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by Tombenefits

news and thoughts from the world of welfare rights
23 March 2018 at 17:54

PIP Mobility and discrimination

A look at how the Government was judged to have discriminated against PIP claimants affected by psychological stress and the plans to get back on the right side of the law

Recent news reports - such as the one here - have highlighted than an estimated 220,000 claimants of Personal Independence Payment (PIP) may have been unlawfully discriminated by the March 2017 changes to PIP Mobility criteria.

Amongst those may be many affected by cancer, where the emotional and psychological impacts of cancer and its treatment can be an important - or the main - part of someone's  difficulties getting around

In a then "hot off the press" Conversation post - available here - I reported the news of the Government’s announcements of their response to the High Court judgement that quashed the changes made to the criteria for PIP Mobility in March 2017 . I also promised to explain what it all means in a little more detail in a forthcoming Benefits Blog. So - gulp -  here goes :-)

 

1. The two kinds of Mobility help

Broadly, both Personal Independence Payment (PIP) and Disability Living Allowance (DLA) - which though largely replaced bt PIP for 16 to 64 year olds remains for many outside that age range - have two parts to them. DLA Care and PIP Daily Living  component for help you could do with with day to day activities And DLA/PIP Mobility for help getting around outdoors .

Within the Mobility component, there are two main areas of difficulty: .

   a) - perhaps more obvious relates mainly to difficulties just physically walking when amputation, paralysis, pain. breathlessness or discomfort could either prevent walking or severely resortct the walking you can do . For example, the breathlessss of some lung cancers or considerable pain or general fatigue . This could lead to help with the old Mobility Allowance and later DLA Higher Mobility, which some recipients choose to convert into Motability cars

  - b) the other sort of help was was only recognised later, when in 1992, when DLA bought in a new Lower Rate for those who might not be too limited physically, but who could do with someone with them for guidance or monitoring when getting from A to B in an an unfamiliar places. And difficulties in motivation, anxiety and concentration can hit people affected by cancer, even if physical restriction arent necessarily severe enough for the higher rate.

While it was great that DLA introduced some help across a wider range of difficulties getting around, which could in some cases be just as restrictive as physical limitations, the DLA set up had the disadvantage that :

  - those with physical disabilities not quite severe enough for the tough higher rate could not be considered for a lower rate; and.

  - similarly those with more profound other restrictions couldn’t generally access the higher rate; and

  - there was  no scope for those with some problems in both areas to add them together.

At first sight, PIP seemed to offer an improvement: The two different concepts carry over into PIP Mobility , but there was more of a gradation in each one, according to the severity of the impact and an ability to add points from each one. So it looked potentially more flexible and generous. But while rationally and equality was part of PIP’s purpose, so were a big chunk of Budget savings :-)

2. The search for cuts to disability benefits

PIP as a new benefit was born of a pre-existing budgetary requirement to  cut the overall DLA budget by 20% . But with the focus being only on “working” age claimants aged 16 to 64 - the cuts were going to be more like 30% for that group.

The cuts are less about reducing the budget from where it was when PIP started in 2013 - or 2016 in N. Ireland - but more as to what the DLA budget was likely to grow to by 2020 if no action was taken.

So when a new benefit was announced - whatever its merits may be - it was greeted with the suspicion that it was primarily about way to make cuts. Advisors then fell like geeky wolves upon the fold of PIP impact statements :-) ,  to get a sense of who amongst our best beloved clients might be at risk. 

And the numbers showed that a big target area for savings was via the new more flexible and potentially improved flexible PIP Mobility. This was going to be achieved in two ways:

  a) - the most obvious - that sparked immediate controversy - was the move from a range of around 50 yards before severe discomfort set in  down to 20 yards. Medically, there is no distinction between such short distances - both would be severely compromised walkers. But by finding a way to create one, some 600,000 people are due to come off a higher rate, mostly switch to a lower one. That does remove the Motability option for them, so about a third of the car fleet will go.

   b) all other things being equal that would have meant an equivalent increase in numbers on the lower rate, apart from a much smaller number going in the other direction. But in fact the estimates remained the same if not a little lower. So that meant a similar number would have to fall off the bottom - into no PIP Mobility whatsoever - to make way for those coming down How was that going to happen?

