VICTORY !!! MENTAL HEALTH RESISTANCE NETWORK’S JUDICIAL REVIEW OF THE WCA: Finally – legal proof that disability benefits test is unfair for people with mental illness

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Paul Jenkins

Three judges today confirmed what campaigners have been shouting from the rooftops for years – the benefits test used to decide whether people are fit for work, actively discriminates against people with mental illness.

This is a huge victory for everyone who has been subjected to the cruel and unfair Work Capability Assessment (WCA), which is used to decide who is fit for work.

The WCA is riddled with problems but this judicial review focussed on one specific issue – that of gathering supporting evidence. Under the current system, no matter how ill or even delusional you may be, you are responsible for proactively gathering your own medical evidence and sending it to the Department of Work and Pensions (DWP). If you fail to do this, it simply won’t be looked at.

This means your ability to work will be judged from a one-off 15 minute assessment by a stranger who may well have no mental health training whatsoever and has no idea what your GP, psychiatrist or Community Psychiatric Nurse has to say about your illness. It means all the paperwork documenting your long history of severe and enduring mental illness can be simply ignored.

While for most people, gathering this kind of evidence would be fairly straightforward, for someone with a severe mental illness, it can be an impossible task. We’re not talking about mild depression here, we’re talking about people who may be in the midst of a psychotic episode or someone who perhaps hasn’t left the house for months.

“It’s like asking someone in a wheelchair to walk to the assessment centre.”

Our CEO Paul Jenkins on the Unfair WCA

Unfair WCA – our new campaign

It’s these very people, those who are most ill, who are least likely to be able to gather their own evidence and who are being penalised as a result. It’s like asking someone in a wheelchair to walk to the assessment centre. It sets people up to fail and means that some of the most vulnerable people in our society are being left without the basic financial support they need.

The system flies in the face of equality legislation, which has been carefully developed over the last 50 years to protect people with disabilities. It creates the impression that the DWP isn’t too worried about getting it right, they’re just interested in slashing benefits, no matter what the human cost.

What makes it even harder to stomach is that it’s completely at odds with the government’s repeated insistence that mental health is a top priority. On the one hand, they are pushing forward with the Mental Health Strategy and the recently passed Mental Health Discrimination Bill, and on the other they are penalising the very same group by forcing them through this discriminatory process, which is putting lives at riskA poll of over 1,000 GPs commissioned by Rethink Mental Illness last year, found that over 20% have patients who have felt suicidal due to the WCA.

The judgment that the DWP is in breach of the Equality Act is a huge victory for everyone affected by severe mental illness, but it’s sad that it took a court case to force the DWP to take action. They have been dragging their heels on this issue for years while making vague and empty promises to improve. All this time, people with severe mental illnesses have continued to be subjected to this unfair test and many have wrongly had their benefits reduced or removed. Now that the court has ruled that these tests are unfair, it would be completely irresponsible to carry on using them. We are calling on the DWP to halt the mass reassessment of people in this group receiving incapacity benefit immediately, until the process is fixed.

We’re not saying people with severe mental illness cannot work. For some people work can be central to recovery and staying well. Those people should be offered support to get back into employment. What we are saying is that benefit tests should be fair and accurate, to ensure the most ill and vulnerable people in our society don’t slip through the net. It’s in everyone’s interests that we get this right. Inaccurate assessments lead to costly appeals and put further strain on the public purse.

Today’s ruling is a huge step forward, but the real work starts now. There has been a lot of tinkering around the edges of the system, but not enough real action. Now we not only need to see major reforms to the WCA, but also to the assessment process for all benefits so we can be sure people with mental illness are getting a fair deal.

We will keep campaigning on behalf of everyone we represent until the whole system is fair for everyone. 

RETHINK

MIND WRITE:

Posted Wednesday 22 May 2013

Three judges have ruled that the procedure currently used by the Department for Work and Pensions (DWP) to decide whether hundreds of thousands of people are eligible for Employment and Support Allowance (ESA) disadvantages people with mental health problems, learning disabilities and autism.

The judgment, which was made public at a high court hearing today, is the result of a judicial review brought by two anonymous claimants with mental health problems.

The charities Rethink Mental Illness, Mind and the National Autistic Society intervened in the case to provide evidence based on the experiences of their members and supporters.

The case centres on how evidence is gathered for the controversial Work Capability Assessment (WCA), the process used to determine whether someone is fit for work.

Under the current system, evidence from a professional such as a GP or social worker is expected to be provided by people themselves. There is no obligation for the DWP to collect this evidence, even on behalf of the most vulnerable claimants, apart from in some narrow circumstances.

Seeking evidence can be very challenging for people with mental health problems, 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.

It was ruled that the DWP had breached its duties to make reasonable adjustments under the Equality Act 2010 and that the Department 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.

The three charities have hailed the ruling as a victory for people with mental health problems, learning disabilities and autism who are being put through a process which puts them at a disadvantage. 

