High Court victory for PLP client over DWP consultation on disability benefit reforms

Read the full judgement here

The judge also found that the consultation failed to explain that planned reforms would lead to 424,000 disabled people receiving lower benefit rates and that many would be worse off by at least £416.19 per month. The consultation, which ran for just under 8 weeks before the cost-saving changes were announced in the Autumn Statement, was also unlawfully short given the circumstances.

PLP client Ellen Clifford faced the DWP in court on the 10th and 11th December 2024 over the consultation held in 2023 on these proposed changes to the Work Capability Assessment. The DWP uses this assessment to evaluate whether Deaf and Disabled people are eligible for the health component of Universal Credit or Employment Support Allowance.

Ellen Clifford said:

“I am overjoyed that the court has recognised the importance of properly consulting Deaf and Disabled people on reforms that would leave many worse off by at least £416.19 per month.

“This is a life-or-death issue. One internal DWP estimate (which we only know about because of my legal challenge) indicates that 100,000 disabled people who are classed as highly vulnerable would be pushed into absolute poverty by 2026/27, as a result of the types of cuts they proposed in this consultation.”

“We now urge the Government to rethink these proposals and make the safety and well-being of disabled benefit claimants their priority, as well as commit to consulting us fairly and lawfully in the future.”

Aoife O’Reilly, the Public Law Project lawyer 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 actually 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:

• 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…”
• 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.
• 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.

Aoife O’Reilly said:

“We are delighted that the court has agreed with our client.

“This judgment has vindicated our criticism of the DWP’s unlawful consultation and we now urge the Government to scrap these planned reforms, which were disingenuously presented to the Deaf and Disabled people who would be affected.

“Consultation is a key way for the general public to participate in state decision making and that crucial method of input should be respected. It is particularly important that consultation processes are undertaken conscientiously when it relates to policymaking that impacts groups that are often marginalised.

“Deaf and Disabled people should have been given a fair opportunity to share their input on sweeping and punitive proposals that, if implemented, will have a profound impact on all those affected.”

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

Ellen Clifford said:

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.

“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.”

Mr. Justice Calver relied on the views expressed and evidence provided by key stakeholders, including Deaf and Disabled People’s Organisations, the Equality and Human Rights Commission, the Work and Pensions Committee and a number of welfare rights organisations, in reaching his conclusions.

The UK DDPO CRPD Monitoring Coalition said:

“The UK Coalition congratulates Ellen on her successful challenge, which we have been so proud to support. The UN Committee on the Rights of Disabled People recently found that the UK was still in “grave and systemic” violation of the Convention on the Rights of Disabled People. Misleading and unlawful consultations like the one Ellen challenged demonstrate the disregard that the former Government had for its international obligations towards disabled people in this country.

“In order to begin to build a welfare system that works for all, the current Government must start by properly working in co-production with disabled people and disabled people’s organisations, avoiding the urge to rush through poorly-formed policy that purports to save money. We call on the Government to scrap these proposals, and to work with Disabled people and our organisations on policy-making that impacts them.”

Inclusion London said:

“We are pleased the court saw beyond the DWP’s deceptive tactics and upheld the rule of law. The policy if implemented would be devastating for at least 450,000 Disabled people.  The judge was clear today, If the government wants to inflict such harm, they must be transparent in their consultation documents.

“We now call on the new government to fully hear Disabled people’s voices and consider our needs and rights. When our country ratified the UN Convention on the Rights of Disabled people, it promised to protect our right to an adequate standard of living and to co-produce policies with us. We urge the government to stop, rethink and drop this deeply harmful policy and start seeing social security support as an investment in people’s lives.”

Disabled People Against Cuts said:

“We’re delighted Ellen has won her case, as it will mean so many disabled people will no longer be pushed into further poverty (unless by a Labour government re-introducing it, in which case they should be utterly and totally ashamed.)”

The Public and Commercial Services Union said:

“PCS has long campaigned for a radical overhaul of the Social Security system in the UK, with greater flexibility given to our members to support those that use DWP services. We welcome the judgement today that the government consultation on the WCA changes was not carried out properly and was, we believe seriously flawed. We urge the new government to scrap these proposed changes to the Work Capability Assessment, which will see more than half a million more Deaf and Disabled people at risk of sanction, and instead carry out a meaningful consultation on genuine welfare reform with all key stakeholders.”

Clifford is represented by Public Law Project, Jenni Richards KC of 39 Essex Chambers and Tom Royston of Garden Court North Chambers.

Read the full judgement here