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Social Security (Personal Independence Payment) (Amendment) Regulations 2017

Volume 782: debated on Monday 27 March 2017

Motion to Annul

Moved by

That a humble Address be presented to Her Majesty praying that the Social Security (Personal Independence Payment) (Amendment) Regulations 2017, laid before the House on 23 February, be annulled (SI 2017/194).

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee

My Lords, I begin by drawing the attention of noble Lords to my interest as the patron of South Somerset Mind. I am grateful to Mind, the Disability Benefits Consortium, Sense, Citizens Advice, Scope and Rethink Mental Illness for their briefings, which I am sure others will also have received.

Like most of your Lordships, I take my mobile phone into the Chamber set on silent to receive messages from the Whips’ Office. On the afternoon of 23 February, during the Report stage of the Neighbourhood Planning Bill, my phone buzzed. Most unusually for me, I left the Chamber to answer the call. It was the Minister ringing from Copeland to tell me that, following the two High Court judgments, the Government were, that afternoon, going to alter the criteria for qualifying for PIPs. I and my colleagues searched around and eventually found the changed criteria relating to emotional and psychological conditions. What a perfect day to release bad news. While the Minister and his colleagues were knocking up voters in the fresh air of the Lake District, government officials were bringing forward regulations that would penalise people who, because of their very complex conditions, are not able to go out freely into the countryside or towns, and in many cases would now be confined within the four walls of their homes.

The essence of the changes proposed is to limit the higher mobility element of the previous disability living allowance for those people who find it difficult to leave the house because of anxiety, panic attacks and other mental health problems. These claimants are as restricted in their independence as many people with physical mobility problems. They face higher transport costs because they are unable to use public transport or drive, as well as the costs associated with hiring a support worker. The Government’s changes to PIP will affect more than 160,000 people with mental health problems, both in and out of work, who face extra costs related to their disability. These changes mean that people who need help to make journeys because of psychological distress will not receive the same level of support as other disabled people. This is discrimination.

In 2012 the Government made a clear commitment that people who experience psychological distress would be eligible, but they are now changing the criteria. The Government further said that a person with a cognitive impairment alone would still be eligible for the highest mobility rate. Cognitive impairments are not the same as mental health problems. Specifically excluding psychological distress undermines the stated purpose of PIP as a benefit which treats disabled people as individuals rather than labelling them by their condition. The proposed changes create a legal distinction between mental health problems and other kinds of impairment when it comes to benefit assessments, again demonstrating discrimination.

This change is out of step with previous government statements. On 7 February 2012 the former Minister for Disabled People, Maria Miller, stated:

“The Government have made clear that they want personal independence payment … to take fairer account of the impact of mental, intellectual, cognitive and development impairments than DLA does currently… For example, when considering entitlement to both rates of the mobility component we will take into account ability to plan and follow a journey, in addition to physical ability to get around. Importantly, PIP is designed to assess barriers individuals face, not make a judgment based on their impairment type”.

Esther McVey, also a former Minister for Disabled People, stated on 26 November 2012:

“The personal independence payment assessment will look at disabled people as individuals, rather than labelling them by their health condition or impairment”.

As a result of the ruling by the Upper Tribunal, the Government have introduced legislation which would mean that psychological distress can be relevant only when considering two specific criteria for planning and following journeys. This would mean that people who experience psychological distress would be eligible for only the lower element. These changes undermine rather than restore the original intent of the legislation. The Government say they are committed to giving mental health the same priority they give physical health, but I am afraid that is not borne out by the changes to these criteria.

The PIP criteria are already too strict and have led to almost 50% of disabled people and those with long-term conditions losing access to some or all of their support when being reassessed for DLA. This is of particular concern in the context of the mobility component, where more than 750 people a week are returning their Motability vehicles because they are no longer eligible for support. The original descriptor does not go far enough in acknowledging the significant psychological impact that many people with long-term physical conditions also experience, for example, as a result of cognitive and associated mental health symptoms or their ability to follow a journey. This is substantially different from the impact of a person’s physical ability to walk, which is assessed under the “moving around” descriptor.

The high successful appeal rate demonstrates in far too many cases that disabled people are relying on tribunals to assess their condition accurately and then to interpret and apply the descriptors appropriately to capture the impact of their symptoms. For many disabled people, such tribunal judgments have improved a system that is too often ineffective as a test of their needs. The original intention behind the PIP assessment was to take a holistic view of the impact of disability, fairly taking into account the full range of impairments. The Upper Tribunal judgments do not undermine this approach; rather they ensure that functional impact is assessed accurately regardless of the symptoms of the condition causing it. The Secondary Legislation Scrutiny Committee has looked at this change in criteria and warns that the regulations could have unintended consequences. It has called on the Government to review the PIP assessment criteria prior to the changes being implemented.

I shall give two examples of what we are talking about in practice. Mrs D suffers from severe depression with psychotic features, including auditory hallucinations. She is under the care of a psychiatrist, has irrational fears for her safety when outside and has not been out of her house unaccompanied since 2011. She needs assistance from another person to plan the route of a journey to get to either a familiar or unfamiliar location. When she goes out of doors her husband has to accompany her. She was assessed as not being entitled to any mobility support. Mrs D appealed on the basis that she cannot navigate any journey on her own and, because of her poor memory and concentration, she would become confused very easily. The tribunal thought that her complex mental health had been underestimated and awarded the enhanced mobility rate. This is one of the two tribunal decisions that led to the Government amending these regulations.

My second example is P, a man in his early 40s who suffers from severe anxiety, depression and borderline personality disorder. He lives independently with substantial support from his mother, who assists with his medication and personal hygiene. He is a self-employed handyman, which allows him to work when his mental health allows. Some days his anxiety is so high that he is unable to leave the house. His journeys are made with support from others. He is unable to travel by bus as this increases his anxiety. Last January, he made an unsuccessful claim for PIP, being awarded no points for either DLA or mobility. With the support of Rethink, this decision was successfully appealed in November. In the appeal, P was judged to have a severely limited ability to carry out activities of daily living. This entitled him to the DLA component of PIP at the enhanced rate. He was also judged to have a limited ability to carry out mobility activities. Both components were awarded to January 2019. Back pay of around £8,000 was awarded. P used PIP to buy a van, resulting in him being more reliably in work as his anxiety around travelling is reduced. He is able to attend and complete jobs, making journeys independently.

