About the Judicial Review of the Work Capability Assessment

Via The Mental Health Resistance Network.

On 15 and 16 January 2013, the Upper Tribunal is due to hear a claim for judicial review brought by two disabled people supported by the Mental Health Resistance Network. They are arguing that the Work Capability Assessment discriminates against people with impaired mental, cognitive and intellectual functions (called “people with mental health disabilities” for short), and that the DWP should make adjustments to the Work Capability Assessment process to minimise the disadvantages that people with mental health disabilities face in being assessed for ESA.

The reason that the ESA process discriminates against people with mental health disabilities is that the process requires ESA applicants to self-report how their ability to work is affected by their disability. While this is challenging enough for many people with physical disabilities, it can be a distressing, and sometimes an impossible task for many people with mental health disabilities. This is because some people with mental health disabilities do not always have insight into their condition, and others may find it difficult to articulate the effect of their disability on their fitness to work for reasons of shame or otherwise. Furthermore some mental health disabilities are complex, fluctuating, and often hidden, and these are by their very nature difficult for Atos Health Care Professionals (who are often not doctors and in general have no expertise in mental health) to properly assess at a short face-to-face assessment. In addition, people with mental health disabilities are often particularly vulnerable to the stresses of the assessment process itself, and often cannot cope with marshalling medical evidence explaining their condition. This means that they face substantial disadvantage as a result of the way in which ESA claims are processed.

What the claimants hope to achieve by bringing the case is to force the DWP to change their procedure for obtaining of medical evidence in ESA claims by people with mental health disabilities. The DWP’s current approach is only to seek further medical evidence in very limited circumstances. However the claimants’ case is that such evidence should be requested by the DWP in each case where an ESA claimant’s disability relates to their mental rather than their physical health.

So the claimants will be asking the Upper Tribunal to order that the DWP always seek further medical evidence in the case of a person with a mental health disability, by approaching a nominated health care professional or by inviting an ESA claimant to nominate one; and that this must be done before the claimant is required to complete an ESA50 and face-to-face assessment. The idea behind seeking further medical evidence at the beginning of the claim is so that it can be used to inform the DWP (a) whether to require an ESA50 or a face-to-face assessment (b) whether there is a risk of substantial harm to the claimant’s mental health, if they were found fit for work or work related activity; and (c) whether the claimant should be found eligible for ESA.

The Upper Tribunal’s decision is not expected to be given until after the case has ended.

The case is a compromise as far as many people are concerned – we would like to have brought a more fundamental challenge to the Work Capability Assessment, but this is all the lawyers thought we could realistically achieve – we have managed to get to a trial, even though the Government has tried to get the case thrown out and has fought it every step of the way.

Even if we don’t get everything we want from the case, we hope that it might make things a little better for some of our friends and relatives and neighbours who are presently suffering with this unfair and inhumane procedure.

Whatever the outcome of this judicial review, we will continue to campaign against what we all know to be a sham of an assessment.

A vigil will be held outside the Royal Courts of Justice near to the Upper Tribunal Courts on Wednesday 16th January at 12 noon by the Mental Health Resistance Network, supported by DPAC and other mental health and disability campaigning organisations. We have invited various political figures who have an interest in mental health issues and concerns for people who are living with mental health problems to speak at the vigil. People living with mental health problems will be asked to speak about their personal experiences of the WCA process.

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