WCA consultation ruled unlawful - White paper, part 2

Richard Burgon has spoken out against the scapegoating of disabled people on benefits.

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TagsNewsEllen Clifford, the disability activist and Disabled People Against Cuts (DPAC) member, has won her judicial case against the Department for Work and Pensions (DWP) over its consultation held to justify benefit cuts.

The consultation was held in 2023 on proposed changes to the work capability assessment (WCA).

The DWP uses the WCA to evaluate whether Disabled people are eligible for the extra health component of Universal Credit or Employment Support Allowance and have restricted work conditionality.  

The High Court has ruled that the DWP acted unlawfully by presenting controversial benefit assessment reforms as a way to support disabled people into work, without making clear that the proposals also included “substantial” cuts to disability benefits and that cost savings was a “primary rationale” for the proposals.  

It also found that the consultation failed to explain that planned reforms would lead to around 450,000 Disabled people receiving lower benefit rates and that many would be worse off by at least £416.19 per month and was unlawfully short given the circumstances. 

The Public Law Project, acting for Clifford, has argued that the consultation was unlawful for several reasons, including that: 

• It did not explain properly that many people would receive significantly less money if impacted by the reforms, and start being required to meet conditions (or, in some cases, meet more stringent conditions) in order to receive their payments, with a risk of sanctions if they did not meet them. 
• The true or primary motive behind the consultation was to reduce spending on disability benefits, which was not disclosed. The consultation papers had presented the proposals as being about helping people to move into or closer to the labour market, without providing any evidence at all to explain how this purported aim would be met.  
• A consultation that ran for just under 8 weeks was too short, given the importance of the proposals and the additional time that Deaf and Disabled people and their organisations need to engage meaningfully in this context. 

Over the course of the judicial review, internal DWP documents revealed that: 

• The DWP had not carried out any employment, equality or disability assessment on the impact of the proposals prior to the consultation being launched, though civil servants had identified that almost 100,000 people could move into poverty, based on certain internal estimates. The equality impact assessment that was completed after the consultation was launched remains unpublished; 
• Civil servants were aware that the proposals would have a particularly strong impact on those with pre-existing, significant mental health conditions and suicidal ideation, and that the “reduction in income alone might be a bigger contributory factor to a deterioration in mental health than undertaking work preparatory activity”; 
• Civil servants made proposals to ministers on what changes to consult on based on the fiscal impact, with the emphasis being on scorable savings that could be announced for the Autumn Statement 2023. Internal documents recorded for example, that “… the Prime Minister indicated that the DWP should consult on reforms to the WCA gateway in time to score them for the Autumn Statement…”  
• The DWP was also aware that the proposals would be controversial and that there was a risk they’d be “perceived as purely cost-saving measures by influential disability rights groups, individual stakeholders and by SSAC”, leading to recommendations that “a wider narrative based on modern and home working” was also developed.
• Internal documents demonstrate that the Secretary of State considered including particular proposals as part of the consultation, notwithstanding that they would not lead to savings, solely because this could be “useful” to support a narrative that the motivation for consultation was about the importance of getting more people into work and not saving money.  

In his judgment, Mr. Justice Calver found that the consultation was “misleading”, “rushed” and “unfair”: 

• The consultation documents were misleading for failing to highlight the “substantial” loss of benefit payments that those impacted by the proposals would face and created a “misleading impression” that changes were required to ensure certain Deaf and Disabled People could access employment support. In reality, the changes were about compelling them to access this support, which they could already choose to access voluntarily. Mr. Justice Calver described this as a “false rationale”, relied upon by DWP in its consultation.  
• The evidence before him strongly supported the conclusion that “costs savings was at least one of the two bases, if not the central basis, on which decisions would be taken on which policies would be taken forward by the Government.”  In the circumstances, the judge considered that the SSWP “ought in fairness to have made clear that AME cost savings were, together with work inactivity, the rationale for the proposals” and that “disclosure of this highly relevant fact, was required”.  
• A consultation that ran for just under eight weeks was unlawfully short in the circumstances, given the importance of the matters under consultation, the fact that DWP had already announced a significant consultation on the Disability Action Plan and the lack of any prior notice that SSWP wanted to consult on proposals of this nature, which was unexpected given the very recently published Transforming Support: The Health and Disability White Paper.
• Mr Justice Calver observed: “The unfair burden upon vulnerable people of having to deal with a yet further consultation process at this time at such short notice cannot be overstated" and in setting the consultation period, the Defendant ought to have had more regard to the attributes of those people who would be affected by these proposals. These were proposals which, in particular, could potentially drive vulnerable people into poverty as well as adversely affecting disabled people and substantial risk claimants who have mental health conditions and suicide ideation.” 

