courtesy dpac 21st December 2017
On the 21st of December, the High Court judge Mr Justice Mostyn allowed the claim in the case of RF v Secretary of State for Work and Pensions. The case was brought by a Disabled person with mental health support needs to challenge the changes the government made to Personal Independence Payment Regulations in March 2017[i].
These changes were urgently introduced to reverse the impact of the Upper Tribunal Judgement in the case of MH v Secretary of State for Work and Pensions (PIP):  UKUT 531[ii]
These changes prevent thousands of people who cannot plan and follow a journey due to psychological distress from qualifying for higher rates of this benefit or qualifying at all[iii].
The Public Law Project, who represented RF argued in court that the changes are discriminatory and unlawful, because they go against original policy intent of PIP[iv].
The court said today that the regulations were discriminatory, and they have been quashed but it won’t take affect until the court of appeal decides the government can appeal
Tracey Lazard, CEO of Inclusion London said:
“This is a hugely important case. It challenges the discriminatory way the government treats Disabled people with mental health support needs. The outcome can make a difference to thousands upon thousands of Disabled people. We have always believed that these changes are discriminatory and unfair and should have never been introduced. It is incomprehensible that the government pledges more support for people with mental health support needs and at the same time introduces, through the back door regulation changes that prevent many thousands of Disabled people with mental health support needs from qualifying for this essential benefit.
The government’s actions to change PIP regulations and single out people who cannot travel because of psychological distress are a brutal attack on the rights of Disabled people. Today’s case illustrates the lack of concern for Disabled people and the government’s inability to listen to us and engage with us. It is extremely worrying that many of us feel the legal action is the only way for us to get heard”.
Linda Burnip, co-founder of Disabled People Against Cuts said:
“We are pleased with the judgement today. It will make a huge difference for thousands of Disabled people with mental health support needs.
We have to remember that this challenge is taken in a context when the UN Committee on the Rights of Persons with Disabilities found systematic and grave violations of Disabled people’s rights a year ago. And again in August it called the situation Disabled people are in a ‘human catastrophe’. The UN specifically called on the Government to repeal changes to PIP regulations because they breach our human rights under the Convention”.
[i] Personal Independence Payment is a new benefit which replaced Disability Living Allowance for Disabled working-age claimants. The purpose of the benefit is to compensate for extra costs of disability. Eligibility for PIP is a points-based system where points are assigned to descriptors illustrating the difficulties person experiences in carrying out specific activities.
[ii] See the judgement here https://www.gov.uk/administrative-appeals-tribunal-decisions/mh-v-secretary-of-state-for-work-and-pensions-pip-2016-ukut-0531-aac
[iii] The Government’s own Equality Impact Assessment stated that changes will prevent 164000 people from current PIP caseload from qualifying, 143.000 of those people will be prevented from qualifying at all. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/593392/pip-assessment-criteria-equality-analysis.pdf
Inclusion London supported the case from the start and provided a witness statement.
[iv] Statements made by the Government prior to 2014 as well as the Government’s 2012 Response to the consultation on PIP clearly express the intention of PIP to assess need rather than make decisions on the basis of impairment labels.
Statement from PLP
Statutory Instrument Quashed by the High Court
2017 Personal Independence Payment Regulations are Discriminatory
The High Court has found that part of the rules governing Personal Independence Payments are unlawfully discriminatory against people with mental health impairments. The Public Law Project’s client, RF, won on all three grounds of her challenge (RF v Secretary of State for Work and Pensions). The judge quashed the 2017 Personal Independence Payment (PIP) Regulations because they discriminate against those with disabilities in breach of Human Rights Act 1998 obligations. Because they were discriminatory, the judge also found that the Secretary of State did not have lawful power to make the Regulations (i.e. they were “ultra vires”), and that he should have consulted before making them, because they went against the very purpose of what PIP regime sought to achieve.
The judge heard that the Regulations were laid by negative resolution in February 2017, received relatively little parliamentary attention, and were rushed through the parliamentary process by the Secretary of State without prior reference to checks by relevant committees. Contrary to the Secretary of State’s defence, the judge found that the decision to introduce the Regulations was ‘manifestly without reasonable foundation’ and commented that the wish to save money could not justify such an unreasonable measure.
During the course of the trial, the Secretary of State accepted that the testing carried out for PIP had not looked at whether the basis for treating those with psychological distress differently was sound or not, and the testing actually done was limited.
RF’s claim was supported by The National Autistic Society, Inclusion London, Revolving Doors and Disability Rights UK. All of those organisations gave statements to the court that the Regulations were unfair and that the intention to treat those with psychological distress differently had not been made clear in the early PIP consultation stages. The claim was also supported by two interveners: Mind and the Equality and Human Rights Commission (EHRC). The EHRC made written submissions to the Court on the ongoing and persistent breaches by the UK Government of its obligations under UN Convention on Rights of Persons with Disabilities arising from its austerity measures. The Judge found that this inconsistency with the UN Convention supported his finding that the measure had no objective justification.
RF commented: “This judgment is important for a community of people with mental health problems fighting for their lives against discrimination.”
Note to Editors:
The case was previously known as SM and RF, but is now known as RF v Secretary of State for Department of Work and Pensions. There is an anonymity order in place protecting SM and RF.
The Government intends to appeal the decision. The Regulations will not be quashed until the Court of Appeal decides whether or not the appeal should proceed. RF is anticipating a decision on this in early 2018.
A digital version of the decision will be available shortly here: https://www.judiciary.gov.uk/judgments/.