 

3. Cause shouldn’t matter; it’s the effects that count

A central tenet of all three “disability benefits” - DLA, PIP and Attendance Allowance (for those who first claim after the age of 65) - is that the cause and diagnosis is not the issue. Of course medical information can be important background information eg are the stated difficulties consistent with that sort of condition or diagnosis?

However,  the key thing is how the combined effects of all ailments big or small impact on your ability to manage the different activities considered by each benefit. That was a well established precedent and nothing in the consultations and regulations suggested PIP was to be any different.

So a cancer diagnosis is taken seriously and depending on its nature, staging and grading and the proposed treatments - may well suggested different levels of rough time ahead. But your assessment is based on the day to day impacts on how you might - in the case of PIP - manage the 10 Daily Living activities and the two Mobility activities, reliably.

As with other other potentially life threatening conditions, more advanced cancers can with medical certification of a progressive and potentially life limiting condition does bypass the test, but the majority of claimants do have to through the full assessment where PIP points make prizes.

 

4. The curious case of mental health

Despite this central principle, DWP have long been anxious at the growth in claims and awards - from people with mental health issues. It could just be that with support and understanding a group that was previously reluctant to claim was coming forward. And they were treated no differently in principle as they faced the same tests as everyone else.

A first special measure came with DLA adding a clause suggesting that the DLA Mobility was only available to those with a severe mental health condition. Well what did that mean ? Over time it was seen as meaning no more than that people’s mental health were sufficiently severe to mean they needed someone to offer “guidance or monitoring in unfamiliar surroundings”

It is wrong to write off anxiety and depression as often being somehow milder conditions than more florid and psychotic labels. And all the clinical labels tend to be only a collection of symptoms and effects anyway.

While we all get stressed and anxious at times and can all be down in the dumps at times. But that is all rather different from living with that day in day out with no immediate trigger /reason for it.

Even the clinically milder forms of depression and anxiety can still make day to day life very hard to manage, sometimes more so than some of the more dramatic sounding conditions. It can all depend so much on the individual

The only fair and non-discriminatory test is to stick with the a common one for all conditions, regardless of underlying medical cause: What restrictions does it place you to manage activities reliably at your worst point on a typical day? What difference could help from someone else make?

Along came PIP and the worry was clearly still there as that alongside the familiar test now spread over gradings of severity came an entirely new one. The familiar ones included:

1a No problems planing and following a journey      0 points

1c Cannot plan the route of a journey                     8 points

1d Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid      8 points

1f Cannot follow the route of a familiar journey without another person, assistance dog or orientation aid    12 points

So the closest to the old DLA Lower Mobility test scored 8 points to allow a standard rate award and a new test of difficulties even in familiar places scored 12 points to allow some to get the top rate for the first time. 

But then came a a couple of new ones clearly aimed at those with mental health issues:

1b Needs prompting to undertake to avoid overwhelming mental distress to self                                        4 points

1e Cannot undertake any journey because it would cause overwhelming distress                                      10 points

These new kids on the block sounded impressive, but why were they needed ? Did they address a need that the general mainstream descriptors couldn’t cope with ?

Then you look at the point scores and the penny drops.The wording certainly points to a genuine and real difficulty and could be helpful if there were gaps in provision in the mainstram descriptors. But:

   - the lower psychological distress one gives 4 points leading to no award, while the lower of the mainstream ones offer 8 points.

