Frustration over DWP’s response to PIP safety legal ruling

The Department for Work and Pensions (DWP) has admitted that – despite a legal ruling – it can only pay disability benefit claimants a few months-worth of backdated payments, even if they have been missing out on the correct amount for years.

Penny Mordaunt, the minister for disabled people, announced earlier this month that DWP had accepted the ruling on safety made by the upper tribunal in March.

She said DWP had updated its guidance to ensure that eligibility for personal independence payment (PIP) now takes proper account of whether a disabled person can carry out certain activities safely, and whether they need supervision to do so.

Mordaunt (pictured) said that as many as 10,000 disabled people could end up receiving higher rates of PIP because of the changes.

The new guidance reflects a ruling by the tribunal that previous DWP guidance had been wrongly reflecting the intention of the legislation that led to PIP’s introduction in 2013.

Mordaunt – who was replaced last week by Sarah Newton as minister for disabled people – told MPs on 2 November that DWP would examine all existing PIP cases and “identify anyone who may be entitled to more”.

But DWP confirmed this week that it will only be able to backdate payments to the date of the tribunal ruling: 9 March 2017.

Even if a disabled person has been claiming PIP since it was introduced in 2013, and has been receiving too low an amount for more than four years because of DWP’s incorrect guidance, they will only receive extra payments backdated to March this year.

This is stated in a memo published online by DWP, which says that the tribunal’s decision was a “relevant determination” and that this “should not be applied to claim periods on or before 8.3.17”.

Campaigners have already questioned why it took DWP four years – and a tribunal judgement – to ensure that eligibility for PIP takes proper account of whether a disabled person can carry out certain activities safely.

Welfare rights experts also suggested this week that DWP is already trying to find ways to reduce the impact of the tribunal ruling on benefit spending.

They have pointed out that in all five case study examples describing different claimants affected by the ruling – published in another departmental memo sent to DWP case managers – not one of those fictional claimants would actually see their benefits increased.

Ken Butler, Disability Rights UK’s welfare rights adviser, said: “Disabled people are increasingly needing to take legal action to obtain and enforce their rights.

“In recent years, we have seen this with the bedroom tax and now over the issue of their own safety being properly considered for PIP purposes

“But it is deeply frustrating that even when disabled people secure their legal benefit entitlement in court, the DWP deprives them of full justice.

“It has taken the DWP seven months to issue guidance following the ‘safely’ court case.

“During that time, it will have continued to refuse disabled people PIP on the same basis it did before.

“Had it implemented the judgment immediately it would not need to do a case trawl.

“Added to this, not one of the five case examples the DWP gives in its new guidance is said to benefit from the court’s decision.

“The DWP have been wrongly considering the assessment of safety for PIP since it was introduced in April 2103.

“The department says it is not legally possible for it to backdate PIP before 9 March 2017.

“But it could make ex-gratia PIP arrears payments to those disabled people who can show that they would have qualified but for its restrictive guidance.”

A DWP spokeswoman said that social security regulations* stated that upper tribunal decisions could not be treated as “official errors”.

Instead, the tribunal decision must be treated as a “relevant determination”, according to section 27 of the Social Security Act 1998.

This means that any backdated payments from increased awards can only apply from 9 March 2017, the date of the tribunal’s judgement.

She said: “There is no discretion in the Social Security Act 1998 for payments for any earlier periods… no one will have payments backdated to before 9 March 2017”.

And she said the examples in the memo were “illustrative only and focus solely on the subject of ‘safety’.

“These examples were created to illustrate the changes to guidance for our front line case managers.

“The descriptors or scores indicated in the examples in a real case would likely only make up part of the picture.

“A real claimant could score points on other descriptors or have other factors of consideration which would mean they score higher than the points in the illustrative examples.”

*Regulation 1(3) Social Security and Child Support (Decisions and Appeals) Regulations 1999