Judges find DWP ‘fitness for work’ test breaches the Equality Act and is illegal

Despair: It's what many people who have mental illness feel when faced with the DWP's Work Capability Assessment regime. Now there is a light at the end of the tunnel.

Despair: It’s what many people who have mental illness feel when faced with the DWP’s Work Capability Assessment regime. Now there is a light at the end of the tunnel.

A judicial review has ruled that the test used to decide whether people are fit for work actively discriminates against the mentally ill.

The tribunal concentrated on the issue of supporting evidence, and found that – under the current system – no matter how ill or even delusional a person may be, they are responsible for gathering their own medical evidence and sending it in. Otherwise, the material will not be considered. For someone with a severe mental illness, this may prove impossible.

Paperwork documenting a patient’s history of mental illness may be ignored and their ability to work will be judged using evidence from a 15-minute interview with a stranger who probably has no mental health training and no idea what the experts have to say.

Reporting the victory, the Black Triangle Campaign wrote: “The judgment that the DWP is in breach of the Equality Act is a huge victory for everyone affected by severe mental illness, but it’s sad that it took a court case to force the DWP to take action.

“What makes it even harder to stomach is that it’s completely at odds with the government’s repeated insistence that mental health is a top priority… they are penalising the very same group by forcing them through this discriminatory process, which is putting lives at risk.”

Paul Farmer, chief executive of the charity MIND wrote: “The judgment is a victory, not only for the two individuals involved in this case, but for thousands of people who have experienced additional distress and anxiety because they have struggled through an assessment process which does not adequately consider the needs of people with mental health problems.”

And Paul Jenkins, CEO of Rethink Mental Illness said: “Now that the court has ruled that these tests are unfair it would be completely irresponsible to carry on using them. The Government must halt the mass reassessment of people receiving incapacity benefit immediately, until the process is fixed.”

We have yet to hear what Iain Duncan Smith has to say. Don’t hold your breath; you know in advance he won’t accept this.

81 thoughts on “Judges find DWP ‘fitness for work’ test breaches the Equality Act and is illegal

  1. Roger Cook

    this is genuinely great news, the danger was twofold not just of failing a paperwork test but of being over-optimistic in their replies and trying to say what they thought the interviewer watned to hear

  2. Phil The Folk

    This is great news and confirms what I have been saying, and complaining about since 2007!! May Smith’s world tumble down around his ears!!

  3. No job, no benefits, no income for a whole year. Thanks, Cleggy.

    The unelected billionaire junta will just retroactively change the law again.
    Still, a moral victory, even if futile, is a welcome respite from the regular grinding, escalating, procession of “common sense” fascist evil that we otherwise endure daily.

  4. Andrew Kennett (@stormkeeper)

    Sadly, I expect IDS to completely disregard this ruling… his head is so far up his posterior he can’t seem much else but his own excrement. But perhaps he might listen to reason… I won’t hold my breath though, considering his past behavior.

    1. Derek Robinson

      If he can get away with it he will. He may change some laws retrospectively. He’s got away with it once and the judge just rolled over, you would think they would say more publicly about it but they lack the courage..This allows the excuse for a man to be a law unto himself and he and the government has show time and time again how weak and flawed our so called democracy is in reigning in total excesses.
      He should be pulled in front of another committee, not that they have bugger all power to force any reversals.
      He his already due one over the Statistics body complaining of his lies.

  5. Michael Henderson

    Its brilliant news I’ve experienced this vile system myself so I know what its like…..the DWP are appealing the ruling though, its not over yet but defo a step in the right direction! Just gonna hope and pray that the government fail to win the appeal 😀

  6. reecemjones

    I really hope this leads to something, even if its just growing evidence that the people in charge of the DWP don’t know their arse from their elbow.

    I fear all it will do is have MPs in a tizzy complaining about ‘disruptive elements of the judiciary system that hinder the governments work’ like they always do.

  7. anicoll5

    Lawyers for the DWP, reportedly, intend to appeal against the Tribunal’s judgement.

    1. laura jay

      that all they ever do when things dont go their (the governments) way, if they stopped doing that how much tax payers money would be saved? id rather see the public purse spent on those that need it not on fighting battles they wont win or giving themselves a 20 grand pay rise!

  8. Jurgen

    David Freud is the cancer at the heart of the DWP. Unelected and uncaring he does the terrible things he does out of vanity and… who knows why people do evil things?

  9. juba

    just sent my daughter’s form in – she has Down’s Syndrome – she expected to do this herself?