I do not believe the Government have fully considered the impact of these changes. People severely affected by mental illness will miss out on the vital financial support that they need. This is unacceptable. The Government should think again. I beg to move.

I inform the House that if this Motion is agreed to, I cannot call the Motion in the name of the noble Baroness, Lady Sherlock, due to pre-emption.

My Lords, I rise to speak to the Motion in my name on the Order Paper. Widespread concern has been expressed about these regulations. I am grateful for briefings from a wide range of organisations pointing out their implications. The noble Baroness, Lady Bakewell, explained how we came to be here. In December the Upper Tribunal ruled on two cases that determined what could be taken into account when making assessments for PIP. Ministers’ response was to declare that if those judgments were allowed to stand they would cost £3.7 billion over five years. Therefore, they had no option but to rush to legislate without consultation. They did not pause even to allow the Social Security Advisory Committee to scrutinise the regulations in advance of their being laid, as would be usual.

The cases were slightly different. The case of LB was about managing medication, affects far fewer people and would cost only about £10 million a year. As the Social Security Advisory Committee pointed out, the impacts of that case are by no means clear. So why did the Government not do what the SSAC recommended: consult widely and improve the estimate of the likely impact before the changes were introduced, given that the numbers and the cost were so much smaller?

The judgment in the MH case meant that, in applying for the mobility component of PIP, someone could rely on their inability to plan or manage a journey solely on grounds of psychological distress. These regulations are designed to reverse that completely. Yet when PIP was introduced in legislation, Ministers claimed it would be very different from disability living allowance, which preceded it, because it would not judge someone simply on the basis of their condition, but on what an individual could or could not do. Yet now the regulations seek to exclude a key dimension of that very judgment.

Ministers claim that they are restoring the original aim of PIP, but we were told that the higher rate of the mobility component of PIP would apply where mobility is,

“severely limited by the person’s physical or mental condition”.

Yet many people with mental health problems will be affected by these changes, including people with schizophrenia or bipolar or post-traumatic stress disorders. Will the Minister please tell the House how this fits at all with the Prime Minister’s promise to tackle the stigma of mental health problems and the Government’s commitment to parity of esteem between physical and mental health? It does not.

Ministers have been out there insisting that this is not a cut. However, 164,000 people with mental health conditions could miss out on mobility payments that they would have received under the Upper Tribunal judgment. As the Secondary Legislation Scrutiny Committee warned,

“while this change may not result in an immediate ‘cut’ for people currently receiving PIP, they may lose out in future (despite no change to their condition), if they are reassessed under the new criteria”.

That committee called on the Government to make clear to the House the long-term impact of these changes. That is what I am trying to push them to do today. It also called on them to review all the descriptors for PIP, as did the Social Security Advisory Committee. Can the Minister assure the House that his department intends to act on the recommendations of both the SSAC and the scrutiny committee and report back to this House when it has done so?

Finally, the SSAC pointed out that it was not at all clear how tribunals or those making decisions would respond to changes in descriptors to exclude psychological distress altogether, particularly where that is a symptom of a condition; for example, an intellectual or cognitive impairment which would generally result in a higher level of need. It said that,

“where multiple factors made it impossible for someone to follow a journey without help, it would be difficult in practice to strip out the element of psychological distress from the other factors when making a decision. As a result it may well be that it is not consistently treated in these circumstances”.

The Disability Benefits Consortium highlights that by looking at the example of Parkinson’s. It is a highly complex condition with more than 40 physical and non-physical symptoms. Depression and anxiety can be a symptom of Parkinson’s as a result of chemical changes in the brain. At any point, up to 40% of people with Parkinson’s will have depression and a similar proportion will experience anxiety. Likewise, many people with MS experience significant cognitive difficulties and are more likely to have co-morbid mental health conditions. The Upper Tribunal recognised that someone who needs to be accompanied on journeys to avoid overwhelming psychological distress has needs which meet a higher descriptor, but these regulations will prevent that being recognised and that claimant getting an appropriate level of help. How are decision-makers supposed to strip out the element of psychological distress from other factors when making a decision, when it is quite clear to anyone who has looked at it that it will not be an easy task?

Even before the regulations, there was growing concern about the way PIP is working. The Disability Benefits Consortium points out that almost half of people lose access to some of or all their support when assessed to move from DLA to PIP. Sixty per cent of those who appeal succeed. We know already that more than 750 people a week are returning their Motability cars because they no longer qualify for the money that they previously used to pay for them.

The tribunal decisions highlighted some important failures in the way that the PIP assessment process is working for people with mental health problems. Instead of stopping to reflect and consult, Ministers have rushed out new regulations to overturn the effect of the judgments and to assure us that everything will work smoothly in future. It will not. The ambiguities remain. The flaws in the way the PIP process assesses people with mental health needs will not disappear. Their needs will now simply be officially ignored. If only the Government had accepted the amendment put forward during the passage of the Bill by the noble Baroness, Lady Grey-Thompson, which we backed and which would have introduced a trial period for PIP, these issues might have surfaced, but sadly she could not get support from around the House.

As a result, some people who need additional support to overcome barriers to mobility will not get it. Others will lose it when they come up for reassessment. That means that thousands of people could be trapped and isolated in their own homes because they cannot travel alone without help. That could make their depression or anxiety worse.

The context for this change is that this Government and the previous Government have repeatedly cut benefits for sick and disabled people. They cut £30 a week from the ESA for the WRAG group. They introduced the bedroom tax—two-thirds of households affected by that contain a disabled person. Now we have another move which will hit vulnerable people.

The Government should withdraw the regulations to enable proper scrutiny and consultation. If they will not, the Minister should commit here and now to conducting a review of the impact of the regulations on those with mental health conditions, as my Motion demands.

Before I finish, I should say a word about the other Motion on the Order Paper. If the noble Baroness, Lady Bakewell, decides to push her fatal Motion to a vote, she will be well aware that we on these Benches cannot support her and neither will most of the House. There is a reason that the Lords has voted down secondary legislation only five times since 1945. It is because, unlike with primary legislation, if we vote against secondary legislation, it is dead, irrespective of the will of the elected House. The Cunningham convention sets out quite clearly the exceptional circumstances in which the House may do that and we are not in that territory. Even if the fatal Motion somehow passed, I presume that the Government would simply bring back something in a Finance Bill or in other financially privileged legislation on which we could have no impact. I regret that having on the table a Motion such as that must inevitably raise expectations that this House can do something that it could or would never have done.

