Victory in first stage of ‘fitness for work’ court case

Two disabled people have won the first stage of their legal bid to force the government to improve the much-criticised “fitness for work” test.

The high court this week granted permission for them to bring a claim for judicial review against Iain Duncan Smith, the Conservative work and pensions secretary.

The two disabled people, both supported by the Mental Health Resistance Network (MHRN), claim that the work capability assessment (WCA) discriminates against people with mental health conditions.

The WCA was introduced by the Labour government in 2008 but is now a centrepiece of the coalition’s welfare reforms, and is used to determine eligibility for employment and support allowance (ESA), the replacement for incapacity benefit (IB).

Lawyers for MM and DM – who have been granted anonymity by the court – say many ESA claims are decided through assessments by healthcare professionals who are not mental health specialists.

They argue that the WCA fails to make reasonable adjustments under the Equality Act for people with mental health conditions, and are calling on the Department for Work and Pensions (DWP) and Atos Healthcare – the private company which carries out the tests – to seek medical evidence at the beginning of each claim.

Mr Justice Edwards-Stuart, granting permission for a judicial review, said that it was “reasonably arguable” that “early obtaining” of independent medical evidence was a reasonable adjustment under the Equality Act for claimant with mental health conditions and “that this has not been done, or at least not done on a sufficiently widespread basis”.

A judicial review victory will not lead to the WCA being scrapped, but could make it fairer and less stressful for those with mental health problems, while some could be exempted from having to undergo a face-to-face assessment.

Ravi Low-Beer, MM and DM’s solicitor, from the Public Law Project, said: “The present system results in many thousands of unnecessary appeals at great public expense, with a high success rate.

“What is not counted is the cost in human misery for those people who should never have had to go through the appeals process in the first place.

“This could be avoided if doctors were involved in the assessments at the outset. The government’s policy of bypassing doctors is inefficient, unfair and inhumane.

“We gain heart from the court’s findings that as a matter of law, it is arguable that something has to change.”

He said he hoped the judicial review hearing would take place later this year.

Dave Skull, an MHRN member, also welcomed the court’s decision, and said: “A number of people have been wrongly assessed and misrepresented by the current situation. It is vital that there is some sort of review.”

He said many people with mental health conditions were in a “vulnerable position” and were experiencing “incredible anxiety” because of the WCA’s flaws, and added: “I am supporting a lot of people who are feeling suicidal about the situation with their WCA.”  

The MHRN was formed in 2010 by people claiming IB on mental health grounds, who were concerned about the proposed programme to reassess all those on the benefit for their eligibility for ESA.

Many of the network’s members have had relapses, episodes of self-harm and suicide attempts, and have needed higher levels of medication and even hospitalisation in the lead-up to their reassessment.

Thousands of people with mental distress have been found unfairly fit for work following their WCA, and while many go on to win an appeal against this decision, some are unable to cope with an appeal, or experience a relapse in their health as a result of the process.

A DWP spokeswoman said: “Government welfare reforms have a long history of being taken to judicial review so this is little surprise and we will be challenging this claim vigorously.

“We have worked hard to ensure people with mental health problems are treated fairly.”

News provided by John Pring at www.disabilitynewsservice.com

‘Fitness for work’ test under fire: Campaigners seek judicial review

Campaigners are to ask a judge to declare that the government’s controversial “fitness for work” test is unlawful because it discriminates against people with mental health conditions.

Two people with mental health conditions, both supported by the Mental Health Resistance Network (MHRN), will be seeking permission for a judicial review at a hearing on 29 June at the high court in London.

Their lawyers will be arguing that the much-criticised work capability assessment (WCA) fails to make reasonable adjustments under the Equality Act for people with mental health conditions and learning difficulties.

They want the Department for Work and Pensions (DWP) to agree to routinely seek medical evidence for such claimants in order to make an accurate assessment of their ability to work.

Currently, many claims are decided on the basis of assessments by healthcare professionals who are not specialists in mental health and have no medical evidence from the claimants’ GPs or consultants in front of them.

