Judge FORCES DWP to disclose key documents about “dehumanising” WCA reforms

During a court hearing about the “rushed and disingenuous” consultation used to justify proposals to tighten the Work Capability Assessment (WCA), the Department for Work and Pensions (DWP) was ordered by a judge to disclose key internal documents to Ellen Clifford, a disabled activist bringing a legal challenge over the consultation.

DWP WCA reforms: a looming disaster

The planned DWP WCA reforms relate to which claimants will fall into the limited capability for work (LCW), and the limited capability for work related activity (LCWRA) groups of Universal Credit.

The DWP ran a consultation on these between September and October 2023. As the Canary previously detailed:

the DWP is planning to change the WCA. Specifically, it’s planning on taking out or changing the following features:

• Factoring in people’s mobility
• Bladder or bowel incontinence.
• The inability to cope in social situations.
• People’s ability to leave their homes.
• Work being a risk to claimants or others – a clause which means that an individual is “treated as having limited capability for work and work related activity“

In November, the then Tory-run DWP responded to the consultation. Notably, it laid out how it would proceed with a number of these. Specifically, it decided to take forward DWP WCA changes to:

• Work being a risk to claimants. Specifically, it will tighten the criteria for this. Notably, it stated that: “We will specify the circumstances, and physical and mental health conditions, for which LCWRA Substantial Risk should apply.” In other words, the DWP will decide who this will apply to going forward – and will obviously move the goalposts.
• People’s mobility – which it’s removing as a descriptor altogether.
• People’s ability to leave their homes – which it will now reduce the points for in the assessment.

Labour’s position

New Labour Party chancellor Rachel Reeves announced during the Autumn Budget that she would honour the DWP WCA savings that the previous government planned to make through these reforms.

She said:

First, we inherited the last government’s plans to reform the Work Capability Assessment.

We will deliver those savings as part of fundamental reforms to the health and disability benefits system that the Work and Pensions Secretary (Liz Kendall) will bring forward.

Most people have interpreted that to mean that the planned DWP WCA reforms will go ahead.

Ellen Clifford’s legal challenge

However, Clifford has been challenging the reforms in court – specifically over the consultation. Her lawyers argued that the primary motivation in fact appears to be reducing welfare spending.

Under these proposed changes to the DWP WCA, thousands of people would lose £416 per month in benefits and many would be at risk of sanctions.

According to Clifford, this was not made clear during the consultation. Specifically, her lawyers are arguing that:

• The government gave insufficient time for consultation on changes to the WCA.
• The DWP did not explain the reforms properly.
• These reforms do not help more disabled people into work.
• People could not respond to the consultation properly.

Where are the documents?

Clifford was in court on 31 October to argue that the DWP should disclose key documents that were relevant to her claim, backed by lawyers from Public Law Project (PLP.) Through the hearing, it was revealed that:

• 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 DWP WCA 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.
• No information about potential savings or numbers impacted was provided to consultees as part of the consultation process.

The consultation claimed that reforms had been proposed to reflect that there were now better employment opportunities for some Deaf and Disabled people due to the rise in flexible and home working.

However, the DWP WCA consultation failed to provide any assessment of whether Deaf and Disabled people would actually benefit from the proposed increased workplace flexibility.

Clifford said:

The DWP’s revelation that they carried out absolutely no employment or disability impact assessment has confirmed my fears: this rushed and disingenuous consultation was just a smokescreen for cuts. It was never a legitimate attempt to hear the voices of Deaf and Disabled people or support them into work.

In reality, a lot of people will struggle to pay everyday bills if these proposed changes go ahead.

DWP WCA reforms: all about cuts

Aoife O’Reilly, the PLP lawyer acting for Clifford, said of her DWP WCA court challenge:

Ellen Clifford has maintained throughout her challenge that the true or primary motive behind the consultation was to reduce spending on disability benefits, rather than being about consulting on proposals that would help more Deaf and Disabled People to enter the workforce or access support with a view to doing so.

The fact that lawyers for the DWP have now confirmed to the Court that no employment or disability impacts were carried out before the consultation began further supports her position that this was a money-saving exercise, disingenuously presented to some of the most vulnerable people in our society.

We are pleased that the judge has ordered DWP to hand over more documents, which are clearly documents that her legal team should see. We are also pleased that DWP will now reconsider whether there may be other documents it should provide to Clifford, in light of concerns expressed by the judge about how they’ve considered this so far.

Hand over the documents

In court, the judge expressed concern at how the DWP had seemed to misunderstand Clifford’s case and her disclosure application.

He noted the possibility that the DWP WCA evidence on what relevant documents it had in its possession may have been based on an overly narrow understanding of what Clifford’s case was actually about. The judge said this was including a failure to appreciate the potential relevance of analysis DWP may have done after 5 September 2023 to Clifford’s claim.

Ellen Clifford said:

“I am delighted the judge has agreed that DWP need to hand over these documents.”

Withholding key documents in the context of this legal claim undermines our ability to challenge harmful and dehumanising proposals effectively. Deaf and Disabled People deserve clarity and accountability, and to be consulted in a way that is fair, especially when our livelihoods are on the line.

For thousands of people, the stakes are very high when it comes to the Work Capability Assessment. The previous Government’s proposed reforms would push a lot of Deaf and Disabled and chronically ill people into destitution.

This week, Rachel Reeves promised to deliver the savings promised by the previous Government when they proposed these reforms. We are now asking the Government to look beyond the savings and recognise the real people who will be harmed.

They should not continue with reforms when those impacted were not given any meaningful opportunity to explain why they should not be implemented.

Clifford’s DWP WCA claim is due to be heard at a two-day hearing on 10 and 11 December 2024 at the Royal Courts of Justice, which will be a landmark moment in the fight for disability rights and welfare support in the UK.

Credit to The Canary for this article