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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Clifford, R (On the Application Of) v Secretary of State for Work and Pensions [2025] EWHC 58 (Admin) (16 January 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/58.html Cite as: [2025] EWHC 58 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| R (on the application of ELLEN CLIFFORD) |
Claimant |
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| - and - |
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| THE SECRETARY OF STATE FOR WORK AND PENSIONS |
Defendant |
____________________
Sir James Eadie KC, Emily Wilsdon, George Molyneaux and Ella Grodzinski (instructed by GLD) for the Defendant
Hearing dates: 10-11 December 2024
____________________
Crown Copyright ©
Mr Justice Calver :
The Claim
The Work Capability Assessment
a. "Fit For Work" or "FFW": this means that a person has no entitlement to ESA or the health-related amount of UC, and may have to look for work[1].
b. "Limited Capability for Work" or "LCW": Section 37 WRA 2012 defines LCW as follows: "the claimant's capability for work is limited by their physical or mental condition, and the limitation is such that it is not reasonable to require the claimant to work." This means that such a person is eligible for health-related benefits, and not required to look for work[2]. However, they may be required to take part in 'work-related activity', i.e. activities intended to help prepare them for work in the future[3].
c. "Limited Capability for Work and Work-Related Activity" or "LCWRA": Section 37 also defines LCWRA as follows: "the claimant's capability for work-related activity is limited by their physical or mental condition, and the limitation is such that it is not reasonable to require the claimant to undertake work-related activity". This means that such a person (i) cannot be required to look for work, or to take part in 'work-related activity'[4]; and, significantly, (ii) is entitled to benefits at a higher rate than a person assessed as having LCW[5].
Cannot, for the majority of the time, remain at a work station: (i) standing unassisted by another person (even if free to move around); (ii) sitting (even in an adjustable chair); or (iii) a combination of paragraphs (i) and (ii), for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion. [6pts]
The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly. [6pts]
Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes. [6pts]
(i) Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person [automatic LCWRA]
(ii) At least once a week experiences: (a) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or (b) substantial leakage of the contents of a collecting device sufficient to require the individual to clean themselves and change clothing. [automatic LCWRA]
(iii) Cannot learn how to complete a simple task, such as setting an alarm clock, due to cognitive impairment or mental disorder. [automatic LCWRA]
(iv) Cannot mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion [automatic LCWRA].
"… suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity."[10] ["the Substantial Risk Criteria"]
The consultation process
a. Potential changes to the 'mobilising' activity and associated descriptors (Consultation Paper, [32]). Three options for change were presented, the broad effect of which would be to reduce (to varying degrees) the extent to which difficulties with mobilising would lead to a person (i) scoring points for the purpose of assessing whether they had LCW; and/or (ii) being assessed as having LCWRA. The options were:
(i) remove the 'mobilising' activity entirely, such that difficulties with mobilising would cease to be taken into account when determining whether a person should be assessed as having either LCW or LCWRA;
(ii) amend the LCWRA Mobilising descriptor by replacing 50 metres with 20 metres for both descriptors within the LCWRA activity;
(iii) reduce the points awarded for the LCW Mobilising descriptors.
b. Potential changes to the 'absence or loss of bowel/bladder control', 'coping with social engagement due to cognitive impairment or mental disorder' and 'getting about' activities and associated descriptors (Consultation Paper, [33]-[35]). Again, various options were presented, the broad effect of which would be analogous to that of the proposals in respect of 'mobilising', namely (i) remove the activity entirely; (ii) amend the descriptor so that claimants are required to experience the adverse symptoms daily instead of weekly; and (iii) reduce the points awarded for the descriptors.
c. Potential changes to the Substantial Risk Criteria. Two options were identified in this regard (Consultation Paper, [38]-[43]). The first option (at [39]) was to amend the Substantial Risk definition such that a person would not be assessed as having LCWRA if they "could take part in tailored or a minimal level of work preparation activity and/or where reasonable adjustments could be put in place to enable that person to engage with work preparation". The second option (at [42]) was to remove altogether the possibility of a person being assessed as having LCWRA on the basis of the Substantial Risk definition. The Consultation stated at [40] that "the intention of this change is not to bring people with risk into mandatory activity, nor to sanction them if they do not comply. Work coaches would offer appropriate and tailored support. They would support a claimant on work preparation activities. For example, activities to build confidence or wellbeing, learn skills, or gain a greater understanding of different sectors, local provision, or support".
Grounds for judicial review
Ground 1
a. the Defendant failed to explain adequately the proposals themselves (Ground 1A): bearing in mind the audience for the consultation, it was not made adequately clear that the legislative proposals for the affected groups were to replace voluntary work related activity with compulsory work related activity, and to reduce the income of a large number of claimants;
b. the Defendant failed to explain adequately the rationale for making the proposals (Ground 1B):
i. the Defendant was not candid that fiscal impact, rather than labour market impact, was the central basis on which decisions would be taken;
ii. if, alternatively, the central rationale for making the proposals was as the Defendant stated, then its link to the proposals was not adequately explained;
iii. the Defendant misleadingly implied that the proposals on LCWRA risk were necessitated by increases in the proportion of LCWRA decisions accountable to risk, when in fact it had been steadily decreasing for years;
c. the Defendant failed to provide adequate accompanying information about the impact of the proposals (Ground 1C):
i. the consultation documents did not explain that the number of people expected to find employment was vastly outweighed by the number of people who would lose money and face conditionality but would not as a result find employment;
ii. no information was given about the likely disability impact.
