The Department for Work and Pensions (DWP) may have acted unlawfully after potentially depriving tens of thousands of benefit claimants of thousands of pounds each in back-payments, campaigners believe.
Now, after taking legal advice from a leading social security barrister, the Benefits and Work advice and information website wants to hear from claimants who may have been affected to help with a potential legal action.
The call relates to a high court ruling in December 2017 that found DWP had acted unlawfully by introducing new rules that were “blatantly discriminatory”.
Those rules meant that people who were unable to plan or undertake a journey due to overwhelming psychological distress would receive fewer qualifying points when assessed for PIP, with many receiving a lower level of financial support as a result, or even no PIP at all.
The new rules were only introduced because an upper tribunal ruling had found – in the case of a claimant referred to as MH – that DWP was wrong to say such PIP claimants should not be entitled to those points.
After the then work and pensions secretary Esther McVey said she would not appeal the court’s ruling, DWP announced a huge review of 1.6 million PIP claims to see how many had been wrongly assessed and were now entitled to backdated PIP payments.
The cost of implementing the court judgement – and a separate DWP error in the case of a claimant known as RJ – was estimated to be up to £3.7 billion over the five years to 2022, while ministers initially said that about 164,000 disabled people could receive back-dated payments as a result of the MH ruling.
But Benefits and Work has grown increasingly alarmed at DWP data which has shown far fewer claimants have benefited from DWP’s trawl through its records.
Barrister Tom Royston, of Garden Court North Chambers, has told Benefits and Work that there is significant public interest in bringing a legal case to establish if DWP has acted unlawfully.
Royston, who also acted for MH, said the DWP figures showed that, by January 2021, it had examined nearly 900,00 cases but had made back-payments in only 3,700 of them, which meant the proportion of those benefiting from the trawl (0.4 per cent) was 35 times fewer than DWP had predicted.
Benefits and Work says DWP has remained silent on why so few claimants are benefiting from the review, while its attempts to secure answers through freedom of information requests had been “comprehensively blocked”.
Now the website wants to hear from PIP claimants who have received a letter from DWP about the review in the last three months to tell them their PIP award has not changed as a result of the trawl.
The letter is likely to refer to changes in PIP law “that affect how the Department for Work and Pensions decides PIP claims” and will mention the MH versus DWP tribunal judgement and how it “relates to how ‘overwhelming psychological distress’ is considered when assessing the ability of someone to plan and follow a journey”.
Benefits and Work is asking anyone who has received a letter like this in the last three months to complete a short survey.
DWP told Disability News Service this week that its original published estimates were produced before knowing the full details of which claimants would be eligible for additional payments.
It believes it was clear that these estimates would probably change once the guidance implementing the judgment was produced and implemented.
A DWP spokesperson said: “The MH/RJ administrative exercise remains a priority for us and we want to ensure people receive any money owed to them as quickly as possible.
“In supporting the government’s response to the coronavirus pandemic, this work was paused, but restarted again in October.
“We will issue a further update later this year.”
Meanwhile, the Northern Ireland Public Services Ombudsman has published a report that concludes that too many disabled people are having their PIP claims unfairly rejected, while the system for dealing with further evidence, “a critical part of how decisions on PIP are made”, is “characterised by confusion”.
The ombudsman, Margaret Kelly, said the report – which criticises both Northern Ireland’s Department for Communities and its contractor Capita – found that “repeated opportunities were missed to make the right payment as early as possible in the process”.
Picture: Campaigners outside the Royal Courts of Justice in December 2017
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