DPAC Briefing on changes in the PIP regulations denying disability benefits to over 160,000 claimants
The narrative that Penny Mordaunt has put forward is misleading and does not withstand scrutiny. Since the end of 2014, the DWP has tried to restrict the application of PIP and exclude a certain category of claimants with mental health conditions.
Her statement that “Recent judgments have broadened the way the PIP criteria should be interpreted, going beyond the original intention.” is extremely similar to the attempted justification that was put forward in March 2016 to justify the controversial cuts to the points for aids and appliances.
The timeline below shows the repeated attempts by the government to limit the application of the Following a Journey descriptor to claimants with mental health issues, by the use of a more restricted interpretation of the law in their guidance, which has been definitely put to rest by the MH case. This explains why the government has now changed the law.
Situation with DLA and PIP
The changes from DLA to PIP which show that the PIP standard (lower) mobility award was always intended for claimants with mental health conditions who could not follow the route of an unfamiliar journey alone, as confirmed by the Upper Tribunal
|Lower mobility – was available to someone who needed guidance or supervision to follow an unfamiliar route. This included blindness, some mental health problems such as anxiety, autism, learning difficulty etc.||Standard (lower) mobility – 8 points needed. Due to the weighting of the descriptors, these can only be scored by someone who cannot undertake any journey due to distress, or to someone who cannot ‘follow the route of an unfamiliar journey’ alone. Some people who are unable to walk 50 metres who would have received H DLA now also qualify only for standard mobility.|
|Higher mobility – was available to people unable to walk physically, and some serious cases where people could not go out alone e.g. unsafe behaviour, people who were blind and deaf, and from 2011, people who were blind.||Higher mobility – 12 points needed. These are scored from being unable to ‘follow the route of a familiar journey’ alone or being unable to walk 20 metres.|
The Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations, 13 December 2012
The December 2012 consultation on the PIP descriptors made it clear that the ‘following’ descriptors applied to a person who needed someone with them for reasons other than not being able to navigate. There was nothing to suggest that the lower mobility component was being removed from people with mental health problems: if there had been, there certainly would have been significant pushback at the time.
For example, from the 2012 Consultation (but see also points 6.6, 6.10, 6.13): Concern was raised that the activity takes insufficient account of the impact of mental health conditions on mobility. We do not consider this the case. Individuals could potentially score in a number of descriptors in the activity if they cannot go outside to commence journeys because of their condition or need prompting or another person to accompany them to make a journey.
The government tightened the PIP guidance in order to restrict eligibility
In its guidance released in October 2014, the DWP starting asserting its new position that the ‘following’ descriptors were not what they had assured people in that consultation and that the standard rate of mobility was effectively only available to mental health claimants if unable to go out at all. This meant that claimants with mental health conditions were scoring 0 point for the ‘following an unfamiliar route’ descriptor, but these decisions, if appealed, were very often overturned.
There were two years of inconsistent tribunal decisions until the MH case, in front of a three-judge Upper Tribunal clarified the position. They held that, essentially, the ‘following an unfamiliar route’ descriptor applied in similar situations to the DLA Lower Rate, which had been understood by everybody to be the case until 2014. Interestingly however, the Upper Tribunal also held that the ‘familiar route’ descriptor did not apply to people unless they could not navigate. This was something of a compromise between the previously understood position and the DWP’s attempt to limit the application
Judicial review of the mobility criteria, October 2015
The physical (walking) aspects of the PIP mobility criteria were challenged in Sumpter. The case was about the selection of 20 metres as the threshold for the higher rate mobility component.
As part of the decision, the High Court and Court of Appeal both reasoned that it was inevitable that the criteria for the walking aspect would be made less generous. This was because part of the reason for the changes in PIP was to ‘re-allocate resources from those with physical impairments to those with non-physical impairments’. This argument had been put by the DWP’s counsel.
This cannot have meant to blind claimants, as by 2011 they were already entitled to the higher rate of DLA mobility, as were claimants with severe behavioural difficulties.
This definitively shows that the original intention of the DWP was not to remove PIP mobility from people with anxiety and similar conditions.
2016 planned cuts
To get its £30 per week ESA cut through, it appears the government had to drop its PIP cuts in 2016 and guarantee there would not be more. After losing the MH case for their favoured, but disingenuous, interpretation of the mobility criteria they started trying to use in 2014, they could not easily just announce it would be dealt with in a new cut directly.
This is why Ms Mordaunt is keen to give the impression that she wants to ‘restore’ the original intention, when it would be better to say she is trying to restore the DWP’s plans to limit PIP mobility extra-legally that were devised in 2014 without consultation or a proper process. As the Upper Tribunal did not allow this, they now need to pass law, but cannot afford scrutiny. They are pretending that it is the Upper Tribunal who broadened the criteria, when it was actually the DWP who tried unsuccessfully to limit them.
Bypassing the Advisory Committee
Ms Mordaunt has invoked an exemption so as to bypass the Social Security Advisory Committee, but this exemption can only be used if the matter be believed urgent, which is not the case. They have known since 2014 that they wanted to limit these descriptors beyond what had, in effect, been agreed in the consultations and enactment process.
Are the changes in regulations legal?
The power for the Secretary of State to produce PIP regulations can only come from primary legislations such as the Welfare Reform Act 2012 and they must be compatible with what the Act states. This power is delegated by Parliament.
The Act does not suggest that mental health conditions and physical conditions should be treated differently or that a physical condition is inherently more limiting than a mental health condition in respect of mobility. In addition, any regulations produced must be consistent with both the letter and intent of primary legislation.
What the Upper Tribunals have done is to determine what Parliament original intent in relation to PIP was and their decisions are binding.
As determined by the case Secretary of State for the Home Department v Pakina  EWCA Civ 719  WLR 1526 at  in the judgment by Sedly L.J, the executive “is constitutionally forbidden to make law except with the express authority of Parliament”. Nevertheless, it is what the Secretary of State has just done with the PIP regulations by changing what the courts have lawfully decided was the intent of Parliament, and in doing so, he is acting outside of his delegated powers.
Only Parliament can make the proposed changes lawfully and the new regulations should be withdrawn.
Even Iain Duncan Smith recognised this as a result of the now famous Poundland case brought by Caitlin Reilly and Daniel Hewstone. He tried to get an emergency bill (Jobseekers (Back to Work Schemes) Act 2013) rushed through Parliament that would retrospectively change the law.
Briefing prepared with the assistance of Tom Evans @TomEvans80 and John Slater @AmateurFOI
Who we are:
DPAC is a grass roots campaign body. It was formed by a group of disabled people after the first mass protest against the austerity cuts and their impact on disabled people held on the 3rd October in Birmingham 2010, England. It was led by disabled people under the name of The Disabled Peoples’ Protest. DPAC has over 12,000 members and supporters and works with many anti-cuts groups, Universities, Disabled Peoples’ Organizations, and Unions
 CPIP/1347/2015, also cited as MH v Secretary of State
 Social Security Contributions and Benefits Act 1992 s. 73
 As above
 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/181181/pip-assessment-thresholds-and-consultation-response.pdf, particularly 6.6, 6.10, 6.13, and 6.14
 CPIP/1347/2015, also cited as MH v Secretary of State
  EWCA Civ 1033 http://www.bailii.org/ew/cases/EWCA/Civ/2015/1033.html
 Para 62 of above
 Section 173(1)(a) Social Security Administration Act 1992