Employment Support Allowance and Work Capability Assessments

submitted by Frances Kelly
Anyone with a long term illness or disability is already feeling the impact of the government welfare reforms. Incapacity Benefit has been abolished. Sick and disabled people are in the process of being forcibly migrated to Employment and Support Allowance. They are being subjected to Work Capability Assessments which are tests unrelated to their medical condition, tests which they do not understand and which have dubious validity.
The government target is for two thirds of sick and disabled people to be moved off the new replacement for Incapacity Benefit. This will be done by ‘helping’ them find work along with a regime of mandatory activity and  threats and sanctions. If this fails they may hit a time limit.
The main impact on the lives of sick and disabled people is fear. Fear that the meagre financial support that they depend on will be withdrawn. Fear that they will not be able to cope with the requirements being put upon them. In many cases the stress is impacting on their health and making them less well.
This is why the Impact Report published by the DWP on the recent proposed changes to ESA is truly shocking.
It isn’t just the inaccuracies in the report identified by Steve Griffiths that are so appalling.
It is the tone and focus of the report that is the real wake up call. As far as the government is concerned the impact of these reforms is not about the fear being visited on vulnerable people but solely about how much money will be saved.
Have the government completely abandoned any residual of duty of care to people with long term sickness or disability. Do the government now regard people who are disabled only as an economic burden to be minimised or otherwise disappeared.
Where is the compassion and concern for the lives of these people. Where is the assessment of how their lives will be turned upside down and made impossible as their only income is reduced and often time limited and stopped. Where is the covenant between the community and people who are disabled.
Fear and the loss of security, support and trust is the real impact of the introduction of ESA but shockingly these concerns are not raised in the Impact Report as the focus moves to saving money. The government has just wished all this fear and hardship away.
Further details can be found here
and here

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9 Responses to “Employment Support Allowance and Work Capability Assessments”

  1. Jules Says:

    Sanctions associated to forced actions….Hmmmm Slave Labour? Forced Activities? Sect4 Human Rights? Huge discussions are happening that suggests this Work Programme – Work-for-benefits thing may be illegal – Certainly Sanctions for not volunteering for something is equivalent to force.

    I was sent this so I share it here:

    >>Please find attached the summary of the case in law as to why workfare schemes may fall to be illegal . This was prepared by Michael Petek of Brighton Unemployed Centre who is happy to have it reproduced and distributed.

    I think Michael has put together an arguable case, which needs to be tested in law as soon as possible.<<

    Have cut and pasted the contents as I can not provide a link –

    1. Submitted, the implementation of a work-for-benefit scheme is a violation of the right not to be subjected to forced or compulsory labour. "Forced or compulsory labour" is defined in the ILO Forced Labour Convention 1930 as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily".

    2. Work-for-benefit is exacted under the menace of benefit sanction, which falls within the autonomous Convention definition of "criminal charge" in that it has a manifestly deterrent purpose, with indication of a penal purpose.
    1 The House of Lords in Secretary of State for the Home Department v MB [2008] 1 All ER 673
    reviewed the case law as distinguishing
    between measures merely preventative in purpose and those which "have a more punitive, retributive or deterrent object" (per Lord Bingham [19] to [24]).

    3. If C refuses a direction to participate in a work scheme save on the condition that he charges his stipulated rate and that there is a contract for services, he will almost certainly be sanctioned. Submitted, such direction and sanction would be unlawful, because it would purport to suppress his capacity to contract and to take the benefit thereof, in violation of Protocol 1 Article 1 of the ECHR (right to peaceful enjoyment of possessions), further
    without statutory authorisation. It would also violate Article 4 of the ECHR by forcing him to work outside the limits of his consent.

    4. Even if it were held that C offered himself voluntarily, the fact that he gave his prior consent to participation in work-for-benefit was held in Van der Mussele v Belgium
    (1983) 6 EHRR
    to be inconclusive. It was held at paragraph 40 that, in the case of prior consent, there must be a "considerable and unreasonable imbalance between the aim pursued (entry to the legal profession) and the obligations accepted as a condition of achieving that aim for there to be forced labour. The burden must be so excessive or disproportionate to the advantages attached to the future exercise of the profession that the service cannot be treated as having
    been voluntarily accepted. (at paragraph 37).

    5. Further to #4 the ECtHR took account of the fact that:
    (a) the required service was not unconnected with the profession in question (particular employment test);
    (b) in return for unpaid service the person received certain advantages, including the exclusive right of audience in court (privilege test);
    (c) the work contributed to professional training (training test);
    (d) the requirement related to the delivery of a Convention right of others to free legal assistance (rights of others test);
    (e) the service was similar to the "normal civic obligation" exception (Article 4(3)(d)) (civic obligation test);
    1 DWP Research Report No 313,
    A review of the JSA sanctions regime: Summary research findings,
    Michael Petek 09-02-2010
    (f) the burden imposed (involving unpaid work) was not such as to leave the person without sufficient time for paid work (hours test).