    1. Mike Sivier

      I sent my girlfriend’s in yesterday. She has depression/anxiety/panic attacks and can’t do it herself so I don’t see why your daughter should have to at all!

      1. Donna Hunt

        my partner also has this and my daughter,my partner is also waiting to see if he has adult autism ,he never won his case with the accesor so appealed,he also lost his appeal,we took his case to a solicitor and he is awaiting there reply as he has asked for his case to be set aside due to them not letting me talk on his behalf and I was put down as his appointee,my partner is like your girlsfriend,they cant describe how they feel from day to day as its all diff,also cant fill out forms ect and the panic attacks he took while going into these rooms with these people was shocking as not one asked him if he needed a drink of water or help,one even helped him off with his jacket that was the first accesor she didn’t note it down or nothing told lies ect ect ,we received a letter saying he didn’t pass the appeal and his benefits has been stopped,then the following day we received another letter saying they changed there minds and have now ruled in his favour,on phoning the dwp they told us it was a mistake and he should never had received that letter lol,confussing but true,my daughter in her case went to the appeal after also failing the accesment and passed lol she has the exact same as my partner ,pathetic what there doing to the people with mental health problems shame on the government,i hope your gf case goes well and she passes good luck xx

    2. Ken Webb

      I wish I could find the post or remember where I read it, but one mother had to take her daughter to a medical examination, upon entering, and without looking up, the examiner said something like……you have been asked here to see if your daughter still suffers from Downs Syndrome……. Beggars belief what these so called experts get paid for.

      1. Mike Sivier

        I mentioned it in passing on this blog a while ago – by which I mean quite a few months past. I may have the reference somewhere but don’t hold your breath waiting for me to find it. It might have been on Dispatches or Panorama, when they did their big stories on ESA in July last year.
        You are absolutely correct that it was said.

      2. juba

        Sadly this doesn’t surprise me – I have made several comments within the form that if you’re born with an extra chromosome, you die with an extra chromosome and carry it with you right through the journey!

    3. June Allison

      They know very well that a child with Down’s Syndrome cannot fill those forms in. (I know from experience) they always have that extra chromosome. They do not understand the forms. Those so called experts are not expert in anything but lining their own pockets. and idiots to boot. You have a lovely child who is loving and caring and will always be a source of joy to you and yours. Now for my gripe…The Government should be dissolved by The Queen, Atos and the DWP should be closed down and all those G’ment Ministers should be made to stand in front of a High Court, money they have claimed as expenses and pay rises should be paid back to the people they have taken it from and then the Ministers should serve a lengthy time in prison for all the wrong they have done to the people of this country…They are all Sociopaths who need Psychiatric Treatment

      1. juba

        Well given the cost of court cases – on that point practically no-one has the money.

        On the point of what charges I can think of a whole lot of things but they probably don’t fit any legal challenge. They are already ignoring the human rights act. They are breaching the DDA too – where are the reasonable adjustments requirements on ATOS – which is based in public buildings that are not accessible. And accessibility is not confined to wheelchairs – my girl needs simple language, more time to understand, short sentences with one idea and so on and on and on. They are not making stuff accessible to her and her friends. Off the top of my head …

      2. juba

        Thank you June – it is an accident of birth that could happen to anyone and is a life sentence for the parents because you are continually having to fight all kinds of institutions – local and national.

        My girl actually reads quite well – I taught her to read before she could talk – that is she decodes well – comprehension is another matter. Then they say you have to sign it even if someone else fills in it!! You have to have it read to you if you can’t read.

        Well I signed it as her appointee and told them that she was not able to sign as she had no clue what it was about, what the legals meant etc etc and no-one should sign something they don’t understand. Waiting for them to shoot me down.

        A small shot across the bows – but pointed and specific. Though I think an appointee is allowed to sign – it doesn’t make that clear I think.

  10. qashie j

    I can foresee that this shower of government Idiots will over turn these judges within the next month or so? it may well be short lived but hey lets makes the most of it while we can?

  11. pat

    “””access to justice is under threat. The government is planning a fresh assault on what’s left of legal aid. Under their proposals people will no longer be able to choose the lawyer who represents them – instead they will be allocated the cheapest lawyer the government can find. Tomorrow is the last public event where we can make our views on this heard.

    Cut-price justice is no justice at all. These plans turn a fundamental human right into a cost-cutting race to the bottom.

