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ESA Work Capability Assessment - changes since court ruling on discrimination?

Yasemin Yilmaz made this Freedom of Information request to Department for Work and Pensions

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Dear Department for Work and Pensions,

On 4 December 2013 the Court of Appeal upheld the judgment of the Upper Tribunal in May 2013, that the Work Capability Assessment (WCA) process of Employment Support Allowance places people with mental health problems, learning difficulties and autism at a 'substantial disadvantage' compared to people without those disabilities. This was followed by an Upper Tribunal hearing on 7-9 July 2014 concerning 'reasonable adjustments' that could address the discrimination faced by the above groups undergoing the WCA. I understand that the outcome of the hearing in July is yet to be announced.

However, my questions are:

1. Since 4 December 2013, has the DWP taken any steps to prevent the WCA from placing people with mental health problems, learning difficulties and autism at a substantial disadvantage?

2. If the answer is Yes, please clearly specify what steps it has taken, including any relevant changes introduced to the WCA from that date?

3. If the answer is No, please explain the reasons for this and indicate whether and when the DWP will be taking action in response to the court ruling ?

Yours faithfully,

Yasemin Yilmaz

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DWP Strategy Freedom of Information, Department for Work and Pensions

Dear Yasemin Yilmaz,

Thank you for your Freedom of Information request.

You can expect a reply by 2/3/15 unless I need to come back to you to clarify your request or the balance of the public interest test needs to be considered.

If you have any queries about this letter please contact me quoting the reference number above.

Yours sincerely,

DWP Central FoI Team

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Your right to complain under the Freedom of Information Act

If you are not happy with this response you may request an internal review by e-mailing [DWP request email] or by writing to DWP, Central FoI Team,
Caxton House, Tothill Street, SW1H 9NA. Any review request should be submitted within two months of the date of this letter. Please remember to quote the reference number above in any future communications.

If you are not content with the outcome of the internal review you may apply directly to the Information Commissioner’s Office for a decision. Generally the Commissioner cannot make a decision unless you have exhausted our own complaints procedure. The Information Commissioner can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow Cheshire SK9 5AF
www.ico.org.uk/Global/contact_us or telephone 0303 123 1113 or 01625 545745

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DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Dear Yasemin Yilmaz,

Thank you for your Freedom of Information request. Please find enclosed our reply.

If you have any queries about this letter please contact me quoting the reference number above.

Yours sincerely,

DWP Central FoI Team

------------------------------------------------------------------------------------------------------
Your right to complain under the Freedom of Information Act

If you are not happy with this response you may request an internal review by e-mailing [DWP request email] or by writing to DWP, Central FoI Team, Caxton House, Tothill Street, SW1H 9NA. Any review request should be submitted within two months of the date of this letter. Please remember to quote the reference number above in any future communications.

If you are not content with the outcome of the internal review you may apply directly to the Information Commissioner’s Office for a decision. Generally the Commissioner cannot make a decision unless you have exhausted our own complaints procedure. The Information Commissioner can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow Cheshire SK9 5AF
www.ico.org.uk/Global/contact_us or telephone 0303 123 1113 or 01625 545745

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Dear DWP Strategy Freedom of Information,

On 2 February 2015 I asked,

"On 4 December 2013 the Court of Appeal upheld the judgment of the Upper Tribunal in May 2013, that the Work Capability Assessment (WCA) process of Employment Support Allowance places people with mental health problems, learning difficulties and autism at a 'substantial disadvantage' compared to people without those disabilities. This was followed by an Upper Tribunal hearing on 7-9 July 2014 concerning 'reasonable adjustments' that could address the discrimination faced by the above groups undergoing the WCA. I understand that the outcome of the hearing in July is yet to be announced. However, my questions are:
1. Since 4 December 2013, has the DWP taken any steps to prevent the WCA from placing people with mental health problems, learning difficulties and autism at a substantial disadvantage?
2. If the answer is Yes, please clearly specify what steps it has taken, including any relevant changes introduced to the WCA from that date?
3. If the answer is No, please explain the reasons for this and indicate whether and when the DWP will be taking action in response to the court ruling?"

You replied on 18 February 2015 but I am not satisfied with your response, which is evasive, unclear and raised more questions than provided answers. You have not directly answered my first question by specifying whether or not the DWP has, since 4 December 2013, taken any steps to prevent the WCA from placing people with mental health problems, learning difficulties and autism at a substantial disadvantage. However, you suggest it has done so by listing examples of changes made to the WCA in relation to this group. However, two of the examples you provided refer to changes made before December 2013 (with both introduced in 2011), and two refer to the recommendations of two parliamentary reviews of the WCA, which are separate from the court ruling. A further example you have listed refers to an Evidence Based Review of the descriptors used in the WCA, but this does not appear to have been carried out as a result of the court ruling either.

The only remaining example you have given does seem to address my second question. This states,

“we are also redesigning the ESA50 claimant questionnaire to make it clear that evidence, particularly in mental health cases, from Community Psychiatric Nurses, Support Workers, Carers etc is valuable”.

Does this mean, then, that the only step that the DWP has taken to prevent the WCA from placing people with mental health problems, learning difficulties and autism at a substantial disadvantage in response to the court ruling in December 2013, is the introduction of the above change to the ESA50?

If that is correct, it is worth noting that information regarding the type of evidence to send with the ESA50 was only very recently added to the form in March 2015. I would therefore be grateful if you could please tell me why has it taken so long to make one relatively small adjustment to the WCA form? Furthermore, why it is taking so long to release the outcome of the hearing before the Upper Tribunal in July 2014?

Yours sincerely,

Yasemin Yilmaz

DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Dear Yasmemin Yilmaz,

Please find attached the reply to your FOI Review 230.

Yours sincerely

FOI Team

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