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SPOTLIGHT |
Extensive delays in the determination of two disabled claimants’ applications for personal independence payments (PIPs) were “not only unacceptable….but unlawful”, a High Court judge has ruled.
A non-means tested benefit for people aged between 16 and 65, PIP was created under the Welfare Reform Act 2012. It is intended to help disabled people with the additional costs of living with a disability. The programme it to be rolled out more widely in October 2015.
In MS C & Anor, R (On the Application Of) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin) the delay in claimant C's case was from 9 September 2013 until the determination of her benefit on 24 October 2014 (or 13 months). The delay in claimant W's case was from 3 February 2014 until December 2014 (or 10 ten months).
The High Court was told about the financial difficulties both claimants faced while their applications were being determined.
The claimants had argued the processing of their applications was unlawful as it breached: the duty on the part of the Secretary of State for Work & Pensions to act within a reasonable time; the Article 6 rights of the individual applicants; and Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights.
The claimants’ legal team argued that the proceedings should be seen as a test case, arguing that C and W’s experiences were typical of those of many other claimants.
Mrs Justice Patterson ruled that the delays were unlawful for a range of reasons:
However, on the second ground and “considering the broad purpose of Article 6”, Mrs Justice Patterson concluded that it was not engaged in the these circumstances.
“The decision made by the defendant was a determination of the civil rights of the claimants but the complaint made in the judicial review is dealing with the time before that determination,” the judge said.
“Even on the determination there was no dispute between the parties as the claimants were successful in their claims. As to the time period leading up to the determination of the claims there was no dispute between the parties in relation to that period. The complaint is one of delay within the process of determination of the civil right.”
The judge also rejected the A1P1 claim. “Although the language of the Welfare Reform Act 2012 is of entitlement until a determination has been made judged against the criteria set out in part 2 of the Social Security (Personal Independence Payments) Regulations 2013 and in accordance with the guidance issued to the providers there is no actual right of entitlement,” she said.
The success rate of new claimants for the benefit was in the region of 50% and the cases cited by the claimants provided no support for the proposition that somebody who had applied for the benefit but had not had that application determined had a possession for the purposes of A1P1.
“[T]he delay in determining and delivering PIP could not be an interference with the peaceful enjoyment of that possession. Likewise, the issues of justification and fair balance do not come into play as the article is not engaged," the judge found.
Mrs Justice Patterson said the most appropriate form of relief was to grant a declaration of unlawfulness in relation to claimant C and claimant W.
It would have been inappropriate to grant a declaration in wider terms because of the considerable variations in individual circumstances, she added on the issue of whether it was a test case.
“I do not think it is the role of the Court to give guidance in a situation which has been evolving and with which the defendant now appears to be grappling in a way which is entirely appropriate,” the judge said. “Further, …. the situation has changed and continues to change over time.”
Noting that the claimants sought a notional monetary award for the distress that they had suffered as a result of the delay, the judge said: “As it is agreed that there is no private law right to damages for distress, which is the only ground upon which the claimants have succeeded, I do not think it is appropriate to express any view about what would have just satisfaction under grounds of claim which have failed. Although mandatory orders were sought initially by the claimants sensibly, those have not been pursued at the hearing.”
Anne-Marie Irwin of Irwin Mitchell, lawyer to the claimants, said: “This is a significant legal judgement. A huge number of vulnerable people have been left in the lurch as a result of unacceptable flaws in the PIP system, with Public Accounts Committee chair Margaret Hodge in June last year calling the issues ‘nothing short of a fiasco’. In February 2014, the National Audit Office found that the defendant had not fully assessed performance before starting national rollout of the new claims in June 2013.
“[This decision sends a clear message that the unacceptable delays faced by many people, may also be unlawful.”
Irwin added: “While the decision is undoubtedly welcome and emphasises the clear failings seen with this scheme, attention must now turn to rethinking the planned wider rollout in October until reassurances can be provided that the delays seen in the past are not repeated in the future. In addition, while this case related to two specific clients, it is vital that the other thousands of people who have experienced delays are not forgotten.
“We are now hoping to begin discussions with the DWP to establish a scheme to ensure anyone who experienced a delay which could be deemed unlawful is able to receive some form of effective redress without the need to take court action.”