Background

On 23 February the Government laid before Parliament the Social Security (Personal Independence Payment) (Amendment) Regulations 2017, SI 2017/194, which came into force on 16 March 2017.

The regulations reverse the effect of two Upper Tribunal judgements, which had interpreted the Schedule setting out the assessment criteria for Personal Independence Payment (PIP) “in ways which the Government did not intend.”

The first judgment related to the PIP daily living activity 3 (“managing therapy or monitoring a health condition”); while the second judgment related to mobility activity 1 (“planning and following journeys”), specifically the assessment scores for those unable to undertake journeys due to psychological distress. An Equality Analysis accompanying the regulations estimates that around 3,000 claimants could ultimately be affected by reversing the effect of the judgment relating to daily living activity 3, while reversing the effect of the mobility activity 1 judgment could affect 336,500 claimants (with 282,500 no longer entitled to any mobility component). The former changes could predominantly affect claimants with health conditions such as diabetes, epilepsy and dizziness, whilst the latter changes could affect people with a wide range of conditions including learning disability, autism, schizophrenia, anxiety conditions, social phobias and early dementia.

In a press release, the Government stated that failure to reverse the effect of the judgments would have led to “substantial unplanned increases to public expenditure” totalling £3.7 billion cumulatively between 2016-17 and 2021-22, and that the changes are necessary “to restore the original aim of [PIP], making sure that we are giving support to those who need it most.”

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

More information on this issue can be found in the Commons Library briefing paper, Changes to the Personal Independence Payment eligibility criteria, which was published on 6 March 2017.

Application for an emergency debate

On 28 March, Debbie Abrahams MP applied for an emergency debate, noting that the 40-day praying against period for the regulations would shortly run out. She stated:

Although the Leader of the House has belatedly committed to a debate at a date still to be determined, the Government has deliberately chosen not to have a debate before the 40-day praying against period comes to an end on the 3rd of April. According to advice received from the Journal Office, if these regulations are not debated and voted on before the 3rd of April, they will not automatically be revoked, should the House vote against them.

[…]

Yesterday the other place passed a regret motion tabled by my noble friend the Baroness Sherlock, asking the Government to urgently reconsider regulations, however this elected House of Commons have not had the opportunity to do so, and therefore Mr Speaker, I believe that we owe it to those who will be affected, primarily people with mental health conditions, to hold this Government to account.

The Speaker of the House of Commons accepted the application, and stated that the debate would be held as the first item of public business on Wednesday 29 March, lasting for 90 minutes.

Lords debate, Monday 27 March 2017

Two motions on the PIP regulations were debated in the House of Lords on Monday 27 March. The first, a motion to annul the regulations proposed by Baroness Bakewell of Hardington Mandeville was disagreed, and did not pass. Transcript of the debate is available on the Hansard website.

The second motion, a motion to regret proposed by Baroness Sherlock was agreed by 162 votes to 154. The text of the motion is as follows:

That this House regrets that Her Majesty’s Government is implementing the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 without formal referral to the Social Security Advisory Committee; and that the Regulations discriminate against people with mental health problems, and could put vulnerable claimants at risk; and calls on Her Majesty’s Government to allow proper scrutiny of these proposals, including a review of the changes that the Regulations make and their specific impact on those with mental health conditions, within two years of their coming into force.

Further reading

Social Security Advisory Committee correspondence on the Personal Independence Payment (Amendment) Regulations 2017, 13 March 2017

Response to the SSAC letter from the Minister for Disabled People, Health and Work, 15 March 2017

Urgent Question: Personal Independence Payments, HC Deb 15 March 2017, cc397-408

Lords Secondary Legislation Scrutiny Committee Twenty Seventh Report, HL 126 2016-17, 9 March 2017

Lords Debate on a motion to annul the Social Security (Personal Independence Payment) (Amendment) Regulations 2017, HL Deb 27 March 2017 cc431-454

Recent Parliamentary Questions

Asked by: Mr Hanson | Party: Labour Party

Why did the Minister not consult the Social Security Advisory Committee, where her contentions about the impact of this benefit could have been challenged?

