Steven Sumpter v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWHC 2434 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3843/2013 |
| Date | 22 July 2014 |
[2014] EWHC 2434 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/3843/2013
The Queen on the application of
Martin Westgate QC and Ben Chataway (instructed by Public Law Solicitors) for the Claimant
Clive Sheldon QC and Nicholas Moss (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 9–10 July 2014
Introduction
A disabled person who satisfies various statutory criteria is entitled to Disability Living Allowance ("DLA"), a single welfare benefit with two components – the care component and the mobility component. The care component is designed to help with the additional costs of daily living activities, such as personal care, shopping and preparing meals. The mobility component helps with additional costs of getting around. Different rates are payable depending on the severity of the impact of the person's disability. For the care component, there are three rates. For the mobility component, there are two: the higher rate (currently £56.75 per week) and the lower rate (£21.55 per week). The higher rate is awarded to claimants who are "virtually unable to walk"; and, although there are various criteria by which this is measured, generally a claimant will satisfy that test if he is unable to walk more than 50m, unaided or using only manual aids or appliances. The higher rate mobility component is sufficient to lease a Motability vehicle.
The Claimant has post-viral syndrome. As a result, he cannot walk more than 50m, and he is in receipt of DLA middle rate care component and higher rate mobility component. He has a Motability vehicle.
The Government intend to replace DLA with a new benefit, Personal Independence Payment ("PIP"), which is being phased in. Some disabled people are already in receipt of it, rather than DLA. PIP is due to be in full effect, and DLA consequently abolished as a benefit for people aged 16 to 65, by 2017. The new benefit also has two components, the daily living component and the mobility component. We are concerned with only the latter. Again, it has two rates: the enhanced rate and the standard rate which, in monetary terms, are the same as DLA mobility higher and lower rates respectively. For the physically disabled, the criteria impose a threshold condition for the enhanced rate that the claimant cannot walk more than 20m, rather than the 50m usually adopted under DLA.
The Claimant is due to be transposed from DLA to PIP in 2016. He is concerned that, under the new regime, he may be found not to satisfy the 20m walking criterion, and thus lose his higher/enhanced rate mobility component and, with it, his Motability vehicle. He fears a consequent loss of independence, and that his quality of life will be impaired.
In these proceedings he challenges the Secretary of State's decisions to adopt and maintain the 20m PIP enhanced mobility rate criterion, and the Regulations into which it has been incorporated.
This court is of course not concerned with the substance or merits of the decision: how public money is distributed in welfare benefits is a matter for the Secretary of State and Parliament to which he is responsible. This court is only concerned with the lawfulness of the decision, focused on the process adopted.
The Claimant contends that, in adopting the 20m criterion, the Regulations are unlawful because the consultation that was part of the process that led to it being adopted and retained was flawed, and because the Secretary of State failed to comply with his public sector equality duty under the Equality Act 2010.
Before me, Martin Westgate QC with Ben Chataway appeared for the Claimant, and Clive Sheldon QC with Nicholas Moss for the Secretary of State. At the outset, I thank them for their particularly helpful submissions.
Disability Living Allowance
Mobility assistance for the physically disabled was introduced by the Government after the Second World War, through the provision of specially adapted three-wheeled cars which were leased to disabled drivers. In 1976, Mobility Allowance was introduced to provide financial assistance for the disabled in getting about, irrespective of whether or not they could drive, as a benefit additional to Attendance Allowance which had been introduced in 1971 to assist disabled people with the additional costs of personal care. For those who could drive or benefit from the use of a car, practical assistance in obtaining their own vehicle was provided through the setting up of Motability, an independent charity established by Royal Charter in 1977 at the Government's request, which enabled Mobility Allowance claimants to use their benefit to secure a vehicle – a car, scooter or powered wheelchair – on beneficial terms, and provided assistance with the cost of adaptations for severely disabled drivers.
DLA was introduced in 1992 by the Social Security Contribution and Benefits Act 1992 ("the 1992 Act"), as a non-means-tested, non-contributory benefit for those who have personal care and/or mobility needs as a result of physical or mental disability. As I have described, it has two components – the care component replaced Attendance Allowance, and the mobility component replaced Mobility Allowance.
The qualifying criteria for each of the two mobility component rates are set out in section 73 of the 1992 Act. By section 73(1)(a) and (11), where the claimant is "suffering from physical disablement such that he is either unable to walk or virtually unable to do so", he is entitled to the higher rate, as are claimants with particular identified conditions (e.g. those who are both blind and deaf: section 73(1)(b), (2) and (11)). The higher rate is also available to those who are severely mentally impaired who display severe behavioural problems and who satisfy various care component criteria (section 73(1)(c), (3) and (11)); but the criteria are such that very few claimants meet them. However, by section 73(1)(d) and (11), a claimant who is "able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him or her, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time" is entitled to the lower rate. Therefore, broadly, those who are unable or virtually unable to walk because of physical disability are entitled to higher rate mobility; and those who are unable to move about out of doors without assistance because of non-physical disability are entitled to lower rate mobility.
Entitlement to the mobility component, and in particular the scope of "unable to walk or virtually unable to do so", is also dealt with in Part IV of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991 No 2890), made under the 1992 Act. Regulation 12 provides (so far as relevant to this claim):
"(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances –
(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment–
(i) he is unable to walk; or
(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or
(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or
(b) he has both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs to the same extent as if it, or they, had been so amputated.
…
(4) Except in a case to which paragraph(1)(b) applies, a person is to be taken not to satisfy the conditions mentioned in section 73(1)(a) of the Act if he –
(a) is not able to or virtually unable to walk with a prosthesis or artificial aid which he habitually wears or uses;
(b) would not be unable or virtually unable to walk if he wore and or used a prosthesis or an artificial aid which is suitable in his case".
Thus, by regulation 4, in assessing ability to walk, the claimant is taken as using aids or appliances that would assist him.
This claim particularly focuses on regulation 12(1)(a)(ii), which defines "unable to walk or virtually unable to do so" in terms of four characteristics: distance, time, speed and manner of walking out of doors. The Social Security Commissioners and Upper Tribunal Judges (who replaced the Commissioners upon the coming into effect of the Tribunals, Courts and Enforcement Act 2007), the judges charged with considering second-tier appeals on points of law from claimants whose applications for DLA have been refused, have repeatedly emphasised that whether a claimant is unable or virtually unable to walk for the purposes of DLA is essentially a matter of fact which must be determined by a decision-maker for the Secretary of State and, on appeal, by the first-tier tribunal by reference to those four criteria: see, e.g., CDLA/4388/1999 at paragraph 4, per Commissioner Rowland. In that determination, Commissioner Rowland...
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