This morning we received the final judgment in our appeal of the judicial review of the consultation for PIP. The appeal was not successful.
The full text of the judgment is linked below but I will quote here the key paragraphs that my solicitor pointed out.
Once it was accepted, as it had to be on the evidence, that the Respondent approached the 2013 consultation with an open mind, it seems to me that the challenge to the process as a whole must fail. It is explained in the evidence that all options were open as to the “Moving around criteria”, even if that meant changing the criteria for “Planning and following journeys” or looking for funding elsewhere. The reality was that consultees such as Mr Sumpter had every opportunity to present to the Respondent the difficulties that the move from a 50 metre benchmark to a 20 metre one would cause to them. It is clear that such opportunity was taken. In reality, it would have gone nowhere to contend in the consultation that the physically disabled should continue to be favoured at the expense of those who suffered other disabilities. No doubt none would have wished to present such an unattractive argument. Given the Respondent’s overall policy to make PIP available to a wider category of the disabled, new beneficiaries obviously had to come into the equation and there would have been no point in contending that they should be excluded.
…As I understand the law, consultation has to be fair; it does not have to be perfect. With the benefit of hindsight, it will no doubt often be possible to show that a consultation could have been carried out rather better, but that will not necessarily mean that it was unfair. That is what the judge said at paragraph 123 of his judgment and I agree with him.
I note that the judge did draw attention to the choice that the government made to frame continuing to help physically disabled people as unfairly withholding help from people with mental and cognitive difficulties. He did not, however, find it relevant that the consultation failed to admit the government decision to give new help at the expense of help previously available. The judge implied that people responding to the consultation only needed to talk about the difficulties we would face, not about the decision to take money away for use elsewhere.
This time last year we took the Department of Work and Pensions to a judicial review to decide if they properly consulted about cutting help for people who can only walk a few metres.
The original consultation did not make clear the plan to cut the qualifying maximum distance from 50 metres to 20. In quite strong language for a judge, the court noted that the consultation was “Mind-bogglingly opaque”, “At best ambivalent”, and “Convoluted, inherently unclear, ambiguous and confusing. No construction allows for full coherence.”
Nevertheless, the court found – very narrowly – in favour of the government and said that the second consultation, started after this judicial review was in motion, was enough to make things right.
This week we are back in court to appeal that decision. We argue that the second consultation could never have changed the decision that had already been made. The hearing will take place in the Royal Courts of Justice in London from 10:30 on the 14th and 15th of July. The judgement will follow a few days later.
It is frustrating that this case is about whether the consultation on PIP was fair rather than about the cut itself, but the courts cannot decide on government policy. As part of their defence the DWP pointed out that they are fully aware of the impact of their policy, and are removing DLA from “individuals with genuine health conditions and disabilities and genuine need” and “removing or reducing that benefit may affect their daily lives.” The DWP did do a consultation on their policy though, and that consultation wasn’t fair, so that is what we are fighting.
As part of the Welfare Reform Act 2012 the government replaced Disability Allowance with Personal Independence Payments. Their main reason for the change was to introduce repeated frequent testing to see if claimants have miraculously healed. They also changed the maximum distance that you can walk and still qualify for help towards regaining your mobility. Under DLA the cutoff was recognised to be 50 metres. Under PIP it has been slashed to just 20 metres. This means that if someone can walk more than 20 but less than 50 metres (subject to a few caveats) then they will no longer get the highest amount for the mobility component of PIP. Assuming the person still qualifies for the lower rate of mobility, this is a cut of £35.65 per week. But worse than that, the higher rate mobility component is a gateway to all sorts of help including the right to lease a car or wheelchair through the Motability scheme. As a result of this cut more than a hundred people are losing their car every week, and many thousands more will follow when they are reassessed for PIP. Losing independent transport means losing independence and access to services.
The Department of Work and Pensions have today announced that they will hold a “further consultation on the mobility component of Personal Independence Payment (PIP)”.
This follows the outcry after the threshold to be eligible for the most help with moving around was tightened from fifty metres to twenty metres with no indication during the consultation that this would be the case. Myself and two others had initiated a Judicial Review against the DWP to declare the consultation invalid and force a rethink. The Judicial Review would have taken place at the end of July.
The DWP would very much like you to believe that it is holding this new consultation because it is a kind and listening department and their announcement does not mention the court proceedings at all.
“However, the department has received significant feedback from disabled people and their organisations that they want a further opportunity to comment on the finalised assessment criteria rules around the mobility component. That is why it is now giving notice of a further consultation to be launched late June.”
