GMLC volunteer Thomas Wood looks at the origins of PIP, the 2017 amendment that excluded claimants impaired by psychological distress, and the recent legal challenge that found this guidance ‘blatantly discriminatory’.
Personal Independence Payment (PIP) is a benefit that helps with the extra costs of a long-term health condition or disability.
An expansion of eligibility for Personal Independence Payments to include those suffering from psychological distress
In December 2010, as the coalition government launched a consultation on the reform of Disability Living Allowance, it set out its intentions in a ministerial foreward –
“This is our opportunity to improve the support for disabled people and better enable them to lead full, active and independent lives.”[2]
The outcome of this, Personal Independent Payments (PIP), was outlined in the Welfare Reform Act 2012. Eligibility would be evaluated based on a points system scored across two sets of components, ‘daily living’ and ‘mobility’[3], within which claimants were tested for ability against a list of descriptive criteria and could qualify for either a basic or high rate.
Six years later, in 2016, the case of MH v Secretary of State for Work and Pensions [2016] UKUT 531 (AAC)[4] found that, within the mobility category, inability to follow a route due to psychological distress, even if claimants had the intellectual capacity to navigate a journey, would qualify a candidate for PIP.
Due to this ruling, up to 220,000 [5] claimants who suffered from psychological distress while following the route of a familiar journey were likely to qualify for PIP or receive higher payments.
An amendment by the government to reverse this expansion
In March 2017, the government amended the legislation to counter this change in the law, pushing through a redraft of the bill that replaced “cannot” with “For reasons other than psychological distress, cannot’[6]. It was stated that this amendment would bring the legislation ‘in line with its original intention’. The effect of this amendment was to exclude claimants impaired by psychological distress from qualifying under the enhanced rate of entitlement.
‘That people who cannot follow a journey because of a visual or cognitive impairment are likely to need more support (in their lives generally) than someone who experiences psychological distress, for example as a result of a social phobia or anxiety, when they undertake a journey’.[7]
Further, although social welfare legislation is usually scrutinized by an independent committee, this amendment was not:
“The urgency caused by these challenges, and the implications on public expenditure, […] proposals for these amendments have not been referred to the Social Security Advisory Committee before making the regulations.”[8][9]
The amendment is found to be discriminatory
R. (on the application of RF) v Secretary of State for Work and Pensions [2017] [1]
In December 2017, this amendment was contested by an anonymous claimant, the charity MIND, and The Equality and Human Rights Commission[10]. The judge, Mr Justice Mostyn, deemed it discriminatory: violating Article 14 of the EHCR, outside the scope of the Welfare Reform Act 2012, and unlawfully rushed through without consultation.
In January 2018, the government decided not to appeal this decision and announced a review of 1.6m PIP claims, dating from 2016, the original date from which psychological distress was determined to qualify under the Mobility component.
The process is estimated to cost around £3.7bn[11]. It will take several years to complete.
The original expansion of PIP eligibility meant that an estimated 160 to 220 thousand claimants that suffered from psychological distress within the mobility component were likely to either qualify or see higher allowances[12][13]. If the entirety of these claimants were successful and new cases were funded at the enhanced rate for the entire two years, the cost of funding would have come to just under £1bn.[14]
In comparison, £3.7bn has now been allocated to review and fund the 1.6 million claims arising since 2016.
This therefore suggests that, had the claimants suffering from psychological distress within the mobility component been awarded the higher allowances in the first instance, it would have cost £2.7bn less than it will cost now.
Despite dropping the appeal in January, new secondary guidance – with minimal changes[15] – has now been published. These changes have taken five months, during which time welfare assessors have presumably been applying the previous ‘blatantly discriminatory[16]’ guidance.
Access to justice
The common law legal system is designed to advance legislation in line with changes in societal opinion, such as changing attitudes to mental illness and disability. That the government would then amend this legislation, bypassing an independent committee designed to inform and protect both government and public, is difficult to justify as anything other than discriminatory cost cutting.
‘Because of the large number of cases that DWP will need to review, it may take some time for you to get this letter.’[17]
Article edited for brevity. Thomas Wood is a GMLC volunteer.
[1] https://www.supremecourt.uk/cases/uksc-2015-0215.html
[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/181633/dla-reform-consultation.pdf
[3] The social security (Personal Independence Payment) Regulations 2013 – Schedule 1
[4] MH v Secretary of State for Work and Pensions [2016] UKUT 531 (AAC)
[5] https://www.independent.co.uk/news/uk/home-news/government-review-16m-disability-benefit-claims-personal-independence-payment-pip-high-court-ruling-a8184381.html
[6] (s80(1)(c,d,e)).
[7] Letter from the Minister for Disabled People, Health and Work to SSAC. 24 February 2017
[8] https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-02-23/HCWS495/
[9] The public reasoning was to “avoid inconsistencies in how PIP claims are assessed”.
[10] http://www.bailii.org/ew/cases/EWHC/Admin/2017/3375.html
[11] https://www.bbc.co.uk/news/uk-42862904
[12] https://fullfact.org/economy/amendments-pip-legislation/
[14] 160k claimants x 2 years x 52 weeks x ~£60 (enhanced mobility rate). This does not account for existing claimants moving from the standard to enhanced rate.
[15] Great resource by benefitsandwork that shows the changes in guidance that took five months to implement http://www.benefitsandwork.co.uk/images/image/samples/plan_follow_journey.pdf
[16] https://www.gardencourtchambers.co.uk/socialwelfare/blatantly-discriminatory-amendments-to-pip-criteria-ruled-unlawful-by-the-high-court/
[17] https://www.gov.uk/government/publications/personal-independence-payment-changes/safety-and-supervision-changes-to-pip-law-from-9-march-2017
