Delays in processing applications for personal independence payments “unlawful”, rules High Court judge

June 8, 2015

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:

Both claimants' cases called for expeditious consideration. “They each suffered from significant disabilities…. They were each properly to be regarded as amongst the most vulnerable in society.”
The first claimant had been 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”.
A National Audit Office (NAO) report of February 2014 had clearly identified backlogs at each stage of the claimant process. It had found also that the defendant [the Secretary of State for Work & Pensions] 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”.
The reasons for the delay were contained in the reports of the Parliamentary Select Committees, the NAO and the report of the independent examiner, Mr Gray. “Although the defendant uses the scale of the implementation that it had to grapple with as a point in its favour it overlooks the fact that the point also operates the other way….. It was incumbent upon the defendant also to address failings identified by itself and by the Select Committees and the independent report.”
The defendant had identified steps to be taken and had implemented procedures which appeared to be reducing the backlog and making the system increasingly efficient and fit for purpose. The judge said she recognised that the Secretary of State had been dealing with hundreds of thousands of applications and would have to deal with some 1.5 million more applicants when the full system of PIP was rolled out. “The scale of the project is a cogent factor in the defendant's favour but it has to be balanced against the fact that the PIP scheme is intended for the most vulnerable members of society and fit for purpose has to be construed with that service user in mind. It is important, therefore, that the system introduced and operated is accessible to its service users and efficient.”
Whilst the steps that the Secretary of State had taken were a significant and weighty material consideration they could not excuse, in Mrs Justice Patterson’s 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.”
Back payments were an important step but did “not provide a complete answer to the unnecessary stress that the prolonged delays that occurred in each of these two cases undoubtedly caused”.

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.”