politics - A Latent Existence

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.

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.

…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.

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”

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.

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.

No wheelchair for you!

I wrote back in March about the death of the power wheelchair that I had been given and my quest to obtain a new one. It was old but it served its purpose in letting me go further from home and use public transport without requiring another person to push my wheelchair. Since my ability to walk is fairly limited I do need a wheelchair when I am out of the house. There are four ways that I know of to obtain a manual or powered wheelchair.

The NHS
Lease one from Motability using the mobility component of DLA
Buy one
Get a charity to buy one

It should be obvious that buying one is not really an option for most people living on sickness and disability benefits. Many people who need a high end power wheelchair do lease one from the Motability scheme however that option is not available to those who already use their DLA to lease a car through the scheme, or who do not receive DLA at all. In some circumstances a charity might be willing to foot some or all of the bill for a power wheelchair. Specialist charities for certain diseases or impairments might do this although in practice most do not have this option either. In my case there is a charity that helps people in the area that I live in who might be able to pay for part of the cost of a power wheelchair for me but since charity funds must be carefully looked after they require me to need a wheelchair but be unable to get one from the NHS before they will help. That leads me to the main option, to ask for a wheelchair from the NHS.

Soon after my power wheelchair broke an occupational therapist referred me to Worcestershire Wheelchair Services and I was told that I would get an assessment but that I would have to wait a long time. In the meantime I bought a manual wheelchair using my credit card. I have a bankruptcy in my past because of my illness so that credit is at an interest rate of 34% APR.

I knew when I was referred for a wheelchair assessment that I would not qualify for a power wheelchair because I only need a wheelchair when out of the house but that was OK because once I had an assessment I could turn to my local charity. As I understood then from other doctors and therapists I should qualify for a manual wheelchair, although probably one with small wheels that required an attendant to push it because self-propelling a wheelchair soon hurts my arms as much as walking hurts my legs. (This is why I purchased a self-propel chair, since I would like to be able to turn myself around even if I mostly have someone pushing.)

Then, today, I received this letter from Wheelchair Services. (Click to enlarge.)

The letter informed me that I would not receive any wheelchair from the NHS because in Worcestershire they are

“Currently only able to supply wheelchairs to people who meet higher level needs i.e. to those clients who have a permanent mobility problem, who are unable to walk and who require a wheelchair within their own home.”

So, because I can walk or stagger around at home, I will not receive any kind of wheelchair to help outside where I cannot walk more than a few metres or stand up for more than a few seconds - not even a manual wheelchair. They won’t even visit to assess me. There are also many people who need a power wheelchair but are unable to get one from the NHS because they, like me can walk to some extent around their own home. In a lot of these cases they would use a wheelchair inside if only they could fit one in their home, but because they cannot they too are denied any help from wheelchair services. I know of several people who are currently trying to raise funds through donations to purchase their own power wheelchair because of this.

I’m not too worried about this in my own case because I have the manual wheelchair that I bought, and I have my wife to push it much of the time, and I still hope to get help from a local charity. I am far more worried about all the other people who haven’t been so fortunate and have no chance to buy a wheelchair, no charity help, no car and no one to offer lifts. I struggle to understand the justification for the NHS in Worcestershire not giving a wheelchair to people who need one but only when outside. If applied nationally, this policy would trap tens or hundreds of thousands of people in their own homes, unable to go out to medical appointments, to buy food or to visit family and friends. I don’t know how long this policy has been in place in Worcestershire but I hope that it is the only area doing this.

Worcestershire Wheelchair Service informed me that their qualifying criteria have been this way for a number of years due to low funding. Worcestershire is not looking like a good place for a chronically sick or disabled person to live right now; Worcestershire council are planning to remove funding for care at home for a large number of people and send them to live in care homes instead. This is a huge backwards step, a removal of freedom for a lot of people and reverts to the old method of locking those with disabilities away from society. This policy on wheelchairs will ensure that more people are trapped at home and so require care from the local authority, which in turn may put them into a care home.