   - and the more serious mental health one offers 10 points but that only gives the lower rate and not the higher that its mainstream equivalent offers

And that at least offers the suspicion that not satisfied with the savings from  downgrading a large number of physical awards, the Government were set on picking out mental health awards for special attentoion : to be recognised for sure but only awarded 4 points instead of 8 or 10 points instead of 12.

 

5. But can people experiencing psychologycal distress access the mainstream descriptors?

Those with advisors or of a more confident persuasion might contest the loss of Mobility: “Thanks for the 4 points, but we respectfully suggest my client also has difficulties either planning a journey or following one”.

"You can’t do that" replies PIP " As psychological distress is already covered in !b and 1e”

Binding decisions from Upper Tribunals went both ways:

  - one view was that because of the existence of the other new descriptors, following and planning a journey had to take a narrow view,  focussing only on the cognitive task of planning or navigating a route. So distress caused by getting lost or big crowds, unecpected events couldn’t count.

  - another wider view held that any psychological distress could come into it if it impacted on planning or following a journey

A panel of three Upper Tribunal judges was called to make a final ruling, in a case known as MH for short (technically its MH v SSWP  ref: [2016] UKUT 0531 (AAC) - and you can find the full ruling here

The upshot was somewhere in between:

   - Yes, overwhelming distress at the thought of going out was covered separately, but it could come into planning and following a journey too, if it got in the way of navigating.

  - a consequential need to ask for directions if you got lost was too far removed from the core activity , but problems getting directly in the way of navigating, such as the concentration falling apart a little in the face of large crows, could well count. 

  - there is then a distinction between a general anxiety distress ( for 1b or 1e) and an impact on being able to reliably navigate (for 1c,d and f)

So people were not be excluded from the general descriptors simply because of the background cause of their activity, just that care had to be taken to make sure anything under the mainstream descriptors did relate to to planning or navigating

The Government was worried that this wider ruling wasn’t going to deliver some £900 million a year in savings. So they decided to make their intentions much clearer by rushing through amendments to add a specific phrase - “for reasons other than psychological distress “ - into 1c, d and f.

This was not a cut to PIP - as they had promised not to do that again - but merely a clarification of policy intentions. The perhaps more covert discrimination against psychological causes was not very clear.

 

6. Is that discrimination lawful?

The short answer is No! Thus ruled the High Court this Yule just past. The full judgement in [2017] EWHC 3375 (Admin) is available here. And you can see some news coverage here: 

The court was asked to rule the discrimination was unlawful, because it was argued: 

   - the discrimination was a breach of Article 14 of the European Convention on Human Rights

  - it was well outside - or “ultra vires” - of the powers to regulate PIP given in the Welfare Reform Act 2012

  - and the unseemly haste meant they had not bothered with the legal requirement to consult on changes.

And essentially Mr Justice Mostyn agreed in no uncertain terms on all three counts. He noted that:

  - the dominant set of ideals or beliefs underpinning the PIP reform was that the focus would be on the impact of the impairment not the cause - the “what?” rather than the why”

   - a consultation document in 2010 gave no hint that the government held the view that those whose inability to perform a given mobility activity arose from psychological distress in fact had a lesser need than those whose identical inability arose for some other reason

  - the draft regulations laid in December 2012 appeared to divide claimants in mobility activity 1 into two sets: 1(a) those who are unable to leave their homes as a result of overwhelming psychological distress; and 1(b) those who are unable to leave their homes for some other reason. The second set had two subsets: 2(a) those who require considerable support to do so, and 2(b) those who merely require prompting to do so. There is no basis for reading 'apart from those claimants suffering from psychological distress' into the definition of set 2(a) (paragraphs 21 and 22);

  - nothing in the oral statement by the Minister to Parliament on 13 December 2012 gave any hint that those who were only able to leave their homes with considerable support because of psychological distress would be treated less favourably than those equivalently afflicted but for a different reason (paragraph 22); and

  - the guides for the operation of the new PIP scheme did not reveal any such policy intention either (paragraph 25).

