IMPORTANT UPDATE: Judicial Review of the DWP-Atos Work Capability Assessment ~ Mental Health Resistance Network

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Saturday 19th January 2013 

HOW THE JUDICIAL REVIEW WENT!

The Mental Health Resistance Network judicial review of the DWP-Atos Work Capability Assessment was scheduled for three days (16-18 January 2013) 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 (WRAG Group/Workfare – BTC) even if they had less than the required number of points for Employment and Support Allowance (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 Disability Discrimination 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.

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 evidence from consultant psychiatrists was also submitted.

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 (The ‘Comparator’ – BTC). 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. The DWP, unsurprisingly, argued 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 and there was some argument over whether the individuals concerned had been disadvantaged or 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. The judgment will undoubtedly take some time to come through and we have no idea which way it will go. 

So fingers crossed!

Mad Pride JR
The DWP-Atos so-called “Work Capability Assessment” is a CRIME against disabled people’s humanity

Whatever happens, we’ll never give up!

Comments
  • Christina Klein-Bissett January 19, 2013 at 8:08 pm

    Thank you for that report…we live in hope !!!!

  • Penny L January 19, 2013 at 9:53 pm

    Where is good evidence going to come from? I worked with autistic adults for many years and do not remember any having appointments with consultant psychiatrists, or other specialists who knew them well enough to provide an accurate report. GPs were only involved with medical aspects I also have relatives with depression and panic attacks who has avoided medical services. Community mental health and learning disability services and social workers are only able to respond to serious crises.

    • NoOneIsListening January 20, 2013 at 9:38 am

      This is of course an excellent point and is the key issue that is causing anxiety for me when it comes to the assessment of our son. He is a regular outpatient at hospital for a cluster of complex medical conditions but is not seen by a psychologist or psychiatrist for his high functioning autism or associated behaviours. Luckily he does have a social worker and is living in a supported living project where he gets support from National Autistic Society. The WCA could take one look at him and declare him fit for work. However, he has very limited skills for work, his executive functioning skills have many gaps which pervade all areas of his life (organisation, planning, prediction), no money handling capability, needs time to process instruction and information, lacks stamina, easily distracted, needing prompts and reminders for virtually everything and couldn’t work alone, unsupervised or outdoors! Show him the employer who would welcome him with open arms, have the capacity to support him in the work place (constant supervision, prompting, time out to listen to his anxieties and monologues on things that are worrying him or that interest him and no need for multi tasking or rapid response!) and he will be happy to work. How on earth can ATOS assess this in their assessment …….

  • alan January 19, 2013 at 9:53 pm

    i say we cant proof our selves waiting.[ the debate] obviously what more will it take, more distress deaths, history waited in germany loss of millions, action to stop this unfare dwp/atos arrangement. unfareness of mental health

  • lifeofmisery January 20, 2013 at 12:32 pm

    DO YOU REALLY THINK THAT IDS OR ANY ONE FROM DWP IS GOING TO BE PUT ON TRIAL FOR THE DEATHS OF DISABLED PEOPLE “THINK AGAIN”

    YOUR NOT LIVING IN A COUNTRY THAT TREATS EVERYONE EQUALLY IN THE LAW.

    YOU ARE UNDER A TYRANNY YOU JUST HAVE NOT WOKEN UP TO THIS REALITY.

    THIS GOVERNMENT ARE GOING TO CONTINUE TO RAPE THE PEOPLE OF THEIR WEALTH TO GIVE TO THE RICH

    WHERE DO YOU THINK THEY ARE GETTING THE MONEY FROM TO GIVE TAX BREAKS OF £40,000 TO PEOPLE EARNING OVER ONE MILLION PER YEAR

    ANSWER.. THE BENEFIT CLAIMANT!

    WE ARE NOW WITNESSING THE BIGGEST FINANCIAL RAPE/CRIME AGAINST THE BRITISH WORKING CLASS AND DISABLED PERSONS IN HISTORY AND THERE IS NOTHING WE CAN DO TO STOP IT HAPPENING.

    YOU CANT GET RID OF THE GOVERNMENT FOR ANOTHER TWO AND A HALF YEARS SO MUCH FOR THIS ILLUSORY DEMOCRACY.

  • K Peake January 20, 2013 at 2:28 pm

    Thank God Almighty for capable, discerning public figures like Michael Meacher MP.

    73 of us dying each week of Atos (DWP)

    https://twitter.com/SoniaPoulton/status/254887806516740096

    No record of the 43% of us found fit for work who aren’t working or receiving benefits the following year which will mean nothing to the gangster squad but be of terrible concern to anyone with a beating heart

    http://www.guardian.co.uk/society/2013/jan/17/atos-attack-emotional-commons-debate

    494 of us dying each week of cold

    http://www.guardian.co.uk/money/2011/nov/22/fuel-poverty-protestors-die-in-winter-deaths

    1 in 500 of us currently being kept alive by responsible taxpayers at foodbanks leaping impressively to 1 in 250 of us by April

    http://blogs.channel4.com/factcheck/food-banks-is-cameron-on-the-money/12486

    The blame for these deaths lies squarely with the terrorists who launched this vicious and cowardly attack.

    Sign this petition to show the gangster squad what happens when they defame, illegitimise and abandon disabled people:

    http://epetitions.direct.gov.uk/petitions/33327

  • jeffery davies January 20, 2013 at 7:31 pm

    if the high court judges come out i nfavour i doubt this lot would change their course but undoubtly they kill more of us daily by their abuse to us and others but when do you think the torys will listen to us never so its up to others to rectify the atos dwp but then will they or keep it and just tweek here and there showing how kind they are to us but not really anything real being done as i find we just not wanted by any of them so please go quietly and the last one close the door behind you jeff3

  • Aletheia January 21, 2013 at 1:17 pm

    It certainly seems that way Jeffery. Unfortunately the wheels of change turn very slowly and that is not good enough for the victims of the WCA process.. Atos/dwp seem hell bent on killing us all off without any compassion whatsoever. Pure evil.

  • jed goodright January 21, 2013 at 6:00 pm

    been watching some of the debate on the benefits uprating (cuts) on bbc
    for anyone hoping the labour party would come to the rescue – forget it!!
    they have been an absolute shambles today – not even challenging the fundemental errors to do with the welfare budget, eligibilty for benefits and the nonsense of the coalition creating 1.2 million jobs this year.
    i think we have had it – may as well form our own queue to the death camps

  • sm cc April 3, 2013 at 5:44 pm

    who dares WINS

  • gwenhwyfaer May 16, 2013 at 9:36 pm

    Has there been any progress on this yet? Have the judges really been sitting on their decision for the last four months, or what?

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