Ground 2
The law
"24. Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2014] 1 AC 1115, this court addressed the common law duty of procedural fairness in the determination of a person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed JSC in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement "is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested": para 67. Second, it avoids "the sense of injustice which the person who is the subject of the decision will otherwise feel": para 68. Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society.
25.… [the following] basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third . . . that adequate time must be given for consideration and response[17] and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals[18].
26. Two further general points emerge from the authorities. First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting[19]. Thus, for example, local authorities who were consulted about the Government's proposed designation of Stevenage as a "new town" (Fletcher v Minister of Town and Country Planning [I947] 2 All ER 496, 50I) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public, particularly perhaps the economically disadvantaged[20]. Second, in the words of Simon Brown LJ in Ex p Baker [1995] 1 All ER 73, 91, "the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit[21] or advantage than when the claimant is a bare applicant for a future benefit."
a. In R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (CA), the Court of Appeal said at [112]:
"It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this." (emphasis added)[23]
b. "In order to enable effective representations to be made, it is necessary to publish not just "the proposal" in a narrow sense, that is what is proposed by way of structural change, but also a summary of the reasons why that change is proposed": R (Breckland DC) v Electoral Commission Boundary Committee [2009] EWCA Civ 239 at [44] per Sir Anthony May P[24]. As Ouseley J stated in R (Devon County Council) v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin) at [68]: "sufficient information to enable an intelligible response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis upon which the decision is likely to be taken"[25].
c. Consultation axiomatically requires the candid disclosure of the reasons for what is proposed if the undertaking to consult is not to be rendered largely nugatory: R v Barking and Dagenham LBC, ex parte Lloyd [2001] EWCA Civ 533 per Schiemann LJ at [13]. The true reasons for the proposals should be revealed in the consultation process if that process is not to be legally defective: see Laws LJ in R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) at [27], [30], [33].
d. But, as was stated in R (United Co Rusal plc) v London Metal Exchange [2014] EWCA Civ 1271, [2015] 1 WLR 1375 at [51] and [85] per Arden LJ:
"The adequacy of consultation must depend on the sufficiency of information in the context in which the consultation took place. Therefore the court cannot ignore information which was well known to the consultees even if it was not set out or referred to in the consultation document. Any other conclusion would lead to cumbrous and potentially self-defeating consultation exercises where the real issue is obscured by common knowledge."
"…the explanation provided by a consultant in its consultation document is not unfair unless something material has been omitted or something has been materially misstated[26]." (emphasis added)
e. In R (Electronic Collar Manufacturers Association) v The Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin), Morris J summarised the authorities as follows at [142]:
"…the presentation of the information must be fair. Thus it must be complete, not misleading and must not involve failure to disclose relevant information… Whether non-disclosure made the consultation so unfair as to be unlawful will depend upon the nature and potential impact of the proposal, the importance of the information to the justification of the proposal and for the decision ultimately taken, whether there was a good reason for not disclosing the information and whether the consultees were prejudiced by the non-disclosure, by depriving them of the opportunity of making representations which it would have been material for the decision-maker to take into account…"
The factual background leading up to the publication of the consultation paper
"7. …by May 2023 myself and my team were thinking about what further measures (beyond those announced at the March 2023 Budget) would be required to tackle the growth in economic inactivity due to ill-health. We were of the opinion that reform to the WCA, as an interim step before it was abolished, could be a good way to do so. This initial thinking was self-initiated by myself and my team as we thought that this area might be one in which Ministers would be interested.
8. Therefore, in May and June 2023, in discussions with my team, we began planning to review the WCA to consider updating it to better reflect the modern world of work so that more people applying through the WCA were placed in the appropriate group for support.
9. The potential benefits of changes to the WCA activities and descriptors appeared significant. We believed greater labour market flexibilities and better employer understanding of the accessibility needs of disabled people and people with health conditions would have the most significant impact on supporting people to move closer towards or into work. We took into account that, notably, since 2011 more people have been able to benefit from the advantages and opportunities of flexible and home working. It was our view that working from home and hybrid working brings new opportunities for disabled people to manage their conditions in more familiar and accessible environments".
"Officials have been identifying options to advance components of our structural reform to tackle the issue of rising caseloads[28]. Secretary of State proposes we review and update the activities and descriptors in the Work Capability Assessment (WCA) to reflect improvements in the modern workplace such as flexible/home working. Alongside this, Secretary of State is reviewing the existing application of the 'substantial risk criteria (non-functional)' to identify how we make better use of reasonable adjustments and specific work-related activity to support moving some people closer to the labour market."
"Secretary of State looks forward to discussing his proposed package in more detail with the Chancellor on the 22nd. It will be important to assess the likelihood of the OBR scoring[29] these proposals against their four tests, and all measures that officials are working up will require further detailed delivery impacting. As you know, Secretary of State is also meeting the Chief Secretary in July to discuss the Welfare Cap and AME savings options, where he has noted the additional comments which you may wish to briefly cover. Officials are further developing the list of savings options, and Secretary of State also continues to consider the areas where the poorest families remain under the greatest financial pressure – for instance those living in private rented accommodation. It will clearly be critical for us to think about the positioning of DWP policies in the round as we head towards Autumn Budget".
"7. Review the Work Capability Assessment (WCA) descriptors, with the intention of updating them to better reflect improvements in the modern workplace, flexible working and progress in occupational health"; and
"8. Review the existing application of the substantial risk criteria (non-functional) in the WCA to identify how we make better use of reasonable adjustments and specific work-related activity".
The Departmental Expenditure Limit/AME cost implications of each of these potential measures was assessed as 'low'. That is because it was anticipated that the measures would lead to reductions in expenditure on benefits (although the Defendant fairly points out that the objective of the note was not to identify measures to achieve costs savings as some potential options in the list would have involved spending money).
