ESA and Equality Act 2010

The Office for Disability Issues Guidance on the Equality Act 2010 states on page 18 B8 that:

“In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty, rather than focussing on those things that a person can do.”

I have read through the whole of this document and whilst it focuses on clarifying who is classed as disabled, it seems to me that by focusing on the things that a person CAN DO that the ESA and ATOS are add odds with the above statement?

There are many other such examples throughout this document. Any thoughts? Does anyone have any knowledge of someone claiming discrimination under the Equality Act regarding ESA?

Thanks

MSCarer wrote: The Office for Disability Issues Guidance on the Equality Act 2010 states on page 18 B8 that:

“In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty, rather than focussing on those things that a person can do.”

I have read through the whole of this document and whilst it focuses on clarifying who is classed as disabled, it seems to me that by focusing on the things that a person CAN DO that the ESA and ATOS are add odds with the above statement?

There are many other such examples throughout this document. Any thoughts? Does anyone have any knowledge of someone claiming discrimination under the Equality Act regarding ESA?

Thanks

Hi MSC,

Yes, the document that you have read, deals with whether someone fulfills the definition of a disabled person with respect to EA2010.

This is the first thing that must be proven, in any potential claim under Disability Discrimination.

With ESA and the WCA, The DWP and ATOS are only interested in whether you have either Limited Capability for Work. (LCW) which gives entry to The WRAG, or Limited Capability for Work Related Activity, (LCWRA) ( which obviously means that you also have LCW) which gives entry to The SG.

Either award could be given to someone who is classed as a disabled person under EA2010, someone could even be classed as fit for work and be classed as "disabled".

The important issue is that just as employers have to, ATOS and The DWP must pay due regards to a persons limitations, and make any "Reasonable Adjustments" that may be deemed necessary, throughout the whole process, and in all their dealings with the claimant.

This includes the WCA process itself, and anything that may occur as a result of WFI's and WRA.

bro58

Hi - so my original point that ATOS by restricting their focus to what you CAN DO is ignoring the Equality Act guidelines of what you CANNOT DO and therefore by default is discriminatory? (Subject to you meeting the Equality Act definition of disabled.)

Or am I on the completely wrong track here?

And wouldn't 'reasonable adjustments' include have to take into account of limits to hours worked and the kind of work? So for the sake of argument if someone was placed in ESA-WRAG and a JCP Adviser tried to sanction them for not trying hard enough to look for work or for failing to look for full-time work etc, that disabled person would have recourse under The Equality Act as I understand it.

Asbo wrote: And wouldn't 'reasonable adjustments' include have to take into account of limits to hours worked and the kind of work? So for the sake of argument if someone was placed in ESA-WRAG and a JCP Adviser tried to sanction them for not trying hard enough to look for work or for failing to look for full-time work etc, that disabled person would have recourse under The Equality Act as I understand it.

No-one has to work, or seek wrk, while in the WRAG

As I understand it, the advice to consider what someone cannot do is only relevant when deciding whether they are covered under the Equalities Act.