The DWP have abandoned a court case after admitting to getting the law relating to personal independence payment (PIP) wrong again for years, meaning that many thousands of PIP claims will have to be reviewed and claimants given back-payments. However, the DWP are refusing to concede that they are still applying the law wrongly now, meaning another legal challenge is likely.
In March 2017, the DWP made two major changes to PIP legislation. One of these related to the mobility component and severe psychological distress, the other related to ‘Managing therapy or monitoring a health condition’. Both changes were made so that the law matched the guidance that the DWP had been using to make decisions for years, but which the courts had found to be incorrect.
The result of both changes was that fewer claimants would be entitled to PIP.
In January of this year the DWP admitted that the changes relating to the mobility component were unlawful and stated that they would now the law as the courts had interpreted it before it the DWP altered the regulations on 16 March 2017.
Not only that, but the DWP also agreed to go back through old PIP decisions and correct any that had been made by applying the law wrongly.
As a result, significantly more claimants with mental health conditions are entitled to the mobility component and the DWP have begun a massive review of all past PIP decisions to try to identify hundreds of thousands of claimants who may have wrongly missed out on an award, or a higher award, of the PIP mobility component.
Managing therapy or monitoring a health condition
The changes to the ‘Managing therapy or monitoring a health condition’ activity in March 2017 were intended to prevent claimants who needed help in the form of supervision, prompting or assistance with taking medication or monitoring a health condition from scoring more than one point. The changes stated that help with taking medication, or with monitoring a health condition, did not count as help with therapy for which up to 8 points can be scored.
In two cases where the initial decision was made before March 2017, the DWP appealed to the upper tribunal after the first tier tribunal had decided that claimants were entitled to score points for help with therapy because they needed someone to monitor their health condition adnd administer medication.
According to Garden Court Chambers, who are representing the claimants:
“The government had been arguing that ‘therapy’ excluded treatment which consisted of the monitoring of health and administration of medication. For example, one of the claimants in these cases was a person with type 1 diabetes and unusual sleep patterns, who needed someone to watch over him at night, sometimes administering insulin or glucose while he slept, to avoid diabetic coma and death. The FTT had decided he qualified for PIP. The government had argued in the appeal that he should be awarded only 1 of the minimum 8 points necessary to qualify for PIP.”
The DWP have also withdrawn an appeal in a separate case that was due to be heard in the Court of appeal. In CPIP 721 2016 the Upper Tribunal had held that where a claimant needed help with both managing medication and monitoring a health condition then they should score more than one point.
The judge also ruled that where supervision was needed for “elements of what would ordinarily be regarded as therapy that go beyond either managing medication or monitoring a health condition” then the higher scoring descriptors would apply. In addition, the time taken for managing medication and for monitoring a health condition as part of the therapy could then also be taken into account.
Where the law stands now
For decisions made before 16 March 2017 the DWP have said that they will now have to look again at claims relating to this activity.
According to Garden Court Chambers:
“As a result of withdrawing her appeals, the SSWP [Secretary of State for Work and Pensions] has accepted that, as with the case of her error relating to the mobility element of PIP, she will now need to review past claims relating to this descriptor, to identify other claimants who may have been underpaid. The government has not yet given any details of when or how that process will be carried out, or how many claimants it expects to be affected.”
However, the DWP is arguing that none of this applies from the date when they changed the law. So for cases from 16 March 2017 the DWP claims its decisions are correct.
But it isn’t that simple.
By withdrawing their appeals the DWP are admitting that they were applying the law incorrectly.
So, the changes they made to the law in March 2017 were not just to clarify the existing law, as they argued at the time. Instead they were a material change in the law which removed entitlement to PIP, or a higher rate of PIP, from many thousands of claimants.
In this case the DWP were under a duty to consult before making changes to the law.
They didn’t do this and it is now open to a court to decide that, because there was no consultation, the changes were unlawful and, as with changes to the mobility component, the law must go back to how it was before.
It looks like the DWP are not going to concede this easily, but there’s no doubt that a case will be brought to court to try to overturn the changes to the regulations.
What you should do
If you think you may have been affected by this issue, then make sure you keep subscribing to the Benefits and Work fortnightly newsletter and we’ll keep you informed about what’s happening.
If the decision in your case was made before 16 March 2017 and relates in part to this issue then, in theory, the DWP should be contacting you. More details of how the review will be carried out and when you should be contacted should be made available soon. At that point you can consider whether to wait to be contacted or raise the issue with the DWP yourself.
If the decision in your case was after the cut-off date then keep reading the newsletter and we’ll let you know when a hearing is to be held to decide whether the changes to the regulations were unlawful.
If you’re currently making a claim, then include as much information as you can about the help you need with managing your condition. If you are unhappy with the decision in your case, you can get advice in order to consider whether to appeal on the grounds that the changes to the regulations were unlawful or whether to wait for clarification of the law.
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