People on legacy benefits were not given the £20 per week increase, which would amount to £1,040 per year. The campaigners outside the High Court in 2021. Image: @imajsaclaimant
A legacy benefits claimant who took the government to court claims it is “astonishing” a judge can find “discrimination” against disabled people but still rule against them.
Phil Wayland argues the benefits system is “torturous” for vulnerable people who already have the “deck stacked against them”.
“When you’re on welfare, it is always a battle,” he said. “The government is using the tactic of hardship to promote behavioural change and force you into work. They make life intolerable. People are not living a life on benefits. It isn’t an existence. I barely leave the house.”
Both the High Court and recently the Court of Appeal dismissed the case, and just over two million claimants missed out on hundreds of pounds of backdated payments. A spokesperson for the government said they “welcome” the judgement and claimed they “always work to provide a supportive and compassionate service”.
The judge found “unjustified indirect discrimination” against disabled people but concluded legacy benefits claimants were in a “materially different position” to universal credit claimants.
The Department for Work and Pensions (DWP) argued the uplift was intended to mitigate the impacts of people being unable to work because of lockdown. As legacy benefits are often claimed by people who cannot work, their situation was said to be incomparable to people on universal credit.
“It’s astonishing that in this country you can have a judge agree there was discrimination but say it was justified,” Wayland said, referring to the final decision. “Then you set that in the context of a once-in-a-generation pandemic. The people who have been discriminated against here are sick and disabled people, so they’re the most vulnerable in society at the best of times. It’s just staggering, frankly. It’s inhumanity.”
Disabled people made up six in 10 (59.5 per cent) of coronavirus deaths from January to November 2020. According to government data, more than 78,000 disabled people died of coronavirus between January 2020 and March 2022.
Jamie Burton, the barrister who represented the legacy benefits claimants, told The Big Issue he believes the court of appeal has made the wrong decision and the legal team is currently considering next steps. He said: “There’s a moral dimension, but it is also a legal issue. We’re dealing with discrimination here.”
The increase to universal credit lifted 1.7 million people out of poverty, according to the New Economics Foundation. Burton said it meant food banks were not overburdened, people avoided debt and it alleviated the mental health impacts which so often darken the lives of people living in poverty.
“When looked at that way as an anti-poverty measure,” Burton said, “implemented because existing benefits were insufficient to avoid poverty, there’s just no proper justification for not giving it to everybody who was dependent on benefits.”
Burton claimed ministers introduced the uplift because they were “terrified of potentially three to five million potential Tory voters coming onto benefits for the first time and realising that they’re completely inadequate and our benefit system is very ungenerous”.
Legacy benefits are being replaced by universal credit, so Burton argues differences are “arbitrary”. A DWP spokesperson said it has “always been the case that claimants on legacy benefits can make a claim for universal credit if they believe they will be better off”.
Wayland, who is 42 and lives in Essex with his mother, said he does not want to voluntarily move to universal credit because it would mean more assessments and he has had “a bloody ’nough of them”.
He first started claiming benefits in 2010, when signed off from work due to drug dependency and associated mental health struggles. The DWP carries out work capability assessments to determine whether a person is fit to work and how much they should receive in benefits.
“It’s a torturous process,” he said. “At that time, it was difficult for me to understand my own problems and what I was going through, and the government’s putting you on the spot to describe it. Your existence and your money rides on it, and I couldn’t even understand it myself. I needed counselling to work through my problems. I think it’s disgusting to do that to people with mental health issues.”
A spokesperson for the DWP said: “We support millions of people each year and always work to provide a supportive and compassionate service. We have made improvements to our decision-making process and in the majority of cases make the right decision.”
The Big Issue has not seen data to confirm this – the most recent government data published in December 2022 found just 34 per cent of DWP appeals over ESA claims are upheld.
“After 13 years of this, it is not coincidental,” Wayland said. “It is policy. Where else in society would you keep your job if you failed 60 to 70 per cent of the time? It wouldn’t happen. They continue to employ these people to deal with the most vulnerable people in society and fail at that spectacular rate. How this has not been a bigger scandal, I don’t know. It’s just deliberate cruelty.”
The DWP spokesperson said disability assessors are “qualified health professionals” and the priority is to ensure that people get benefits they are entitled to as soon as possible. They claim decisions are made using all the information available at the time and if someone disagrees with a decision they have the right to ask for a review.
Once they win their appeal, ESA claimants like Wayland who are deemed fit to go back to work in the future receive £77 a week. Just to put that into context, a person working full time on minimum wage earns around £380 a week.
“Luckily, I’ve got my mother. She’s 79. If I was on my own and didn’t have her, I would be screwed, to put it bluntly,” Wayland remarked.
He said he feels “despondent” after losing the appeal, and cannot stop thinking about the two million others he was fighting for. But he added: “People have been rallying around us. There’s times when taking on the government can be lonely. But I’m doing it for a bigger cause. That kept me going.
“People are in far more dire straits than I ever was. There are people having to survive on the food bank and worrying where their next meal is coming from, trying to get mental health care or facing the limitations of a disability. They haven’t got the scope to take on the government. Their day is fixated on just getting by. That was always on my mind. I just thought: ‘I’ve got to take a stand.’”
A UN poverty expert said in 2018 the “government’s policies and drastic cuts to social support are entrenching high levels of poverty and inflicting unnecessary misery in one of the richest countries in the world”. The government has denied this – claiming the welfare system provides a “strong safety net” for vulnerable people.
“We have to keep trying to fight back and make it as difficult as possible for the government to treat people so badly,” Wayland said. “But unfortunately, the deck is stacked against us. We need systemic change.”
“It seems pretty clear the government won’t do this again,” Burton said. “They’ve tried to ensure that legacy benefit claimants also get whatever one-off payments are deemed necessary to combat the cost of living crisis. Our strong view is that this has influenced government policy. This case was very hard fought. We threw everything we could at it, as much evidence as we could, and I genuinely believe we’ve won the case in the court of public opinion.”
Burton also believes the case has made a fundamental difference to government policy. Benefits are set to increase in line with inflation from April, with legacy benefits increasing just as much as universal credit. They are also receiving the same cost of living payments.
Wayland does not believe there will be any real progress until there is a change of government and, even then, he worries that disabled people will still face discrimination. He fears losing the case will give the government reason not to make improvements for vulnerable people.
“In theory, the government should have realised that this isn’t acceptable,” he said. “But I’ve just got no inkling that it would even cross their mind. I’m a bit despondent. But going forward, I haven’t lost hope. Even though we didn’t win, it’s still beneficial. It raised awareness for the issue, and hopefully that builds momentum for future cases.”
Burton agreed that lessons must be learnt for the future. “We must be very careful that we don’t ever find ourselves in a situation again, where non-working disabled people are treated as basically being less useful and somehow less worthy,” he said.
“You could easily see a future where we have a two-tier benefits system where if you can work, they’ll give you a bit more money, but if not they will throw you on the scrapheap then you will just be given the bare minimum. That would be a very dangerous precedent.”
Read more of The Big Issue’s coverage of the legacy benefits court case:
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