A Department for Work and Pensions spokesperson has denied allegations that people with mental health conditions claiming Personal Independence Payment (PIP) are being treated differently to those with physical disabilities: “At the core of PIP’s design is the principle that mental health conditions should be given the same recognition as physical ones”, the spokesperson said.
“In fact, there are more people with mental health conditions receiving the higher rates of both PIP components than the DLA equivalents.
This Government is also investing more in mental health than ever before – spending more than £11 billion this year.”
However, following two independent tribunal rulings that the Department for Work and Pensions (DWP) should expand the scope and eligibility criteria of PIP, which helps both in-work and out-of work disabled people fund their additional living costs, the government is rushing in an “urgent change” to the law to prevent many people with mental health conditions being awarded the mobility component of PIP. The court held that people with conditions such as severe anxiety can qualify for the enhanced rate of the mobility component, on the basis of problems with “planning and following a journey”, or “going out”.
The government’s new regulations will reverse the recent tribunal ruling and will mean that people with mental health conditions such as severe anxiety who can go outdoors, even if they need to have someone with them, are much less likely to get an award of even the standard rate of the PIP mobility component. The regulations also make changes to the way that the descriptors relating to taking medication are interpreted, again in response to a ruling by a tribunal in favour of disabled people.
The first tribunal said more points should be available in the “mobility” element for people who suffer “overwhelming psychological distress” when travelling alone. The second tribunal recommended more points in the “daily living” element for people who need help to take medication and monitor a health condition.
It’s worth noting that the Coalition Government enshrined in law a commitment to parity of esteem for mental and physical health in the Health and Social Care Act 2012. In January 2014 it published the policy paper Closing the Gap: priorities for essential change in mental health (Department of Health, 2014), which sets out 25 priorities for change in how children and adults with mental health problems are supported and cared for. The limiting changes to PIP legislation does not reflect that commitment.
PIP is defined by Capita, the private company employed by the government to carry out “functional assessments of disabled people as “a non means tested benefit for people with a long-term health condition or impairment, whether physical, sensory, mental, cognitive, intellectual, or any combination of these.” It is an essential financial support towards the extra costs that ill and disabled people face, to help them lead as socially and economically inclusive, active and independent lives as possible.
Who will be affected by the reversal of the tribunal rulings?
As I reported previously, from 16 March (today) the law will be changed so that the phrase “For reasons other than psychological distress” will be added to the start of descriptors c, d and f in relation to “Planning and following journeys” on the PIP form.
New guidelines circulated by the DWP instruct assessors to disregard the physical impact of mental illness, in relation to how the impairments affect a person’s mobility in completing a journey unaccompanied, which will effectively exclude them from eligibility to the higher mobility component of PIP.
This means that claimants with severe mental illness that impacts on their mobility will be refused the same level of financial support as people with physical disabilities.
It effectively means that people suffering with debilitating mental health conditions are to be denied equal access to the disability benefits system.
People with the following conditions are likely to be affected by the reversal of the independent tribunal’s ruling regarding PIP mobility awards, with conditions in the general category of “severe psychological distress”:
Mood disorders – Other / type not known, Psychotic disorders – Other / type not known, Schizophrenia, Schizoaffective disorder, Phobia – Social Panic disorder, Learning disability – Other / type not known, Generalized anxiety disorder, Agoraphobia, Alcohol misuse, Anxiety and depressive disorders – mixed Anxiety disorders – Other / type not known, Autism, Bipolar affective disorder (Hypomania / Mania), Cognitive disorder due to stroke, Cognitive disorders – Other / type not known, Dementia, Depressive disorder, Drug misuse, Stress reaction disorders – Other / type not known, Post-traumatic stress disorder (PTSD), Phobia – Specific Personality disorder, Obsessive compulsive disorder (OCD).
A case study is included in the new guidance, which says: “Sukhi has sought an award under mobility descriptor 1f as she cannot follow the route of a familiar journey without another person.
However, the [decision maker] determines that because of the wording of mobility descriptor 1f (“for reasons other than psychological distress, cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid”), any problems following the route due to psychological distress are not relevant.”
PIP consists of two separate components – a daily living component and a mobility element – each paying a standard or enhanced rate, with the enhanced rate paying more than the lower rate.
In response to the rulings, government have simply chosen to rewrite the law in a way that denies higher PIP payments for those claimants who would have benefited from the rulings, without consulting medical experts, disabled people, advocacy organisations and MPs – including the Work and Pensions parliamentary committee.
Responding to the new guidelines, Paul Farmer, chief executive of the mental health charity Mind, said: “The purpose of PIP is to cover the extra costs people incur because of a disability – decisions makers shouldn’t discriminate between disabilities on the basis of their cause, but decisions should be based on the impact of the disability.
People who struggle to leave the house without support may face the same costs whether their difficulties arise from, for example, a sensory disability or severe anxiety or other mental health problems.
Yet those making decisions about the level of support someone will receive will now be explicitly told to disregard those barriers if they are a result of someone’s mental health problem.”
