DRUK and Public Law Project bringing legal challenge on changes to Mobility Activity 1

Remember this was the £3.7 billion cut that inspired a top adviser to Theresa May to say on 27 February 2017 that disability benefits should go to ‘really disabled people’, not those ‘taking pills at home, who suffer from anxiety’.

That was George Freeman, Conservative MP in mid-Norfolk and then head of the Number 10 Downing Street policy unit. The story was widely reported, for example in the Telegraph and the Independent -
http://www.telegraph.co.uk/news/2017/02/27/heidi-allen-becomes-first-tory-mp-join-revolt-cuts-disability/
http://www.independent.co.uk/news/uk/politics

I am trying to summarise the current position. Is it as follows? The crux is whether someone can get PIP mob comp for being unable to following a journey due to “overwhelming psychological distress”. The “overwhelming psychological distress” rule change of 16/03/17 was quashed by the High Court on 21/12/17 in RF v SSWP. But the DWP appeal means that the quashing does not take effect yet.

My sense is that anyone who is thinking of claiming PIP or renewing PIP on this ground should do so but expect a decision to be stayed until the outcome of one of two appeals.

One is the appeal RF. As reported at https://www.disabilityrightsuk.org/news/2017/november/legal-challenge-way-those-psychological-distress-are-treated-pip-rules the rule change of 16/03/17 will not be quashed until the Court of Appeal decides whether the appeal in RF should proceed. RF is expecting a decision on this in early 2018.

On the other hand it all depends on the appeal in MH which was the original 28/11/16 three-judge panel decision to allow PIP for “overwhelming psychological distress”. This appeal is likely to be in June 2018 - as Daphne says above and as reported at https://pipinfo.net/activities/planning-and-following-journeys

To summarise, then, all appeals on “overwhelming psychological distress” are stayed till the RF or MH appeals are over. (I’m not sure which.) All claims or renewals where “overwhelming psychological distress” is an issue should be made anyway in case the appeals turn out to be in favour of claimants with “overwhelming psychological distress”. Is that right?

I had an appeal going back to 2016 on mobility 1F last week which was allowed with 1F awarded until 2020. The DJ explained that as things stand they are following RF. The PO agreed that was the DWP understanding of the current position.

The DJ also confirmed that the appeal in MH is expected to be heard in June.

I’m expecting an SOR request in due course.

Billy Durrant - 09 January 2018 01:10 PM

I had an appeal going back to 2016 on mobility 1F last week which was allowed with 1F awarded until 2020. The DJ explained that as things stand they are following RF. The PO agreed that was the DWP understanding of the current position.

I’m confused - does this confirm or contradict the outline given by Robbie Spence earlier in the thread? I think I’m just not following all the terms people are using. If a decision on a particular case is “stayed”, what does that mean? When Billy said “things stand as they are” does that mean the regulations are not yet quashed and decisions are still being made based on the March 2017 basis?

I have a client who was awarded 0 points at her PIP assessment in October. She has just submitted a MR request, and should (in my view) be eligible for enhanced mobility under descriptor 1d, but only if her psychological distress can be taken into account. If her case goes to tribunal before the appeals are decided, what regulations will they use to make a decision, or will they delay the tribunal until after both appeals have been heard?

I think what happened with Billy contradicts what we expected.

When an appeal is ‘stayed’ it means it doesn’t go ahead but is put on hold waiting for the decision in the lead case - in this case either RF (the one quashing the March changes to the regulations) or MH (the one that led to the March changes being made because the DWP thought it was too favourable).

Given that there hasn’t been a decision yet on whether the DWP can appeal RF, and also the appeal is still outstanding in MH (due June 2018) Robbie was suggesting that any appeals that were dependant on the outcomes of those decisions would be ‘stayed’ or put on hold. However, that clearly hasn’t happened in Billy’s case - and I think Billy is saying they made the decision on the basis that RF was followed ie as if the changes were quashed.

So it’s not very clear where we are! That’s my understanding if it’s any help though.

Thank you. I guess it will become clearer over the next few weeks.

I’m expecting the DWP not to change their decision, so my client will probably put in an appeal. If they do stay it, will they write to tell her that, or just not send her an appeal date?

Matt from PLP is coming to talk to GMWRAG this Friday on exactly these concerns. See https://gmwrag.wordpress.com/2018/01/12/agenda-for-the-forthcoming-gmwrag-meeting-in-salford/

So, if any of you are in the Salford area…

I’ve attached the current HMCTS guidance in Scotland.

Thanks

Allan

Mike Hughes - 16 January 2018 10:23 AM

Matt from PLP is coming to talk to GMWRAG this Friday on exactly these concerns. See https://gmwrag.wordpress.com/2018/01/12/agenda-for-the-forthcoming-gmwrag-meeting-in-salford/

So, if any of you are in the Salford area…

here’s the live feed to Matt’s presentation
https://twitter.com/GMWRAGtweets/status/954360640428232704

great news .... Esther McVey announces DWP will not appeal RF ... and will implement MH -

On 21st December 2017 the High Court published its judgment in the judicial review challenge against regulation 2(4) of the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 S.I. 2017/194. The Regulations reversed the effect of the Upper Tribunal judgment in MH.

I wish to inform the House that, after careful consideration, I have decided not to appeal the High Court judgment. My Department will now take all steps necessary to implement the judgment in MH in the best interests of our claimants, working closely with disabled people and key stakeholders over the coming months.

Although I and my Department accept the High Court’s judgment, we do not agree with some of the detail contained therein. Our intention has always been to deliver the policy intent of the original regulations, as approved by Parliament, and to provide the best support to claimants with mental health conditions.

The Department for Work and Pensions will now undertake an exercise to go through all affected cases in receipt of PIP and all decisions made following the judgment in MH to identify anyone who may be entitled to more as a result of the judgment. We will then write to those individuals affected, and all payments will be backdated to the effective date in each individual claim.

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-01-19/HCWS414

Presumably this means another amendment to the PIPS Regs to put things back to how they were pre-March 2017.

I could easily be accused of being cynical but has anyone any idea how the re-examination of cases post -MH might be done, are they going do this by a review of extant papers or send another PIPS 2 or renewal form- if they do the latter it might this lead to revisions under Reg. 11?

I can’t believe the government are trying to claim credit for helping people with mental health issues when they moved the goalposts to begin with. They have no moral or social conscience whatsoever.

“I hope that by making this statement it is clear that the Government is committed to improving the lives of people with mental health conditions.”

stuart - 19 January 2018 02:48 PM

Mike Hughes - 16 January 2018 10:23 AM

Matt from PLP is coming to talk to GMWRAG this Friday on exactly these concerns. See https://gmwrag.wordpress.com/2018/01/12/agenda-for-the-forthcoming-gmwrag-meeting-in-salford/

So, if any of you are in the Salford area…

here’s the live feed to Matt’s presentation
https://twitter.com/GMWRAGtweets/status/954360640428232704

Thanks Stuart. All the tech. appeared to work and it was very interesting. Will be available to view for 24 hours at most or until I transcribe key bits. Whichever is the soonest.

So what actually happens now - decision makers and tribunals follow MH - what about hearings last week - client 4 points for following journey?
Will new regulations have to be issued?  What is the wording of the descriptors now (or for training course next week)
Any sign of any new guidance?

We’re in exactly the same position as post-MH. The law is the original Regs plus the 2017 amendments on activity 3 only.

If a Tribunal last week did not follow MH/RF, then it is in error of law (of course, perhaps your client only scored 4 points because they only qualify for 4 points)