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

Baroness Thomas of Winchester Excerpts

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.