Thursday 15 October 2015

Appeal of PIP Consultation Judicial Review Not Successful

This morning we received the final judgment in our appeal of the judicial review of the consultation for PIP. The appeal was not successful.

The full text of the judgment is linked below but I will quote here the key paragraphs that my solicitor pointed out.
  1. Once it was accepted, as it had to be on the evidence, that the Respondent approached the 2013 consultation with an open mind, it seems to me that the challenge to the process as a whole must fail. It is explained in the evidence that all options were open as to the “Moving around criteria”, even if that meant changing the criteria for “Planning and following journeys” or looking for funding elsewhere. The reality was that consultees such as Mr Sumpter had every opportunity to present to the Respondent the difficulties that the move from a 50 metre benchmark to a 20 metre one would cause to them. It is clear that such opportunity was taken. In reality, it would have gone nowhere to contend in the consultation that the physically disabled should continue to be favoured at the expense of those who suffered other disabilities. No doubt none would have wished to present such an unattractive argument. Given the Respondent’s overall policy to make PIP available to a wider category of the disabled, new beneficiaries obviously had to come into the equation and there would have been no point in contending that they should be excluded.
  1. …As I understand the law, consultation has to be fair; it does not have to be perfect. With the benefit of hindsight, it will no doubt often be possible to show that a consultation could have been carried out rather better, but that will not necessarily mean that it was unfair. That is what the judge said at paragraph 123 of his judgment and I agree with him.
I note that the judge did draw attention to the choice that the government made to frame continuing to help physically disabled people as unfairly withholding help from people with mental and cognitive difficulties. He did not, however, find it relevant that the consultation failed to admit the government decision to give new help at the expense of help previously available. The judge implied that people responding to the consultation only needed to talk about the difficulties we would face, not about the decision to take money away for use elsewhere.

It should be noted that the government had previously said while defending this case that they know they are removing DLA from “individuals with genuine health conditions and disabilities and genuine need” and “removing or reducing that benefit may affect their daily lives.” (This is a direct quote of words used by the government and quoted in the judgment in 2014 at paragraph 80.)

[PDF] Final judgment PIP judicial review appeal

For further information please contact solicitors for this case, Irwin Mitchell.

Previously on this subject:

PIP 20 metre rule consultation back in court

PIP judicial review: Court rules against us but vindicates our case

Two weeks until PIP Judicial Review – 20 metre limit in the dock

Replacement of disability living allowance headline news for hours

Why I am suing the government

“Lots of folk can’t afford a car”

Monday 12 October 2015

Tory Party Conference: Is Any Disability Benefit Safe?

The “We Hate Anyone Who Needs a Bit Of Help” party had their annual gathering in Manchester last week. And terrifyingly they’ve got a majority government for the first time since the 90s so they can really pull out all the stops.

Lisa, Naomi, the Goldfish, Philippa and David thought we’d take a look at some of the dreadful things they’ve been saying.

Lisa: Does anyone even know how the disability component of WTC will be affected? It’s got to be, surely, even if disabled people only see the basic rate of the credit cut but the disability premium on top stays the same.

David: It’s entirely possible they haven’t even thought of that yet. I was in touch with the Cabinet Office (responsible for all e-gov activities) a month before Universal Credit was due to go live (back when it was just a potential fiasco rather than an utter fiasco), with the original concept of all access being online still firmly government policy, and was told they were just about to start looking into the minor issue that most disabled people aren’t actually online. Competence and government policy don’t necessarily go together.

Though the cut goes so far that even Boris Johnson and David Davis are opposed to the cut.

Lisa: I guess this is Osborne and Johnson laying out their claim for party leadership. Johnson’s trying to portray himself as being the fairer man who might steal some votes from the left; while Osborne is trying to show himself to be the most ruthless to appeal to the most Daily Mail readers.

Before Iain Duncan Smith’s speech he gave an interview to The Guardian in which he vomited out a sentiment he’s been saying a lot lately: That ESA is too binary in either deeming you fit for work or unfit for work.

Lisa: He’s in charge of the whole benefits system and he’s never heard of the Permitted Work scheme? And, I mean, it’s not like he’s one man expected to know everything. He’s got a whole team of advisors and the whole DWP at his beck and call, and still no-one’s pointed out Permitted Work to him? More realistically I think he’s pretending Permitted Work doesn’t exist to the public to try and justify more cuts.

David: Agreed. He’s clearly attempting to mislead the public, there has been a long pattern of this from both IDS and Osborne, starting from the moment they took power. And the problem is the press doesn’t know the details of the schemes, so takes him at his word - or in the case of the right wing tabloids actively shares his intention to mislead. And then the people trust the press to tell them the truth.

