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What were the changes in March 2017?

In March last year DWP introduced regulations to reverse the effect of two Upper Tribunal judgments relating to the PIP eligibility criteria – for background to these changes see our Commons Library briefing CBP-7911,  Changes to the Personal Independence Payment eligibility criteria.  The most significant change made by the regulations was to tighten the rules on access to the mobility component for people unable to undertake journeys due to “overwhelming psychological distress.”  This would potentially affect people with a wide range of conditions including learning disability, autism, schizophrenia, anxiety conditions, social phobias and early dementia.

How did disability organisations respond?

Disability organisations called on the Government not to proceed with the changes. Some questioned how the changes fit with the Government’s stated commitment to “parity of esteem” between physical and mental health issues.

What did the High Court say?

In its judgment on 21 December 2017 in RF v the Secretary of State for Work and Pensions & Others [2017] EWHC 3375 (Admin), the High Court ruled that the regulations introducing the March 2017 changes were unlawful because they discriminate against people with disabilities in breach of Human Rights Act 1998 obligations, and declared that the Secretary of State did not have lawful power to make the regulations (i.e. they were “ultra vires’”) and should have consulted before making them.

RF’s claim was supported by The National Autistic Society, Inclusion London, Revolving Doors and Disability Rights UK, Mind and the Equality and Human Rights Commission (EHRC).

How did the Government respond?

On Friday 19 January the Government announced that it wouldn’t be contesting the High Court’s decision, and that it would also drop its appeal against the original Upper Tribunal decision (MH v Secretary of State for Work and Pensions [2016] UKUT 0531 (AAC)) that had prompted the change to the regulations.

In a Written Statement, the Secretary of State for Work and Pensions said that her Department would 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.”

DWP is to undertake an exercise to go through all affected cases to identify anyone who may be entitled to more as a result of the judgment, and to make backdated payments.

The Department for Communities is also reviewing claims in Northern Ireland.

How many people may be affected?

The Government estimates that up to 220,000 people could benefit from the judgment, as a total cost of around £3.7 billion.

What does this mean for claimants?

The Department is drawing up detailed plans for implementing the Upper Tribunal’s judgment in MH, and it hopes to begin reviewing cases in Summer 2018.  From statements made including the response from the Minister for Disabled People to an Urgent Question on 30 January, it appears that:

  • The DWP plans to review all 1.6 million existing PIP awards, and PIP claims submitted since the original Upper Tribunal judgment in November 2016, to see who could be affected.
  • DWP will be writing to the individuals affected – claimants should not have to contact DWP to receive the correct award.
  • The review will be an “administrative exercise” involving DWP Case Managers looking at existing information the Department holds. It will not involve face-to-face reassessments of awards.  If Case Managers need more information to make a decision, they will contact the claimant and/or their doctor.
  • DWP is consulting stakeholders – including the mental health charity Mind – on how the review should be conducted and how cases should be prioritised.
  • Additional payments will be backdated to the “effective date” in each case – either the date of the claim or the date of the original Upper Tribunal judgment (November 2016), whichever is the later date.
  • The review should not lead to delays processing new claims for PIP.
  • DWP will not make savings from elsewhere in order to fund the additional payments.

Replying to the Urgent Question on 30 January, the Minister for Disabled People said:

“it is incredibly important to me that we get this right. The exercise will be complex and, to carry it out accurately and safely, we want to ensure that stakeholders and experts are involved. As a result, I cannot set out a timetable at this stage, but I can reassure all hon. Members that we are approaching this with a great deal of vigour and will ensure we do it as soon as possible. We have already started to recruit more people at DWP to help with the PIP review.”

The Minister also gave an undertaking to update the House regularly on the Government’s plans.

What is the latest situation?

On 29 March the Secretary of State for Work and Pensions deposited in the House of Commons Library a “Dear Colleague” letter to MPs giving an update on progress towards implementing the Upper Tribunal’s judgment in MH, together with a factsheet including FAQs for claimants and stakeholders (DEP2018-0345).

In her letter, the Secretary of State emphasises that the Department is still in the early days of implementing the judgment.  Since the announcement in January, the Department had been undertaking “significant work” including:

  • Identifying the relevant external stakeholders to provide valuable insight into the symptoms and needs of individuals experiencing overwhelming psychological distress;
  • Holding discussions with a wide range of representatives from disability charities and specialist Mental Health organisations, welfare advice services and local government.
  • Working to design the complex administrative exercise to identify those claimants who may be entitled to a higher PIP award as a result of the judgment.

The factsheet states that the exercise to identify affected claimants will be “complex and of considerable scale”, and can only commence once finalised guidance is in place.  This work is being taken forward at speed, but the Department wants to ensure that the exercise is carried out “thoroughly and safely”.  The Secretary of State is to provide a further update to MPs once the guidance has been finalised.

The DWP has provided “indicative timescales” for the next stages of the process:

Engagement period with stakeholders to gather views on implementation of the guidance

Spring 2018

Drafting of PIP Assessment Guidance changes

Spring to Early Summer 2018

Design process for reviewing existing PIP claims and recruit 300 additional staff to complete the review

Spring to Early Summer 2018

Publish finalised PIP Assessment Guidance and begin implementation for new claims

Early Summer 2018

Finalise process for reviewing existing claims and begin the exercise

Early Summer 2018

First payment to new claimants

Summer 2018

First backdated payments to claimants

Summer 2018

The factsheet confirms that the review will not look at eligibility for the PIP Daily Living Component.  It will focus solely on Mobility Activity 1 and people who experience overwhelming psychological distress that affects their ability to plan and follow a journey. 

The review will seek to identify claimants who may now be eligible for more support as a result of the judgment in MH, and will include anyone who was receiving PIP at 28 November 2016 (the date of the Upper Tribunal judgment in MH) and anyone who has received a decision on a PIP claim since that date.  The DWP will write to everyone it identifies who is affected.  Claimants do not need to contact the DWP at this stage.

The factsheet states that anyone who was disallowed PIP before 28 November 2016 and has overwhelming psychological distress that they think affects their ability to plan and follow a journey should consider making a new claim.

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