Disabled people’s rights are hanging on upcoming judicial review

Welcome to hell: The work capability assessment is the start of a long path involving challenges, continual reassessments, misdirection or demands from the DWP, Job Centre Plus or work programme providers, leading eventually to despair, destitution and, in many cases, death. Could YOU mount a judicial review against this regime?

Welcome to hell: The work capability assessment is the start of a long path involving challenges, continual reassessments, misdirection or demands from the DWP, Job Centre Plus or work programme providers, leading eventually to despair, destitution and, in many cases, death. Could YOU mount a judicial review against this regime?

An appeal to the United Nations, using its Convention on the Rights of People with Disabilities to show how the sick and disabled in the UK are being mistreated by the government, will depend on the result of a judicial review later this month.

I have previously documented the work of Samuel Miller, to make the UN aware of the life-threatening activities undertaken by the Department for Work and Pensions under Iain Duncan Smith’s regime of cuts and changes to entitlement, so he should need no introduction.

Mr Miller has been hoping to induce the UN to consider whether the current Smith/DWP regime contravenes international agreements on human rights and the rights of the disabled. Many Vox Political readers have submitted evidence to him, to be used in support of this.

But he wrote to me yesterday, saying this work must be deferred until the result of the judicial review is known.

“Submission criteria require that domestic remedies be exhausted,” he wrote. “Any complaint submitted to the [UN] committee must first have been submitted to the national courts and authorities for consideration.

“As you are probably aware, there’s an upcoming judicial review of the Work Capability Assessment for people living with mental health problems. The dates are January 15-16 & 18, in the Upper Tribunal Courts in London.

“If I can demonstrate to the UN that remedies invoked by the State are neither effective nor available, then UNCRPD complaints would carry more weight.”

He quoted a letter from Jorge Araya, secretary of the UN committee on the rights of persons with disabilities, who stated: “Complainants have initially the duty to demonstrate that they have exhausted domestic remedies, then the burden shifts to the State party to demonstrate that there are remedies still available; if that happens, complainants should demonstrate  that remedies invoked by the State are neither effective nor available.”

So that’s the situation at the moment. Before Christmas, Mr Miller said the amount of time required to mount a judicial review would put the lives of sick and disabled people in jeopardy; that is not the case while one is about to be heard.

Also, consultation with a barrister, Steve Broach (@SteveBroach) has suggested that sick and/or disabled people should explore potential judicial review with solicitors – especially after the DWP announced that people on sickness benefits were “to be offered work experience to help them back into a job”.

The DWP’s announcement last month stated: “People on Employment and Support Allowance (ESA) who have been assessed as being able to go back to work at some point are placed in the Work-Related Activity Group for the benefit and are expected to take part in activity which helps them prepare for a return to employment. One of the options available to them will now include voluntary work experience.

“Having taken into account an individual’s circumstances, a Jobcentre Plus adviser or Work Programme provider may feel that an appropriate mandatory work placement – which must be of benefit to the community – would be helpful.

People who fail to carry out any agreed work-related activity without good reason may face having their benefits sanctioned. The sanction will be made up of an open-ended period which is lifted when the claimant meets the requirements, followed by a short fixed period of 1, 2 or 4 weeks.”

The sticking-point would be the cost of bringing a judicial review – in the region of £10,000 to £20,000 for a straightforward case; higher for a more complex matter. If the claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. “They are therefore looking at a legal bill of upwards of £30,000 if they lose, and they must be prepared for this eventuality, bearing in mind the unpredictability of judicial review proceedings and costs orders,” Mr Miller told me.

Also, of course, we know that David Cameron has vowed to crack down on appeals that delay new laws, planning decisions and policies, and this could potentially be extended to human rights judicial reviews, since his has government already made substantial cuts to legal aid.

What do you think? I’m really interested in hearing what readers think about this.

Could you mount a judicial review, if a decision was made to force you into a work placement and you thought it would harm your health?

What about those of you in the legal profession? You should understand the current situation – regarding the cost of legal action – better than anyone else – is it realistic to expect people on sickness and disability benefits to finance expensive court cases?

If not, what other possibilities are available?


