The judicial review was brought by disabled activist and blogger Steven Sumpter.
Sumpter, who can only walk a few metres with a stick, and otherwise uses a wheelchair, was assessed last year as eligible for the higher rate mobility component of disability living allowance (DLA), and uses that to lease a car through the Motability scheme.
He fears he will lose his higher rate entitlement when he is transferred to the new personal independence payment (PIP) and will have to return his car to Motability, drastically curtailing his independence.
Under DLA, someone is eligible for the higher mobility rate if they cannot walk more than 50 metres, but under the new rules for PIP – which is gradually replacing working-age DLA – this walking distance criteria has been set at just 20 metres.
The Department for Work and Pensions (DWP) consulted on PIP in 2012 but did not mention its plans to cut the criteria from 50 metres to 20 metres until after the consultation had closed.
The judge, Mr Justice Hickinbottom, suggested that had the consultation process stopped at this point, he would probably have found it unfair and unlawful.
But after Sumpter’s judicial review was issued, the Conservative disabled people’s minister Esther McVey – since replaced by Mike Penning and now Mark Harper – was forced to carry out a second consultation, which was limited to just looking at the change to 20 metres.
When Penning published his response to the consultation, he made it clear that the walking distance criteria would remain at 20 metres.
The judge concluded this week that the overall process had been lawful, even though only five individuals out of the 1,142 organisations and individuals who took part in the second consultation agreed with the government that the walking distance criteria should be set at 20 metres.
Government figures predict that, with the criteria set at 20 metres, the number of people receiving higher rates of mobility support – and therefore eligible for a Motability vehicle – would plunge from 1,030,000 (if DLA had not been replaced by PIP) to just 602,000 by 2018.
They also predict that 548,000 of the 892,000 working-age people who were receiving the higher rate of the DLA mobility component in February 2013 will not receive the enhanced mobility rate of PIP once they are transferred to the new benefit.
The court also heard that a report for the government from September 2013 found that the “vast majority of recipients of DLA were individuals with genuine health conditions and disabilities and genuine need, and that removing or reducing that benefit may affect their daily lives”.
On his blog, Sumpter said: “Although the judgment went against us I feel that the judge’s analysis of the first consultation is vindication for our bringing this case to court.
“Don’t forget that the second consultation only came about after this case was given permission to proceed and the DWP realised that they could not get away with such a shambles.
“I hope that the admission by the government that they know exactly what they are doing will make people wake up to what is happening. Meanwhile, this is not the end. The legal team and I are considering our options to appeal this result.”
Liz Sayce, chief executive of Disability Rights UK, said the judgement was “bitterly disappointing”.
She said: “We strongly supported the judicial review action and provided witness statements to the high court.
“PIP could see thousands of disabled people become institutionalised in their own homes.”
She warned that hundreds of thousands of disabled people would lose their higher rate mobility component and would lose their car under the Motability scheme and so would “no longer be able to get to work or get out and about”.
She said: “We strongly believe the benefits system should support and not constrain disabled people’s independence.”
Karen Ashton, Sumpter’s solicitor, from Public Law Solicitors, said the result was “very disappointing”.
She said: “The higher rate of mobility benefit can make an extraordinary difference to a disabled person’s life.
“Imagine not being able to get to the shop to do your own shopping or to visit friends because you have no way of getting there but to travel by taxi and you can’t afford the fare.
“This is what this reform may mean to the many thousands of the most severely physically disabled who will be affected by this change. We will be looking carefully at the possibility of an appeal.”
24 July 2014