Two government departments ‘are breaking the law over PIP recording failure’

Two government departments are breaching equality laws and their human rights obligations by failing to ensure that disabled people can record their face-to-face benefit assessments and appeal tribunals, legal researchers have concluded.

They say the delay by the Department for Work and Pensions (DWP) in ensuring that all disabled people can record their assessments for personal independence payment (PIP) is causing them “significant and predictable harm”.

And they say the failure of the Ministry of Justice (MoJ) to ensure that all PIP appeal tribunals can be recorded is also causing “significant and predictable harm” to disabled people.

MoJ’s failure to assess or even acknowledge the harm caused by the absence of recording equipment at many tribunal venues means its actions are unlawful, say researchers from the International Disability Law Clinic (IDLC) at the University of Leeds.

They say both DWP and MoJ are breaching the Equality Act, the UN Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights.

And they say the government’s policies are unjustified and have an “adverse impact” on disabled people.

An IDLC report says there is “widespread and well-documented evidence of dissatisfaction” with the PIP assessment process.

It points out that many disabled claimants cannot take their own notes at their assessments or appeal tribunals and so – unless the government takes steps to compensate for this – their right to justice is “undermined”.

IDLC’s research has been carried out by undergraduate and postgraduate researchers working with members of the academic team at the university’s School of Law.

PIP assessments can be recorded, but only at the claimant’s expense, using expensive equipment capable of making two identical copies on audio cassette or CD, while the claimant must also sign an agreement about how the recording will be used.

DWP agreed last year to pilot video-recording of PIP assessments, but the report says that, despite this pledge, “the recording of each PIP assessment is still not part of the process”.

The report, For The Record, adds: “The current regime is clearly inappropriate and ineffective: requiring disabled persons to fund their own equipment is impractical and unaffordable for many claimants.”

And it says its researchers have been “unable to identify any evidence that the [DWP and MoJ have] sought to assess the impact of these policies”.

Earlier this year, the law clinic published research based on freedom of information responses that showed that of 161 social security tribunal venues in England, Wales and Scotland, only 91 had recording equipment. 

The cost of installing recording equipment in a single tribunal venue is about £1,000 and the annual maintenance cost is about £15, says the report.

Daniel Burden, head of public affairs for the Spinal Injuries Association, said: “With so many appeals against eligibility decisions for PIP, the ability to record assessments is essential for those people who cannot keep their own accurate notes.

“The fact that the two departments concerned in this research have either delayed honouring their commitments or failed to acknowledge the harm that they are causing demonstrates the lack of seriousness with which they are addressing the issue.

“Government ministries must face up to both their domestic and international legal obligations to meet the needs of disabled people.”

In response to the report, a DWP spokesperson said: “We take fulfilling our legal obligations seriously and do not consider the current process is unlawful.

“Claimants are already able to audio record their assessment if they want to and, as part of our commitment to improving trust in the assessment process, we are undertaking a video recording trial.

“There has not been a delay to the video recording trial. We will announce the next steps in due course.”

An HM Courts and Tribunals Service (HMCTS) spokesperson said: “We already ask disabled users to tell us if they have any particular requirements for the hearing and will consider any request for a reasonable adjustment so that they can participate.

“We are looking at increasing the number of tribunals with recording facilities as part of our wider £1 billion reform programme.”

Another HMCTS spokesperson said that “each request for reasonable adjustments will be dealt with individually as is appropriate so we cannot give a blanket answer for what will happen that covers all scenarios”.

But he refused to say why so few tribunal centres had the capacity to record hearings, including none in London; and why no equality impact assessment appears to have been carried out on the failure to provide this equipment.

He also refused to say if HMCTS accepted that it had discriminated against disabled people under the Equality Act and breached the UN disability convention and the European Convention on Human Rights.

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