  1. colin January 4, 2013 at 4:54 pm - Reply

    theres a strong possibillity that sick and disabled people go out on the streets and stop all majore roads and rail networks around the country and then ask the population what they think of loosing there income…but knowing the police and government they would proberbly send in the riot police and fire hose us ….cuss thats how sick they are. well you sick and deluded leaders of our government the best way to hurt someone like you is to hit them where it hurts the most ….IN YOUR POCKETS so all your industry friends come and tell you they cant afford to give you your backhanders just remember you lot started it ….and it wont be the first time you underestimated the so called lower classes of this country oh and mr cameron F*CK YOU.

  2. cally January 4, 2013 at 5:09 pm - Reply

    Anyone who has been sanctioned for not consenting to go on the Nazi Work Programme or have lost Disability benefits should all take IDS to a Small Claims court for money he has denied them from the National Insurance ACT. He and his team have broken that CONTRACT. Under Common Law he has also caused people LOSS of income and emotional HARM.

    • PRISCA FURLONG February 5, 2013 at 9:22 am - Reply

      This sounds feasible – what do friendly lawyers think? Answers please…

  3. shirleynott January 4, 2013 at 6:02 pm - Reply

    Could there be such a thing as a jointly-made judicial review? As you will see from this question, it’s not from someone with a legal background.

    • leonc1963 January 4, 2013 at 7:45 pm - Reply

      Yes I believe a Judicial review can be brought jointly from say a section of disability claimants, however all the disability claimants I know off just do not have the finances to bring such a case which is why the cutting of legal aid is so wrong as it bars us from the courts which I thought was a human right.

  4. chriss mc January 4, 2013 at 7:30 pm - Reply

    what about a kind of class action, with as big a group/orgs etc. as possible sharing costs?

    • shirleynott January 4, 2013 at 9:06 pm - Reply

      That was the kind of thing I was thinking of – a very large group of people pooling their resources – it just sounds unlikely logistically, leaving aside any other considerations. It’s something that’s affecting large numbers of people who feel much the same way (hence the WOW petition/FOI requests etc.) – there ought to be a way for a legal ‘mass fightback’ but is there really?

  5. leonc1963 January 4, 2013 at 7:46 pm - Reply

    Reblogged this on Diary of an SAH Stroke Survivor.

  6. Martin Kroupa January 4, 2013 at 8:25 pm - Reply

    I’ve read somewhere the Human Rights say all people have the right to live a decent life; socially, politically and economically and no one should be discriminated against. I know that this would be hard to achieve in so called developing countries, but how about in the UK? It’s said to be one of the wealthiest countries, and still, it treats vulnerable people like piece of shit. What kind of regime allows this! A lie-full propaganda of the UK Government about a good welfare state that looks well after it’s citizens is being spread abroad at the same time.

  7. Martin Kroupa January 4, 2013 at 9:11 pm - Reply

    DWP is a government agency. I do not think it’s possible to sue the Government. I have previously addressed EU organizations in a different matter and was told they had no right to intervene into jurisdiction of statutory organizations of a sovereign state. European Commission stated they would have more powers in three years, I doubt it. UK people don’t want to be governed from Brussels anyway. I am not sure about the UN,

    • Mike Sivier January 4, 2013 at 9:24 pm - Reply

      There was a judicial review against the DWP in 2012, Martin, and the government lost!
      The trouble is, it was misreported by the press, and the simple fact is the judge found in favour of the individuals concerned – not that the entire policy was wrong.
      But the principle remains that you can challenge the government in the courts.

  8. Peter Farrington January 5, 2013 at 7:22 am - Reply

    Been there done that in terms of taking the DWP to the courts via Judicial Review a few times now re my DLA and also had a Review heard against my local County Council in respect of charging for care and even had one of my DLA cases referred to the European Court of Human Rights albeit that resulted in the DWP relenting at the 11th hour. In each of these cases I acted for myself as a litigant in person and other than my own costs for photocopying etc were relatively low as I did all the preparation myself and even qualified for the inintial court fees to be waived due to low income so this is possible to do on a shoestring.

  9. Suzy January 5, 2013 at 5:32 pm - Reply

    I am a single mother with 2 children and have lived with bipolar since my teenage years. I was always in work (in the legal field) until 1999 when I was attacked and have never worked again as I then suffered from PTSD but my bipolar became much worse.

    I am on so many tablets my body must rattle. I receive Income Support, Incapacity Benefit, Child Tax Credit, Child Benefit, Housing Benefit and DLA.

    When I feel ‘well’ I volunteer for Marie Curie as I hate not being able to work. Even that can be hard sometimes but fortunately all the fundraising staff at Marie Curie are aware of my condition and are grateful for any help I can give.