A legal victory – if a judicial review is granted and they succeed in their case – will not lead to the WCA being scrapped, but it is hoped that it will make it fairer and less stressful for those with mental health problems and learning difficulties.

Thousands of people with mental distress have been found unfairly fit for work after an assessment, since 2008.

Many go on to win an appeal against this decision, but some are unable to cope with an appeal, or experience a relapse in their health as a result of the appeal process.

The WCA was introduced by the Labour government in 2008 but is now a centrepiece of the coalition’s welfare reforms, and is used to determine eligibility for employment and support allowance (ESA), the replacement for incapacity benefit (IB).

The WCA has been the focus of a string of protests by disabled activists, who argue that the test is inaccurate, inflexible and damages the health or even contributes to or causes the deaths of some disabled people and those with long-term health conditions.

The MHRN was formed in 2010 by people claiming IB on mental health grounds, who were concerned about the proposed programme to reassess all those on the benefit for their eligibility for ESA.

Many of the network’s members have had relapses, episodes of self-harm and suicide attempts, and have needed higher levels of medication and even hospitalisation in the lead-up to their reassessment.

A DWP spokeswoman confirmed that the government would contest the case, but was unable to say anything further.

News provided by John Pring at www.disabilitynewsservice.com

Concern over leap in numbers found ‘fit for work’

Fresh concerns have been raised about the government’s work capability tests after new figures showed a huge increase in the number of disabled claimants of incapacity benefit (IB) being reassessed as “fit for work”.

During trials of the reassessment process in Burnley and Aberdeen in the autumn of 2010, the earliest figures showed 29.6 per cent of people on “old-style” IB were being found fit for work and so ineligible for the new employment and support allowance (ESA).

But since then the government has begun to roll out the reassessment programme across the country, and the first results – published this week – show 37 per cent of people have been found fit for work, a rise of a quarter since the trials.

Of those found eligible for ESA, 34 per cent of those reassessed were placed in the work-related activity group, and the other 29 per cent in the support group for those not expected to carry out any work-related activity.

Fears were raised this week that the increase could be because the government was rolling out the reassessment programme too quickly, and was failing to provide disabled people with the support they needed to be assessed accurately through the much-criticised work capability assessment (WCA).

The government plans to reassess all 1.5 million people still claiming IB by the spring of 2014.

The Labour MP Sheila Gilmore, a member of the Commons work and pensions committee, said the “likeliest explanation” for the increase was that the government was trying to reassess too many people too quickly.

She said there were still “big question-marks” over the WCA, particularly for those with mental health and fluctuating conditions.

A DWP spokesman said the new figures only provided a provisional picture, while the trials had only offered “an indication of claimant and staff reactions to the reassessment process”.

He said: “The proportion of claimants found fit for work in the trial areas never were meant to give guidance for the national roll-out.”

But he was unable to explain why the proportion of those found fit for work had risen so sharply since the trials.

Chris Grayling, the Conservative employment minister, said in a statement that the new figures “completely justify our decision to reassess all the people on incapacity benefit”.

But he accepted that the percentage found fit for work was likely to drop when the results of appeals become known.

Disability charities have pointed out that the statistics merely show the proportion of disabled people who have “passed” the WCA, not how many people are truly “fit for work”.

Paul Farmer, chief executive of Mind, added: “The work capability assessment is a flawed process and is causing anxiety and pain for thousands of people who are trapped in a cycle of reassessments and appeals.”

News provided by John Pring at www.disabilitynewsservice.com

Benefit reassessment could lead to destitution, says charity

Thousands of disabled people across Scotland could face “destitution” because of the programme to reassess all claimants of incapacity benefit (IB), a new report has warned.

The report, by Citizens Advice Scotland (CAS), claims an estimated 115,000 disabled people in Scotland are set to lose entitlement to out-of-work disability benefits during the three-year reassessment programme.

