Appeal of PIP Consultation Judicial Review Not Successful

This morning we received the final judgment in our appeal of the judicial review of the consultation for PIP. The appeal was not successful.

The full text of the judgment is linked below but I will quote here the key paragraphs that my solicitor pointed out.

  1. Once it was accepted, as it had to be on the evidence, that the Respondent approached the 2013 consultation with an open mind, it seems to me that the challenge to the process as a whole must fail. It is explained in the evidence that all options were open as to the “Moving around criteria”, even if that meant changing the criteria for “Planning and following journeys” or looking for funding elsewhere. The reality was that consultees such as Mr Sumpter had every opportunity to present to the Respondent the difficulties that the move from a 50 metre benchmark to a 20 metre one would cause to them. It is clear that such opportunity was taken. In reality, it would have gone nowhere to contend in the consultation that the physically disabled should continue to be favoured at the expense of those who suffered other disabilities. No doubt none would have wished to present such an unattractive argument. Given the Respondent’s overall policy to make PIP available to a wider category of the disabled, new beneficiaries obviously had to come into the equation and there would have been no point in contending that they should be excluded.
  1. …As I understand the law, consultation has to be fair; it does not have to be perfect. With the benefit of hindsight, it will no doubt often be possible to show that a consultation could have been carried out rather better, but that will not necessarily mean that it was unfair. That is what the judge said at paragraph 123 of his judgment and I agree with him.

I note that the judge did draw attention to the choice that the government made to frame continuing to help physically disabled people as unfairly withholding help from people with mental and cognitive difficulties. He did not, however, find it relevant that the consultation failed to admit the government decision to give new help at the expense of help previously available. The judge implied that people responding to the consultation only needed to talk about the difficulties we would face, not about the decision to take money away for use elsewhere.

It should be noted that the government had previously said while defending this case that they know they are removing DLA from “individuals with genuine health conditions and disabilities and genuine need” and “removing or reducing that benefit may affect their daily lives.” (This is a direct quote of words used by the government and quoted in the judgment in 2014 at paragraph 80.)

[PDF] Final judgment PIP judicial review appeal

For further information please contact solicitors for this case, Irwin Mitchell.

Previously on this subject:

PIP 20 metre rule consultation back in court

PIP judicial review: Court rules against us but vindicates our case

Two weeks until PIP Judicial Review – 20 metre limit in the dock

Replacement of disability living allowance headline news for hours

Why I am suing the government

“Lots of folk can’t afford a car”

What do you do?

“What do you do?”

The question I dread. The question I cannot answer. Not without losing face, anyway.

“What do you do?”

I sit on Twitter.

That’s what I do. All day. Mostly on a tablet. On a laptop or desktop PC when I am well enough. On a phone in bed when I am not. I’m there when I wake up in the morning. I’m there at 2am. I don’t really leave. I watch the stream of tweets flow past. And believe me, when you follow more than 3,000 people they really flow.

It fills the time between hospital appointments. The endless stream brings me news, jokes, struggles, friendship. It fills my browser with tabs to read. So many that I barely have enough time to look away from the stream to read them.

It’s not like I can do much else since I became too sick to work. Mitochondrial myopathy and a whole catalogue of other problems have robbed me of my concentration, my ability to go to my office, to talk, sit, walk or stand when employment demands it. I can’t do the things that employers are willing to pay for anymore, but I can tweet. And I do. A lot.

I still crave usefulness though.

“What do you do?”

I tell people what I think will make them see me as like them. As a productive member of society. I tell them I am an activist. A welfare and disability rights campaigner. I am, too. Twitter has got me involved in campaign groups, put me in touch with people doing anything they can to get the truth in front of media and MPs. Twitter has found me radio and TV interviews and eventually lead to me being part of a Judicial Review over PIP. Through Twitter I have listened to the despair of many sick friends when they try to get the help they are supposed to get. I advise them, tell them where to find the hidden rules, how to get help to get help. Through my own trivial tweets, I am told, I help others to realise they aren’t alone, that their illness isn’t imaginary. They have done the same for me. I have made people aware of injustice, of the fights against that injustice. I have shown them protests and struggles. I have done more than I ever did when I had a nearly functional body and brain.

