The Court of Appeal has decided that the DWP’s consultation on personal independence payment (PIP), which initially hid the fact that the qualifying mobility distance was to be reduced from 50 metres to 20 metres, was fair. The decision brings to an end any hopes of avoiding an estimated 548,000 working age disability living allowance (DLA) claimants losing their higher rate mobility award on being forced to apply for PIP.
The original consultation into PIP failed to disclose the reduction in the qualifying distance which will lead to many thousands of current higher rate DLA mobility claimants having their award cut or stopped altogether.
The legality of the consultation process was then challenged by a disabled claimant who launched a judicial review.
As a result, before the case could be heard, the DWP hastily arranged a second consultation just on this issue. In spite of overwhelming opposition to the reduction, the DWP went ahead with the planned cut.
In the Court of Appeal, the claimant’s representatives argued that the consultation was not fair because by the time it took place legislation had already been enacted and systems put in place for the 20 metre rule to be used. They claimed that because of this there was no genuine possibility of the second consultation making any difference.
548,000 to lose out
The judges accepted that, because of the changes, by 2018 there were expected to be 602,000 PIP enhanced mobility component claimants as opposed to 1,030,00 claimants who would have got disability living allowance (DLA) higher rate mobility.
In addition, the judges also accepted that, because more claimants are likely to qualify for PIP mobility on mental health grounds than under DLA, the number of claimants with physical health conditions who will lose out will be even higher than the 400,000 indicated.
In fact, the DWP estimated in their response to the second PIP consultation that 548,000 (61%) of the 892,000 working age claimants who were getting higher rate mobility DLA in 2013 will have lost it by 2018 as a result of the transfer to PIP.
349,000 (39%) are expected to be left with no mobility award at all and 199,000 (22%) with standard instead of enhanced mobility.
However, the Court of Appeal held that the fact that many claimants with physical health conditions would lose out was clear at the time of the second consultation.
They also found that by holding the second consultation the DWP had remedied what might otherwise have been an unfair process and that the minister had approached the issue with an open mind at the time of the second consultation.
In the words of Lord Justice McCombe:
“As I understand the law, consultation has to be fair; it does not have to be perfect. With the benefit of hindsight, it will no doubt often be possible to show that a consultation could have been carried out rather better, but that will not necessarily mean that it was unfair.”
These are words which will no doubt encourage the DWP when they draw up bogus new consultations for future benefit cuts.
But for working age claimants with a higher rate DLA mobility award due to a physical health condition, they could not be more disastrous.