The Court of Appeal has upheld a ruling which found that the process used to decide whether hundreds of thousands of people are eligible for Employment and Support Allowance (ESA) discriminates against people with mental health conditions, learning disabilities and autism.
The original judgment, at an Upper Tribunal hearing in May this year, was the result of a Judicial Review brought by two anonymous claimants with mental health problems. You can read the origins of the challenge and the story here.
This was an action brought by the Mental Health Resistance Network and is a tribute to that member-led group and the hard work that people who use services have put in – with little help from established charities or politicians. That should be said and must be said and I am not going to stop saying it. There is a press release on the issue and today’s announcement on the Rethink site, but I make the point again that the MHRN and the Public Law Project deserve all the credit here. I’ll say it again good and loud and why not – it is the member-led groups like Boycott Workfare on workfare and the work programme, Disabled People Against Cuts on issues like the closure of the Independent Living Fund and the Mental Health Resistance Network on the fight against the work capability assessment that are achieving the results in the fight against this government.
And that is the key point to make about resistance and results in our era. People are fighting a vicious government here and they’re doing it on their own pretty much. Just imagine how much further ahead we’d all be if those who had the resources and the political clout contributed those things to the fight.
Don’t start me.
Here are DPAC and MHRN campaigners outside the Royal Courts of Justice in October when the DWP took its case for overturning the initial ruling to the court of appeal:
Yes! … I’ve been waiting for this decision for a good few weeks.
Great news.
One thing that struck me, though, in the original hearing – although a great victory, I think the case should have also been about how the ESA50 and descriptors in themselves discriminate against those with mental and behavioural conditions.
I quote from this:
http://www.theguardian.com/society/2013/may/22/fitness-work-tests-mental-health-unfair
“The ruling was triggered by a judicial review launched by two individuals with mental health problems, who argued that the work capability assessment (WCA) was unfair to them because it required them to understand and be able to explain the nature of their condition to the people conducting the assessment, when they had insufficient awareness of their difficulties to do so.
The discussion focused on whether it was reasonable to expect people with mental health problems to seek additional medical evidence in support of their claims from their GPs, or whether the DWP needed to do more on their behalf to ensure that this sort of evidence was collected and taken into account.”
All well and good, and I think we all accept today’s upholding of the May judgement is correct and just.
Yet this ruling is all about the individual’s ability or not to understand and explain their condition – it does not, unfortunately, identify the actual current ESA approach, form, descriptors, etc. as central to the discrimination. For example, it is often impossible for a claimant to achieve enough points simply because of the structure and approach of the questions on the ESA50 and how these are used in the WCA. As someone with agoraphobia and severe anxiety, the descriptors are wholly inadequate in getting across accurately my condition. And this ruling does not look at such issues. It says, in effect, that some people are likely to have great difficulties in applying for the benefit, which of course is true. But it does not highlight the qualitative problem with the assessment process itself and how it is useless in assessing many people effectively and justly, and therefore potentially exacerbating existing mental and behavioural conditions.
Dave; I’m so glad someone’s articulated and then made this point. (WCA appeal – mental health – hearing set for Jan, and no idea how to tackle precisely this. Delighted by hearing yesterday’s news, then crying last night because it misses this central issue.)
I’ve copied your comment to a thread on unemployment movement (http://unemploymentmovement.com/forum/disabilitya-esa-issues/7963-dwp-lose-another-appeal-in-court?start=14). I hope that’s okay.
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Great news