Disability discrimination and benefits
This advice applies to Scotland. See advice for See advice for England, See advice for Northern Ireland, See advice for Wales
Investigation into the DWP's treatment of ill and disabled people
The Equality and Human Rights Commission (EHRC) are looking at the DWP’s assessments for disability benefits, known as ‘fit for work’ tests. They’re investigating whether the DWP have failed to make reasonable adjustments for disabled people.
If you’ve experienced discrimination, you’re not alone. You can use our advice to check how to complain or take legal action and get help if you’re finding things difficult.
If you're disabled, benefit providers must not discriminate against you when they make decisions about your benefits - and they might have to help you access their services.
For example, this includes:
when the Department for Work and Pensions (DWP) or Social Security Scotland makes decisions about your benefits
when you have appointments at Jobcentre Plus
when you deal with other benefit services - like HM Revenue & Customs (HMRC) or your local council
The law that says you must not be discriminated against is called the Equality Act 2010. Discrimination that goes against the Equality Act is ‘unlawful’. This means you can take action about it.
The DWP sometimes hire other organisations to provide services on their behalf - like Maximus and Capita. These are private companies that carry out health assessments, known as 'fit for work' tests. They do these tests when you apply for:
Employment and Support Allowance (ESA)
Universal Credit - if your disability affects your ability to work
These organisations are also covered by the Equality Act. If they treat you unfairly it can also be unlawful discrimination.
Check if it was discrimination
To work out if a benefit provider has discriminated against you, you should:
check if you’re protected from disability discrimination
check how you were discriminated against
Check if you’re protected from disability discrimination
If you want to make a disability discrimination claim, you’ll need to show your impairment meets the Equality Act’s definition of disability.
You can still be protected from disability discrimination even if you’ve been told you can’t get disability benefits. This is because you can meet the Equality Act’s definition of disability without meeting the eligibility criteria for disability benefits.
Check if you’re disabled under the Equality Act.
Check how you were discriminated against
The most common types of disability discrimination are:
‘failure to make reasonable adjustments’
‘discrimination arising from disability’
Benefits services must make ‘reasonable adjustments’ if it’s harder for you to use their services compared to someone who isn’t disabled. This means they might have to change a policy, change something about a building or give you extra help and assistance - for example, to use a computer or do a job application.
If you’ve asked for reasonable adjustments and they don’t take steps to help you, this could be unlawful discrimination.
It can also be unlawful discrimination if the benefit provider knows you’re disabled and they treat you unfairly because of something that happens as a result of your disability. This is called ‘discrimination arising from disability’.
For example, it might be discrimination arising from disability if your work coach knows you find it hard to be on time because of your disability but they give you a sanction for missing an appointment.
Most of the time, if a benefit provider fails to make reasonable adjustments, you'll also be able to complain about discrimination arising from disability.
There are also other types of unlawful disability discrimination. These are:
direct discrimination - this is when someone treats you differently and worse because of your disability
indirect discrimination - this is when a policy or rule applies to everyone but it has a worse effect on people with your disability
harassment - this includes things like bullying or making jokes about you because you’re disabled
victimisation - this is when you complain about disability discrimination and you’re treated badly because you complained
You can check if you’ve experienced one of these types of discrimination.
Examples of unlawful discrimination
Benefit providers might need to make reasonable adjustments in a number of situations - for example:
if you have difficulty communicating
if you have difficulty keeping appointments
when they’re assessing if you can get benefits
if they decide to sanction you
If you have difficulties communicating
The duty to make reasonable adjustments means benefit providers must communicate with you in an appropriate way if you’re disabled - for example, by email, textphone or BSL. It may also include taking extra time explaining something to you. They must provide their information in an accessible format if you need it - for example, large print or Braille.
Charis is visually impaired and has told the DWP. She wanted to appeal a benefits decision but the DWP sent her the form in standard print. Charis couldn’t read the form so she didn’t send it back. She missed the deadline for appealing the decision. Charis can complain about:
failure to make reasonable adjustments - because the DWP didn’t send her an accessible form
discrimination arising from disability - because she missed the deadline as a result
Keeping appointments
You may find it difficult to keep an appointment about your benefits because of your disability. You can ask the benefit provider to make reasonable adjustments so you're not disadvantaged if you can't keep your appointment. For example, they might have to change your appointment time or not give you early morning appointments. If they refuse it could be disability discrimination.
Simon takes medication for his mental health problems. The medication makes him sleep a lot and it’s difficult for him to attend appointments in the morning at the Jobcentre Plus. Simon can ask Jobcentre Plus to give him afternoon appointments. If they don’t, he can complain about failure to make reasonable adjustments.
Assessing your entitlement to benefits
If you're disabled you might find it more difficult to apply for benefits or you might be disadvantaged by how your entitlement to benefits is assessed. Under the Equality Act you can ask for reasonable adjustments to be made to the assessment or application process so you're not disadvantaged.
For example, you might find the following things difficult:
travelling to or attending face-to-face assessments - for example, if you have agoraphobia or experience panic attacks
concentrating and understanding the questions you're asked in your interview - for example if you have a brain injury
filling in the application form or explaining about your disability - for example, if you have a learning disability
If you have mental health problems and you’re applying for disability benefits, the person carrying out the assessment must ask for more medical information about your condition before the DWP make a decision about your claim.
Sanctions
If you receive certain benefits, like Universal Credit and you don’t follow the conditions, you might be sanctioned and have your benefits stopped - for example, if you don’t attend an interview or apply for a job.
If you couldn’t meet the conditions because of something connected to your disability, it might be unlawful disability discrimination if you get sanctioned.
Wynn is dyslexic. Their Universal Credit has been stopped because they didn't apply for a job. Wynn needs help applying for jobs because of their disability - but this time there was nobody who could help them. Jobcentre Plus know about Wynn’s disability.
Wynn can complain about:
failure to make reasonable adjustments - because Jobcentre Plus didn’t give them the help they needed to apply for a job
discrimination arising from disability - because they were sanctioned for not applying
Taking action
If you’ve experienced unlawful discrimination, you can make a formal complaint to the benefit provider.
Public authorities know they have to make their services accessible and that they must not discriminate against you. Benefit providers are a type of public authority. If you complain, they should try to put things right.
If that doesn’t work, you might be able to take them to court.
Check how to complain to or take action against a public authority.
Get more help
If you’re not sure what action to take, you can contact the Equality Advisory Support Service. They can’t give you legal advice but they can help you work out what action to take without going to court.
You can also check if you can get help with legal costs.
If you’re finding things difficult
Your mental health is as important as your physical health. You should talk to your GP if discrimination is affecting your mental health.
You can also get help on the Breathing Space website.
If you need to speak to someone
You can speak to a trained volunteer at organisations like Samaritans or Shout.
Samaritans
Helpline: 116 123 (Monday to Sunday at any time)
Welsh Language Line: 0808 164 0123 (Monday to Sunday 7pm to 11pm)
Calls to Samaritans are free.
You can find other ways to get in touch with Samaritans on their website.
Shout
You can also text 'SHOUT' to 85258 to start a conversation with a trained Shout volunteer. Texts are free, anonymous and confidential from anywhere in the UK.
If you think it's an emergency
If you think your life or someone else’s is at risk, you should call 999 or go to A&E if you can.
If you need support you can call NHS 24 on 111, the Mental Health Hub is open 24/7.