DWP ordered to disclose key documents about “dehumanising” plans to reform Work Capability Assessment

During a hearing about the “rushed and disingenuous” consultation used to justify proposals to tighten the Work Capability Assessment, the DWP was ordered by a judge to disclose key internal documents to Ellen Clifford, a disabled activist bringing a legal challenge over the consultation.

Clifford was in court on 31 October to argue that the DWP should disclose key documents that were relevant to her claim, backed by lawyers from Public Law Project (PLP.) Through the hearing, it was revealed that:

The DWP had not done any employment or disability assessments of the proposals they wished to consult on before the consultation was launched.
They did, however, undertake reviews to work out what savings may be made from the proposals before consulting. This included estimating how many Deaf and Disabled people may no longer be assessed as having limited capacity for work or work-related activity, if proposals were implemented.
No information about potential savings or numbers impacted was provided to consultees as part of the consultation process.

Under these proposed changes to the Work Capability Assessment, thousands of people would lose £416 [EY1] [EY2] [AO3] per month in benefits and many would be at risk of sanctions.

Ellen Clifford said: “The DWP’s revelation that they carried out absolutely no employment or disability impact assessment has confirmed my fears: this rushed and disingenuous consultation was just a smoke screen for cuts. It was never a legitimate attempt to hear the voices of Deaf and Disabled people or support them into work.

“In reality, a lot of people will struggle to pay everyday bills if these proposed changes go ahead.”

Aoife O’Reilly, the PLP lawyer acting for Clifford, said: “Ellen Clifford has maintained throughout her challenge that the true or primary motive behind the consultation was to reduce spending on disability benefits, rather than being about consulting on proposals that would help more Deaf and Disabled People to enter the workforce or access support with a view to doing so.

“The fact that lawyers for the DWP have now confirmed to the Court that no employment or disability impacts were carried out before the consultation began further supports her position that this was a money-saving exercise, disingenuously presented to some of the most vulnerable people in our society.

“We are pleased that the judge has ordered DWP to hand over more documents, which are clearly documents that her legal team should see. We are also pleased that DWP will now reconsider whether there may be other documents it should provide to Clifford, in light of concerns expressed by the judge about how they’ve considered this so far.”

These reforms were first announced by the previous Government in November 2023 (following a consultation that ran from 5 September to 30 October), but the Chancellor of the Exchequer announced during the Budget that Labour would honour the savings that the previous government planned to make through these reforms.

The Office for Budget Responsibility also mentioned Clifford’s judicial review in its forecast, noting that it “could cause delays” to the implementation of Work Capability Assessment reforms.

Background:

Clifford first began her legal action over a year ago, after the consultation over changes was wrapped up in just eight weeks. Like many, she was concerned that it had not been possible for the Disabled people who would be directly impacted by these reforms to meaningfully respond.

The consultation claimed that reforms had been proposed to reflect that there were now better employment opportunities for some Deaf and Disabled people due to the rise in flexible and home working.

However, the consultation failed to provide any assessment of whether Deaf and Disabled people would actually benefit from the proposed increased workplace flexibility. It also did not clearly outline that many people would lose money, or start being required to meet conditions in order to receive their payments, with a risk of sanctions if they did not meet them.

Ellen Clifford said: “I am delighted the judge has agreed that DWP need to hand over these documents.”

“Withholding key documents in the context of this legal claim undermines our ability to challenge harmful and dehumanising proposals effectively. Deaf and Disabled People deserve clarity and accountability, and to be consulted in a way that is fair, especially when our livelihoods are on the line.

“For thousands of people, the stakes are very high when it comes to the Work Capability Assessment. The previous Government’s proposed reforms would push a lot of Deaf and Disabled and chronically ill people into destitution.

“This week, Rachel Reeves promised to deliver the savings promised by the previous Government when they proposed these reforms. We are now asking the Government to look beyond the savings and recognise the real people who will be harmed.

“They should not continue with reforms when those impacted were not given any meaningful opportunity to explain why they should not be implemented.”

Clifford’s claim is due to be heard at a two-day hearing on 10 and 11 December 2024 at the Royal Courts of Justice, which will be a landmark moment in the fight for disability rights and welfare support in the UK.

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Clifford’s legal team had sought disclosure of internal departmental documents evaluating the public spending, employment and disability impact of the proposals, up to 22 November 2023, being the date when the consultation was launched.
Clifford said that these documents would demonstrate whether the Government had information in its possession that ought to have been provided to consultees, while also shedding light on what she maintains was the true or primary motive of the consultation – cutting welfare benefits – rather than supporting Deaf and Disabled People into work.
While a High Court judge had ordered disclosure of these documents, DWP asked for a hearing to have the matter considered again. At the hearing, DWP denied that they had any further documents in their possession that were relevant and necessary for Clifford to see, as part of her claim.
In particular, DWP said that they should not have to hand over documents relating to an audit of 300 previous WCA cases, which DWP had used to assess what savings could be expected, or any documents that it created after the consultation began on 5 September 2024.
In a judgment delivered orally by Mr Justice Linden, shortly after hearing submissions from both parties’ legal teams, including Jenni Richards KC, representing Clifford and instructed by Public Law Project, he dismissed the DWP’s application to have the original order for disclosure set aside. Mr Justice Linden found there were no good reason not to affirm the previous order.
He also expressed concern at how the DWP had seemed to misunderstand Clifford’s case and her disclosure application, and noted the possibility that the DWP’s evidence on what relevant documents it had in its possession may have been based on an overly narrow understanding of what Clifford’s case was actually about, including a failure to appreciate the potential relevance of analysis DWP may have done after 5 September 2023 to Clifford’s claim.
In addition to handing over the documents Clifford had sought, DWP agreed to re-consider whether it had further documents that may fall to be disclosed, and to provide Clifford with a witness statement confirming this exercise had been properly considered, in the event that no further documents were identified.
Office for Budget Responsibility (OBR) figures show only around 3 per cent of those affected by the planned changes – 15,400 people – will move into work by 2028/29 as a result.