Between April 2011 and April 2014, all existing IB claimants will be assessed – through the much-criticised work capability assessment (WCA) – for their eligibility for the new employment and support alliance (ESA).

More than 170,000 IB claimants in Scotland will eventually be assessed under this “migration” programme, at a rate of more than 1,000 a week.

Evidence from the migration began emerging last autumn, when CAS surveyed 130 of its own advisers and managers, and found “strong concerns that the ESA process is even less suitable for long-term IB claimants than it has proved for new claimants”.

One talked about clients feeling “hounded” while another predicted the reassessment programme would cause “disaster”.

CAS concludes that the principles behind ESA are sound but because it is still not “fit for purpose” there is a “significant risk that the migration could lead to worse health and lower incomes for many claimants. In fact, some may face destitution.”

The report, From Pillar to Post, says ESA is a “major source of problems” for CAS, with its bureaux helping clients with nearly 20,000 ESA-related problems in 2010-11, a rise of a third in one year.

An estimated 65,000 disabled people will move out of the benefits system altogether because of the IB migration and have to cope with a fall in weekly income of £99, while another 36,000 will instead become eligible for jobseeker’s allowance, a weekly drop of £37.

CAS warns that the economic climate will make finding work “very difficult” for those found ineligible for ESA, particularly as four-fifths of those on IB have been claiming it for more than five years.

Susan McPhee, head of policy for CAS, said: “People on IB have been told for years that they are too sick to work, and now suddenly they have to undergo a flawed WCA, only to be told they are no longer ‘sick’ and so face an immediate cut in income, followed by further cuts if they don’t look for work.

“This happens not because of any change in your medical condition, but because the government had moved the goalposts and re-defined what it is to be ill.”

A Department for Work and Pensions spokeswoman said they did not recognise the figures quoted in the CAS report.

She said: “Those found too sick or disabled to work won’t be expected to and will continue to receive the help and support they need.

“We want to help everyone who can be in work to get there. For those that need additional help our new Work Programme is up and running and will tailor support to people’s needs so that they can overcome whatever barriers they face.”

Among its recommendations, CAS calls on the UK government to work with employers to address discrimination; continue to reform ESA; ensure that former IB claimants found “fit for work” are given priority in its new Work Programme; and track what happens to former IB claimants during and after the migration process.

News provided by John Pring at www.disabilitynewsservice.com

Government silent over adviser’s Unum admission

A disabled senior government adviser has admitted failing to tell civil servants about freelance work she carried out for an insurance giant that is set to make millions from the coalition’s incapacity benefit (IB) reforms.

Dr Rachel Perkins, chair of the government’s Equality 2025 high-level advisory body of disabled people, ran a half-day training event in late 2010 for nurses and occupational therapists employed by the US company Unum.

But she has so far failed to declare this paid work in the Equality 2025 register of interests, even though the event took place several months after she was appointed to the body, although before she became its chair in March 2011.

There is no suggestion that Perkins has acted improperly on behalf of Unum, but the revelations are likely to raise questions about her judgement, and again highlight serious concerns about Unum’s links to parliament, government and the civil service.

Unum is the UK’s largest provider of “income protection insurance” (IPI), and tougher welfare rules – such as those replacing incapacity benefit with employment and support allowance (ESA) – could persuade more people to take out IPI, boosting Unum’s profits.

Perkins’ admission that she has carried out work for Unum came as the government’s highly controversial welfare reform bill was completing its final parliamentary stages. Equality 2025 has played a major role in advising the Department for Work and Pensions (DWP) on its welfare reforms.

Disabled activists have raised repeated concerns about Unum’s influence on the welfare reforms of both coalition and Labour governments, including the introduction of the much-criticised “fitness for work” test, the work capability assessment (WCA), which tests eligibility for ESA.

Unum has admitted there has been widespread criticism of its past actions in the US, mainly over its refusal to pay out on large numbers of genuine insurance claims by disabled people.

