“We are determined to have a welfare system that encourages and supports people into work, while providing a vital safety net for those who need it most.”
So started the Department for Work and Pensions’ (DWP) consultation on modifying disability benefit assessment guidelines – measures that are expected to reduce the financial assistance provided to about 450,000 disabled individuals by 2029, but which the consultation portrayed only as beneficial to them.
Contrary to popular belief, internal DWP papers produced at a High Court hearing last week show that the ideas were at least as much about the Tories’ desire to decrease benefits expenditure as they were about assisting handicapped people into employment.
In reality, DWP officials cautioned that proof was required to back up their claim that the reforms were about aiding disabled people rather than saving money, while the government hurried the consultation through in time for the savings to be included in last year’s Autumn Statement.
DWP officials were also aware of the possible mental health consequences of reducing payments for certain claimants who might be impacted by the measures.
While an official impact assessment of the measures has yet to be completed, court documents indicate that the modifications might drive up to 100,000 handicapped individuals into utter poverty, while the specific foundation for this number is unknown.
The discoveries followed a court assessment of the consultation’s legality, which was heard last week. Disability advocate Ellen Clifford, a member of Disabled People Against Cuts (DPAC), filed the lawsuit.
And, although the consultation took place under the previous administration, the present Labour government has not abandoned the intended cutbacks and has fought the legal challenge at every stage.
Table of Contents
The consultation
The work capacity assessment (WCA) determines who is eligible for out-of-work disability payments by “scoring” the nature and degree of an applicant’s disease or sickness.
A WCA evaluation may lead to one of three outcomes:
- Fit for work – applicants do not qualify for disability benefit, and may be required to look for work if they receive universal credit
- Limited capability for work (LCW) – applicants qualify as disabled but receive no extra money; they are not required to look for work, but must engage in “work-related activity” to prepare for work
- Limited capability for work and work-related activity (LCWRA) – applicants receive an extra £416 a month in disability benefit under universal credit, and don’t have to look for work or undertake work-related activity
On September 5, last year, the Conservative administration revealed intentions to change the WCA by revising some of the “descriptors,” which indicate how many points are earned in the evaluation based on various degrees of handicap.
The government aimed to decrease the degree to which issues with mobility, moving about, incontinence, and social interaction may lead to persons qualifying for disability payments under the WCA.
The consultation also sought to amend the “substantial risk” restrictions, which state that persons are not required to do work-related activities if doing so would pose a significant danger to their health.
However, although the press release to the media mentioned a 62% increase in incapacity benefits expenditure over the preceding 10 years, with the Daily Mail noting that “the blitz is aimed at slashing the £26 billion welfare budget,” the consultation itself made no mention of this justification for the changes.
It also failed to mention that the changes might result in reduced benefits for handicapped persons. The reference to the reduced rate of benefits provided to the LCW group was buried in the consultation’s annexes, and the streamlined “easy read” paper made no note of it.
Instead, the consultation made these benefit changes appear like they were intended to aid handicapped people, emphasizing the post-pandemic potential for them to work remotely.
“People assessed as LCWRA do not have any requirements to engage with … tailored work coach support,” according to the inquiry. “It is not right that so many people are left without support, and we must not hold people back from opportunity.”
Following an eight-week consultation process, the Conservative administration chose to proceed with three changes:
- Mobility difficulties alone will no longer qualify for LCWRA status
- Only the most severe difficulties in getting to a specified place will count towards LCW status
- Tightening the substantial risk regulations for mental health problems in the LCWRA group
- The proposals around incontinence and social engagement were dropped
Under the previous government’s intentions, the great majority of current LCWRA claimants would not be reassessed; the measures would primarily effect new applicants.
The plans were set to be implemented next year, so the new Labour administration inherited them. So yet, Labour has revealed nothing about its own intentions.
Judicial review
Labour is said to be waiting for the result of Clifford’s court appeal before acting. Last month, the Labour-run DWP attempted but failed to stop the release of internal papers crucial to the issue. These documents, made public in court last week, give unambiguous proof of the degree to which the WCA changes are motivated by a desire to reduce expenditure.