"You should note the compressed timetable we have to score any announcement ahead of the Autumn Statement and the risks associated with that. An alternative timeline would be to announce any change at the first fiscal event next year."
Under the heading "Options to reduce WCA spend", it is stated that:
"We do not currently have the data which disaggregates LCWRA outcomes by which descriptors have been met. This data is essential to understanding volumes and potential AME savings. Given that constraint, and prioritising changes with the biggest impact, we are undertaking a quick audit to quantify the cost benefits of proceeding with specific descriptor changes. This data will be important for OBR to consider scoring any change."
"10. Potential changes to reduce the number of people who are entitled to ESA or UC health, or the amount that they are entitled to, are likely to be very contentious. The White Paper is also very clear that structural reform (including phasing out the WCA and move to single PIP gateway) of the benefit system is not about fiscal savings, but rather improving the system and engendering trust, so perceived cost saving measures risks undermining the core message of the White Paper. We would need to develop a strong evidence base for making any changes in order to establish a rationale beyond cost-savings[31].
11. The Bill to abolish the WCA is also going to be introduced after the next election, in 2024. Simultaneously abolishing the WCA whilst also making regulation changes to tighten the gateway would be very challenging to explain to Parliament, stakeholders and individuals at a time when their support will be vital to successful passage of the Bill.
12. [There is a] reputational risk from any accelerated consultation timetable for changes to WCA."
"Subject to your agreement, we will undertake the following activities to help inform and support your decisions on the merits of the WCA options:
• Undertake a rapid audit to understand and disaggregate WCA outcomes by descriptor to identify scale of AME opportunity.
• Refine AME savings analysis based on the outcomes from the audit and develop a prioritised list of descriptors for change."
"a review of functional descriptors and activities to tighten the gateway and reduce LCWRA outcomes (for new claims and reassessments); and
a review of the application of the 'substantial risk'(non-functional) provision to reduce LCWRA eligibility where risk can be mitigated by tailored work-related activity or more effective use of reasonable adjustments, including availability of home working".
Importantly, it was stated in particular as follows:
"The SoS is tentatively supportive of the potential for WCA review ahead of structural reform. Narrowing the gateway would move fewer people into long-term inactivity, and have long-run AME benefits, particularly when considering numbers eligible for transitional protection. The SoS is keen that we develop an evidence base to understand which changes deliver the greatest impact and quantify this. Work to audit assessments and develop this evidence base is underway to deliver indicative costs that would need to be refined through testing. The SoS considers that SB24 is a more feasible timetable, to take account of the need to undertake detailed impacting and the rationale for the changes, and to allow sufficient time for an adequate consultation that permits proper consideration of the responses."
"Announcing the changes in the Autumn would not be compliant with the Gunning principle (sic) as there is insufficient time to properly undertake all the necessary steps (it would require shortened consultation, risk not providing accessible formats, and leave inadequate time should be given for consideration) … The SoS considers that SB24 is a more feasible timetable, to take account of the need to undertake detailed impacting and the rationale for the changes, and to allow sufficient time for an adequate consultation that permits proper consideration of the responses… We also consider that it would be better to decouple any announcement of changes from a fiscal event because the measures are expected to be controversial and risk being perceived as purely cost-saving measures by influential disability rights groups, individual stakeholders and by SSAC. We would want to develop a wider narrative based on modern and home working, which would also mitigate these risks. Distinguishing this from a fiscal event would support that aim."
And:
"SB 24 timeline looks essential to ensure we've properly consulted."
"An 8-week consultation period would balance the need to give disabled people and people with health conditions time to digest the proposals and meaningfully respond, the ability of my team to run meaningful engagement including face to face events around the country, and the Government wanting to make progress on a burning issue."
"31… The WCA proposals were part of the commission to come up with proposals for reducing economic inactivity, for which there were also other options available. Simultaneously, we had been commissioned to develop AME savings for which, again, there were multiple available options.
32. This is reflected in the 30 June 2023 submission, which also shows that thought was being given to whether the WCA proposals could be developed in time to be included as part of the Autumn Statement."
"1. We wrote to you on 30th June 2023 with initial proposals for reviewing the WCA descriptors to reduce economic inactivity and AME spend. Following your bilateral with the Chancellor, this advice outlines the areas of most significant impact for WCA reform to recognise opportunities from home working, address the growth in inactivity, and make AME savings. We have undertaken audits at pace to give us indications of likely impacts of WCA review options, though testing will be needed to refine these and for OBR to score savings. High level estimates based on the audit findings suggest changing descriptors and substantial risk for the flow of initial assessments could lead to an upper estimate of £500m savings by the end of the scorecard. Further savings could be made through reassessments and work is underway to develop this estimate.
2. Work is underway at pace to put plans in place for a consultation in time for Autumn Budget and we will provide more on this timeline at the start of next week. To help further develop the options and mitigate some of the risk, we are seeking permission for informal engagement with specialists and external clinicians through recess, in particular with musculoskeletal and mental health experts." (emphasis added)
"High level estimates from the audit findings indicate that changing mobilising for the flow of initial assessments could lead to an upper estimate of £300-350m saving, once adjusted for co-morbidities and behavioural impact. There is a high degree of uncertainty in these estimates and further work is needed to refine them."
"For claimants that meet 'Substantial Risk', the small-scale case audit has illustrated that tightening its use has the potential to reduce LCWRA outcomes. While the guidance is already tightly defined, its interpretation and use has gone beyond the policy intent for exceptional circumstances. From the audit indications, we have modelled halving the 15.5% of LCWRA risk outcomes at initial assessment from tightening use of Substantial Risk. If we assume, in the absence of evidence, that around half of these cases will behave differently and meet functional criteria, then we expect savings could be up to £150m. This would need to be refined and tested".
