DPAC Update on the WCA Judicial Review

wouldbeqaulitymoneysaver

http://www.dpac.uk.net/2013/01/update-on-wca-judicial-review/#

At the moment in the Upper Tribunal there is a Judicial Review a head-to-head with the DPAC and assorted Disability Organisations Barrister/s against the might of the DWP lot.

I feel nervous on reporting this but I beg MSE to have an open mind and look at length at what this is all about.
Points I think are important
SELF REPORTING ILLNESS rather than reliance on medical evidence that is fair.:mad::mad::mad:
Obviously the LIMA system is unfair and targets ATOS who have UNUM behind them who are infamous in US for disability denial and denying claims by disabled people.:mad::mad::mad:
The fact the the Lawyers advised they could go so far get so much done.
I wait in earnest.
I only hope this key story reaches as many MSE folks as possible.
I think there is a bit of an awareness on MSE that disability campaigners campaigning about wca MIGHT not be so off the mark here. (Despite regular invasion of benefits bashers on any thread with 'benefits' in it like bees to a honey pot).
I hope that can be capitalised on.

wouldbeqaulitymoneysaver

Self Reporting of illness rather than medical evidence/advice I believe leads to more likelihood of fraud because of insecurities with the job market also benefit income. Self Reporting like the LIMA computer tick box assessment also makes the whole process dubious and unfair.
WTC under/overpayment esp over makes the most industrious work conscious employee of whatever type liable to fraud because of the flucations in income. Another example of unfairness.

wouldbeqaulitymoneysaver

Mention 'benefits' on MSE and benefits bashers come running to a thread like bees to a honeypot. Not helping the discussion.

wouldbeqaulitymoneysaver

By Email

HOW THE JUDICIAL REVIEW WENT!

The Mental Health Resistance Network judicial review of the DWP-Atos Work Capability Assessment was scheduled for three days (16-18 January 2013) although we thought that it would only last for two.

In the event, it lasted for the whole three days and there was a member of the MHRN in court at all times.

The claimants were asking that further medical evidence should be sought by the DWP from a person’s own health care professionals prior to the ESA50 form being sent out for all people with mental health problems (called “MHPs” in Court).

We believe that obtaining evidence at this stage will enable some people to be spared the distress of having to attend the face to face WCA interview and where they do have to attend it, at least the assessor would know something about their condition and how it affects their functionality – rather than the claimant being entirely at the mercy of the Atos computer and an unqualified Atos ‘Health Care Professional’.

This in turn might spare some people from going through the misery of having to appeal. And, importantly, it would help identify people for whom regulations 29 and 35 apply.

These regulations cover where there would be a risk to a person if they were found fit for work or for work-related activity (WRAG Group/Workfare – BTC) even if they had less than the required number of points for Employment and Support Allowance (ESA).

Obviously, this change is only one way that the WCA needs to be improved on.

Initially, the MHRN was calling for the test to be completely scrapped but we are also realistic about what can be achieved.

Who knows? It may be scrapped in a few years time but, in the meantime, we have to survive it.

Now to the Court case:

The case was being brought under the Disability Discrimination Act and was heard by three judges in the Upper Tribunal Court.

It began with much debate about how exactly people with MHPs were being disadvantaged in the process of claiming ESA.

The case for the claimants was that the self-reporting aspect was often, for a variety of reasons, difficult for people with MHPs.

In addition, MHPs may not be able to obtain further medical evidence for themselves.

The DWP barrister argued that there was already procedures in place to ensure that further medical evidence was sought in appropriate cases.

As well as the claimants’ barristers, there was a barrister representing – jointly – National Mind, Rethink and the National Autistic Society who also argued the claimants’ case and evidence from consultant psychiatrists was also submitted.

It is hard to say, but, on balance, I felt that the existence of disadvantage may have been successfully established in court, but please, don’t rely on my impression!

A lot of time was spent arguing about who the MHP claimants were being disadvantaged in comparison with (The ‘Comparator’ – BTC). This was very much a technical point and an Equality and Human Rights Commission barrister was present to intervene here.

The claimants were asking that reasonable adjustments are made to rectify a disadvantage (the adjustment being that medical evidence be sought by the DWP in all mental health cases) and therefore the ‘reasonableness’ of this adjustment was also up for debate. The DWP, unsurprisingly, argued that it was “wholly unreasonable” – cost being one factor; the “burden on doctors” being another, and so on.

So is there a disadvantage and in comparison with whom are MHPs disadvantaged?

If there is a disadvantage, would the requested adjustment rectify this disadvantage? And is the adjustment ‘reasonable’?