Take the line in the article: “his office points out that appeals against ESA decisions fell by 81% in 2014-15 compared with 2013-14.” What his office didn’t point out, and what the non-specialist journalist didn’t know to challenge, is that they suspended a huge number of reassessments due to Atos walking away from the contract because it was destroying their company reputation, so there were fewer assessments happening to need appeals, and that they had introduced an additional hoop for people to jump through, ‘mandatory reassessment’, which can potentially last indefinitely, before they can get to the appeal stage. So we would actually expect the number of appeals to have dropped even if there was no change in how bad the process is.

The Goldfish: ESA is anything but binary and that's actually part of the problem. As someone in the Support Group, I'm not expected to work. But people in the Work Related Group exist in this weird hinterland where they have been found unfit for work, and yet are placed under pressure to move towards and into work - within a year, in the case of those with savings or a working partner - regardless of whether their health has improved.

And yes, there's Permitted Work, which is one thing ESA gets right. Even people in the Support Group are allowed to do small amounts of paid work, if something appropriate comes up.

David: Picking up on WRAG, I’m one of the people in Goldfish’s ‘weird hinterland’, and would have been time-limited from the moment it was introduced in April 2012 if I hadn’t given ESA up as a sick joke at that point. Bizarrely the Equality Impact Assessment for time-limiting insists that this is to make it ‘fairer’. Three and a half years later I’m still just as disabled, with no prospect of that changing.

And in that same interview he also proposes the terrifying prospect of merging DLA and ESA. Or at least merging the assessments.

Lisa: I don’t even know where to start with this. They’re different benefits to meet different needs. ESA is for people who are too ill to work. An ESA claimant may or may not be eligible for DLA. (Also someone should probably remind him that he abolished DLA in the last Parliament and replaced it with PIP.) DLA is available to people in work who obviously aren’t eligible for ESA. Is this merger basically designed to remove DLA from people in work? Which will, obviously, result in people needing to give up work: About 50,000 of them according to the Disability Benefits Consortium.

David: ESA is basically unemployment pay for disabled people who aren’t fit for work. It pays a slightly higher rate than JSA as disabled people have higher costs of living and are likely to be unemployed for longer. As discussed above, many of us will never be fit for work, even those of us in the WRAG (exposes have revealed the DWP targets that force WCA assessors to put people with long-term disabilities into WRAG, leading to the ludicrous situation of people with Cerebral Palsy or MS being told they’ll probably be better in six months). Yet they’re already cutting ESA WRAG back to the JSA rate as they believe we’re all lazy crips who prefer living on the pittance ESA pays while being harassed by DWP. DLA (or PIP), meanwhile, is supposed to cover the extra costs faced by disabled people in their normal life. These needs aren’t going to go away.

The cultural problems within the assessment companies such as Atos, with assessors openly referring to disabled people as scroungers and worse, have been documented in a series of whistleblowing exposes, yet IDS now wants those same disablist bigots to be assessing whether five year olds with spina bifida, CP, autism and all the rest have mobility and care needs. Does anyone see a problem here….

The Goldfish: As I understand it, assessors already take into account what other benefits you've qualified for as part of your assessment and that's seems reasonable.

I think others have covered the ridiculous idea of merging DLA/PIP and ESA. These benefits play completely different roles. It's like merging JSA and Child Benefit.

Naomi: I think the government has been trying to find a way to scrap DLA for working disabled people for a long, long time -- and that PIP is only the first step. Consultant rheumatologist Rodney Grahame, who was chair of the DLA Advisory Board from 1993 until (I believe) 2003, argued for changes in the ‘philosophy’ of DLA for many years. In 2002 he called for mobility aids and wheelchairs to be discounted in DLA applications -- for people who use them not to be seen as disabled, but as operating on the same level as people who carry out activities/mobilise without them. (The man has no concept of the Social Model, nor has he apparently ever watched someone who uses a wheelchair try to board public transport or get into a high street shop.) He has been talking for a long time about how DLA is a disincentive to work - that getting money from the government is a “secondary gain” that encourages people to stop working. (He clearly never grasped the concept of what DLA/PIP is for - which is more than a little worrying, given the position he held.) I’m only aware of his views because of the research I did into rehabilitation. There may be many, many other advisors to the government out there, providing them with similarly terrible ‘expert’ advice.

The government may have a perfect opportunity here to start saying that if disabled people are in work, they don’t need the ‘disincentive’ of DLA/PIP that could encourage them to stop work. This is an extremely nasty ideological attack, both on the universality of DLA/PIP, and on the extra costs that working disabled people have which are not faced by working non-disabled people. Cynical.

David: The ideological attack Naomi suggests here is simply an extension of one that has already begun. In the July budget Osborne justified axing the ESA WRAG component by calling it a ‘perverse incentive’, essentially suggesting that every disabled person in receipt of WRAG would rather stay on the benefit than find work. Meanwhile Dame Carol Black and her mantra that all work is good for disabled people, or Professor Mansel Aylward, architect of ESA and the WCA, are other examples of the advisors feeding profoundly damaging views of disability into government policy.

