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Government decision not to appeal the high court decision on PIP mobility descriptors

SusiQ Member Posts: 9 Connected
edited January 2018 in PIP, DLA, and AA

I have a diagnosed ASD (Autism) and, after a late diagnosis in December 2016 (aged 58) I applied for PIP. After a Face to Face Assessment with ATOS, I was finally awarded Low Care Award and Nil Mobility component dated 20th March 2017.

I asked for a Mandatory Reconsideration with support from my GP, Autism Support Worker and Consultant Psychologist, but DWP refused to alter my Award.

I appealed,and finally attended a County Court Tribunal on 11th January 2018

I won an increase to my Care Award, which was increased to "High Level", however, the Judge stated that, although under the old Descriptors (prior to March 2017) I would have been eligible for a Mobility Award, under the new Descriptors, "Psychological distress" is no longer considered relevant when looking at an individuals ability to undertake journeys.

The Judge informed me that, as DWP had applied the new Descriptors unilaterally, and without advice/consultation with Disability Groups etc, the decision had been taken to the High Court to be challenged in December 2017.

Although the High Court ruled in the Disability Groups favour, and stated that the change to and application of the Mobility Descriptors was illegal, the DWP appealed, and was granted leave for a Judicial Review.

At the time of my Tribunal (11.1.18) it was not known what the outcome of these legal wranglings would be, and therefore the Judge had no alternative but to apply the Descriptors as they stood on the day of my Court appearance. My Nil mobility award was therefore upheld.

I now learn that DWP have decided NOT to appeal the High Court's decision, and have withdrawn their Judicial Review request - re-establishing the original Descriptors. This means that I WOULD now be entitled to the mobility Award.

My question is this....has anyone else got caught up in this debacle?

Additionally, is it best for me to appeal through Second Tier Tribunal at Court (I am still within 1 month of my initial Court decision) or do I have to go back to DWP and begin the whole appeal process again through "Change of Circumstances"?

Also in the statement that was issued by DWP, they intimated that they would be looking at claims, and contacting anyone who had been in receipt of a reduced Award as a result of the legal changes, but how can they possibly achieve this? Are they going to re-assess every PIP Claim submitted after March 2017?

All thoughts/experiences/advice would be welcomed....


  • Pippa_Alumni
    Pippa_Alumni Scope alumni Posts: 5,798 Disability Gamechanger
    Hi @SusiQ, and welcome!

    Thanks for sharing this with us, it sounds like it's been a long and complicated process for you. I've moved this to our ask a benefits advisor category, in case they can offer any advice. 
  • [Deleted User]
    [Deleted User] Posts: 215 Listener
    Hi @SuzyQ I myself was wondering this ..My mum had her first pip assessment from Dla on your court day I would also like to know if this would be considered when they make her decision too 
  • CockneyRebel
    CockneyRebel Member Posts: 5,216 Disability Gamechanger
    Hi SusiQ

    For a change of circumstance you would need a new or significantly worsteded condition

    Application to UTT is usually on an error or law. You should ask for a statement of reason from the judge then seek trained advice

    You might be able to argue that at the time of your hearing the desciptors that applied were those that had been reinstated in december but I am not a lawyer

    Be all you can be, make  every day count. Namaste
  • SusiQ
    SusiQ Member Posts: 9 Connected

    Many thanks for the comments above.

    I am in a real dilemma here as I am not in a position to be able to afford Legal Advice from a Solicitor (Legal Aid has virtually disappeared) and CAB etc are not sufficiently trained in Disability Law to be able to give me an answer.

    I am under a "ticking clock" in having to lodge an Appeal to UTT, and doubt that I have sufficient time to find someone to help me within the statutory time period.

    There has not been a significantly worsened condition. I was appealing my initial award as it was wrong! The Judge agreed at the time of Tribunal that I would have had the Mobility Award applied, if the Judicial review had been heard, and the High Court decision upheld on the 11th January - however she had no choice but not to alter the mobility component as she had to apply the new Descriptors that were in place on that date.

    I am thinking that my only option is to try through UTT, and state that I believe there to have been an "error of law" applied due to the old Descriptors being re-instated a few days after my Tribunal date.

    At least then I have exhausted that avenue of Appeal within the timeframe. If that fails then I will have to go down the Change of Circumstance route....

    Why oh why oh why does DWP think it appropriate to treat Disability in this cavalier fashion? Why am I (and everyone else on this Forum!!!)being subjected to this level of stress and distress to simply claim an entitlement?

    I am not a Lawyer, I simply would like a Government Department to turn round when surrounded by Medical evidence and say "Ah yes, we will advise you correctly and treat you with some kindness and respect, to enable you to live an independent life"

  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    Okay, so where we are now is that DWP were hammered in the RF case and have chosen not to appeal. As McVey has no positive history with disability and benefits at all I think you can assume this is just the calm before a much bigger storm. That aside...

    RF (which quashed the overwhelming psychological distesss changes) was the authority on this type of case at the time of your appeal hearing and the tribunal absolutely had no choice but to follow that. On the date of your appeal hearing there was no pending appeal at all so what they told you was nonsense and wrong in law. All that’s happened this week is DWP confirmed that they won’t be appealing. All you now need to do is to apply to HMCTS for a set aside on the basis that the tribunal got the law hopelessly wrong and should have applied RF. It should not be a big issue but it does mean your case would be heard from scratch so you’d be arguing for enhanced rate daily living again.
  • SusiQ
    SusiQ Member Posts: 9 Connected

    Your response is very much appreciated Mike.

    I have, this morning compiled a letter to the Clerk of the Court asking for an SOR, but detailing the reasons that I am requesting this. I am sincerely hoping that at some point there will be a "Human Face" behind this rather than "The Computer says NO" approach, however, I won't hold my breath!

    I had to act swiftly as I was conscious of the time constraints for UTT

    I am being exceptionally "dim" but could you explain "RF"?

    Would an application for a "Set aside" be the next stage for me if the request for an SOR is rejected? As far as I am aware my application for the SOR is due to a "Legal Issue" at the time of the Decision Notice, and would therefore act as a "Set aside" anyway?

    I actually do not think that I would be either physically or psychologically able to go through a full DWP review/MR/F2F and Tribunal again. This last one took a very severe toll on my health. I thought that this would be the end of it after Tribunal and pushed on until then, in the expectation of recovery time. Instead I find that I am at the end of the Marathon and a DWP official nips out from behind the Finish Tape, whips me, laughs and says "Ah....did you think that was it...Oh No...there's another 15 miles to run"!

  • mikehughescq
    mikehughescq Posts: 8,847 Connected

    Provided you are within the month then a request for a SOR cannot be rejected. You should also have asked for the record of proceedings though.

    RF was basically the challenge to the decision to exclude overwhelming psychological distress from the PIP mobility regs. DWP argued that this restored the original policy intent. RF argued that it directly discriminated against those with mental health issues. It's one of the rare cases I'd recommend reading a decision because it's damningly funny. DWP lost on all 4 branches of argument and so comprehensively it would have been extraordinary if they had appealed.

    One of the key things for me was that the court reviewed the evidence what the original policy intent was and found literally nothing. There was no original policy intent other than to save money and the court actually say that. It's brilliant.

    Once you have a SOR and ROP, yes, just ask for a set aside on the basis that the tribunal completely misread and misrepresented the state of play on the date of your hearing i.e. they simply got the law as it stood wholly wrong.


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