Ellen Clifford said: “Through this judicial review, it became clear that there was a complete disregard for equality or disability impacts in this consultation process. No disability or equality impacts, or even employment outcomes, were evaluated before or during the consultation. We now know that an equality impact assessment was produced, but it remains unpublished.

“The DWP did calculate cost savings, however, confirming what many disabled people feared: that cuts to disability benefits had been prioritised over lives. However, DWP chose not to admit this as part of the consultation.”

“Instead, we now know that civil servants and ministers were making desperate attempts to ‘find’ a rationale for the cuts, which they thought would be less controversial, and even considered consulting on particular proposals that would have generated negligible savings, to make it appear as though saving money was not their primary motive. It is heartening that Mr Justice Calver agreed with us that this is ‘back to front policy making.’”

“The lack of transparency in this consultation was overwhelming and I am relieved that the judge has recognised that this is not the right way to engage the Disabled community. 

She added: “But the crucial question is what lessons the Government should learn from this case. Measures to help the economy should not require the impoverishment and suffering of hundreds of thousands of Disabled people. Such measures would simply represent a false economy in that they will substantially increase pressures on public services such as the NHS and lead to higher spending in other areas. 

“DWP’s own civil servants acknowledged this internally when they recognised that the proposed reduction in income for people with significant mental health conditions and suicidal ideation could contribute to further deterioration in their mental health.”  

“That is why we are calling for these harmful reforms to the work capability assessment to be dropped.” 

Ken Butler, DR UK’s Welfare Rights and Policy Adviser said: “Disability Rights UK congratulates Ellen Clifford in bringing her legal action and achieving this important legal victory. Without her steadfast, principled and brave campaigning, the DWP would not have suffered the conclusive loss it has.

 “The DWP consultation has been found to be unlawful as it was “misleading”, “rushed” and “unfair”. The ruling that cost savings were at least one if not the “central basis” that was the impetus to the proposed reforms should be a wake-up call for the current Government, who seem intent on bringing similar proposals forward in the Spring.

 “It did not explain properly that 450,000 Disabled people would receive significantly less money (£416 per month) if impacted by the reforms and would be subject to tighter requirements around work-related activity. Although the Government is to publish a Green Paper on work capability assessment and personal independence payment reforms this Spring, it has remained tight-lipped as to its contents.

 “Given the High Court’ ruling, we call on the Government to clearly state it does intend to pursue the last administration’s unlawful cost-cutting consultation proposals.

“Instead of pursuing the further impoverishment of Disabled people, it needs to co-produce reforms that will protect our rights to an adequate standard of living.”

The High Court’s judgement in R (on the application of Ellen Clifford) v Secretary of State for Work and Pensions is available from judiciaryuk.

For further information see our news stories:

• WCA ‘Reform’ Part of Government’s Efforts to Cut Public Spending
• Disability Rights UK's response to WCA Consultation

Thank you girls guys in betweeners those of different gender and sexualities, other than heterosexual.

I feel honoured because I never meant to lead, and inspire the best in people, I mean I DID but

but just did not expect it would succeed so much.

Its not about ego, pride, because we all know where that leads don't we?

Its about our human rights, we are worth life, love, all the good things in life, life is for living.

And part of it is

our comradeship with each other as disabled people, boosting each others survivor thriver esteem, not suiciding, but battling on with love, even for our 'enemies' like Gandhi, Mandela, like the best in ourselves.

Thank you from the bottom of my heartmindsoul,

and

keep struggling and fighting on together, never give up do not give up.

We are all stronger than we know, and much stronger together.

Keep writing to the media, to your MP even the PM and DWP minister, keep taking legal action,

I DO strongly feel we need a mass lobby of Parliament with other disability organisations in the next few months, with other disability groups like Disability Alliance, Disability Rights UK, Mind, etc. etc.

And with a media storm of publicity to persuade our case for not stigma, but help not persecution, human rights, and support into work as defined by us, and more benefits for for with those with disability, who cannot work.

