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”

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”

“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

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

 

Move from DLA to PIP delayed as government struggles to assess everyone

Personal Independence Payments were introduced for new claimants in April this year however people currently receiving Disability Living Allowance were due to start being moved to PIP from next week as either their current award ended or they reported a change to their circumstances or needs.

Now though, the government has decided to delay this move for most people. Only people living in Wales, the East and West Midlands and East Anglia will start to be assessed for PIP. New claimants will still claim for PIP and not DLA.

Although it may be unrelated, the areas that will go ahead with assessment for existing DLA claimants are those where face to face assessments will be carried out by Capita, while Atos have the contract in most other areas. It seems likely that Atos are struggling to assess everyone that has been sent to them. Even where people have been assessed already there are delays though; one new applicant has told me that he has been waiting five months since applying and three months since being seen by Atos.

While a delay is exactly what campaigners called for more than a year ago, doing so at this stage betrays the chaos behind the rollout and it leaves many people hanging with no idea what will happen when their DLA award runs out or their needs change in the next few months. The government claims that people will continue to get DLA, but whether in practice people will continue to be paid or not remains to be seen. Those affected can have no confidence in their income, which will affect services and contracts that DLA pays for and may prevent people from securing cars or wheelchairs to enable their mobility.

For once the BBC has been paying attention and here are some media clips that explain more about what is happening.

Dame Anne Begg on Radio 4 Today Programme – 26/10/2013

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Sue Marsh on Radio 4 PM – 26/10/2013

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Sue Marsh on BBC News – 26/10/2013

Jane Young on BBC News – 26/10/2013

BBC News – Disability welfare changes delayed by assessment process

The Guardian – Controversial disability benefit changes delayed

Being accused of DLA fraud may force you to apply for PIP

The Benefits and Work website claims that people will lose their Disability Living Allowance permanently if someone accuses them of fraud. There is some truth behind this claim but the headline is a wild speculation from the information that they actually have.

The facts behind the story are this:

People who currently receive DLA will all be “invited” to apply for Personal Independence Payments over the next few years. A large number of people who receive DLA are not expected to qualify for the same level of support from PIP and so this move is rightly feared by many. People can apply for PIP before their DLA runs out if they wish – these are “self selectors” in DWP speak. Anyone whose care or mobility needs change will have to apply for PIP rather than alter their DLA claim. As long as nothing changes, most people can remain on DLA until 2015 or the end of their award.

The scary part of this story comes from a quote that Benefits and Work found on Rightsnet.

“At our local JC+/customer/representative forum meeting last week a DWP partner support manager brought the following change of wording to the attention of the meeting (second bullet point on page one of link)

In his words anyone who was ‘bubbled’ (shopped) would be taken as if they were a ‘self selector’ in the DLA/PIP reassessments.

Nothing appears to have been changed in the PIP trans regs to allow this but it is worrying when the PIP/DWP ‘thinking’ changes the words ‘those claimants where we receive information…’ from the actual legislation.”

The source claims that anyone who is reported to the DWP for fraud will be treated as if they have reported a change and therefore have to apply for PIP.

This is a fairly tenuous link, but a worrying one all the same. The overwhelming majority of reports to the benefit fraud hotline are either malicious or wrong and the fraud rate for DLA is incredibly low. If all that is required to trigger the move to PIP is a false report then a lot of people are going to be badly affected. However, we do not know whether this second-hand claim is true, or whether the practice will be widespread or just confined to one or two areas, and we do not know if a person will have to be found guilty of benefit fraud or just reported – the wording could mean either. Given the history of the DWP’s approach to sanctions I wouldn’t say it is out of the question for this to happen against the rules, but we will have to wait and see about that.

I find the way that Benefits and Work have reported this to be irresponsible and misleading. In their email they stated that “The DWP have ruled that…” when there is no such ruling, only a second-hand report. They also missed out the third sentence from their quote, which stated that nothing has changed in the PIP regulations.

I do not think anyone should worry about being moved because of a malicious fraud report, at least until we have more evidence.

