release is now on DPAC site here. […]

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