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DRUK and Public Law Project bringing legal challenge on changes to Mobility Activity 1
great news .... Esther McVey announces DWP will not appeal RF ... and will implement MH -
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,
I suspect that this means that there will be some convoluted guidance issued which says that MH has been accepted but then explains to decision makers how not to implement it… Either that or a new set of Regs that tries to water down the judgement.
Hope that I am wrong.
Will new regulations have to be issued?
In my opinion that would be giving too much respect to an unauthorised amendment. It should now just be ignored by tribunals.
I suspect that this means that there will be some convoluted guidance issued which says that MH has been accepted but then explains to decision makers how not to implement it… Either that or a new set of Regs that tries to water down the judgement.
Hope that I am wrong.
I hope so too but today I’ve just seen this put forward in a DWP appeal response:
‘Overwhelming psychological distress’ means distress related to an enduring mental health condition or intellectual or cognitive impairment which results in a severe anxiety state in which the symptoms are so severe that the person is unable to function.
Is there a new part of the definition in schedule 1 I haven’t got the memo on? This isn’t found in MH either.
Will new regulations have to be issued?
In my opinion that would be giving too much respect to an unauthorised amendment. It should now just be ignored by tribunals.
I suspect that this means that there will be some convoluted guidance issued which says that MH has been accepted but then explains to decision makers how not to implement it… Either that or a new set of Regs that tries to water down the judgement.
Hope that I am wrong.
I hope so too but today I’ve just seen this put forward in a DWP appeal response:
‘Overwhelming psychological distress’ means distress related to an enduring mental health condition or intellectual or cognitive impairment which results in a severe anxiety state in which the symptoms are so severe that the person is unable to function.
Is there a new part of the definition in schedule 1 I haven’t got the memo on? This isn’t found in MH either.
It looks like the DWP is quoting sections of the PIP Assessment Guide as if it’s a statement of the law when it isn’t. The law defines “psychological distress” but has no definition for “overwhelming”. On the other hand using “overwhelming” in its normal sense would imply that the distress is extreme. Have you looked to see if there’s any case law on what it means?
great news .... Esther McVey announces DWP will not appeal RF ... and will implement MH -
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,
I suspect that this means that there will be some convoluted guidance issued which says that MH has been accepted but then explains to decision makers how not to implement it… Either that or a new set of Regs that tries to water down the judgement.
Hope that I am wrong.
hope you are wrong too, and so far, intentions set out by Esther McVey today are to implement in full (also says DWP is recruiting hundreds of staff to do so) -
‘We will implement the judgment in full, but we will work with stakeholders and charities to understand and implement what was said. When we said we did not agree with the detail, it was a reference to the language and terminology that went above and beyond a legal ruling and judgment, but we saw through that to the facts and that is why we decided not to appeal.’
sourced from today’s urgent question on PIP taken from uncorrected Hansard
‘Up to 220,000 people could be affected. That is why we are taking the process very seriously. We as a Department will reach out to those people, once we know exactly what we are doing.’
Oh…..dear…..
PS, according to Mr Duncan Smith, it’s all the fault of the last Labour government. The bounders.
McVey also says that:
“Our intention has always been to deliver the original policy intent through clarifying how symptoms of overwhelming psychological distress should be assessed”
Hmm…
Furthermore, she says:
“at the time, it was not deemed to be something for people with severe learning disabilities, who might want a constant companion. That was how the regulations were set down, after advice was sought on the best approach, because this is a tailor-made benefit. However, the judgment in the case went the other way. “
Which suggests to me that either she doesn’t have a clue what she is on about or she is speaking with a forked tongue.
McVey also says that:
“Our intention has always been to deliver the original policy intent through clarifying how symptoms of overwhelming psychological distress should be assessed”
Hmm…Furthermore, she says:
“at the time, it was not deemed to be something for people with severe learning disabilities, who might want a constant companion. That was how the regulations were set down, after advice was sought on the best approach, because this is a tailor-made benefit. However, the judgment in the case went the other way. “Which suggests to me that either she doesn’t have a clue what she is on about or she is speaking with a forked tongue.
“Firm and factual footing….”
If McVey or anyone else needs a reminder of the ‘original policy intent’ they could do no better than look at The Government’s response to the consultation on the Personal Independence Payment assessment criteria
and regulations from 2012, which is a pretty clear statement of policy intent https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/181181/pip-assessment-thresholds-and-consultation-response.pdf :
6.14
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.
Over to you Esther…
of course the SSWP still has an appeal against MH (https://www.gov.uk/administrative-appeals-tribunal-decisions/mh-v-secretary-of-state-for-work-and-pensions-pip-2016-ukut-0531-aac) that is due to be floated in June (https://casetracker.justice.gov.uk/getDetail.do?case_id=20170708).
are appeals being stayed on this until the guidance is changed?
at a recent tribunal it was mentioned thats what they would do if psychological distress was in issue but for my clients it tends not to be its more cognitive impairment so im rarely arguing the mental health issue.
It’s hard to interpret Esther McVey’s announcements as anything other than a withdrawal of the appeal against MH isn’t it?
are appeals being stayed on this until the guidance is changed?
at a recent tribunal it was mentioned thats what they would do if psychological distress was in issue but for my clients it tends not to be its more cognitive impairment so im rarely arguing the mental health issue.
Easy enough to argue against stays using Carmichael. FTT have the power to come to the same conclusion as RF and just crack on.
Loved the fact that her statement says that the judge made statements above and beyond the facts but they have managed to see through that to the facts. Anyone name a minister who’s never made a statement above and beyond the facts? No, it didn’t take me long to figure out who would be first on that list either. The lack of self-awareness is amusing if nothing else.
However, I can’t help but think that this recruitment to trawl is really going to be internal and will impact elsewhere in the same way that UC decision maker recruitment took away from ESA quality control.