However, we should not let the Government off tonight without making it clear to them that the House does not approve of what they are doing. We should make it clear that we are deeply concerned about the impact of the regulations on sick and disabled people and that we do not approve of a move that devalues mental health compared with physical health. I urge the Government to think again. If they will not, I urge the House to demand that they at least account for the impact of what they are doing.

My Lords, I support the Motion in the name of the noble Baroness, Lady Bakewell, to annul the Social Security (Personal Independence Payment) (Amendment) Regulations 2017. I understand that such a Motion should be used only in exceptional circumstances. I will explain why I think that this is an exceptional circumstance.

People in my position, with a highly visible, severe impairment, tend to find it a lot easier to demonstrate and receive the support we need to get from A to B than those experiencing mental health challenges. To be honest, I probably find it a lot easier to get around than many in your Lordships’ House today. I think that you will all have witnessed those on the mobile Bench whizzing around the Palace estate with ease and speed.

But let us be in no doubt: the impact of panic attacks and anxiety, not to mention schizophrenia, dementia and autism, on being able to,

“plan and follow a journey”,

are equally fraught, if not more so, with profound obstacles than the effects of visual or physical impairments. As Jenna reminded me recently,

“Suddenly, for no reason at all, as I step out of my front door, the prickles in my chest get sharper and my head gets foggier. My heart pounds faster as it tries to defend itself from impending danger. My breathing becomes shallow as I desperately try to get air into my body and brain ... I try to grasp on to something, anything, to keep me tethered and whole”.

“Anxiety” may sound manageable to many, but unexpectedly and unpredictably collapsing in agony in public places can overwhelmingly restrict people’s mobility.

Speaking to a young woman with ADHD and Tourette’s syndrome who lives down my street, I heard about her terrible journey on a train where she suffered a severe anxiety attack. The train had to be stopped and the emergency services called. This expensive scenario could have been avoided if her PIP had not been reduced from the high to standard rate award a couple of months ago, allowing her to continue paying for a travel companion or use taxis. Her life has now been severely restricted.

It is a fundamental tenet of the Equality Act that there shall be no hierarchy of disability: we define a disabled person as someone with a “mental or physical impairment”. We in this House have welcomed the Prime Minister’s commitment to parity of esteem between mental and physical health. The amended regulations, sadly, completely depart from these vital principles. They state, in effect, that disabled people may be equal but, just like in Orwell’s Animal Farm, some disabled people have become more equal than others.

Regulations that deny the highest level of PIP where the reason for difficulty is overwhelming psychological distress rather than, say, a visual impairment entrench the discriminatory view that mental health problems are not “real” disabilities and compound the very stigma that the Government say they are committed to eradicating, as demonstrated by a member of that Government in the other place recently. My question to the Minister is simple: do the Government stand by their commitment to parity of esteem between psychological and physical disabilities? In a letter to me today from Penny Mordaunt, the Minister in the other place, she asserts in one sentence that the Government have not departed from this parity of esteem but then goes on to say that those with overwhelming psychological distress will receive only the standard rate PIP. This is a blatant contradiction in terms and not equal treatment.

Given such ambiguity, it is perhaps not surprising that since April 2013, 80,380 people have been awarded the enhanced mobility component of PIP where their primary impairment is a psychiatric disorder. They scored points in their PIP assessment under the high-rate descriptor related to planning and following a journey unaided. Yet under the new regulations, that descriptor is now reserved for people who,

“for reasons other than psychological distress cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid”.

Surely we need to step back, consult and get this right. We cannot wait for a review in two years’ time, as suggested by the Motion of the noble Baroness, Lady Sherlock—although I support that because I have the feeling that we will not win if the noble Baroness, Lady Bakewell, divides on the first Motion.

The UK was rightly viewed as a world leader in the field of disability rights and equality. However, we know that in recent years the cumulative effect of cuts in social care support, independent living entitlements and welfare benefits has taken its toll on disabled people. It is becoming increasingly tougher for them to participate in society as active citizens, working, learning and taking responsibility for supporting others—for goodness’ sake, living not surviving. These changed regulations represent another departure and fly in the face of the Prime Minister’s ambition to create,

“a society that works for everyone”.

This Motion could pause the regulatory change until the Government properly consult disabled people and their organisations: Scope, Mind, Disability Rights UK and the Disability Benefits Consortium—in fact the majority of disability charities in this country, which are absolutely appalled at this regulatory change. They support the prayer of annulment, thinking this change a step too far for people with mental health disabilities. Yes, such a Motion is an exceptional circumstance, and I do not care that they have been debated and voted on only five times within a hundred years or whatever. I will gladly support it now.

My Lords, it a great privilege to follow the noble Baroness, Lady Campbell of Surbiton. We heard from previous speakers why we are tonight discussing and debating the proposed changes to PIP. I refer to my interests in the register particularly relating to autism. It is about autism that I will speak in the context of PIP. I support particularly the regret Motion tabled by the noble Baroness, Lady Sherlock.

Of course, autism is not a mental illness; it is a lifelong communication disorder. People with autism are born with it and die with it. It is also a spectrum, ranging from people who need 24-hour care for most of their life right through to a group of people capable of university degree-standard education and holding down demanding jobs. It is worth saying that only 15% of people on the autistic spectrum obtain paid employment. Perhaps that gives a clue as to why I want to raise their needs in the context of this debate.

An interesting but sad figure is that of people on the autistic spectrum in their 20s, some 7% are identified as committing suicide. The reason is not that autism is of itself a mental illness. Rather, as people with autism, particularly at the higher-functioning end, struggle to make sense of life, communicate with people and take their part in society as the rest of us do, they try and try but there is that glass wall that without help and support they never get through. That is what causes the mental illness to develop on top of the autism.

I was in this Chamber when the House debated the Welfare Reform Act 2012. As with others, I remember the assurances given in both Houses at that time. I particularly remember the assurances given to the late Lord Newton of Braintree who, colleagues will remember, rose from his hospital bed night after night, sometimes needing oxygen to support him. He made the case particularly for this group of people. When they walk into a room, it is not obvious that that have a serious disability, but they certainly have needs. That assurance that PIP would assess barriers that individuals face and not make judgments based on their impairment type was something we all clung to in the hope that that promise would be kept.

