The high court this week granted permission for them to bring a claim for judicial review against Iain Duncan Smith, the Conservative work and pensions secretary.
The two disabled people, both supported by the Mental Health Resistance Network (MHRN), claim that the work capability assessment (WCA) discriminates against people with mental health conditions.
The WCA was introduced by the Labour government in 2008 but is now a centrepiece of the coalition’s welfare reforms, and is used to determine eligibility for employment and support allowance (ESA), the replacement for incapacity benefit (IB).
Lawyers for MM and DM – who have been granted anonymity by the court – say many ESA claims are decided through assessments by healthcare professionals who are not mental health specialists.
They argue that the WCA fails to make reasonable adjustments under the Equality Act for people with mental health conditions, and are calling on the Department for Work and Pensions (DWP) and Atos Healthcare – the private company which carries out the tests – to seek medical evidence at the beginning of each claim.
Mr Justice Edwards-Stuart, granting permission for a judicial review, said that it was “reasonably arguable” that “early obtaining” of independent medical evidence was a reasonable adjustment under the Equality Act for claimant with mental health conditions and “that this has not been done, or at least not done on a sufficiently widespread basis”.
A judicial review victory will not lead to the WCA being scrapped, but could make it fairer and less stressful for those with mental health problems, while some could be exempted from having to undergo a face-to-face assessment.
Ravi Low-Beer, MM and DM’s solicitor, from the Public Law Project, said: “The present system results in many thousands of unnecessary appeals at great public expense, with a high success rate.
“What is not counted is the cost in human misery for those people who should never have had to go through the appeals process in the first place.
“This could be avoided if doctors were involved in the assessments at the outset. The government’s policy of bypassing doctors is inefficient, unfair and inhumane.
“We gain heart from the court’s findings that as a matter of law, it is arguable that something has to change.”
He said he hoped the judicial review hearing would take place later this year.
Dave Skull, an MHRN member, also welcomed the court’s decision, and said: “A number of people have been wrongly assessed and misrepresented by the current situation. It is vital that there is some sort of review.”
He said many people with mental health conditions were in a “vulnerable position” and were experiencing “incredible anxiety” because of the WCA’s flaws, and added: “I am supporting a lot of people who are feeling suicidal about the situation with their WCA.”
The MHRN was formed in 2010 by people claiming IB on mental health grounds, who were concerned about the proposed programme to reassess all those on the benefit for their eligibility for ESA.
Many of the network’s members have had relapses, episodes of self-harm and suicide attempts, and have needed higher levels of medication and even hospitalisation in the lead-up to their reassessment.
Thousands of people with mental distress have been found unfairly fit for work following their WCA, and while many go on to win an appeal against this decision, some are unable to cope with an appeal, or experience a relapse in their health as a result of the process.
A DWP spokeswoman said: “Government welfare reforms have a long history of being taken to judicial review so this is little surprise and we will be challenging this claim vigorously.
“We have worked hard to ensure people with mental health problems are treated fairly.”