At the start of the consultation, the DWP had not estimated how many handicapped individuals would find job as a consequence of their ideas. In contrast, the DWP had been attempting to calculate how much money their ideas would save.
“Thank you for your work with the chief secretary to explore options to ensure welfare spending is placed on a sustainable footing,” prime minister Rishi Sunak wrote to DWP secretary Mel Stride on June 22, 2023. “Like you, I am worried about the projected levels of spending and hope that you will continue to prioritize this effort to uncover meaningful, sharable reductions. We need to show that we have a viable strategy to reduce welfare expenditure.”
According to an internal memo dated July 7, 2023, “narrowing the gateway would move fewer people into long-term inactivity and have long-run AME [i.e. public spending] benefits, particularly when considering numbers eligible for transitional protection.” The [secretary of state] is intent on developing an evidence foundation to determine which reforms have the most effect and quantifying this.”
The DWP’s court-mandated disclosures include several cases of this nature. The agency wanted to help more handicapped individuals find paid job, but an important motive – maybe the primary reason – was decreasing expenditure.
In reality, suggestions to transfer persons from the LCW group off disability benefits entirely were mainly rejected since they would not save money. Disabled persons in the universal credit LCW category do not get any additional benefits; they are simply exempt from the onerous work-search criteria placed on non-disabled jobless claimants.
When the DWP finalized its plans for consultation on August 11, 2023, there were indications inside the department that “there’s not much gain from potential measures in this space given … it doesn’t increase scoreable AME impacts”. However, a counterargument was suggested as well: “Something on LCW [to get people off disability benefit altogether] would be useful *because* it doesn’t save any AME – as a way to try to show we aren’t just doing this to save money, it’s a principled package about the importance of work etc.”
The completed recommendations would classify 13 persons as LCW rather than LCWRA, with one person classified as fit for work instead of LCW. The former reduces government expenditure, but the latter does not.
The government was especially eager for the consultation to take place in time for chancellor Jeremy Hunt’s 2023 Autumn Statement, since this would allow the proposed adjustments to be included into the government’s public expenditure predictions.
“The prime minister indicated that the DWP should consult on reforms to the WCA gateway in time to score them for the Autumn Statement,” according to a departmental memo. The schedule for a meeting between Stride, Sunak, and Hunt on August 1, 2023 stated that “consulting prior to the Autumn Statement is essential”.
The DWP was aware that resistance to changes would increase if they seemed to be motivated by cost-cutting. “Perceived cost-cutting measures risk undermining the core message of the white paper,” according to a civil servant contribution dated June 30, 2023. “We would need to develop a strong evidence base for making any changes in order to establish a rationale beyond cost-savings.”
As a consequence, the department was not keen on a hurried schedule to coincide with the Autumn Statement. Its health and disability white paper, issued in March 2023, was positioned as a way to help handicapped individuals find jobs, with little or no reference of any public expenditure imperatives.
“We also consider that it would be better to decouple any announcement of changes from a fiscal event because the measures are expected to be controversial and risk being perceived as purely cost-saving measures by influential disability rights groups, individual stakeholders and by SSAC [Social Security Advisory Committee],” according to a DWP civil service email from July 7, 2023. “We would like to create a broader narrative based on modern and remote work, which would also mitigate these risks.” Distinguishing this from a budgetary event would help achieve that goal.
Nonetheless, the consultation was finished in time for the Autumn Statement, which disclosed the ideas’ budgetary implications. The estimated savings from the two concepts that were discarded – incontinence and social engagement – were minimal.
Substantial risk
Clifford’s legal team, which included attorneys from the Public Law Project and barristers Jenni Richards KC and Tom Royston, also questioned how the DWP consultation presented the rationale for weakening the significant risk laws.
“We are seeking views on whether we should make changes to the LCWRA substantial risk regulations because they no longer meet the original intent to be applied only in exceptional circumstances,” the consultation document stated, later adding: “The application of LCWRA risk has gone beyond the original intent. 14.6% of new claims issued under the LCWRA are currently at danger.”