But all of this takes a toll. I am not well. I am very much not well. Physically and mentally I struggle through every day, and these days, Twitter is an endless bombardment of despair. For me Twitter suffers from having split purpose. It is a space to meet friends, sure, but it is also a public speaking platform. It is a news stream. Since all my friends care about the horror of the world, even when I want to withdraw from that to recover I still see what they are talking about. Twitter is a place for intimate sharing, for larger social circles, for staying aware of what is happening, and for speaking out. The biggest problem comes when a tweet meant only for one of those purposes crosses over to the others. When a minor personal gripe to a close friend becomes an international phenomenon embedded in news stories everywhere.

Over the last few years my tweets have attracted attention. Not huge by media standards but still enough that I will often get 100 retweets on something I said. I am pretty good at accidental anger that people share and amplify. If I am on a roll I can have several tweets like this on the go at once and that makes my notifications… interesting. My tweets about illness attract replies from friends, of course, but also from more distant acquaintances. They often attract unwanted advice that is irrelevant or I have already tried and discarded years before. My political tweets often receive insults or abuse from right-wing people who have come across me being retweeted. The questions, advice, insults and abuse all make me panic and retreat from Twitter. Well, that’s not quite true. I have started retreating to a private locked twitter account which just a few friends are able to see. I don’t think this is uncommon either. Quite a few people have a locked Twitter account alongside their public one, especially people who aren’t straight white cisgender men.

Admitting to having a locked account will make some of my followers sad and for that I am sorry, but this raises another aspect that I am struggling with. I have been very open about physical and mental illness and as a result I have far more people emotionally invested in me than I could ever keep track of. I feel guilty about this every day because I wish I could return the friendship shown to me. Sometimes even the friendly responses are too much for me to deal with and so I have said less about personal things on my public account and only put a few of them on my locked account instead. When I finally managed to admit and talk about my gender dysphoria I did that almost exclusively on my locked account – which is messed up in itself because I have been unashamed of physical and mental illness yet too ashamed of my gender to talk publicly.

I am not sure if there is any solution to the problems I have mentioned. I am bad at segregating my tweets between accounts and in any case I feel useless when something I said could have helped someone else but stayed hidden away. I have thought about deleting my public twitter account but that would be a waste of something that can do a lot of good. I have considered unfollowing everyone and then adding back only a few people so that I see less awfulness but that would upset many people and not address the replies that I cannot deal with.

I am not asking for advice – as should be obvious if you just read this blog post. I guess I will continue with Twitter, continue to raise my voice about the problems that I see, because that is what I do.

“What do you do?”

I shout.

PIP 20 metre rule consultation back in court

This time last year we took the Department of Work and Pensions to a judicial review to decide if they properly consulted about cutting help for people who can only walk a few metres.

The original consultation did not make clear the plan to cut the qualifying maximum distance from 50 metres to 20.  In quite strong language for a judge, the court noted that the consultation was  “Mind-bogglingly opaque”, “At best ambivalent”, and “Convoluted, inherently unclear, ambiguous and confusing.  No construction allows for full coherence.”

Nevertheless, the court found – very narrowly – in favour of the government and said that the second consultation, started after this judicial review was in motion, was enough to make things right.

This week we are back in court to appeal that decision. We argue that the second consultation could never have changed the decision that had already been made. The hearing will take place in the Royal Courts of Justice in London from 10:30 on the 14th and 15th of July. The judgement will follow a few days later.

It is frustrating that this case is about whether the consultation on PIP was fair rather than about the cut itself, but the courts cannot decide on government policy. As part of their defence the DWP pointed out that they are fully aware of the impact of their policy, and are removing DLA from “individuals with genuine health conditions and disabilities and genuine need” and “removing or reducing that benefit may affect their daily lives.” The DWP did do a consultation on their policy though, and that consultation wasn’t fair, so that is what we are fighting.