However the emails sent out to my solicitor and to members of the stakeholder consultation forum had a subject line of “Re: Judicial Review” so make of that what you will.
While this new consultation is very good news it is not an admission that the twenty metre eligibility is wrong or an indication that the DWP will change their minds. We will have six weeks to make sure that the DWP has no choice but to admit that the twenty metre limit will cause serious harm to a great deal of people, withdrawing support from people that desperately need it. I will publish details of how to contribute to the consultation once they are available.
A lot of credit is due to Jane Young and We Are Spartacus for getting legal action organised to bring about this new consultation.
I will be discussing with my solicitor and other people involved what step to take next.
A small debate by MPs took place in Westminster Hall on the 18th of December 2012. That debate although short, was full of speeches and stories by MPs vindicating what campaigners have been telling the government for the past two years. But that debate was not enough. It was ended with a speech by “Minister for disabled people” Esther McVey which was dismissive of all that had been said, if she even listened to it.
We call for a Cumulative Impact Assessment of Welfare Reform, and a New Deal for sick & disabled people based on their needs, abilities and ambitions
Responsible department: Department for Work and Pensions
We call for:
A Cumulative Impact Assessment of all cuts and changes affecting sick & disabled people, their families and carers, and a free vote on repeal of the Welfare Reform Act.
An immediate end to the Work Capability Assessment, as voted for by the British Medical Association.
Consultation between the Depts of Health & Education to improve support into work for sick & disabled people, and an end to forced work under threat of sanctions for people on disability benefits.
An Independent, Committee-Based Inquiry into Welfare Reform, covering but not limited to: (1) Care home admission rises, daycare centres, access to education for people with learning difficulties, universal mental health treatments, Remploy closures; (2) DWP media links, the ATOS contract, IT implementation of Universal Credit; (3) Human rights abuses against disabled people, excess claimant deaths & the disregard of medical evidence in decision making by ATOS, DWP & the Tribunal Service.
Yesterday the government released the final regulations for Personal Independence Payments. I haven’t absorbed enough detail to do a full blog post on this yet but these are some useful links related to it.
Owen Jones confronted Iain Duncan Smith with the names of two people who have died as a result of the work capability assessment. He did not react well. I urge you to watch this video of the last part of Question Time, particularly the last minute if you want to see what IDS is really like.
“Hang on a second, we’ve heard a lot from you. Let me tell you something. I didn’t hear you screaming about two and a half million people who are parked, nobody saw them for over ten years, not working, with no hope, no aspiration, we are changing their lives, I am proud of doing that, getting them off benefit is what we are going to do.”
Iain Duncan Smith is proud of getting people off benefits. Never mind that there is no work for them to go to even if they can, and that the way lives are being changed is by sending people further into poverty and homelessness. Not only that, but he thinks that being “parked on benefits” and left alone is a bad thing. Well those of us on permanent sickness and disability benefits do have hopes and aspirations. We hope to not have too much pain today and we aspire to getting the care that we need so that we can undertake something entertaining that isn’t lying in bed waiting to die. We probably don’t aspire to being a rich Tory, which is probably similar to being dead in the head of Iain Duncan Smith. As for nobody seeing sick people, now they are being reassessed so frequently that they are committing suicide. Winning an appeal at tribunal often leads to an immediate call to another assessment.
The WCA continues to be portrayed in an extremely negative light, often fuelled by adverse media coverage, representative groups and political points scoring. Whilst the Review continues to hear examples of individuals who have been poorly treated by the WCA process, DWP can be reasonably pleased with what they have achieved. Some recognition of the considerable work to date would give a more balanced picture and DWP needs to be more proactive in communicating this. [Emphasis mine.]
I don’t know what world Harrington inhabits but that “adverse media coverage” was brought about by relentless campaigning from those who are directly affected in horrendous ways – “representative groups” and the only “political points scoring” we’ve made has been nearly universally against all three main parties. We have had a very hard time getting people within those parties to see the problem at all. Calling for the DWP to get better PR is not the solution.
Right in the foreward I was struck by his comments about tribunal judges.
Recommendations on the training of professionals in DWP Operations, Atos Healthcare and the Tribunals have produced some limited progress. In particular, it is regrettable that the First-tier Tribunal has effectively distanced itself from the rest of the WCA. Feedback from the Judges to the Decision Makers has, at last, started in a rudimentary way. However, much, much more is needed if we are to see a real dialogue between the Judges and the Decision Makers. This must happen on cases where there is a difference of opinion on what category is appropriate for that case based on the same set of evidence. For the First-tier Tribunal to suggest that the WCA Independent Review has no remit to consider the appeal stage of the process is illogical and untenable in my view. [Emphasis mine.]