Perkins told Disability News Service this week that the training session – which focused on helping people with bipolar disorder return to work – was the only time she has worked for Unum, and was unconnected with the subject of welfare reform.

She said: “I wasn’t aware that doing training on mental health and employment was a conflict of interests.”

She added: “I have never worked with Unum [on welfare reform] or spoken to anybody from Unum about welfare reform.”

She also stressed that she had been unaware of Unum’s troubling history in the US.

And she made it clear that she regularly seeks advice from civil servants on each piece of freelance work she is offered, and has been particularly selective about taking on work since she became chair of Equality 2025.

But she said: “Retrospectively I will do what I do at the moment: I will check with officials whether they consider it to be a conflict of interests. I have turned down work because I considered it a conflict of interests.”

Mo Stewart, the disabled activist who has done most to raise concerns about Unum’s influence, said: “Unum remains one of the most discredited insurance giants in the world and planned long ago to reap the rewards of these benefit cuts.

“With their mass marketing on commercial TV, Unum continues to benefit from the welfare reform measures that they helped to influence and it is totally unacceptable that any government adviser should fail to declare an interest with this diabolical corporate giant.”

The DWP has refused to comment on Perkins’ failure to register her Unum work as a potential conflict of interests with her Equality 2025 role.

DNS revealed evidence last year that strongly suggested that Unum has attempted to influence incapacity benefit reform over the last decade, particularly under the Labour government.

Unum has denied doing so and that it stands to gain from the reforms, even though it launched a major media campaign last year just as the coalition began a three-year programme to reassess about 1.5 million existing IB claimants through the new, stricter test, the WCA.

News provided by John Pring at www.disabilitynewsservice.com

Government adviser ‘failed to declare work for insurance giant’

A senior government adviser has failed to declare freelance work carried out for the insurance giant set to make huge financial gains through the coalition’s incapacity benefit (IB) reforms, Disability News Service (DNS) can reveal.

The adviser failed to declare the work carried out for the insurance company Unum in the register of interests, DNS understands.

The advice given to the government is believed to have included extensive discussions around welfare reform, at a time when the hugely controversial welfare reform bill has been passing through parliament.

Unum has admitted widespread criticisms of its past actions in the US – mainly over its refusal to pay out on large numbers of genuine insurance claims by disabled people.

There is no suggestion that the adviser acted improperly on behalf of Unum, but the failure to register the potential conflict of interest over work for such a controversial company will be a huge embarrassment to the government and the Department for Work and Pensions (DWP).

A DWP civil servant confirmed to DNS through a Freedom of Information Act (FoI) request that the adviser was required as a public appointee to declare any conflicts of interest and that “none have been declared”.

Disabled activists have increasingly been raising concerns about the influence of Unum within the DWP and among MPs and peers.

They are worried about the impact this might have had on the controversial reforms of both coalition and Labour governments, including the introduction of the much-criticised “fitness for work” test, the work capability assessment (WCA).

Following the receipt of some limited information following the FoI request, DNS submitted a series of questions to the adviser, including whether they had worked for Unum or Atos Healthcare, the company that carries out the WCAs on behalf of the DWP.

In a statement sent by text message, the adviser said: “I am afraid that I am not able to give you any more information… than you have already received in the response to your FoI request.”

They added: “However, in a personal capacity I can assure you I have never worked for Atos.

“Again, in a personal capacity I am most concerned about both the form and the quality of the WCA assessment and would be most interested in the results of your researches. I am sorry not to be able to be of more assistance.”

They failed to respond to a text message which asked them to clarify whether they had worked for Unum.

A government official – in response to an FoI request by DNS – said that public appointees in similar roles were “required to declare an interest in companies that could cause a conflict of interest with their… role”, and that the adviser had “not declared an interest in Unum”.

DNS understands that the adviser has carried out freelance work for Unum on at least one occasion since their public appointment.

DWP’s press office has failed to answer any questions about the adviser and the Unum links since first being approached more than a week ago by DNS. The FoI was submitted by DNS on 2 December 2011.