Are we as a country really so short of money that this is the route we want to take?

If you can tweet you can work, and other such lies

Picture the scene: I am lying in bed on my front, with my head turned to the side. My right arm is flat on the bed, a phone propped up by my hand. The only part of me moving is my thumb, pressing the on screen keyboard. Pain is tearing through my body, what I feel in my arms, my legs and my hands is agonising. I don’t have the strength to lift any part of my body from the bed. And yet, I have one, tiny connection to the world - I can send messages out through twitter, and I can receive replies, 140 characters at a time. This is my often my only interaction with anyone else at this point. Through twitter, I can talk to friends, take my mind off my pain and discuss something - anything else. When the pain is too much, I’ve got a support group of fellow sick people and we can commiserate about the pain.

Fortunately, I am not this incapacitated all of the time. No, much of the last few weeks I have been so energetic that I have been able lie back on a pile of pillows and type on a full keyboard for as much as a few minutes before the searing pain in my hands sets in. Sometimes, gasp, I can even make it to a different room in the house for a while.

And yet, according to Nadine Dorries MP, my usage of twitter means that I can work. I can’t get out of bed most of the time, but apparently I am a scrounger who is defrauding the benefit system.

Last September Dorries made a request on her blog for people to look out for people tweeting too much and report them to her. She also asked people to report anyone who tweeted a lot while on benefits to the Department of Work and Pensions. She went on to pick on someone who was waiting for surgery for arthritis on both feet for their prolific use of twitter.

It gets worse. There are now rumours that ATOS (The company paid to assess people, who have been known to declare people fit for work just before they die from their illness) will be checking twitter and other social networks for activity that indicates ability to use a computer for any length of time. Because, you know, that makes you fit for work. Now this may just be rumours, but it shows a huge problem with public and government attitude to the sick and disabled.

I want to work, I really do. I own a business that my father and I have built up over the last 17 months into something that has the potential to go somewhere. I started my business as a last resort, since both of us are disabled, to try and provide part time work for myself that could be done when I have the strength to do it, not strictly between 9am and 5pm. I have been trying to build up more web hosting and design work, and I even tried to carry on working from my bed when this relapse started nearly three months ago. Unfortunately I have reached the point where brain fog has killed my concentration, and pain and fatigue won’t let me keep going to long enough to finish any work related tasks.

I can write, but I couldn’t tell you when or how much I could write. I can tweet, but that’s because tweets are short, and (mostly) fit in between bouts of brain fog which stops me completing my thoughts. I can set up a website without leaving my bed, but who is going to hire me to do that when it might happen now or it might take me weeks because of my health? I could be brought a customers computer to remove viruses from, but then not have the strength or concentration to do it for days.

The fact is, I can’t work. I am not employable. If I had ANY chance at all of working, I would be desperately trying to save my business into which we have sunk time and money and worked so hard for the last year and a half. I have hurt myself trying to run my business and have had to give up and apply for ESA because I have no other choice. And yet, because I have a variable, invisible disease, I am highly likely to be deemed “Fit for work” by the Work Capability Assessment. I won’t have the strength to appeal against that and I won’t have a Citizens Advice Bureau to help me because they are all being shut down.

So I am going to carry on tweeting and blogging. I have precious little other contact with the world and I will lose my friends and my support group if I don’t. Someone looking at my online activity and judging me on it cannot see how long each blog post took me, or the pain that I have to endure to even communicate with others online. The portrayal by government and by media of all sick and disabled people as scroungers and cheats is disgusting and yet good people that should know better are taken in by it. If you think I should just lie here and be miserable while I wait to be denied my ESA, then screw you. You are the problem.

More on the despicable behaviour of Nadine Dorries

BMJ: Well enough to work? A report on ATOS by a GP.

Guardian: Frequent tweeting doesn’t make one a benefit cheat, Nadine Dorries

Tag: politics

Appeal of PIP Consultation Judicial Review Not Successful

PIP 20 metre rule consultation back in court

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

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Replacement of disability living allowance headline news for hours

No wheelchair for you!