Harrington is calling for feedback from tribunal judges to the Atos assessors and the DWP decision makers over why they reached different decisions to those made by the DWP. However the comments that Robert Devereux DWP private secretary made before the Public Accounts Committee on the 19th appear to be directly quoting the paragraph above out of context and instead criticised the tribunal judges for reaching a different decision. His thought appears to be that if looking at the same evidence then the decision should also be the same, without considering that the original decision makers might have been wrong. What Devereux and Harrington both seem to have missed is that Atos and the DWP have often failed to look at the evidence at all and the face-to-face assessment is not likely to find anything that strays from the Lima computer system’s checklist. There have been many cases where Atos and DWP staff have refused to look at evidence from healthcare professionals or refused to wait for evidence, and many more cases where evidence has been lost in the system somewhere between health care professional and decision maker.
One of Harrington’s conclusions stood out to me:
The Work Capability Assessment (WCA) remains a valid concept for assessing benefit claimants’ eligibility for Employment and Support Allowance (ESA). Whilst the WCA continues to garner considerable – and sometimes, but not always, justifiable – criticism the Independent Reviewer has not seen or heard any compelling arguments or evidence that the whole system should be scrapped. Instead it needs to be made fairer and more effective by improving both the process and the technical descriptors used to assess eligibility.
I know a lot of people would disagree with that, but I think this is a lost battle and the public will continue to support assessments in this way. I took a little more hope from his recognition that we do need change.
A number of the major charities in this year’s call for evidence say that although they have seen some change for the better, it is disappointingly incomplete in coverage and depth. I agree with them. Changing such a large and complex process and such a controversial assessment takes time – it is happening.
So far as the descriptors are concerned, progress has been positive but slow. We are close to a new and much improved set of provisions for cancer treatment. For the mental, intellectual and cognitive conditions descriptors and for the fluctuating condition descriptors, work is underway for a formal review of new proposals from a number of charities to compare them with the existing descriptors. This work will continue into 2013 and I have been asked to chair the expert independent steering group overseeing the quality and validity of the evidence-based review. It is important to wait for the results of this before rushing to conclusions about how to change the descriptors.
We know from earlier this year that the DWP have been testing new descriptors and I hope that there will be progress on these so that serious conditions affecting ability to function which are currently missed will be noted in future. Also note in the paragraph above that Harrington is to continue working with the DWP on this aspect.
I am concerned that cancer treatment has been singled out as needing special attention once again. Cancer is very bad and unpleasant and everyone knows someone who has had it, that’s why it is politically dangerous to send patients on chemotherapy to work. However many other conditions are equally serious and yet not so media-friendly and are therefore treated differently. The Work Capability Assessment is supposed to be about assessing the impact of the condition on ability to function, not what treatment is being received.
Harrington made a number of recommendations to the DWP. I am pleased that the first is for decision makers to consider the need for further documentary evidence. Whether they will do this or not is another question but as I said before the gathering of evidence is a big problem.
It is essential that all relevant medical and allied evidence about the claimant is available to the DWP Decision Maker at the earliest possible stage in the assessment process. If this can be achieved then Tribunals will be based on Judges and Medical Members considering the same body of evidence as the Decision Maker did.
Less pleasing is his second recommendation:
DWP Operations need to find an appropriate balance between better quality decisions that are carefully considered and ‘right first time’ and the achievement of appropriate benchmarks at a local level.
Now I could be wrong here, but that looks very much like a target.
The third recommendation is that the DWP should try to get more feedback from tribunals as to why decisions are overturned. This seems reasonable as it could affect change in the decisions made to start with. The fourth recommendation is that the DWP must highlight improvements, and be open about problems. As I said before, better PR for the DWP is not the answer. I’m open to hearing about improvements made but not if they are used to distract from problems that remain unsolved.
Before we start I would like to point out that I am not a historian and I am not a sociologist and as such I have done my best to present the information here as I understand it. With that out of the way, I’ll start with an overview of how disabled people were treated in Germany during WWII.