John Letizia, Unum’s head of public affairs, said it was for the adviser to answer any questions about their appointment “and not for Unum to comment”.

Letizia refused to confirm whether the adviser had worked on a freelance basis for Unum.

DNS revealed evidence last year that strongly suggested that Unum has attempted to influence incapacity benefit reform, particularly under the Labour government.

Unum has denied doing so and that it stands to gain from the reforms, even though it launched a major media campaign last year just as the coalition began a three-year programme to reassess about 1.5 million existing IB claimants through the new, stricter test, the WCA.

News provided by John Pring at www.disabilitynewsservice.com

Fears over sickness absence report

A government-backed report is set to make it harder for disabled people to claim out-of-work disability benefits, while potentially delivering another lucrative assessment contract to the private sector.

The authors of the report on “sickness absence” admit their proposals would “put more pressure on people to return to work”, but claim that in many cases this would “be in their own best interest, not just that of employers and taxpayers”.

David Cameron, the prime minister, appeared to back the report’s conclusions in an interview this week in the Daily Mail in which he described sick pay as a “conveyor belt to a life on benefits”, and said the government needed to “end the something for nothing culture”.

The health at work report was written by Dame Carol Black, the government’s national director for health and work and a former president of the Royal College of Physicians, and David Frost, former director general of the British Chambers of Commerce.

They claim that 11 million employees a year take sick leave, with about 300,000 going on to claim employment and support allowance (ESA) – the new replacement for incapacity benefit – while sick pay costs employers £9 billion a year.

The report says its recommendations would reduce the number of new ESA claims by half.

It calls on the government to scrap the 13-week ESA “assessment phase” because of “wasteful delays” in the average 17 weeks it takes to complete the work capability assessment (WCA), which tests ESA eligibility.

The report points out that just over half (53 per cent) of those assessed are eventually declared “fit for work”.

Only those disabled people with enough evidence to show they would not need a face-to-face assessment would be allowed to claim ESA straight away, with the others having to claim jobseeker’s allowance until they had been assessed.

The report also says that Jobcentre Plus should do more to “to prevent large numbers of people being inappropriately directed towards ESA”, and should ensure that the face-to-face assessment is carried out “as soon as possible”.

The authors say these measures will help disabled people secure support sooner and help those who can work to find a job quicker, as well as saving the government £100 million a year, because of fewer people on ESA, lower administrative costs and increased tax revenue.

Another key recommendation of the report is for employers or GPs to be able to refer those on long-term sickness absence from work – more than four weeks – to a new “independent assessment service”.

The service would not replace the WCA, but could provide “useful evidence” to any subsequent assessment by Atos Healthcare, which is paid £100 million a year to carry out the tests for the government.

Activists fear the government will also award the contract for the new assessment service to Atos.

Tracey Lazard, chief executive of Inclusion London, said she was “dismayed” by the prospect of an “independent assessment service”.

She said: “We have an expectation that it is going to be another WCA scenario and another money-making opportunity for the likes of Atos.

“They seem to be trying to roll out the WCA model even though it is clear it is fundamentally flawed.”

She said it was difficult to understand a measure that would create more bureaucracy when the government was constantly talking about efficiency savings.

And she said it was “frankly bizarre at a time when the government is saying it wants to hand over the NHS to GPs because of their relationship with patients. So they trust GPs with the NHS, but not on this issue.”

Dame Carol said in a statement: “If implemented, these recommendations will ensure many more people with health conditions are able to enjoy the benefit of work; far fewer will needlessly lose work and fall into long-term benefit dependency.”

Lord Freud, the Conservative welfare reform minister, said the government was “committed to supporting more people with health conditions to work” but that sickness absence causes an annual £15 billion loss to the economy and “we cannot continue to foot this bill”.

He said such “needless inactivity” damaged people’s aspirations, their health, and their families and communities.

The government will publish a response to the review next year.

News provided by John Pring at www.disabilitynewsservice.com