Clifford’s attorneys contended that this indicated that the usage of significant risk rules was increasing. However, an internal graph supplied by the DWP under disclosure indicated that the percentage of LCWRA decisions based on considerable risk had climbed from 2009 to a high in 2015, but had subsequently been declining for years and was currently as low as it had ever been since the WCA was created. This information was made accessible to the DWP but not to the public, and the decreased trend of cases was not noted in the consultation paper.
“It’s scarcely imaginable that that wouldn’t have been pointed out by consultees,” Royston said the judge, “but it couldn’t, it was information only available to the defendant.”
Restricting the application of considerable risk restrictions is expected to result in 163,000 persons receiving reduced benefits by 2029. According to an internal DWP paper dated August 21, 2023, “the reduction in income alone might be a bigger contributory factor to a deterioration in mental health than undertaking work preparatory activity”.
The case for the defence
The court review questions the validity of the consultation procedure. Thus, the legal question is not whether the consultation process was faulty, but whether it was so unjust as to be illegal. Clifford’s complaint rests on four grounds, contending that the DWP:
- failed to adequately explain that its proposals would mean benefit cuts and mandatory work-related activity for large numbers of people
- failed to adequately explain the rationale for the proposals, clouding the importance of cost-cutting and not disclosing downward trends in the use of the substantial risk regulations
- did not provide enough information on the impact of the proposals
- did not allow a long enough consultation period
The DWP responded in court that the consultation time was lengthy enough to allow for 1,348 written comments, which were not published, and that there was no evidence of anyone misinterpreting the plans. The DWP said that many respondents voiced concerns about conditionality and benefit reduction, and that no charities or advocacy organizations who replied to the consultation identified persons who were unable to grasp the consultation papers.
The DWP’s legal team, led by Sir James Eadie KC, argued that existing claimants would have understood the implications of the proposals for benefit payments and mandatory work-related activity – a point that Clifford’s team disputed – and that, far from being the primary motivation for the proposals, reducing public spending was simply a byproduct of the key driver of getting disabled people into paid work.
He said that the solutions that were advanced were picked because of their relevance to changes in the workplace, such as the development of working from home, rather than their prospective savings.
In terms of substantial risk regulations, the DWP claims that it relied on a variety of statistics to conclude that the regulations are not being used only in exceptional circumstances, as intended, and that even if its statistics were incorrect, they were not so inaccurate as to render the consultation illegal.
Impact
The DWP’s impact assessment of the plans seems to be still in the “draft” stage, but internal DWP numbers supplied to the claimant indicate that the measures might force up to 100,000 people into poverty.
An addendum to an internal paper prepared by the DWP as part of the preparation for the 2023 Autumn Statement stated: “100k into absolute poverty AHC [after housing costs] in 26-27 based on illustrative 10% reduction in on-flows.”
The paper, dated 30 August, does not explain how this amount was derived. It may take into account the incontinence and social engagement suggestions, which were eventually rejected, but were not anticipated to have a large effect. It may have the effect of reassessing previous claims who were classified as LCWRA owing to the significant risk restrictions, which is unlikely to occur in reality.
What is certain, however, is that the DWP expects that the measures would touch around 457,000 individuals by 2029, while the Office for Budget Responsibility calculates that just 15,400 of them, or roughly one in every thirty, will find paid job as a consequence.
People who responded to the DWP’s survey did not have access to these numbers, which were released in April of this year.
A DWP representative declined to comment on ongoing legal actions.We’ve been clear that the work capacity evaluation isn’t functioning. That is why we will publish a green paper outlining our plans for changing the health and disability benefits system as part of a comprehensive strategy to help disabled people go back to work and, as a result, reduce the benefits cost.
“We will work closely with disabled people and their organisations as we develop our proposals, which we will publish in the spring.”
Mr Justice Morris, the judge overseeing the judicial review, will make his judgment in due time.
Meanwhile, remote from the court review, Stride wrote in his local newspaper on Tuesday (17 December) that the measures he put forth in government “would see over 400,000 fewer people on long-term benefits and save billions from the welfare bill”.
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