Disabled people’s rights are hanging on upcoming judicial review

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Welcome to hell: The work capability assessment is the start of a long path involving challenges, continual reassessments, misdirection or demands from the DWP, Job Centre Plus or work programme providers, leading eventually to despair, destitution and, in many cases, death. Could YOU mount a judicial review against this regime?

An appeal to the United Nations, using its Convention on the Rights of People with Disabilities to show how the sick and disabled in the UK are being mistreated by the government, will depend on the result of a judicial review later this month.

I have previously documented the work of Samuel Miller, to make the UN aware of the life-threatening activities undertaken by the Department for Work and Pensions under Iain Duncan Smith’s regime of cuts and changes to entitlement, so he should need no introduction.

Mr Miller has been hoping to induce the UN to consider whether the current Smith/DWP regime contravenes international agreements on human rights and the rights of the disabled. Many Vox Political readers have submitted evidence to him, to be used in support of this.

But he wrote to me yesterday, saying this work must be deferred until the result of the judicial review is known.

“Submission criteria require that domestic remedies be exhausted,” he wrote. “Any complaint submitted to the [UN] committee must first have been submitted to the national courts and authorities for consideration.

“As you are probably aware, there’s an upcoming judicial review of the Work Capability Assessment for people living with mental health problems. The dates are January 15-16 & 18, in the Upper Tribunal Courts in London.

“If I can demonstrate to the UN that remedies invoked by the State are neither effective nor available, then UNCRPD complaints would carry more weight.”

He quoted a letter from Jorge Araya, secretary of the UN committee on the rights of persons with disabilities, who stated: “Complainants have initially the duty to demonstrate that they have exhausted domestic remedies, then the burden shifts to the State party to demonstrate that there are remedies still available; if that happens, complainants should demonstrate  that remedies invoked by the State are neither effective nor available.”

So that’s the situation at the moment. Before Christmas, Mr Miller said the amount of time required to mount a judicial review would put the lives of sick and disabled people in jeopardy; that is not the case while one is about to be heard.

Also, consultation with a barrister, Steve Broach (@SteveBroach) has suggested that sick and/or disabled people should explore potential judicial review with solicitors – especially after the DWP announced that people on sickness benefits were “to be offered work experience to help them back into a job”.

The DWP’s announcement last month stated: “People on Employment and Support Allowance (ESA) who have been assessed as being able to go back to work at some point are placed in the Work-Related Activity Group for the benefit and are expected to take part in activity which helps them prepare for a return to employment. One of the options available to them will now include voluntary work experience.

“Having taken into account an individual’s circumstances, a Jobcentre Plus adviser or Work Programme provider may feel that an appropriate mandatory work placement – which must be of benefit to the community – would be helpful.

“People who fail to carry out any agreed work-related activity without good reason may face having their benefits sanctioned. The sanction will be made up of an open-ended period which is lifted when the claimant meets the requirements, followed by a short fixed period of 1, 2 or 4 weeks.”

The sticking-point would be the cost of bringing a judicial review – in the region of £10,000 to £20,000 for a straightforward case; higher for a more complex matter. If the claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. “They are therefore looking at a legal bill of upwards of £30,000 if they lose, and they must be prepared for this eventuality, bearing in mind the unpredictability of judicial review proceedings and costs orders,” Mr Miller told me.

Also, of course, we know that David Cameron has vowed to crack down on appeals that delay new laws, planning decisions and policies, and this could potentially be extended to human rights judicial reviews, since his has government already made substantial cuts to legal aid.

What do you think? I’m really interested in hearing what readers think about this.

Could you mount a judicial review, if a decision was made to force you into a work placement and you thought it would harm your health?

What about those of you in the legal profession? You should understand the current situation – regarding the cost of legal action – better than anyone else – is it realistic to expect people on sickness and disability benefits to finance expensive court cases?

If not, what other possibilities are available?

Smith v Jones over benefits, the disabled and the truth about homelessness

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Finger-wagging rant: One tweeter commented, “You just KNOW IDS wanted to call Owen Jones a pleb back there…”

Iain Duncan Smith probably went home last night feeling satisfied that he had done his job well, putting forward his case for benefit cuts that will push thousands – maybe hundreds of thousands – of people out of their homes, on the BBC’s Question Time. After all, he had the last word, didn’t he?

Perhaps he didn’t count on the absolute twatting he received from the inhabitants of the social media.

Those who had seen the show wasted no time in putting forward their opinions about the clash between Smith and socialist “braying jackal” Owen Jones. Here’s what happened and what they said.

The question that sparked the clash was about whether the Work and Pensions Secretary’s plan to cap benefits would push large families out of their homes in London.

Yvette Cooper, also on this week’s panel, said the full consequences of the benefit cap and other measures being pushed through by the government were pushing up homelessness. “We’ve seen a 50 per cent increase in the number of families – families with children – living in bed and breakfast accommodation… That costs us a huge amount more… It’s a mix of the housing benefit changes but also the benefit cap – the way they have been introduced.”

Then Owen Jones stepped into the ring: “The reason this whole debate has become so toxic is a cynical demonisation campaign of people on benefits by the government,” he said. It’s as if he has been reading this blog.

“What they have tried to do is redirect people’s justifiable anger over ever-declining living standards from those at the top who’ve caused this crisis to people’s neighbours down the street. The working poor against the unemployed over benefits. Non-disabled people against disabled people. Private sector workers against public sector workers over pensions.” Absolutely correct, as pointed out and reiterated here many times in the past.

