The latest legal challenge to the government’s welfare reforms will “shine a spotlight” on the “injustice” of its new disability benefit, according to one of the three activists spearheading the case.
Steven Sumpter and two other disabled campaigners have asked the courts for permission to challenge the government’s decision to tighten eligibility for personal independence payment (PIP) for people with the highest mobility needs.
Their legal challenge was announced as the government this week began its lengthy rollout of PIP, which is replacing working-age disability living allowance (DLA). New claimants in some parts of the north-west and north-east of England will be the first to experience PIP instead of DLA.
The new, tighter PIP rules were suddenly announced in December by Esther McVey, the Conservative minister for disabled people, prompting anger from campaigners who said the change had come “out of nowhere”.
All three of the disabled people taking the legal action currently claim the higher rate of the mobility component of DLA, but fear they will lose their right to claim the equivalent higher rate of PIP.
Under DLA, a person is entitled to the higher rate of the mobility component if they are “unable or virtually unable to walk”.
Claimants are usually considered to be “virtually unable to walk” if they cannot walk more than around 50 metres, but the alterations to the regulations announced by McVey in December saw this key criteria reduced from 50 to 20 metres.
Government figures made it clear that the overall package of changes announced in December would see – by 2015 – 20,000 fewer people eligible for the enhanced mobility rate than under the previous draft version of the PIP regulations, with this gap rising to 51,000 by 2018.
Law firms Public Law Solicitors and Leigh Day – representing the three disabled campaigners – argue that Iain Duncan Smith, the Conservative work and pensions secretary, failed to consult on the change to 20 metres, denying disabled people the opportunity to explain the likely impact on their independence.
The court will decide within three weeks whether to grant a judicial review. If it does give permission, the case will be heard in July.
Much of the impetus for the legal action has come from WeAreSpartacus, the online network of disabled campaigners.
The government’s figures show that 428,000 fewer people will be able to claim the PIP enhanced mobility rate by 2018 than would have been able to claim the DLA equivalent.
Sumpter can walk short distances with a stick, but otherwise uses a wheelchair. He was awarded the DLA higher mobility rate last year, and uses it to lease a Motability car, which he says restores much of his “freedom and independence”.
Although he cannot walk more than 50 metres without experiencing pain and exhaustion, he can usually walk more than 20 metres and so believes he will not qualify for the enhanced rate of the PIP mobility component when he is reassessed.
He said: “If I do not qualify for the enhanced rate of mobility then the biggest change is that I will lose my Motability car.
“That means that I will have to rely on my wheelchair and public transport for every trip to the shops, to the doctor, to the hospital, and that means that every trip will turn into an hours-long ordeal of exhaustion and pain that will leave me stuck in bed for days afterwards.
“It means that I will only go out for the essential trips and will stay isolated the rest of the time and that will affect both my physical and my mental health.”
He called on the government to abandon its introduction of PIP, but added: “If we are successful then the consultation will have to start all over again, but given the arrogance of the government I see no reason why they would pay attention to a new consultation any more than they paid attention to the one that they already did.”
He said he saw the judicial review as “a tool to give time to shine a spotlight on the injustice of PIP and bring attention to the arrogance of the government”.
Karen Ashton, from Public Law Solicitors, who is representing Sumpter, said the judicial review would not force DWP to abandon PIP.
She said: “What we are hoping to achieve with the case is either a reformulation of the regulations so that they use 50 metres as the benchmark threshold for eligibility for the enhanced mobility payments, or that DWP at least consult again before making a final decision on this issue.”
If the judicial review is successful, the court will have to decide what action to take over the new claimants who have already gone through the PIP assessment.
Ashton said: “It is difficult to predict with any certainty at this point what that action will be and how those new claimants will be affected.
“But, ultimately, if the case does result in the use of a 50 metre threshold in the new regulations, we would expect that to be applied at some point to all claimants both new and old.”
A Department for Work and Pensions spokesman said: “We had strong feedback from our consultation that the criteria was unclear, which is why we have now clarified the rules.
“Individuals who can move more than 20 metres can still receive the higher rate, if they cannot move these distances safely, reliably, repeatedly and in a reasonable time period.
“We acknowledge the action being taken. The department will follow the correct procedure and respond in due course.”
11 April 2013