Just before Christmas claimant RF won a vital high court challenge against changes to the law relating to PIP mobility. However, the victory could still be overturned on appeal, meaning there has not been any change to the way PIP is awarded yet and there is another case know as MH which could also have an effect.
Early in 2017 an upper tribunal of three judges clarified the law relating to ‘Going out’ in a way that was favourable to claimants who become very distressed when attempting to plan and follow journeys.
Amongst other things, the tribunal decided that claimants who need help with familiar routes because of overwhelming psychological distress could be eligible for the enhanced mobility component.
However, the government almost immediately changed the law in an attempt to reverse this decision.
They also appealed against the decision, in a case known as MH, which is likely to be heard in June 2018.
The change in the law consisted of adding the words ‘For reasons other than psychological distress,’ to three descriptors
The aim of the DWP was to ensure that claimants who have difficulties with following journeys because of psychological distress are less likely to get an award of PIP on those grounds.
The RF case
On 21 December 2017 the changes to the legislation were found to be unlawful by the high court in a judgement known as RF.
The high court found that the changes discriminated against people with certain disabilities, in breach of the Human Rights Act. The court also found that the government broke the law by not consulting on the changes first.
The DWP can seek to appeal against this decision and we should find out fairly soon whether they have been given leave to appeal.
Until leave to appeal has either been refused, or the appeal has been granted and heard, the law will stay as it is currently and claimants with mental health conditions will continue to be discriminated against.
The MH case
However, matters are further complicated by the fact that, as explained above, the DWP have appealed against the original upper tribunal decision that prompted the DWP to change the law. That case is known as MH
If the DWP win the appeal in MH then it will no longer make any difference whether they lose RF or not.
In other words, things will not improve for claimants unless the DWP lose both the appeals in MH and in RF. If they win either then the law continues to discriminate against some claimants with mental health conditions.
On the bright side
There is a positive side, however.
The high court came down very strongly in support of the claimant in RF. So, even if the DWP do manage to get an appeal heard there is a strong chance they will lose RF again.
Meanwhile, the arguments relating to discrimination in MH are very similar to the ones in RF, so there is a good chance that the DWP will fail in their attempt to overturn the upper tribunal decision.
So, there is a real possibility that claimants will win both cases.
But, the complexity of the legal situation, and the option of further appeals to even higher courts, does mean that the law may not change for a long time yet.
Lodging your own appeal
In the meantime, if you lose out as a result of the changes to the law, then it would definitely be worth seeking advice about appealing the decision.
It is likely that any appeal on these grounds will be put on hold until the current legal mess is untangled, but if the claimants succeed in both cases then your appeal will eventually be heard.
There’s more information about the changes to the law in our guide to claiming PIP in the members area.