    And the race has some pretty surprising competitors: current contenders who’ve said they’ll bid for the contract include the trucking company, Eddie Stobart, and G4S, the security firm who botched their job at the Olympic Games. Not to mention Serco, who rely on tax havens to hide the huge profits they made from delivering public services.”””

    38 degrees don’t have long – the petition is being delivered tomorrow. Click here to sign it now:

    1. Derek Robinson

      Only thing he ever learnt was to mislead, lie and being a professional scrounger.

  12. Viv

    Fantastic news, For a person to appeal the outcome of being assessed can be upto and over a 9 month wait. More mental torture. Lets hope this appeal takes twice as long and then gets through out of court. 🙂

    1. mike pg

      The DWP will use the appeals process as an excuse to continue with the present system, so let’s hope it is a very short time before their appeal gets thrown out of court. Now a case needs to be won that legally recognizes the fact that the WCA is not fair to anyone and a deliberately designed underhand means of finding people fit to work who are not, and will end up without any benefits at all as they won’t be able to fulfil the criteria necessary to receive even JSA.

  13. Mike Sivier

    This is off-topic but worth putting here because this article is proving popular: Please sign my e-petition on the government’s website, calling for MPs to be banned from speaking or voting on matters in which they have a financial interest – to take the corruption out of Parliament, in essence. The only tenuous link with the subject of this article is that it would stop this government from thinking it can do whatever it wants with impunity. Please sign.

    Here’s the link: http://epetitions.direct.gov.uk/petitions/44971

  14. julie.walsh

    I have mentle illness & a condition called pmdd(extrem pms,where women have been known to kill whilst suffering pmdd).you can see a physical illness,but mentle illness is not that easy.i am due for one of these so called medicals & its extremly upsetting me.i just don’t no what to do.i struggle sone days more than othere’s.do the dwp honestly think that if we had a choice in the matter would’nt to be mentally ill.we can’t help it.some times i wonder if they woukd pass the test.most of them are insane for even making take these test’s

  15. Anonymous

    One of the problems is people don’t like to admit when they have mental health problems. As a person who’s had depression there was a long delay in going to the doctor because I thought I was just being stupid and that I was feeling bad because I was a horrible person who didn’t deserve help. It is really difficult to appreciate what depression feels like as opposed to normal sadness. Normal sadness doesn’t make you feel like you deserve it. My work involves a lot of thinking and I previously thought I’d be fairly immune to the effects of physical illness because my work was mostly mental. I learnt how this idea was wrong and have a new appreciation of how important it is to have empathy with those who illness happens to because it could be any of us.

  16. Norman Walsh

    The soldier killed today having to wait 30 minutes for the police to turn up!!! Surely down to cuts by this I mind our money for us Tory scum government Tories only care for them rank and file don’t matter

    1. Mike Sivier

      I’ve been wondering whether to write a piece about the atrocity in Woolwich today. It does seem to have been politically-motivated. Not sure I’d have much to say, though – and would have to be very careful about how I said it!

      1. julie.walsh

        Dear mike,i have read your comments on the unfortunate victime of this horrendos crime,plz read my comments also.i have’nt got alk the facts;but i belave the two attackers have been shot by the police.do you have aby more information.i like you think tbere could be a politcal eliment involed here.hope im wrong

      2. sheikh

        sadly atos and the dwp are passing off injured british soldiers as fit for work. ATOS AND DWP DONT ” HELP THE HEROES ” . Those who treat our heroes like this are as guilty as the 2 murderers at woolwich

    2. julie.walsh

      What a sorry state of affair’s this is.i don’t want to sound uncareing about what happenend today with that poor man being hacked to death & i bo that this is going to be very contravesal of me,but it would’nt be the first time that the piwers that be have created a situation to either cause racial hatered of conspired for some poor inocent person to be fatetally injured or killed.my be im very cynical about things like this.i truely do feel genually sorry for the family of the pior unfortunate man brutally killed today.you don’t often see men randimly walking about with macheties attacking inocent by stander’s or jilling some bidy for supporting some charity.i do hope im wrong about this.it is just my opinion &it does’nt take away the face that some poor soul was killed today.why did it take the police so long to respond,there wastime enough for people to film this horrific incident.we will never get the truth.just more broken lives.such a shame.

  17. sheikh

    when making enquiries with jonathan stevens ( global head of litigation at atos ) re the wca- he confirmed that atos did not have a duty of care to the person being examined.

    1. Mike Sivier

      That’s right – the duty of care would lie with the DWP, if it overrules a doctor’s decision that a person is unfit for work.
      In legal terms, Atos only makes the recommendation. The decision is made by people at the DWP (whose job title is, in fact, ‘decision-maker’.