    6. It was held in
    Talmon v Netherlands (1977) ECtHR
    that Article 4 does not stand in the way of a requirement that an unemployed person take suitable employment. The case involved a claimant who lost on the merits having insisted that he was willing to work only as an independent scientist and social critic and was on grounds of conscience unwilling to take
    any other work.

    7. A work-for-benefit scheme does not comply with Article 4 because it does not meet all – in particular it meets none – of the criteria in #5:

    8. (a) there is in the terms of participation no indication of a promise or cause of legitimate expectation of regular employment on completion of service;
    (b) the stated aim of the scheme is merely to restore competitive parity on the labour market which C is likely to have lost in consequence of long-term unemployment, and does not include the aim of procuring access to a privileged occupation;
    (c) there is no element of training of any kind, let alone any with recognised credentials;

    (d) the work does not involve the delivery of a Convention right to others;
    (e) the service is, for reasons stated in #9, not similar to a normal civic obligation;
    (f) the service is exacted on a full-time basis to the exclusion of any significant time to seek or undertake paid work, and for a duration far in excess of what is necessary to effect labour market rehabilitation.

    9. Further to #7(e) work-for-benefit arrangements are not similar to a civic obligation. The terms on which service is exacted are consistent with the condition of servility, but not with the freedoms, property rights and public service expectations (eg. military or jury service) characteristic of citizenship.
    They derogate from the right of a free man to work for a wage
    or a fee under a contract of service or for services and to draw the benefit of the contract, namely his living from work he freely chooses or accepts (International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 6).
    10. Submitted, the premiss of work-for-benefit is that it is legitimate to exact labour services in
    consideration for benefits paid during such service or a previous period of unemployment. This premiss is misconceived. Save that Strasbourg jurisprudence assimilates social security benefits to private property, international human rights law otherwise knows social security
    and social insurance to be the object of a right, but not as a commodity which must be paid for except by taxes and social insurance contributions.
    3 (Cf. ICESCR Article 9; ECHR Protocol 1 Article 1 paragraph 3). It follows that the only way to exact tribute from a person consistently with respect for the status of citizenship is to engage the person under a regularcontract and then lawfully to impose taxes on his remuneration.

    2 Cf. Aristotle,
    The Politics,
    Book I Chapters 4-7; Book III Chapter 5
    3 R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions [2008] UKHL 63; Stec & Ors v United Kingdom (App. Nos: 65731/01 & 65900/01), Decision on Admissibility 06-07-2005 (ECtHR) Michael Petek 09-02-2010

    11. Submitted, even if the obligation of work-for-benefit were "civic" in nature, it is not "normal". A "normal" civic obligation is one which is designed to fall equitably upon everyone within the general class of citizens by reason of citizenship without more. Alternatively, in may on principle be designed to fall equitably upon everyone within a subclass of citizens by reason of citizenship together with some legal or factual position of privilege, dominance or eminence.

    12. Further to #11, work-for-benefit schemes are not designed to affect all citizens generally, neither are they addressed to a privileged class. On the contrary, they are addressed to a sub-class of citizens who are disadvantaged by reason of long-term unemployment and who by definition have already become victims of a violation of their right to work, in that the United Kingdom has failed to perform international obligations arising from the ICESCR.

    13. Further to #6 it is submitted that

    Talmon is distinguishable and can be disapplied because the claimant in that case had put restrictions on his availability for work which are, in any circumstances, fanciful. Employment is not "suitable" if its terms and conditions derogate from the ICESCR, in particular Article 7.

    14. In so far as the public interest is opposable to any of the rights asserted in this submission, it
    was held in
    de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands
    and Housing [1999] 1 AC 69, 80,
    the Privy Council, drawing on South African, Canadianand Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:
    "whether: (i) the legislative objective is sufficiently important to justify
    limiting a fundamental right; (ii) the measures designed to meet the
    legislative objective are rationally connected to it; and (iii) the means used
    to impair the right or freedom are no more than is necessary to accomplish
    the objective." By a recent modification of the "De Freitas" principle, public authorities must strike a fair balance between the rights of the individual and the interests of the community, taking care to assess the severity and consequences of a measure. (
    Huang v Secretary of State for the
    Home Department [2007] UKHL 11 at [19]).
    Michael Petek
    Michael Petek 09-02-2010

    Michael Petek is a Barrister.

  2. malka Says:

    serious action needs to be taken to expose the truth for those who have no voice………..

  3. Alan Wheatley, Green Party member Says:

    Disabled people have long been given a bad cheque that has been returned marked ‘insufficient funds’. Now, the extent of that government fraud and heartlessness has just got more horrendous.

