“22. [PIP] will maintain the key principles of DLA, providing cash support to help overcome the barriers which prevent disabled people from participating fully in everyday life, but it will be delivered in a fairer, more consistent and sustainable manner. It is only right that support should be targeted at those disabled people who face the greatest challenges to leading independent lives. This reform will enable that support, along with a clearer, more straightforward assessment process.” 23. “[DLA] has become confusing and complex. The rising caseload and expenditure is unsustainable, the benefit is not well understood and there is no process to check that awards remain correct. That is why the Government will reform DLA, to create a new benefit, [PIP], which is easier to understand, more efficient and will support disabled people who face the greatest challenges to remaining independent and leading full and active lives.”
“Question 6: How do we prioritise support to those people least able to live full and active lives? Which activities are most essential for everyday life? Question 7: How can we best ensure that the new assessment appropriately takes account of variable and fluctuating conditions?”
“28. At present, the higher and lower rates of the DLA mobility component are based on different criteria. With the exception of some automatic entitlements, higher rate mobility is generally awarded for physical health conditions or impairments, whereas lower rate mobility is linked to the need for supervision or guidance when outdoors. This means that there is some overlap between lower rate mobility and the care component, as the care component is largely based on the need for supervision or attention. In the new assessment, there will be separate criteria for each component, based on an individual’s ability to carry out certain everyday activities. These criteria will determine entitlement to both the standard and enhanced rates of the component, depending on the impact of a health condition or impairment.”
“1.4 We have… sought to develop an assessment which considers and reflects the impact of a broader range of impairment types than [DLA]. We believe our proposed assessment will take better account of sensory impairments, developmental disorders, learning disabilities, cognitive impairments and mental health conditions. 1.5 … These regulations will be subject to further developmental work and refinement and are not intended to be a final version…”
“42. The descriptors continue to differentiate between the use of aids such as walking sticks and crutches; self-propelled manual wheelchairs; and wheelchairs propelled by others or a motorised device. This ensures that the extra costs associated with some mobility aids are reflected.”
“Personal Independence Payment: Assessment Thresholds and Consultation”
“3.6 For the Mobility component, the proposed thresholds reflect and differentiate between the extra costs incurred by an individual requiring support to get around. They also ensure that individuals whose ability to get around is severely impacted by impairments affecting either physical or non-physical ability can receive the Mobility component at the enhanced rate – reflecting our key principle of developing an assessment which considers the impact of impairments equally, regardless of their nature. 3.7 For [the Moving around activity], individuals who use aids and appliances to move very short distances can receive the standard rate, reflecting the extra costs incurred, while those who need wheelchair to do so will receive the enhanced rate, reflecting the additional extra costs, barriers and overall level of need which often accompany wheelchair use… 3.8 We recognise that there are likely to be strong views on the entitlement thresholds and how these relate to the descriptor weightings previously proposed. We have now begun a further consultation on the second draft of the assessment criteria, including the weightings and entitlement thresholds, and would welcome any views that people and organisations have.”
“Q3 What are your views on the latest draft Mobility activities? In the explanatory note we set out revised proposals for the activities relating to entitlement to the Mobility component…. Are the changes an improvement? Do you think we need to make any further changes? Q4 What are your views on the weightings and entitlement thresholds for the Mobility activities? In the explanatory note we set out proposals for the weightings of descriptors in the activities relating to entitlement to the Mobility component…. In this document we have set out the entitlement thresholds for the benefit. How well do you think they work to distinguish between differing levels of ability in each activity? How well do you think they work to prioritise individuals on the basis of their overall need? Do you think we need to make any changes to weightings or thresholds?”
“50. ... In particular, the document did not give any breakdown as to how much of the likely reduction was attributable to the more rigorous assessment framework for PIP and/or the arrangements for the reviews of entitlement; nor did it indicate how many claimants were projected to qualify for PIP enhanced rate mobility as falling within the Moving around descriptor on the basis of physical disability, and how many were projected to qualify under the Planning and following a journey descriptor on the basis of non-physical disability. It simply said (at paragraph 4.17): Two thirds of the current [DLA] caseload is made up of physical function conditions and one third mental function conditions. The 1.7m modelled [PIP] eligible caseload has a similar split between physical and mental function conditions.”