As far as the autistic community is concerned, another Act is very important to this Chamber: the Autism Act 2009. In both Chambers and across the House, Members agreed and put on to the statute book an Autism Act because it was recognised that people on the autistic spectrum fall through the gap. That gap is often about very simple, straightforward things that benefits such as PIP provide for them. It is about taking their place again in society. Anxiety and psychological distress are among the most common effects of being diagnosed with autism. People with autism experience levels of distress about things that the rest of us really never worry about. To them, they become huge problems.

I will share with the House a case study that came to my attention about somebody recently denied PIP. This is from a mum, Amanda, who has a 16 year-old son on the autistic spectrum. She says:

“My son recently failed his PIP assessment which we are now appealing. He has autism and dyspraxia which means he is highly anxious and has such poor spatial awareness that he can’t judge speed and distance for road safety”.

He can probably plan a journey but is actually quite at risk when he is out there on the journey. She continues:

“Currently he is unable to leave the house alone. He cannot attempt a journey as he is so anxious and scared of change and people that using public transport is out of the question. He is unable to speak to strangers and can’t even order a drink when out or sit alone when his carer goes to the loo. At the moment he’s very isolated because he can’t go out alone and can’t socialise with new people. Even for extracurricular activities at school he needs a parent to go and support him. For example on a field trip to Anglesey for three days he was not allowed to travel with the other pupils as he can be a danger to himself and others”.

It turns out that his dad was DBS-checked so he could take time off work to accompany his son so he could go on that field trip.

Educationally, that young man is potentially a university graduate, yet he has been denied PIP. This is why the Autism Act was brought in, because a lot of these people have huge potential, but if that potential is denied, your Lordships do not need me to spell out the consequences. I am very disappointed that we are having to have this debate tonight. I am grateful to the noble Baroness for bringing this to the attention of the House.

My Lords, I have been asked to speak on behalf of the right reverend Prelate the Bishop of Durham and a number of other Lords spiritual who are unable to be in their places today. Like them, I have serious concerns about the impact of the proposed changes to the personal independence payment on people with mental health problems. A number of the Lords spiritual wrote to the Secretary of State on 8 March seeking clarification on the rationale for the new legislation. I am not aware that they have received a reply. I wish to use this debate to reiterate these concerns and urge the Government to reconsider their position.

Our understanding is that the introduction of PIP was intended to create parity of treatment for people with mental and physical health problems by basing the assessment on a person’s ability to carry out certain tasks, irrespective of the nature of their disability. This is a fundamental principle that we strongly support, which has helped counter a long-standing bias within the benefits system against people who suffer from severe mental health problems, such as schizophrenia, anxiety disorders and autism. Explicitly limiting access to the enhanced rate of the mobility component for those who experience psychological distress undermines this fundamental aim by reintroducing an unhelpful distinction between people with physical and mental health conditions.

Crucially for this debate, this change appears to be inconsistent with the primary legislation, which makes it clear, as the Explanatory Notes underline, that people should be entitled to the higher rate of mobility component if,

“a person’s ability is severely limited by their physical or mental condition”.

Furthermore, it appears to be inconsistent with Ministers’ public statements at the time. People who find it difficult to leave the house because of anxiety, panic attacks and other mental health problems can be as restricted in their independence as people with physical mobility problems. They face the same additional barriers and costs as other disabled people, and should be scored accordingly against the same criteria. The amended regulations, however, would mean that people with these conditions would be assessed against only two of the six criteria for “planning and following journeys”, even though they may be unable to make familiar or unfamiliar journeys without the support of another person.

I am aware of the issues through the work of local mental health charities in my own diocese of Winchester. I understand from Jane Harvey, the head of home support at Solent Mind, which supports people with mental health problems in Southampton and across Hampshire, that she is in no doubt about the social isolation of many of her clients. Getting out of the house can be an extremely stressful experience for someone who suffers from paranoia, lacks confidence in social situations or feels unsafe in noisy, crowded environments, such as public transport. But these daily interactions are also vital to their mental and physical well-being, preventing them becoming even more isolated and enabling them to eat properly, pay their bills and attend important appointments. That is why it is so important that we seek to remove as many barriers to their mobility as possible through financial and other forms of support, and that we do not differentiate in a way that seems to be against people with mental health problems, whose condition can be just as debilitating as a physical disability.

I realise that, in practice, many people with mental health problems have until recently missed out on the mobility component of PIP. But we believe that the clarification provided by the Upper Tribunal ruling is more in keeping with the original intent of the legislation than the amendment tabled by the Government, opening up additional support to around 160,000 people with severe mental health problems.

From these Benches we would not want to be seen to be resisting the aims of the original legislation, but we need persuading that the amendments to PIP are not undermining the intended aims of the benefit. I shall be supporting the noble Baroness, Lady Sherlock.

My Lords, Winchester is well represented this evening. PIP’s broad design flows from the Welfare Reform Act 2012. From the beginning it was intended not just to reset the DLA thresholds to determine who gets what but to decrease the overall expenditure on benefits by attempting to target them more effectively than DLA, and specifically to give more weight to mental health problems.

The department said that of those with mental health conditions receiving the mobility component of DLA, only 9% had been entitled to the higher rate, whereas 27% of PIP claimants receive the enhanced mobility rate—or 28%, according to the Minister’s letter this morning. The Government’s own consultee, the SSAC, asked the pertinent question: so what impairments do these 27% have? Are they a combination of physical and mental impairments? The department evaded the question, saying that perhaps 27% was “somewhat imprecise”. We do not know what is going to happen to claimants who may be reassessed quite soon, but we do know that the new regulations undermine the welcome support PIP can give to those with mental health problems, and I urge the Government to withdraw them for further consideration.

That is not the only reason I think the regulations should not be proceeded with. I hope other Members of the House will be as uneasy as I am at the Government immediately reaching for the statute book in order to negate a very careful decision of the Upper Tribunal. Ministers say they are restoring the original intention of the relevant descriptor regarding planning and following a journey, and insist that the legislation is clear, but they gloss over the fact that the Secretary of State said in the case of HL in December 2015 that,

“overwhelming psychological distress could depending on its nature, frequency, duration and severity make a person unable to navigate and so to fulfil the terms of descriptors 1d and 1f”.

