DWP allowed to appeal against ruling that ‘fitness for work’ test is illegal

All rise: The British court system is supposedly the best in the world - but can we trust it to make the right decision when it is the government that is appealing against a ruling?

All rise: The British court system is supposedly the best in the world – but can we trust it to make the right decision when it is the government that is appealing against a ruling?

It may have taken almost a month and a half, but judges have agreed to let the Department for Work and Pensions appeal against the judgement that the work capability assessment discriminates against people with mental health problems.

According to the Mental Health Resistance Network the DWP was denied permission to appeal on the first attempt.

Iain Duncan Smith’s lackeys then resorted to a second route – applying directly to the Court of Appeal – and it was this court that granted permission.

A spokesperson for the Mental Health Resistance Network said: “This is not the news we wanted, but the Tories were never going to give up without a fight as they are desparate to destroy our welfare state.

“Needless to say we will be fighting back.”

Vox Political was one of many who reported, back in May, that a judicial review had ruled that the work capability assessment actively discriminates against the mentally ill.

The tribunal found that, no matter how ill or even delusional a person may be, the system places on them the responsibility for gathering their own medical evidence and sending it in – otherwise the material will not be considered.

For the DWP to win at appeal, it will have to prove that this is possible for anyone, no matter how severe their mental illness may be.

The current system, for which the DWP lost the judicial review, means that paperwork sent in by anyone else on behalf of a patient with mental illness may be ignored and their ability to work judged using evidence from a 15-minute interview with a stranger who is unlikely to have had any mental health training, and who has no idea what expert opinion has to say.

Vox Political said at the time that we all knew Iain Duncan Smith would not accept this. That prediction has been borne out by current developments.

Paul Jenkins, CEO of Rethink Mental Illness, said after the tribunal decision that it meant the government should halt the mass reassessment of people receiving incapacity benefits immediately, until the system is fixed.

Does anybody think this has happened?

If not, then the government has been acting illegally for almost a month and a half. It is to be hoped that the appeal tribunal takes this into account when considering its decision. If assessments have continued, then the DWP has shown flagrant disregard for the legal process.

Such behaviour would also add emphasis to the Black Triangle Campaign’s comment in May, that the assessment system was “completely at odds with the government’s repeated insistence that mental health is a top priority”.

The campaign’s spokesperson said it was “sad that it took a court case to force the DWP to take action”.

It’s even more sad that the only action so far has been an appeal against the decision.

Some commentators speculated that Iain Duncan Smith might introduce retroactive legislation to re-legalise the work capability assessment – as he did with workfare after Cait Reilly and Jamieson Wilson won their cases against the department.

Unfortunately for him, the current controversy involves a breach of the Equalities Act, which has far-reaching effects.

If he tries to repeal it, we’ll know two things for sure:

1. Iain Duncan Smith is a dangerous fool.

2. The Coalition government has no respect for the rule of law.

To be honest, we knew both of those already.

40 thoughts on “DWP allowed to appeal against ruling that ‘fitness for work’ test is illegal

  1. Pingback: DWP allowed to appeal against ruling that ‘fitness for work’ test is illegal | Street Democracy - where it should reach

  2. nuggy

    if they have been doing this illegally then can be prosecuted and i have heard there are plans for this to happen.

    1. natasha

      I didn’t realise it had been ruled as illegal and I was assessed less than a month and a half ago. it caused me a great deal of stress and anxiety. Mine is mental health. Can I really sue?

  3. Steven

    Sadly if the judges find against the Government then we all know what the likely outcome will be: the Government will simply use retroactive law to make the assessments legal.

    I think we all knew when the Government passed the retroactive legislation to overturn their defeat in the Workfare case that they have no respect for the rule of law.

  4. Workhouse

    Ian Dungcan Snifffy issued a statement to cover the announcement, saying…..

    “Aaaahhhh I love the smell of retroactive law in the morning!”

    Rumours that he has to have a £39 breakfast before he can enjoy the smell of retroactive law, have yet to be confirmed.

  5. Gen William Taggart

    Why is everyone missing a very important point here? the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) Regulations 2010 did not resolve an underlying problem that arose in the changes from the 2007 regs.

    Originally qualifying incapacity claimants would have had conversions (migration) applied to their claims. The Conversion process actually declares the claimant by the existence of their existing claim as having ‘limited capability for work’.

    Why was this required?

    The Right of Supersession (Social Security Act 1998). Under which (where an existing benefit award is in place) this must only be amended by means of a supersession.

