Discriminatory changes to UK disability benefits: some hope from judicial intervention?

Charlotte Kelly - 30th April 2018

Welfare benefit law and policy has seen considerable controversy over the last few years, as existing benefits are changed and reduced. This April saw the annual changes to benefit levels and eligibility. Yet one case in December last year, and the decision in January 2018 by the Department for Work and Pensions (DWP) to not appeal the case, suggests that the courts may be soon taking a more interventionist role in securing the human rights of welfare claimants, particularly those with mental health disabilities.

Personal Independence Payment (PIP) is a non-means tested benefit paid to those who need extra help due to illness, disability or mental health condition. It is made up of two components, a daily living component and a mobility component and there is a higher rate and a lower rate for both daily living and mobility, reflecting the extent to which a person needs extra help.

Perhaps surprisingly, eligibility for benefits, and decisions as to whether a claimant receives the higher or lower rate, is not determined by a doctor. Instead, claimants fill out a form about what restrictions they have in their daily life, and then attend an interview with an assessor. This single interview is problematic as it is not capable of capturing the dynamic and fluctuating nature of people’s condition.

On the basis of the assessor’s report and the claimant’s form, the DWP calculates how many points the claimant has gained, based on what the claimant is unable to do. If the claimant gains sufficient points, then they are eligible for a certain level of benefit.

One area of assessment within the mobility component looks at what help a claimant needs to plan and follow a journey. It was this question which was the subject of RJ v Secretary of State for Work and Pensions (Mind and another intervening). The case was taken to court by a disabled woman who had a mental health disability, and who had been significantly affected by changes to PIP in 2017.

The original legislation (Schedule 1 Part 3 of the Social Security (Personal Independence Payment) Regulations 2013 (SI 2013 No.377)) set out as follows:

Column 1

Activity

Column 2

Descriptors

Column 3

Points

Planning and Following journeys a. Can plan and follow the route of a journey unaided. 0
b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to claimant. 4
c. Cannot plan the route of a journey. 8
d.Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid. 10
e.Cannot undertake any journey because it would cause overwhelming psychological distress to the complainant. 10
f.Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.

 

12

The initial guidance was clear that for descriptors c, d and f the nature of the disability which prevented the claimant from doing the specified activity was irrelevant. Yet after the Upper Tribunal found in 2016 in MH, that a claimant who met descriptors c, d, and f because of psychological distress, was not disqualified because the cause of his disability was psychological rather than physical, the DWP decided to amend the 2013 regulations. Under the new regulations introduced in March 2017, those unable to make a journey due to “psychological distress” would now only be able to claim under descriptors c and e.

In his judgment in the case of RJ v Secretary of State for Work and Pensions (Mind and another intervening), Mr Justice Mostyn was clear that the 2017 amendment was in breach of Article 14 of the ECHR, in that it discriminated between those who had problems following and planning journeys because of mental health conditions, and those who had problems due to physical conditions. He dismissed the DWP’s case that the changes were based on “functional need”. He found that “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 [discriminatory] measure.” Mr Justice Mostyn was also critical of the way the 2017 amendment had been passed under the negative resolution procedure without debate.

The case is significant on three grounds. Most importantly, some 220,000 people will now be awarded more points at assessment, meaning for many an increase in PIP payment backdated to the original claim date. Secondly, the case establishes that the objective of saving government funds was not sufficiently important to justify the limitation of a protected right under the ECHR. Thirdly, against the current backdrop of frequent changes to benefit policy made by DWP, it has been made clear that proposed changes which may have a significant impact on claimants should be subject to consultation with relevant disabled groups.

The UN Committee on the Rights of Disabled Persons has harshly criticised the impact of welfare reforms, including PIP, on disabled people, noting a particular negative impact on those with mental health conditions. Continued legal challenges upholding the human rights of people with disabilities would be a step in the right direction.

Author profile

Charlotte is a DPhil student at the Centre for Socio-Legal Studies, having recently submitted her MSt in the department. Her MSt explored how legal discourse in Singapore from mid 1980s to the present day has shaped and constructed the ‘image’ of the child. She is interested more broadly in how discourse constructs identity categories, including disability, and serves as Disabilities Equalities Officer for Balliol MCR.

Citations

Charlotte Kelly, “Discriminatory changes to UK disability benefits: some hope from judicial intervention?” (OxHRH Blog, 30 April 2018) http://ohrh.law.ox.ac.uk/discriminatory-changes-to-uk-disability-benefits-some-hope-from-judicial-intervention> [date of access]

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