DWP consultation on disability benefit reforms “so unfair as to be unlawful”, High Court rules

A High Court judge has found that a consultation on proposals to make legislative amendments to the Work Capability Assessment (WCA) run by the Secretary of State for Work and Pensions in 2023 was unlawful.

In Clifford, R (On the Application Of) v Secretary of State for Work and Pensions [2025] EWHC 58 (Admin), Mr Justice Calver accepted that the Secretary of State “failed to explain adequately the proposals themselves”, and noted a “strong evidential basis” for finding that less than 8 weeks for a consultation concerning such significant proposals was “insufficient and so unfair as to be unlawful”.

Challenging the consultation, the Claimant, Ms Clifford, who is a disability rights campaigner, alleged that that the Secretary of State:

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

The WCA is used to assess the capability for working of people who claim Universal Credit and report a health condition that affects their ability to work; and people who claim Employment and Support Allowance.

Assessments are carried out by healthcare professionals who are contracted on behalf of the Department for Work and Pensions (DWP).

The WCA has three possible outcomes: Fit for Work, Limited Capability for Work (LCW), or Limited Capability for Work and Work-Related Activity (LCWRA).

A LCWRA assessment means that such a person cannot be required to look for work, or to take part in “work-related activity”. They are entitled to benefits at a higher rate than a person assessed as having LCW.

Outlining the relevant background, the judge said the consultation was announced, and consultation documents published, on 5 September 2023.

The key consultation documents were (i) the Consultation Paper; (ii) the Easy Read Consultation Paper; and (iii) the announcement (on 8 September 2023) in DWP's 'Touchbase' newsletter.

The judge noted: “In summary, the proposals which were the subject of the Consultation were:

a. Potential changes to the 'mobilising' activity and associated descriptors. 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. 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".”

Under ground 1A, the Claimant argued that 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.

Considering this ground, Mr Justice Calver said: “I consider that this ground is made out. Sir James [for the Defendant] submitted that the Claimant does not say that she misunderstood what was proposed and does not identify anyone in that position. Moreover, he submits, none of the responses to the consultation suggested a misunderstanding of what was proposed.

“But first, that is factually incorrect. The evidence of a number of key NGOs and of the witnesses was that, in light of the way the proposals were presented, a proper understanding of those proposals by vulnerable people would likely have been seriously hindered.”

He added: “It is well summarised by Inclusion London, Disability Rights UK and Disability North which stated in its consultation response:

"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."”

The judge noted that the Secretary of State’s submission “assumes” that those who wished to respond to the consultation understood what was being proposed. If they did not, they may not have considered it necessary to respond.

He said: “I consider it very likely that there would have been vulnerable people who were misled in the ways suggested by the Claimant, being people who had limited access to education, with learning disabilities and cognitive impairments, as well as substantial risk claimants with mental health conditions and suicide ideation, many of whom are likely to be without access to sophisticated professional people and organisations.

“These would be the very people who could be expected to rely upon the Easy Read document. This is a case in which fairness dictated that the Defendant ought to have spelled out clearly to these consultees the effect upon them of what was being proposed.”

The judge concluded that ground 1A was established by the Claimant.

On ground 1B, the Claimant submitted that the Secretary of State failed to explain adequately his rationale for making the proposals in the following respects:

1. the Defendant was not candid that fiscal impact, rather than labour market impact, was the central basis on which decisions would be taken;
2. if, alternatively, the central rationale for making the proposals was as the Defendant stated, then its link to the proposals was not adequately explained;
3. 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.

The judge acknowledged that the Defendant “ought in fairness” to have made clear that Annually Managed Expenditure (AME) costs savings were, together with work inactivity, the rationale for the proposals.

He added: “Yet, the section of the Easy Read Document headed "Why we are making changes" makes no reference whatsoever to the desired AME savings, including in particular the savings from moving people in the LCWRA category into the LCW category.

“I consider that to this extent Ground 1B succeeds – there was a failure to explain adequately the rationale for making the proposals.”

On part iii. of ground 1B however, the judge stated: “I do not consider that the court is in any position to draw reliable conclusions as to where the truth lies in respect of the rival submissions as to what can be gleaned from these statistics/data, which only present a partial picture of a particular period in time in any event.

“I certainly do not consider that the court can, based upon the statistics relied upon, conclude that the consultation was so unfair as to be unlawful and I do not base my decision upon them.”

On ground 1C, that the Defendant failed to provide “adequate accompanying information” about the impact of the proposals, Mr Justice Calver said: “In the present case, the Defendant was accordingly obliged to inform the consultees of the nature of the proposals, and why they were under positive consideration (for financial savings and to reduce inactivity). This it failed to do, as I have found. But I do not consider its duty to consult, at the formative stage, goes further than that.”

He added: “As the Defendant pointed out (and the Claimant implicitly accepted), the consultation included (i) 3 potential changes in respect of 'mobilising', plus the implicit option of maintaining the status quo, i.e. 4 options in total; (ii) 3 potential changes in respect of 'continence'; (iii) 2 potential changes in respect of 'social engagement'; (iv) 2 potential changes in respect of 'getting about'; and (v) 2 potential changes in respect of the Substantial Risk Criteria. There were therefore a large number of potential permutations. Modelling all of these permutations would have been a very substantial exercise, and at the time that the Consultation was launched the DWP only had rough estimates of the potential financial impact of one particular combination of measures.”

Finally, turning to ground 2, that the Defendant ‘failed to provide sufficient time for consultees to respond’, Mr Justice Calver concluded: “There is a strong evidential basis for finding that less than 8 weeks for a consultation concerning such significant proposals was insufficient and so unfair as to be unlawful.

“The significance of the compressed consultation timetable is that it contributed to (a) the hurried publication of misleading and unfair consultation documents and (b) a failure adequately to explain the proposals themselves or the rationale for making the proposals. As a result, consultees required more time, not less, to understand and take advice on the effect of the proposals upon them.”

The judge noted that in setting the consultation period, the Defendant ought to have had more regard to the attributes of those people who would be affected by the proposals.

He said: “These were proposals which, in particular, could potentially drive vulnerable people into poverty as well as adversely affecting disabled people and substantial risk claimants who have mental health conditions and suicide ideation.”

Allowing the judicial review, Mr Justice Calver concluded that each of Grounds 1A, 1B (to the extent described above) and 2 were established by the Claimant.

He concluded: “Taking them together, I consider that the Claimant has surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful. Indeed, had the Claimant only established Grounds 1A and 1B (together); or had she only separately established Ground 1A; or Ground 1B; or Ground 2, then I would in this case still have found that the Consultation was so unfair as to be unlawful.”

Lottie Winson