Philippa: As someone who works and receives DLA, this change concerns me. DLA exists to cover the extra costs incurred by being disabled, and those do not disappear when you start work! Merging it with ESA is a dangerous idea that could really affect working disabled people.

Those people who can only work because DLA / PIP pays their taxis, or pays for someone to help them in the shower in the morning? They’ll end up back on full benefits.

In his speech he described ESA as being “Labour’s something for nothing culture”…

Lisa: Someone needs to explain to him how National Insurance contributions and contributory benefits work. Not to mention that someone needs to give the robot a mode where it can pretend to acknowledge that people who are too ill to work are still human beings.

David: I paid NI for 22 years while I was working, yet my personal situation means ESA time-limited me after a year. There’s definitely someone getting something for nothing here, it’s just not me. Looking at  you, Mr Duncan Smith…

The Goldfish: Quite apart from NI, the state pays for all kinds of things regardless of people’s previous contributions - education is a maybe a disingenuous example, but everyone gets a state pension and so they should. We’re not, thankfully, asked about what taxes we’ve paid before we get medical treatment or police assistance.

ESA is a benefit which sustains people who are not currently able to work because of their ill health. This is hardly a tremendous privilege that ought to be earned.

Lisa: He’s just found another way of wording the sentiment “arbeit macht frei,” hasn’t he? After all these years he still really believes that there are no actually disabled people out there, and we’re all just lazy. If I wasn’t so tired I’d be furious. Of course; he’s not alone. Before him the Labour government thought we were all just lazy which was why they brought in ESA in 2008 to weed out the fakers. Before that the Tories in 1995 brought in Incapacity Benefit because they thought everyone on Invalidity Benefit was a lazy faker. It’s a decades old thing that spans all political parties.

David: IDS basically stood up in front of the entire Tory Party conference, called disabled people lazy scroungers, and was applauded for it. We can pretty much guarantee that the next thing that will happen will be a series of articles in the Tory press about people faking disability and how we’re all idle frauds. The demonisation from the ConDem’s scrounger rhetoric during the last parliament left many disabled people scared to leave their house after being attacked in the street as fakes and scroungers, and IDS seems intent on kicking off a new round.

Picking up on Lisa’s point about ESA and Incapacity Benefit, each of these reforms was brought in with the aim of ‘proving’ there are a huge number of people faking disability, and in each case that has proved not to be the case. No matter how harshly you treat them in the assessment, not matter how much pressure Atos and the like put on doctors and nurses to screw their results, people still turn out to really be disabled. And the only way they can cut the numbers claiming are by changing the rules. I use a wheelchair outside the house, yet I’m not considered to have a severe mobility impairment under the new system because I can walk more than 20m with crutches if I have to.

The Goldfish: It's heartbreaking that ending poverty in our own wealthy country is no longer a national aspiration. Nobody should be in poverty, regardless - unemployed non-disabled people shouldn't be in poverty just because they're not in work right now, let alone those who have no prospect of finding or performing work.

Meanwhile, poverty is incredibly expensive, both for individuals and state. Living in poverty makes it harder for healthy people to seek and stay in work, when they're strugglng to pay for transport, appropriate clothing, childcare and so on. For sick people, poverty is a killer. And all that costs the state, in the cost of folks' deteriorating health and all the myriad social problems that follow on from people living in desperate situations.

Naomi: This is just incredible to read. We know about the glass floor that helpfully stops over-privileged people like the Tories from falling into poverty. We know that social mobility is getting slower and slower. Social evidence suggests that it is now near-impossible to work your way out of poverty, even if you’re not disabled. And disabled people are already up to twice as likely to be living in poverty as non-disabled people. Only the Tories could make that horrendous social inequality personal -- only they could suggest that higher rates of poverty are our own fault. In a society so unequal that we can’t find work because there’s no workable legislation to prevent employers from discriminating against us, and where we can’t find accessible housing so have to live in terrible conditions and pay extra for the privilege, and where we can’t board public transport or find decent NHS care for our conditions, of course we’re living in higher rates of poverty. Yes, the statistics on disability poverty are shameful -- but it’s not disabled people who should be ashamed. This should be a source of shame to our incredibly rich society that can’t find ways to reduce these horrendous inequalities.

Lisa: Great. Now I don’t just have to worry about myself not being able to put food on the table; I have to worry about my dad too. It’s bad enough that I can’t sleep at night worrying about how much his local council are going to cut his care package now the Independent Living Fund has closed. Although; if they did cut pensioner benefits the Tories would be out at the next election because they’d lose the grey vote.

