A judge has ruled that the Department for Work and Pensions (DWP) acted unlawfully by presenting proposed reforms of the work capability assessment (WCA) as a way to support disabled people into work – without admitting that budgetary concerns were a main reason for the proposals.
Disability rights campaigner Ellen Clifford took the case to the high court in December with legal assistance from charity the Public Law Project.
The proposals were formed by the previous government in 2023, but the current government planned to push ahead with the changes (“Ability to work in focus,” Community Living, spring 2024).
The WCA determines whether claimants are eligible for employment and support allowance, and which rate of the benefit they will get. For universal credit, it helps to decide what, if any, work-related conditions the claimant must meet to get their benefit and how much they will get.
Not open about effects
According to the judgment by Mr Justice Calver, during the eight-week consultation before announcing the plans in the autumn 2023 budget, the DWP failed to explain the real impact the changes to the assessment would have on disabled claimants.
This included that it could lead to many new or reassessed claimants who underwent the WCA not meeting the criteria for having limited capability for work-related activity. It was estimated that this would lead to 424,000 getting a lower rate of benefit, leaving many worse off by almost £5,000 per year.
The judge accepted the following points from Clifford about the consultation:
- It did not explain properly that many disabled people could receive significantly less money as well as being required to meet new or additional conditions to get their benefit
- It presented the changes as being about helping disabled people to get or improve their chances of obtaining paid employment. However, no evidence was given to explain how this aim would be met, while the motive to reduce spending on disability benefits was not mentioned
- The consultation period before the announcement was too short given the significance of the proposals, and it did not give enough time for disabled people and their representative organisations to fully engage with the process.
The judge said: “In setting the consultation period, the defendant [the DWP] ought to have had more regard to the attributes of those people who would be affected by these proposals.
“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.”
Following the judgment, a spokesperson said that the government will address the shortcomings in the previous consultation and consult again on potential changes to the WCA.
Changes were presented as being about helping disabled people to get paid work but no evidence was given to explain how this aim would be met
Clifford said she was overjoyed that the court recognised it was important to consult disabled people properly on such reforms.
“This is a life-or-death issue,” she said. “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.
“We now urge the government to rethink these proposals and make the safety and wellbeing of disabled benefit claimants their priority, as well as commit to consulting us fairly and lawfully in the future.”
Case report
R v Secretary of State for Work and Pensions. [2025] EWHC 53 (Comm).