Descriptor 1f gives the higher rate. We are now told that the Secretary of State made a mistake and had to explain to the court that a concession had erroneously been made. This is all very unsatisfactory and leaves a particularly bad taste in the mouth. Whose hand is round the Secretary of State’s throat? What he said sounds to me to be exactly what the original policy intention was. Why do the Government not come clean and say that they are changing the policy for enhanced rate mobility by not allowing psychological distress to be taken into consideration?

Why the indecent haste in changing the law? As the Secretary of State is appealing the Upper Tribunal’s decision, he could have used other powers he has to prevent the decision of the Upper Tribunal having immediate legal effect by giving directions to decision-makers and courts about how the descriptors should be interpreted. Why not wait for that outcome? The timescale is curious. If he was going to wait three months from the judgment, why not use that time to consult properly? The impact assessment estimates that 71,500 claimants in the current caseload will go from standard rate PIP to nil, the same number from enhanced rate to nil and 21,000 from enhanced rate to standard, so 143,000 claimants with an enduring health condition are estimated to lose the benefit altogether. The disorders likely to be affected, according to the DWP, range from schizophrenia and autism to bipolar affective disorder and cognitive disorder. So much for parity of esteem between physical and mental health.

There is another aspect which must be considered. The Secretary of State is keen to say that no one already getting an award under the old regulations will lose it, presumably meaning that no one will have the money clawed back, but some awards are only for a year before another assessment is demanded. Thousands of claimants are in this position. The new assessment will presumably be under the new rules, meaning that many existing beneficiaries of standard or enhanced rate mobility will lose all entitlement.

I accept that the reason the Secretary of State is making this change is not to make even more savings than have already been announced, but is it fair to tear up the carefully constructed mobility descriptors and the Upper Tribunal’s carefully explained judgment with such haste and without proper consultation? Is it not yet another tightening of the screw around the whole independent living project, which is assailed on every side? These regulations should be set aside to await proper consultation.

I shall end with a word about voting on SIs. I am particularly addressing my friends and colleagues on the Labour Benches. I shall quote from the 2005 Cunningham report Conventions of the UK Parliament, which the noble Baroness, Lady Sherlock, dismissed:

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree. It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way, (b) the Government can bring the SI forward again immediately, with or without substantive amendment”.

We should have the courage of our convictions and vote to annul these regulations.

My Lords, I declare my interest as a recipient of disability living allowance, the precursor to the personal independence payment. I therefore have an interest in this type of benefit. Two simple and basic points make the case against these regulations, open and shut.

First, this is a clear breach of faith with the disability community. Back in 2012, when PIP was first introduced, Mind and other mental health charities raised concerns that people with mental health problems would be able to score points only under the criterion which used the words “psychological distress”. The Government gave reassurances that that was not the case and that people with mental health problems could potentially score points under a range of criteria if their condition meant that they struggled to plan and follow a journey. On this basis, PIP was welcomed by the mental health and wider disabilities sector, because for the first time people with mental health problems felt they would be given access to disability support equal to that of people with physical disabilities.

The Government made clear commitments that people who experienced psychological distress would be eligible under the very criterion that is now being changed. These commitments were underlined in statements by Ministers in debates on the Welfare Reform Bill at the time—the noble Baroness, Lady Bakewell, has quoted the statements by Maria Miller and Esther McVey, so I do not need to repeat them. However, in practice, the DWP has not deemed people who experience psychological distress eligible for the full range of points, regardless of how severely that distress affects them. This has meant that 164,000 people have received a lower rate than they were entitled to.

This is the origin of the two cases which came before the Upper Tribunal at the end of 2016. The tribunal’s rulings did not extend the scope of PIP, as the Government suggest, but clarified it. That is what tribunals do: they do not make the law; they clarify what the law is. It is the Government who are now seeking to restrict the scope of PIP from what it has always been understood to be by removing psychological distress from criterion 1f as a reason for not being able to follow a familiar route without assistance, so that a claimant can only be awarded four points under mobility descriptor 1b. The regulations are in clear breach, if not of a manifesto commitment on this occasion, then certainly of pledges given to those with mental health problems in 2012. This change to the eligibility criteria also flies in the face of the statement in the Work, Health and Disability: Improving Lives Green Paper that the Government will not seek to make any further cuts to disability benefits following the already controversial cuts for those receiving employment support allowance in the WRAG, for new claimants from 1 April this year.

My second point can be made even more briefly: the proposed changes would create a legal distinction between those with mental health problems and those with other kinds of impairment when it comes to benefit assessments, a distinction which flies in the face of the Government’s commitment to parity of treatment for people with mental health conditions. The Government have said that a person with a cognitive impairment alone will still be eligible for the highest mobility rate, but the term “cognitive impairment” far from covers the full range of people with mental health problems.

I believe these regulations are trying to move the goalposts by excluding people who experience psychological distress from eligibility for the higher number of points necessary for the higher rate of mobility component. In doing so, they effectively discriminate against people with mental health problems. This is clearly against the original intention of PIP and runs counter to the commitment the Government made to people with mental health problems—that they would be assessed in the same way as other disabled people. I support the Motions before us this evening to oppose these regulations and if the noble Baroness, Lady Bakewell, moves for a vote, I will support hers.

My Lords, as ever, I have had a huge number of emails on this debate tonight. I had several hundred after the last debate tabled by the noble Baroness, Lady Thomas of Winchester, on the 20/50 rule, so I am expecting many more tonight.

I understand that many charities have written to the Prime Minister on this issue, and I am concerned about the way the question of who is eligible has been misunderstood. It has been suggested that this is not a big change, but like other noble Lords tonight, I have many concerns. To add to something that my noble friend Lady Campbell of Surbiton said about visible and invisible impairments, with something as simple as the use of a blue badge, there is huge misunderstanding about who can qualify for one—who should have one and who should not—and how people are treated if they are perceived as not disabled enough to need one. That is relatively simple compared to some of the intricacies of the PIP assessment forms.

