A government consultation on plans to tighten eligibility for its new disability benefit was unfair and unlawful, the court of appeal heard this week.
Last year, disabled campaigner and blogger Steve Sumpter failed in a judicial review of whether the government had carried out a proper consultation on its plans to slash the qualifying distance for the higher rate of mobility support from 50 metres to just 20 metres.
This week, Sumpter’s case was back in court for a one-and-a-half day hearing to appeal that decision. A judgement is expected either later this month or in October.
Sumpter, who can only walk a few metres with a stick, and otherwise uses a wheelchair, was assessed as eligible for the higher rate mobility component of disability living allowance (DLA), and uses that to lease a car through the Motability scheme.
But the campaigner fears losing the higher rate entitlement when transferring to the new personal independence payment (PIP), and consequently losing access to a Motability vehicle.
Under DLA, someone is eligible for the higher 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.
Last year, a judge suggested that if the consultation process had 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 was forced to carry out a second consultation, which was limited to just looking at the change to 20 metres.
When McVey’s successor, Mike Penning, published his response to the consultation, he made it clear that the walking distance criteria would remain at 20 metres.
Sumpter’s legal team believe that this second consultation was irrelevant, and “could never have changed the decision that had already been made”.
Sumpter said: “Without access to support, I would be unable to do a huge number of activities that many people take for granted.
“I would lose my Motability vehicle and would struggle to access local amenities, including supermarkets.
“The government policy on eligibility would leave me completely in the lurch and massively affect my quality of life.”
Sumpter added, in a blog: “It is frustrating that this case is about whether the consultation on PIP was fair rather than about the cut itself, but the courts cannot decide on government policy.
“As part of their defence the DWP pointed out that they are fully aware of the impact of their policy, and are removing DLA from ‘individuals with genuine health conditions and disabilities and genuine need’ and ‘removing or reducing that benefit may affect their daily lives’.
“The DWP did do a consultation on their policy, though, and that consultation wasn’t fair, so that is what we are fighting.”
Last month, Sumpter’s lawyers, Irwin Mitchell, secured a significant legal victory over DWP, after a court ruled that long delays in processing PIP applications from two disabled people were “unlawful” and “unacceptable”.
Alastair Wallace, a public lawyer at Irwin Mitchell, who is acting for Sumpter, said: “A reduction in the eligibility may mean that hundreds of thousands of people who would have been able to access support would now be frozen out.
“Our client is not alone in this either and it is time that disabled people who have been touched by this have their voices heard on the issue.”
Liz Sayce, chief executive of Disability Rights UK, said: “PIP could see thousands of disabled people become institutionalised in their own homes.
“The DWP expects that [hundreds of thousands of]disabled people who currently get the higher rate mobility component will lose it altogether or receive the lower amount.
“This means that many will lose their car under the Motability car scheme so they will no longer be able to get to work or get out and about.
“We believe the test of policy changes relating to disability should be whether they help or hinder independence and participation in society. This change does not meet this test.”
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.