Social Security (Personal Independence Payment) (Amendment) Regulations 2017

Debate between Lord Low of Dalston and Baroness Thomas of Winchester

Monday 27th March 2017 Lords Chamber

[Baroness Thomas of Winchester (LD)]

My Lords, Winchester is well represented this evening. PIP’s broad design flows from the Welfare Reform Act 2012. From the beginning it was intended not just to reset the DLA thresholds to determine who gets what but to decrease the overall expenditure on benefits by attempting to target them more effectively than DLA, and specifically to give more weight to mental health problems.

The department said that of those with mental health conditions receiving the mobility component of DLA, only 9% had been entitled to the higher rate, whereas 27% of PIP claimants receive the enhanced mobility rate—or 28%, according to the Minister’s letter this morning. The Government’s own consultee, the SSAC, asked the pertinent question: so what impairments do these 27% have? Are they a combination of physical and mental impairments? The department evaded the question, saying that perhaps 27% was “somewhat imprecise”. We do not know what is going to happen to claimants who may be reassessed quite soon, but we do know that the new regulations undermine the welcome support PIP can give to those with mental health problems, and I urge the Government to withdraw them for further consideration.

That is not the only reason I think the regulations should not be proceeded with. I hope other Members of the House will be as uneasy as I am at the Government immediately reaching for the statute book in order to negate a very careful decision of the Upper Tribunal. Ministers say they are restoring the original intention of the relevant descriptor regarding planning and following a journey, and insist that the legislation is clear, but they gloss over the fact that the Secretary of State said in the case of HL in December 2015 that,

“overwhelming psychological distress could depending on its nature, frequency, duration and severity make a person unable to navigate and so to fulfil the terms of descriptors 1d and 1f”.

Descriptor 1f gives the higher rate. We are now told that the Secretary of State made a mistake and had to explain to the court that a concession had erroneously been made. This is all very unsatisfactory and leaves a particularly bad taste in the mouth. Whose hand is round the Secretary of State’s throat? What he said sounds to me to be exactly what the original policy intention was. Why do the Government not come clean and say that they are changing the policy for enhanced rate mobility by not allowing psychological distress to be taken into consideration?

Why the indecent haste in changing the law? As the Secretary of State is appealing the Upper Tribunal’s decision, he could have used other powers he has to prevent the decision of the Upper Tribunal having immediate legal effect by giving directions to decision-makers and courts about how the descriptors should be interpreted. Why not wait for that outcome? The timescale is curious. If he was going to wait three months from the judgment, why not use that time to consult properly? The impact assessment estimates that 71,500 claimants in the current caseload will go from standard rate PIP to nil, the same number from enhanced rate to nil and 21,000 from enhanced rate to standard, so 143,000 claimants with an enduring health condition are estimated to lose the benefit altogether. The disorders likely to be affected, according to the DWP, range from schizophrenia and autism to bipolar affective disorder and cognitive disorder. So much for parity of esteem between physical and mental health.

There is another aspect which must be considered. The Secretary of State is keen to say that no one already getting an award under the old regulations will lose it, presumably meaning that no one will have the money clawed back, but some awards are only for a year before another assessment is demanded. Thousands of claimants are in this position. The new assessment will presumably be under the new rules, meaning that many existing beneficiaries of standard or enhanced rate mobility will lose all entitlement.

I accept that the reason the Secretary of State is making this change is not to make even more savings than have already been announced, but is it fair to tear up the carefully constructed mobility descriptors and the Upper Tribunal’s carefully explained judgment with such haste and without proper consultation? Is it not yet another tightening of the screw around the whole independent living project, which is assailed on every side? These regulations should be set aside to await proper consultation.

I shall end with a word about voting on SIs. I am particularly addressing my friends and colleagues on the Labour Benches. I shall quote from the 2005 Cunningham report Conventions of the UK Parliament, which the noble Baroness, Lady Sherlock, dismissed:

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree. It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way, (b) the Government can bring the SI forward again immediately, with or without substantive amendment”.


