The Legal Aid, Sentencing and Punishment of Offenders Act (2012) withdrew Legal Aid funding for cases relating to housing, debt, family and – most significantly for the purposes of this article – welfare and legal action against the Department for Work and Pensions (DWP).
This has left benefit claimants in a situation where their basic rights to fair and equitable treatment, as enshrined within the Equality Act (2010), effectively do not exist because they are unable to access representation when they are most in need of advocacy, protection and support.
In a 2018 interview with BBC News, Nicola Mackintosh KC of Mackintosh Law summarised this systemic inequity in the following terms:
“Pre-LASPO, we had a network of advice centres, CABs, law centres and specialist high-street practices. It was not perfect, but it was pretty good. Now we have a complete decimation of the advice and representation network. Everybody recognises [that] disabled people have rights but if you do not provide the advice and representation to them, those rights are theoretical in practice.”
Voluntary sector overwhelmed
Since 2018, the situation has become progressively worse, as voluntary organisations are increasingly unable to assist with cases of unfair and illegal treatment by the DWP. Organisations such as the Mind Welfare Benefits Advice Line, NAPAC and Citizens Advice state that they can only provide a sign-posting service and are unable to advocate on a claimant’s behalf.
Meanwhile advocacy organisations such as Cloverleaf Advocacy do not include benefits advocacy within their remit – and the Public Law Project states that “due to our current capacity levels, we are not accepting any new enquiries and unfortunately we will be unable to respond”. The Disability Law Service, which offers a range of legal and welfare support services to deaf and disabled clients, is under similar pressure in terms of matching available funds to meet the increase in demand. A spokesperson said:
“The advice sector is coming under growing pressure from the lack of funding and increasing need from deaf and disabled people. The Disability Law Service has been supporting deaf and disabled people for 50 years and we have a strong track record of working with individuals to challenge instances of unfairness. We recognise the increasing difficulties they are facing as they navigate services that are not necessarily set to accommodate their needs.
“Our primary focus is delivering free legal and welfare advice and assistance to deaf and disabled clients to make sure they can access their rights, including securing reasonable adjustments. While we are not able to comment on the internal workings of government, we are keen to explore concerns raised and work with our partners to address any systemic issues of equality and access.”
Organisations are thereby obliged to close their doors to new clients or refer them to other voluntary organisations who are themselves unable to assist, so claimants suffer even more distress in being endlessly referred from one organisation to another with little hope of receiving any meaningful help.
Official avenues are closed off too, because both the Independent Case Examiner and the Parliamentary and Health Service Ombudsman require a final response from the DWP before investigation can take place. However, the DWP is not required to provide final responses within a specified time frame and can therefore, as it has done regarding my own efforts to complain, neglect to follow the complaints process altogether. Claimants then find themselves trapped in a bureaucratic wasteland, deprived of any way forward and simply left to struggle on their own.
Persistent safeguarding failures at DWP
Within this overall context of sparse or non-existent representation, the DWP’s disregard for the fundamental legal rights of benefit claimants falls into two key areas, both of which disproportionately impact upon people with disabilities. The first area – persistent safeguarding failures by the DWP resulting in the deaths of vulnerable claimants – has been comprehensively documented by the founder of the Disability News Service, John Pring in The Department.
However, at the time of writing the DWP currently has no statutory duty for safeguarding and the protection of individuals from the consequences of poor – even negligent – institutional practice. The 2023 parliamentary report on the ‘Inquiry into Safeguarding Vulnerable Claimants’, which was intended to address these issues, has yet to be recognised in law; and even if the inquiry’s recommendations became law at some future time they would be meaningless anyway due to the continued absence of Legal Aid funding for action against the DWP.
Failure to make reasonable adjustments
The second area concerns the issue of DWP failures to make reasonable adjustments for disabled claimants when applying – or being reassessed for – benefits.
The Equality Act (2010), as summarised by Disability Rights UK, stipulates that the DWP as a public sector organisation “must make reasonable adjustments for disabled people” and that “the DWP cannot impose fixed administrative processes on claimants that disadvantage them unless it can demonstrate those practices are a proportionate means of achieving a legitimate aim”.
As of May 2024, the DWP was under investigation by the Equality and Human Rights Commission (EHRC) as to whether “the DWP has failed to make reasonable adjustments for disabled people with learning disabilities or long-term mental health conditions during health assessment determinations”. At the time of writing, the EHRC has supplied no information as to when the investigation will conclude, but has released the following interim statement:
“The EHRC is now no longer considering offering an agreement and has decided to pursue a formal investigation to establish whether the Secretary of State for Work and Pensions has committed unlawful acts under the Equality Act 2010. The investigation begins today.
“The DWP will be expected to provide information to EHRC investigators over the course of the investigation and PSED assessment. Stakeholders such as disability charities will be asked to share any relevant information which they may have with the EHRC.
“Whistleblowers who currently or have previously worked for the DWP on health assessments are also encouraged to provide evidence, including those who may have worked on the DWP’s behalf for a private contractor. All evidence will then be reviewed to inform the outcomes of the EHRC’s investigation and assessment.”
Unequal access to protections
In the meantime, the problem continues unchecked by a government that is apparently doing little, if anything, to ensure that legal representation, advocacy and protection from abuses of their fundamental legal rights are available to those who depend upon the DWP in order to survive.
Unequal access to the protections afforded by the law in such situations breeds inequity across the board; poverty, hardship, health inequality and socio-economic exclusion are the inevitable consequence of the DWP’s status as a ‘law unto itself’.
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