DWP's 'misleading and unfair' consultation on disability benefit reforms unlawful, High Court rules

The Department for Work and Pensions’ (DWP) consultation into plans to slash billions of pounds from disability benefits has been ruled unlawful in a damning High Court judgement.

In a judgment published this morning (16 January), Mr Justice Calver said that the judicial review, brought by disability activist Ellen Clifford, had “surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful”.

Repeatedly describing the DWP consultation in autumn 2023 as “misleading”, “rushed” and “unfair”, he said:

• The consultation documents failed to highlight the “substantial” loss of benefits facing those affected by the proposals.

• The consultation gave the “misleading impression” that changes were required to ensure deaf and disabled people could access employment support, when they could already choose to access this voluntarily.

• Despite the consultation presenting the changes as being solely about helping disabled people into work, in reality “costs savings was at least one of the two bases, if not the central basis, on which decisions would be taken on which policies would be taken forward by the government”.

• The eight-week consultation was unlawfully short in the circumstances.

“The unfair burden upon vulnerable people of having to deal with a yet further consultation process at this time at such short notice cannot be overstated,” Mr Justice Calver said in his judgement. 

“In setting the consultation period, the [secretary of state for work and pensions] 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.” 

“I am overjoyed that the court has recognised the importance of properly consulting deaf and disabled people on reforms that would leave many worse off by at least £416.19 per month,” Clifford said in a statement responding to the judgement. 

“This is a life-or-death issue. 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 in this consultation. 

“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.” 

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An internal DWP impact assessment that has yet to be published indicated that up to 100,000 disabled people could be pushed into absolute poverty by the measures, although the exact basis on which this figure was reached is unclear.

The plans, which were drawn up by the last Conservative government, were scheduled to come in this year, meaning the incoming Labour government inherited them. So far, Labour has said very little on what its own plans are, amid speculation that ministers have been waiting to see the outcome of the judicial review.

Today’s judgment does not require the current government to drop the proposals or re-run the consultation, but if it tried to implement the cuts based on a consultation that has now been ruled unlawful, further successful legal action would likely follow. The government may choose to re-run the consultation, or find other ways to achieve the planned savings, which amounted to nearly £3bn over four years.

The government could in theory stop trying to cut the disability benefits bill, but so far Labour has repeatedly stated that it intends to cut spending in this and other areas.

The DWP’s disability benefit reforms were due to come in this year

The changes that were the subject of the unlawful consultation would affect people applying for disability payments under universal credit, by changing the way applications are scored in the work capability assessment (WCA). Existing claimants are unlikely to be affected, but the cuts are expected to hit more than 450,000 new applicants by 2029. 

Clifford, a member of Disabled People Against Cuts, brought the judicial review based on the DWP’s public consultation exercise around its proposals. She argued that the consultation was unlawful because:

• It did not explain properly that many people would receive significantly less money (£416 per month) if impacted by the reforms, and would be subject to tighter requirements around work-related activity.

• The consultation did not disclose that the main motive was to cut spending on disability benefits rather than get more people into work.

• The consultation paper did not provide any meaningful information about the likely impact of the proposals, which prevented consultees from being able to comment meaningfully on them.

• The consultation period was too short at just under eight weeks.

Last month Big Issue published details of internal DWP documents revealed at the judicial review hearing that suggested the proposals were at least as much about the Tories’ determination to cut benefits spending as they were about helping disabled people into work.

The documents showed DWP officials warning that evidence was needed to justify their line that the measures were about supporting disabled people rather than saving money, while internal communications revealed the public consultation was rushed through in time for the savings to be counted in the 2023 Autumn Statement.

At the time the consultation began, the DWP had made no estimate of how many disabled people would find work as a result of its proposals. It had, by contrast, been trying to work out how much money its plans might save.

While media coverage of the government’s plans focused heavily – and often approvingly – on the theme of cutting benefits, the consultation material barely mentioned the financial implications for disabled people, instead framing the proposals as helping disabled people take up the post-pandemic opportunities to work from home.

It was nearly six months after the consultation closed, long after the plans had been finalised, when the Office for Budget Responsibility (OBR) published its forecast that just 15,400 disabled people would find paid work as a result of the planned reforms by 2029 – compared to the more than 450,000 disabled people the DWP predicts will be hit by the cuts in that time, most of whom would lose out on up to £416 a month at current benefit rates. 

The DWP’s public consultation also failed to mention that recent years have seen falling use of the “substantial risk” regulations. 

One of the DWP’s proposals is to restrict the use of these regulations on the basis that “they are no longer meeting the original intent to be applied only in exceptional circumstances”.

But an internal graph released by the DWP as part of the judicial review proceedings showed that the proportion of decisions that were due to substantial risk had peaked in 2015 and was now as low as it had ever been back to when the WCA was introduced. This data was available to the DWP but not to the public, and the downward trend of cases was not mentioned in the consultation document.

The DWP’s plans cut the number of people qualifying for the highest rates of disability benefit via the “limited capability for work or work-related activity” (LCWRA) group.  

Disabled people in the LCWRA group do not have to undertake any activities related to finding work, whereas those assessed as having “limited capability for work” are expected to undertake activities preparing for employment. 

Those who don’t qualify as either LCWRA or limited capability for work (LCW) are effectively assessed to be non-disabled and must spend up to 35 hours a week actively looking for work or risk having their benefit cut.

The DWP chose to proceed with three proposals from the consultation, which have yet to be implemented: 

• Mobility problems will no longer be enough by themselves to qualify as LCWRA. 

• Difficulties getting between two places will score lower in relation to the LCW group. 

• The substantial risk regulations, under which people whose mental health would be harmed by undertaking work-related activity are placed in the LCWRA group, would only apply in exceptional cases.

Clifford was represented by Public Law Project and barristers Jenni Richards KC and Tom Royston.

Aoife O’Reilly, Clifford’s solicitor with Public Law Project, said: “We are delighted that the court has agreed with our client.  

“This judgment has vindicated our criticism of the DWP’s unlawful consultation and we now urge the government to scrap these planned reforms, which were disingenuously presented to the deaf and disabled people who would be affected. 

“Consultation is a key way for the general public to participate in state decision making and that crucial method of input should be respected. It is particularly important that consultation processes are undertaken conscientiously when it relates to policymaking that impacts groups that are often marginalised.  

“Deaf and disabled people should have been given a fair opportunity to share their input on sweeping and punitive proposals that, if implemented, will have a profound impact on all those affected.” 

The DWP has been contacted for comment.

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