“Housing benefit is not going into the pockets of tenants, it’s lining the pockets of wealthy landlords charging extortionate rents,” he said, going on to utter something indistinct because others were talking over him. The impression I got was that he was saying successive governments, New Labour included, didn’t build council housing.

He went on to point out a statistic that the Tories have worked very hard to bury: “Most new claimants of housing benefit are in work; they don’t have enough money to pay extortionate rents.” Again, factually correct – and one must ask why employers do not pay enough. Why do they ask the government to subsidise the workforce?

“If we built housing in this country, we’d bring down the welfare bill, stimulate the economy, and create jobs.”

Having scored his first few points, Mr Jones went for the knockout blow. Although blocked in his first attempt to mention the disabled, he tried again: “There is a point that has to be made about the treatment of disabled people in this country, and there are two names I want to give Iain… Brian McArdle, 57 years old, paralysed down one side, blind in one eye; he couldn’t speak. He died one day after being found ‘fit for work’ by Atos. Another example – Karen Sherlock.”

For those who don’t know, Karen Sherlock was a desperately ill woman, suffering from kidney failure, whose Employment and Support Allowance was cut off by Iain Duncan Smith’s minions. She died on June 8 this year, apparently of a heart attack, after an operation was cancelled. Read her story here.

This is where IDS lost it. Irately wagging his finger in Mr Jones’s general direction, he barked: “We’ve heard a lot from you. I didn’t hear you screaming about two and a half million people who were parked, nobody saw them, for over 10 years, not working, no hope, no aspiration. We are changing their lives; I’m proud of doing that. Getting them off-benefit is what we’re going to do.”

What he didn’t say was, “We’re changing their lives for the better.” As for getting them off-benefit – that’s a threat, if there are no jobs for them to take (and there aren’t – or at least, not enough).

And that was the end of the programme. Owen Jones later commented that, as chairman David Dimbleby was finishing up, “a protestor yelled about Atos and left – not sure that will come across because it descended into total chaos.” It didn’t, but it would be interesting to know what their point was.

Jamie Laverty made a point about it: “Woman shouting about Atos on BBCQT – how symbolic. The BBC fails to listen to the people whilst giving the Tories a soapbox.”

Then came the verdict. Nathaniel Tapley saw through the Secretary of State straight away: “IDS thinks it’s unreasonable for anyone to receive more than £35,000 pa from the state. And claimed £98,000 in expenses last year.” Hypocritical? I think I’ve written a blog about that…

‘The UK today’ tweeted: “Only the wealthy moan about benefits for the poor but don’t complain about the bankers and shareholders who created the present problem.”

Mark Ferguson of LabourList tried sticking to the thrust of the question: “Shockingly, London MP IDS seems totally ignorant about the impact of his own government’s housing benefit cap in the capital. Astonishing.

“Build more houses, lower the cost of renting, save money on benefits. It’s not f*cking rocket science is it?”

To Iain Duncan Smith, it is. He’s a Tory, Mark! You’re suggesting they lay out money on public works. They don’t do that! Their plan is to hold money back, and use it to say they’ve balanced the books a bit more. Pointless and utterly unworkable in the long-term, but it is what it is.

Jenny Landreth made the point that’s been on everyone’s mind about housing benefit: “Do benefit claimants profit from their rent being paid? No. Landlords do. They are the reason the rents are high. HELLO?” Exactly right. Perhaps it’s time to change its title to one that is more appropriate, like Landlord’s Benefit?

John McDonnell MP applauded Mr Jones: “Well done for getting the tragedy of Mr McArdle and barbarity of Atos on the record. We must never forget or forgive this cruelty.”

Finally, there came the comments on the cabinet member himself.

Zoe Williams, Guardian columnist, tweeted: “‘we’ve heard a lot from you’ IDS says to Owen jones. Only narrowly avoids adding ‘oik’.”

Matthew Walker added: “IDS has finger wagging rant at Owen Jones – he just needed to finish with ‘you need a damn good thrashing, lad’ and it would have been perfect.”

Simplem+ths: “All that remained was for IDS to say ‘shut it you fu#@ing pleb best you learn your fu@#ing place'”.

And the amusingly-named ‘Jeremy Twunt’ concluded: “You just know IDS wanted to call Owen Jones a pleb back there…”

Isobel Waby went for the jugular: “Iain Duncan Smith is an insult to the British people. How dare he undermine the British people, insulting our sick, disabled, unemployed kids?

“He should be sacked NOW… MPs’ inhumanity to the less fortunate.”

And Gracie Samuels made the most telling point: “The lying bastard he’s killing people, BBCQT, and we were not allowed to discuss it.”

But Diana Foster put viewers’ fear into words when she tweeted: “Disability hatecrime up, IDS gets final say – giving impression he’s whiter than white and no disabled people are affected by reform. Disgusting.”

Well, if Mr Smith (I never call him ‘Duncan Smith’ because that kind of attempt at a double-barrelled name is nothing other than pretentious) is reading this, I wonder if he’ll still be putting that appearance in the ‘plus’ column. The net result, according to the public is that he is ignorant, cruel, an insult to the British people, inhuman, a lying bastard and disgusting. Wag your finger at that, Iain!

Since IDS got the last word on television, let’s give the last word here to Owen Jones: “Blimey, thanks everyone. But what a a shame that stating the bleeding obvious on telly is such a revolutionary act.”

Follow me on Twitter: @MidWalesMike

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