    From my early 20s onwards as a person with a lifelong invisible disability I lived in hope of getting help to get waged work eventually provided that I put in more than a 48 hour week on self-directed open learning, job applications and whatever toward proving my worthiness while on inadequate unemployment benefits.

    I applied for ESA in early 2009, 31 years after a Manpower Services Commission-run ‘Employment Rehabilitation Centre’ told my parents orally, “Yes, Alan’s got an academic brain, but he’s too slow to ever benefit from further government-funded education and training. He’s just too slow. It just would not be worth it. He’ll just have to lower his sights.”

    With my invisible disability, I was never awarded Invalidity Benefit after leaving ERC with no paper record of that six week ‘vocational assessment period’ that I could peruse at my leisure or show to others — for what it was worth. In intervening years I discovered that the Data Protection Act and Disability Discrimination Act seemed to have no regard for my right to my data. Reports about me were deemed ‘too confidential’ for my unsupervised access. What had they to hide?

    For a time in the 1980s I had a ‘Green card’ that was supposed to improve my employment prospects but did not. In 1978 I was dismissed for slowness at the end of a four week ‘probationary period’ at an Asda hypermarket; the fact that someone as scholarly as me applied for shelf-stacking work indicated how desparate I was for some kind of waged work. And by the time I eventually graduated from university in early 1997 in the early years of the ‘mass higher education’ that the Blair administration later employed to the utmost as a mask for the true unemployment statistics, ‘Green Card’ status was replaced by Disability Discrimination Act and lip service but no real funding being given to improving services and options for disabled people. In fact, a ‘Positive About Disabled People’ training provider told me in the year 2000 that the length of their Web Development course training period had been halved so as to double the throughput from the dole queue. Having struggled through my university career as a much slower student even with extra time, and taken nine months to complete my NVQ Level 1 in Using Information Technology

    Anyhow, in June 2009 an Atos quack named Dr Ratnam Ramayana recorded that I had last worked four years previously, as a social care worker and left on account of stress. That he neglected the fact that I had obtained only 17 months total waged employment since November 1978, and the DWP who had my records on their database colluded with that, offended me more than the zero eligibility score I was awarded. In December 2009 the tribunal turned that 0 eligibility points into 21 after my tribunal adviser drew my attention to how a rushed approach to completing the initial ESA50 under my vocational support adviser had done me no favours. More than putting me over the eligibility threshold, the tribunal put me into the Support Group of ESA claimants.

    Since then, however, I was press-ganged into applying for ESA again, and the Work Capability Assessment conducted this February resulted in no change to my benefits entitlement situation. Yet I have now been told to re-apply for ESA by August 3 and that is really getting me down. What is the point? Do they really want to drive me to suicide at the prospect of being returned to ever more miserly benefit allowances and harsher ‘conditionality’ than ever applied even on pre-2009 JSA ‘conditionality’?

  4. ians12 Says:

    These “re-assessments” have always happened with DLA, even though the applicant has gotten worse or at least no better. You can’t legally use that as an argument however because of previous case law. All you can do is as many many DLA applicants have had to do for many many years is tediously copy out the entire form from the photocopies you kept of the previous app and update the dates etc. Most things do probably not need altering, eg fell 6 times in last 3 months, went to A+E twice and got treated for cuts/bruises/sprains and some things just needed an updated letter from a consultant or GP. Boring I know, but its what you have to do to “play their game”.

  5. malka Says:

    brilliant ……………human rights lawyers he we come,, how about EU law for good measure………..

  6. anna-rose phipps Says:

    thank you, i might have to refer to this when i know the outcome of the reassessment.
    having borderline personality disorder i feel as if i’ve been thrown onto the scrap heap by this government in particular.
    i’m feeling like my future is so bleak, i actually want to escape from life right now.
    but reading this makes me feel less powerless.
    my fingers are crossed that i am alive to witness the first successful outcome of a courtcase challenging this obscene, disgraceful treatment of the disabled.
    so thank you again

  7. Peter Horne Says:

    Sad to say, these measures were presented in the house of Lords by “labour” peer Lord Mckenzie of Luton. He said that if people who had previously been in exempt categories because of mental illness or disability had the measures and expectations explained carefully then they should be able tu understand what was required of them. He has avoided all questions about the effect of the threat of losing benefit on people in this category. keep the campaign going.

  8. Cronk Says:

    All well and good but I feel nothing short of a Howitzer at close range is going to make this bunch of Fascists sit up and take notice.

  9. Lavish late June mail-out of mental health, health and social care news,views and opinions « Launchpad: By and for mental health service users Says:

    […] welfare benefits advice is being axed..) leaving many in straitened limbo.A carer’s view is here.And the trumpeted notion of having disability and lived-experience service users sitting on appeal […]

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