Ellen Clifford, award-winning author of The War on Disabled People and campaigner for Disabled People Against Cuts (DPAC) is to take the Government to court over its plans to reform and tighten the work capability assessment.
Following an eight-week public consultation - instead of the usual twelve weeks - last autumn, the Department for Work and Pensions (DWP) confirmed plans to change the ‘scoring’ of the WCA from 2025 for new claimants in order to make it more difficult for Disabled people to qualify.
The High Court has now granted Ms Clifford permission to bring a judicial review of the public consultation.
Her legal action is backed by organisations including DPAC, the Black Triangle Campaign, Z2K, Disability Rights UK and many Disabled People’s Organisations (DPOs) across the UK.
The WCA is used in ESA and UC to determine what work-related conditions a Disabled person must meet to keep getting their benefit.
If you are found to have a ‘limited capability for work-related activity’ (LCWRA), no work-related activity conditions will apply to you, and you will also be entitled to an extra amount of benefit.
If you are found to have a limited capability for work (LCW) while you have no work search conditionality, you are expected to undertake work related activity and no extra benefit.
From 2025 onwards, the DWP proposes the following changes will apply to WCA activities and descriptors for new claimants:
Amending the LCWRA Substantial Risk regulations to realign Substantial Risk with its “original intention” of only applying in exceptional circumstances.
The DWP says: “We will specify the circumstances, and physical and mental health conditions, for which LCWRA Substantial Risk should apply.
Removing the LCWRA Mobilising activity “because new flexibilities in the labour market mean that many people with mobilising limitations can undertake some form of tailored and personalised work-related activity with the right support”.
Reducing the points awarded for the LCW Getting About descriptors, “because new flexibilities in the labour market mean that there is less need to get to a place of work, and so limitations in getting about are less of a barrier to being able to work for some people.
Some disabled people would lose up to £390 a month under these new reforms, and many could also face sanctions and risk losing some or all of their benefit payments if they do not comply with new work related conditions that could be imposed on them.
Around 230,000 people with serious mobility problems preventing them from working could miss out on the extra health element of universal credit by 2029, according to figures from the Office for Budget Responsibility (OBR) requested by charity Z2K.
A further 141,000 people with mental health conditions could be impacted by 2029. Z2K warns this could put them and others around them at “substantial risk of harm” under the DWP’s conditionality regime.
The judicial review is being pursued on four grounds:
- the consultation period was too short
- the consultation did not properly explain the reforms – for example, it did not make clear that some people could lose up to £390 a month
- the proposals are not rationally connected to the Government’s stated objective of helping more disabled people into work, with very few of those affected forecast to get jobs
- people could not respond properly to the consultation as information about the impact of the proposals was not provided
Ms Clifford said:
“The Government urgently needs to listen to Deaf and Disabled people before imposing reforms that would change the lives of so many people for the worse,” she told the Big Issue.
“This disingenuous and unlawful consultation seems to have been a smokescreen for the Government to save money by cutting benefits. It completely skated over the fact that a lot of people will lose £390 a month – that will be devastating for people who already struggle to cover their basic needs.”
Ms. Clifford, added that the impact this could have on people was not made clear during the consultation: “Deaf and Disabled voices should be heard. Instead, our income is being cut and we are told the change is about ‘realising our potential’. This is patronising and insulting.”
“As we’ve been granted permission to take the DWP to court, we hope that the secretary of state abandons any plans to implement the work capability assessment reforms until this legal challenge has concluded and Deaf and Disabled people have been given a proper opportunity to provide their views on the proposals.”
“Deaf and Disabled peoples’ organisations and campaign groups are completely opposed to these proposed changes.”
Aoife O’Reilly, a lawyer with Ms. Clifford’s representative Public Law Project, said: “The consultation about changes to the work capability assessment was too rushed for many Deaf and Disabled people to respond to properly and didn’t clearly inform them about the impact that reforms would have.”
“They also should have been told that the proposal was meant to reduce spending on disability benefits if that was indeed the real rationale. It was incumbent on DWP to provide those it was consulting with information it had about the potential impact of proposals – that was missing from the consultation documents.”
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