"We need to be fully aware that no options are straightforward or without risk. We need to develop an evidence base for making any changes to establish the rationale upon which we would be seeking to make changes to the policy[37]. We need to agree the timetable for both WCA and PIP gateway changes. Going too fast could put at risk longer-term reform ambitions for PIP and for WCA reform and it will be politically challenging to make changes given the nature of the benefit and the people it aims to support. With this in mind, I would be keen to use our meeting to discuss your appetite for bold reform, the potential risks and practical implications of potential reforms in this space". (emphasis added)
"Our recommendation remains that to deliver this safely, and have time to work through difficult changes for a complex and sensitive group we should work to a Spring timeline. The presentational risk of a rushed reform is significant and could be detrimental to our ability to deliver our structural reforms."
"There are likely to be people with severe physical and mental health conditions who would be impacted by the proposed changes, and we can expect a very strong reaction from disability rights groups and stakeholders, even with the additional rationale beyond cost-saving. The handling and engagement strategy development to mitigate the impact of this potential fallout will be critical." (emphasis added)
- "My view is that, as recommended, we should not consult on raising the points threshold. Simply raising the threshold would look quite arbitrary, and since it sounds like there is clear evidence of clustering at the 15 points mark, I would expect that outcomes would simply start to cluster around the new threshold instead if you raised it.
- I agree that including removal of the LCW risk criteria in the consultation would be highly inadvisable – part of our case for reviewing LCWRA risk is that we will have a bespoke WRA requirement for that group instead (i.e. much reduced conditionality but removing the benefit premium). Having checked with officials, I also don't think we should include potential amendments to the LCW risk criteria either. I'm satisfied that we can address this through the operational review, looking at how the rules are being applied. Including options to amend the rules themselves in the consultation would be very difficult and rushed now given the timings involved.
- I also think that there's not much gain from potential measures in this space given, as the sub says, it doesn't increase scoreable AME impacts. I would note, however, that in (political) discussions with the PM he expressed the view that something on LCW would be useful *because* it doesn't save any AME – as a way to try to show we aren't just doing this to save money, it's a principled package about the importance of work etc. But we will move some people from LCW into FFW via removal of descriptors anyway, so we can achieve that without needing to raise the points thresholds.
- On removing substantial risk – James agrees that we should include option to remove. We can lean on the fact that this would be coherent with the direction of the structural reforms. Handling could potentially be challenging if we did go ahead, but I think if we have the option in there, we can always opt for amending rather than removing in the end. May be useful to have that option so we can say we have listened to views in the consultation and appear to be taking the middle way if the consultation lands particularly badly and we need to appear conciliatory. We would need to make clear, though, that there would be a very carefully and sensitively crafted form of conditionality for those moving into LCW risk – to combat suggestions that we will be forcing suicidal people to come to the JCP and sanctioning them if they don't etc."
(emphasis added)
1) Potential AME savings identified of up to £5bn pa by 2028/29[39];
2) Review of LCWRA activities and descriptors to reflect home working will move c. 145k people out of LCWRA by 27/28, with an average loss of £85 per week;
3) WCA review of the application of "substantial risk" provision will move c. 70k people out of LCWRA by 2027/28, with an average loss of £85 per week;
4) Poverty impact: 100k into absolute poverty AHC in 26-27 based on illustrative 10% reduction in on-flows.
Mr. Thorpe's witness statements
46. In general, a court hearing a judicial review claim does not resolve disputes about primary fact. This is because, in general, the issues for the court to determine do not turn on the resolution of such disputes. Typically, the court focuses on the procedure adopted before the decision was made; whether the decision-maker was entitled to conclude the information before him was sufficient; and whether the decision-maker identified and answered what in law were the right questions, approached and structured his task in a logically acceptable way, gave adequate and intelligible reasons and reached a decision that was open to him on the evidence. In most cases, a claim alleging a flaw of this kind will not depend on the resolution of any dispute about primary fact. When a decision is challenged on the basis of material error of fact, the claimant is required to show that the fact is "uncontentious and objectively verifiable" rather than one that the court has to determine for itself: see e.g. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, [98].
47. When a claimant invites the court to resolve a dispute of fact, the invitation is sometimes an indicator of his inability to identify a proper public law ground on which the challenged decision can be impugned. There are, however, situations in which a genuine public law ground of challenge requires resolution of a dispute about a primary fact. In that situation, it is often claimed that there is a general principle that the defendant's written evidence is to be preferred, unless exceptionally the court permits cross-examination or the evidence "cannot be correct": see e.g. R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518, [16]-[19] (Nicola Davies LJ); R (Singh) v Secretary of State for the Home Department [2018] EWCA Civ 2861, [16] (Underhill LJ). The scope of the "cannot be correct" exception was explained by Stanley Burnton J in S v Airedale NHS Trust [2002] EWHC 1780 (Admin), at [18]: "There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness's testimony is manifestly wrong)…"
48. There are, however, other equally authoritative statements which put the principle more neutrally and do not refer to any presumption in favour of the defendant. In R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, Hallett LJ said this at [2]:
"If there is a dispute of fact, and it is relevant to the legal issues which arise in a claim for judicial review, the court usually proceeds on written evidence. Since the burden of proof is usually on the person who asserts a fact to be true, if that burden is not discharged, the court will proceed on the basis that the fact has not been proved. It would be an exceptional case in which oral evidence was needed by the Administrative Court – or the Upper Tribunal when exercising its judicial review jurisdiction."
