The judicial review has been brought by disabled activist and blogger Stephen Sumpter, while the cases of two other disabled claimants have been put on hold.
Sumpter, who can only walk a few metres with a stick, and otherwise uses a wheelchair, has been assessed as eligible for the higher rate mobility component of disability living allowance (DLA), and used that to lease a car through the Motability scheme.
Under DLA, someone is eligible for the higher mobility rate if they are “unable or virtually unable to walk”.
Claimants are considered virtually unable to walk if they cannot walk more than 50 metres, but under rules for the government’s new personal independence payment (PIP) – which is gradually replacing working-age DLA – this walking distance criteria was set at just 20 metres.
Sumpter fears he will lose his higher rate entitlement when he is transferred to PIP and will have to return his car to Motability, drastically curtailing his independence.
This week, during a two-day hearing in Birmingham, his lawyers challenged the fairness of the government’s consultation process. The judge indicated that he will try to give his judgment later this month.
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 it had closed.
After the judicial review was issued, the Conservative disabled people’s minister Esther McVey – since replaced by fellow Tory Mike Penning – was forced to carry out a second consultation, which was limited to just looking at the change to 20 metres.
Sumpter says this meant there was no realistic possibility of a change to the PIP scheme, because the rest of the details had been decided and resources allocated elsewhere.
Responding to the second consultation, DWP claimed the budget that had helped people with physical impairments with their mobility had been reallocated to support people with learning difficulties and mental health conditions.
Sumpter said in a blog written before this week’s hearing: “This pitting of one impairment against another is fundamentally unfair.
“Rather than address inequality by bringing everyone up to the same mobility level, they have chosen to help one group by seriously disadvantaging another.
“It would seem that the government has seen the word equality but has not understood what it really means.”
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.
Respondents said that losing their Motability vehicle would “give them a significantly reduced quality of life”, increase their social isolation, prevent them working and have an impact on their family life and their mental and physical health.
But when Penning published his response to the consultation, he made it clear that the walking distance criteria would remain 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 reformed) 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.
Karen Ashton, Sumpter’s solicitor, from Public Law Solicitors, said: “The higher rate of mobility benefit can make an extraordinary difference to a disabled person’s life.
“Imagine not being able to get to the shop to do your own shopping or visit friends because you have no way of getting there but to travel by taxi and you can’t afford the fare.”
Penning said in a statement: “Under DLA, the vast majority of people got the higher rate mobility component for physical impairments.
“PIP more broadly reflects the impact of an impairment on an individual’s ability to get around, by also looking at whether they can plan and follow a journey.
“Furthermore, the higher rate mobility component was always meant to be for those people who are unable to walk or virtually unable to walk.
“However, individuals who can walk more than 20 metres will still automatically receive the enhanced rate of the component if they cannot do so safely, to an acceptable standard, repeatedly and in a reasonable time period.”
10 July 2014