Legal challenge launched against ‘unfair’ government disability test
This is a joint post from Patrick Lynch, Disabled People Against Cuts, Public Interest Lawyers and False Economy. An article about this legal action appears in the Guardian today:
A disabled man who was wrongly found fit for work under the government’s disability benefit assessment scheme is launching legal action to try and stop more disabled people being wrongly kicked off the social safety net.
Patrick Lynch, a former social care worker who was forced to quit work because of his impairments, is seeking a judicial review of the controversial disability benefit assessment scheme run by Atos.
The Work Capability Assessment (WCA), which determines eligibility for Employment and Support Allowance (ESA) for people whose health or impairment stops them from working, is at present hugely unreliable, with many people wrongly found fit for work despite severely debilitating and in some cases life-threatening conditions.
The legal action is seeking a ruling that would require Atos, the private firm that runs the WCA process on behalf of the Department of Work and Pensions (DWP), to grant all ESA claimants the unequivocal right to have their assessment recorded and to receive their WCA report before a decision on their eligibility is made – both key safeguards against people’s health conditions being misreported or ignored altogether.
DWP research and a survey conducted by Disabled People Against Cuts (DPAC) both show widespread demand from claimants to have their WCA assessments recorded, to ensure their medical conditions are not misrepresented in order to wrongly strip them of benefits. But while the DWP granted the right to request a recording earlier this year, there are considerable bureaucratic obstacles to both securing a recording and then using it in an appeal, with Atos recently introducing a restrictive ‘consent form’ for those wanting a recording of their assessment.
The case is being brought by Public Interest Lawyers, and draws on research by Disabled People Against Cuts and the TUC-backed campaign group False Economy.
Mr Lynch wants the DWP and Atos to adopt the following safeguards:
a) Universal recording to ensure that all claimants undergoing a WCA or an assessment under the new PIP benefit system will have the right to have their assessment recorded;
b) Claimants will get a copy of the WCA report before a decision is made on their eligibility for ESA, and will have the chance to raise any concerns with the DWP decision maker;
c) The DWP/Atos will be responsible for obtaining medical evidence from the medical professional named by the claimant;
d) The DWP ensures that all assessment centres are fully accessible.
Taken together, these measures would address some of the inaccuracy inherent in the disability benefits system. Disability campaigners have raised repeated concerns over how the WCA process causes huge stress for ESA recipients, with many disabled people’s lives ruined after wrongly having their benefits removed.
Mr Lynch, now a campaigner with DPAC, was found fit for work following a flawed WCA report in 2010, before the DWP reconsidered and reversed the decision. His most recent WCA this year upheld his benefit entitlement, but even then Atos’ report of his assessment contained inaccuracies.
In bringing the action Mr Lynch notes
“Disabled people and the poor in this country have always struggled to get what they are duly entitled to. The fight must go on to address the injustice caused by this out of touch Government.”
A DPAC spokesperson said:
“The evidence is clear – more than 98 percent of those responding to our survey said they wanted their assessment recorded and that they believed it would provide a better account. However, many reported a whole host of barriers in getting a recording in place.”
A spokesperson for False Economy, whose investigations into WCA recordings informed some of the background to the recording debate, said that the rights of ESA claimants are crucial.
“Too many people feel vulnerable in this process. People feel that their final assessment reports inaccurately reflect information exchanged during work capability assessments. We've found it hard to pin down the DWP on recording policy. Universal recording, and giving people the opportunity to see their WCA reports before final eligibility decisions are made, will go some way towards restoring fairness and accuracy while the WCA process continues.”
Tessa Gregory of Public Interest Lawyers, Mr Lynch’s solicitor states:
“The Work Capability Assessment process needs urgent reform. There is an unacceptable risk of unfairness in the current system and we hope these safeguards will be instituted to help mitigate that risk.”
TUC General Secretary Brendan Barber said:
“Assessments of disability must be fair and proportionate, treat people with respect and be part of a consistent system. There is overwhelming evidence that they have fallen far short of these basic standards. It is right that they should be challenged in court.”
- Posted by: False Economy at 10:46am on 14 December 2012
- Filed under: Benefits, Legal challenge, Protest
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