The Aktion T4 programme ran in Germany from 1939 to 1945. In the 1920s Alfred Hoche and Karl Binding, part of an extreme eugenics movement, advocated killing those who were judged to have “life unworthy of life.” In the 1930s there were huge cuts to state institutions causing overcrowding and Nazi propaganda emphasised the cost of caring for mentally ill and disabled people. In 1939 parents of disabled child Gerhard Kretschmar wrote to Hitler to ask him to permit their child to be killed. Hitler agreed and immediately set up a committee whose job was to organise more such murders – Aktion T4. When the war started parents were told that their mentally ill and physically disabled children were being sent to special treatments centres. In fact they were murdered without the knowledge of the parents. The programme was soon extended to adults, starting in Poland then in Germany. Throughout the programme Hitler knew that there would be huge opposition to such killing and so he never put his orders in writing. The one exception was a secret letter written to authorise the formation of the Aktion T4 programme, mainly because his justice minister would not cooperate without one. The programme operated in secrecy until it was too late for most people. Under the programme at least 200,000 disabled people were murdered over six years, either through lethal medication, starvation or gas chambers.
Now we jump forward to Britain today. The events I describe in the paragraph above are unthinkable. No government minister, no tabloid newspaper, no man in the street would advocate such things, right?
That’s not quite true though. Most of the pieces are in place. We have propaganda pushing the idea that sick and disabled people are scroungers, workshy, lazy. This propaganda is coming from government ministers, their special advisers, and tabloids like the Daily Express, The Sun, the Daily Mail. Even broadsheets like the Times and the Telegraph have contributed. Such propaganda has even been raised by MPs in the Work and Pensions Select Committee and ministers told to stop. The propaganda is working too, with hate crimes against disabled people up in vast numbers.
We have many people fighting to legalise assisted suicide, inadvertently promoting the idea that life for some people is not worth living. Sure, we’re only asking for voluntary euthanasia, but what other factors might be in play? Pressure to stop being a burden, financial problems, cuts to care all contribute to a desire for death. If euthanasia becomes legal what is to stop people from being pushed to kill themselves? It may be overt or it may be through suggestion and through making their lives hell. (This is more my fear of how it could go wrong than any judgement on my part for or against euthanasia.)
We have cuts to local authority care budgets, starting in Worcestershire, that mean anyone whose care costs more than sending them to an institution will lose some care. The politicians argue that it’s a choice because people can choose to move to a care home or to cut some of their care provision. But what to cut? Eating? Washing? Dressing? Using a toilet? We have already seen people lose in court after fighting to not have to wear a nappy. Adults are expected to soil themselves rather than get help to use a toilet. We have also seen the loss of the independent living fund. The net result is loss of care or institutionalising people. Most care homes are run by private companies and neglect does not seem uncommon. I think more abuse and neglect is likely especially when companies are cutting costs because they have underquoted better homes.
We have sick and disabled people being judged as fit to work and told to claim job seeker’s allowance and look for work, and we have even more seriously sick and disabled people being placed in the Work Related Activity Group. Both groups are subject to The Work Programme where they are expected to undertake unpaid work experience for large companies, and government plans are to make such work placements of unlimited duration. Work makes you free.
Under these plans anyone who is seen to not be cooperating with The Work Programme and other work related activities will see their benefit income slashed. Those on Job Seeker’s Allowance can have their entire allowance removed entirely for weeks, even six months. Those on Employment Support Allowance (e.g. too sick to work) will see three quarters of their allowance removed. Of course anyone who has been judged as fit to work or has been placed in the WRAG is expected to be capable of going on work placements even if their assessment was wrong and they are waiting a year for an appeal, and even if people are seriously harmed by trying to work. The result is that those who don’t destroy themselves trying to find jobs that don’t exist or going to endless work placements will instead not be able to afford food, clothes, fuel bills, rent and more. Many will be able to use food banks but some will not be physically able to get to them and food banks rely on charity from other people who are struggling too.
Is it such a large step for disabled people to be dying? No. It’s already happening. Reports in April claimed that 1,100 people had already died after being placed in the work related activity group. That’s more than thirty people a week. This is what Chris Grayling calls “Tough love.”
Some government ministers make policy decisions without thinking about the consequences of what will happen in practice. Others are fully aware of what will happen and just don’t care. Either way, they are often covered by claiming that their policy in itself does not harm people, even though the flaws with implementation allow people to fall through the net and come to harm. Government ignore evidence. They dismiss statistics, they blame the previous government, they claim that processes are being sorted out now, they claim that any harm is the fault of the sick or disabled or unemployed individual. The Government are hiding behind Atos and A4e who are “just carrying out orders” but they way they carry out those orders makes things even worse. Government ministers have the same attitude as many other people in power – they can say “make it happen” and the minions do the dirty work.
In 1930s Germany the government themselves ordered the rounding up and the killing of disabled people. In modern-day Britain the government can claim that it is not their fault, even that it should not happen, but private companies and the chasm of bureaucracy between various government departments are what kill people. Starvation, homelessness and neglect are what will kill people. The implementation is different and the scale is different but the attitude and the outcome are the same.
