Yesterday the High Court 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 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 being assessed for eligibility for ESA (11,000 people per week).
The claimants are seeking reasonable adjustment to the process that medical evidence is 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”.
