Activist loses appeal over ‘unfair’ 20 metres PIP consultation

An activist has lost a bid to prove that a public consultation on plans to tighten eligibility for the new disability benefit was unlawful, but says the legal case has still exposed the government’s “callous disregard for disabled people”.

The court of appeal ruled this week that the Department for Work and Pensions (DWP) 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.

Campaigner and blogger Mx Sumpter failed last year in a judicial review of the consultation process, but appealed that decision.

The appeal was heard in July this year, and this week the court of appeal ruled that DWP’s consultation was not unfair or unlawful.

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 Sumpter 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.

DWP consulted on the introduction of 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 disabled people’s minister Esther McVey carried out a second consultation, limited just to looking at the 20 metres measure.

When McVey’s ministerial 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 argued that this second consultation was irrelevant because the decision had already been made.

But the court of appeal concluded that the government had approached the second consultation “with an open mind”.

Lord Justice McCombe, one of the three appeal court judges who heard the case, said in the judgment that Sumpter’s argument would prevent decision-makers in the government’s position from “trying to put right errors in consultation processes that are pointed out to them by looking again at the areas of criticism”.

He added: “As I understand the law, consultation has to be fair; it does not have to be perfect.”

Sumpter, who blogged about the judgment today (Thursday), told Disability News Service: “I am disappointed that we were unable to change anything about PIP, but I am glad that we tried.

“The DWP imposed a cruel trade-off on disabled people in increasing support for some disabilities only by cutting help for those with physical impairments.

“In forcing the government to defend this we exposed their callous disregard for disabled people and our ability to go about our lives.

“It certainly does not fit in to their mantra that disabled people will work their way out of poverty, since for many people the loss of support will mean they can no longer work, or even leave their homes.”

Alastair Wallace, a specialist public lawyer at Irwin Mitchell, who acted for Sumpter in the case, said: “Our client originally challenged the consultation during the creation of the PIP system and while our challenge was unsuccessful, we still believe that the current proposals are unfair.

“We are disappointed by this outcome and our client’s focus will now be to ensure that the new scheme is properly implemented.”

A DWP spokesman said: “We are pleased that the court of appeal has unanimously endorsed the decision of the high court that the consultation process was fair and lawful.

“We remain committed to the full rollout of PIP, a benefit which helps disabled people to live independently by ensuring support is focussed on those who need it most.”

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 – will 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.