Obviously, as the case was being brought by individuals and there was some argument over whether the individuals concerned had been disadvantaged or whether the adjustments requested would have rectified that disadvantage.

The DWP barrister tried every which way to counter the claimants’ arguments.

The feeling among the members of the MHRN who attended the court was that the claimants got a fair hearing.

The Judges will be meeting with three High Court Judges and – I think I got this right – it is these High Court Judges who will be making the final decision. The judgment will undoubtedly take some time to come through and we have no idea which way it will go.

So fingers crossed!

wouldbeqaulitymoneysaver

I think that the DWP's arguments that the Medical evidence needed from Doctors as being portrayed as a ''burden'' is wholly dishonest and demonstrates how much they wish to cling onto a unfair badly designed system which is causing untold suffering.

wouldbeqaulitymoneysaver

Insufficient attention to medical evidence meaning sick people who are declared fit for work, we all know the story. The DWP is lying again.

wouldbeqaulitymoneysaver

The goal posts keep on being moved and Descriptors are always changing. You know where I find them on Benefits and Work, two very important and key words that matter to us all.

wouldbeqaulitymoneysaver

http://www.dpac.uk.net/2012/07/judicial-review-of-work-capability-assessment-granted-2/
Judicial Review of Work Capability Assessment Granted
dpac.uk.netLindaJuly 26th, 2012view original
High Court rules Work Capability Assessment arguably unlawful

The High Court has today granted permission to two disabled people to bring a claim for judicial review against the Secretary of State for Work and Pensions to challenge the operation of the Work Capability Assessment (WCA).

WCAs are face to face interviews carried out by healthcare professionals (HCPs) employed by Atos Healthcare (a private contractor), to assess disabled people’s entitlement to Employment and Support Allowance (a sickness benefit that has replaced the old Incapacity Benefit). Each existing recipient of Incapacity Benefit is now being assessed for eligibility for ESA, at the rate of some 11,000 people per week. WCAs have been the subject of serious criticism by all relevant stakeholders in civil society including doctors and NGOs working on behalf of disabled people.

The present case concerns some of the problems with the system as experienced by people with mental health problems. Although medically trained, Atos HCPs typically have very limited knowledge of mental health. The interviews are often hurried, and rely on applicants to explain the limitations on their ability to work.

This is a serious problem for people with mental health conditions who lack insight into their conditions, whose conditions fluctuate in seriousness, or who cannot easily talk about their disability. Such people are placed at a substantial disadvantage in navigating the system. Even if they appreciate the need to get expert medical evidence for themselves, they are often less able to navigate the system successfully and to obtain the medical report that they need. The Equality Act 2010 requires the DWP to make reasonable adjustments to avoid such disadvantage.

The reasonable adjustment to the process that the claimants seek is for medical evidence to be sought by the Atos HCP and the DWP at the very outset of the claim. This would ensure that very sick people for whom having to go through a WCA would be extremely distressing are exempted from the process, and for those that do attend a WCA, the assessment of fitness to work takes place in the correct medical context, so that dangers associated with forcing people back to work are correctly identified.

At present, the DWP do not routinely ask for expert medical report from an applicant’s community-based doctor. The judge has held that it is arguable that this failure is a breach of the duty to make reasonable adjustments, and is therefore unlawful.

In granting permission to apply for judicial review, the judge stated:

“I consider that it is reasonably arguable that the reasonable adjustments required by the [Equality Act 2010] include the early obtaining of independent medical evidence where the documents submitted with the claim show that the claimant suffers from mental health problems and that this has not been done, or at least not done on a sufficiently widespread basis”.

The claimants, known as MM and DM, were granted anonymity by the court. Their solicitor, Ravi Low-Beer of the Public Law Project said:

“The present system results in many thousands of unnecessary appeals at great public expense, with a high success rate. What is not counted is the cost in human misery for those people who should never have had to go through the appeals process in the first place. This could be avoided if doctors were involved in the assessments at the outset. The Government’s policy of by-passing doctors is inefficient, unfair, and inhumane. We gain heart from the court’s finding that as a matter of law, it is arguable that something has to change.”

For further information contact Ravi Low-Beer on r.lowbeer@publiclawproject.org.uk/0845 543 5944

or Adrian Lukes on

a.lukes@publiclawproject.org.uk/0845 543 5946.

Public Law Project (PLP)

PLP is an independent, national legal charity which aims to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers. To fulfil its objectives PLP undertakes research, policy initiatives, casework and training across the range of public law remedies.

For more information on our work, events and publications: https://www.publiclawproject.org.uk