“Misleading”, “rushed”, and “unfair” consultation on work capability assessment reforms declared unlawful – an important victory for Disabled people

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Ellen Clifford, the disability activist and Disabled People Against Cuts (DPAC) member, has won her judicial, case against the Department for Work and Pensions (DWP) over its consultation held to justify benefit cuts.

The consultation was held in 2023 on proposed changes to the work capability assessment (WCA).

The DWP uses the WCA to evaluate whether Disabled people are eligible for the extra health component of Universal Credit or Employment Support Allowance and have restricted work conditionality.  

The High Court has ruled that the DWP acted unlawfully by presenting controversial benefit assessment reforms as a way to support disabled people into work, without making clear that the proposals also included “substantial” cuts to disability benefits and that cost savings was a “primary rationale” for the proposals.  

It also found that the consultation failed to explain that planned reforms would lead to around 450,000 Disabled people receiving lower benefit rates and that many would be worse off by at least £416.19 per month and was unlawfully short given the circumstances. 

The Public Law Project acting for Clifford, has argued that the consultation was unlawful for several reasons, including that: 

  • It did not explain properly that many people would receive significantly less money if impacted by the reforms, and start being required to meet conditions (or, in some cases, meet more stringent conditions) in order to receive their payments, with a risk of sanctions if they did not meet them. 
  • The true or primary motive behind the consultation was to reduce spending on disability benefits, which was not disclosed. The consultation papers had presented the proposals as being about helping people to move into or closer to the labour market, without providing any evidence at all to explain how this purported aim would be met.  
  • A consultation that ran for just under 8 weeks was too short, given the importance of the proposals and the additional time that Deaf and Disabled people and their organisations need to engage meaningfully in this context. 

Over the course of the judicial review, internal DWP documents revealed that: 

  • The DWP had not done any employment, equality or disability assessment on the impact of the proposals prior to the consultation being launched, though civil servants had identified that almost 100,000 people could move into poverty, based on certain internal estimates. The equality impact assessment that was completed after the consultation was launched remains unpublished; 
  • Civil servants were aware that the proposals would have a particularly strong impact on those with preexisting significant mental health conditions and suicidal ideation, and that the “reduction in income alone might be a bigger contributory factor to a deterioration in mental health than undertaking work preparatory activity”; 
  • Civil servants made proposals to ministers on what changes to consult on based on the fiscal impact, with the emphasis being on scorable savings that could be announced for the Autumn Statement 2023. Internal documents recorded for example, that “… the Prime Minister indicated that the DWP should consult on reforms to the WCA gateway in time to score them for the Autumn Statement…”  
  • The DWP was also aware that the proposals would be controversial and that there was a risk they’d be “perceived as purely cost-saving measures by influential disability rights groups, individual stakeholders and by SSAC”, leading to recommendations that “a wider narrative based on modern and home working” was also developed.
  • Internal documents demonstrate that the Secretary of State considered including particular proposals as part of the consultation, notwithstanding that they would not lead to savings, solely because this could be “useful” to support a narrative that the motivation for consultation was about the importance of getting more people into work and not saving money.  

In his judgment, Mr. Justice Calver found that the consultation was “misleading”, “rushed” and “unfair”: 

  • The consultation documents were misleading for failing to highlight the “substantial” loss of benefit payments that those impacted by the proposals would face and created a “misleading impression” that changes were required to ensure certain Deaf and Disabled People could access employment support. In reality, the changes were about compelling them to access this support, which they could already choose to access voluntarily. Mr. Justice Calver described this as a “false rationale”, relied upon by DWP in its consultation.  
  • The evidence before him strongly supported the conclusion that “costs savings was at least one of the two bases, if not the central basis, on which decisions would be taken on which policies would be taken forward by the Government.”  In the circumstances, the judge considered that the SSWP “ought in fairness to have made clear that AME cost savings were, together with work inactivity, the rationale for the proposals” and that “disclosure of this highly relevant fact, was required”.  
  • A consultation that ran for just under eight weeks was unlawfully short in the circumstances, given the importance of the matters under consultation, the fact that DWP had already announced a significant consultation on the Disability Action Plan and the lack of any prior notice that SSWP wanted to consult on proposals of this nature, which was unexpected given the very recently published Transforming Support: The Health and Disability White Paper.
  • Mr Justice Calver observed: “The unfair burden upon vulnerable people of having to deal with a yet further consultation process at this time at such short notice cannot be overstated" and in setting the consultation period, the Defendant ought to have had more regard to the attributes of those people who would be affected by these proposals. These were proposals which, in particular, could potentially drive vulnerable people into poverty as well as adversely affecting disabled people and substantial risk claimants who have mental health conditions and suicide ideation.” 

Ellen Clifford said: “Through this judicial review, it became clear that there was a complete disregard for equality or disability impacts in this consultation process. No disability or equality impacts, or even employment outcomes, were evaluated before or during the consultation. We now know that an equality impact assessment was produced, but it remains unpublished.

“The DWP did calculate cost savings, however, confirming what many disabled people feared: that cuts to disability benefits had been prioritised over lives. However, DWP chose not to admit this as part of the consultation.”

“Instead, we now know that civil servants and ministers were making desperate attempts to ‘find’ a rationale for the cuts, which they thought would be less controversial, and even considered consulting on particular proposals that would have generated negligible savings, to make it appear as though saving money was not their primary motive. It is heartening that Mr Justice Calver agreed with us that this is ‘back to front policy making.’”

“The lack of transparency in this consultation was overwhelming and I am relieved that the judge has recognised that this is not the right way to engage the Disabled community. 

She added: “But the crucial question is what lessons the Government should learn from this case. Measures to help the economy should not require the impoverishment and suffering of hundreds of thousands of Disabled people. Such measures would simply represent a false economy in that they will substantially increase pressures on public services such as the NHS and lead to higher spending in other areas. 

“DWP’s own civil servants acknowledged this internally when they recognised that the proposed reduction in income for people with significant mental health conditions and suicidal ideation could contribute to further deterioration in their mental health.”  

“That is why we are calling for these harmful reforms to the work capability assessment to be dropped.” 

Ken Butler, DR UK’s Welfare Rights and Policy Adviser said: “Disability Rights UK congratulates Ellen Clifford in bringing her legal action and achieving this important legal victory. Without her steadfast, principled and brave campaigning, the DWP would not have suffered the conclusive loss it has.

 “The DWP consultation has been found to be unlawful as it was “misleading”, “rushed” and “unfair”. The ruling that cost savings were at least one if not the “central basis” that was the impetus to the proposed reforms should be a wake-up call for the current Government, who seem intent on bringing similar proposals forward in the Spring.

 “It did not explain properly that 450,000 Disabled people would receive significantly less money (£416 per month) if impacted by the reforms and would be subject to tighter requirements around work-related activity. Although the Government is to publish a Green Paper on work capability assessment and personal independence payment reforms this Spring, it has remained tight-lipped as to its contents.

 “Given the High Court’ ruling, we call on the Government to clearly state it does intend to pursue the last administration’s unlawful cost-cutting consultation proposals.

“Instead of pursuing the further impoverishment of Disabled people, it needs to co-produce reforms that will protect our rights to an adequate standard of living.”

The High Court’s judgement in R (on the application of Ellen Clifford) v Secretary of State for Work and Pensions is available from judiciaryuk.

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