    I have studied on and off with the Open University since the year 2000 and managed to pass some more legal units – Employment Law being one unit. Having studied and kept up to date with employment law, I am well aware of my rights and that is that I won’t have any employment rights until after 12 months of being with an employer. Also, what would I say to any prospective employer? Obviously I have to be honest and admit my disorder but then I would have to go on and say that I could not promise that I could work 9 to 5 Monday to Friday, I could not promise I could work part time Monday to Friday. In fact, there may be days, weeks or months that I could not work at all! What employer would want me?

    I will obviously at some point be moving onto ESA and my stress levels regarding this are horrendous as I have the ‘unseen’ illness.

    I will fight though, god willing!

  10. cally January 6, 2013 at 12:32 pm - Reply

    If not the g/ment then you can take IDS himself to a Small Claims court. If you lose it will cost you £25. This is for small amounts under £5000, I believe. He will be approached to give his version of events at the very least. Should keep his office staff busy for a while.

    I’m hearing that any sanctions also mean Housing Benefit loss. If many people individually submitted Small Claims action against him for just the 2 weeks/3 months/6months sanctions, plus rent, that they have been refused up to date. Or for the amount equiv. to Disability/Sickness benefits they have been denied. Continually, for each and every sanction. They can’t possibly ignore it. Remedy will be seen to have been sought.

    Theoretically you can’t lose. He and his dept. have broken the National Insurance CONTRACT. The means of delivering on that INSURANCE contract for the associated living expenses/rent/healthcare have been in many different forms. JSA, ESA etc is the latest delivery mechanism for this insurance scheme.

    The requirement to be actively seeking work was already in place. But the latest additions/amendments to demand that people also enter some Work Programme placement was added later. It was not agreed to, there was no consultation and therefore the move is totally unnacceptable. Esp. in a time where jobs are even thinner on the ground than previously. At this point it amounts to slavery. NOT what we paid in our Nat Ins contributions for.

    As a Jobseeker’s ACT it requires people’s CONSENT. To force anyone into the extra amendments without their CONSENT is – unlawful. Once consented to it then becomes a contract. Between g/ment and people. It then carries the ‘force of law’. For BOTH parties. This is where IDS and his DWP are acting unlawfully.

    If you came to claim on your Car Ins. and they replied they only covered the first few months of the year or greatly reduced the amount you were due then you would complain that they had reneged on the original contract and then sue them.

    We didn’t need any Judge to declare the Work Programme to be lawful when we already knew it was unlawful.

    Don’t let them tell you there is no money, they have managed to borrow newly printed notes from the B of E Central Bank to give to bankers and they have had no problem spending it. Even tho they were the reason we needed to borrow in the first place. Which we the people have to pay back for them, with interest …

    That is, we had to borrow enormous sums from a bank, to put back the money the banks stole from us in the first place. With enormous interest. Yet the people who are going to be paying back that debt – let’s place it’s imaginary nature to one side for a minute – are denied the basic living amounts necessary to subsist on …!!!

    This Small Claims option should at least be tried. If g/ment aren’t seen to be following contractual obligations then – why should we the people? Why should we ever pay in Nat Ins contributions – ever again?!

    This is just such a domestic remedy as mentioned above. This judicial review doesn’t appear to take into account those suffering on the Work Programme, a place where the sick and disabled are already being steered into, once they have been considered fit to work.

    Now that you know HB is also witheld in these time periods and you will also face Possession Orders from your landlords, even HA/Council landlords – What more can you lose?

    Tho I don’t have much faith in Barristers or the UN, actually. They’re all playing the same game with the same goal. To bring us to our financial knees so will accept the EU and euro.

    Seek further advice from Common Law advocates, they will tell you the truth about contracts and statutes – which are not ‘laws’. Solicitors will NOT. Consult with sites like TPUC.org in the first instance. You will see our system of ‘law’ in a whole new light.

    It will be down to the people themselves to put IDS on the hook.


    • Mike Sivier January 6, 2013 at 12:49 pm - Reply

      I edited one sentence of this to prevent a potentially libellous assertion.

    • shirleynott January 6, 2013 at 2:00 pm - Reply

      Really interested to read your comments. Thank you.

  11. cally January 6, 2013 at 3:33 pm - Reply

    K Mike :)

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