I have issues with the name “personal independent payment”, because it is not terribly accurate. It is a contribution towards independent living but does not cover all the costs of someone with a disability living independently. I declare an interest in that I am a recipient of PIP, and was a recipient of disability living allowance. I went through the transfer process last year, which was interesting and arduous. Just the forms to tell you that you have to transfer are complicated enough, but when I made the phone call to register, I was left on hold for over 25 minutes. With each passing minute, you are worried that the phone call is going to drop out. Then I was asked a number of questions which could be construed as confusing. I have some understanding in this area, and they were really difficult questions for me to answer. I was asked the same questions repeatedly, back and forth. I was asked the name of the medical personnel who could best describe my impairment, which is really difficult because I am disabled, not ill—I cannot even remember the last time I went to the doctor. It got to the point where I was even doubting my own answers, and I am not exactly lacking in confidence when it comes to being able to understand and explain the challenges that I face with being mobile.

I have said it before and I will keep saying it: it is essential that we have a better decision-making process. The cost of mandatory reconsiderations and tribunals is simply too high. Scope has said that 89% of applicants who have gone to a tribunal for a mandatory reconsideration or appeal in the last quarter have received a new decision. Could the Minister say how much the mandatory reconsiderations and appeals are costing? If decision-making were better, how much money could be saved to plough back into the system?

I have so many examples of people who have been through appalling treatment in this process. One person has been writing to me for the last 18 months, and I am very happy to pass on their details to the department. Pretty much everything that could have gone wrong in the process has, including lost files and cancelled dates. That has a huge effect on someone’s mental health and well-being. Just how is this helping?

The system is not working as well as it could and it is time to re-evaluate it. I would like the Minister to reassure me that the chaos around the system will not be used as an excuse to potentially stop supporting disabled people through the personal independence payment. That is one worry that I really have: that it is seen as so confusing and such a disaster that some people might think it easier to stop it. That would be appalling. The personal independence payment is really important to help many disabled people to lead independent lives, and it is time it worked properly.

My Lords, I declare an interest as a recipient of the higher-rate mobility component of disability living allowance, which, as noble Lords will know, is being replaced by PIP. As someone with a severe, permanent and constant disability, I depend on DLA for my mobility because it enables me to lease a car through Motability. Indeed, it gives me great pleasure to put on record my profound personal thanks to Motability, and particularly its founder, my noble friend Lord Sterling of Plaistow, for the phenomenal difference that that organisation has made to disabled people’s lives in its first 40 years. Long may it continue.

And long may targeted support continue for those whose need is greatest for help with meeting the extra costs of living with a disability. The most help to those who need it most: that is surely a founding principle of our welfare state, and the enduring basis of public confidence in the system that underpins the public’s willingness to fund the welfare state so generously through their taxes. As the then Deputy Prime Minister, Nick Clegg, rightly said in 2012:

“One of the things about governing is it forces you to confront the inconvenient truths oppositions choose to ignore”.

One of those truths is that sustaining public trust in the welfare system is crucial to sustaining that system, which I and millions of disabled people rely on, so it is vital that the money gets spent where it is meant to and is seen to be so. I believe the taxpayer does not have a problem with someone needing assistance as a result of difficulties in navigating—for example, if they are blind. Taxpayers surely understand that conditions such as visual impairments and learning disabilities, where these are severe and enduring, are much less likely to fluctuate than, for example, psychological distress. Indeed, it makes sense that people who cannot navigate due to a visual or cognitive impairment are likely to have a higher level of need and therefore face higher costs.

Some noble Lords seem to believe that the world would be different if only their party was in power. Yet where their party is in power, running councils such as Lambeth, it is adding to the cost of living with a disability. One way in which it is doing this is by giving parking tickets to disabled people who come home late from work to find that there are no parking spaces available outside their home and therefore have to park on yellow lines. Will the council give them a designated disabled parking space outside their home, as would happen less than a mile away in Westminster? No, it is not council policy. So today, in 2017, Lambeth Council is penalising some disabled people and imposing extra costs on them for a need directly related to their being disabled. What a policy. How do I know it is doing this? Because I am the person who cannot find anywhere else to park after returning home late from your Lordships’ House, yet my request for a designated disabled parking bay has been rejected out of hand.

This is just one example of why we urgently need to join the dots on disability if more disabled people are, as we all want, to live independently and work. Until we join those dots, I cannot in all honesty justify expecting taxpayers to be even more generous in helping to meet the extra costs of living with a disability, when the state itself imposes such indefensible extra costs on disabled people. Despite my sincere and profound respect for the noble Baronesses, Lady Campbell of Surbiton and Lady Thomas of Winchester, I therefore cannot support the Motions.

My Lords, I have been listening to the debate and am concerned that the nature of our discussion may not reflect the actions that the Government are taking. I understand that the Government are laying these regulations in response to a court case which has broadened the eligibility criteria of the PIP assessment beyond the original intent that this House voted for, at a potential increase in cost of £3.7 billion.

I want to be clear that I am pleased to be part of this House—a House that has done so much to ensure that the rights and needs of those with disabilities are upheld. That is why I have spoken on the importance of halving the disability employment gap, and why I have supported my noble friend Lord Shinkwin’s Private Member’s Bill.

Like all of us in this Chamber, I believe that a decent society should always recognise and support those who are most vulnerable. However, I have read carefully what the Minister said in the other Place, and I do not think that this is what is at stake here. Despite the wording of this fatal Motion and Motion to Regret, it is worth reflecting on the fact that we in this country rightly spend more on supporting people who are sick and disabled than the OECD average. We rightly spend around £50 billion a year to support people with disabilities and health conditions. However, if you listened to the speeches in the Chamber this evening, you would think that these regulations were about to reverse this level of support and the protections that are in place. Will my noble friend the Minster confirm that this is not the case and that the level of support that this House legislated for will be protected?

The wording of the regret Motion tonight suggests that the regulations discriminate against people with mental health problems and could put vulnerable claimants at risk but, again, it is my understanding that the Government have laid these regulations to address the impact of the court case which broadened the eligibility of PIP beyond the original intent voted for by this House. Will the Minister confirm that this is indeed the case and that there are no further savings beyond those that were legislated for here in this House that are being sought?