Paul Farmer, Chief Executive of Mind, said:

Mind welcomes the tribunal’s judgment, which has found that the claims process for Employment and Support Allowance (ESA) is unfair to people with mental health problems and that it has to change.

The judgment is a victory, not only for the two individuals involved in this case, but for thousands of people who have experienced additional distress and anxiety because they have struggled through an assessment process which does not adequately consider the needs of people with mental health problems.

Following this judgment, Mind hopes changes will be implemented quickly to ensure the claims procedure is fairer and more accurate.

Mind has campaigned to improve the assessment process for many years and we will monitor the situation closely to ensure people with mental health problems receive the benefits they are entitled to.

Paul Jenkins, CEO of Rethink Mental Illness said:

This ruling proves once and for all that this cruel and unfair process is unlawful. The judges have independently confirmed what our members have been saying for years – the system is discriminating against some of the most ill and vulnerable people in our society, the very people it is meant to support.  

The Work Capability Assessment process is deeply unfair for people with a mental illness – it’s like asking someone in a wheelchair to walk to the assessment centre. The Government is setting people up to fail. 

Now that the court has ruled that these tests are unfair it would be completely irresponsible to carry on using them. The Government must halt the mass reassessment of people receiving incapacity benefit immediately, until the process is fixed.  

This ruling will help improve one aspect of the Work Capability Assessment, but there are still many other problems with it.  We will keep campaigning on behalf of everyone we represent until the whole process is fair for everyone. 

Mark Lever, Chief Executive of the National Autistic Society said:

The court’s decision is a victory for fairness. Now that the tribunal has ruled that the Work Capability Assessment process disadvantages people with autism, the Government must stop putting them through it until a more equitable system is in place.    

Those who devised this process failed to understand the complexities of conditions like autism. By the nature of their condition, people with autism can struggle to understand and articulate how their disability affects them – which is just what this current system requires them to do, by placing the burden on them to collect their own evidence. 

Making people with autism jump through these hoops was only ever setting them up to fail.

BACKSTORY:

Victory in first stage of ‘fitness for work’ court case

Two disabled people have won the first stage of their legal bid to force the government to improve the much-criticised “fitness for work” test.

The high court this week granted permission for them to bring a claim for judicial review against Iain Duncan Smith, the Conservative work and pensions secretary.

The two disabled people, both supported by the Mental Health Resistance Network (MHRN), claim that the work capability assessment (WCA) discriminates against people with mental health conditions.

The WCA was introduced by the Labour government in 2008 but is now a centrepiece of the coalition’s welfare reforms, and is used to determine eligibility for employment and support allowance (ESA), the replacement for incapacity benefit (IB).

Lawyers for MM and DM – who have been granted anonymity by the court – say many ESA claims are decided through assessments by healthcare professionals who are not mental health specialists.

They argue that the WCA fails to make reasonable adjustments under the Equality Act for people with mental health conditions, and are calling on the Department for Work and Pensions (DWP) and Atos Healthcare – the private company which carries out the tests – to seek medical evidence at the beginning of each claim.

Mr Justice Edwards-Stuart, granting permission for a judicial review, said that it was “reasonably arguable” that “early obtaining” of independent medical evidence was a reasonable adjustment under the Equality Act for claimant with mental health conditions and “that this has not been done, or at least not done on a sufficiently widespread basis”.

A judicial review victory will not lead to the WCA being scrapped, but could make it fairer and less stressful for those with mental health problems, while some could be exempted from having to undergo a face-to-face assessment.

Ravi Low-Beer, MM and DM’s solicitor, from 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 bypassing doctors is inefficient, unfair and inhumane.

“We gain heart from the court’s findings that as a matter of law, it is arguable that something has to change.”

He said he hoped the judicial review hearing would take place later this year.

Dave Skull, an MHRN member, also welcomed the court’s decision, and said: “A number of people have been wrongly assessed and misrepresented by the current situation. It is vital that there is some sort of review.”

He said many people with mental health conditions were in a “vulnerable position” and were experiencing “incredible anxiety” because of the WCA’s flaws, and added: “I am supporting a lot of people who are feeling suicidal about the situation with their WCA.”  

The MHRN was formed in 2010 by people claiming IB on mental health grounds, who were concerned about the proposed programme to reassess all those on the benefit for their eligibility for ESA.

Many of the network’s members have had relapses, episodes of self-harm and suicide attempts, and have needed higher levels of medication and even hospitalisation in the lead-up to their reassessment.

Thousands of people with mental distress have been found unfairly fit for work following their WCA, and while many go on to win an appeal against this decision, some are unable to cope with an appeal, or experience a relapse in their health as a result of the process.

A DWP spokeswoman said: “Government welfare reforms have a long history of being taken to judicial review so this is little surprise and we will be challenging this claim vigorously.

“We have worked hard to ensure people with mental health problems are treated fairly.”

