On Thursday 16 January, a high court judge ruled what disabled people already knew, the Department for Work and Pensions (DWP) had acted unlawfully in their controversial plans to reform the Work Capability Assessment (WCA). However, the DWP has also revealed that the Labour Party government is planning on going ahead with the WCA changes the Tories first tabled – but it will run another consultation, first.
Disabled activist and all-round legend Ellen Clifford took the DWP to court over a consultation which ran for just eight weeks in 2023. The department later used the evidence gathered from the consultation to make changes to the WCA, and who qualified as Limited Capability for Work Related Activity (LCWRA) – which are due to come into effect this year.
If they come in, the plans would see over 400,000 disabled people lose around £416 a month, something which could lead to countless deaths – this is on top of the god knows how many deaths the WCA has already caused.
The argument against DWP WCA reforms
The DWP misrepresented the reforms as a way to give more disabled people support into work, citing figures that said 20% of people in the LCWRA group had said “would like to work at some point in the future”. Of course, they conveniently ignore the 80% who disagreed with this and that just 4% said they would be able to start work now if the right job and support were available.
The consultation received a massive pushback from disabled people, who could see it for what it was: a cost-cutting measure designed to force people back into work and score points in the next election.
Clifford and Aoife O’Reilly from the Public Law Project, who was acting as her representation, argued that the consultation was unlawful on many grounds.
Firstly, the consultation did not explain that many disabled claimants impacted by the reforms would receive significantly less money and in some cases, be required to meet stringent conditions or be at risk of sanctions if they did not meet them.
O’Reilly also argued that the primary motive for the reforms – to reduce DWP spending – had not been disclosed. She argued that the consultation had led people to believe the aim was to help people into work, without actually providing any evidence as to how they planned to do so.
Lastly, the team crucially argued that the consultation had been unlawful as it ran for just under 8 weeks, which didn’t give DDPOs adequate time to respond. Government consultations typically run for six-to-twelve weeks.
DWP’s own documents did them dirty
Over the course of the judicial review, internal DWP documents revealed several damning things.
Firstly, the DWP had not actually done any sort of impact assessment on the WCA proposals, prior to the consultation being launched.
This is despite the fact that civil servants had, based on internal estimates, identified that almost 100,000 people would be pushed into poverty if they went ahead. There was an equality impact assessment that was done after the launch of the consultation, but that has never been published. Civil servants were also aware that the proposals would have a particularly strong effect on people with preexisting mental health conditions and suicidal ideation.
Proposals made by civil servants on what changes to consult on were instead based on the financial benefits. Internal documents reveal that “the Prime Minister [at the time Rishi Sunak] indicated that the DWP should consult on reforms to the WCA gateway in time to score them for the Autumn Statement…”
The narrative around how easy home working was for disabled people seemingly came out of the DWP and realised that the WCA proposals would be “perceived as purely cost-saving measures by influential disability rights groups” this led to recommendations that “a wider narrative based on modern and home working” was also developed.
Internal documents demonstrate that DWP boss at the time Mel Stride had considered including particular proposals as part of the consultation, because it could be “useful” to play into the idea that the motivation for consultation was the importance of getting more people into work and not saving money.
The ruling
Mr Justice Calver ruled that the consultation was “rushed”, “misleading” and “so unfair as to be unlawful”. He described the DWP a relying upon a “false rationale”, in the consultation. It also did not inform people about the “substantial” financial loss claimants would face.
He said that the evidence which had been presented 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.
The judge also said considered that the DWP should have made this fact clear and that “disclosure of this highly relevant fact, was required”.
Calver ruled that the consultation time was “unlawfully short” given not only the importance of the subject but based on the fact that the DWP was also at the time running a significant consultation on the Disability Action Plan. This was particularly unexpected as the DWP had only just published the 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.
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.
Emotions running high after DWP WCA verdict
Disabled activist Paula Peters, who was outside the court for the ruling, said:
It’s been a rollercoaster of emotions today, bittersweet sadness as we remember all disabled people we’ve lost to the WCA process. Relief that justice was served and that the judge overseeing this judicial review said the WCA Consultation was radically wrong and didn’t take into account the impact on disabled people’s lives.
In her statement outside court, Ellen said she was “overjoyed and very emotional” about the judgement:
When I heard the judgement, I was reminded of all of those who we gave lost and all of those who we don’t know who have died – countless people who’ve died as a result to cuts and changes to their benefits and other austerity measures.
But today Mr Justice Calver has recognised the unfair of a government consultation that deliberately set out to mislead and to disguise the potentially devastating impacts that these particular changes would have on disabled people.
So, what about Labour?
Well, despite the ruling the government wouldn’t legally be required to completely get rid of the DWP plans to make the lives of those subject to the WCA hell. That’s probably why the DWP has confirmed today they will be redoing the consultation.
In a statement a spokesperson for the DWP told the Canary (and the rest of the media):
The judge has found the previous government failed to adequately explain their proposals.
As part of wider reforms that help people into work and ensure fiscal sustainability, the government will re-consult on the WCA descriptor changes, addressing the shortcomings in the previous consultation, in light of the judgment. The government intends to deliver the full level of savings in the public finance’s forecasts.
This is interesting. Although they’re being upfront about it being “savings” motivated, they’re still not being transparent about how the cuts would affect people. A big takeaway is also that they’re still seemingly intent on changing the goalposts of what the descriptors will mean and who will qualify to be unfit for work.
Disabled people are ready
Just as many disabled activists worried, a Labour-led DWP is no better than a Conservative one.
But disabled people are prepared to fight them on this too.
Clifford said in her statement:
We know the government is hellbent on attacking disabled people and essential incomes we need to survive, in order to manage the economy better than they are at the moment.
As Peters said:
We hope this legal victory gives disabled people across the UK hope that disabled campaigners are fighting back, prepared to take government on and bring change about”
Speaking of the fears of disabled people facing both cuts and the Assisted Suicide Bill, Clifford said:
This is not how any democracy should treat its most disadvantaged members; we fight on together.
Featured image via the Canary