Answered by: Penny Mordaunt | Party: Conservative Party | Department: Work and Pensions

The Committee is within its rights to look at the decision. It did so, and it concluded that it would not formally review that decision. We have used the urgency procedure, as it was within our rights to do, to establish certainty. We do not want there to be a long period of uncertainty around this, and we do not want to be in the position of having to take money off people. What we have done is to restore that certainty. Everyone knows where they are, and people know that there is no change and their awards will not be changing.

27 Mar 2017 | Oral questions – 1st Supplementary | Answered | House of Commons | House of Commons chamber | 624 c8

Asked by: Baroness Thomas of Winchester | Party: Liberal Democrats

To ask Her Majesty’s Government what consultations they conducted in response to the decision of the UK Upper Tribunal on 28 November 2016 in MH v Secretary of State for Work and Pensions (PIP), prior to the introduction of the relevant amending regulations laid before Parliament in February 2017.

Answering member: Lord Henley | Party: Conservative Party | Department: Department for Work and Pensions

The Department for Work and Pensions continues to have regular discussions with disability organisations on a range of issues related to Personal Independence Payment. As part of this on-going engagement and consultation Ministers have been in contact with a number of stakeholders, including disability charities, to discuss and explain the changes that we have introduced.

Prior to its introduction, the PIP assessment criteria were developed in collaboration with a wide range of experts and through comprehensive public consultation.

20 Mar 2017 | Written questions | Answered | House of Lords | HL5960

Asked by: Lord Pendry | Party: Labour Party

To ask Her Majesty’s Government, in the light of their commitment to treat mental health as seriously as physical health, what assessment they have made of the findings of MIND that over 160,000 people with mental health problems would be affected by their proposed changes to the Personal Independence Payment.

Answering member: Lord Henley | Party: Conservative Party | Department: Department for Work and Pensions

Personal Independence Payment (PIP) ensures parity of treatment between mental and physical conditions by looking at the overall needs of an individual, not which conditions they have. However, recent legal cases have broadened the way the PIP assessment criteria are interpreted. The Government has, therefore, made drafting changes to the PIP regulations to help ensure that PIP is being delivered in line with its original intent. The changes to the regulations will not result in any claimants seeing a reduction in the amount of PIP previously awarded by the Department for Work and Pensions.

16 Mar 2017 | Written questions | Answered | House of Lords | HL5910

Asked by: Day, Martyn | Party: Scottish National Party

To ask the Secretary of State for Work and Pensions, pursuant to the Answer of the 2 March 2017 to Question 65538, on personal independence payment, if he will assess the potential merits of the personal independence payment assessment guide to permit claimants’ companions to provide an account of the claimant’s health condition or impairment in cases where that claimant has speech or hearing problems.

Answering member: Penny Mordaunt | Party: Conservative Party | Department: Department for Work and Pensions

The assessment for Personal Independence Payment (PIP) is designed to treat people as individuals, considering the impact of their impairment or health condition on their everyday life and how each claimant has personally adapted to living with a disability.

We recognise that information given by companions could be useful, particularly in cases where the claimant may lack insight into their condition, understate the challenges they face or have difficulty. We have made it very clear that when attending a face-to-face consultation, claimants can bring someone with them in order to support them or help them and in some cases we will also carry out consultations in claimants’ homes.

Since its inception, the system of assessing claimants’ eligibility for PIP has been continually reviewed and refined in order to improve its efficiency and effectiveness. We continue to work extensively with PIP assessment providers and disability representatives to make improvements to guidance, training and audit procedures in order to ensure a quality service is maintained. This includes in response to the Independent Review conducted by Paul Gray.

16 Mar 2017 | Written questions | Answered | House of Commons | 67548

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