This case was a judicial review of the legality of the DWP’s process of the two claimants’ applications for Personal Independence Payments (PIP)
The claimants maintained that the processing was unlawful as it:
- breached the duty on the part of the DWP to act within a reasonable time;
- breached the Article 6 rights of the individual applicants;
- breached Article 1 of the First Protocol to the European Convention of Human Rights (ECHR).
They also submitted that this was a ‘test case’, contending that their experience was typical of that of many other claimants. While the DWP was planning to roll out PIP to some 1.5 million claimants from October 2015 there were thousands of PIP claimants who were still waiting for the outcome of their PIP claim (some for more than a year). The delays that had occurred were beyond what is reasonable.
The claimants
The first claimant, C, was 37 years old, single and lived alone. She had ME and high blood pressure, severe vertigo, collapses, sharp pains, muscle aches, visual impairment and memory problems and a lowered immune system as a result of ME. Due to her physical exhaustion she was only able to leave the house once a week to go to the local supermarket.
Her only income was ESA and she struggled financially, being constantly overdrawn and spent just £8 a week on food.
While she was awarded the enhanced rates of both the daily living and mobility component of PIP the DWP took 13 months to determine her claim.
The second claimant, W, had been a full time carpenter until he contracted ulcerative colitis in 2013 and following his colon being removed was fitted with a stoma bag. He also had pancreatitis and had a hernia, was on daily medication and suffered from significant pain.
He had been struggling financially with his only income being ESA and housing benefit from which he has had to pay his rent, and all other expenses. He could not afford to feed himself and went to his sister’s home five nights a week to eat. He needed his car to assist with his mobility but could not afford to pay for petrol.
While he was eventually awarded the standard daily living rate of PIP the DWP took 10 months to deal with his claim.
Ground One – was the delay in dealing with the claimant’s PIP claims unreasonable?
Before considering whether the delay which occurred was unreasonable Justice Patterson says there are two prior questions:
- is it appropriate to treat the claimants’ cases as test cases?
- what is the right approach as to whether the delay in the circumstances is unreasonable?
In holding that the two cases cannot be test cases, she says:
“In any case involving disabilities there will be differences between claimants, their individual disabilities and circumstances and the impact of any changes upon them. No two cases will be identical in terms of either the disability or hardship. The intervener’s case studies amply exemplify the difference between claimants. One is not dealing with a convenient and standard replication of disability and circumstance but with individuals with their own unique problems and circumstances.
In any event, other than by assertion, there is no evidence that the claimants are typical of other claimants at the material time. It follows that, although there may be similarities between the claimants’ cases and others they are not of such a degree that it is appropriate, in my judgement, to treat the claimants’ cases as test cases.”
In then considering the issue of delay, Justice Patterson says that:
“There is no statutory period within which the claims for PIP are to be determined. There is no dispute in domestic law that the Secretary of State is under a public law duty to determine the PIP applications within a reasonable time.
… It seems to me that in considering whether the delays which are agreed to have occurred in the claimants’ cases are unlawful I have to disregard what may be regarded as desirable to reach the best standards. I have to consider whether there has been a breach of duty on the part of the Secretary of State to act without unreasonable delay in determination of the claimants’ claims for PIP in all of the circumstances.
In my judgment, the delay in claimant C’s case from 9 September 2013 until the determination of her benefit on 24 October 2014 of some thirteen months and the delay in claimant W’s case from 3 February 2014 until December 2014 of some ten months was not only unacceptable, as conceded by the defendant, but was unlawful.”
Justice Patterson then gives the following reasons:
“Both claimants’ cases called for expeditious consideration. They each suffered from significant disabilities (as set out above). They were each properly to be regarded as amongst the most vulnerable in society.
The first claimant was classified as a person requiring additional support early on in the process of her claim. Yet the system then in operation required her to travel some distance to a face to face assessment on two separate occasions when she had explained her difficulty in travelling. It took more than one year after she initially contacted DWP for sufficient details to be obtained over the telephone to enable her claim to be considered and determined.