 

Electric Wheelchair in the back of a car
My Motability car, which I stand to lose if denied the high rate mobility component of PIP

 

Background information

As part of the Welfare Reform Act 2012 the government replaced Disability Allowance with Personal Independence Payments. Their main reason for the change was to introduce repeated frequent testing to see if claimants have miraculously healed. They also changed the maximum distance that you can walk and still qualify for help towards regaining your mobility. Under DLA the cutoff was recognised to be 50 metres. Under PIP it has been slashed to just 20 metres. This means that if someone can walk more than 20 but less than 50 metres (subject to a few caveats) then they will no longer get the highest amount for the mobility component of PIP. Assuming the person still qualifies for the lower rate of mobility, this is a cut of £35.65 per week. But worse than that, the higher rate mobility component is a gateway to all sorts of help including the right to lease a car or wheelchair through the Motability scheme. As a result of this cut more than a hundred people are losing their car every week, and many thousands more will follow when they are reassessed for PIP. Losing independent transport means losing independence and access to services.

A prominent example of this came just last month when Teenage Paralympian Kayleigh Haggo was denied the higher rate for mobility and lost her car. Kayleigh got her car back after the decision was overturned a few weeks later but this illustrates the problem that we are facing.

UPDATE
The hearing took place and seemed quite positive however the judgement will follow at a later date, probably October.

Previously on this blog:

PIP judicial review: Court rules against us but vindicates our case

Two weeks until PIP Judicial Review – 20 metre limit in the dock

Replacement of disability living allowance headline news for hours

Why I am suing the government

“Lots of folk can’t afford a car”

What you should know before pushing a wheelchair

Trabasack Wheelchair Lap Tray

Today my sister used a wheelchair for the first time. (We share the same inherited mitochondrial condition.) Her husband has little experience of pushing a wheelchair so I tried to give him some tips, which resulted in what I have written below. Believe it or not there is actually some skill involved in pushing a wheelchair and keeping the person in it comfortable. These are just observations from my own experience of being in a wheelchair pushed by someone else, but everyone is different. If you’re pushing a wheelchair for someone new then you should ask them if they have any preferences.

Karma Wheelchair

  1. Communicate. Ask if there’s anything you need to know first. NEVER touch or move a wheelchair without permission.
  2. Don’t overshoot checkouts and reception desks. If you are level, your passenger has gone too far past it.
  3. Don’t bump your passenger’s feet into people, objects or walls. Particularly in lifts.
  4. Don’t follow anyone too closely. (See previous point.) Your passenger is closer to them than you are, and seeing backsides that close gets tedious.
  5. Watch out for oddly sloping pavements, especially near dropped kerbs. The wheelchair WILL veer sideways into traffic if you are not careful.
  6. Look ahead for bumps. Dropped kerbs are often not dropped very much. Be prepared to walk a long way around via the road.
  7. Always approach bumps straight on. If you are not lined up, stop and turn first.
  8. It can be easier to go backwards over bumps if the wheelchair has large wheels.
  9. Pay attention to the surface you travel over and take the smoother path. Cobbles can be painful or tiring for someone in a wheelchair.
  10. Don’t let the wheelchair run out of control. Consider taking slopes backwards so you can hold back the wheelchair. CHECK FIRST!
  11. If your passenger says stop, STOP immediately. (And, indeed, follow other instructions – see comments below.)
  12. Try going through heavy doors backwards so you can push the door with your body.
  13. Some wheelchairs have brakes operated by the passenger. Never assume that those brakes are on or off, always check.
  14. If someone speaks to you when they should speak to your passenger, tell them so.
  15. Be forgiving of your passenger. They have no control and that may make them grumpy. Wheelchair users: be aware that you might be shouting at your assistant more than you realise.
  16. If you’re pushing a wheelchair very far then you’ll probably want to get some gloves.

Thanks to @knitswift, @chmasu, @missnfranchised, @lisybabe.

“Lots of folk can’t afford a car”

I tweeted about the thousands of people that will lose Motability cars (and wheelchairs) when their DLA is taken away.

A clueless person replied

they get £2k when car is taken away! Lots of folk can’t afford a car at all no matter what their situation x

Lots of poor people are “trapped” without a car but they don’t get £2k to help x

Where do I start?

Most people can walk, or cycle, or get the bus without it causing pain and exhaustion, or get the train, or do a combination of all of that. And yes, if someone is a customer of Motability when their DLA is taken away, they’ll get £2K from the charity. (Part of Motability is a charity.)

It won’t go far.

I have to have a car that is

  1. big enough to get a wheelchair in,
  2. comfortable enough not to leave me in pain,
  3. automatic, with an electric handbrake and cruise control, otherwise, again, pain.

