Judge considers judicial review of Work Capability Assessment | Guardian Society | 29 June 2012

June 29, 2012

From Guardian Society on Facebook, 29 June 2012

Two people apply for review on grounds that the current system discriminates against people with mental health problems

A high court judge is considering whether to grant permission for two people with mental health conditions to apply for a judicial review of the controversial Work Capability Assessment (WCA) – the computer-led test which determines who is eligible for sickness and disability benefits – on the grounds that the current system discriminates against people with mental health problems.

Lawyers for the two claimants, who requested anonymity within the court system, told Mr Justice Edwards-Stuart that claimants with mental health problems generally were not well-served by the “very stressful process” of undergoing the 20-minute assessments with strangers.

Nathalie Lieven QC highlighted that there were very high levels of appeals against all decisions not to award the Employment and Support Allowance (the new Incapacity Benefit), currently running at about 40% of unsuccessful claims, and very high levels of decisions being overturned on appeal (also around 40%), describing this as a “highly inefficient and undesirable situation”.

She told the judge that many of the medical staff employed by Atos, the company contracted by the Department for Work and Pensions (DWP) to carry out the assessments, had no specialist knowledge of mental health issues.

Claimants with mental health problems were less likely to understand the need to gather extra medical evidence from their doctor in support of their claim, they might have less insight into their own conditions, were more likely to have chaotic lifestyles, and were less well-equipped to make phone calls to organisations that might support them, she said.

Because they were also often reluctant to tell people about their mental health problems, they were often not very good at summarising the nature of their illness, sometimes downplaying its severity.

“By the very nature of the condition, they are more likely to find the process of appealing very difficult and it may be very detrimental to their condition,” she said.

The claim is based on the argument that the DWP has erred in law by failing to make reasonable adjustments to the assessment system, for the benefit of people with mental health problems, in breach of the 2010 Equality Act.

The hearing on Friday is the first stage in requesting a judicial review. The claimants are not just challenging what happened during their assessments, but are mounting a challenge to the DWP, which, if successful, would require changes to be made to the system for all claimants with mental health problems.

Questioning whether the system was flawed only in terms of handling claims from people with mental health problems, the judge described the assessment system as “pretty crude” across the board. The judgment was reserved until a later date.

The court hearing came the day after the British Medical Association (BMA) called for the WCA to be scrapped on the grounds that it was causing distress to thousands of people with long-term health conditions who were being deemed fit for work.

Delegates at the BMA conference passed a motion agreeing that the “inadequate computer-based assessment” performed by Atos Healthcare had “little regard for the nature or complexity of the needs of long-term sick and disabled persons”, and proposed that the WCA should be halted “with immediate effect and be replaced with a rigorous and safe system that does not cause avoidable harm to some of the weakest and most vulnerable in society”. The BMA will now lobby political parties to change public policy on this issue.

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