Is the ESA Appeals System Failing Disabled People?

Employment and Support Allowance (ESA) is designed to support people who are regarded as unfit for work, and is assessed currently by ATOS using the Work Capacity Assessment (WCA). It is important to note that as someone with cerebral palsy who works, I have never claimed ESA or gone through the WCA, but I feel I have suffered in terms of my portrayal as a citizen due to the fierce opposition to WCA by many welfare campaigners.

The WCA has been regarded by many campaigners as being ‘not fit for purpose’, leading to a divisive and confrontational approach by many claimants, and I fear this has made the situation worse than it could have been. The campaigners have cited the fact that 38% of ESA appeals have been overturned as evidence that the WCA is not working and has to be changed. I would like to step back for one moment and add some logic to the equation.

I think it is firstly important to understand Appeals are a part of the process and that people do not need to seek any form of judicial hearing to be proven unfit for work. It is also important to understand that determining whether someone is unfit for work, using the benchmark set by the government, is a very complex thing to get right as it is like getting individually shaped objects into a single square hole. To make matters more complex, these shaped objects are continuously changing shape, meaning while they may fit on one day, they may not fit on another.

ATOS is simply required to take measurements of function and put them in a report for DWP to decide upon. I am sure ATOS is far from perfect as is the same with any organisation being asked to achieve the impossible and turn people into numbers, but I believe it is only half the story and if people wish to properly review the system, than they also need to review the appeals system and ensure that is also fair and just, which includes ensuring disabled people are not unfairly written off as unable to work.

The Appeal will be the applicants’ second stab at obtaining the benefit and therefore they will be more prepared, provide more evidence and probably be more confident with endless advice from the ‘WCA survivors’ twitter community. This alone is likely to mean that there is a greater chance for the decision to be favourable to them, especially since appeals have more time to consider all the evidence. Since the law is often about who has best argued their case rather than who is right, Appeals give a huge advantage to those who those just going through the WCA assessment.

So far I have highlighted the apparent positives of the Appeals process, but I would like to also highlight one fundamental component of the Appeals system that I feel has caused many decisions to be wrongly overturned, and that is the Judges. If my interaction with welfare campaigners has taught me anything in the last few years, it is that the prejudices towards sick and disabled people, often by sick and disabled people themselves, is as strong as it has ever been as it is still wrapped up with politically correct notions of fairness and understanding. While people have supposed respect for disabled people, it is often on the basis that sick and disabled people are of course inferior beings who will never be equal to non-disabled people. It is a situation that previously plagued issues of race and gender, and therefore despite those who think otherwise, it is only a matter of time before it is understood sick and disabled people are equal. But right now, this moral and social argument has still not gained universal acceptance and therefore there is currently massive institutional prejudice towards sick and disabled people in all areas of society.

Therefore it has to be understood that Judges, often from a very fortunate background, may be making decisions on someone’s employability as people who are institutionally prejudiced in a manner they will not even realise. This is made worst by the fact non-disabled people often find it hard to confront sick and disabled people about their abilities, for fear of upsetting people they regard as vulnerable, and so some judges may be shying away from making the right decision.

Finally, I think many welfare campaigners ignore the psychological damage being unnecessarily labelled ‘unfit’ for work, and therefore to a large degree society, has on a person, dooming them to a life overly dependent on the state as a burden to society, as opposed to a fully contributing citizen. In this context, the fact 38% of WCA decisions are overturned may be an area of concern for the very opposite reasons people are claiming.

from Simon Stevens


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