The Queen (on the application of Steven Sumpter) v Secretary of State for Works and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Patten,Lady Justice Gloster |
| Judgment Date | 15 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1033 |
| Date | 15 October 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/2640 |
[2015] EWCA Civ 1033
>IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT IN BIRMINGHAM
MR JUSTICE HICKINBOTTOM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice McCombe
and
Lady Justice Gloster
Case No: C1/2014/2640
Martin Westgate QC and Ben Chataway (instructed by Irwin Mitchell LLP) for the Appellant
Clive Sheldon QC and Nicholas Moss (instructed by Government Legal Department) for the Respondent
Hearing date: 14 and 15 July 2015
(A) Introduction
This is an appeal by Mr Steven Sumpter ("Mr Sumpter") from the order of 22 July 2014 of Hickinbottom J dismissing Mr Sumpter's application for judicial review against the Secretary of State for Work and Pensions ("the Respondent"). By the amended claim and supporting grounds Mr Sumpter claimed (so far as now relevant) (1) a declaration that the Social Security (Personal Independence Payment) Regulations 2013 were unlawful; (2) an order quashing the Secretary of State's decision of 21 October 2013 "refusing to amend the descriptors and points set listed in respect of Activity 12 in Part 3 of Schedule 1 of the Regulations"; (3) an order requiring the Respondent to "conduct a lawful consultation exercise and to make a further decision as to whether and how to amend the Regulations"; and (4) an order preventing the Respondent from serving written notification upon any person under regulation 3 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, inviting such person to make a claim for Personal Independence Payment ("PIP") "until such time as lawful regulations for the assessment of [PIP] have been put in place". There was also, before the judge, a claim to a declaration that the Respondent had failed to comply with the public sector equality duty imposed by section 149 of the Equality Act 2010; that claim is no longer pursued. By the Appellant's Notice issued on 11 August 2014, pursuant to which permission to appeal was granted by Vos LJ on 12 January 2015, Mr Sumpter did not pursue the claim to an injunction mentioned in (4) above. However, on inquiry of counsel for Mr Sumpter (Mr Westgate QC) at the hearing of the appeal as to the nature of relief sought, if the appeal were successful, counsel produced a note indicating that, in principle, such an order was still being sought.
The thrust of the claim made before the judge challenges the lawfulness of the consultation process conducted by the Respondent, both before and after the making of the Regulations.
The background facts of the case are fully set out in the judge's judgment [2014] EWHC 2434 (Admin), which I gratefully adopt, and of which that which immediately follows, in this section and in section (B) of this judgment, is a summary.
The claim arose out of the decision by the Government to replace the benefit, called Disability Living Allowance ("DLA"), which was provided to certain disabled people, with PIP. DLA had been introduced in 1992 by the Social Security Contribution and Benefits Act 1992. It was a non-means-tested, non-contributory benefit for those who had personal care and/or mobility difficulties as a result of physical or mental disability. Pending full introduction of PIP, DLA continues to be paid to a number of existing claimants, including Mr Sumpter. It had two components — the care component and the mobility component. The care component was designed to help with the additional costs of personal care, such as shopping and preparing meals. The mobility component helped with the additional costs to a disabled person in getting around in the course of his or her daily life. There were three rates of care payment and two of mobility payment. In the latter case, there was the higher rate (stated by the judge to be £56.75 per week) and the lower rate (so stated as £21.55 per week). The higher rate was awarded to those who were "virtually unable to walk" and it had come to be accepted (as we were informed by counsel, as a result of decisions before Commissioners and later in the Tribunals) that a claimant would usually satisfy this test if he or she was unable to walk more than 50 metres. Payment at this rate was sufficient to enable such a claimant to lease a "Motability" vehicle.
Mr Sumpter has disabilities which have hitherto entitled him to middle rate care component and higher rate mobility component payments under DLA. He is unable to walk more than 50 metres and he has a Motability vehicle. He is due to transfer from DLA to PIP in the near future.
The new benefit, PIP, is being phased in in stages and is due to be in full effect by 2017, with DLA being abolished for persons between the ages of 16 and 65 by that date. PIP is also made up of two components: the daily living component and the mobility component. This case is only concerned with the latter. This component, like the parallel components of DLA, has an enhanced rate and a standard rate. However, for the physically disabled (like Mr Sumpter), the criteria for payment of the enhanced rate impose a threshold condition that the claimant cannot walk more than 20 metres, rather than the 50 metre "rule of thumb" that had become the norm under DLA. While that "rule" was not (as such) statutory, it had become the understanding or lore in the field that 50 metres was the qualifying criterion. The judge noted that the letter awarding the benefit at enhanced rate to Mr Sumpter stated,
"You can walk
• less than 50 metres
• slowly
• in a poor manner
You are unable or virtually unable to walk, so you are entitled to the higher rate of mobility."
It is also the case that the 50 metre threshold appears in other analogous statutory or official contexts, for example in guidance from the Department for Transport as to the desirable minimum intervals between seating facilities in pedestrian areas.
(B) Replacement of DLA by PIP, the process and the challenge to the process
The proposed change from DLA to PIP was announced in the first budget of the last government. There was no legal obligation on the Respondent to engage in consultation about the proposal at all, but he decided to do so. The consultation was carried out in a number of stages, which I shall summarise, again with gratitude to the fuller account set out in the judge's judgment. The broad policy was stated in the first consultation document of 6 December 2010 in these terms:
"22. [PIP] 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."
23. "[DLA] has become confusing and complex. The rising caseload and expenditure is unsustainable, the benefit is not well understood and there is no process to check that awards remain correct. That is why the Government will reform DLA, to create a new benefit, [PIP], which is easier to understand, more efficient and will support disabled people who face the greatest challenges to remaining independent and leading full and active lives."
In paragraph 24 of his judgment, the judge summarised the expansion of these themes in the document. He referred to the Respondent's statements as to the perceived complexity of DLA, concerns for its sustainability, and the intention to focus resources on "those that need the greatest help to live independently". The judge referred to the two consultation questions posed at this stage which are pertinent for our purposes, namely:
" Question 6: How do we prioritise support to those people least able to live full and active lives? Which activities are most essential for everyday life?
Question 7: How can we best ensure that the new assessment appropriately takes account of variable and fluctuating conditions?"
In paragraph 14 of Chapter 2 of the document it was said that,
"The definitions currently used are subjective and reflect views of disability from the 1990s, not the modern day. For example, 'mobility' as currently defined concentrates on an individual's ability to walk, not their ability to get around more generally".
The consultation between December 2010 and February 2011 yielded 5,500 responses. An Assessment Development Group was set up to advise the Respondent on the development of assessment for PIP, including as to the activities and descriptors to be adopted and upon the impact of health conditions and impairments. This group included representatives from disability organisations.
The response to the consultation stated that the Government was committed to reducing expenditure on payment of the benefit to adults to 2009–10 levels, i.e. to £11.8 billion. It proposed that all awards would be subject to periodic reviews.
In relation to the two rates of mobility component, the response said this:
"28. At present, the higher and lower rates of the DLA mobility component are based on different criteria. With the exception of some automatic entitlements, higher rate mobility is generally awarded for physical health conditions or impairments, whereas lower rate mobility is linked to the need for supervision or guidance when outdoors. This means that...
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