Benefits and Work and Inclusion London have obtained counsel’s advice on possible challenges to the Pathways To Work Green Paper proposals.
The advice suggests that at this stage there appears to be no clear or obvious route for challenge or ‘silver bullet’ regarding the ‘flagship’ elements of the policy. Instead, individuals and organisations should focus efforts on challenging elements of the Green Paper politically as much as possible.
Benefits and Work and Inclusion London asked solicitors Leigh Day to obtain advice from counsel about the potential legal challenges to the March 2025 welfare reform proposals. Leigh Day appointed barrister Tom Royston of Garden Court North Chambers to undertake the work.
Both Leigh Day and Tom Royston have a great deal of experience in social security law and we are grateful to them for the very detailed advice they have provided.
The advice addressed the following proposals in the Green Paper:
(I) ‘Focussing PIP more on those with higher needs’: the proposal to require at least one 4 point descriptor to be met to qualify for PIP;
(II) ‘Scrap the WCA’: the proposal to amend the process by which ill and disabled people can claim income replacement benefit, and the amount of money they receive;
(III) ‘New unemployment insurance’: the proposal to amalgamate contributory ESA and JSA into a single time limited contributory benefit;
(IV) ‘Delaying access to the UC health element until age 22’: not paying 18-21 PIP recipients any extra means tested element in UC.
Looking in summary at the above proposals, counsel told us that substantial challenges to central aspects of the envisaged legislation would ‘be likely to fall at various places along a spectrum from ‘hopeless’ to ‘challenging’.”
In other words, given the information currently available, the chances of preventing the proposals being made law or overturning them subsequently appear to be limited.
In relation specifically to PIP, a range of issues were considered, including - but not limited to -the decision not to consult on this measure, challenges under the Human Rights Act 1998 and challenges under the Equality Act 2010. But the probability of any challenge succeeding in relation to the PIP 4-point rule specifically was considered to be low and heavily dependent on circumstances.
Counsel did stress, however, that there may well be successful legal challenges in the future to elements of the above proposals, but these are likely to be to “contingent aspects of the proposals which emerge along the way, rather than to the elementary principles which were clear at the start.”
In other words, if the laws are enacted, then the courts may have a major role to play in examining the way they are interpreted and implemented but not in upsetting the basic foundations, such as the PIP 4-point rule. Benefits and Work will aim to support any such challenges in any way it can.
We are not able to publish the advice at present and we should add that it applies only to the four issues listed. The Green Paper contains many more proposals that were not covered.
In addition, we did not ask for advice on whether the current Green Paper consultation is lawful, because our initial enquiries are primarily about proposals which are not being consulted on.
We know that this news will be greeted with considerable dismay by many readers, who had hoped that the courts could prevent such clearly cruel and discriminatory proposals coming into force.
Sadly, there seems unlikely to be ‘silver bullet’ or straightforward legal answer.
Instead, by far the best hope of preventing these cuts is to persuade MPs to pledge to vote against them, as evidence grows that the Labour Party is struggling to contain a rebellion.
As one Labour MP, Neil Duncan-Jordan, who won his seat with a majority of just 18 votes but who has 5,000 constituents receiving PIP, told the Guardian “The whole policy is wrong. It goes without saying that if these benefits cuts go through, I will be toast in this seat.”
More facts about the effects of the cuts are being uncovered with each passing week.
Making MPs, especially those with slim majorities, aware of how dramatically the cuts will affect claimant’s lives provides the best hope that they will never come to pass.