Source: John Pring at www.disabilitynewsservice.com

About John McArdle

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24 Responses to VICTORY !!! MENTAL HEALTH RESISTANCE NETWORK’S JUDICIAL REVIEW OF THE WCA: Finally – legal proof that disability benefits test is unfair for people with mental illness

  1. Steven Oliver says:

    About time, but sadly I suspect the Government will invoke “retroactive legislation” to get round this.

    • John Lanigan says:

      Not this time they wont – the ruling is clear that they have breached the Equalities Act, this is a real victory. The DWP will have to do something about this and we should not be letting up in making sure that the current test is scrapped in favour of a “real medical test” that properly takes account of a persons illness.
      The fight needs to go on!

  2. jeffrey davies says:

    well they lost but don’t hold ones breath ids is got his menial baristers on this working out how to get around it has to listening to a judge ids blowing his top and be not taking any notice has this man hasn’t any humanty at all jeff3

  3. Fiona says:

    Thank goodness! Such a relief to read this, I wasn’t sure I could survive this…. at least there is light at the far end of a very long and painful tunnel.

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  5. JJ says:

    It hasn’t been published yet Sarah but will be available in the next 48 hours at:

    http://www.judiciary.gov.uk/media/judgments/2013/index

  6. Bob Ellard says:

    Absabloodylootly Fantastic Thanks to all who put all the hard work in on MH sufferers behalf.

  7. karin says:

    YES YES YES YES YES! A huge kick in the nadgers for Iain Drunken Spiv. The cracks are becoming visible in his fortress.
    CONGRATULATIONS to those people who had the courage and will to go through the court case.

    Keep up the fight for justice, we need to see WCA scrapped and a fair system employed. POWER to the DISABLED!

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  9. John Lanigan says:

    And going to lose again.

  10. David Calvert says:

    All well and good but will people be compensated and reimbursed for the years they have been denied benefits to which they are entitled? If not then it would prove the WCA was an elaborate deception engineered to deny the sick and disabled benefits all along.

  11. AL says:

    Thank goodness some people are brave enough to stand up for themselves. But we do need to be sure this doesn’t become yet another divide and rule, with Mental health cases being treated different. Anyone can become Mentally ill given the right circumstances. Dealing with DWP makes me crazy. It’s the closest I’ve felt to losing my grip. Not sure that driving people insane is conducive to getting them back to work! An example. DWP lose everthing. It doesn’t matter, because the stuff they lose belongs to people who don’t matter. They lost my sick notes. They didn’t write to say they hadn’t had them. They didn’t write to say they were stopping my money and why. They just stopped it. When you call DWP (0845 only) you need time and money. (Mobile 12p-40pp/m) 2hrs at a time is usual for me. Finally I know why I’ve no money and it then takes 5 visits to my surgery to get the replacement sick notes. And yes, there were 2 errors that, had I not checked, meant I would have still been denied my money. Now I wait to see if they lose these too. I still have my appeal to deal with, living on reduced money, wasting more GPs time and all the time I’m taking tablets just to get by. They are messing with us. When I said I couldn’t get to my assessment, they said I had to, else they would cut my money. When I said I’d no-one that day, they said that wasn’t their problem. I was told I was seeing a specialist in my condition and that’s why I couldn’t have a convenient date (LIE). I was told the assessment was just an interview and absolutely there was no Physical medical exam (LIE). When I said did I need a GPs letter for the assessment? They said no (Not the most helpful advice!) The Assessor spent no time asking about my condition or how it affects me, she just wanted to check I could answer the same face to face, as I wrote in the questionaire. She then spent the rest of the time going through her mental health check list, ticking off all the things I wasn’t presenting. (Excess sweating, rocking etc) The mental health componant would seem to be really important. Turns out I’m good to go. Not a nut. Indeed I ‘look well’. I wish my GP was even half as good at diagnosis. Think of the savings on blood tests, MRI, specialists, and the like. My report was judgmental, based on unsubstantiated opinion. It’s inconsistant, irrelevant, and meaningless. That it’s written by someone with medical training should be scary for us all. And when I’m not angry I am deeply upset at what people have the right to write down about me as though it’s fact. I’m not Mentally Ill but it’s still a challenge not to feel destroyed. How are people coping when they are depressed, paranoid and the like? Does anyone have the guts to say this is abuse? It’s discriminatory. It’s destroying lives and creating a climate of fear and hate.

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  13. Thechazo says:

    This is all well and good and an important step in securing fairness to ESA assessments in regard to those (like myself) suffering from a serious mental health condition, but until it has been judged upon by the further legislative review, is no assurance that the DWP will in any way amend their present process. Should the DWP lose the next step, then yes, at that point the DWP have to accede, but for now, they can just pay lip service to it while they exercise their right to appeal. Let us all hope and pray that the DWP are completely unsuccessful in appealing this and are then forced to change their practices in regard to their mistreatment of the mentally ill.

    My IB is currently being assessed to transfer across to ESA and I will post progress or lack of it here. I do have an additional bowel incontinence problem that may swing things favourably, but I should still be able to find out from anyreport what points (if any) have been awarded for my mental health condition.

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