David: And here we see the Taxpayers Alliance working in their true role as the Militant Wing of the Tory Party, and their utter contempt for actual taxpayers, with their Research Director saying they could get away with the cuts because the pensioners affected (who are taxpayers, remember) would either be dead by the next election, or too senile to remember. The cynicism, and disablism, is breathtaking.

The Goldfish: I really hope they shot themselves in the foot with this one. Pensioners vote and while we don't always look over our old folk that well, people generally care about their parents and grandparents. Folks who might be dead or forgetful in five years time will have friends and families who won't forget or forgive. This makes me optimistic that it simply won't happen.

The Winter Fuel Allowance is an excellent way of tackling preventable illness and death. Yes, folk living longer means more disabled people in the world, but having to treat pneumonia, hypothermia, chilblains and other cold-related conditions is surely less cost-effective than the yearly payment to everyone over 65.

(It's a common misconception that all disabled people get a winter fuel allowance. We don't.)

Naomi: It’s interesting that the government is willing to risk this one. About ten years ago I had a long debate (via letter and surgery visits) with my MP, a nice left-wing Labour chap, who argued that it would be too expensive to extend Winter Fuel Allowance to disabled people. What about means-testing it for older people and using the saving to give it to disabled people? I asked. “Oooh,” he replied, “we can’t do that. It would cost more than it would save, and it would be a terribly unpopular move.” Of course, it saves a lot more money if you just cut it, for everyone. Still, you’re left with an uncomfortable situation. This will indeed be a terribly unpopular move, and the older people’s lobby will remember. As they should.

Lisa: Most people think of independence as meaning “being able to do things for yourself like wipe your own arse.” But being raised by 2 disabled parents I learned that independence is really about being in control of your life and making choices, like choosing who you employ to wipe your arse for you. So I can get DLA which allows me the choice of getting an Ocado delivery at a time that suits me. Or I could have social services inflict an agency carer upon me to help me go shopping at a time that suits them and I get absolutely no say in the matter. The DLA option allows me independence, and is better value for the state too.

As for dignity and self-respect: I used to have some of those things, until the Tories and the right-wing press told me and the rest of the world that I’m just a useless eater.

David: Absolutely. At its core, independence is about making the decisions in your life, not about who implements those decisions for you. The closure of the Independent Living Fund has seen a horrendous definition of independence being increasingly used by those forced to justify the Tory cuts, with disabled people who are not incontinent, but who need care assistance to get to the toilet, being told they should use nappies instead, as that would ‘increase their independence’. This is the kind of doublespeak disabled people have to deal with from IDS and everyone who implements his policies, where being forced to crap yourself is touted as an improved quality of life.

The Goldfish: When I think about times my independence, self-respect or dignity has been under threat, that's all about finding myself with inadequate resources - having to rely on the generosity of friends and family for essential needs - or being spoken about as if I am nothing. Anyone who thinks I necessarily lack independence, self-respect and dignity because of the condition of my health is carrying an awful burden of prejudice.

An ineffective welfare system - an effective state - maximises the opportunities for all its people to attain and maintain independence, self-respect and dignity, regardless of the hand they are dealt. If folks lack these things because of their life circumstances as opposed to their own bad choices, then something has gone seriously wrong. And, alas, I’m afraid it has.

Naomi: Like the Goldfish, I feel that my dignity, independence and self-respect are very much under threat at the moment. I lost my PA support a year ago, thanks to care charges that I could no longer afford to pay. I used to have a fair bit of dignity and a lot of independence. I don’t anymore. I rely on my partner to a ridiculous effect, something that could easily have negatively affected my marriage -- that’s undignified. I have very little flexibility to do what I want anymore -- that’s a lack of independence. And I live on a conveyor belt of disdain and abuse, moving from one microaggression to the next, constantly dealing with a society that believes Tory rhetoric about how much of a waste of space and resources I am -- that leads to a lack of self-respect. I’m starting to think you’re right, Mr Hunt. I just wish you understood what that meant.

Philippa: The benefit system does its best to remove dignity and self-respect from people who are claiming benefits. This is getting worse by the day, it seems. There should be no indignity in claiming what people are entitled to, but along with certain portions of the press, it’s becoming something to be ashamed of rather than a right.

The five years of the ConDem government saw disability benefits and care cut to the bone. We know that those cuts resulted in at least 49 deaths where even DWP acknowledged it was likely at fault, with an additional 90 people a month dying after being declared fit for work, a figure whose release DWP spent years fighting against. Rather than share any normal person’s horror at what they have wrought, the Tories, unshackled now from the deadweight of their LibDem enablers, seem determined to take those cuts to the next level. The question is no longer whether we will have an adequate level of disability benefits at the end of this Parliament, it’s whether we will have any disability benefits left at all.