Two legal rulings on aspects of how personal independence payment (PIP) claims should be assessed are likely to be of benefit to some new and existing claimants.
The rulings may make it easier to get PIP, and some people will be entitled to arrears of their existing award.
Distress during travel
The first ruling was from the High Court in December 2017 about an upper tribunal decision regarding the mobility component.
Three upper tribunal judges made a decision in 2016 (known as MH) that found in favour of people with mental health problems regarding the mobility activity of ‘planning and following journeys’.
Following this ruling, the government changed the PIP regulations in March 2017 and effectively reversed what the tribunal had decided. The reversal meant that people who were unable to travel independently because they experienced psychological distress during journeys could not be entitled to the enhanced rate mobility component for the reason of psychological distress alone.
Government changes ‘were blatantly discriminatory against those with mental health impairments‘
However, the revised regulations were challenged in the High Court on the ground that they unlawfully discriminated against people with mental health problems. This is because people with physical health problems can get the enhanced rate under the alternative PIP mobility activity of ‘moving around’, due to their physical difficulties with walking outdoors.
The High Court upheld the upper tribunal decision, declaring that the changes to the regulations ‘were blatantly discriminatory against those with mental health impairments’.
Getting there: distress when travelling must be taken into account in assessing the PIP mobility activity of planning and following journeys
So the regulations were changed back to how they had originally been, and the government accepted that overwhelming psychological distress experienced by a claimant when travelling must be taken into account in assessing the PIP mobility activity of planning and following journeys.
Meaning of ‘safely’
The PIP regulations provide that, in the assessment, a particular descriptor applies only if the claimant can carry out the activity at that level ‘safely’. Some PIP activities include a descriptor that awards points if the activity can only be completed with assistance or supervision.
An upper tribunal case in 2017 (known as RJ) focused on the broad issue of assessing if a claimant can carry out a PIP activity ‘safely’. The tribunal concluded:
‘An assessment …. that an activity cannot be carried out safely does not require that the occurrence of harm is ‘more likely than not’. A tribunal [or decision maker] must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. Both the likelihood of the harm occurring and the severity of the consequences are relevant. The same approach applies to the assessment of a need for supervision.’
The implication is that the greater the potential harm to the claimant or another person, the less likely it needs to be that it would happen on any specific occasion.
Implementation of decisions
The government has issued guidance on implementing the effects of both these rulings in July, along with plans for identifying existing claimants and failed applicants who may have missed out as a result of how their claim was assessed.
The Department for Work & Pensions will identify and write to all claimants who could be affected. Its guidance states that:
– The review will not involve face-to-face assessments, and no awards will be reduced
– Claimants will be notified of the outcome and will be advised of their rights to challenge it
– If a claimant requests a mandatory reconsideration of the review outcome, it will consider only how the judgments apply and not review other aspects of the award.
This should mean that claimants need not worry about a reduction in or loss of any component that is not a subject of the review. If a client is entitled to an increase, this will be backdated.
If claimants were refused a PIP award before the date of the relevant upper tribunal decision – 28 November 2016 in the case of MH (difficulty planning a journey due to distress) and 9 March 2017 in the case of RJ (the ability to travel safely) their case will not be looked at as part of the review process. If one or both decisions could apply to a client who has had a failed claim, they should consider making a new one.
In a climate of cuts to benefits and services, it is reassuring that courts and tribunals can still make legal decisions that may improve clients’ position. However, the implementation of these decisions may be fairly complex for the DWP to get right, so it is worthwhile for clients who may be affected to seek the advice of an expert benefits adviser.
Charlie Callanan is an adviser and writer on welfare rights
Resources
Personal Independence Payment (PIP). Implementation of Legal Judgments: Frequently Asked Questions. Comprehensive and clear information published by parliament. http://tinyurl.com/y8ww8yao
Advice for DWP decision makers
PIP – the Meaning of ‘Safely’ – Amended. http://tinyurl.com/y7dkrvre
Pip Mobility Activity 1 – Effect of UT Decision. http://tinyurl.com/y8uw9xfl