£2K will not buy that car. It will also not do many taxi journeys to doctors, hospitals and supermarkets while living out here in the countryside. So I’ll have to use my electric wheelchair and the bus. I’ve only got the wheelchair because I begged for donations – remember, some use Motability to get one, and it’s a choice of wheelchair or car.

Taking the wheelchair on the bus is extremely exhausting for me and ultimately, painful. If I run out of energy or get overwhelmed by pain half way, I’m screwed. So I’ll stop going out except for vital things, like the doctor. Without a car, that trip takes several hours.

Then I spend a week recovering.

If I stop going out, my already precarious mental health takes a dive. I’ll probably become suicidal again.

Problem solved for the DWP, I suppose.

Just in case you’re under the misaprehension that PIP/DLA is only being taken away from people that don’t really need it, here’s what the DWP themselves said, quoted at a Judicial Review last year:

“we were aware that the vast majority of recipients of DLA were individuals with genuine health conditions and disabilities and genuine need, and that removing or reducing that benefit may affect their daily lives.”

The government is deliberately taking help away from people who can walk more than twenty metres but still less than fifty, and they say they know that those people have “genuine need”, they just don’t care what cutting DLA will do to them.

Is it right to take DLA away from thousands of people because “Lots of folk can’t afford a car at all no matter what their situation”? Ask yourself if it has quite the same impact. Or why the hell you don’t ask why those other people aren’t paid enough to afford a car.

PIP judicial review: Court rules against us but vindicates our case

We lost. The judge ruled that in the end the consultation process for PIP was not unfair.

However that is not the whole story. You see, the judge found that it was the second consultation that made things right. The first consultation, he had some harsher words for. Words such as:

“Unfortunately mind-bogglingly opaque.” (Paragraph 105 part ii)
“At best ambivalent” (Paragraph 105 part vii)
“Convoluted, inherently unclear, ambiguous and confusing.  No construction allows for full coherence.” (Paragraph 106)

Not exactly a ringing endorsement of the way the government chose to do things, I think you’ll agree.  The government’s legal team also agreed, and in fact they have accepted that they must share a portion of the costs of this judicial review in the face of evidence that it was indeed justified.

Not only that, but the government made it perfectly clear that they know exactly how much their policies will hurt people but want to do it anyway.

“… [T]his was recognised from the outset.  In developing the PIP assessment we were aware that the vast majority of recipients of DLA were individuals with genuine health conditions and disabilities and genuine need, and that removing or reducing that benefit may affect their daily lives.  However, we believe that these impacts can be justified as being a logical result of distributing limited resources in a different and more sustainable way…”.
(Paragraph 80)

Let’s see that again:

we were aware that the vast majority of recipients of DLA were individuals with genuine health conditions and disabilities and genuine need, and that removing or reducing that benefit may affect their daily lives.”

And again:

“genuine need”

So we have the government’s lawyers arguing that the DWP and the government ministers know full well that they are removing vital support from hundreds of thousands of people who have few other options and who will suffer as a result. And they are doing it to save money.

The judge agreed with the DWP that taking money from physically disabled people to allocate to other PIP claimants achieves “substantive equality between physically and non-physically disabled.” I argue that this has reduced the equality of physically disabled people compared to not-yet-disabled people, purely because of budget.

This is Lowest common denominator equality.

This is your government. This is what the society that we live in is prepared to accept.

The court’s findings and what’s next

The judge was persuaded by Dr Bolton’s evidence that the government could have changed their decision had they decided to listen to the overwhelming opposition to the 20m rule in the second consultation, and so it was not unfair. My legal team and I disagree. We still argue that the decision had long since been made and that the secretary of state had a closed mind by this point, and so the second consultation was not at a formative stage.

Although the judgment went against us I feel that the judge’s analysis of the first consultation is vindication for our bringing this case to court. Don’t forget that the second consultation only came about after this case was given permission to proceed and the DWP realised that they could not get away with such a shambles.

I hope that the admission by the government that they know exactly what they are doing will make people wake up to what is happening. Meanwhile, this is not the end. The legal team and I are considering our options to appeal this result.

