We try to avoid sending out more than one newsletter a fortnight, but we’re making an exception in this case.
Partly because we don’t want this to get buried by other news, but also because time may turn out to be of the essence.
A leading barrister has told Benefits and Work that the way the LEAP review has been carried out may be unlawful and that there is a significant public interest in bringing an action against the DWP to establish if that is the case.
In order to prevent many tens of thousands of claimants from losing out, we now need to hear from claimants who have received a LEAP review letter in the last three months.
The MH case
Benefits and Work has obtained the opinion of a leading social security barrister, Tom Royston of Garden Court North Chambers, who successfully acted for the claimants in the original MH case. It was this case which led to the LEAP review, so Tom Royston has very detailed knowledge of the issues.
In the MH case, it was found that the DWP had been misapplying the law in relation to psychological distress and following the route of a journey.
Claimants should have been awarded the standard rate of PIP mobility if, because of overwhelming psychological distress, they needed someone with them to follow the route of an unfamiliar journey.
And they should have been awarded the enhanced rate if they could not follow the route of a familiar journey without having someone with them for the same reason.
Instead, the DWP had been awarding just 4 points, not enough for any award of the mobility component at all.
The LEAP review was intended, the DWP said, to identify all the claimants who had missed out on the correct rate of the PIP mobility component since November 2016 and make back-payments where applicable.
However, increasing doubts have arisen about whether the LEAP review, which began in June 2018, is a genuine and effective attempt to identify the many thousands of claimants who have been underpaid.
In a forensically detailed 19 page document, counsel examines issues such as:
- The DWP’s understanding of the changes to the law as a result of MH
- The way that evidence was collected for the review
- The possible use of computer programs to select cases and make decisions
- The duty to make reasonable adjustments
- The duty to comply with the public sector equality duty
The opinion details the areas where additional evidence is needed and concludes that:
“In my opinion there is an arguable case that SSWP’s [Secretary of State for Work and Pensions] review is unlawful . . . and there strikes me as being a significant wider public interest in any such case, both because the legality of large scale public projects is always important and because there are strong reasons in this case for believing that many affected individuals would not be able to take effective remedial action by themselves”
As evidence that the review may be unlawful, Tom Royston cites the huge difference between the number of claimants that the DWP said would be affected by the MH case and the number who have so far received a back-payment via the LEAP review. He notes:
“By January 2021 almost 900,000 old cases had been looked at again, and changes had been made in only 3,700 of them. Thus, in respect of this group, the actual proportion of beneficiaries (0.4%) appears to be 35 times smaller than the previously estimated proportion (14%) . . . If on taking your car to the garage for repairs, you had been quoted £400, you would, to put it mildly, require explanation if the bill later presented to you was ultimately £14,000. Or if SSWP introduced a new benefit to which she thought 2% of the population would be entitled, but to which in fact 70% of the population turned out to be entitled, one assumes the Chancellor of the Exchequer would want some explanation.”
But the DWP have remained utterly silent on the huge disparity between their estimate and the number of awards they have actually made.
And our efforts to find out more via the Freedom of Information Act have been comprehensively and cynically blocked.
If this contemptuous review is an attempt by the DWP to avoid obeying the courts, and if they succeed, it effectively spells the end of landmark cases that result in thousands of claimants getting the benefits they have been unlawfully denied.
And we only have one chance to beat it.
Because, on this occasion, in an unsuccessful effort to persuade MPs to reverse the court’s decision the DWP published estimates of the large number of claimants who would benefit if the law stood.
Without that information we would have very little hope.
And you can be sure the DWP won’t make that mistake again.
Have you had a LEAP review letter?
As the next step towards discovering whether the LEAP review is fair, we need to hear from claimants who have received a LEAP review letter in the last three months telling them that their award has not been changed.
The LEAP letter won’t mention the word LEAP, but it will probably start by saying something like:
Personal Independence Payment
Changes in PIP law – we have looked again at your PIP and it has not changed.
There have been some changes in Personal Independence Payment (PIP) law that affect how the Department for Work and Pensions decides PIP claims.
It will also say something about the MH judgement as well. Such as:
MH v DWP tribunal judgement. This relates to how ‘overwhelming psychological distress’ is considered when assessing the ability of someone to plan and follow a journey.
If you have had a letter like this in the last three months, we have created a short survey (just six brief questions) which we need you to complete to give us the means to take the case forward.
It was Benefits and Work readers’ brilliant responses to our previous LEAP survey that allowed us to identify grounds for a challenge to the LEAP review.
Now we need your help to take the next step.
Please spread the word about this survey as widely as you can, the more people who respond the better our chances of holding the DWP to account.
Use PIP Case Law With Confidence
Still on the subject of using the law to challenge the DWP, our first webinar to help claimant and carer members use PIP case law has proved a big hit, with over 200 attendees branding Monday’s event ‘Fantastic’, ‘incredibly helpful’ and ‘immensely educational’.
The same webinar, but for professionals members of Benefits and Work only, is happening on 30 June.
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