    However there is a further problem, since the Right of Supersession cant be repealed,

    What is this problem?

    Well this is the part that the Rt Hon Iain Duncan Smith MP and the DWP would prefer you did not know. As it shows they have been willingly committing fraud.

    Under the Right of Supersession, When an existing award of benefit is in place, the ‘onus’ is ‘upon the state’ to prove ‘non’ entitlement. However the ESA50 questionnaire/Work Capability Assessment places this onus upon the claimant, therefore it is in err of law.

    This cannot be challenged without throwing out the Welfare Reform Acts and repealing the very infrastructure of the the Welfare State.

      1. confused

        DWP decision makers guide available here: http://www.dwp.gov.uk/publications/specialist-guides/decision-makers-guide/

        in Chapter 1 (http://www.dwp.gov.uk/docs/vol01.pdf)

        “Burden of proof
        A clear understanding of where the burden of proof lies helps the DM to weigh the
        evidence and decide whether further evidence should be sought. DMs should note
        1. initially the burden lies with the claimant to prove that the conditions for a
        claim or application are satisfied1
        but they should do as much as possible to
        ensure that the claimant has every opportunity to provide all relevant evidence

        2. where they wish to show that an exception to a condition of entitlement is not
        satisfied, the burden of proof rests with them”

        I wouldn’t be remotely surprised if its sloppily written or legally incorrect,but they seem to say its your responsibility to prove eligibility, and theirs to prove ineligibility

  6. confused

    Given that the assessment was deemed to be illegal in May, what is the impact of that on anyone with an ongoing appeal that was lodged before May?

    I was assessed in Jan, (for MH conditions) and have had an appeal in since shortly afterwards, I’m currently in the long wait to Tribunal stage of the process.

    Logically it would seem that any relevant cases that were active appeals when the judgement that the assessment was illegal were made should be affected by that judgement too?

    Or am I being naive expecting logic and common sense to play any part in the whole process?

    1. Mike Sivier

      I’m sorry but your last paragraph seems the most likely.

      You could certainly make a case that your appeal should be upheld as the assessment system was found to be illegal in a court of law, and that the government has been acting unlawfully in failing to declare this fact in a timely fashion and provide the benefit to which you would be entitled.

      1. confused

        I thought that would probably be the case, I’ll send yet another letter to the Tribunal people.
        Thank you for the clarification, this blog and others like it have been a huge help.

  7. Miss Mary Murphy

    I have appealed against ATTOS twice now and won both times.The system is deeply flawed and a tragic waste of public money. I’ll be reattacked in 2 yrs time

  8. Pingback: DWP allowed to appeal against ruling that ‘fitness for work’ test is illegal | johncresswellplant

  9. nick

    only a police warrant will stop IDS from harming sick and disabled people or stressing them till they die nobody else can
    you see in IDS’S twisted mind he thinks he’s helping them and on that basis could go on to kill thousands more then he has done already

    If you look at his rhetoric up to now only Hitler had the same rhetoric but in the end committed suicide saying one thing that the sick and disabled were ok but were not they had died in their thousands behind closed doors and it was only after the German public realised what was going on that Hitler knew his come was up and the rest is history

    Sick and disabled people die every die in the uk some by normal means others by government pressure put upon them being taking their benefits away so they starve to death and others placed under so much stress they commit suicide


      I totally agree with this as it is a fact that HITLER wiped out many tens of thousands of his own people before the war. the reason? they were either mentally ill or disabled and in institutions, hence “useless” in society. yet these were fellow human beings, have we learnt nothing in all these years ? people have already died because of these “rich boy” policies, food theft is up by over 40 percent in some areas and food banks are springing up like pound shops all over the country. we are one of the top ten richest countries in the world and this should not be happening.

  10. Pingback: Mental health, WCAs, PIP and the DWP appealing judicial decisions | Blog | False Economy | Launchpad: By and for mental health service users

  11. Alejandro Kelevra

    It doesn’t matter what your health problem is, physical or mental, they will declare you fit no matter what, I have 2 herniated discs in lower back and have had to attend ‘summer school’ for basic english and maths (i already have o’level in both and a-level in maths) and I also have been diagnosed with ‘Horners syndrome’ and cluster headaches, and after xrays, blood tests, CT scans, I am presently awaiting my next appointment with the neurology dept. I am declared ‘fit for work’ because i could lift my legs at an ATOS medical. The fitness test was a case of lying on a bed with and lifting 1 leg then the other. The doctor could not speak English properly and I struggled to understand him and he struggled to understand me. I will now be reassessed in 3 month although my health will never improve only deteriorate. They refuse me DLA or mobility even though I have problems walking, because my condition changes day to day.Is it because I’m white?