Both Houses of Parliament voted for the changes from DLA to PIP, and one key reason for this was a recognition that PIP focuses support precisely on those experiencing the greatest barriers to living independently. At the core of PIP’s design is the principle that awards of the benefit should be made according to a claimant’s overall level of need, regardless of whether claimants suffer from physical or non-physical conditions, and it has been good to see that 28% of PIP recipients with a mental health condition get the enhanced-rate mobility component, compared to 10% receiving the higher-rate DLA component, and that 66% of PIP recipients with a mental health condition get the enhanced-rate daily living component, compared to 22% receiving highest-rate DLA care. It is precisely because PIP improves support to those with mental health problems, addressing a discrimination inherent in DLA, that this House supported the legislation in the first place. Will the Minster confirm that this remains not only the intent of PIP but the reality, and that the regulations restore the original intention of PIP, which was to make sure there is a sustainable benefit to provide continued support to those who face the greatest barrier, whether physical or mental, to living independent lives?

My Lords, I shall forgo the right to speak as extensively as I otherwise would, but I shall do three things. First, I very much support the Motion of my noble friend Lady Sherlock, and the manner in which it was spoken to. Then I wanted to ask the Minister a question about the original policy intent, because we have heard it as a justification for these regulations on a number of occasions. Can we be very clear on this? The Government pray in aid the PIP assessment guide as evidence to the original policy intent, but can we understand precisely when that and the detail were discussed by Parliament—not by officials but by Parliament—to be able to justify the claim that was made?

Finally, on the finances, we should not forget in all this that PIP was introduced against a backdrop of the predecessor, DLA, having a 20% cut in its budget. We talk about the implications of government costs of £3.7 billion, but let us just remember that forgoing that cost to government means resources to disabled people are lost as well. While £3.7 billion is what the Government might save from this, the losers are the disabled community, to a massive extent.

My Lords, I get the impression that the House would like me to move this debate towards a close, so I shall deal with some of the points that have been made during what has been a wide-ranging and, at times, an obviously impassioned debate all across the House. I recognise the concerns that have been raised and welcome the opportunity to respond on behalf of the Government. I hope to make matters clear, and provide reassurances on a number of points.

We are committed to ensuring that our welfare system provides a very strong safety net for those who need it. That is what all our reforms over the last few years have been about. That is why, as my noble friend Lady Stroud said, we spend over £50 billion a year just on benefits which support disabled people and those with health conditions. Spending on the main disability benefits went up by more than £3 billion over the course of the last Parliament—under a coalition Government, I remind the noble Baroness, Lady Bakewell—and is set to be at a record high of nearly £23 billion this year. Personal independence payment is part of that support and provides help towards the additional costs that disabled people face, providing them with greater opportunities to lead full, active and independent lives. We all agree that this is the point behind PIP.

At the core of PIP’s design is the principle that awards should be made according to a claimant’s level of need, and not to whether their condition is physical or non-physical in nature. I will say more about parity of treatment in due course. This approach, by design, ensures that the focus of support is on those who have a higher level of need, greater limitations on their ability to participate in society and higher costs associated with their condition. However, the recent legal judgments, to which noble Lords have referred, have interpreted the assessment criteria for PIP in ways that are different from what was originally intended by the coalition Government, which the party of the noble Baroness, Lady Bakewell, was part of. We have therefore, as the tribunal has asked, made amendments to clarify the criteria used to decide how much benefit claimants receive. That both restores the original aim of the policy previously agreed by Parliament—that followed extensive consultation—and adds essential clarity to it.

It is important at this stage that I emphasise what the changes are not. They are not a policy change. They are not, as the right reverend Prelate the Bishop of Winchester and the noble Lord, Lord Low, seemed to imply, inconsistent with the primary legislation. They are bringing clarity to that legislation and to the regulations which we put forward, as the tribunal asked. In answer to the question from the noble Baroness, Lady Sherlock, they will not result in any claimants seeing a reduction in the amount of PIP previously awarded by the Department for Work and Pensions. As said by my right honourable friend, the Secretary of State, in his Statement in the other place, which I repeated to this House, and to which the noble Baroness responded, there will be no further welfare savings in this Parliament beyond those already legislated for. It is inaccurate to describe this as a cut: it is merely the reassertion of the original policy intention.

It is entirely appropriate for the Government to act to restore clarity to the law, particularly as that need for clarity was sought by the tribunals. Governments, including ones supported by the noble Baroness, have done so before and will no doubt continue to do so in the future. It is the duty of the Government to issue these orders and to make policy: it is for the courts to interpret it. Where there is a need to bring clarity it is for us to do that. It is appropriate that we try to restore a policy aim where that aim has been forgotten. Let us not forget that PIP, and the regulations under it, were developed and approved under a coalition Government—I have made this clear to the noble Baroness and do so again—which I believe she supported. I am also grateful to my noble friend Lord Shinkwin for reminding the House of the words of the Deputy Prime Minister at the time, Mr Clegg, about how decisions have to be made and how important it is to maintain the trust of those who have to pay for the benefit system as well as those who benefit from it.

I repeat that the Government are not making any changes whatever to the original policy intent. That intent was the subject of considerable debate on the part of noble Lords on all sides of the House when the original Bill passed through both Houses. Noble Lords and noble Baronesses will remember that. However, I am mindful that many of those who have spoken today wish to see a review. That is what the Motion of the noble Baroness, Lady Sherlock, seeks—a review of these policies. We want to ensure that our policies are working and are being delivered effectively. Within the department we will continue to regularly review our policies, including PIP. I also wish to remind the House that this Government have already introduced two formal statutory reviews of PIP, and that we remain committed to publishing Paul Gray’s independent review by April 2017—that is, by the end of this month—as set out in legislation.

The Government are looking forward to considering the latest findings from this independent review. We will provide a full response to that independent review conducted by Paul Gray later this year. I will not speculate about what our response to that review will be before I have seen it. However, I can give an assurance that the House will consider the latest findings very carefully once the report is published, and that a full response to those recommendations will be provided some time later this year. Despite the report not yet having been published, we remain committed to continuous improvement. For example, we are making improvements to the PIP assessment and to our decision-making, and improving the advice we provide to claimants to guide them through the process.

Noble Lords expressed concerns about mental health and the assessments thereof. Supporting people with mental illness will continue to be a priority of this Government despite what the noble Baroness, Lady Bakewell, said. That is why we are spending more on mental health provision than ever before. Taking all things together, I think it is now estimated to be something of the order of £11.4 billion this year.

