Background
In March 2023, the Government announced proposals to abolish the work capability assessment (WCA), the test used to decide if a claimant is “fit for work”.
Under the proposed new system, a claimant who receives any rate of PIP will receive an extra “health element”, included in their UC.
Medically unqualified work coaches will then judge what, if any, work or work-related activity a claimant is able to undertake.
This reform would then be rolled out, for new claims only from 2026/2027 and 2029 for existing claimants.
However, on 8 September, the Government launched a consultation (that closed on 30 October) on making interim changes to the existing WCA, from 2025, to cover the years before the WCA is abolished completely.
The consultation sets out possible changes to the following WCA activities: Mobilising; Continence; Coping With Social Engagement and Getting About.
For each of these four activities, the Government is considering removing the activity from the WCA entirely, or reducing the points awarded for them - so making being found fit for work more likely.
Another proposal is to abolish the “substantial risk” rule that applies if there would be a substantial risk to the mental or physical health of you or anyone else if you were found not to have limited capability for work related activity (LCWRA).
The Information Commissioner’s ruling
The DWP has refused to release its written assessment of how the decision to abolish the WCA will impact Disabled people and other groups protected under the Equality Act.
As a result, a Freedom of Information (FOI) request was made to the DWP by the Disability News Service (DNS) asking: “Please provide a copy of any impact assessment and cost-benefit analysis the DWP has undertaken relating to this proposed change.”
However, the DWP refused to provide the information, arguing that - “... it engages an exemption from disclosure because it relates to the formulation or development of government policy - section 35(1)(a) of the Freedom of Information Act (FOIA). This exemption protects the private space within which Ministers and their policy advisers can develop policies without the risk of premature disclosure.”
The DNS then complained to the Information Commissioner.
In a decision notice on DNS’s complaint the Information Commissioner’s Office (ICO) has said it “considers that DWP has failed to consider the strength of the public interest in the timely understanding and scrutiny of the decision to remove the Work Capability Assessment”.
It said there was “a particularly strong public interest in disclosure of information relating to disability benefits reform”.
It noted that the Institute for Fiscal Studies (IFS) had estimated that scrapping the WCA could see a fall of £390 a month for 520,000 Disabled claimants.
It also noted that IFS has stated that scrapping the WCA “could help more people into paid work, but it comes with the risk of requirements being inconsistently applied and the potential for hardship if they are applied inappropriately”.
The Information Commissioner has concluded that DWP “has not provided compelling arguments regarding how the specific policy named would be undermined by disclosure of the disputed information”.
The Commissioner has therefore required the DWP to disclose the withheld information relating to the removal of the WCA within 35 calendar days of 1 November 2023, and warned that failure to comply: “... may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt of court.”
A DWP spokesperson said: “We are aware of the decision notice from the Information Commissioner’s Office and we are currently considering our position.”
Raising a similar concern, the Equality and Human Rights Commission (EHRC) recently wrote to the Secretary of State for Work and Pensions to request “as a matter of urgency” an extension to the Government’s consultation on its proposed WCA,
In addition it said: “… Without access to analysis of the possible equality implications of the proposals, it is challenging for Disabled people and their representative organisations, and others, to engage with the consultation process.
“Stakeholders have raised concerns with the Commission that the proposed changes, in particular the proposal to amend the ‘substantial risk’ criteria, could place Disabled people at increased risk of both financial and psychological harm, with potentially serious equality and human rights implications.
“ …We encourage you to extend the consultation deadline and to publish detailed analysis of the potential impacts of the proposals on Disabled people and other protected characteristic groups to inform consultation responses.”
Ken Butler DR UK’s Welfare Benefits and Policy Adviser said: “The DNS is to be congratulated both on making its FOI request and achieving this publish order by the Information Commissioner.
“It is to be hoped that the DWP will now publish in full the impact assessment of the proposed WCA reforms and then allow Disabled people additional time to comment on them.”
The Information Commissioner’s ruling is available from ico.org.uk
For more information see Watchdog tells DWP to release secret assessment of decision to scrap WCA available from dns.org.uk.
See also DR UK’s response to the DWP’s WCA reforms consultation.