In autumn 2023, the Department for Work and Pensions (DWP) announced plans to change the way the work capability assessment (WCA) – the test that deems whether someone with a health condition or disability is fit to work – was scored.
Disability rights campaigner Ellen Clifford brought legal action against the Government, arguing that the process did not provide people with sufficient information or time to respond to the proposals.
She claimed the consultation by the then-Tory government did not properly explain that many people would receive significantly less money under the reforms, and would need to meet more conditions to receive their payments, with a risk of sanctions if they did not meet them.
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In a judgment on Thursday, Justice Calver said: “I consider that the claimant has surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful.”
In a statement after the ruling, Clifford said: “I am overjoyed that the court has recognised the importance of properly consulting deaf and disabled people on reforms that would leave many worse off by at least £416.19 per month.
“This is a life-or-death issue.”
In the 42-page ruling, Justice Calver also said: “I consider that the contemporaneous documents show that the proposals were indeed driven both by a desire to improve economic activity and also by the desire to make AME (annually managed expenditure) costs savings, and that the latter desire accounted for the great urgency to publish the consultation paper before the 2023 autumn budget, regardless of the lack of research to provide the requisite evidence base (moving inactive people back into work) for the proposals.”
The High Court in London had been told that if the proposals become law, 424,000 people a year will receive lower rates of benefit, reducing disability benefit expenditure by £1.4 billion per year by 2028-29.
The judge also found that the consultation failed to explain this would be the result of the reforms, saying: “Furthermore, the consultation paper fails to make clear that the proposals will reduce very significantly the amount of benefits paid to some or all affected claimants.”
Justice Calver said it was “significant” that the DWP pushed ahead with the consultation in time for the 2023 autumn budget “despite not having any evidence base to support the proposed changes”, but in the anticipation that the changes would lead to significant AME savings.
The court also found that the DWP did not make clear that instead of having a choice over what employment support they receive, people in receipt of the benefit would have to comply with new requirements.
Justice Calver said the consultation paper failed to set out a number of points, “presumably because the evidence base for the proposals had not yet been established at the time of the hurried consultation”.
Clifford also claimed the consultation into the plans, which ran for just under eight weeks, was insufficient – particularly given the additional time deaf and disabled people and their organisations need to engage meaningfully.
Justice Calver said: “I consider it very likely that there would have been vulnerable people who were misled in the ways suggested by the claimant, being people who had limited access to education, with learning disabilities and cognitive impairments, as well as substantial risk claimants with mental health conditions and suicide ideation, many of whom are likely to be without access to sophisticated professional people and organisations.”
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Referring to Clifford’s witness statements, the judge said she explained that she was confused about some of the content in the consultation paper and there was missing information that she needed to properly assess the proposals
“This significantly hampered her ability to obtain the views of members on the consultation and to respond effectively.
“Her mental health condition and impairment-related physical injuries meant that she did not have sufficient time to respond to the consultation in the way in which she would have liked to do,” Justice Calver said.
The DWP had denied that the consultation was unlawful, with Sir James Eadie KC, for the department, saying in written submissions: “There was no inadequacy in the explanation of what the proposals actually were, let alone inadequacy which would render the consultation ‘so unfair as to be unlawful’.”