For the second claimant similar considerations, although less extreme, applied from the moment of claim until the determination some ten months later.
The NAO report of February 2014 clearly identified backlogs at each stage of the claimant process. It found also that the defendant had adopted a challenging timetable and had not fully assessed the performance of its proposed systems for starting the national roll out of the claim in 2013. Insufficient time had been allowed to resolve the problems before extending the scheme in October 2013.
Assessment providers at that time were struggling with both capacity and capability to carry out the assessments. To require the first claimant to attend a face to face assessment on two separate occasions was both inappropriate, caused her considerable distress and was irrational in her circumstances.
The Public Account Committee’s findings in their report, of June 2014, were that the failure to pilot the scheme and assumptions made for the assessment process were both unsubstantiated and wrong.
The Minister’s evidence to the DWP Select Committee in September 2014 accepted that 16 weeks was not an acceptable length of time because, amongst other factors, of the impact it would have on someone who had developed a disability.
The prejudice and distress of both claimants of having to wait for the protracted period of time to have their claims determined was considerable and unnecessary.”
By the time a decision was made awarding one claimant enhanced rates of both the daily living and mobility component of PIP it had to be backdated so that a sum of £7,976.29 was awarded. The second claimant was awarded the standard rate of the daily living component of PIP and had to be awarded £1,927.84 backdated arrears.
Justice Patterson acknowledges that the DWP had since identified steps to be taken and has implemented procedures which appear to be reducing the backlog and making the system increasingly efficient and fit for purpose.
However, she says that it was important that the system introduced and operated is accessible to its service users and efficient, so that:
“Whilst the steps that the defendant has taken are a significant and weighty material consideration they cannot excuse, in my judgment, the handling of the claims of the two instant claimants when an effective system of operation of PIP benefit should have resulted in an award to each claimant significantly earlier in 2014. In acting as it did in their individual cases the defendant acted in a way that was unreasonable in the sense of being irrational.”
Ground Two: Did the Defendant’s Conduct Breach the Article 6 Rights of the Individual Claimants to a Determination within a Reasonable Time?
Article 6 of the Human Rights Act 1998 provides for the right for a fair hearing.
Judge Patterson that while Article 6 has a broad purpose my judgment, it was not engaged in the circumstances of this case:
“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. 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.”
Ground Three: Whether there was a Breach of Article 1 of the First Protocol (A1P1) to the ECHR?
Article 1 provides for the right to “peaceful enjoyment of possessions”.
The claimants argued that the defendant had “interfered” with the peaceful enjoyment of their possessions and that a fair balance was not struck between their rights and the general interests of the community.
They submitted that entitlement to PIP is a possession, that the delay in determining and delivering PIP is an interference with the peaceful enjoyment of that possession and that the defendant cannot point to a general interest which justifies the protracted delays in the administration of the PIP scheme.
However, in ruling that Article 1 is not engaged in this case, Justice Patterson says:
“The Strasbourg case law has consistently emphasised that A1P1 applies only to a person’s existing possessions and does not guarantee a right to acquire possessions. There is no right under A1P1 to receive a social security benefit unless national law provides for such an entitlement.
Here, national law requires that an assessment be carried out by qualified health professionals who look at a list of activities when considering whether the applicant meets the required needs to receive the benefit. Guidance has been issued to assessors as to how they should carry out a professional and critical appraisal of claimants.
The statistics show that on average only about 50% of new claimants are eligible for the benefit. That predicates against A1P1 being engaged.”
Decision
Justice Patterson therefore holds that while the claim fails on grounds two and three it succeeds on ground one, so that:
“In the circumstances, and having heard submissions as to the nature of relief, in my judgment, the most appropriate form is to grant a declaration of unlawfulness in relation to claimant C and claimant W.”
However, she also rules that:
“It would be inappropriate to grant a declaration in wider terms because of the considerable variations in individual circumstances. 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. Further, as I have recognised above, the situation has changed and continues to change over time.”
View the High Court decision - MS C & Anor, R (On the Application Of) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin) (05 June 2015)