We should have the courage of our convictions and vote to annul these regulations.

[Lord Low of Dalston]

My Lords, I declare my interest as a recipient of disability living allowance, the precursor to the personal independence payment. I therefore have an interest in this type of benefit. Two simple and basic points make the case against these regulations, open and shut.

First, this is a clear breach of faith with the disability community. Back in 2012, when PIP was first introduced, Mind and other mental health charities raised concerns that people with mental health problems would be able to score points only under the criterion which used the words “psychological distress”. The Government gave reassurances that that was not the case and that people with mental health problems could potentially score points under a range of criteria if their condition meant that they struggled to plan and follow a journey. On this basis, PIP was welcomed by the mental health and wider disabilities sector, because for the first time people with mental health problems felt they would be given access to disability support equal to that of people with physical disabilities.

The Government made clear commitments that people who experienced psychological distress would be eligible under the very criterion that is now being changed. These commitments were underlined in statements by Ministers in debates on the Welfare Reform Bill at the time—the noble Baroness, Lady Bakewell, has quoted the statements by Maria Miller and Esther McVey, so I do not need to repeat them. However, in practice, the DWP has not deemed people who experience psychological distress eligible for the full range of points, regardless of how severely that distress affects them. This has meant that 164,000 people have received a lower rate than they were entitled to.

This is the origin of the two cases which came before the Upper Tribunal at the end of 2016. The tribunal’s rulings did not extend the scope of PIP, as the Government suggest, but clarified it. That is what tribunals do: they do not make the law; they clarify what the law is. It is the Government who are now seeking to restrict the scope of PIP from what it has always been understood to be by removing psychological distress from criterion 1f as a reason for not being able to follow a familiar route without assistance, so that a claimant can only be awarded four points under mobility descriptor 1b. The regulations are in clear breach, if not of a manifesto commitment on this occasion, then certainly of pledges given to those with mental health problems in 2012. This change to the eligibility criteria also flies in the face of the statement in the Work, Health and Disability: Improving Lives Green Paper that the Government will not seek to make any further cuts to disability benefits following the already controversial cuts for those receiving employment support allowance in the WRAG, for new claimants from 1 April this year.

My second point can be made even more briefly: the proposed changes would create a legal distinction between those with mental health problems and those with other kinds of impairment when it comes to benefit assessments, a distinction which flies in the face of the Government’s commitment to parity of treatment for people with mental health conditions. The Government have said that a person with a cognitive impairment alone will still be eligible for the highest mobility rate, but the term “cognitive impairment” far from covers the full range of people with mental health problems.

I believe these regulations are trying to move the goalposts by excluding people who experience psychological distress from eligibility for the higher number of points necessary for the higher rate of mobility component. In doing so, they effectively discriminate against people with mental health problems. This is clearly against the original intention of PIP and runs counter to the commitment the Government made to people with mental health problems—that they would be assessed in the same way as other disabled people. I support the Motions before us this evening to oppose these regulations and if the noble Baroness, Lady Bakewell, moves for a vote, I will support hers.

Personal Independence Payment: Mobility Criterion

Debate between Lord Low of Dalston and Baroness Thomas of Winchester

Wednesday 4th May 2016 Lords Chamber

[Baroness Thomas of Winchester (LD)]

My Lords, in moving this Motion I must first declare that I have a Motability car as a result of having higher-rate mobility and disability living allowance. As I am over 65, I will not be reassessed for personal independence payments. That is probably the reason why I am so keen to try to persuade the Government to hold urgent talks about the “moving around” part of the PIP assessment, because I am particularly concerned about the reassessment process for all those working-age disabled claimants who at present receive higher-rate mobility DLA and are thus entitled to a Motability car but who are now facing reassessment for PIP. Here I should make it clear that I am not talking about the care component to PIP, which was the subject of the recent climb-down by the Government over the Budget. Tabling a Motion is an unusual course to take, but I assure the House that there is nothing fatal about it. However, if it were to be agreed, it would send a powerful message that this House is very concerned about this particular government policy and is taking a constructive approach to seeing what can be done to help the situation.