49. There are many instances in which the courts have resolved questions of fact on the basis of written evidence without cross-examination, sometimes against defendants: see, for example, the cases referred to by Sir Michael Fordham in his Judicial Review Handbook (7th ed., 2020), at para. 17.3.12.
50. In my judgment, the correct approach is as follows:
(a) If invited to resolve a dispute of primary fact, the court should consider carefully whether any pleaded ground of challenge really requires resolution of the dispute. In most cases, the answer will be that the resolution of the dispute was for the decision-maker, not the court: the court's supervisory function does not require it to step into the shoes of the decision-maker and therefore does not require it to resolve the issue for itself.
(b) Where the resolution of a dispute of primary fact is necessary, the court usually proceeds on written evidence: see e.g. Talpada, [2]. The court will generally do so if – as here – no application to cross-examine has been made before the start of the substantive hearing.
(c) There is no absolute rule that the court must accept in full every part of the statement of a witness who has not been cross-examined, whether the statement is adduced for the claimant or the defendant. The court can reject evidence in a witness statement if it "cannot be correct" (Safeer, [16]-[19] and Singh, [16]). That might be so if it is contradicted by "undisputed objective evidence… that cannot sensibly be explained away": S v Airedale, [18]. But there are also examples of courts rejecting evidence given in witness statements as, on balance, inconsistent with other written evidence: see e.g. Talpada, [48].
(d) In some cases, the court may be unable to resolve a conflict of written evidence on a question of primary fact. In that situation, "the court will proceed on the basis that the fact has not been proved": Talpada, [2]. This will be to the disadvantage of whichever party asserts the fact. That will generally be the claimant, because in judicial review the claimant generally bears the burden of proving all facts necessary to show that the decision challenged is unlawful. Thus, the principle that the defendant's evidence is to be preferred, save where it "cannot be correct", arises because of the difficulty of satisfying the burden of proof where there is a conflict in written evidence, not because evidence adduced on behalf of a defendant is inherently more likely to be true than that adduced on behalf of a claimant.
The Consultation Proposals as published
"These proposals will help people to move into, or closer to, the labour market and fulfil their potential. We are consulting over the next eight weeks to seek the views of disabled people, employers, charities and others on our proposed changes. If the proposals were taken forward following consultation, the earliest we could implement any change would be from 2025, given the need to make changes to regulations and to ensure appropriate training for health assessors.
These plans are part of our wider approach to ensuring that we have a welfare system that encourages and supports people into work, while providing a vital safety net for those who need it most. A welfare system that focuses on what people can do, not on what they cannot do, and that reflects the modern changes to the world of work. It is time to share the opportunities of work far more fairly. It is time for work to be truly available to all those who can benefit from it. It is time to get Britain working."
a. 424,000 disabled people a year will receive lower rates of benefits than they otherwise would (most commonly by the current figure of £416.19 per month), reducing disability benefits expenditure by £1,425,000,000 per year by 2028-29;[40]
b. Instead of having a choice over what employment support they receive from the Defendant (as they do under the present rules), those 424,000 claimants will, by virtue of being in the LCW group instead of the LWCRA group,[41] have to comply with "work-focused interview requirements" or "work preparation requirements" imposed on them by the Defendant, and may be "sanctioned" (lose benefits) if they do not;
c. An additional 33,000 claimants will be moved from the LCW group to the "intensive work search" ("IWS") group, where they will have to comply with all work-related requirements imposed by the Defendant, and may be sanctioned if they do not; and
d. Of the 457,000 people identified above, only 15,000 extra are expected by the Defendant (through a combination of reduced income and increased conditionality) to enter employment.[42] Put differently, for every hundred people who face reduced income and sanctions, only three, approximately, are expected to find work as a result.
i. It gives the misleading impression at p. 9 that the object of the proposals is to "give [LCWRA claimants] support, to help them get ready to work", whereas in fact they already benefit from such support which they can choose to take up on a voluntary basis or not as they wish, without being subject to conditionality. But the document does not inform the reader of this critical fact. It is not made clear that the proposals are to compel additional people to participate in "work related activity" (and to a more limited extent, to compel additional people to look for work).
ii. Under the heading "Changing substantial risk" it states of the proposals: "We are not going to force people to work or get ready for work, or take away money if they do not". This also gave a misleading impression. As set out in paragraphs 39 and 42 of the Consultation Paper, the proposal was to amend the LCWRA Substantial Risk Criteria definition, or to remove the LCWRA risk criteria entirely. That could indeed lead to an affected person being forced to undertake "tailored" work related activity on pain of being sanctioned if they did not, and it would indeed take away money (the LCWRA benefit sum) from them.
Sir James suggested that this was merely an expression of intention (i.e. "we do not intend to take away your money") but I consider a reasonable person reading this document would understand this to be a description of the effect or consequence of the proposals[43]. Sir James also suggested that those people designated as LCWRA could be taken to understand they will lose their LCWRA financial benefit if they move into the LCW category. I do not accept that: they are being told the opposite in this document. Nor do I consider that the misleading impression given by this statement was dispelled by the wording at the top of the next page of the Easy Read document as suggested by Sir James: "But we want to get people to take part in activities that help them learn and feel better about working."
iii. There is no mention anywhere in the Easy Read document that the proposals are to reduce very significantly the amount of money paid to most affected claimants, even if they comply fully with all conditionality. Nothing is said at all (whether expressly or inferentially) to the effect that should a person transition from LCWRA to LCW under the proposals, then they will lose their monthly benefit payment of £390.06. There is, in particular, no equivalent of Annex D to the Consultation Paper[44]. I accordingly reject the Defendant's submission that this would have been "obvious to any potential respondent to the Consultation and therefore did not need to be expressly stated"[45]. It was not so obvious, and it did need to be so stated[46].