“1.3 … We have re-written the Moving around activity to make it easier to understand and apply. The feedback we received from most respondents showed this activity was not clear. It was commonly believed that only people who use wheelchairs could qualify for the enhanced rate of the Mobility component from this activity, despite this not being our intention. … 6.21 A considerable number of comments reflected significant concern that the enhanced rate of the mobility component would only be available to individuals who use wheelchairs. Concern was raised that individuals who do not use wheelchairs but face considerable barriers to physical mobility – such as those faced by many bilateral amputees – might miss out on the component. This has never been the intention of this activity. Some of the descriptors referred to wheelchairs but this was to establish whether an individual might need a wheelchair to move around in a reliable way, not whether they currently have or use one. If they were assessed as needing a wheelchair to be able to move up to 50 metres in a reliable way, they could be awarded the enhanced rate of the benefit, regardless of whether they actually have a wheelchair. For example, an individual who uses a frame might be able to walk 50 metres but in a way that is unsafe or takes a very long time. In such circumstances they might be assessed as needing a wheelchair to move this distance reliably. However, the activity was clearly confusing and concerning to people and as such we have re-written it to make the policy intent clearer. 6.22 The activity has been refocused to look at an individual’s ability to ‘stand and then move’ a certain distance. In this way the activity continues to concentrate solely on an individual’s physical ability to move around.… 6.23 The revised criteria do not make any reference to wheelchairs, removing the confusion this caused in the second draft. We believe that the amended criteria – while not changing the policy intent – are clearer to apply and ensure fair outcomes to individuals who face physical barriers to mobility. …. 6.27 Respondents pointed out that, due to the fact the descriptors referenced distances ‘up to 50 metres’, individuals who can move only very small distances, but who do not require a wheelchair, would not qualify for the enhanced rate of the mobility component, despite having significant mobility restrictions. In the revised criteria we have changed the descriptors to make clear that those individuals who do not need a wheelchair but can only move short distances of less than 20 metres will qualify for the enhanced rate.”
“20 metres is considered to be the distance that a claimant is required to be able to walk in order to achieve a basic level of independence in the home such as the ability to move between rooms. 50 metres is considered to be the distance that a claimant is required to be able to walk in order to achieve a basic level of independence such as the ability to get from a car park to a supermarket. 50 to 200 metres is considered to be the distance that a claimant is required to be able to walk in order to achieve a higher level of independence such as the ability to get round a small supermarket. ”
“107. ... due to the lack of clarity in the 2012 Consultation as I have found it to have been, consultees reasonably considered that earlier proposal to include a 50m threshold. It seems to me that a reduction in threshold from 50m to 20m would at least arguably be a radical change. In any event, in my view a change from the wheelchair requirement (based upon the assumed additional costs involved in wheelchair use) to a 20m threshold condition (based upon an assumed ability to get round the home, a completely new basis for a criterion, to that time the focus being exclusively on the ability to move out of doors) is more than arguably a radical change in proposal such as to make a consultation process, without an opportunity for those affected and interested to make comments upon it, unfair.”
“111. For those reasons, had it been necessary for me to have determined whether the consultation process would have been fair if it had stopped at December 2012 or February 2013, the question would have been difficult and it should not be assumed that I would have found it to have been fair and lawful. Indeed, I have the gravest doubt as to whether I would have found it to be so. ”
“We have received feedback from some disabled people and their organisations saying that they are unhappy with the changes that were made to the assessment criteria for the Moving around activity as a result of the consultation and want a further opportunity to have their views considered.”
“2.2 This means that anyone who cannot stand and then walk 50 metres safely, to an acceptable standard, repeatedly and in a reasonable time period automatically receives at least the standard rate of the Mobility component of PIP. People who cannot stand and then walk more than 20 metres safely, to an acceptable standard, repeatedly and in a reasonable time period receive the enhanced rate. People can also receive the standard or enhanced rate by adding together points from the Moving around activity and the Planning and following journeys activity. 2.3 Our intention has always been to focus the enhanced rate on those with the greatest barriers to mobility. In early drafts of the assessment we considered both how far a person could move and whether they needed an aid, appliance or a wheelchair to do so. However, the consultation responses we received indicated that this could be confusing if a person did not currently use an aid, appliance or wheelchair. The criteria set out in the current Regulations focus mainly on distance and 20 metres is used as a benchmark distance for determining whether someone is entitled to the enhanced or standard rate for people who do not also score points on the Planning and following journeys activity. 2.4 The benchmark of 20 metres was intended to allow us to distinguish between those who are effectively unable to get around due to physical mobility – for example, people who are only able to move between rooms in their house but go no further – and those who have some, albeit limited, mobility. We thought that these criteria could be applied consistently and would make it easy to differentiate between people who should be receiving the enhanced and standard rate….”
“What are your views on the Moving around activity within the current PIP assessment criteria?”
“We are not consulting on the Planning and following journeys activity or any other aspect of the assessment.”
“3.4 At present, for the reasons set out in paragraph 2.4 above, our preferred option is to retain the version of the assessment criteria for the Moving around activity set out in the current Regulations. However, we are carrying out this consultation in a fully open-minded manner and will carefully examine all the evidence provided. If we consider that we need to make changes to the Moving around activity once we have analysed all the representations received, we will do so. 3.5 In reaching our decision we will consider how any potential changes might affect individuals and the numbers of people likely to receive the benefit. We will also consider the potential impact of any changes on PIP and overall welfare expenditure and whether this is affordable and sustainable. We will publish a report summarising the responses received and how we reached our conclusions, once we have completed the consultation.”