Press Release from Public Law Solicitors

PIP Consultation Judicial Review Press Release

Read the full judgment

PIP consultation judicial review starts today

Two weeks until PIP Judicial Review – 20 metre limit in the dock

Replacement of disability living allowance headline news for hours

Why I am suing the government

PIP consultation judicial review starts today

Today a judge will consider whether the Department of Work and Pensions carried out a fair consultation when it decided that only people who could walk less than 20 metres would get the full amount of help for mobility.

Where with Disability Living Allowance (DLA) claimants had to be able to walk less than 50 metres to qualify for the higher rate, under Personal Independence Payments (PIP) the cut-off will be just 20 metres. People who fall between those two distances will receive the lower rate of £21.55 a week instead of the higher rate of £56.75. As a result they will no longer qualify to lease a car from the Motability scheme and if they currently have one it will be taken away. Other things that may be affected can include automatic entitlement to bus passes and local taxi or dial-a-ride schemes. The lower rate of £21.55 won’t stretch much beyond one taxi trip to see a doctor or hospital in many areas.

Although three people initially pursued a judicial review, two cases were put on hold and my case was continued as representative of the others. The judicial review will examine the consultation about PIP that took place in early 2012 and the second consultation that focused on just the mobility component which took place in late 2013.

The main case is that the first consultation did not address the change to 20 metres while, by the time it got to the second consultation it was too late because there was no realistic possibility of change. The rest of the scheme had already been put in place and so money had already been allocated elsewhere.

In response to the second consultation the DWP unexpectedly claimed that the budget that in the past helped people with physical disabilities to get out and mobile had been reallocated to help people with learning disabilities and mental health problems. This pitting of one impairment against another is fundamentally unfair.. Rather than address inequality by bringing everyone up to the same mobility level, they have chosen to help one group by seriously disadvantaging another. It would seem that the government has seen the word equality but has not understood what it really means. If they had told us what was in their minds when they were consulting we might have had a chance to put them right.

Equality vs Justice
Equality vs Justice

The judicial review will be heard at the Adminstrative Court in Bull Street, Birmingham starting at 13:00 today and all day tomorrow. We don’t yet know when we will hear the results. There will be a vigil outside the courts in Bull Street, Birmingham today at 13:00 which supporters may wish to attend. Please spread the word and tell your friends to look out for this story in the news.

This news report from Sky News last year includes an interview with me about the impact of the changes.

Related blog posts

PIP 20 metre rule consultation response: “We’re not listening.”

Victory! DWP to launch PIP mobility consultation

PIP Judicial Review given the go ahead

Announcement: legal action against the DWP over the #PIP consultation

Why I am suing the government

If you can only walk twenty metres you’ll get no help

Replacement of disability living allowance headline news for hours

Two weeks until PIP Judicial Review – 20 metre limit in the dock

This blog post was a little less dry but then I ran it past my lawyer.  (Don’t tell her I said that.)

Two weeks until PIP Judicial Review – 20 metre limit in the dock

It seems like forever since our attempt to get a judicial review over PIP and the fraudulent consultation. Well, that attempt has come to fruition at last. The case against the DWP will be heard in Birmingham on the 9th and 10th of July.

20m in the house of commons

This specific case is about the decision to slash support from those who can walk less than fifty metres, to only those who can walk less than twenty. The drastic reduction in the eligible distance means that some 500,000 people will be left without support even though they can walk less than 50m without some kind of assistance. This change has been made purely to cut costs, as was admitted by the DWP in their response when we forced them to re-open their consultation.

It has actually been quite difficult to bring a case against an opponent that can change the rules to suit its own agenda however the court has agreed to hear arguments surrounding the consultation and the fact that the DWP did not mention the slashing of support until after the consultation was complete.

I will provide more details here on the specific arguments we will make as soon as I can clear them with my solicitor.

Related blog posts

PIP 20 metre rule consultation response: “We’re not listening.”

Victory! DWP to launch PIP mobility consultation

PIP Judicial Review given the go ahead

Announcement: legal action against the DWP over the #PIP consultation

Why I am suing the government

If you can only walk twenty metres you’ll get no help

Replacement of disability living allowance headline news for hours

 

The complex issue of looking like a fake when I get up and walk

“Perhaps. Not yet but in the future. When I’m ready to face the complex issue of looking like a fake when I get up and walk.”

This was an answer given when I suggested to someone with chronic illness that a mobility scooter would help overcome some of the problems with walking. It’s a sad indication of the judgement by society that affects so many people who could benefit from mobility aids.