We are working with the health service to join up the health system, the welfare system and society more widely so that we focus on the strengths of people with disabilities or health conditions and what they can do. It is for that reason that in the summer of 2015 the Work and Health Unit was created with the Department of Health, and why, in October 2016, we published Improving Lives, the work and health Green Paper, to seek a wide range of views on how best to achieve that aim. In PIP we have ensured parity of treatment between mental and physical conditions. I offer that assurance to the noble Baroness, Lady Bakewell, the right reverend Prelate the Bishop of Winchester and all others who have asked for that parity of treatment. It achieves that by looking at the overall needs of an individual, not just what conditions they have. The whole point—if I can put it this way—of the PIP assessment is to distinguish between those differing levels of need. There is no discrimination in that. This approach means that there are more people with mental health conditions receiving the higher rates of both PIP components than the DLA equivalents. I again cite figures: 28% of PIP recipients with a mental health condition get the enhanced rate mobility component compared with 10% receiving the higher rate DLA mobility component.

Throughout each draft and in the final version of the assessment criteria, the department was clear that what is referred to as mobility activity 1 was designed to assess the impact of mental, intellectual, cognitive and sensory impairments on the ability to plan and follow a journey. The Government’s intention when developing and consulting on the assessment criteria was that psychological distress should be relevant only to descriptors b or e. I am getting technical here but those noble Lords and noble Baronesses who understand these things will understand that. Those would score four or 10 points respectively. Psychological distress fluctuates and may be amenable to treatment. Where the impairment is severe and enduring, with conditions such as a learning disability, it is less likely to fluctuate. Someone with psychological distress may need reassurance and prompting, while conditions such as a severe learning disability can lead to the need for supervision, physical intervention and support above and beyond simply reassurance. However, I make it clear that someone with a mental health condition can score the highest points on mobility activity alone and receive the enhanced rate of PIP.

I do not know whether the House would like it, but if it would, I could give examples at this stage. However, perhaps at this stage I will confine myself to just one, which relates to the points raised by my noble friend Lady Browning, on the problems of those with autism. I can give an assurance that as regards someone with a development disorder such as autistic spectrum disorder, which affects their ability to work out where they go, follow directions or deal with unexpected changes in a journey, if their disorder results in them having difficulty assessing and responding to risks, or impulsivity, they could also score 12 points under descriptor f on the basis that they need to be accompanied for their own safety.

Let me be clear. Our approach in developing PIP and the amendments we have made is not about the Government attaching a higher value to one condition over another—again, I go back to that parity of treatment—nor is it, as the noble Baroness’s Motion suggests and as some noble Lords have suggested today, discriminatory or in conflict with our support for people with mental health conditions over those with physical conditions. PIP will continue to ensure parity between mental and physical conditions by looking at the impact of all conditions on an individual and their level of overall need, and not at what conditions they have.

Briefly, on the points raised about SSAC and consultation, again, this was dealt with by my right honourable friend when he made a Statement in another place; I do not think it was raised particularly here when the Statement was repeated. However, I can give the assurance that in light of the significant and urgent consequences of the judgments, those amendments were presented to the Social Security Advisory Committee after the regulations were laid on 8 March. We welcomed the response we received from the committee, which was that it did not wish to have the regulations referred to it for public consultation. We have also responded in full to the recommendations made by the committee. In particular, we made it clear that we are committed to continuous improvements, and, as such, we recognise that it is important both in terms of quality and consistency to ensure that PIP policy is clearly articulated. We also made it clear that we will ensure that health professionals who carry out the PIP assessments fully understand what the amendments mean, and if necessary, we will clarify the policy intent in the next version of the PIP assessment guide, which is scheduled for publication later in the spring.

On the concerns expressed that there was not a sufficient engagement or consultation with others, I can give an assurance that my right honourable friend has spoken to a large number of organisations. He has certainly seen representatives from Mind, the Epilepsy Society and Scope, and my honourable friend the Minister for Disabled People has spoken to other stakeholders. My right honourable friend, as I think is now quite well known, rang the Opposition to tell them about the amendments being laid, but unfortunately he did not receive a response to his call for some four days, because they did not listen to their answering service. Similarly, I spoke to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Bakewell, and I am grateful to her for reminding the House that I did so from the streets of Copeland—she will remember what happened there. However, we consulted and made it quite clear that we were putting out these new regulations. We have continued to engage with all concerned in this matter and we will continue to do so in the future.

I end by reiterating what the regulations do. They restore the original aim of the policy debated at considerable length in both Houses of Parliament. They ensure that we deliver PIP in line with its original intent—again, as discussed by this House and another place—and they add clarity to the rules for all users. We ensured that the changes were made as soon as possible so that claimants were not left in the unenviable position of not knowing what would happen to their claim. I stress again that the changes will not result in claimants seeing a reduction in the amount of PIP previously awarded by the Department for Work and Pensions. On that basis, I ask the noble Baroness, Lady Bakewell, to withdraw her Motion, and I trust that the noble Baroness, Lady Sherlock, will not feel it necessary to move hers in due course.

My Lords, I thank the Minister for his response and I thank all those who have taken part in this critical debate, as well as those who were not able to speak because of the time limitations. Time prevents me from commenting in detail on all the contributions, although I would have wished to do so.

Naturally, I am disappointed that the Government are reluctant to move their position so as to support people whose lives are blighted by psychological and anxiety disorders. That was not the original intention of the coalition Government’s move from disability living allowance to the personal independence payment, and I do not believe that the changes bring either clarity or parity. The role of PIP as a successor to the DLA is to support disabled people to meet some of the additional costs of disability. Unlike other aspects of the welfare system, PIP is not an income replacer or booster; it is to help tackle the financial penalty of disability.

I regret that these regulations do not engender trust, and a great many people in the community and those charitable organisations that support people with mental health and psychological disorders will be bitterly disappointed by the Government’s response.

I understand the position of the Labour Benches and commend the noble Baroness, Lady Sherlock, for her, as always, formidable approach to this matter. However, this is an extremely important matter that affects a whole range of people in society, including those suffering from post-traumatic stress disorder, panic attacks and psychotic disorders. The Minister may have spoken to charities but clearly he did not convince them, as Scope, the Disability Benefits Consortium, Sense, Citizens Advice, Rethink Mental Illness and Mind have all said the same—that this decision should be reversed. I therefore want to test the opinion of the House.