{jcomments on}Just hours after they lost a Court of Appeal hearing about the work capability assessment, the DWP sent out a memo to all staff pouring scorn on the decision by declaring that nothing would change and that it was ‘Business as usual' as far as they were concerned.

{EMBOT SUBSCRIPTION=5,6}The Court of Appeal case concerned an interim finding by the Upper Tribunal in May 2013 that failure by the DWP to gather further medical evidence for claimants with mental health conditions caused them a substantial disadvantage. The case had been brought by two anonymous individuals – MM and DM – with the support of major mental health charities including Mind, Rethink and the National Autistic Society.

The Upper Tribunal ruled that the DWP would need to make changes to the way they dealt with employment and support allowance claimants with mental health conditions and gave them time to go away and come up with reasonable adjustments. The DWP appealed to the Court of appeal before the case was completed, but in December 2013 they lost on three of the four grounds on which they appealed.

Immediately after the Court of Appeal hearing, the claimants’ solicitor, Ravi Low-Beer of the Public Law Project, stated:

“It is regrettable that the Government chose to appeal against the tribunal’s finding that people with mental health problems are disadvantaged by the current system, rather than take the steps necessary to improve it. Now that the Court of Appeal has upheld the tribunal’s finding, we sincerely hope that the Government will take immediate steps to improve the system. Disabled people, charities and many others are only asking the Government to implement the recommendation of the independent expert the Government itself appointed. This has been delayed since May 2013 while the Government appealed. It should not be delayed further.”

However, just hours after they lost their appeal, the DWP sent out a memo to all ESA staff telling them, effectively, to ignore the court’s findings.

Under the heading ‘What does this mean for the Department?’, senior DWP staff told them:

“It will be business as usual for DWP Operations. Individuals will apply for ESA and undergo the WCA in the normal way. Those currently on Incapacity Benefit will be reassessed as planned.”

In fact, the memo repeats the phrase ‘Business as usual’ no fewer than six times, to reinforce the message that staff should continue to treat claimants with mental health conditions in the same unfair way.

Under the heading ‘Does the WCA put people with mental health conditions at a disadvantage?’, staff were told – in complete contradiction to the court decisions:

“We do not believe so and this was one of the reasons we appealed the interim judgment. But we do recognise the challenges in accurately assessing people with mental health conditions, and the potential vulnerability of such claimants.”

However, the DWP are clearly aware that not everyone may agree with their view of the importance of the court decisions.

Under the heading ‘What if I receive a letter from a customer or their advocate that is claiming for damages / threatening a judicial review / requesting us to obtain medical evidence “in accordance with MM & DM”? ‘ the memo states:

“We do not expect individuals will be able to claim for damages on the basis of this judgment. However if you receive such a letter, you must send it immediately to the Treasury Solicitors Department.”

It now remains to be seen what view the courts will take of the DWP’s continued determination to treat claimants with mental health conditions unfairly.

You can download the DWP memo from this link.


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