So that’s it.
Tonight Lord Best forwarded an amendment to the WRB, asking that the government did detailed research on the impacts of the bill so that if it does – as many fear – cause more harm than good it can be dealt with quickly.
Lot’s of Lords spoke in support but eventually Lord Freud convinced the Peer that his amendment was not necessary and Lord Best withdrew. Now there will be no more ping-pong between the Lords and the Commons. The bill will become law. It just has to get Royal Assent, and that is a given.
It’s so sad to think that all the amendments put forward to help those who are vulnerable have systematically been denied by a blinkered government waving ‘finacial priviliage’ at any hint of Lords opposition.
Is this the end? No.
The big fight is just beginning.
Lawyers and Human Rights specialists are gearing up to fight it as are we. Remember the Poll Tax made law but was eventually defeated. We can work towards more protests and direct actions in the coming year.
The PIP consultation is currently ongoing so we have a chance to mitigate some of the damage it might cause. Go to wearespartacus.org.uk and you will find easy read documents, help and a sheet you just have to fill in to send off to the DWP so your voice is heard. There is even a forum you can join to get help and meet others like you. I’m making the most of it 😉
In a year and a bit we’ll have another general election and we can show the government exactly what we think of them. We’ll also have had our chance to get our stories out nationally by then.
It’s important we try to make this a major area for Labour and other parties to focus on so they don’t forget the WRB should they come back into power. We can keep up the pressure there.
And those are just the first things off the top of my head.
Let’s no get too disheartened about this, there is still plenty more we can do.
Since making my income public one thing that has been bothering me is that while my wife and I now receive enough money to live on and DLA to provide for the extra costs of my care and mobility, a vast number of my friends do not. And I feel sort of guilty about that. I know that I shouldn’t, I am getting the proper benefits for my circumstances, but I feel horrible that other people – many with greater need than me – don’t get the help that they are supposed to get.
I went through a Work Capability Assessment with Atos and I was placed in the support group. I know that I am sick enough to merit ESA and DLA but it was always in doubt whether Atos would recognise that. I can’t help wondering what would have happened if my journey to the assessment centre hadn’t been so awful. (You can read about that travesty on a previous blog post.) If I hadn’t arrived shaken, stressed and exhausted perhaps my assessment would have gone quite differently – Atos have been criticised for ignoring variable health problems and could easily have judged me differently if I had appeared well that day.
Perhaps it is chance that I ended up in the Support Group for ESA rather than the Work Related Activity Group or even found fit for work. But then my DLA was awarded on the basis of the Work Capability Assessment too, even though that isn’t supposed to happen until PIP is introduced. So is that two benefits received by pure chance? Being awarded ESA helped me to get DLA and getting DLA has increased the amount that I get from ESA, and both of those ensure that I get housing benefit too. At some point I may get carers allowance although that might lower the amount that I get from ESA.
The point is, I now have enough to live on without being in poverty and always struggling to pay the bills. Many other people are not so lucky. What I really want is for access to these benefits to be available to all the other people that need it. I have so many friends who haven’t got the benefits that they so desperately need. Friends who can’t walk, or can’t get out of bed, or can’t cook for themselves. Friends who have been through the assessments by Atos and refused on absurd grounds. Friends who are in hospital near death and don’t get benefits. I was really terrified that I wasn’t going to get my ESA, and the form filling for benefits and the assessment process itself made me more stressed which led to me being more physically ill too.
Even when people have managed to get all the benefits to which they are entitled it isn’t always enough. I need relatively few adjustments to live. A wheelchair, a shower seat. Some people need hoists and lifting equipment and wet rooms and stairlifts and bigger rooms to fit it all in… and the list goes on. Of course some of that can be paid for in other ways such as from council funds or (until now) the Independent Living Fund but many people end up sorting out their own adaptions. I talked to my GP about getting an NHS wheelchair yesterday and she suggested that it would be quicker and easier to buy one for myself. (Not that I can’t try to get an NHS one.) That happens a lot with costlier items too.
Clearly the benefits system isn’t great at the moment. It’s obvious that it needs reform to solve these problems. But – and this is an important but – the Welfare Reform Bill doesn’t solve these problems. It makes them far worse. It abolishes multiple sources of funding, it cuts the DLA / PIP budget by 20% and it restricts who can get help and who will receive PIP. Government ministers have told us that those most in need will get more help. What they are less keen to tell everyone is that the extra help for those most in need is being snatched away from those who are only quite in need. If you need help but not loads of help, that’s tough. Because the government says you’re not going to get any help at all.