“i) there is no evidence-based rationale behind 20 metres; ii) the current criteria are excessively tough with negative consequences on the daily lives of individuals with significant physical impairment; iii) the consequent increased costs of other public services as a result of lost mobility will outweigh the savings achieved through PIP; and iv) the reliability criteria will not be delivered appropriately or correctly, undermining assessment (paragraph 2).”
“63. PIP has been developed with a recognition that to achieve these goals will result in some reprioritisation and therefore losers as well as gainers and without doubt the criteria for assessing physical mobility in PIP are tighter than those in DLA. The first figures on the likely impact of PIP on the benefit caseload in January 2012, since updated, made clear the scale of the impact in relation to the Mobility component. It has become increasingly apparent, however, that while they had seen the numbers, many people only fully appreciated the reality of the impact on DLA recipients with physical impairments once the current criteria, with the 20 metre distance, were published. 64. The responses to the consultation, and in particular the many case studies and examples provided, highlight the potential impact of the loss of benefit on disabled people. While we think that in many cases these examples represent a worst-case scenario – often not considering alternative forms of support available and in particular not taking into account the effect of the reliability criteria – there is no doubt that for those individuals who lose benefit there will be consequences, financial and potentially more widely. As above, this was recognised from the outset. In developing the PIP assessment we were aware that the vast majority of recipients of DLA were individuals with genuine health conditions and disabilities and genuine need, and that removing or reducing that benefit may affect their daily lives. However, we believe that these impacts can be justified as being a logical result of distributing limited resources in a different and more sustainable way, provided we have analysed the potential impact and explored the possibility of mitigating that impact, and provided the method of determining who receives the benefit is fair”
“9. Should you wish to change 20m to 50m, this would create a DEL [Departmental Expenditure Limit] cost of£3m and reduce scored PIP AME [Annually Managed Expenditure] savings by£936m by 2018. HMT [HM Treasury] are highly likely to ask DWP [the Department for Work and Pension] to fund both from existing budgets.”
“4.2 Throughout the development of PIP, the Government recognised that achieving these goals would result in some reprioritisation of expenditure and therefore some people would lose and some gain. 4.3 When developing the Mobility criteria, we were aware that although DLA includes deeming provisions which award the higher rate Mobility component to claimants who are deaf blind, severely visually impaired and severely mentally impaired, the higher rate Mobility component is predominantly awarded to claimants with physical mobility difficulties only. The DLA lower rate Mobility component has been awarded to those individuals who require guidance or supervision outdoors. This means that many claimants with mental, intellectual and cognitive impairments do not receive DLA higher rate Mobility, despite facing significant barriers to mobility and therefore to independent living. The PIP Mobility component has been designed to reflect the impact of impairments on an individual’s ability to get around, regardless of whether it has a physical or non-physical root cause. The Government was aware that this approach would mean a reprioritisation of finite resources and those individuals with a physical health condition or impairment would be more likely to see a reduction in the mobility support they receive relative to those with non-physical impairments requiring support for moving around.”
“54. After careful consideration, and having due regard to the obligations of the Public Sector Equality Duty, noting the impact of the current PIP mobility criteria on the groups with protected characteristics under the Public Sector Equality Duty; as well as the Human Rights Act and the UN Convention on the Rights of the Disabled People, the Minister decided not to make changes to the assessment criteria, including no changes to the mobility criteria.”
“55. The Minister expressly considered changes to the assessment other than changes to the Moving around activity, although these were the main focus of any considerations. These changes could have been either direct changes to other aspects of the assessment or as a knock-on effect of changes to the mobility criteria; for example, making changes to the points threshold.”
“In respect of this ground, Mr Westgate’s submissions founder on the evidence. The process was of course not perfect. It is unfortunate that the terms of the 2012 proposals were not clearer. It is unfortunate that the 2013 Consultation did not take place prior to the adoption of the Moving around criteria in the 2013 Regulations. However, the test is not whether the consultation process could have been improved; it is whether it was unfair. It seems to me that there is no sensible evidential basis upon which I could find that the consultation process, looked at as a whole, was inadequate or unfair so as to be unlawful. In any event, in my firm judgment, it was clearly not unfair. The Claimant, and other interested parties, had a proper opportunity to make their comments on the 20m criterion in the 2013 Consultation, which the Secretary of State considered with an open mind and without excluding any option as a real possibility. The report to Ministers following the 2013 Consultation was conspicuously full and fair. Those advising were entitled to make a recommendation to the Secretary of State, as they did, to maintain the Moving around criterion as set out in the 2013 Regulations. And the Secretary of State was entitled to come to the same view, having considered all of the options, the evidence and the consultation responses, with an open mind.”