RF v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] EWHC 3375 (Admin) |
| Docket Number | Case No: CO/2496/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2017 |
and
and
[2017] EWHC 3375 (Admin)
Mr Justice Mostyn
Case No: CO/2496/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Westgate QC and Alison Pickup (instructed by Public Law Project) for the Claimant
James Eadie QC and Joanne Clement (instructed by GLD) for the Defendant
Tom Royston (instructed by Mind Legal) for the 1 st Intervener
Caoilfhionn Gallagher QC made written submissions for the 2 nd Intervener
Hearing dates: 12 & 13 December 2017
Judgment Approved
In these judicial review proceedings, the claimant seeks that para 2(4) of the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 (SI 2017 No. 194) should be quashed. She is supported by the first and second interveners. It is not disputed that she has standing to bring this claim. However, as Mr Eadie QC rightly stated, her individual circumstances do not add anything to the issue of principle which I have to decide.
Para 2(4) provides:
“In the table in Part 3 (mobility activities), in relation to activity 1 (planning and following journeys), in descriptors c, d and f, for “Cannot” substitute “For reasons other than psychological distress, cannot.”
These regulations were made on 22 February 2017, laid before Parliament on 23 February 2017, and came into effect on 16 March 2017. They went through under the negative resolution procedure.
The “table in part 3” is the table in part 3 of schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (S.I. 2013 No.377). Descriptors c, d and f in that table would now read (with the amendment underlined by me):
c. For reasons other than psychological distress, cannot plan the route of a journey.
d. For reasons other than psychological distress, cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.
f. For reasons other than psychological distress, cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.
The parties and the interveners understand perfectly well the statutory architecture within which this amendment was made, as well as the relevant legislative history. If there were to be an appeal from my decision then no doubt that would be fully laid out for the higher court. However, so that the neutral reader can make sense of this judgment, it is necessary for me to set out the background. A full account of the scheme and its gestational history is set out in the decision of the Upper Tribunal in MH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 0531 (AAC).
In December 2010, the new coalition Government launched a consultation on the reform of Disability Living Allowance (DLA) (Cm 7984). The ministerial foreword stated:
“We are steadfast in our support for the principles of DLA, as a non-means-tested cash benefit contributing to the extra costs incurred by disabled people. However, we need to ensure that the benefit reflects the needs of disabled people today, rather than in the 1990s. It is time that we had a disability benefit which is easier for individuals to understand and provides clear criteria and consistent awards.
This is why I want to replace DLA with a new benefit – Personal Independence Payment. This is our opportunity to improve the support for disabled people and better enable them to lead full, active and independent lives. Personal Independence Payment will maintain the key principles of DLA, providing cash support to help overcome the barriers which prevent disabled people from participating fully in everyday life, but it will be delivered in a fairer, more consistent and sustainable manner. It is only right that support should be targeted at those disabled people who face the greatest challenges to leading independent lives. This reform will enable that support, along with a clearer, more straightforward assessment process.
Personal Independence Payment will also be a more dynamic benefit – it will take account of changes in individual circumstances and the impact of disabilities, as well as wider changes in society, such as social attitudes and equality legislation.”
Para 15 of chapter 2 of the consultation document stated:
“… we intend to consider individuals' ability to carry out a range of activities key to everyday life, including some related to a broader definition of mobility. Those least able to do so will be awarded the greatest support in the new benefit. There is some evidence to suggest that individuals whose impairments have the greatest impact are likely to experience higher costs. The new assessment will therefore allow us to prioritise support to individuals who face the greatest challenges and expense. As we implement the new assessment we will assess the extent to which it accurately meets these aims.”
And Chapter 4, table 2, stated:
“By definition, all people affected will be in receipt of Disability Living Allowance (DLA), the vast majority of whom will also be defined as disabled according to the Disability Discrimination Act ( DDA) definition. Proposals to replace DLA with a new benefit that is better focused on helping disabled people to lead independent lives provide an opportunity to promote equality of opportunity to those least likely to live full and active lives. It is likely that some disabled people with lesser barriers to leading independent lives will receive reduced support, but this has been justified by the policy aim to focus support on those with greatest needs”
Thus, the dominant set of ideals or beliefs underpinning the reform, indeed its very core objective, was that the focus would be on the impact of the impairment. Now, the analysis would be on effect, not cause. The relevant question for the decision-maker would be “ what?” not “ why?”
There was no hint in the document that the government held the view that those whose inability to perform a given mobility activity arose from psychological distress in fact had a lesser need than those whose identical inability arose for some other reason. Let alone that such a view would be incorporated into the new assessment system with the result that such claimants would receive either reduced or nil awards of the new benefit. Unsurprisingly, given that it was unstated, none of the consultees addressed this view.
In April 2011, the Government published its response to the consultation (Cm 8051). At para 15 on page 4 it proposed:
“There will be two components of Personal Independence Payment; a daily living component and a mobility component, each with a standard and enhanced rate.”
In this document, again, there was not the slightest hint of the view which I have mentioned above. On the contrary, the text clearly drew no distinction between various incapable claimants. This was entirely consistent with the core ideals underpinning the reform. At para 40 on page 23 it was stated:
“We are developing the assessment for Personal Independence Payment to enable support to be targeted at individuals who require the most assistance to live full, active and independent lives. As part of this, we want it to reflect a more complete and structured consideration of the impact of an individual's health condition or impairment, whether physical or mental, on everyday activities. The detail of the assessment is being developed in collaboration with a group of independent specialists in health, social care and disability, including disabled people themselves”
And at para 41:
“It would not be practical to consider all everyday activities, so we propose that the assessment should focus on those key everyday activities which are essential to enabling participation and independence. It is positive that the activities we are proposing featured strongly in the consultation responses, both from individuals and from organisations. The assessment will consider an individual's ability to carry out all of the activities, although some activities will relate to the daily living component and others to the mobility component. At this stage, we believe that the activities should be:
Daily living component …
Mobility component
— planning and following a journey
— moving around.”
Nothing was said that gave an indication that it was the Government's view and intention that assessment of an individual's inability to carry out the activity of “planning and following a journey” would and should be less if it arose from psychological distress, as opposed to something else.
In May 2011, the Government published its initial draft of the assessment regulations together with a technical note. Here, the shape of the scheme emerged more clearly. As had been anticipated, the relevant activities (named “descriptors”), whether of daily living or of mobility, would, if proved to the satisfaction of the decision-maker, be awarded points. You would need a certain number of points to get a standard award, and more still to get an enhanced one. At this stage, the draft did not advance the proposed points to be awarded or the entitlement thresholds for the awards. These were left blank.
The draft fleshed out the mobility descriptors in schedule 2 of the proposed regulations. For “planning and following a journey” (which is all I am concerned with here) they were listed and described as follows:
“a. Can plan and follow a complex journey unaided.
b. Cannot follow any journey alone due to such a journey causing overwhelming psychological distress to the claimant.
c. Can follow a complex journey only (i) if the journey has been planned by another person; or (ii) with the continual prompting or intermittent...
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