Benefits and Work: Claimants to lose DLA permanently if falsely accused of fraud, DWP decides

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

 

PIP Judicial Review given the go ahead

The court gave the go ahead on Friday the 3rd of May for the legal challenge against PIP to proceed to a full judicial review.

justice - lawyersitesThis decision represents a big step in the process as it means that a judge has heard from both my own lawyers and the Department of Work and Pensions and has decided that the case has enough merit to proceed to a full hearing in July.

Although the case was initially brought by three people through two different solicitors (Two people in conjunction with We Are Spartacus and one separately) the DWP have convinced the court to put two of the cases on hold and to proceed with only one case. Our lawyers have agreed that my case is the best one to proceed to a full judicial review. Solicitors for the other two cases will be watching my case and will request to rejoin the proceedings should they have something different to add.

We Are Spartacus: High Court gives green light to PIP legal challenge

A Latent Existence: Why I am suing the government

Tumblr: Why I am suing the government (Quick version)

Why I am suing the government

I receive Disability Living Allowance. DLA provides help for people who are disabled to live a normal life on a more equal footing. DLA provides two components, care and mobility, that pay for carers, cars, wheelchairs, but also taxi fares, pre-prepared food, adaptations for the home, and many more things. I asked people on Twitter what they use their DLA for and you can read their answers on Storify.

The Welfare Reform Act replaces DLA with Personal Independence Payments. Under PIP eligibility for the highest rate of help with mobility has been drastically reduced, from 50 metres to 20 metres and I fall right in the middle of those two. If I do not qualify for the enhanced rate of mobility then the biggest change is that I will no longer be eligible to lease a car from the Motability scheme. That means that I will have to rely on my wheelchair and public transport for every trip to the shops, to the doctor, to the hospital, and that means that every trip will turn into an far longer ordeal of exhaustion and pain that will leave me stuck in bed for hours or days afterwards. It means that I will only go out for the essential trips and will stay isolated the rest of the time and that will affect both my physical and my mental health. DLA is paid to disabled people regardless of whether they work or not, and in fact it enables a lot of people to get to work. If I were ever to return to work then it would be the help from DLA that got me there. Without it, I don’t stand a chance.

I am one of three people, likely to be badly affected by the change, that is taking the government to court and asking for a judicial review to declare the consultation invalid.

Jane Young of wearespartacus.co.uk did a huge amount of work to start the legal action, finding lawyers to take the case pro bono, finding people willing to put themselves in the firing line and put their name to the case. A call for volunteers was made through blogs and social media (Social media being a lifeline for isolated sick and disabled people) and lawyers picked those with the best case from about 50 volunteers. Although I volunteered early on I was not initially involved until one of the other people withdrew for personal reasons. This meant that I was brought in to the process at a late stage and had to rush through the paperwork. Even with a solicitor doing most of the work I had to work with her over the phone to produce my statement and I had to read and sign an awful lot of pages, each of which had to be emailed, printed, signed, scanned and both posted and emailed back because of time constraints. All very draining stuff for a sick person.

Some have criticised us because the legal case focuses on one part of PIP and didn’t cover mental health, among other things. Believe me, if I could have taken the government to task over all the other aspects of PIP I would have done. (Not least because I have mental health problems myself.) As it happens I was in the right place at the right time to take on this particular aspect and so that is what I have done. Unfortunately it isn’t possible to just go to court and tell them that PIP is rubbish, we had to specify exactly how the law was broken and attacking just this one aspect has been a lot of work for the people involved.

If we are successful in the judicial review then the consultation will have to start all over again with the 20 metre limit rather than the 50 metres mentioned in the first consultation. However, given the arrogance of the government I see no reason why they would pay attention to a new consultation any more than they paid attention to the one that they already did. I see this judicial review as a tool to give time to shine a spotlight on the injustice of PIP and bring attention to the arrogance of the government rather than the ultimate goal in itself. I think it will be public pressure that will change this policy, and the judicial review could be instrumental in bringing that about. I believe the best result would be if the government dropped PIP and kept DLA.

My solicitor, Karen Ashton from Public Law Solicitors explained the legal case to BBC West Midlands:

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For the official press release and contact details for enquiries please see my announcement about the case.

UPDATE: The case was heard on the 9th and 10th of July.