    1. Mike Sivier

      As a fellow sufferer of cluster headaches, you have my complete and utter sympathy.
      Please read my current article on the Work Capability Assessment call for information – go to the webpage I indicate, fill in the form, and hopefully you can make a difference. I’ll be publicising my response, hopefully later today.

  12. Pingback: DWP allowed to appeal against ruling that ‘fitness for work’ test is illegal… | Atos Victims Group News

  13. mark

    how come people all over the world have been on the streets trying to get the government to see them but U.K is asleep nothing is done .it is all very well doing it online but there must be another way that will get there attention and not just brush the people off. they don’t care what anybody has to say,unless you are rich and agree with them,a,very sad state of affairs.This country is getting to be like everywhere else which means it is going downhill quickly.People used to care about other people now it is just money they care about..

  14. Nick

    the majority of people in the uk would never ever dream of talking to a disabled person let alone helping one

    the uk is a insular country made up of the likes of the royal family and the likes of David Dimbleby a British BBC TV commentator and a presenter of current affairs who in reality know nothing on the topic of welfare and sickness and disability

    Royals ignored Queen’s disabled cousins for 50 years SO THEIR YOU HAVE IT
    That’s your country and if your sick and disabled the bottom line is your in trouble and will need to fight till you’re death for everything from now on

    And that is how IDS and the likes see it you will never win and he will go on and on and if not him the next in line will go on and on till your dead pure and simple

    1. Mike Sivier

      I’m not disabled, and I’m quite happy to stand up for people who are.
      In fact, my response to the WCA call for information is a full-on example of that. Hopefully I’ll be putting it up, for information, later this evening.

    2. Clutter

      Blimey! I don’t think its quite so bad apart from what you said about IDS, of course 😉

  15. nuggy

    as they are openly breaking the law maybe citizens arrests and private prosecutions might be the answer.

  16. Larry Donovan

    the supposedly mentally ill claiment, should have an assessment with a trained specialist. the specialists final report should stand.
    some claiments wouldn’t be able to build case files alone.
    On the other hand there are a large amount of elegal claims being made.
    it is near impossible to tell who is genuine.
    there is a limited amount of funding.
    if this government has to pay money above this targeted budget.
    other departments and many other people will have to go without.
    with the economy already near breaking point
    it’s unfair to put more pressure on

    1. Mike Sivier

      How many illegal or fraudulent claims do you think are being made – in percentage terms?

      According to government figures, the total number of fraudulent ESA claims is around 0.4 per cent of the total – one claim in every 250.

      It accounts for £1.2 billion of spending in a benefit bill of more than £100 billion – more than half of which goes into pensions. £19 billion is being spent on the Coalition’s welfare ‘reforms’ – paying private companies to line their pockets while pretending to find jobs for people who are too sick or disabled to work.

      As I’ve written before, I’d rather put up with wasting £1.2 billion – and relying on local fraud detection – than wasting £19 billion on pointless schemes that don’t work and, in fact, do nothing other than put taxpayers’ money into the pockets of the undeserving rich. If there is a limited amount of funding, this is where the waste can be found.

      So yes – let’s be reasonable about this, and put the blame for the wasted money firmly with the ministers at the DWP, where it belongs.

      Oh, and it isn’t near-impossible to tell who is genuine. I used to work in the fraud section of the old Department of Social Security, and detection rates there were near 100 per cent. You’ll be amazed how easy it is to find a fraudster when you put some effort into it!

    2. Clutter

      Let’s not be reasonable. People who are not fit for work are seeing their health deteriorate and breakdown under this brutal system. 12,000 people are estimated to have died since 2012 within days and weeks of being found fit for work. DWP don’t record suicide figures.

      Reasonable would be protecting the sick, disabled and vulnerable. If reasonable can’t be afforded then the millionaires tax cuts should be clawed back and used.

  17. Ian Duncan Smith

    You can abuse your powers and change as many laws as you like IDS!
    But you can not change international laws especially Article 22 Section 1 of the United Nations Universal Charter of Human Rights that the UK is signatures to, being just one of them!

    We are not just coming after you, but all your minions that followed your orders and abuse of power without question of the legality of these actions! Right down to Job Centre managers and staff!

    You will ALL be held to account!

    Every – single – one – of – you!

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