Disabled activist takes DWP to court over “disingenuous” consultation on tightening Work Capability Assessment that Deaf and Disabled people could not engage with fairly
In the new “Get Britain Working” White Paper, the Government has promised that before the Work Capability Assessment is reformed or replaced, they will “engage with disabled people” to “build a better system.”
But they have not provided any clarity on what will happen with previous proposed reforms to the Work Capability Assessment, which is the way the DWP decides whether someone should receive two of the main disability benefit payments.
Disabled activist Ellen Clifford will be in the High Court on the 10 and 11 December challenging the DWP over the “rushed and disingenuous” consultation that was held before reforms tightening the Work Capability Assessment were announced in the 2023 Autumn Statement.
Disability rights groups will also be holding a vigil outside the Royal Courts of Justice from 9am on Tuesday 10 December.
Ellen Clifford said: “More than 400,000 people will be worse off by £416 a month if the changes proposed in this consultation go ahead. And then there is the risk that people will lose even more money if they are sanctioned for not being able to comply with conditions will now need to fulfil in order to receive their benefits.
“To be blunt, this would be cataclysmic for Deaf and Disabled people in the UK and would push many into destitution.
“Despite the Government’s commitment to put “the views and voices of disabled people at the heart of all” they do and to “fully consult” on Work Capability Assessment reforms, they have not answered important questions about what will happen to those 400,000 people who stand to be affected if these dangerous proposals are brought in.
“The consultation process was completely unfair. They should not continue with reforms when those impacted were not given any meaningful opportunity to explain why they should not be implemented.”
Clifford, supported by lawyers from Public Law Project, is arguing that the consultation under challenge, which ran between 5 September and 30 October 2023, was unlawful for multiple reasons:
- It did not explain properly that many people would receive significantly less money (£416 per month) if impacted by the reforms, and may start being required to meet conditions (or, in some cases, meet more stringent conditions) in order to receive their payments, with a risk of sanctions if they did not meet them.
- The true or primary motive behind the consultation was to reduce spending on disability benefits, rather than being about getting more people into work, which was not disclosed.
- The consultation paper did not provide any meaningful information about the likely impact of the proposals (including the numbers likely to be impacted and the disability impacts), which prevented consultees from being able to comment meaningfully on proposed reforms.
- A consultation which ran for just under 8 weeks was insufficient, given the importance of the proposals and the additional time that Deaf and Disabled people and their organisations need to engage meaningfully.
At the interim hearing on October 31, it was revealed
- The DWP had not done any employment or disability assessments of the proposals they wished to consult on before the consultation was launched.
- They did, however, undertake reviews to work out what savings may be made from the proposals before consulting. This included estimating how many Deaf and Disabled people may no longer be assessed as having limited capacity for work or work-related activity, if proposals were implemented.
Although the Chancellor of the Exchequer promised to deliver the same savings that the previous Conservative government planned on making, they have not confirmed whether they are intending to implement the reforms that were the subject of the consultation that is under challenge.
The Government has promised to set out its proposed long-term changes to the Work Capability Assessment in a Green Paper in spring 2025 and has expressed an intention to “fully consult on these proposals with disabled people and representative organisations.”
Aoife O’Reilly, the Public Law Project lawyer acting for Clifford, said: “The matters raised by the consultation Ellen Clifford is challenging were extremely serious for Deaf and Disabled people, and they ought to have been consulted fairly and lawfully. We do not think this happened on this occasion.
“We are arguing that the proposed reforms were not adequately explained to Deaf and Disabled people and that the real motivation was to reduce spending on disability benefits, which was not disclosed by the Government.
“The Government said they were consulting on proposals to support more Disabled people into work, but it is apparent from evidence already provided to the Court that it carried out no employment or disability impact before launching the consultation, with focus instead being on the savings that could be announced as part of the Autumn Statement.
“It was unfair not to be transparent with Deaf and Disabled people about what they were trying to achieve, and we say this lack of transparency made the consultation unlawful.”
“The fact the consultation process only ran for just under eight weeks was also plainly inadequate, given the significance of the reforms and the need to ensure that Deaf and Disabled people impacted had the opportunity to engage meaningfully. The Equality and Human Rights Commission made this point at the time, but unfortunately the Government did not listen.”
Ellen Clifford said: “The disingenuous and rushed consultation last year meant that the DWP did not properly listen to the voices of Deaf and Disabled people over a life-and-death issue.
“I am very glad that we will finally be heard in court today. This is a necessary first step in Deaf and Disabled people working towards a system that prioritises our lives, rather than cuts or savings.
“Going forwards, we hope there is real co-production in designing a social security system that is a benefit to society and which prevents rather than causes harm. Deaf and Disabled benefit claimants and our organisations have insights into solutions as well as the problems with the current system – as do frontline DWP workers, trade unions and also family members of benefit death victims who want lessons learned from mistakes of the past. Our expertise is an essential component in good policy-making.”
Martin Cavanagh, National President of PCS union which represents DWP workers, said: “PCS has long campaigned for a radical overhaul of the Social Security system in the UK, with greater flexibility given to our members to support those that use DWP services.
“We give a cautious welcome to the announcement last month of greater resources for Jobcentres and more flexibility for work coaches to deliver a more personalised service. Our members want to help people, not punish them.
“Any changes must be properly consulted on. The government consultation on the WCA changes did not mention that under their proposals, around 450,000 more Deaf and Disabled people will be at risk of sanctions.”
Meg Thomas, spokesperson for the UK Monitoring Coalition, said: “I saw directly how Deaf and Disabled people were misled by the information provided and not given time to respond. The time given was nowhere near enough to consult our members properly on proposed policy changes which could have a catastrophic impact on them.
“We agree that the benefits system needs reform, but this needs to come in co-production with disabled people, not at our expense.”
Tracey Lazard, CEO of Inclusion London, said: “It is hugely disappointing that despite promising to co-produce policies with us, the new government has decided to proceed with defending this case.
“When our country ratified UN Convention on the Rights of Disabled people, it promised to protect our right to an adequate standard of living and to co-produce policies with us. Continuing to defend this deeply flawed consultation and possibly even implementing this policy will be a breach of the Convention as well as a huge blow to the claimants it will hit.
We urge the government to stop and rethink and view social security as an investment in people’s lives.”
Paula Peters, spokesperson for Disabled People Against Cuts, said: “The inadequacy of the consultation process for Workplace Capability Assessment indicators was insulting to the thousands of Deaf and Disabled people who the changes will harm. In the government’s rush to save a relatively small amount of money, the consultation misrepresented the proposals as a move to support more benefit claimants into employment, without giving us all the information on how we will be affected.”
Andy Mitchell, co-founder of Unite the union’s Cut Sanctions Not Incomes campaign, said: “The fact that Disabled people have been forced to go to court to challenge a misleading consultation on a policy that will have a devastating impact on so many of us is yet more evidence of how our voices, needs and lives are ignored.
“The government should be looking to end rather than increase conditionality and sanctions, which are proven to move individual claimants further from employment while causing avoidable harm.”
Notes:
- The hearing will take place on 10 and 11 December in the Rolls Building.
- Disabled benefit claimants potentially impacted by the proposed changes will be at the vigil and are willing to speak to media.
- Office for Budget Responsibility (OBR) figures show only around 3 per cent of those affected by the planned changes – 15,400 people – will move into work by 2028/29 as a result.
- Clifford is represented by Public Law Project, Jenni Richards KC of 39 Essex Chambers and Tom Royston of Garden Court North Chambers.