Why am I so concerned about the “Moving around” section? Because the relevant walking distance test for PIP has been made much harder than the DLA test, meaning that by the Government’s own estimate the number of people on enhanced or higher-rate mobility will go down from around 1 million people to 600,000 by 2018. Some 400 to 500 Motability cars a week are now being handed back by disabled claimants whose condition may not have improved but who are losing not just their car but, in many cases, their independence. Under DLA, the walking distance was 50 metres, which was in the Department for Transport guidance on inclusive mobility. The new distance of 20 metres is just under two London bus lengths, and is unrecognised in any other setting. There is no evidence that it is a sensible distance for the test, and it is not used anywhere else by the Government.

So someone with a walking frame, say, who can just about manage 20 to 30 metres, will not usually qualify for PIP. I see the Minister even now sharpening her pencil to make a note reminding her to tell me that this is a travesty of the truth. No, I have not forgotten the reliability criteria, which were made statutory in the last Parliament—thanks, in fact, to the intervention of the Liberal Democrats. The full reliability criteria in the PIP guidance are that 20 metres must be able to be walked,

“safely … to an acceptable standard …repeatedly … and … in a reasonable time period”.

Claimants, we are assured, must be asked about these criteria during an assessment. But are we quite sure that they are asked on every occasion? Are claimants taken outside the assessment centre, and does the assessor watch while they do the walking test?

How the questions are asked is likely to have a significant impact. If someone said to me, “Could you walk this distance, not too slowly, even if the pavement was very uneven”—as they all are in London—“and crowded, and there was a gusty wind or perhaps rain? What about crossing the road, which might not have a dropped kerb except at the very end, which would be further away than 20 metres? Could you walk this distance more than once a day if you had to—say, to a local shop or pharmacy and back, or to a bus stop, which would almost certainly be more than 20 metres away? And in the dark?”. My answer would be no. However, if the criteria were mentioned quickly, with the assessor looking down and ready to tick a box on the relevant form, then I might not quite take them in. I also wonder whether every claimant actually knows what distance 20 metres is unless it is demonstrated. I have heard about walking tests being done by claimants inside the assessment centre, but that is not the right test.

In an ideal world, at the assessment all claimants would have a report from a healthcare professional setting out their mobility problems, but I gather that that is not mandatory because in many cases such reports, particularly if they come from GPs, cost the claimant money. The amount varies enormously, but even in 2013 the BMA suggested that £90 was not an unreasonable amount. It is likely that, in time, a person’s medical records may be able to be accessed online, but that is not the case at present. It is only during the tribunal appeal process—not even the mandatory reconsideration—that the DWP will pay for a medical report. This whole area could be explored in the talks that I am calling for, because there are other healthcare professionals who do not charge for their reports. We are told that claimants often produce more evidence at the appeal stage, so why not try to improve this part of the process before that stage?

Why did the Government shorten the walking distance so arbitrarily and drastically? Almost certainly, it was to wipe the slate clean before the tribunal judgments in order to save the money that the Treasury was demanding. After all, who would notice except disabled people themselves? The Government’s excuse would be that the test had changed so the money would now go only to “those most in need”. That is a very worthy-sounding phrase, but it really does not mean very much unless it is qualified. Perhaps disabled people in rural areas, where public transport is scarce, are most in need of their own transport. Perhaps disabled parents with young children are most in need of their own wheels, or those who need a large car because they have most to carry in them, such as a supply of oxygen, walking aids or even toilet equipment. Just to recap, under PIP, if a person can walk more than 20 metres, aided or unaided, they usually will not qualify for the enhanced rate mobility component and thus a Motability vehicle.

How did Parliament allow this change in the assessment rule without challenging it? The answer is that the Government changed the distance at the very last minute without consulting on it. They then realised that no consultation on a crucial rule meant a judicial review, so they consulted in the summer of 2013. They received more than 1,000 responses, almost all saying that the 20-metre walking test was manifestly unfair, not to say meaningless, and that a longer distance should be used. The Government took absolutely no notice, using the excuse that, because there was no unanimity on what the right distance should be, they were going to stick with 20 metres. In other words, the consultation was a complete sham and the Government’s response unbelievably weak.

