The DWP have today lost a major High Court battle over changes to the work capability assessment (WCA) which may have serious implications for the Labour government’s plans for benefit reforms.
In September 2023, the Conservative government launched an eight week consultation on a variety of possible changes to the WCA. The proposals were presented as a way to help more disabled claimants into work.
In November 2023, the government published its response to the consultation and set out changes to the activities and descriptors in the WCA which would make it harder for new claimants to be found to have limited capability for work-related activity.
The Office for Budget Responsibility only then revealed that whilst 450,000 new claimants would be over £400 a month worse off as a result of the changes, just 15,400 would find jobs by 2029. In other words almost 97% of those affected would be worse off.
Disability campaigner Ellen Clifford launched a judicial review of the consultation last year, on the grounds that people talking part were not given enough information to provide an informed response, but were instead misled into believing that the changes were about helping people into work.
Today, the High Court found in Ellen’s favour, ruling that “the Claimant has surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful.”
The judge found that the consultation was unlawful on three grounds:
1. The DWP failed to adequately explain the proposals. The judge agreed with Ellen that “bearing in mind the audience for the consultation, it was not made adequately clear that the legislative proposals for the affected groups were to replace voluntary work related activity with compulsory work related activity, and to reduce the income of a large number of claimants.”
2. The DWP failed to explain adequately the rationale for making the proposals. The judge agreed with Ellen that saving money rather than getting people into work was the main reason for the changes.
3. The DWP failed to provide sufficient time for consultees to respond. The judge agreed with Ellen that 8 weeks was too short a time for a consultation, given that “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.”
In summing up, the Judge held that any single one of these grounds, let alone all three, would have been sufficient for the consultation to be so unfair as to be ruled unlawful.
The judgement relates to Conservative proposals for the WCA, whilst Labour said they would be producing their own plans for benefits changes. Yet when Ellen’s case came to court, Labour fought hard to try to defeat it.
Because, the reality is that losing this case means that Labour will have to be honest about their proposals in the Spring, if they still intend to produce a green paper.
They will have to give clear information about the reasons for any changes, the number of people who are likely to be worse off and how much they are going to lose out by. And they will have to give disabled claimants sufficient time to consult with professionals if they need to, before responding.
Being open and honest about what they are doing is something the DWP have avoided for many years, so this ruling will be a major blow.
You can download the full 42 page judgement in Clifford v SSWP from this link.
You can be sure that DWP ministers have already done so and are reading it with growing dismay.
Congratulations to Ellen Clifford on her courageous fight and genuinely important victory.
