DISABLED activist Ellen Clifford has begun a legal challenge against the Department for Work and Pensions (DWP) for failing to consult fairly or lawfully on plans that could cut income for some disabled people by £390 a month.

Proposed changes to Work Capability Assessments will result in reduced benefits for many disabled people who qualify for Employment Support Allowance or the health element of Universal Credit, by changing how the DWP awards points for conditions such as incontinence, immobility, and social anxiety. The DWP also proposes to make it more difficult for individuals who do not score enough points, but who have in any case been assessed as not being able to work or do work-related activity due to a substantial risk to their health, to qualify for additional benefit payments.

Ellen Clifford is represented by lawyers at the Public Law Project (PLP), who say the consultation process may be unfair and unlawful because:

  • At eight weeks, the time period was too short.
  • Not enough information was provided for people to engage properly with the consultation – it did not make clear that some people could lose up to £390 a month or engage with other negative impacts on disabled people.
  • No reasonable adjustments were made for the fact that the most important consultees are disabled people who may need additional support to respond.
  • The consultation design shows no evidence that the Secretary of State gave due regard to his Public Sector Equality Duty.

Ellen Clifford said: “The DWP’s proposals will take much-needed money out of the pockets of disabled people. The proposals themselves do not stack up, and the way they have gone about consulting on the changes is unfair and unlawful. At the very least, the DWP must not pursue any proposals without proper, lawful consultation.”

The consultation proposes changes to how the system assesses ‘mobilising’, ‘absence or loss of bowel/bladder control’, ‘coping with social engagements’ and ‘getting about’ activities, by removing them entirely or reducing the points awarded for the descriptors. People affected by these conditions may lose some benefits altogether or could be moved into a different benefit category which would require them to carry out mandatory ‘work-related’ activities as a condition of receiving these benefits.

Clifford continued: “These proposals could harm many disabled people who rely on benefits, and push more disabled people into poverty. The consultation took place over less than eight weeks. Deaf and disabled people’s organisations (DPPOs) had no advance warning. There was another consultation process running at the same time, in addition to lots of other competing demands on the time of under-resourced DPPOs, of which DWP was well aware.

“For impairment-related reasons, I found it personally difficult to engage with the proposals within the short consultation period. All the DPPOs I spoke to who were able to respond said eight weeks was too short and didn’t give them the chance to consult properly with their members. A number of DDPOs (including DDPOs in the devolved nations) had to rely on a template response in support of key points made by DPO Forum England. This left them unable to provide DWP with the level of detail appropriate for a consultation on proposals with the potential to have such serious adverse impacts on the lives of disabled people. Some DDPOs were totally unaware of the consultation and others simply couldn’t respond at all within the given timeframe.

“The DWP says that the increase in working from home means disabled people can access the world of work more easily. Research shows that disabled people are less likely to work from home than non-disabled employees, yet DWP made no attempt to engage with or even acknowledge those findings.

“The consultation papers do not make clear that the changes may mean a reduction in the amount of benefits a person receives, and that those impacted after undergoing a new Work Capability Assessment could become subject to mandatory activities in order to receive their benefits, and risk being sanctioned if they cannot comply with the conditions imposed. DWP make statements about how appropriate support will be available to help disabled people to get back into work, but there is no real detail on this, and they refer to existing projects like Access to Work (AtW). Difficulties accessing AtW consistent with my own personal experience have long been flagged by DDPOs without adequate remedy.”

Aoife O’Reilly, the PLP lawyer acting for Ellen said: “There are principles of fairness that Government departments must follow when carrying out consultations like this. The changes being consulted on will have life-altering consequences for disabled people. When you think about the diverse accessibility needs of the people the consultation was aimed at, consulting for just under eight weeks is wholly inadequate.

“It is unclear why DWP thought it was appropriate to close the consultation after just eight weeks, given that it seems to not envisage actually bringing in any changes until 2025. We are very pleased to be working with Ellen on this important case and await DWP’s response to our pre-action letter so we can assess next steps.”

In addition to DPPOs being concerned about the proposals, both the Equality and Human Rights Commission and the Work and Pensions Select Committee have criticised the consultation process for being too short, and questioned whether it has engaged meaningfully with the impact that the changes will have on Deaf and disabled people.

Public Law Project has written a pre-action letter to Mel Stride’s Department on behalf of Ellen Clifford, arguing that the consultation process was unlawful and that DWP must not pursue any proposals without further (lawful) consultation.

A response from the DWP is expected on 14 November 2023.

* Source: Disabled People Against Cuts