PIP was fraught with problems for new claimants. It was initially delayed for months, and then reassessments were delayed for months and months but they finally got going last year and are resulting, as was predicted, in hundreds of cars being handed back. Motability has done what it can to mitigate the situation, but it is the Government’s responsibility to make the assessment as fair as possible. If it is fair now, why are there so many successful appeals? Sixty per cent is the figure I have. Appeals, it must be pointed out, can be held several months after a car has been handed back and are quite expensive, costing over £200 each. It surely cannot be right for the Government to rely on appeals to bring some fairness into the situation.

I will now look briefly at just three of the other arguments that the Minister will use. First, I will be told that there is now a better balance between those with mental health problems and those with mobility problems. That is good, but there should not be a trade-off between these two groups. Is that what happens in the NHS? Parity of esteem should mean just that. I will also be told that there are more Motability cars on the road than ever before because a slightly higher percentage of PIP assessments are successful compared with those for DLA. However, the true picture will not emerge until all the reassessments are done, when it is estimated that the number of Motability cars by 2018 will be down to 602,000. Thirdly, I will be reassured that the Access to Work programme can take care of disabled people who lose their Motability car, which they need to get to work. However, it will not help those who need a car to get to a further education college for training or to university, or for volunteering or hospital appointments, or even to visit family and friends at the weekend.

As for the assessors, when one young claimant with cerebral palsy asked why she had to be tested again, she was told by her assessor that there might have been medical advances. The claimant said, “There’s no cure for cerebral palsy. I’m never going to get any better. I’ve been on a lifetime award since I was a teenager, and now someone who has never met me can take that away”. This was not just an isolated example of an uninformed assessor. Someone with muscular dystrophy, a progressive condition, was told by an assessor to get better soon. Many with this and other progressive conditions such as MS and Parkinson’s, with lifetime awards of DLA, are falling foul of this particular part of the PIP assessment. Here, again, the quality and training of assessors is another important issue for talks. It was the last thing that the late and much-lamented Lord Walton of Detchant asked about on 7 March as a supplementary to my Oral Question on that day.

To sum up, to be told that the bill for PIP is too high and must be cut by more than halving the walking distance test is a real slap in the face for thousands of disabled people, particularly those of working age with lifetime awards under DLA. Of course the bill is going up—because the disabled population is going up. The Government must have factored that into their calculations years ago. The last thing that anyone wants is for more and more disabled people to become socially isolated and totally reliant on other services for everything they need. A great deal of money could actually be saved by other government departments, such as health, social services, employment and transport, by making the PIP walking distance fairer. I beg to move.

[Lord Low of Dalston (CB)]

My Lords, the noble Baroness, Lady Thomas, has made an excellent case and I support it. I should declare as an interest that I have an award of disability living allowance, but it is not an interest that I have to defend because it is a lifetime award; and, since I, too, am over 65, I am not subject to reassessment. My only interest in this debate is that I wish everybody else to be able to have the same.

I want to make five points, which I think will add to what the noble Baroness said in her excellent speech. First, as I understand it, 548,000 disabled people will lose out as a result of the revision in the criteria for DLA and PIP. They are set to lose £35.65 a week as a result of this change, which is a considerable amount.

Secondly, Motability has reported that to date 45% of scheme users—over 13,000—who have been reassessed from DLA have lost their Motability car. That can have a dramatic impact on people’s employment. I heard somebody on the radio say that they would not be able to continue to work, but this does not just affect isolated individuals. Of Motability customers surveyed in 2010 who were not currently retired, permanently unable to work or in full-time education, 39% said that their Motability car had enabled them to gain employment, get better employment or maintain their current employment. A Multiple Sclerosis Society survey found that 20% of those surveyed agreed that it enabled them to stay in their job, whereas, without a Motability car, they would not have been able to do so. Making a change that means that people who need a Motability car to go to work lose their car flies in the face of the Government’s welfare-to-work agenda and their aim to halve the disability employment gap.

