The Court of Appeal has upheld a ruling that found that the process used to decide whether hundreds of thousands of people are eligible for employment and support allowance (ESA) disadvantages people with mental ill health, learning disabilities and autism.
The original judgment, which was made public at an Upper Tribunal hearing in May, was the result of a Judicial Review brought by two anonymous claimants with mental ill health.
The Department for Work and Pensions (DWP) immediately appealed against the judgment and the Judicial Review was put on hold. Now that the DWP has lost its appeal, the Judicial Review will continue. A final judgment is expected next year unless the DWP decide to take the case to the Supreme Court.
The case centres on how evidence is gathered for the work capability assessment (WCA), the Atos-run process used to determine whether someone is fit for work.
Currently, evidence from a professional such as a GP or social worker is expected to be provided by claimants themselves. There is no obligation for the DWP to collect this evidence, even on behalf of the most vulnerable, apart from in some rare cases.
Gathering evidence can be very challenging for people with mental ill health, learning disabilities or autism whose health or condition can make it hard for them to understand or navigate the complex processes involved in being assessed.
As a result, those who need support the most are frequently being assessed without this important evidence being taken into account. The charities Rethink Mental Illness, Mind and the National Autistic Society (NAS) intervened in the case to provide evidence based on the experiences of their members and supporters.
In May it was ruled that the DWP 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.
Victory for welfare campaigners
In a joint statement Rethink Mental Illness, Mind and the NAS said: “[This] ruling is a victory for welfare campaigners and marks an important step in our fight for a fairer benefits system.
“The judges in the original ruling independently confirmed what our members and supporters have been saying for years – the system is unfair for some of the most vulnerable people in our society and is failing the very people it is meant to be supporting.
“It’s fantastic that the Court of Appeal has upheld this judgment and we hope changes will be made quickly to ensure the system becomes fairer and more accurate.
“In light of today’s ruling it would be irresponsible for the DWP to carry on using these flawed assessments as they are. They must halt the mass reassessment of people receiving incapacity benefit immediately, until the process is fixed.
“We hope that the DWP will now take these concerns seriously and look to address the problems with the system rather than appealing again.”
In response to the judgement, Minister for Disabled People, Mike Penning, said: “It is a complicated judgment on an appeal against an interim judgment by the Upper Tribunal with no effect on day-to-day business which continues as usual.
“This case is still on-going and will return to the Upper Tribunal to consider whether the adjustment to the process proposed by the claimants is reasonable.
"The WCA was introduced in 2008 by the previous Government. We have made – and continue to make – significant improvements to the WCA process for people with mental health conditions since then.”