Mr Justice Mostyn adds that, with Ministers having said as much to both Houses of Parliament, it is now clear that it was the intention of the Department when formulating the Social Security (Personal Independence Payment) Regulations 2013 (the 2013 regulations) to make a policy distinction between those afflicted by psychological distress and those who were not and to treat the former group less favourably. However, he clarifies -

'... that intention was never communicated to the outside world, and cannot be deduced from either a literal or purposive construction of the regulations.' (paragraph 30)

In addition, Mr Justice Mostyn notes that the 2017 regulations would affect 'virtually the entire canon of mental illnesses'. In the government's equality assessment of February 2017, it was estimated that if MH were reversed then by 2021, 337,000 cases would be affected annually and £900 million would be saved.

In his view, there was clearly discrimination, but the Convention does allow for a discriminatory measure to go ahead in certain circumstances if the broader aims justify the means a or there is no sensible way of avoiding it.

After going through the potential justifications to make discrimination lawful, the jJudge concluded those tests were not satisfied:

'In my judgment, the 2017 regulations introduced (and I emphasise introduced) criteria to descriptors c, d and f, which were blatantly discriminatory against those with mental health impairments and which cannot be objectively justified. The wish to save nearly £1 billion a year at the expense of those with mental health impairments is not a reasonable foundation for passing this measure.' (paragraph 59)

Mr Justice Mostyn also finds that the 2017 regulations are incompatible with the purpose of the scheme as defined in the parent statute, and that a measure which introduces a change of this magnitude should have been consulted on, and that the failure to do so was unlawful.

So this judgement

  - scraps  the March 2017 changes to PIP Mobility activity one and

  - puts the position back to the one as ruled by the three judge panel in the MH case December 2016

 

7. So what happens next?

The Government didn’t like this language one little bit and disagree with some of the detail as they still maintain that last March’s amendment was simply restoring PIP to its original intention. But they have decided not to appeal against the decision and to put everything back to the decision in MH

You can see the DWP written response to the judgement on 19th January here. And you can see a more detailed video coverage of the further response via Parliamentary TV here

To their credit they are intent on implementing the changes to get PIP back in line with the legal ruling in a thorough way. It’s too early to say exactly when, but the broad steps will be:

   a) consultation with mental health groups on the plans for the review and the Guidance to DWP Decision Makers and Assessors, to help with this review exercise and new claims -

   b) a look through all the 1.6 million current claims to identify those that may have been adversely affected

   c) the estimated 220,000 that might be - would then be written to with details of what is happening. They may not actually have to do anything at all in this process . Any review is purely about whether their PIP should stay the same or be increased because of the Court ruling

   d) There will be no new assessment process and mostly PIP hope to make a decision based on what's in the papers already but they may sometimes need to ask for a bit more information.

   e) Those affected will get a decision that either nothing changes or they are due to get more. If they are this will be backdated to either the day they got PIP or the 1th December 2016 ( the date of the three panel decision in MH.)

 

8. What does this mean for me?

There has been much excited talk that people might now get the enhanced rate of PIP Mobility under 1f . There may indeed be some awards at the top end. However, for the majority of cases it will be about whether a nil award of PIP Mobility should have perhaps been a standard level award.

IHow will you know if you are affected? Well at some point the DWP will write and tell you. The clue may in most cases be if you were not given any PIP Mobility but do feel that at the time you claimed PIP, psychological distress and concentration issues - e.g. the dreaded chemo fog - meant that your ability to plan and follow a journey reliably in an unfamiliar place was affected.

There is no need to do anything at this stage. Nor need you worry about being thrown into a full assessment process or any threat to reduce the award you currently receive. The intention is for the lightest ouch of review processes  - you will not see or be involved in the furiously paddling feet underneath.

I will post an update when fuller timelines and details of the process emerge. If you are at all anxious about your current award ...or just intrigued by what this PIP might be and whether its something you could claim - please just message me

Best wishes,

Tom



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