"For the proportion of UC and ESA claimants that move from LCWRA to LCW/FFW due to the WCA changes we are planning to consult on, reductions in income for individuals will be significant. The LCWRA element is £390 per month.
LCWRA also removes people from the household benefit cap so overall reductions in income could be greater (see Annex A).
Volumes of people affected if WCA changes to Mobilising and Substantial Risk activities and descriptors were applied to initial claims or reassessments respectively.
Claimants
affected by
reforms (000s)
| 25/26 | 26/27 | 27/28 | |
| Initial claims | 45 | 80 | 120 |
| Reassessment | 30 | 60 | 95 |
• Options could be considered to ease this transition, particularly given the substantial risk claimants, whom we know have preexisting significant mental health conditions and suicidal ideation. The reduction in income alone might be a bigger contributory factor to a deterioration in mental health than undertaking work preparatory activity."
"Under plans included in the consultation, those identified as capable of work preparation activity under the new criteria[49] would receive tailored support, preventing automatic exclusion from available support." (emphasis added)
"Those who were found capable of work preparation activity in light of the proposed changes would receive tailored support, safely helping them to move closer to work and ensuring a significant proportion of people are not automatically excluded from the support available."
Complaints about the rushed nature of the consultation process and lack of analysis
"Work Capability Assessment: activities and descriptors consultation
The Committee has received representations from key stakeholders expressing concern about the timetable for the Work Capability Assessment: activities and descriptors consultation. There is a view that previous changes of this scale have been made after an extensive period of evidence gathering and consultation, including involving experts and representative groups in stages of development and testing. Eight weeks for this consultation may not enable all affected people to engage and contribute.
I would therefore be grateful if you could give consideration to extending the consultation deadline and if you do, if you could determine an adequate length of extension after discussion with key stakeholders. Should you not agree to extend the current consultation, will you give an undertaking now to conduct a further consultation on the detail of the changes to the WCA following the initial announcement at the Autumn Statement.
I would also be grateful if you could confirm that the Department will conduct a full impact assessment of its proposals. If it does conduct such an assessment, can you please also confirm that this will be published."
(1) On 26 October 2023 the Equality and Human Rights Commission wrote to the Defendant stating: "Our concerns about this consultation exercise relate to the duration of the consultation and the absence of any analysis in published documents of the potential impact of the proposals on disabled people and other protected characteristic groups… the impact of the proposals on disabled people, including people with different types of impairment, warrants careful and detailed consideration."
(2) In October 2023, the Child Poverty Action Group explained in their response that "we are concerned about the proposals contained in this consultation, and we strongly recommend that they should not go ahead. We believe that a brief public consultation on measures that could result in significant changes affecting large number of claimants with disabilities and long-term health conditions, including those claimants losing access to higher rates of benefits associated with universal credit (UC) limited capability for work-related activity (LCWRA) status and membership of the employment and support allowance (ESA) support group and/or being put at risk of sanctions is inadequate. We recommend that the DWP conducts further consultations with claimants, advisers and other stakeholders before any of the proposed changes are implemented".
(3) The National Association of Welfare Rights Advisers also stated in their response that: "No impact assessment appears to have been carried out for these proposals … The government has already set out plans to abolish the work capability assessment in its White Paper and has provided no justification for rushing through these proposals, the full impact of which has not been considered, in advance of that."
(4) The response of a number of different disabled people's organisations (including Inclusion London, Disability Rights UK and Disability North) was to similar effect:
"This consultation lasted only 8 weeks. It proposed a huge change which will have a serious impact on thousands of people. We did not have enough time to properly engage with our members in accessible ways. Many of our organisations do not have the capacity to respond in such a short time. We find it totally unacceptable that such a short period of time is given when the key audience are disabled people with a range of access needs who will find it harder to respond and need more time not less…
As a result of proposed changes people will lose £390.00 a month. It is shocking that the consultation proposal does not mention this at all. It is also disappointing there is no clear indication of how many people will be affected. This is crucial information and we seriously doubt the public can make informed contributions to this consultation without fully understanding the negative financial impact for future claimants."
(5) In their response, Equity pointed out that:
"It is our view that to understand this consultation requires substantial knowledge of the law in this area. This will undoubtedly hinder many people's understandings of the proposals, including those who are directly affected by the proposals if implemented.
The issues are complex and a brief public consultation on measures that could see people lose vital income and/or be put at risk of serious harm is entirely inadequate and dangerous ... The consultation states that the descriptors are no longer relevant but does not provide a robust analysis as to why.
We are also concerned that the timeline for this consultation is seemingly designed to enable an announcement at the Autumn Statement rather than allow for careful consideration of responses as is vital in the current context of DWP investigations on safeguarding and DWP related deaths for vulnerable claimants.
The consultation is not clear that in fact in work support is available to those in the support group/LCWRA, but on a voluntary basis."
(6) Z2K, an anti-poverty organisation, put these points very well in its letter to the Defendant dated 25 October 2023:
"Neither the main consultation document, nor the accessible formats, are clear about the implications of losing LCWRA status – particularly the impact it would have on an affected claimant's Universal Credit award.
In the main consultation document, it is left to the reader to infer this from the material in an annex and a single mention of an unspecified 'additional amount of benefit' in paragraph five. This is not repeated in the sections discussing the specific sets of proposals.