My third point is that the 50-metre threshold, to which the noble Baroness, Lady Thomas, would like to see us return, is a well-established and research-based measure of significant mobility impairment. It has been used for the last 35 years, notably in relation to other disability benefits, including DLA itself, the blue badge or disabled persons’ parking scheme, and in official guidance on creating an accessible built environment. The 20-metre threshold to which retreat is being sought is completely arbitrary and has no basis in established usage.

Welfare Reform Bill

Debate between Lord Low of Dalston and Baroness Thomas of Winchester

Wednesday 16th November 2011 Grand Committee

[Lord Low of Dalston]

I particularly support the idea of a trial period before incurring huge public expenditure in reassessing 2 million disabled people, many of whom really do not need it, for example, if their circumstances are unlikely to change. Where there is written evidence of severe impairments, it is simply common sense to accept that evidence and avoid putting people through costly and potentially distressing face-to-face interviews. Setting out criteria that would signal eligibility for PIP without an interview is an administratively simple way to indentify those who have severe impairments that have already been assessed through written evidence as giving rise to a higher level care or mobility need.

The Government have said that they do not think it is right that we should judge people purely on the type of health condition or impairment they have, making blanket decisions about benefit entitlement. One can understand their desire to personalise the assessment process when the impact of an impairment may not be clear. However, it is obvious that in some cases the impact is clear from written evidence and beyond dispute in terms of its implications for the rate of PIP that should be awarded. For some groups of people it is perfectly clear from the severity of their impairment that they should be eligible for enhanced rates of PIP without further assessment. For example, if someone is deafblind, a face-to-face interview to establish that they have mobility needs of the highest level is barmy. If someone has no sight at all or no legs, no further assessment is needed to confirm that they have a high level of mobility need. In cases such as these, a face-to-face interview is simply a waste of money. In addition to avoiding unnecessary stress for severely disabled people, this amendment would save money for the taxpayer. It feels pretty much like a no-brainer to me.

[Baroness Thomas of Winchester]

My Lords, I strongly support this amendment and perhaps I might read it out, because it is a long time since we first started talking about it. It would insert:

“including a requirement for the decision maker to collect evidence from the claimant’s own health care professionals as a part of the decision making process”.

There is a strong suspicion that this is not always done. The only thing that I would quibble with in that amendment is that not only does the decision-maker have to collect evidence, it has to be taken into account when the decision-making process is gone into.

My question for my noble friend is about a sentence that I found in one of the documents we were given—I cannot now remember which one it is. It says:

“Decision Makers will change erroneous decisions rather than send them to a Tribunal”.

The next sentence says:

“If a claimant’s points at issue are not resolved, they can still appeal to the HM Courts & Tribunals Service”.

I had to go to a tribunal having had my papers re-examined, presumably by a decision- maker. What will change about the process now with PIP? I am not quite sure, reading between the lines, what the two sentences that I have read out mean. Are things going to change from now, or not?

--- Later in debate ---

[Lord Low of Dalston]

Before the Minister concludes, I am sorry if I was not paying attention, but I did not hear him respond to the points made about our amendment about cases where the written evidence was clear and unambiguous, where there were very high levels of need which, the nature of the impairment made clear, were unlikely to change. I heard the Minister say that the assessment process would be implemented with flexibility, but my impression was that the avoidance of a reassessment would be a pretty exceptional situation. Those of us who support Amendment 86ZB believe that cases where people's circumstances are unlikely to change and their high levels of need have been unambiguously and unequivocally evidenced are not isolated exceptions. That is a widespread and general circumstance. Can the Minister respond a bit more positively on that?

[Baroness Thomas of Winchester]

Will the Minister also respond to my question, when I asked whether the sentence:

“Decision Makers will change erroneous decisions rather than send them to a Tribunal”

is a change from the present system?