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Victory as judges rule controversial disability benefits procedure is unfair

Sent today from Rethink Mental Illness, Mind and the National Autistic Society:

Wednesday 22 May 2013 – Three judges have ruled that the procedure currently used by the Department for Work and Pensions (DWP) to decide whether hundreds of thousands of people are eligible for Employment and Support Allowance (ESA) disadvantages people with mental health problems, learning disabilities and autism.

The judgment, which was made public at a high court hearing today, is the result of a judicial review brought by two anonymous claimants with mental health problems.

The charities Rethink Mental Illness, Mind and the National Autistic Society intervened in the case to provide evidence based on the experiences of their members and supporters.

The case centres on how evidence is gathered for the controversial Work Capability Assessment (WCA), the process used to determine whether someone is fit for work.

Under the current system, evidence from a professional such as a GP or social worker is expected to be provided by people themselves. There is no obligation for the DWP to collect this evidence, even on behalf of the most vulnerable claimants, apart from in some rare cases.

Seeking evidence can be very challenging for people with mental health problems, learning disabilities or autism whose health or condition can make it hard for them to understand or navigate the complex processes involved in being assessed.

As a result, those who need support the most are frequently being assessed without this important evidence being taken into account.

It was ruled that the DWP had breached its duties to make reasonable adjustments under the Equality Act 2010 and that the Department must do more to ensure this sort of evidence is collected and taken into account. This means the current procedure for the WCA puts some groups at a substantial disadvantage.

The three charities have hailed the ruling as a victory for people with mental health problems, learning disabilities and autism who are being put through a process which puts them at a disadvantage.

Paul Jenkins, CEO of Rethink Mental Illness said: “This ruling proves once and for all that this cruel and unfair process is unlawful. The judges have independently confirmed what our members have been saying for years – the system is discriminating against some of the most ill and vulnerable people in our society, the very people it is meant to support.

“The Work Capability Assessment process is deeply unfair for people with a mental illness – it’s like asking someone in a wheelchair to walk to the assessment centre. The Government is setting people up to fail.

“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.

“This ruling will help improve one aspect of the Work Capability Assessment, but there are still many other problems with it.  We will keep campaigning on behalf of everyone we represent until the whole process is fair for everyone.”

Paul Farmer, Chief Executive of Mind, said: "Mind welcomes the tribunal's judgment, which has found that the claims process for Employment and Support Allowance (ESA) is unfair to people with mental health problems and that it has to change.

"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.

"Following this judgment, Mind hopes changes will be implemented quickly to ensure the claims procedure is fairer and more accurate.

"Mind has campaigned to improve the assessment process for many years and we will monitor the situation closely to ensure people with mental health problems receive the benefits they are entitled to."

Mark Lever, Chief Executive of the National Autistic Society said: “The court’s decision is a victory for fairness. Now that the tribunal has ruled that the Work Capability Assessment process disadvantages people with autism, the Government must stop putting them through it until a more equitable system is in place.

“Those who devised this process failed to understand the complexities of conditions like autism. By the nature of their condition, people with autism can struggle to understand and articulate how their disability affects them – which is just what this current system requires them to do, by placing the burden on them to collect their own evidence."

Read more:
The controversy around Atos Mental Function Champions

The judicial review taken by people with mental health illnesses

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