In the Easy Read consultation document, there is no mention at all of any income loss which would result from the proposals. There is certainly no reference to the additional £390 a month payment that LCWRA status entitles someone to. This is a deeply concerning oversight. Someone relying on the Easy Read format to respond to the consultation would have no way of knowing that LCWRA status provides an additional Universal Credit payment, nor that this would be lost if they no longer qualified for LCWRA status. We also believe this document gives a misleading impression that support cannot be accessed by someone who currently has LCWRA status.
Duration of consultation period
Z2K does not consider eight weeks a sufficient period to consult on changes that could have a substantial impact on disabled people and people with long-term health conditions. It has not been feasible to meaningfully engage our networks with lived experience on such a complex area in this timeframe. This challenge has been made greater by the lack of clarity in the consultation documents, in particular the accessible versions. We are aware that we are not the only organisation to have faced this challenge."
(7) Finally, Disability Wales made the same complaints:
"We are disappointed to see that this consultation did not give a full 12 weeks for a response, this has made it difficult to engage with disabled people in the depth that we believe is required for these proposals.
We share the England DPO Forum's concern that there is no mention of the financial difference in receiving LCW and LCWRA. This is essential information for this consultation, we do not believe that you can fully answer some of the questions posed by this consultation without awareness of this. These proposed changes would leave disabled people £390 worse off a month."
"Eight weeks was wholly insufficient to give an organisation like Inclusion Scotland time to ensure that its members had the opportunity to engage with the Consultation. While we did attempt to arrange an engagement event at short notice and in the limited time available, for unavoidable but foreseeable reasons, it could not take place".
"I do not think it was clear that individuals could lose up to £390 as a result of the policy proposal, or that they could become subject to the sanctions regime if they could not comply with new conditions which could be imposed on them if they no longer were accessed as having limited capability for work-related activity ('LCWRA'). Indeed one part of the Consultation stated that it was not the intention of the change (in the context of the Substantial Risk rule) to bring people into mandatory activity or sanctions territory, when it seems to me that that is the necessary result of the changes being called for. I also think that people may have formed the view that the LCWRA group were currently not able to avail of any support, when in reality they can if they would like, but on a voluntary basis."
"8…We were under the impression that DWP's focus was on the Transforming Future Support: The Health and Disability White Paper (which had been published earlier in the year) and the Disability Action Plan, which the government was consulting on at that time. I was really worried that they were also launching the Consultation, and giving people less than two months to respond, as I had real concerns about whether an adequate response was possible in that time for Inclusion London and for other DDPOs and Disabled people who may have wanted to have their say."
"16. I was able to understand that the policy proposals would ultimately lead to loss of benefits and an imposition of conditions for some, and that changes were not required to the law to offer support on a voluntary basis. However, I know this because I have worked in various welfare policy roles for the last 10 years and so know how the systems work. I do not think any of these points were obvious from the consultation paper. There were also aspects of the consultation paper that I found difficult to grapple with, because I felt like I needed more information, including how many people would be impacted by the policy change.
17. I also felt that the overall impression of the Consultation was misleading, if you did not have prior knowledge of the direct impact it would have on the financial and general well-being of those affected by changes. I think most people would support an aim to help more Disabled people into work. However, people may be less likely to agree with such a proposal if the help is in the form of compulsory activity that work coaches without appropriate training in dealing with Disabled people think are acceptable. They may also be less likely to support changes where not availing of this help could lead to benefit sanctions, in circumstances where these people may have already lost £390 a month due to no longer being assessed as having LCWRA. Given the lack of clarity, I think it is quite possible that some smaller organisations without welfare policy experience may not have understood the implications of the Consultation, and that non-disability sector organisations and members of the general public (including some Disabled people) would also not have appreciated the effects of the proposal. For this reason, these organisations and people may not have responded or, if they did respond, may have not dealt with the issues raised comprehensively."
"I have two degrees, including Law, and nearly 20 years of social security advice in practice: advising individuals, groups, and policy makers. As a result I understood the main legal implications of the policy proposals. I knew that many people would lose up to £390 a month in benefits and some would become subject to conditions, and that changes were not required to the law to offer support on a voluntary basis. But I only knew this because I am a specialist who knows a lot about the law in this area. I think it would have been difficult for a lay person to understand the legal implications of the proposed cuts."
Results of the consultation process
Merits of challenge
Ground 1A
"As a result of proposed changes people will lose £390.00 a month. It is shocking that the consultation proposal does not mention this at all. It is also disappointing there is no clear indication of how many people will be affected. This is crucial information and we seriously doubt the public can make informed contributions to this consultation without fully understanding the negative financial impact for future claimants."
Ground 1B
i. the Defendant was not candid that fiscal impact, rather than labour market impact, was the central basis on which decisions would be taken;
ii. if, alternatively, the central rationale for making the proposals was as the Defendant stated, then its link to the proposals was not adequately explained;
iii. the Defendant misleadingly implied that the proposals on LCWRA risk were necessitated by increases in the proportion of LCWRA decisions accountable to risk, when in fact it had been steadily decreasing for years.
Ground 1C
i. the consultation documents did not explain that the number of people expected to find employment was vastly outweighed by the number of people who would lose money and face conditionality but would not as a result find employment;
ii. no information was given about the likely disability impact.
a. what evidence he considered supported his implicit view that increased compulsion and reduced benefit levels would achieve his stated objectives; and what that evidence showed about the scale of the likely positive and negative impacts of his proposals;
b. the likely fiscal and labour market impact of the proposals; or
c. the likely equality impact of the proposals.
