December 2013 ESA Assessment Discriminates Against People with Mental Health Problems

06/12/2013
The Court of Appeal has rejected the DWP's appeal against an Upper Tribunal decision that claimants with mental health problems are put at a 'substantial disadvantage' by the work capability assessment (WCA).

In MM & Anor, R (on the application of) v Secretary of State for Work and Pensions [2013] EWCA Civ 1565, published today, two claimants were granted permission for judicial review of Employment Support Allowance decisions on the basis of that the work capability assessment discriminates against claimants with mental health problems (MHPs) by reason of the failure of the Secretary of State for Work and Pensions (SSWP) to obtain further medical evidence (FME) relating to them in breach of his duty to make 'reasonable adjustments' under section 20(3) of the Equality Act 2010 (the Act).
This was because - whilst the system is designed to deal with a high volume of claimants who can accurately report the way in which their disability affects their fitness to work - claimants with mental health problems have a number of specific difficulties in self-reporting, for example they may lack insight into their condition, their condition may fluctuate day by day, or they may be unable to accurately explain how it affects them.

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