Unfortunately what other people think of us is something that keeps many people from accepting that they need help. I myself delayed using a wheelchair for a year or more after I really needed one because I was scared of looking different, scared of being accused of using it only to get sympathy or benefits. In delaying my use of it I no doubt subjected myself more pain and more time stuck in bed recovering than I would otherwise have endured, and prevented myself from doing as much as I might have done.

The problem of being thought of as a fake when standing up from a scooter or wheelchair is a particularly pervasive one. The common assumption amongst the general public is that people are “wheelchair bound” or “confined” to a wheelchair because they cannot walk. Full stop. Of course there are people who cannot walk at all but it is usually not the case. Much of the fuss around the introduction of PIP to replace DLA is that the maximum distance you can walk before help is withdrawn has been reduced from 50 metres to just 20. For those that haven’t thought that through, it should be obvious that you could therefore see someone walk 20 metres or even 50 metres who still gets help to move around. If that seems unfair, think about how you would get through your day if you could only walk 50 metres in one go. For those who are chronically sick they often could walk if they had to but are rewarded with pain, exhaustion and eventual collapse. Because of the stigma around mobility aids they often put up with this until such a time as trying to keep walking ends up confining them to bed in perpetual recovery. In fact, when they finally give in and accept their need for help, far from being “confined” to a wheelchair they are actually freed up by it to go further and to do more. As a result of not wasting energy on trying to walk most of the time they have more energy to stay out and interact with people.

My use of a wheelchair actually means that when I do need to walk I can do so relatively easily as long as I don’t overdo it. The problem is that to an ignorant observer it looks like I was faking my need for help in the first place when instead I can only get up at all because I was using the wheelchair. (Although one of my symptoms is that after prolonged sitting my muscles feel like they seize up and I end up quite wobbly when I try to stand, at least for a few minutes.)

The same judgement affects people who have a Blue Badge entitling them to use a disabled parking space. (I hate that name. Mobility parking space maybe?) The use of a car and a parking space near to their destination may well mean that they can walk the short distance from car to destination without apparent signs of struggling and so passers-by jump on them and accuse them of faking it. If they did not have the car and the parking space they would probably have visibly struggled to walk the greater distances between public transport options and their destination.

If you have read this far then you are probably already convinced but the message I would like people to take away is that you don’t see everything about a sick or disabled person. You don’t see the pain and the recovery time after they have done something without apparent struggle and you don’t see what they would be like if they did not have the use of mobility aids or help from others. Don’t judge, not least because one day it may well happen to you, and if you see someone else judging, set them straight.

Related blog posts:

Embarrassed to be me

Fear and mobility

Blue Badge Blues

Why I am suing the government

Victory! DWP to launch PIP mobility consultation

The Department of Work and Pensions have today announced that they will hold a “further consultation on the mobility component of Personal Independence Payment (PIP)”.

This follows the outcry after the threshold to be eligible for the most help with moving around was tightened from fifty metres to twenty metres with no indication during the consultation that this would be the case. Myself and two others had initiated a Judicial Review against the DWP to declare the consultation invalid and force a rethink. The Judicial Review would have taken place at the end of July.

The DWP would very much like you to believe that it is holding this new consultation because it is a kind and listening department and their announcement does not mention the court proceedings at all.

“However, the department has received significant feedback from disabled people and their organisations that they want a further opportunity to comment on the finalised assessment criteria rules around the mobility component. That is why it is now giving notice of a further consultation to be launched late June.”

However the emails sent out to my solicitor and to members of the stakeholder consultation forum had a subject line of “Re: Judicial Review” so make of that what you will.

While this new consultation is very good news it is not an admission that the twenty metre eligibility is wrong or an indication that the DWP will change their minds. We will have six weeks to make sure that the DWP has no choice but to admit that the twenty metre limit will cause serious harm to a great deal of people, withdrawing support from people that desperately need it. I will publish details of how to contribute to the consultation once they are available.

A lot of credit is due to Jane Young and We Are Spartacus for getting legal action organised to bring about this new consultation.

I will be discussing with my solicitor and other people involved what step to take next.

Press release: DWP to launch Personal Independence Payment mobility consultation

Why I am suing the government

We Are Spartacus