Ground 2
Conclusion
Note 1 The Defendant must, except in prescribed circumstances, impose on such a person a work search requirement as well as a work availability requirement: s. 22 WRA 2012. The requirements are set out at ss. 15-18 of the WRA 2012. [Back] Note 2 WRA 2012, s 21(1)(a). [Back] Note 4 Ibid, s. 19(1). But they may access, voluntarily, work related activity. [Back] Note 5 Ibid, s. 19(2)(a). [Back] Note 8 Ibid, ss.26-27; UC Regulations 2013, Part 8 Chapter 2. [Back] Note 9 UC Regulations 2013, Schs.8-9. [Back] Note 10 UC Regulations 2013, Sch.9 §4. [Back] Note 11 This is the 2024/25 rate for claimants whose LCW began before April 2017; for claims where LCW has begun since that time, a person with LCW receives the same sum as a person who is unemployed but FFW. [Back] Note 12 UC Regulations, regulation 83. [Back] Note 13 R (Liberty) v Secretary of State for the Home Department [2024] EWHC 1181 (Admin) at [160]. [Back] Note 14 See R (Sumpter) v Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) at [94(iii)]. [Back] Note 15 Ibid, citing R (Osborn) v Parole Board [2013] UKSC 61 at [65] per Lord Reed and see Liberty (supra) at [160]. [Back] Note 17 Emphasis added, as the present case concerns only the second and third of these Gunning requirements. [Back] Note 18 Thereby endorsing the requirements adopted by Hodgson J in R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168 (“the Gunning requirements”). [Back] Note 19 Here, people with disabilities which include mental impairment. [Back] Note 20 The consultation document must be clear to the general body of applicants: see R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [9]. [Back] Note 21 Which was the case here, viz., the LCW and the LCWRA additional monetary elements of £156.11 and £390.06 respectively. [Back] Note 22 As is the case here, viz., people with disabilities, as well as mental impairment and suicidal ideation. [Back] Note 23 “The Coughlan formula is a prescription for fairness. It is an aspect of fairness that a consultation document presents the issues in a way that facilitates an effective response”: R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [9]; and at [10]: “Another aspect of fairness is that it must present the available information fairly”. [Back] Note 24 In that case, the Court found at [69] that the public consultation was inadequate because “the need to explain the financial side of the draft proposals to the public in an understandable way was lost sight of or not understood”. [Back] Note 25 In Devon at [68], Ouseley J also stated: “What needs to be published about the proposal is very much a matter for the judgment of the person carrying out the consultation, to whose decision the courts will accord a very broad discretion.” I agree with Sir James Eadie KC that this passage is not objectionable so long as it is understood to mean that subject always to the “outer perimeter” requirement of procedural fairness, which it is for the court to assess, there may be some Tameside judgment-call “inner areas” for the Defendant to make in respect of how the consultation is formulated. [Back] Note 26 It must not be materially misleading. Consultation based upon a document which is materially misleading cannot be described as a full and fair consultation: R v Secretary of State for Transport, ex parte LB Richmond upon Thames [1995] Env LR 390 at 405 per Latham J. [Back] Note 27 Clifford (2), at [13]. [Back] Note 28 i.e. rising caseloads of people with LCWRA. [Back] Note 29 Office for Budget Responsibility. “Scoring” is a method of estimating the total fiscal impact of a policy change. [Back] Note 30 The descriptors in paragraphs 15a and 15b above. [Back] Note 31 Emphasis added. [Back] Note 32 Autumn Budget 2023. [Back] Note 33 To establish the rationale beyond costs savings, of moving people back into work. [Back] Note 34 Deputy Director in the Employment-related Health Benefits Division, Disability and Health Support Directorate at the DWP. [Back] Note 35 See his first w/s, [12]: “No departmental evaluation of the disability impact of the proposals had been done to assist the Defendant in complying with the PSED prior to 5 September 2023”. [Back] Note 36 Personal Independence Payments. [Back] Note 37 i.e. moving people back into work. [Back] Note 38 This email was only disclosed as a result of the Claimant bringing an application for disclosure against the Defendant. [Back] Note 39 The OBR Report of November 2023 states in paragraph [3.21] that “The fiscal savings arising from this policy, which amount to an average of £1.0 billion a year between 2026-2027 and 2028-2029, come from lower spending on the health element of UC and its equivalent in ESA. Individuals in the LCRWA group currently receive an additional £390 a month in benefits.” [Back] Note 40 DWP, Work Capability Assessment Reform: update to estimated number of claimants affected (18 April 2024); Thorpe WS §39(f). [Back] Note 41 These terms are explained further below. [Back] Note 42 Thorpe WS, WT8 table 1.2. [Back] Note 43 As Ms Richards KC pointed out, there is no discretion in the statute allowing for the waiving of sanctions. [Back] Note 44 And accordingly, Sir James does not have available to him the argument which he advanced as recorded in paragraph [90] of this judgment. [Back] Note 45 Skeleton argument at [32.4]. [Back] Note 46 In any event, as Ms Richards KC rightly pointed out, it would not necessarily have been obvious to a person with LCWRA how much financial benefit a person with LCW was receiving; or that they were subject to conditionality and sanctions. [Back] Note 47 Adverse, that is, to LCWRA and LCW categories of claimants. [Back] Note 48 Note, pre-consultation. [Back] Note 49 Namely those with LCWRA status. [Back] Note 50 It was also given in the email communications from DWP to stakeholders on 5 September 2023. [Back] Note 51 Indeed, the Claimant herself found statements in the Consultation Paper to be “confusing”, with the absence of key information: see paragraph [20] of her first witness statement. [Back] Note 52 In particular at [69]-[75] and [80]. [Back] Note 53 See for example, paragraphs [41], [49]-[50], [61] and [69] above. [Back]