Jan 192013
 

In case anyone hasn’t seen this on the MHRN facebook page: 

HOW THE JUDICIAL REVIEW WENT!

The judicial review was scheduled for three days although we thought that it would only last for two. In the event, it lasted for the whole three days and there was a member of the MHRN in court at all times.

The claimants were asking that further medical evidence should be sought by the DWP from a person’s own health care professionals prior to the ESA50 form being sent out for all people with mental health problems (called MHPs in court). We believe that obtaining evidence at this stage will enable some people to be spared the distress of having to attend the face to face WCA interview and, where they do have to attend it, at least the assessor would know something about their condition and how it affects their functionality rather than the claimant being entirely at the mercy of the Atos computer and an unqualified Atos ‘Health Care Professional’. This in turn might spare some people from going through the misery of having to appeal. And, importantly, it would help identify people for whom regulations 29 and 35 apply. These regulations cover where there would be a risk to a person if they were found fit for work or for work related activity even if they had less than the required number of points for ESA.

Obviously this change is only one way that the WCA needs to be improved on. Initially the MHRN was calling for the test to be completely scrapped but we are also realistic about what can be achieved. Who knows, it may be scrapped in a few years time but, in the meantime, we have to survive it.

Now to the court case.

The case was being brought under the Equality Act and was heard by three judges in the Upper Tribunal Court. It began with much debate about how exactly people with MHPs were being disadvantaged in the process of claiming ESA and the case for the claimants was that the self reporting aspect was often, for a variety of reasons, difficult for people with MHPs. In addition, MHPs may not be able to obtain further medical evidence for themselves. The DWP barrister argued that there was already procedures in place to ensure that further medical evidence was sought in appropriate cases.

As well as the claimants’ barristers there was a barrister representing, jointly, National Mind, Rethink and the National Autistic Society, who also argued the claimants’ case and there was evidence written from consultant psychiatrists. It is hard to say, but, on balance, I felt that the existence of disadvantage may have been successfully established in court, but please, don’t rely on my impression!

A lot of time was spent arguing about who the MHP claimants were being disadvantaged in comparison with. This was very much a technical point and an Equality and Human Rights Commission barrister was present to intervene here.

The claimants were asking that reasonable adjustments are made to rectify a disadvantage (the adjustment being that medical evidence be sought by the DWP in all mental health cases) and therefore the ‘reasonableness’ of this adjustment was also up for debate with the DWP unsurprisingly arguing that it was wholly unreasonable, cost being one factor, the burden on doctors being another, and so on.

So is there a disadvantage and in comparison with whom are MHPs disadvantaged? If there is a disadvantage, would the requested adjustment rectify this disadvantage? And is the adjustment ‘reasonable’?

Obviously, as the case was being brought by individuals, there was some argument over whether the individuals concerned had been disadvantaged and whether the adjustments requested would have rectified that disadvantage. The DWP barrister tried every which way to counter the claimants’ arguments.

The feeling among the members of the MHRN who attended the court was that the claimants got a fair hearing. The judges will be meeting with three high court judges and, I think I got this right, it is these high court judges who will be making the final decision. This will undoubtedly take some time to come through and we have no idea how it will go.

So fingers crossed!

Whatever happens, we’ll never give up!

Linda

  10 Responses to “Update on WCA judicial review”

  1. At last I feel there’s hope for the many thousands of disadvantaged members of our so called “Great Britain”. But why are the government hell bent on ruining so many lives? Both Cameron and Duncan-Smith know what it’s like to have turmoil through family illness, yet they’re the ones that seem hell bent on wreaking misery on other families with similar misfortunes, are they that bitter twisted? Apparently so.

  2. […]Thanks for the update. I truley hope they win, not just for them but for so many more people. Fingers crossed.[…]

  3. I don’t know if any of this could have any use to the court case as it touches on a /of of issues connected

    http://www.nawra.org.uk/Documents/Resources/Research/Dr_Ruth_Tindley_thesis.pdf

  4. […] Sunday 20 January: There’s an update on the review, which was held last week, posted here at DPAC. […]

  5. Another reason for being hopeful about the outcome of the Judicial Review is that the debate in Parliament coincided with it. The judges can’t fail to be alerted to the many, many comments by MPs of all parties about how the WCA was causing deterioration and indeed death amongst their constituents with mental distress.

    • Yes, one would hope the judges are fully aware of the government debate that exposed the totally inhumane system successive governments have created – but unlike the debate this review focuses solely on the mentally ill – the thrust is pure common sense, practical and fair and any right minded judge could not fail to uphold it, so I hope for a successful outcome.

  6. Thanks very much for this valuable update.

    The HOC backbench debate on Thursday hit the nail on the head, with the penny finally dropping that the WCA was a system introduced to fail to fund welfare.

  7. Thanks for that everyone! Fingers crossed for the judgement.

  8. I am not a lawyer but while a comparator was needed under the DDA and picking that comparator was bad after Malcolm v Lewisham, under the Equality Act a comparator is needed for indirect discrimination ie less favourable treatment but not for unfavourable treatment ie discrimination arising as a consequence of a disability

  9. Thanks for the update. This is not only an important case in relation to benefits law, but also in relation to equality law, as it’s testing the issue of disadvantage and reasonable adjustments, which has always been a tricky area. I’m glad the EHRC had sent a barrister themselves; that level of expertise was clearly essential. It will be an anxious waiting time for the claimants and their families; do keep us all up to date, as although the cases are brought by people with mental health conditions, the issues affect us all.

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