My Lords, by the leave of the House I shall repeat as a Statement an Answer given to an Urgent Question in another place by my right honourable friend the Secretary of State for Work and Pensions on the withdrawal of her appeal—Secretary of State for Work and Pensions v AN & JM CPIP/1882/2015 CPIP/1159/2016—in relation to personal independent payments:
“I am absolutely committed to ensuring that disabled people and people with health conditions get the right support they need. PIP is a modern, personalised benefit that assesses claimants on needs, not conditions. It continues to be a better benefit than its predecessor, DLA, for claimants with chronic conditions. Under DLA, only 16% of claimants with diabetes received the top rate, whereas under PIP 29% receive the top rate.
I carefully considered these historic cases and decided to no longer continue with these appeals in order to provide certainty to the claimants. Since withdrawing the appeals, I have provided instructions to operational colleagues to put these claims in payment urgently. These claimants will receive any backdated moneys owed and should receive their first payment within the coming days.
These cases were decided prior to the March 2017 amending regulations, where the Government clarified their policy for managing therapy under PIP daily living activity 3. These regulations are not affected by our decision to withdraw these appeals”.
My Lords, I thank the Minister for repeating that Answer. This refers to the fact that the First-tier Tribunal ruled that two claimants with chronic conditions were entitled to PIP. The Secretary of State appealed but withdrew the appeals shortly before the Upper Tribunal was due to hear them on 21 May. The appeals concerned the meaning of daily living activity 3. One claimant needed watching at night in case urgent treatment were needed to prevent him falling into a fatal diabetic coma. The tribunal decided that he should qualify for PIP. According to the lawyers representing him, the Government argued in the appeal that he should be awarded only one of the minimum eight points needed to qualify for PIP.
This is the second time in a year that we are debating a serious error of judgment by the DWP in lawfully implementing the benefit it created. Noble Lords will remember that the High Court previously ruled against the Government on mobility payments, and in January the Government said that they were no longer appealing that judgment, either.
Normally when we ask questions on the meaning of judgments—and in the past when I have raised questions—Ministers stand up and say, “We are really generous to disabled people”, and the same thing has happened in another place. That is not a conversation. So I urge the Minister today to listen carefully to the questions and to try to answer them as best she can, and to write to us if she cannot. I have two. First, will she tell the House how many other cases are potentially affected by this ruling, and over what period and by what means her department will identify these people and notify them? Secondly, have Ministers taken legal advice on whether the regulations rushed through in March 2017 are definitely lawful?
My Lords, it gives me pleasure to respond to the noble Baroness. First, let me make it clear that, in our amendments to the regulations in March 2017, we were responding not to an error in the policy or in the PIP system but to a lack of clarity. The March 2017 amendments clarify the department’s position going forward, and further litigation is therefore unnecessary. The Secretary of State made it clear when she first arrived at the department that she wanted to withdraw these appeals on the basis that she wanted to provide these claimants with certainty. I want to be clear that this Urgent Question relates to the withdrawal of two appeals on 18 May and is about two specific cases. Therefore, there is no question about how many other cases it is concerned with and over what period.
On legal advice, we always confer and consult with lawyers to ensure that we are, to the best of our ability, making the right decisions on the regulations. We are clear in our minds that the regulations as they stand are lawful.
My Lords, presumably the department had advice before it brought in the descriptors that have been found not to be right, so I am not sure whether the legal advice is worth the paper it is written on. Can the Minister tell us whether there was any consultation on the amended regulations? After all, there are many rare and ultra-rare conditions. The people who needed watching over at night may be just two people from a cohort of many who need that kind of support when they are taking therapy. Will the Minister tell me about the consultation?
My Lords, I can confirm that the PIP assessment criteria were extensively consulted on prior to their introduction and were developed in collaboration with disabled people and independent specialists. The 2017 amending regulations did not represent a policy change. They were introduced to restore the original policy intent and to clarify the distinction between the needs of claimants who require assistance to manage therapy and those who require assistance for medication or in monitoring a health condition under daily living activity 3.
For the benefit of all noble Lords, let me explain that what we are talking about is, unlike DLA, a very personalised system of support. It is not based on condition; it is based on need. The important point is that it focuses on managing the condition at one end of the scale and actually requiring extensive therapy at the other end of the scale within the particular 3b criteria that have to be followed. Each case has to be considered on its individual merits. That is one of the flexible and important aspects of PIP. Of course, the outcome of that is that many more people are receiving the highest rate of award under PIP than under DLA.
My Lords, in the interests of clarity for the Government and certainty for the claimants, can I return the Minister to the question raised by my noble friend Lady Sherlock? Will the Minister explain to the House how the Government intend to move forward in ensuring that they have identified other cases that are potentially affected by this judgment and the lack of clarity—some might call it error—in the regulations originally drafted by the Government?
My Lords, it is important to re-emphasise the fact that this Urgent Question is about two specific cases that occurred before the regulations were amended in March 2017. It is about a five-month period. We are focusing on support for those two particular claimants and will ensure that any loss will be recovered and paid to them, literally within the coming days.
I sense that the House is perhaps referring to a judicial review decision that was made in the sense that the Secretary of State decided not to appeal a judgment towards the end of 2017 in relation to mobility activity 1, which is different from today’s Question. However, in relation to that, we will be carrying out an administrative exercise to identify claimants who may be eligible for more support under PIP and we need to screen the whole PIP caseload of 1.6 million to identify those people as a result of that JR judgment. The actual number of people whose award will be affected is much smaller. The judgment relates to people who suffer from overwhelming psychological distress that affects their ability to plan and follow a journey. Anyone who is identified as affected will be contacted by DWP and their payments will be backdated to the effective date in each claim.
My Lords, I declare a personal family interest. While I appreciate the constraints of this particular Question and judgment, my noble friend referred to the judicial review that was debated in this House. There have been many changes since the initial legislation came in. Can she tell the House how many existing people remain on DLA and are still waiting for their PIP assessment from DLA to PIP?
My Lords, I apologise. I hope that my noble friend will appreciate that this was given to me as an Urgent Question. I know that since PIP was introduced, 3.1 million decisions have been made, which will include some who were on DLA as well as new applicants for PIP, 9% of which have been appealed and 4% overturned. I am struggling to give the exact figure of the number of people who have moved from DLA to PIP. In that case, I am happy to write to my noble friend.