    2. Prue

      But they have a duty to know something about common conditions as ‘healthcare professionals’. Down’s Syndrome is one of the commonest causes of learning disabilities.

      If they have no knowledge of the condition then they cannot judge a person’s capacity.

  18. Retep Reldas

    Now it would be great to see court action against the Govt and especially Ian Dunce Smith and all the other placemen personally and Atos etal with all costs against the Govt…at lkeast they will see that accountability means THEY ARE and this is the consequence….but fat chance….

  19. catwoman36

    In 2011 atos introduced mental function champions (mfc,s) to help those being assessed with mental health disabilities. Problem is no one can find any data to supporting these mfc,s are helping or not. According to dwp there is one mfc for every assessment centre. Atos refuse to supply any data and dwp say atos do not have to supply data to them either about the mfc,s. According to atos and dwp the mfc are there soley to advise the assessor and by telephone not in person. Also the mfc does not have to be qualified in mental health issues. Atos will not say what qualifications they have to have to apply nor will they say hiw many they have recruited. In a meeting they did say that if anyone with mental health issues being assessed feels that the assessor is not listening to them they can request that the atos assessor contact the mfc during the interview while the person is still in the assessment for help.(this fact is not being made public as there will be too many ppl making this request) my feeling when i read this is another scam by atos and dwp to say that they are making it easier to help ppl with mhp during the wca nothing more than a pr exercise

  20. Jurgen

    Does the DWP being found to have carried out illegal acts mean anything in our society any more? They just carry on doing it and, with some help from the Labour Party, retrospectively change the law to enable them to carry on doing it if required, just as in the Kat Reilly case.

  21. mick

    i i was ‘assessed’ 18 months ago after an overdose , after 27 years of severe depression and anxiety.
    i’ve just got another form to fill in.
    i’m not sure the accompanying letter is actually legal in my case.
    it clearly states incapacity benefit,income support or severe disablement allowance.
    they put me on esa, that isn’t listed.
    wish i knew a solicitor to see if they could force another test on me if i’m not on the listed benefit.

  22. Sheogorath

    Does what’s happening constitute any offences under the Terrorism Act 2006? I sure hope so as I want to see Cameron, IDS, et al. being waterboarded in Gitmo. Please don’t close it, Obama!

  23. UK going back to Victorian era

    I’m a mental health nurse. My friend is a general nurse and works for ATOS. I read their literature she brought home. Mental health nurses are not employed by ATOS, they are not ‘qualified’, all other ‘health professionals’ receive 3 weeks training so for me to become a registered nurse with NMC registration took 3 years – their nurses know sod-all about mental health.

    Read the Nursing and Midwifery Council’s code of conduct for nurses and apply it to ATOS and ATOS break every time in the book!

  24. james mcelhoney

    I have had depression in varying forms for 20 years. I am currently in the assessment phase of ESA and am due a WCA. At the moment my depression is severe, I can’t even get out of bed. Of course I will fail the WCA, and will appeal, but it wont make a difference. Put simply, the DWP will not believe me and despite working since 1976, paying tax and NICs I will be seen as a lying lazy layabout. After this, I will most likely slowly die of hunger and homelessness. Thank you Ian Duncan Smith for slowly killing me.

    1. Mike Sivier

      DON’T GIVE UP!
      That seems to be what they want. Why let them win an easy victory?
      If all else fails, fall back on bloody-mindedness. They’re making your life difficult – you do the same to them!
      Also, you don’t know what will happen until it does. Predicting a bad outcome and then reacting as if it has already happened means that YOU will be responsible for bringing it about. That’s not your role. Your role is to do everything you can to ensure that this government department does its job in a proper manner.

