PIP decision-makers receive guidance on mobility component
PIP decision-makers have now received guidance on how to apply the legal changes which were forced on the DWP at the beginning of the year when evaluating applications for the mobility payment.
There are two big areas of difference: psychological problems must be taken into account to a greater extent, and the question of safety must be more fully considered, and whether supervision is required in order for the applicant to undertake an activity safely.
Guidance had already been issued to PIP assessors.
Reversal of law concerning overwhelming psychological distress
The changes brought in by the DWP in March 2017, making it harder for claimants to get an award if they have difficulty going out because of “overwhelming psychological distress”, were overturned by the courts.
In January 2018, the DWP finally dropped their appeal against the decision, meaning that psychological distress should be considered alongside the ability to navigate when assessing the activity of Planning and following journeys.
A separate legal challenge over safety and supervision
As well as the change concerning psychological distress, the other area where guidance has been issued is over safety and supervision in following a route.
This follows a case known as RJ, which interpreted the law in this area in a way which contradicted the DWP’s position that a person should only be eligible for support if the risk of harm is likely on more than half of the occasions when they undertake the activity.
The Upper Tribunal said that rather than just considering the likelihood of harm, assessors and decision-makers should also consider the possible severity of harm if it should occur. The greater the possible harm, the lower the threshold of likelihood of it occurring needs to be.
Guidance to decision-makers on “following the route”
PIP mobility activity “Follow the route” (in 1d and 1f) is not restricted to navigation only; it means making one’s way along a route or going along a route safely.
• Previous to [the Upper Tribunal case known as] MH descriptors 1d and 1f were restricted to navigation only, so problems with psychological distress were not considered. Previous to RJ the problems with following the route had to manifest on the majority of days, but post-RJ one has to apply the RJ decision of how safely is to be assessed.
• A claimant who suffers overwhelming psychological distress whilst on the journey and who needs to be accompanied to overcome the overwhelming psychological distress may satisfy descriptor 1d or 1f. Pre-MH this person could only satisfy 1b. Previous to RJ the problems with following the route had to manifest on the majority of days, but post-RJ one has to apply the RJ decision of how safely is to be assessed.
• Descriptor 1b is relevant where a claimant needs prompting to overcome overwhelming psychological distress when setting off on the journey. As someone who needs another person when travelling along a route would satisfy 1d or 1f, descriptor 1b only applies in practice in the circumstance where someone needs prompting to set off on the journey (but would not need another person whilst on the journey itself). Pre-MH someone in this position would have satisfied descriptor 1b also.
• Distress or anxiety short of overwhelming psychological distress is not enough to bring a claimant within descriptor 1d or 1f. The tribunal stated that “Although regulation 4(2A) applies so that the question is whether, if unaccompanied, the claimant can follow a route safely, to an acceptable standard, repeatedly and within a reasonable time period, the fact that a claimant suffers psychological distress that is less than overwhelming does not mean that the claimant is not following the route safely and to an acceptable standard. The threshold is a very high one. Thus, the facts that the claimant was “anxious” and “worried”…and was “emotional”…were not sufficient for those claimants to satisfy the terms of descriptors 1d or 1f because they could in fact complete journeys unaccompanied without being overwhelmed”. Although pre-MH overwhelming psychological distress is not a factor for 1d and 1f (as this is only taken into account for 1b and 1e), the high threshold definition is in line with the term ‘overwhelming’ so should be applied to the pre-MH period and onwards.
The guidance highlights the level of complexity involved in PIP applications. As the review of previous cases which were wrongly assessed finally begins, it transpires that decision-makers may have to make three different decisions on the same PIP mobility claim.
The guidance says that claims to PIP which are made on or after 28.11.16 should be decided in accordance with MH, and claims which are made on or after 9.3.17 should be decided in accordance with MH and RJ.
Claims made before the dates of the relevant determinations should not be considered in light of them. In practice, this means that decision-makers must judge these claims in two different ways.
Firstly for the period up to and including 8.3.17 by consideration of the relevant descriptors using the approach applied in MH, and secondly by consideration of the relevant descriptors from and including 9.3.17, in accordance with the relevant determination in RJ.
160,000 cases were originally scheduled for review in light of the Upper Tribunal judgements, but given the amount of time that has elapsed before the issuing of updated guidance to decision-makers, it is likely that the number of incorrect decisions to be reviewed will have increased.
According to the ministerial statement, the first payments are expected by the end of the summer.
Further reading and resources
For information about applying for PIP, go here
We have an article about various recent changes to PIP here
Record numbers of people responded to the second review of PIP assessments
You can download the full guidance for decision-makers from the Gov.UK website (link will open in a new browser window)