Three judges have ruled that the work capability assessment (WCA) for deciding who is eligible for employment and support allowance (ESA) disadvantages people with mental ill health, learning disabilities and autism.
The judgment is the result of a judicial review brought by two anonymous claimants with mental ill health.
The case centres on how evidence is gathered for the WCA – the process used to determine whether someone is fit for work. This process has been controversial since its introduction in 2010, with critics citing how it did not adequately consider certain disabilities such as mental illness or autism.
Under the current system, evidence from a professional such as a GP or social worker is expected to be provided by the people themselves. There is no obligation for the Department for Work and Pensions (DWP) to collect this evidence even on behalf of the most vulnerable claimants, apart from rare cases.
Seeking 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.
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.
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 and have welcomed the judges’ decision.
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.”
Paul Farmer, chief executive of Mind, added: "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.”
Mark Lever, chief executive of the NAS, 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."
However, the DWP disagreed with the judges’ decision, and says it intends to appeal. A DWP spokesperson said: “We believe we have made – and continue to make – significant improvements to the WCA process for people with mental health conditions. The percentage of people with mental health conditions who go into the support group for ESA has more than tripled since 2010.
“We are pleased, however, that the tribunal made clear that there are safeguards built in to the WCA process to help ESA claimants. We are also pleased the tribunal stated that the department is not in breach of its duties under the Equality Act.
“We will carry on working with charities – including Mind and the National Autistic Society – to continually improve the WCA for people with mental health problems, and, building on recommendations from Professor Harrington, pilot a new approach to the collecting more information from a claimant’s GP to refine the WCA.”