Social Security Case Law - Spring 2025

Headnote

The consultation on proposals to make legislative amendments to the Work Capability Assessment (WCA) was deemed unlawful due to its failure to adequately explain the proposal and its rationale.

Background

In September 2023, the previous Secretary of State for Work and Pensions announced a consultation on proposed changes to the work capability assessment in both Universal Credit and Employment & Support Allowance claims. Following its closure, the government announced in November 2023 that it was going ahead with three of the prosed changes:

• Amendments to the limited capability for work-related activity (LCWRA) ‘substantial risk’ provisions;
• Removal of the LCWRA ‘mobilising activity’; and,
• A reduction in the points award for limited capability for work (LCW) ‘Getting About’ descriptors.

The claimant, who has a disability and has been assessed as having LCWRA is a disability rights campaigner with a particular interest in social security rights. The claimant has brought forward this challenge via judicial review arguing that the changes were unlawful due to a lack of information being provided by the government about the financial impact these changes will have on a disabled person and the imposition of compulsory work-related activities, and that the consultation itself did not provide a sufficient time to respond.

Legal Issue

The claimant brought forward their action under Judicial Review to the High Court alleging that the Secretary of State for Work and Pensions had failed to:

1. adequately explain what the proposals were (Ground 1A);
2. adequately explain the alleged true rationale for the proposals (Ground 1B);
3. provide adequate accompanying information about the impact of the proposals (Ground 1C);
4. provide sufficient time for consultees to respond (Ground 2).

Decision

Justice Calver allowed the judicial review finding that Grounds 1A, 1B and 2 were made out and granted a declaration that the consultation was unlawful.

The High Court judge found that the consultation was “so unfair as to be unlawful” because it failed to adequately explain the proposals and their rationale, particularly the significant cost-saving objectives. Additionally, the consultation period was deemed insufficient, which contributed to the unfairness.

The court concluded that the DWP’s consultation also misrepresented the reforms as supporting disabled individuals into work, without disclosing that the primary rationale was cost savings. The consultation failed to mention that 424,000 disabled people would see their benefit entitlement reduce, including claimant’s with LCWRA who would be at risk of losing £416.19 a month under the current benefit rates – which has the potential impact of pushing 100,000 into absolute poverty according to internal DWP estimates.

As a result, the High Court ruled that the consultation process was misleading and unlawful, necessitating a re-consultation that addresses these shortcomings.

Relevant Legislation

• UC Regulations 2013, Part 8 Chapter 2, ss.26-27;
• UC Regulations 2013, Schs.8-9
• UC Regulations 2013, Sch.9 §4
• UC Regulations, regulation 83

Relevant Case Law

• R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074
• R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947
• R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (CA)
• R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472
• R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168