  25. Daniel greenslade

    I sustained a triple displaced fracture to the distal tibia and fibula within a year my ankle joint disintegrated and I had bone on bone arthritis… I underwent ankle fusion which failed after about sixteen weeks… I was lucky enough to have private medical assistance.. Now when I say it failed the bones didn’t knit together their was just a shadow where their should have been bone…I was in an air cast boot and still not weight bearing and on crutches..I also suffer eith mental Heath issue..despite telling them I was imminently awaiting surgery which could be in a weeks time they scored me zero points… I live in a flat on the fifth floor and she asked me if their was stairs to which I replied yes so she twisted it and said I climbed five flights of stairs daily when that is a complete lie because I use the lifts… I can’t even walk across the road without needing to rest…I’ve had my op literally two weeks after I was deemed fit for work and he wrote a letter for me stating that I underwent a massive op where by I will be non weight bearing for four to six months and unable to work for at least a year… The tribunal department dismissed this letter claiming I was declared fit for work before my surgery…this is an insult as I was in so much pain and scored zero…they did the same to my mum who has been told she can never work again as she has spinal stenosis where by three of her discs have crumbled she went in for her assessment in a wheelchair and couldn’t even stand and they deemed her fit for work..what has our greatness in Britain gone it has become an embarrassing country to live in when so many people are being let down in this way it’s a sad sad joke to live here now… She eventually won her appeal and I have mine in a couple of weeks so fingers crossed I get the help I need

  26. Mike Sivier

    UPDATE – OCTOBER 20, 2013: “The DWP appeal against the judgement that the WCA discriminates against people living with mental health problems will take place this Monday and Tuesday, 21st and 22nd October in the Royal Courts of Justice.”

    This just arrived on my Twitter feed, courtesy of our friend Samuel Miller.

    1. Prue

      It also actively discriminates against people with learning disabilities – such as Down’s Syndrome. So does the ESA form. Their big problems just don’t fit the form at all well. People with intellectual disabilities simply are ignored and so discrimation applies here too.

      And don’t say they are included in mental health! The problems are entirely different. Some people with learning disabilities may have mental health issues but having Down’s Syndrome is a genetic condition resulting in myriad physical and intellectual issues which unless you know people with it, it is difficult to understand the complete picture.

      One friend of my daughter had to go to a WCA – the assessor opened with words on the lines of ‘well we need to see if you still have Down’s Syndrome and if so how it is affecting you now’

      When does it start? At conception when an extra chromasome is pulled into every cell in the body and a health professional does not know this?????

      1. sheikh kalim

        i have a letter from the legal head of atos stating that they have ” no duty of care ” towards the person they are examining

      2. Mike Sivier

        That’s what they say – but then, who DOES have the duty of care? It can’t be the person’s doctor because the Atos decision takes precedence. The DWP? Again, they deny it. This is a matter that must be resolved.

  27. Rose-Marie Mcginn

    Lets hope the Judges remember the people pay their wages and they are there to defend the people not the government and not the nazi policies of IDS and co – how they are targeting the disabled and sick just like the nazis did.

    Judges vote with your conscience and defend the vulnerable. Be knights to protect the vulnerable and have the Government lose their appeal.

    Get the WCA scrapped as not fit for purpose and for breaching Human Rights and Disability Discrimanation.

    1. Mike Sivier

      I think that’s the ruling on which this article was based, when it was written back in May. The DWP appeal will be heard on October 21 and 22, which is why I re-posted it to Facebook and Twitter.

  28. Andy Spencer

    I have been through this also , filled in the form and was sent to ATOS who sent back their report to the DWP . The consensus was although I have very bad back problems and this also have left me with my right leg numb . This and other illnesses I suffer from the DWP in their wisdom thinks I can return out to work with the help of a wheelchair . I so wish I can return to work if I can find a job but this is not possible because of lot pain and discomfort I will be feeling it’s not possible for me to do so . I have now cashed in my pension that I had with ex employers to survive . I have always worked and been in employment for most of my working life and I never claimed a penny from the government . Now that I needed assistance I’m being kicked in the b#####ks . Politicians I think should be put against a wall and shot for they have no idea what myself and thousands are going through .

  29. Ryan

    Although it’s good news, the focus being solely on it being unfair to people with mental illness is disappointing. The entire process is nothing more than an attempt to defraud people, whatever their illness may be, whether it be physical or mental.

    The acquiescence of the Labour party on this is equally disgusting, they could wipe the floor with the coalition on this if there was any will to do the right thing, but there isn’t. They’re being funded by the same parasites in the insurance sector looking to feed off this, the excuse of it all being unaffordable is also a massive lie, as anyone aware of MMT will tell you.

    So while it’s slightly good news, we know the testing will go on, people will still be having their money taking from them, people’s lives will be still be made utterly miserable by the low-lives involved, and innocent people will be pushed to and over the edge for no reason other than lies, and politicians pandering to corporations and the petty bullies in the media.

  30. Mike Sivier

    UPDATE – OCTOBER 23, 2013: The appeal has now been heard. According to the Mental Health Resistance Network, the judges are now likely to spend the next six-to-eight weeks considering their verdict.

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