Ellen is Star of Compassion, a true survivor, a courageous woman and disability human rights activist; I SALUTE her Magnificent and wise self-compassion, and other-compassion.

I am launching another legal action against the govt, and have obtained civil legal aid to do.

so watch this space.

I encourage others to launch legal actions if any question arises in their minds about the ethical, legal wrongness of Getting Britain Working.

We CAN win this, at least partly, if not fully. YES WE CAN!!

As Ellen has so clearly demonstrated even the govt is NOT above the law, and cannot abrogate, or ignore basic constitutional rights, e.g. to a fair consultation on a whitepaper/ any proposed law.

Our heroine Ellen, I'm so glad to hear from you, joyful to.

You are SO inspiring.

In a nutshell, it about other basic constitutional laws of liberal democracy that govt our human rights which the govt is trying to break.

For example, I contend the govt cannot migrate every disabled person to UC, because they are not capable of any type of work, the bedridden, paraplegic, those of terminal diagnoses, and so forth. The govt cannot sanction them and stop benefits as we have a right to life - ALL of us have a right to life, right to a duty of care to preserve, and improve heath, right to dignity and respect right not to be bullied, intimidated and harassed, or misinformed by DWP and jobcentre staff (the right to informed choices, consent and participation, so basic to liberal democracy which includes the right to be consulted on new laws affecting our interest, by the way).

I will post the proposition/ my guess at legal and moral case to answer I have put to my solicitors and barristers tomorrow outlining many other basic and essential human rights tomorrow, dear friends, dear comrades, and they will assess it.

I will be consulting 7-8 sources of legal advice and representation:

Mind legal unit

• pro bono unit
• public health lawyers
• disability rights lawyers
• Equality and Human Rights Commission
• etc.

If my case makes sense to anyone reading this, tomorrow, you are welcome to join me in a class legal action to be mounted against the govt, the more the merrier, and more people adds weight to a legal action. Also, I need the moral support, whilst I have more drive and compassion than most I am not enlightened, not nirvanic, thus I still suffer fear anxiety, despair, and I have 31 diagnoses 6 life threatening - I am fighting for my life, and maybe yours too!?

Someone once said my faith of Buddhism gives me an advantage is 'fighting' back - you win battles by not fighting, or being angry-bitter, you win them by poetic language, persuasive rhetorics, by making a watertight case, consistent and plausible, coherent and credible, by quoting other laws that are not being implemented, etc. etc.

You marshall all your resources, you do not take no for an answer and you are very very patience, kind to yourself, and other comrades in the struggle, and allies, and you thank them all the time for their help. You do not take them for granted, whether these allies are paid or not.

My faith is not a panacae, faith takes courage to practice everyday, it takes courage and patience to meditate, to do mantras, contemplations in daily living, to cultivate joy and courage of seeing that you too, Buddha said, could be enlightened, to do Dharma study, to not give in to ones personal suffering, and the massive suffering/ Samsara in this wonderful, horrible, but wonderful world of ours. Yes my faith helps, but it is not a formula or simple answer, it requires courage to not ony think compassion for ALL but to put it into practice.

I will show my lawyers the High Court judgement against the govt that our heroine Ellen Clifford won. It will build on that victory.

Nothing is certain yet, but if I, and we, do not try nothing can be won.

Usually I predict my lawyers case to answer. And have set 3 legal precedents in my life, without a lawyer, so incensed was I at the sheer inhuman, brutal abuse of my and others humanity, hat there was no choice but to act bravely, even if I was terrified, someone had to do it.

I salute you Ellen, a 1000 times, and anyone who wants to join in: legal action being more positive, taking heart, taking and giving compassion, supporting each other, finding and sharing any wisdoms of compassion such as inspiring quotes. I salute the best in humans, and bitterness resentment is not necessary we can all use our heart-mind to persuade a judge in court or by writing to the media, to persuade the public, with sweet reason, rigour charm, disability pride, and sheer determination, and tender, exquisite compassion.

We do not deserve this S***, this oppression, this disabalism, and mentalist bigotry and prejudice we are human beings deserving of support.

If you are feeling S** today its not your fault, its the govts prejudice cruelty, and baggage NOT yours, though we have to deal with it.

Love and solidarity

'Mad' Milan