He added: “This move undermines the Government’s commitment to look at disabled people as individuals, rather than labelling them by their condition, and completely goes against the Government’s commitment to putting mental health on an equal footing with physical health.
Meanwhile, the government’s own expert welfare advisors have said that the changes to PIP – affecting the mentally ill – should be delayed until they have been properly tested and “clearly understood”.
The Social Security Advisory Committee (SSAC) said in their report that they are “particularly concerned” that overturning the tribunal’s ruling will cause confusion. They warn it is “not clear” how assessors will interpret the changes, raising concerns over a real possibility that claimants will not be “consistently treated”.
The committee have disputed ministers’ claims that emergency legislation must be rushed through today, suggesting the feared increase in costs has been “over-hyped”.
The government claimed the tribunal ruling would cost at least £3.7bn over the next five years – money which should go to “really disabled people who need it”, according to one minister.
The committees’ damning conclusions have sparked angry exchanges in the Commons, with some Tory MPs joining Labour and the Liberal Democrats in criticising the impact of the PIP regulations on some of the most vulnerable citizens.
However, Damian Green, the Work and Pensions Secretary, refused to allow MPs to vote on the changes – insisting that was “above my pay grade”.
Green also acknowledged “a handful of people” could now have their PIP payments cut, having been awarded higher sums in the last few months.
Debbie Abrahams, Labour’s Work and Pensions spokeswoman, said that contradicted repeated assurances – including by Theresa May – that no disabled people would lose money, with only new claimants affected.
And she said: “The Government’s decision to change the law on PIP is a clear example of the way people with mental health conditions are not given equal treatment.”
The SSAC have urged the DWP to consider “testing the proposed changes with health care professionals and decision makers to ensure the policy intent behind the regulation is clearly understood”.
They concluded: “The department should both (a) consult more widely with representative bodies and health care professionals; and (b) improve the estimate of likely impact before the changes are introduced.”
Answering an urgent question in parliament, Mr Green insisted the SSAC was “not challenging the decision” to tighten the criteria for PIP.
But he added: “We think there may be a handful of people whose appeals have gone through the courts in this very, very small period.”
While “that money will not be clawed back from them” they would receive lower PIP payments once those appeals were struck out by the new regulations.
In their recent Equality Analysis PIP assessment criteria document, the government concede that: “Since PIP is a benefit for people with a disability, impairment or long-term health condition, any changes will have a direct effect on disabled people. The vast majority of people receiving PIP are likely to be covered by the definition of “disability” in the Equality Act 2010.
By definition, therefore, the UT [upper tribunal] judgment results in higher payments to disabled people, and reversing its effect will prevent that and keep payments at the level originally intended. The difference in income will clearly make a real practical difference to most affected claimants, and (depending on factors such as their other resources) is capable of affecting their ability to be independently mobile, access services etc – all matters covered by the UN Convention on the Rights of Persons with Disabilities as set out at the start of this Analysis.”
It goes on to say in the document: “However, this does not necessarily mean that the increased payments that would result from the judgment are a fair reflection of the costs faced by those affected, or represent a fair approach as between different groups of PIP claimants.”
I think it’s much less likely that the government’s decision to subvert the ruling of the upper tribunal reflects any consideration of a fair reflection of costs faced by those affected, or a “fair approach” between different groups of PIP claimants.
The purpose of Upper Tribunals
The government introduced the restrictive regulations after losing two cases at tribunals, showing an utter contempt for the UK judiciary system. However, the UK tribunal system is part of the national system of administrative justice.
Administrative law is the body of law that governs the activities of administrative agencies of government. It is designed to independently review the decisions of governments, and as such, it provides protection and promotion of fundamental rights and freedoms for citizens.
The Upper Tribunal is a superior court of record, giving it equivalent status to the High Court and it can both set precedents and can enforce its decisions (and those of the First-tier Tribunal) without the need to ask the High Court or the Court of Session to intervene. It is also the first (and only) tribunal to have the power of judicial review. (The Conservatives have a historical dislike of judicial review. See for example: The real “constitutional crisis” is Chris Grayling’s despotic tendencies and his undermining of the Rule of Law.)
The Tribunals, Courts and Enforcement Act 2007 created a new unified structure for tribunals and recognises legally qualified members of tribunals as members of the judiciary of the United Kingdom who are guaranteed continued judicial independence. This means that the judiciary is kept discrete from other branches of government. That is so that courts are not subjected to improper influence from the other branches of government, or from private or partisan interests.
Judicial Independence is vital and important to the idea of separation of powers. The intent behind this concept is to prevent the concentration of political power and provide for checks and balances. It has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. in the application of the European Convention on Human Rights in British law through the Human Rights Act 1998, which came into force in the UK in 2000.
The government’s new regulations are a particularly autocratic move, aimed at simply overturning two legal rulings that the government did not like, partly because their zealotry concerning their anti-welfarism and “small state” neoliberal ideology has been challenged. The regulations were ushered in and imposed so that they would not be subjected to parliamentary scrutiny and debate or democratic dialogue with disabled people or groups and organisations that support and advocate for those with disability.
Work and Pensions Secretary Damian Green
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